Point of Law : Merely because the name of a person does not appear in all voters list, it cannot be a ground to disbelieve the presence in India when there are other clear evidence as in the present case e.g., in the form of Ext.A and oral testimony of the Gaonburah.

JUDGEMENT :

N. Kotiswar Singh, J.

Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 4; Ms. U. Das, learned Additional Senior Govt. Advocate, Assam for respondent No.3 and Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.5.

2. In this petition, the petitioner has challenged the opinion dated 25.08.2017 passed by the learned Foreigners Tribunal No.2, Kamrup(R), Boko, Assam in BFT Case No.358/2015 by which the petitioner, Chanmohan Barman, son of Late Rukmini Barman, permanent resident of Village-Lamgaon, P.S.-Boko, District-Kamrup, Assam had been declared to be a foreigner .

3. The petitioner had stated before the learned Tribunal that he was born and brought up at village-Lamgaon under Boko P.S. of Kamrup district. The petitioner had stated that he was born to Late Rukmini Barman who was born in East Pakistan (Bangaldesh), who migrated to India in 1964, in connection with which, the Ministry of Rehabilitation had issued a Migrant Family Card in the name of his father Rukmini Barman in the year 1967. It has been also submitted that in the certificate issued by Headmaster of Bamunigaon Refugee L.P. School, the date of birth of the proceedee has been mentioned as 02.04.1981. It has been further stated that the name of his father also was enrolled in the voters list of 2005.

4. Though the learned Tribunal noted the aforesaid documents, referring to the evidence of DW2, the Gaonburah of Lamgaon, the learned Tribunal observed that in the cross examination, the Gaonburah had stated that he knew the opposite party since his birth, but he did not know since when his father had been casting vote at Lamgaon. Further, it was also noted by the learned Tribunal that there is no voters list in the name of the father of the opposite party/proceedee prior to 1971. There is only a voters list in the name of the proceedee and his father in the year 2005 which is not a sufficient to prove that the father had entered India before 1971. It was also observed by the learned Tribunal that the opposite party was not able to produce the certified copy of the voters list of 2005.

5. Accordingly, the learned Tribunal wondered that if the father of the opposite party had entered in the year 1964, why his name was not registered in the voter list of 1966. The learned Tribunal also observed that no reason has been assigned why his father had not cast vote till 2005 and as such, the learned Tribunal held that the petitioner had failed to prove his case that he is an Indian and not a foreigner.

6. On the other hand, Mr. Islam, learned counsel for the petitioner submits that petitioner’s brother, namely, Rupmohan Barman was also similarly declared to be a foreigner by the same Tribunal vide impugned opinion dated 28.08.2017 passed in B.F.T. Case No.465/2016 by giving similar reasons. However, when challenged before this Court by filing WP(C) No.23/2018, this Court set aside the opinion of the learned Tribunal and allowed the petition vide judgment and order dated 24.11.2021 by declaring the petitioner, Rupmohan Barman to be an Indian, by primarily considering the Migrant Family Card (Relief Eligibility Certificate) issued on 18.04.1967 in favour of the petitioner’s father, Rukmini Barman. This Court took also into consideration the evidence of the Gaonburah and did not agree with the reasoning of the learned Tribunal in rejecting the case of his brother, Rupmohan Barman.

The order passed by this Court in WP(C) No.23/2018 on 24.11.2021 declaring his brother Rupmohan Barman is reproduced hereinbelow.

“Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Mr. P.S. Lahakar, learned CGC appearing for respondent no.1 & 6; Mr. J Payeng, learned Special Counsel, F.T. appearing for respondent nos. 2 & 4; Mr. A.I. Ali, learned Standing Couns