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 25.10.2019 passed by the learned Member, Foreigners’ Tribunal, Nagaon Court No. 7^th At Sankardev Nagar, Hojai in F.T. Case No. F.T./L/Case No. 1296/2016 arising out of SP’s Case No. 731/2012. 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), Hojai, against the petitioner giving rise to the aforesaid F.T. Case No.F.T./L/Case No. 1296/2016.

(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 13.03.2019 along with certain documents and adduced evidence through three numbers of DWs, namely, himself, his mother and maternal uncle.

(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.M. Sulaiman, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department; Shri P. Sarma, learned G.A., Assam; Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Ms. D. Borpujari, learned C.G.C. We have also carefully examined the records which were requisitioned vide an order dated 28.10.2021.

4. Shri Sulaiman, 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-1 is the voter certified copy of 1965,

(ii) Ext-2 is the voter certified copy of 1970,

(iii) Ext-3 is the voter certified copy of 1977,

(iv) Ext-4 is the voter certified copy of 2005,

(v) Ext-5 is the voter certified copy of 2005,

(vi) Ext-6 is the voter certified copy of 2010,

(vii) Ext-7 is the voter certified copy of 2016,

(viii) Ext-8 is the Photo copy of Elector Identity Card,

(ix) Ext-9 Photo copy Elector Identity Card of OP’s mother,

(x) Ext-10 is the Transfer Certificate of Nur Nagar LP School,

(xi) Ext-11 is the residency certificate issued by the Gaon Burah,

(xii) Ext-12 is the Revenue paid receipt,

(xiii) Ext-13 is the Original Passport,

(xiv) Ext-14 is the Affidavit in respect of the name and year of birth of OP’s grandfather and

(xv) Ext-15 is the Sale Deed.

5. The learned counsel for the petitioner has submitted that in the voters list of the year 1965, the name of his father Abdul Malik figures. The said voters list is however of Katigorah and it is contended that his father is originally from Barak Valley and subsequently shifted to Jamunamukh in the district of Nagaon. Reliance has also been placed on the voters list of 1970 and 1977 containing the name of his father. The petitioner has relied upon the voters list of 2005 in which, his name figures. The said voters list mentions the village as Charing Pathar in the district of Nagaon. His name has also figured in the voters list of 2010 which is relied upon.

6. The learned counsel for the petitioner has submitted that evidence was adduced by the petitioner himself as DW1, his mother as DW2 and his maternal uncle as DW3. DW2 had stated that her husband, Abdul Malik had expired 13 years back and