Under the relevant legislation, the burden of proving citizenship rests entirely on the individual. In writ jurisdiction, the court does not act as an appellate body to re-weigh evidence but only reviews the decision-making process for procedural illegality or errors apparent on the face of the record.

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 17.06.2016 passed by the learned Foreigners Tribunal No.4th , Darrangin F.T. (4th ) Case No. 47/2015. 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) A reference was made by the concerned Superintendent of Police (B),Darrang against the petitioner giving rise to the aforesaid F.T.(4th ) Case No. 47/2015. Initially, the reference was made under IM(D)T Act, 1983 and after the judgment of the Hon’ble Supreme Court in the case of Sarbananda Sonowal Vs. Union of India reported in (2005) 5 SCC 665, the matter was placed before the Foreigners Tribunal.

(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 on 30.11.2015 along with certain documents.

(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 AM Ahmed, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam; Shri N. Kalita, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. J. Sarma, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 03.03.2017.

4. Shri 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, he has referred to the evidence on affidavit tendered by 5 nos. of DWs including the petitioner and also the following documentary evidence:

(i) Ext-1Voter ID Card of petitioner;

(ii) Ext-2 Voter ID Card of one Majibar Rahman;

(iii) Ext-3 certified copy of the voter list-1966;

(iv) Ext-4 Ration Card in the name of Sabirun Nessa;

(v) Ext-5 Residential Certificate of Gaonbura;

(vi) Ext-6 Affidavit of the petitioner;

(vii) Ext-7unregistered land document dated 08.09.1994 in the name of Majibar Rahman;

He had also produced some photo copies of voter lists of the years, 2014 and 2016 which were however not proved.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the name of the petitioner is Miyar Ali and his father’s name is Majibar Rahman. He has proved the voter ID Card of himself and his projected father. He has proved the Voters Lists of the year 1966 containing the name of his projected grandfather, Montaj Ali and projected grandmother as Moina Bibi of village – No.1, M