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 25.07.2018 passed by the learned Member, Foreigners Tribunal No. 2, Nagaon in F.T. Case No. 1184/2011 (S. P. REF Case No. 1974/1998). 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 1184/2011.

(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 24.01.2018 along with certain documents and adduced evidence through 2 (two) nos. of witnesses. The petitioner however did not adduce evidence herself.

(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 P. C. Dey, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC; Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned Counsel appearing on behalf of Shri A. I. Ali, learned Standing Counsel, Election Commission of India and Shri S. S. Roy, learned CGC. We have also carefully examined the records which were requisitioned vide order dated 14.08.2019.

4. Shri Dey, 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 and also the following documentary evidence.

(1) Ext-1 Copy of Registration Certificate.

(2) Ext-2 Copy of Panchayat Certificate.

(3) Ext-3 Copy of Gaonbura Certificate.

(4) Ext-4 NRC Copy

(5) Ext-5 Certified Copy of voter list in the year 1994.

(6) Ext-6 Voter List of the year 2017 in respect of 82 No. Raha LAC.

(7) Ext-7 Voter Identity Card name of DW 2.

(8) Ext-8 Certified Copy of voter list in the year 1971.

(9) Ext-9 Copy of Receipt Book.

(10) Ext. 10 – Aadhaar Card No. 387074535981.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. It is submitted that the father of the petitioner – Radha Charan Paul had migrated from the erstwhile East Pakistan and registered himself in India on 18.04.1960. Thereafter, the petitioner was born sometime in the year 1958. Reliance has been placed on a Voters List of 1971 containing the name of her brother Amulya Paul, who had deposed before the learned Tribunal as DW 2. With regard to the evidence of DW 2, he has submitted that there is a requirement to take into consideration such evidence and in this regard, he has relied upon the decision of Rousana Begum @ Rosona Begum Vs Union of India & Ors. [WP(C)/7893/2022 decided on 07.12.2022].

6. Reliance has also been placed on the certificate dated 27.12.2011 issued by the Gaonburah stating the relationship.

7. The learned counsel for the petitioner has alternatively argued that the petitioner would be entitled to the benefits under the Immigration and Foreigners (Exemption) Order, 2025. He has submitted that the present Order of 2025 has replaced the Orijinal Order of 1940. He has also drawn the attention of this Court to the Immigrants (Expulsion From Assam) Act, 19