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 07.05.2019 passed by the learned Foreigners Tribunal No.10th, Dhubri in FT-10/FKJ/918/2018 (Reference: ‘D’ Voter Case No. 479/D/2008). 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), Dhubri District, against the petitioner giving rise to the aforesaid FT 10/FKJ/918/2018 (Reference: ‘D’ Voter Case No. 479/D/2008).

(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 13.09.2018 along with certain documents and had adduced evidence through 4 nos. of 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 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.R. Sikdar, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, GA, Assam, Shri M. Islam, learned counsel (on behalf of Shri A.I. Ali, SC, ECI) and Ms. S. Baruah, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 13.03.2020.

4. The learned counsel for the petitioner, at the outset has questioned the proceeding itself by contending that the report by the Local Verification Officer (LVO) was not completely filled up and the spot verification was not properly done. This argument has been advanced in the context of the petitioner being marked ‘D’ in the Voters List. He has submitted that at the relevant time, the petitioner was at her parental home and not at her matrimonial home. In this regard, he has relied upon the case of Lal Babu Hussain & Ors. vs. Electoral Registration Officer and Ors. reported in (1995) 3 SCC 100 and the following observations have been pressed into service:

“6. From the resume of the aforementioned provisions of the Constitution and the Citizenship Act, it becomes clear that whenever any authority is called upon to decide even for the limited purpose of another law, whether a person is or is not a citizen of India, the authority must carefully examine the question and the provisions of the Citizenship Act extracted herein before. In the instant case Article 325 of the Constitution provides for one general electoral roll for every territorial constituency; so does Section 15 of the 1950 Act. This has to be done under the superintendence, direction and control of the Election Commission as per the mandate of Article 324 of the Constitution. Section 16 of the 1950 Act in terms states that a person shall be disqualified for registration in an electoral roll if he is not a citizen of India. But positively a person must be a citizen of India to be entitled to inclusion in the electoral roll. Sub-sec. (2) of the said section empowers striking off the name of a person who incurs a disqualification set out in clause (1), (b) or (c) of sub-section (1) after his name is entered in the register of electoral rolls. Otherwise every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in a given constituency is entitled to be registered. Section 22 empowers the Electoral Registration Officer for a constituency to delete any entry already made if on enquiry he is satisfied that it is erroneous or defective in any particular or need