The burden of proving citizenship under the Foreigners Act, 1946 lies with the proceedee, and voter lists alone do not establish nationality without supportive evidence.

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 27.03.2025 th passed by the learned Foreigners’ Tribunal 7 , Tezpur in F.T. Case No. FTDC 1835/2016, arising out of Ref No.TZP.(B)/796/B/98. 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), Sonitpur District, against the petitioner giving rise to the aforesaid F.T. Case No. FTDC 1835/2016.

(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.

(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 Ms. P.M. Ahmed, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri H.K. Sarma, learned Government Advocate, Assam; Ms. S. Katakey, learned Standing Counsel, ECI and Shri M.R. Adhikari, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 06.08.2025.

4. Ms. Ahmed, 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, she has referred to the evidence on affidavit of the petitioner and also the following documentary evidence:

1. Ext 1: Voter Lists of 1966 of No. 78 Balipara LAC.

2. Ext 2: Voter Lists of 1971 of No. 74 Rangapara LAC

3. Ext 3: Voter Lists of 1989 of No. 74 Rangapara LAC

4. Ext 4: Certificate of Goanburah of Village Khanamukh regarding the death of the father of the petitioner on 20.02.2008.

5. Ext 5: LVO Report.

5. The learned counsel has submitted that apart from the Voters List of 1966, 1971 and 1989, there is another voter list of 1996 which due to in advertence was not produced before the learned Tribunal. It is submitted that the first two voter lists of 1966 and 1971 contain the name of the father of the petitioner, Abdul Hamid and in the voter list of 1989, the names of both the petitioner and his father figure. The fact of the death of the father in the year 2008 has been proved by Ext. 4 Certificate issued by the Gaonburah of village Khanamukh from where the linkage is established. The Local Verification Officer’s report has also been relied upon to establish the leakage.

6. She has submitted that the voter lists of 1989 have been ignored by the learned Tribunal and there is no discussion or finding on the same causing grave prejudice to the petitioner. She accordingly submits that the present writ petition be allowed and the impugned opinion be set aside.

7. Per contra, Shri Sharma, learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. He su