Burden of Proof Rests on Proceedee to Establish Ancestral Linkage Through Cogent Documentary Evidence

The petitioner, Nur Alom, challenged an opinion dated 30.03.2019 passed by the Foreigners Tribunal No. 2nd, Barpeta, which declared him a foreigner post-25.03.1971

The case originated from a reference made by the Superintendent of Police (B), Barpeta, initially under the IM(D)T Act, 1983, and later transferred to the Foreigners Tribunal following the Sarbananda Sonowal judgment

The petitioner claimed to be the son of Jahur Ali Mia, citing a 1965 Voter List as legacy evidence

He also relied on a 1989 Voter List (naming his mother, Jubeda Khatun), a 1997 Voter List, a School Leaving Certificate, and a Gaonbura Certificate

Neither the school authorities nor the Gaonbura were examined to prove the certificates

1. Whether the petitioner discharged the burden of proof required under Section 9 of the Foreigners Act, 1946 to establish his Indian citizenship

2. Whether the findings of fact recorded by the Foreigners Tribunal were perverse or suffered from procedural impropriety warranting interference under certiorari jurisdiction

Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving that a person is not a foreigner lies solely on the proceedee, notwithstanding the Indian Evidence Act

Ghaus Mohammad v. Union of India and Fateh Mohd. v. Delhi Administration to affirm that this burden never shifts

Principles from Rupjan Begum v. Union of India (requiring two-stage verification of certificates: authenticity of the document and authenticity of its contents)

Khudeja Khatoon v. Union of India, which held that unproven school/Gaonbura certificates are inadmissible

Limits of Certiorari jurisdiction under Article 226 as defined in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, stating the High Court cannot act as an appellate body or re-weigh evidence

The court found that the petitioner failed to establish a credible link to his projected father, Jahur Ali Mia. Although a 1965 Voter List was provided from Nichuka village, subsequent lists for the petitioner’s mother in 1989 were for Safakamar village with no explanation for the father's absence or the mother's fluctuating age (54 in 1989 but 50 in 1997)

The court noted that the School and Gaonbura certificates remained unproven because their authors were not examined as witnesses

The testimony of DW2 (mother) was disregarded because she died before cross-examination, and the testimony of DW3 (step-brother) failed to establish a link and even contradicted the petitioner by stating he never voted

Relying on Musstt. Ayesha Khatun, the court observed that the petitioner failed to make full material disclosures in his written statement

The Court held that in the exercise of certiorari jurisdiction, it cannot interfere with findings of fact unless they are palpably erroneous or without jurisdiction, neither of which was proved here

The writ petition was dismissed, the interim stay was vacated, and the Tribunal's opinion declaring the petitioner a foreigner was upheld