The burden of proof regarding citizenship lies on the proceedee, and failure to provide adequate admissible evidence results in a declaration of foreigner status as per the Foreigners Act.

JUDGMENT & ORDER :

(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 vide impugned order dated 06.09.2018 passed by the learned Foreigners’ Tribunal - II, Dhubri in F.T. Case No. 633/F/2015, arising out of Ref FT Case No. 842/98. 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), Dhubri District, against the petitioner giving rise to the aforesaid F.T. Case No.633/F/2015.

(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. There were two more witnesses namely, one Kansu Sheikh (DW2) and the Headmaster of the School (DW3).

(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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri A.M. Ahmed, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Additional Senior Government Advocate, Assam; Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI and Shri RKD Choudhury, learned Dy.SGI. We have also carefully examined the records which were requisitioned vide an order dated 10.12.2018.

4. Shri Ahmed, the learned counsel for the petitioner has submitted that the petitioner could prove her 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: Register Kabinnama

ii. Ext 1(1): Gaon Panchayat Certificate

iii. Ext 2: School Certificate

iv. Ext 3: NRC Certificate of 1951.

v. Ext 4: Electoral Roll 1966.

vi. Ext 4(1): Electoral Roll 1970.

vii. Ext 5: Electoral Roll 1989.

viii. Ext 5(1): Electoral Roll 1979.

ix. Ext 6: Electoral Roll 1997.

x. Ext 7: Electoral Roll 1997.

xi. Ext 8: Electoral Roll 2005.

5. The learned counsel has at the outset submitted that the reference itself was not proper inasmuch as, the Verification Officer’s Report did not contain any information except the name of the petitioner with her husband. He has also submitted that while issuing notice by the learned Tribunal, the earlier Report by the Electoral Registration Officer was not looked into. He has submitted that in a Written Statement, it was clearly mentioned that the grandfather of the petitioner was one, Lokman Sarkar @ Lokman Sk. who had seven children out of which, Nur Hossen @ Nurul Hoque is the father of the petitioner. Reference has also been made to the NRC of 1951 containing the name of the grandfather Lokman Sarkar with his wife and four children including on