Point of Law: Mere discrepancy in age cannot be a ground to disbelieve genuineness of plea of proceedee unless it is proved that voters list is not genuine or fabricated which is not the case in present case.

JUDGMENT :

N.KOTISWAR SINGH, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 4; Mr. S.S. Roy, learned Central Government Counsel appearing for respondent No.1; Ms. L. Devi, the learned Standing Counsel, NRC for respondent No.6; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent No.5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam appearing for respondent No.4.

2. The present petition has been filed by the petitioner challenging the impugned opinion dated 22.01.2019 passed by the learned Member, Foreigners Tribunal, No.2, Nalbari in F.T.(Nal-2) Case No.01/16 [F.T. Case No.45/08, Memo No.PNB/B/5(B)/2008/1365 dt.04.09.08] by which the petitioner was declared a foreigner of post 25.03.1971 stream.

3. The petitioner after receiving summon appeared before the learned Tribunal and filed his written statement. In his written statement, he stated that he is a permanent resident of No.1 Kandhabri under Mukalmua P.S. of Nalbari District and the police did not properly investigate the matter before the reference was made. It was also stated that he was born about 25 years ago at village N.C. Pub-Kaziya under Mukalmua P.S. of Nalbari district and when he was about 15/16 years, his father Hassen Ali shifted his house to village No.1 Kandhabari under Mukalmua P.S. of Nalbari District due to erosion of river Brahmaputra and thereafter, the petitioner and his family members have been staying at Kandhabri permanently.

4. The petitioner relied upon the NRC of 1951, voters lists of 1966,1993, 2014 and certain revenue receipts in respect of land stated to be in his father’s name.

5. It has been stated that the name of the petitioner’s father Hussen Ali was recorded in the NRC of 1951 in respect of village N.C. Pub-Kaziya under Nalbari P.S. Subsequently, his father’s name was recorded in the voters list of 1966 as Hussen Ali in respect of 54 No. Chenga LAC of Village Dakshin Gadoni under Tarabari P.S. of district Barpeta. But he could not get the certified copy of the same due to certain official problems.

6. The Petitioner also stated that his father’s name was recorded in the voters list of 1993 as Hussain Ali in respect of 60 No. Barkhetri LAC under Mukalmua P.S of Nalbari District at village N.C. Pub-Kaziya. Petitioner has stated that he has been casting vote regularly in village of No.1 Kandhbari under Mukalmua P.S in Nalbari District and as such, his name has been recorded in the voters list since 2014.

7. By way of affidavit in chief before the learned Tribunal taking similar plea, the petitioner also examined himself and in his testimony before the learned Tribunal, he narrated what was in the written statement and also mentioned that his maternal uncle’s home is at Dakshin Godhoni and he also mentioned about other relatives in his testimony. He also stated that his forefathers’ birth place is also in Assam and as per his knowledge his grandfather’s birth place is Dakhsin Godhoni and presently one of his uncles aged about 60/70 years is residing there and there are lands in the name of his grandfather in Dakhsin Godhoni and N.C. village and his grandfather was well known by the name Hussain Fakir and was reputed among the villagers.

8. Learned Tribunal after considering the evidence on record, however, came to a different conclusion that the petitioner is a foreigner, not an Indian. For doing so, the reasons assigned by the learned Tribunal can be found in para 9 of the aforesaid opinion which read as follows,

“9. The name of Hssain Ali (S/O Hayatali) is enlisted in the voter list of 1966(Ext.2) in vill-Dakhin Godhoni, P.S.-Tarabari, Dist. Kamrup under 54 Chenga LAC. In the voter list of 1993 (Ext.3) the name of Hussain Ali (S/O Hayat) is recorded in vill-Nonke Pub-Kazia under Barkhetri LAC. The W.S only states that Hussain Ali was 15/16 years old due to erosion of river Brahmaputra but the nam