Under Section 9 of the Foreigners Act, 1946, the burden of proving citizenship lies squarely upon the proceedee. Judicial intervention via certiorari is restricted to the decision-making process; courts cannot re-appreciate evidence or substitute findings of fact absent a manifest error or illegality.

JUDGMENT & ORDER

(S.K. 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 29.08.2018 passed by the learned Foreigners Tribunal No. 4, Darrang, Mangaldoi in F.T. Case No.128/SPR/2017. 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), Darang District, against the petitioner giving rise to the aforesaid F.T. Case No.128/SPR/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 16.02.2018 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 him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri M. Hoque, learned counsel for the petitioner. We have also heard Shri G. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel appearing on instructions of A.I. Ali, learned Standing Counsel, Election Commission of India and Shri S.P. Choudhury, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 19.08.2019.

4. Shri Hoque, 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 and had adduced evidence.

(i) Ext-1 is the copy of voter list of 1966,

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

(iii) Ext-3 is the Gaonburah certificate,

(iv) Ext-4 is the copy of voter list of 1993,

(v) Ext-5 is the voter list of 2010,

(vi) Ext-6 is the voter list of 2017,

(vii) Ext-7 is the copy of Nirbason Patra,

(viii) Ext-8 is the voter ID,

(ix) Ext-9 is the land revenue receipt and

(x) Ext-10 is the Voter List of 1990.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the names of the parents of the petitioner had appeared in the voters lists of 1966 and 1970. The learned counsel for the petitioner had relied upon a certificate issued by the Gaonburah to establish a linkage. Reliance has been made on the Voters Lists of 1990, 1993 and 2010 containing the name of the petitioner in which, he has been shown as son of Siraj and has therefore, contended that the linkage has been established.

6. The learned counsel accordingly submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and th