The main legal point established in the judgment is the importance of proper evaluation and appreciation of evidence in determining citizenship claims, as well as the application of the burden of proof under Section 9 of the Foreigners Act.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. This writ petition is preferred by the petitioner-Sujab Ali, being aggrieved by the Order dated 27.02.2020 passed by F.T Kamrup (M) 2nd Guwahati-3 in F.T. Case No. 1638/2015, by which, on a reference being made that he entered Assam, illegally without any valid travel documents after 24th of March, 1971, was answered in the affirmative in favour of the State and against the petitioner by declaring him to be a Foreigner of post 25.03.1971 from Bangladesh and ordered for his detention, deportation and deletion of his name from all voters lists.

2. Heard learned Counsel for the parties and perused the records of the Tribunal.

3. The petitioner's case before the Tribunal is that he is a citizen of India, having been born on 11.01.1992 in the district of Dhubri in the village South Salmara, Part-1 and he was educated in the Teltari Noeagaon L.P. School, village-Teltari, Noeagaon, P.S. South Salmara, District-Dhubri, Assam. In the written statement filed before the Tribunal the petitioner projected one Abdul Majid @ Abdul Majid Sheikh to be his grandfather and Nosiman Nessa to be his grandmother. His great grandfather was Kasimuddin and his great grandmother was Goroman Nessa. The petitioner claims that Sayed Ali was his father and Toyer Bhanu Nessa @ Toyer Bhanu Nessa Bibi, his mother. The petitioner stated in his Written Statement that his father was born on 01.01.1958 in village-Isshav Dewangirpara and started living with his parents there but due to river erosion his father and his relatives shifted to another place namely, Natinir Alaga Part-II and later got married to Toyer Bhanu Nessa @ Toyer Bhanu Nessa Bibi and three children were born to them namely, Tozamul Hoque @ Tojammel Hoque, Mojammel Hoque and the writ petitioner namely, Sujab Ali.

4. The petitioner claims that he is the permanent resident of village-South Salmara, Part-I, P.S-South Salmara in the district of South Salmara and is a mason by profession. He denied the claim of the State made in the reference that he is a foreigner who had entered Assam after 25th of March, 1971 from the specified area namely ‘Bangladesh’. The petitioner produced three witnesses in support of his claim, namely, D.W.1, (the petitioner himself), Tojammel Hoque, his elder brother as D.W.2 and one Sayed Ali stated to be his father as D.W.3. One Sukur Ali Deo, the cousin of the grandfather of the proceedee was also examined as D.W.4. The petitioner exhibited 39 documents before the Tribunal.

5. The learned counsel for the petitioner submits that inspite of sufficient evidences laid before the Tribunal both in the form of documentary and oral evidences, the Foreigners' Tribunal failed to appreciate the evidences presented and declared the petitioner to be a foreigner.

6. The learned counsel for the petitioner strongly urges that the manner in which the Tribunal came to the conclusion is totally in conflict with the provisions of law in as much as the relevant materials and the evidences which were placed before the Tribunal were not considered in the proper perspective and consequently, the evidences which are admittedly in support of the statements made by the proceedee in order to substantiate his claim that he is a citizen of India, were overlooked. As a consequence of the order, the petitioner was arrested and he is presently in detention.

7. The learned counsel for the petitioner in support of his contentions has relied upon the following Judgments:

1. WP(C) No. 1818 of 2019, Haidar Ali v. The Union of India, decided on 30.03.2021.

2. Sirajul Haque v. The State of Assam, (2019) 5 SCC 534, decided on 14.02.2019.

3. State of Assam v. Moslem Mandal, (2013) 1 GLT 809, decided on 03.01.2013.

4. Bant Singh v. Niranjan Singh (D) by Lrs., (2008) 4 SCC 75, decided on 15.02.2008.

5. Tulsa v. Durghatiya, (2008) 4 SCC 520, decided on 15.01.2008.

6. Dolgobinda Paricha Nimai v. Nimai Charan Misra, 1959 Supp (2) SCR 814, AIR 1959 SC 914 decided on 27.04.1959.

7. Abdul Matali @ Ma