Point of Law: Merely because documents were collected by petitioner during pendency of reference, it cannot be a ground to ignore same as documents have to be examined as regards the genuineness, authenticity, reliability and relevance of documents independently.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Central Government Counsel appearing for respondent No.1; Mr. J Payeng, learned Special Counsel, F.T. appearing for respondent Nos. 2, 4, 5 & 6; and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent No.3.

2. In this petition the petitioner has challenged the impugned opinion dated 02.02.2017 passed by the Foreigners Tribunal, Barpeta-11th, Assam, in F.T Case No.32/2015, by holding that the petitioner has failed to discharge the burden of proof under Section 9 of the Foreigners Act, 1946 and held him to be an illegal immigrant who entered India without valid documents after 25.03.1971.

The petitioner was proceeded before the aforesaid Tribunal after the reference was made as his citizenship was found doubtful.

3. The petitioner after receiving notice appeared before the Tribunal and filed his written statement dated 29.08.2016 and he also exhibited number of documents like voters list of 1966, 1970, 1985 and 2005 etc. and other documents in support of his claim that he is an Indian. He also examined himself as D.W.1 and one Idris Ali as D.W.2, whom the petitioner claims to be his own brother and one Gaonburah as D.W3, namely Allauddin. The Tribunal after considering both the oral and documentary evidences adduced by the petitioner held him to be a foreigner.

4. The petitioner claimed to be the son of one Md. Majam Ali and Nekjan Nessa, both Indian citizens and hence, he is also an Indian. As regards the identity of petitioner’s parents i.e. Md. Majam Ali whom the petitioner claims to be his father and one Nekjan Nessa, whom the petitioner claims to be his mother, the petitioner submitted that their names were reflected in the voters lists of 1966 and 1970. The voters lists of 1966 and 1970 were marked and exhibited as Exhibits-A and B respectively.

5. Learned Tribunal made the observation that Exhibit –A which is the certified copy of the voter list of 1966 was proved in original and in Exhibit-A the name of the projected parents had been shown as Majam Ali and Nekjan Nessa vide serial No.240 & 241 with House No.81 of Village Guileza under 51 No. Jania LAC. The Tribunal also noted that the Exhibit-B, which is the photocopy of the certified copy of 1970’s voters list which was proved in original and the names of the aforesaid parents had also been shown at Serial No.299 & 300 and House No.81 of the same Constituency.

6. The Tribunal also noted that D.W.2, Idris Ali, whom the petitioner claims to be his brother, stated the names of his parents as Majam Ali and Sarjina Nessa. The Tribunal also observed that the local Gaonburah, namely, Allauddin who was examined as the D.W.3 had mentioned about the names of the parents of the petitioner as Majam Ali and Nekjan Nessa. The Tribunal accordingly, observed that there is contradictory evidence adduced by the D.W.1, D.W.2 and D.W.3 as regards the names of their parents. According to the learned Tribunal, the names as appearing in the certified copies of the voters list of 1966 and 1970 marked as Annexure-A & B respectively were to be affirmed and confirmed by the D.W.1 and D.W.2. However, according to the learned Tribunal the same was not done by observing that D.W.1 and D.W.2 had failed to prove the contents of the certified copy of voters lists of 1966 and 1970.

7. The learned Tribunal also held that when the projected father is alive though near about 103 years old, the petitioner ought to have proved the certified copies of the voters lists of 1966 and 1970 by producing his projected father as material witness before the Tribunal. The learned Tribunal held that failure to produce the petitioner’s father as a witness amounts to suppression of materials facts before the Tribunal.

8. The learned Tribunal also held that the certificate issued by the Gaonburah marked as Exhibit-F wherein the petitioner has been shown as a resident of Village Nagarjhar wa