Failure to produce contemporaneous records or establish parental linkage through cogent evidence justifies declaration of foreigner status.

The petitioner, Sahar Vanu Nessa, challenged an order dated 13.03.2019 passed by the Foreigner’s Tribunal No. 7, Barpeta, which declared her a foreigner post-25.03.1971

A reference was initiated against her by the Superintendent of Police (Border), Barpeta

The petitioner submitted written statements and documentary evidence, including voter lists from 1966, 1970, 1997, and 2016, and Gaonburah certificates to establish her linkage to projected parents, Abed Ali Sheikh and Bahaton Nessa

She also presented oral testimony from herself (DW1), a Gaonburah (DW2), and her projected brother (DW3)

The Tribunal found she failed to discharge her burden of proof

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

2. Whether the findings of the Foreigners Tribunal suffered from any perversity or error apparent on the face of the record warranting interference under Article 226

The Court primarily applied Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving that a person is not a foreigner lies solely upon that person, notwithstanding the Indian Evidence Act

It relied on Sarbananda Sonowal v. Union of India, which established that facts regarding birth and parentage are within the personal knowledge of the proceedee

Precedents from Fateh Mohd. v. Delhi Administration and Ghaus Mohammad v. Union of India reiterated that this burden never shifts

Regarding the validity of certificates, the court applied Rupajan Begum v. Union of India, requiring proof of both the document's authenticity and the truthfulness of its contents

Romila Khatun v. Union of India regarding the necessity of contemporaneous records

The court applied the restrictive "certiorari jurisdiction" principles from Central Council for Research in Ayurvedic Sciences v. Bikartan Das, stating the High Court does not act as an appellate court to re-weigh evidence

The Court found the petitioner’s written statement vague, failing to disclose material details such as dates/places of birth as required by Sonowal

Analysis of the voter lists revealed a 27-year gap between 1970 and 1997, alongside an unexplained shift in residence from Goalpara to Barpeta

The Court noted that the petitioner’s projected mother appeared in the 1997 list at age 60 without any prior enlistment record

The Gaonburah (DW2) admitted his testimony was based on photocopies rather than public records and that he was unaware of the relevant Executive Instructions under the Assam Land and Revenue Regulations, 1886

Citing Sufia Khatun v. UoI, the Court held that Gaonburah certificates lack evidentiary value when not supported by contemporaneous official records

The petitioner failed to establish a legal linkage to her projected ancestors

The writ petition was dismissed, the interim stay was vacated, and the Tribunal's opinion declaring the petitioner a foreigner post-25.03.1971 was upheld. The Court directed the return of records to the Tribunal for consequential action in accordance with law