The burden of proving citizenship lies strictly with the individual. Judicial oversight via writ jurisdiction is limited to the decision-making process and does not permit the re-evaluation of factual evidence if the lower adjudicatory body has proceeded without legal error or procedural impropriety.

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 rendered vide impugned order dated 17.11.2018 passed by the learned Member, Foreigners Tribunal III, Barpeta in F.T. Case No.1192(III) of 2013 declaring the petitioner as a foreigner u/s 2 (a) of the Foreigners’ Act, 1946. 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 Superintendent of Police (B), Barpeta District, against the petitioner giving rise to the aforesaid F.T. Case No. 1192 (III)/2013.

(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 23.03.2018 along with certain documents and adduced evidence through 5 nos. of DWs.

(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 P. A. Ahmed, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri G. Sarma, learned Standing Counsel, 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 Shri S. S. Roy, learned CGC. We have also carefully examined the records which were requisitioned vide order dated 30.10.2019.

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 of the 5 nos. of DWs and also the following documentary evidence.

(i) Ext-A – Certified copy of voter list 1966.

(ii) Ext-B – Certified copy of voter list 1970.

(iii) Ext-C - Certified copy of voter list 1985.

(iv) Ext-D – Certified copy of voter list 1989.

(v) Ext-E – Certified copy of voter list 1997.

(vi) Ext-F – Elector Photo Identity Card of 2013.

(vii) Ext-G – Gaonburah Certificate.

(viii) Ext.-H – Gaon Panchayat Certificate.

(ix) Ext. I – Affidavit.

(ix) Ext.-J – Elector Photo Identity Card of 2013.

(x) Annexure-1 – Copy of NRC details of 1951

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. He has submitted that the petitioner was born in the year 1960 and her marriage was in the year 1994. He has referred to the Voters List of 1966 containing the name of her father as Mowab Ali.