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Judgment
Manojit Bhuyan, J
Heard Mr. S.B. Rahman, learned counsel for the petitioner as well as Ms. G. Sarmah, learned CGC for respondent no.1; Mr. A.I. Ali, learned
counsel for respondent no.2; Mr. J. Payeng, learned counsel for respondent nos.3 to 5; and Ms. A. Verma, learned counsel for respondent no.6.
The petitioner assails the judgment and order dated 20.9.2017 passed by the Foreigners’ Tribunal, Kokrajhar in Case No. K/FT/682/2006,
whereby she has been declared to be a foreigner of post 1971 stream.
We intend to decide this case at the Motion stage itself on the basis of available records. We find no requirement to call for the case records from
the concerned Tribunal.
Consequent upon notice issued by the Tribunal, the petitioner made appearance, filed written statement as well as examination-in-chief on affidavit.
The relevant document produced and exhibited as Exhibit-A is a certified copy of the Voter List of the year 1966 showing the names of one Jubbar
Ali and Amina Bibi, both hailing from No.36 Bilasipara LAC. The finding of the Tribunal on Exhibit-A is that the same do not indicate that the
petitioner or her ancestors had been residing in Assam prior to 1966. More importantly, the petitioner could not produce any certificate to establish the
linkage that she is the daughter of said Jubbar Ali. As she failed to discharge her burden, as required under Section 9 of the Foreigners Act, 1946, the
reference made against her was answered in the affirmative. Accordingly, the Tribunal held the petitioner to be a foreigner who entered into India
after 25.3.1971.
On consideration of the materials available, we agree with the findings and decisions of the Tribunal. In this context we observe that in a proceeding
under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 , the primary issue for determination is whether the proceedee is a
foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests
upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under Section 9 of the aforesaid Act,
1946. Accordingly, burden is cast upon the proceedee to plead and prove evidence to establish citizenship.
Where no evidence is adduced or the burden is not discharged, the only alternative left open to the Tribunal would be to declare the proceedee to be a
foreigner, based on the grounds of reference upon which appropriate proceeding was initiated and notice was issued and served upon the proceedee.
In the instant case the petitioner, despite contesting the case, failed to discharge her burden under Section 9 of the Foreigners Act, 1946. In this
regard, no infirmity can be attributed in the order dated 20.9.2017 of the Tribunal.
To establish linkage to one Jubbar Ali Sheikh as her father, the petitioner has enclosed documents in the present writ petition. We are not inclined to
entertain such documents. Reason being, in a proceeding under Article 226 of the Constitution, the scope of interference to an order of the Tribunal is
limited. A writ in the nature of certiorari can only issue for correcting errors of jurisdiction or when decision is made by the Tribunal without giving
opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on
the face of the record. None of the above grounds exists in the present writ petition.
The writ court would definitely not interfere with the order of the Tribunal when opportunity had been given to the proceedee to discharge the burden
of proving that he/she is not a foreigner, which the proceedee failed to discharge, as in the instant case. The certiorari jurisdiction is supervisory and
not appellate jurisdiction. The documents which the petitioner have enclosed in the present writ petition cannot be looked into, those not having been
proved before the Tribunal at the first instance, despite opportunity afforded.
For all the reasons aforestated, we find no merit in the present petition. Accordingly, the writ petition stands dismissed and the judgment and order
of the Tribunal affirmed.
Registry to inform the concerned Foreigners’ Tribunal, the Deputy Commissioner and the Superintendent of Police (Border) for taking
immediate follow-up steps.