Point of Law: Merely because the voters list of 1997 is a post 1971 document, it will not render it as not relevant.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choduhury, learned ASGI for respondent No.1; Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 4 & 5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam for respondent No.3.

2. The present petition has been filed by the petitioner challenging the impugned opinion dated 31.05.2017 passed by the learned Member, Foreigners Tribunal, Nagaon Court No.7th at Lanka, Nagaon in F.T./L/Case No.1400/2017 [arising out of IM(D)T Case No.75/2002] by which the petitioner was declared a foreigner of post 25.03.1971 stream.

3. Upon receipt of summon from the learned Foreigners Tribunal, Nagaon Court No.7 in the above referred proceeding, the petitioner appeared before the learned Tribunal and filed his written statement along with supporting documents. The petitioner examined himself as DW1 and also examined one neighbour, namely, Md. Jabedur Rahman as DW2.

4. The learned Tribunal after considering the evidence adduced and documents relied on by the petitioner held that the petitioner had failed to discharge his statutory burden of proof that he is an Indian citizen and not a foreigner as mandates under Section 9 of the Foreigners’ Act, 1946 and accordingly declared him a foreigner under Section 2(i)(a) of the Foreigners Act, 1946 who has illegally entered into the territory of India (Assam) after 25.03.1971 without any valid documents.

5. In the written statement filed before the learned Foreigners Tribunal, the petitioner claimed that he is an Indian by birth and his parents were also Indian. He also stated that he was born and brought up at Hatikhali under Murajhar P.S. in Nagaon district and thereafter, shifted his residence from Hatikhali to village Oksek Pather under Murajhar P.S. in the district of Nagaon, Assam.

6. The petitioner had projected one Abdul Subhan Miyan @ Abdul Subhan @ Abdul Suban @ Abudus Subhan as his father and one Abeda Khatun @ Abdun Nessa @ Abdun Nessa Khatun as his mother, respectively.

7. According to the petitioner, the name of the parents of the petitioner appear in the voters list of 1966 under 93 No. Hojai LAC as Mu Abdul Subhan, Son of Tuti Miyan and Mussa Abeda Khatun, Wife of Abdul Subjan vide Serial Nos.298 and 299 respectively in Part No.90 of village Hatikhali, P.S. Murajhar, District Nagaon, Assam and the names of the parents of the petitioner also appeared in the voters list of 1970 under the same Legislative Assembly Constituency.

8. As regards the aforesaid two voters lists which were relied upon by the petitioner, the learned Tribunal made an observation in para No.8 of the impugned opinion that it is worth mentioning that no door to door enumeration was carried out for the period 1966-1970 and accordingly, every voters details should be same though the Serial numbers may differ at times.

9. Learned Tribunal also accordingly observed that in the said voters lists of 1966 and 1970 which were exhibited as Exts.1 and 2, the part number is different and in the voters list of 1966, there is no mention of House Number and accordingly, the learned Tribunal held that the said exhibits, Exts.1 and 2 cannot be relied upon.

10. As regards this finding, we are unable to agree with the same for the following reasons.

First of all, the State has not led any evidence to the fact that there was no door to door enumeration carried out during the period 1966-1970 and as such, the said finding is certainly not based on evidence.

Secondly, merely because the Part Number is different in the voters lists of 1966 and 1970 of the village, it does not ipso facto lead to the inference that these villages are different.

11. What is to be noted is that the village name remains the same and the Police Station and Mouza also remain the same and so is the Legislative Assembly Constituency.

12. If the aforesaid voters lists