Point of Law – Indian Citizenship – State owes an obligation to see that such persons and their descendants who had fled from the then East Pakistan because of religious persecution are not treated as the foreigners for technical and unreasonable grounds which we have found to be so in the present case.

JUDGMENT :

(N. Kotiswar Singh, J.)

1. Heard Mr. S. Sharma, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.3, 4, 5; Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent No.2 and Ms. K. Phukan, learned Govt. Advocate, Assam appearing for respondent No.7. Ms. Devi also appears for respondent No.6 as the learned Standing Counsel, NRC.

2. In this petition, the petitioner has challenged the order dated 26.06.2018 passed by the learned Foreigners Tribunal No.8th, Barpeta, Assam in F.T. Cases No.174/17 [IM(D)T Case No.6206/B/98] by which the petitioner was declared a foreigner who entered India (Assam) illegally after 25.03.1971.

3. The petitioner on receipt of summon from the learned Foreigners Tribunal in the aforesaid proceeding appeared before the learned Tribunal and filed her written statement. The petitioner also exhibited a number of documents and examined herself as DW1. She also examined her projected mother as DW2 and the Gaonburah as DW3 to support her claim that she is an Indian.

4. However, the learned Tribunal did not believe the claim of the petitioner, primarily, on the ground that she was not been able to prove her linkage with the projected parents in view of the discrepancies in the name of the grandparents in the voters lists. The learned Tribunal also did not accept the certificates issued by the Gaonburah as inadmissible in law as these had not been proved in accordance with law and accordingly, the learned Tribunal held that the evidence of the petitioner is not cogent and reliable and no valid documents or evidence had been produced to connect the petitioner with the projected father and as such, the learned Tribunal held that she failed to discharge the burden cast under Section 9 of the Citizenship Act, 1946 and declared her a foreigner of post 1971 stream.

5. Mr. S. Sharma, learned counsel for the petitioner has challenged the finding of the learned Tribunal on various grounds.

6. It has been submitted by the learned counsel for the petitioner that the petitioner had given a categorical statement before the learned Tribunal that she was born in the year 1974 to her father, namely, Rukmini Goswami (now deceased) who had migrated along with her grandfather, namely, Pranabananda Goswami (deceased) from East Pakistan in the year 1959 due to communal disturbances in East Pakistan and they crossed over to India to take shelter in India because of religious persecution. It has been stated that her parents’ family first took shelter at village-Salbari under the then P.S. Sorbhog, District-Kamrup, Assam and later shifted to village-Lafakuchi, Mouza-South Baksa, P.S.-Barama under the then District-Kamrup, Assam. She also stated that her grandfather had purchased a plot of land by registered sale deed on 28.03.1966 at Lafakuchi, Mouza-South Baksa, P.S. Barama under the then District-Kamrup, Assam.

The petitioner also claimed that the names of her father and grandfather, Rukmini Goswami and Paranabananda Goswami, were enrolled in the voters list of 1971 at Serial Nos. 332 and 330 respectively in respect of 65 No. Barama Legislative Assembly Constituency as residents of Lafakuchi, Mouza-South Baksa, P.S. Barama under the then District Kamrup, Assam.

It is also stated that the petitioner got married to one Pradip Roy of Village-Kalahabhanga, Mouza-DC Bausi, P.S. Barpeta Road, District-Barpeta, Assam in the year 1993 and since then she has been residing with her husband. She also stated that her mother’s name is Minoti Goswami who was born at Nalbari Town of the then District Kamrup, Assam and the names of her maternal grandfather and grandmother were Abinash Chandra Banarjee and Nani Bala Banarjee whose names appeared in the voters list of 1965 of Nalbari Legislative Assembly Constituency.

She also stated that h