GUWAHATI, India, Dec. 23 -- Gauhati High Court issued the following order on Nov. 24:

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 18.08.2018 passed by the learned Foreigners' Tribunal No. 5, Kamrup in F.T. (Nal) Case No. 1180R/2016 (Corresponding Police Case No. 105/2016). 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) The reference was made by the Superintendent of Police (B), Kamrup District, against the petitioner giving rise to the aforesaid F.T. (Nal) Case No. 1180R/2016 (Corresponding Police Case No. 105/2016).

(ii) As per the 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 along with certain documents and had adduced evidence of herself, a villager of Narayangaon and the Gaonburah of Jaljali village as DWs 1, 2 and 3 respectively.

(iii) The learned Tribunal, after considering the facts and circumstances and taking into account 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 D. Choudhury, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri N. Kalita, learned counsel appearing on behalf of Shri A. I. Ali, learned Standing Counsel, ECI and Ms. B. Sarma, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 11.10.2018.

4. Shri Choudhury, the learned counsel for the petitioner at the outset has contended that the correct name of the petitioner is Mallika Khatun which however was wrongly stated as Mallika Begum. He 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 on affidavit of the petitioner and following documentary evidence:

(i) Photocopy of Annual Kheraj Patta No. 107 of year 1948-49.

(ii) Photocopy of Annual Kheraj Patta No. 93 of year 1954-55.

(iii) Photocopy of Annual Kheraj Patta No. 41 of year 1964-65.

(iv) Photocopy of Annual Kheraj Patta No. 97 of year 1967-68.

(v) Draft Chitha of Dag No. 598/116 of the year 1957-64.

(vi) Partial Voter List of 1965.

(vii) Voter List of the year 2017 of the Panchayat.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=rC8SUFuyEFsvB5V61cXUrE4oThQfib%2BGH0Z2DBhZzrQrOpE75tk7CrdSSwebgCjS&caseno=WP(C)/7225/2018&cCode=1&cino=GAHC010228662018&state_code=6&appFlag=)

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