The burden of proving citizenship is on the proceedee under Section 9 of the Foreigners Act, 1946, and the Writ Court does not review factual determinations of the Tribunal unless procedural impropriety or illegality is established.

JUDGMENT :

S.K. Medhi, J.

The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India by putting to challenge the opinion rendered vide impugned order dated 29.04.2019 th passed by the learned Foreigners’ Tribunal 5 , Darrang, Mangaldoi in F.T. (V) Case No. 2355/2016. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971.

2. The facts of the case may be put in a nutshell as follows:

(i) The reference was made by the Superintendent of Police (B), Darrang District, against the petitioner giving rise to the aforesaid F.T. (V) Case No. 2355/2016.

(ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement along with certain documents and had also adduced evidence as DW1 along with another witness DW2.

(iii) The learned Tribunal, after considering the facts and circumstances and taking into account of the provisions of Section 9 of the Foreigners’ Act, 1946 had come to a finding that the petitioner, as opposite party had failed to discharge the burden cast upon him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri A. Ali, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A. I. Ali, learned Standing Counsel, ECI assisted by Shri M. Islam, learned counsel and Shri R.K.D. Choudhury, learned Dy.SGI.

4. Shri Ali, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to the evidence on affidavit of the petitioner and also the following documentary evidence:

(i) Ext 1: Voter Lists of 1965.

(ii) Ext 2: NRC of 1966.

(iii) Ext 3: Voter Lists of 1997

(iv) Ext 4: Voter Lists of 2014

(v) Ext 5: Voter ID Card of Projected father

(vi) Ext 6: Voter ID Card of Projected mother.

(vii) Ext. 7:Voter ID Card of the petitioner

(viii)Ext. 8:Voter ID Card of the projected brother

(ix) Ext. 9: Voter ID Card of the wife of the petitioner

(x) Ext. 10: Land document in the name of the petitioner

(xi)Ext. 11: Legacy Data Code of 1966

(xii)Ext. 12: Legacy Data Code 2015

(xiii) Ext. 13: Gaonburah Certificate

(xiv) Ext. 14: Affidavit regarding age correction

Two other documents were produced which are:

(i) Voter Lists of 2008 of 68 No. Dalgaon LAC (Annexure-A).

(ii) Voter Lists of 2019 of 68 No. Dalgaon LAC (Annexure-B).

5. The learned counsel has submitted that in the Voter List of 1965, the name of the father of the petitioner appears which is also supported by the NRC of 1966. Thereafter, in the Voter List of 1997, the name of the father of the petitioner including that of the petitioner have appeared. He submits that the other Voter List of subsequent years have been duly proved including the EPIC of the petitioner as well as jamabandi of a plot of land in the name of the petitioner wherein name of his father also appears.

6. He has submitted that the aforesaid documents which were supported by the petitioner deposing as DW1 along with evidence of the father as DW2 have not been properly appreciated by the learned Tribunal leading to passing of the impugned