Point of Law: A person shall be deemed to be of an Indian origin, if he, or either of his parents or of any of his grandparents was born in undivided India and as such, these provisions of Section 6A would cover persons who are born after 1985 and not before 1985.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Mr. J. Ahmed, 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 the respondent No.1 as well as appearing as standing counsel, NRC, for respondent No.3; Mr. J. Payeng, learned special counsel, FT, appearing for respondent Nos.5 & 6; Mr. A. Bhuyan, learned standing counsel, ECI, appearing for respondent No.2 and Ms. K. Phukan, learned Junior Government Advocate, Assam, appearing for respondent No.4.

2. In this petition, the petitioner has challenged the order dated 30.10.2017 passed by the Foreigners Tribunal, Barpeta-7th in FT Case No.34/2017 by which the Tribunal held that the petitioner failed to prove himself to be the son of genuine Indian parents by discharging his burden of proof as provided under Section 9 of the Foreigners Act, 1946 and held him to be a foreigner who had entered into Assam on or after 25.03.1971 and is liable to be pushed back to the specified territory.

3. Learned counsel for the petitioner submits that after receipt of summons, the petitioner filed his written statement on 25.04.2017 in which the petitioner denied that he is a foreigner. In the said written statement, he had stated that he was born and brought up in village Dakshin Godhani, PS. Tarabri, District-Barpeta and his father’s name is Madhu Sheikh and his mother’s name is Aymon Nessa.

4. He also stated that the names of his parents appeared in the voters lists of 1966 under House No.27, Part No.131 of village Dakshin Godhani under 54 No. Chenga LAC. It has been further stated that their names have appeared in the voters list of 1970 under House No.27, Part No.130 of village Dakshin Godhani under 54 No. Chenga LAC and the petitioner’s name appears in the voters list of 1985 under House No.374, Part No.82 at village Dakshin Godhani under 47 No. Chenga LAC.

5. It has been also stated that the petitioner’s father’s name has been recorded in the Annual Khiraj Patta vide Patta No.112 at Village Uttar Godhani under Baguribari Mouza.

6. It has been also stated that the petitioner’s name was marked as D (Doubtful) voter in the electoral roll of 1997 under House No.269, Part-94 of village Dakshin Godhani under 47 No. Chenga LAC and in the subsequent voters lists. It has been further stated that a certificate was issued by the Gaonburah of village Dakshin Godhani in favour of the petitioner clearly linking him with his father and also as a permanent resident of village Dakshin Godhani. The petitioner also filed a copy of the Annual Khiraj Patta and the certificate was issued by the Gaonburah.

7. The learned Tribunal after assessment of the evidences on record held that the petitioner has failed to prove that his father is Sadu Sheikh and declared him to be a foreigner of post 1971 stream. The relevant portion of the impugned opinion of the Tribunal reads as follows :

“After perusal of both oral and documentary evidence in record it is found that the proceedee projected one Madhu Sheikh @ Sadhu Sheikh and Aymon Nessa to be the father and the mother respectively and amongst others states that the names of his parents are recorded in the voter lists of 1966 and 1970 and his name is recorded in the voter list of 1985 and his father was a holder of Annual Kheraj Patta and claims Madhu Sheikh and Sadhu Sheikh to be same and one person and is the father of the proceedee and claims to be a citizen of India. On the other hand the proceedee described about the names of the father and the mother as Madhu Sheikh and Aimona Nessa when he was inquired about for the discovery of relevant facts by this Tribunal and he is not aware about as to when and where they were born and brought up and during his examination he did not describe about the name of Sadhu Sheikh. On appreciation of documentary evidence it is seen that Ext. ‘A’ and Ext. ‘B’ are the Photostat copies of certified copies of voter list of 1966 and 1970 wh