In citizenship disputes, the statutory burden of proof rests entirely on the claimant to provide cogent, contemporaneous evidence of linkage, and judicial review is restricted to the decision-making process rather than the re-adjudication of factual findings unless a clear error is apparent.

Advocate for the petitioner : Shri J. Ahmed

Advocates for the respondents : Ms. A. Verma, SC- Home Deptt. & NRC,

Shri P. Sarma, GA, Assam;

Shri N. Kalita, for ECI.

Ms. B. Sarma, CGC.

Whether the pronouncement is of the operative part of the

judgment? : NA

Whether the full judgment has been pronounced? : Yes

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 09.08.2019 passed by the learned Foreigners Tribunal No.2nd, Dhubri in F.T. Case No. FT 1123/F/16 (Police Ref. Case No. 609/98). 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 F.T. Case No. FT 1123/F/16.

(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 27.12.2018 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 her 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 Ms. A. Verma, 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 AK Dutta, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 04.03.2020.

4. Shri Ahmed, 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 adduced by 3 nos. of DWs and also the following documentary evidence:

(i) Ext-1 – Marriage registered Kabinnama dated 03.10.93;

(ii) Ext-2 – Certified copy of the draft Chitha copy dated 19.11.18;

(iii) Ext-3 – Certified copy of Final Khatian dated 01.11.18;

(iv) Ext-4 – Certified extract copy of E/Roll of 1966;

(v) Ext-5 – Certified extract copy of E/Roll of 1970;

(vi) Ext-6 – Certified extract copy of E/Roll of 1977;

(vii) Ext-7 - – Certified extract copy of E/Roll of 1985;

(viii) Ext-8 – Certified extract copy of E/Roll of 1997;

(ix) Ext-9 – Electronic Certified extract copy of E/Roll of 2018.

5. The learned counsel for the petitioner has submitted at the outset that the LVO had furnished the report without proper verification and therefore, the proceeding stood vitiated. He has submitted that in t