Burden of Proving Citizenship Rests Solely on Proceedee and Cannot Be Discharged Through Inconsistent Voter Lists

The petitioner, Khalek @ Raphik Ali, challenged an order dated 21.01.2019 passed by the Foreigners Tribunal No. 5, Tezpur, which declared him a foreigner post-25.03.1971

A reference was initiated by the Superintendent of Police (B), Biswanath District

The petitioner filed a written statement on 19.05.2016 and produced five witnesses (DWs) and documentary evidence including Voters Lists (1965, 1970, 1989), NRC details, and Gaonburha certificates

The primary discrepancy noted was a significant age inconsistency: the 1989 Voters List recorded the petitioner as 55 years old (suggesting birth in 1934), while his projected mother’s age in the 1966 list suggested she was six years younger than him

1. Whether the petitioner successfully discharged the burden of proof to establish Indian citizenship as mandated by Section 9 of the Foreigners Act, 1946

2. Whether the findings of fact by the Tribunal were perverse or suffered from procedural impropriety justifying interference under Article 226

The court primarily applied Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving citizenship lies solely on the proceedee, notwithstanding the Evidence Act

It relied on Sarbananda Sonowal v. Union of India (2005), establishing that facts like date/place of birth and parental details are within the proceedee's personal knowledge

The court applied Basiron Bibi v. UoI (2018) regarding the inability of a proceedee to disown inconsistencies in documents they herself produced

The court applied Romila Khatun v. UoI (2018) stating that contents of certificates must be proved by contemporaneous records

Finally, it followed Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023) regarding the limited scope of "certiorari" jurisdiction under Article 226

The High Court found the petitioner’s written statement "absolutely vague" and lacking essential details required under the Sonowal precedent

The court noted that while the petitioner relied on father-linkage via Gaonburha certificates, the depositions of the Gaonburahs (DW-2, 3, 4) revealed these were issued without personal knowledge of the father or based on unknown years of Voters Lists, failing the test of authenticity of contents

The court highlighted a biological absurdity where the petitioner was recorded as older than his projected mother

the lack of explanation for the petitioner's absence from Voters Lists prior to 1989 (when he was 55) was deemed a failure to discharge the burden of proof

The court held that oral testimony of the projected brother lacked supporting documentary evidence and could not override these gaps

The Court concluded that the Tribunal’s order was based on a proper appreciation of evidence and that a Writ Court cannot re-weigh evidence or act as an Appellate Court. The writ petition was dismissed, and the Tribunal's opinion declaring the petitioner a foreigner was upheld