In proceedings under the relevant foreigners' legislation, the burden of proving citizenship lies exclusively with the individual. A writ court overseeing a tribunal's decision via certiorari jurisdiction must limit its review to the decision-making process and cannot substitute its own findings of fact or re-weigh 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 10.10.2018 passed by the learned Foreigners Tribunal No.7, Nagaon at Lanka in FT/L/Case No. 1179/2016 [arising out of SP’s Case No.1151/2005]. 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), Nagaon District, against the petitioner giving rise to the aforesaid FT/L/Case No. 1179/2016.

(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 on 03.02.2018 along with certain documents and had also adduced evidence.

(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 DP Borah, 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 Ms. K. Phukan, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 02.02.2019.

4. Shri Borah, 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 his evidence adduced as DW1 and also the following documentary evidence.

(i) Ext-1 - Birth Certificate dated 02.05.2005;

(ii) Ext-2 - Kabinnama of marriage;

(iii) Ext-3 - certified copy of Voter List of 1966;

(iv) Ext-4 - certified copy of Voter List of 1970;

(v) Ext-5 - certified copy of Voter List of 1997;

(vi) Ext-6 - certified copy of Voter List of 2005;

(vii) Ext-7 - certified copy of Voter List of 2010;

(viii) Ext-8 - certified copy of Voter List of 2017;

(ix) Ext-9 - certified copy of Voter List of 1977.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. The petitioner’s Birth Certificate was proved as Ext.1 wherein the names of her parents are reflected and the date of birth of the petitioner is 15.03.1982. The Kabinnama dated 13.04.2003 was proved as per which the petitioner was married to one Md. Saifuddin. Exts.3 and 4 are the Voters Lists of 1966 and 1970 containing the names of her projected parents and two uncles. The next Voter List is of the year 1997 wherein, along with the nam