In proceedings regarding nationality, the burden of proof rests solely on the individual. Judicial review is limited to the legality of the decision-making process, and the court cannot function as an appellate body to reweigh evidence or replace factual findings absent a clear error of law.

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 20.05.2019 passed by the learned Foreigners Tribunal No. 11, Barpeta, Sorbhog in F.T. Case No. 878/2016 (Reference No. 92/14). 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 FT Case No. 878/2016 (Reference No. 92/14).

(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 25.10.2018 along with certain documents and adduced evidence through 3 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 M. A. Sheikh, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC; Ms. R. B. Bora, learned GA, Assam, Shri N. Kalita, learned Counsel on behalf of Shri A. I. Ali, learned Standing Counsel, Election Commission of India and Shri K. K. Parasar, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 06.11.2020.

4. Shri Sheikh, 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 3 nos. of DWs and also the following documentary evidence.

(i) Ext-1 – Certified copy of extract Voters List of 1965.

(ii) Ext-2 – Certified (digital) copy of Electoral Roll of 1970

(iii) Ext-3 – Certified (digital) copy of Electoral Roll of 1989.

(iv) Ext-4 - Certified (digital) copy of Electoral Roll of 1997.

(v) Ext-5 – another Certified (digital) copy of Electoral Roll of 1997.

(vi) Ext-6 – An EPIC standing in the name of Halema Khatun.

(vii) Ext-7 Xerox copy of PAN Card in the name of Muntaj Ali.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. He has referred to the Voters List of 1965 containing the names of her parents as Montaj Ali (father) and Joymon Nessa (mother). The subsequent Voters List is of the year 1970 containing the names of the father - Montaj Ali and mother - Jamela Nessa along with one Jabbar Ali, whom the petitioner has stated to be her elder brother. The next Voters list is of the year 1989 containing the name of the petitioner along with her husband and another person. The next Voters list is of the year 1997 having the names of the petitio