In citizenship determination proceedings, the burden of proof lies exclusively with the proceedee. Judicial review under writ jurisdiction is limited to verifying the decision-making process and does not permit the court to re-weigh evidence or act as an appellate body regarding factual findings.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. 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 12.11.2018 passed by the learned Foreigners Tribunal no.7th, Barpeta in F.T. Case No. 13/2017 [Reference IM(D)T Case No. 4198/1998]. 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 proceeding was initially against the petitioner under the IM(D)T Act. However, after the said Act and the connected Rules were declared unconstitutional by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665, the matter was transferred to the concerned Foreigners Tribunal under the Foreigners Act and the Rules which was registered as giving rise to the aforesaid F.T. Case No. 13/2017.

(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 22.12.2017 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 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.T. Sarkar, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P.S. Lahkar, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 25.09.2019.

4. Shri Sarkar, 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 four numbers of witnesses and also the following documentary evidence.

(i) Ext-A is the translated certified copy of the voter list of 1966;

(ii) Ext-B is the digitally signed certified copy of the E/Roll of 1970;

(iii) Ext-D is the translated certified copy of the voter list of 1997;

(iv) Ext-E is the Sale deed dated 24.02.1979;

(v) Ext-F is the Gaon Panchayat Certificate;

(vi) Ext-G is the Gaonburah Certificate.

(vii) Ext- H is the Gaonburah Certificate

5. Shri Sarkar, the learned counsel has submitted that in the written statement, all material disclosures were made. It is submitted that the name of the petitioner is Mamtaj Begum, and her parents name were Iman Ali @ Imanali and Hajiran Nessa @ Chajiran Begum @ Chajiran Nessa. She had also given the names of her grandparents and that she was born in village Dakshin Godhuni, Tarabari in the district of Barpeta. However, the said village was affecte