Point of Law: If a proceedee has disclosed credible relevant facts on the basis of which he is claiming citizenship, it will be incumbent upon the State to, in our opinion, verify these facts and if necessary, lead evidence in rebuttal.

JUDGMENT :

N.Kotiswar Singh, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Assistant Solicitor General of India, for respondent No.1; Mr. J. Payeng, learned special counsel, FT, appearing for respondent Nos.2 and 4 and Ms. K. Phukan, learned Government Advocate, Assam, appearing for respondent No.3.

2. In this petition, the petitioner has challenged the impugned opinion dated 21.08.2017 passed by the learned Member, Foreigners' Tribunal No.5th at Goalpara, in F.T. Case No.F.T./5/388/MO/2016 arising out of ERO Reference Case No.616-69/37, by which the petitioner has been declared as a foreigner of post 1971 stream.

3. We have also perused the records, which have been requisitioned.

4. In the present case, the reference was made by a letter of the Superintendent of Police (Border), Goalpara, under Memo No.GLP/B/Doubtful/2006/574, dated 30.08.2006 addressed to the Member, Foreigners' Tribunal, Goalpara, stating that as per Section 2(a) of the Foreigners Act, 1946, the case of a doubtful voter of Shri Samsul Hoque, S/O Fajal Rahman, Village-Dubapara, P.S.-Mornoi, District-Goalpara has been forwarded along with the police verification report to the competent authority vide ERO's Case No.616-69/37.

5. Upon reference being made, notice was issued to the petitioner Samsul Hoque, S/O Fazal Rahman, resident of Dubapara by the Foreigners' Tribunal No.5th, Mornoi, Goalpara, Assam, which was duly received by the petitioner and the petitioner appeared before the Tribunal and filed his written statement and number of documents including voters lists of 1966, 1971, 1974, 1985, 1989 in support of his claim that he is not a foreigner but an Indian. The petitioner also appeared before the Tribunal and examined himself as DW-1. The petitioner also produced one Soleman Ali, the projected brother of the petitioner who was examined as DW-2.

6. The learned Tribunal after considering the evidence of the petitioner and his witnesses as well as the documentary evidences, came to the conclusion that the petitioner had not been able to prove his case and accordingly, held that the petitioner Samsul Hoque of village Dubapara is a foreigner of post 1971 stream, who entered India illegally.

7. Referring to the written statement filed by the petitioner, the learned Tribunal noted that the petitioner had stated that he was born and brought up at village Uzirer Char under P.S. Baghbar in the District-Kamrup, sometime in the year about 1971 and Fazal Haque and Anowara Khatun are his parents, and Badsa Munsi and Jeleman Nessa were his grandparents. The Tribunal also noted that the petitioner had stated in his written statement that his grandparents were Batcha Munchi and Jeleman Nessa. The names of Batcha Munchi and Jeleman Nessa, the projected grandparents of the petitioner were included in the electoral roll of 1966 with their son Fazal Rahman and his wife Anora Khatun. The Tribunal also noted that the name of the grandfather has been changed to Badsa Munsi as recorded in the electoral roll of 1971 and the names of parents of the petitioner was recorded as Fazlur Rahman, S/O Badsa and Anowara Khatun, W/O Fazlur and Jeleman Nessa, W/O Badsa at village Uzirer Char and thereafter, their names were included and enrolled in the electoral roll of 1974. Subsequently, in the year 1985, the names of the petitioner Samsul Haque, S/O Fazal Haque and Apna Khatun, W/O Fazal were included. Subsequently, the names of the petitioner and his wife Hanufa Khatun of village Dubir Char were mentioned in the electoral roll of 1989 under village Uzirer Char. Thereafter, the petitioner shifted to Pet Kata under PS-Mornoi and stayed there for few years and again shifted to Dubapara about 16 years ago and settled permanently there and the name of the petitioner and his wife were enrolled in the electoral roll of 2015 but the same was marked as 'D'.

8. The learned Tribunal thereafter exa