Under Section 9, the proceedee bears the continuing burden of proving they are not a foreigner.

A reference was made by the Superintendent of Police (Border), Nagaon, against Md. Izzat Ali, initiating F.T. Case No. 389/2016 arising out of Police Reference “D” Case No. 2965/1998.

The Foreigners Tribunal-IV, Nagaon, by opinion dated 30 December 2020, declared the petitioner to be a foreigner who had entered India after 25 March 1971.

The petitioner claimed Indian citizenship and relied upon voters’ lists of 1965, 1970, 1977 and 1994, a name-correction affidavit, a Gaon Burah certificate and a rectification deed.

The petitioner challenged the Tribunal’s opinion under Article 226 of the Constitution, contending that the evidence established his citizenship and had not been properly considered.

The State and other respondents opposed the petition, arguing that the petitioner had failed to discharge the burden under Section 9 of the Foreigners Act, 1946.

Whether the petitioner discharged the burden under Section 9 of the Foreigners Act, 1946, to establish that he was not a foreigner and had entered India before 25 March 1971.

Whether the Foreigners Tribunal’s opinion was vitiated by non-consideration of evidence, procedural illegality or an error apparent on the face of the record warranting interference under Article 226 of the Constitution.

Whether the voters’ lists, name-correction affidavit, Gaon Burah certificate, rectification deed and oral evidence established a reliable link between the petitioner and his projected parents and proved his Indian citizenship.

Section 9 of the Foreigners Act, 1946 places the burden upon the person concerned to prove that he is not a foreigner, notwithstanding the Indian Evidence Act.

The Court relied on Fateh Mohd. v. Delhi Administration, AIR 1963 SC 1035, and Ghaus Mohammad v. Union of India, AIR 1961 SC 1526, for the rule that the burden of proving non-foreign status lies on the proceedee.

Applying Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, the Court held that a claimant should ordinarily disclose his date and place of birth, the names, places of birth and citizenship of his parents, and, where relevant, details of grandparents.

In certiorari proceedings under Article 226, the High Court does not act as an appellate court, reweigh evidence or substitute its own factual conclusions; interference is justified only for jurisdictional error, procedural illegality or an error of law apparent on the face of the record, as explained in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, Civil Appeal No. 3339 of 2023.

The Court further applied the principles that a self-serving affidavit cannot by itself prove corrections in names, and that documentary evidence must be supported by contemporaneous records proving both the document and its contents.

The Court found that the petitioner’s written statement was vague and did not disclose essential particulars such as his date and place of birth, details of his parents, their places of birth or citizenship, or relevant family history.

The voters’ lists of 1965, 1970 and 1977 could assist the petitioner only if a credible link with the projected father were established; no such link was proved.

The 1985 voters’ list had not been exhibited before the Tribunal and, in any event, did not contain the projected father’s name.

The 1994 list described the petitioner as “Izzat Khatun,” while the 1989 list was neither certified nor exhibited and recorded the name as “Eeman Ali.”

The name-correction affidavit was treated as a self-serving document and did not establish citizenship.

The Gaon Burah certificate was unsupported by contemporaneous records or an issue register, while the evidence of the co-villager and deed writer did not establish the required genealogical link.

The Court also distinguished the authorities relied upon by the petitioner, including Rahim Ali and Sirajul Hoque, on the basis that their factual circumstances were materially different.

Since the Tribunal’s findings were based on the evidence and disclosed no jurisdictional or legal error, the High Court declined to reassess the factual conclusions under Article 226.

The Tribunal’s opinion dated 30 December 2020 declaring him a foreigner was upheld, and the writ petition was dismissed.

The interim order was vacated, consequential action was directed to proceed in accordance with law, and the Tribunal records were ordered to be returned.