The burden of proving citizenship rests solely upon the proceedee in nationality determination cases. Appellate courts exercising supervisory jurisdiction shall not re-evaluate factual findings or evidence, but may only scrutinize the legitimacy of the decision-making process to ensure it is free from procedural error or perversity.

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 12.09.2019 passed by the learned Foreigners’ Tribunal No. 1st , Barpeta, Assam in F.T. Case No.82/2018. 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.No.82/2018.

(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 20.10.2018 along with certain documents and adduced evidence through 3 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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri J. Ahmed, 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 appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Shri B. Deka, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 16.03.2020.

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 following documentary evidence.

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

(ii) Ext-B is the certified copy of voter list of 1970,

(iii) Ext-C is the certified copy of voter list of 1993,

(iv) Ext-D is the voter list of 1997,

(v) Ext-E is the Jamabandi Copy,

(vi) Ext-F is the Gaonburah Certificate.

5. The learned counsel for the petitioner has submitted that in the notice issued by the Tribunal, the name was mentioned as Fazal Haque son of Gatu Mia and there was also a mention of the voters list of 1966 in the ERO report wherein the name has been mentioned as Fayzal Haque. It is submitted that there was discrepancy with regard to the name in the notice itself and actually, the name of the petitioner is Fazar Ali. It is submitted that the names of his parents appear in the voters lists of 1966 and 1970 as Ghatu Seikh and Sajemon Nessa. There is, however, a slight change in the name of the father in the voters list of 1970 as Ghutu Seikh. The voters list of 1993 has been relied upon wherein the father’s name is written as Gatu Miya and mother’s name as Sajemon Nessa along with that of the petit