Point of Law – Indian Citizenship – Proof of - onus is on the procedee to prove that he is not a foreigner but an Indian, the standard of proof is preponderance of probability.

JUDGMENT :

N. Kotiswar Singh, J.

1. Heard Mr. B.C. Das, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 4 & 5; Ms. L. Devi, learned counsel appears on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1 and Ms. K. Phukan, learned Govt. Advocate, Assam appears for respondent No.3.

2. In this petition, the petitioner has challenged the order dated 28.07.2017 passed by learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No.(N) 129/2011 [S.P. Reference No.430/10] by which the petitioner had been declared to be a foreigner of 25.03.1971 stream.

3. Petitioner has assailed the said opinion dated 28.07.2017 rendered by the learned Tribunal on various grounds including that he had specifically pleaded before the learned Tribunal that his father was declared to be not a foreigner in an earlier proceeding held against his father in F.T.(Nal) Case No.(N)45/2009 [S.P. Reference No.73/09] vide opinion dated 18.03.2016 and adduced evidences in support of it.

It has been submitted that in spite of proving that his father was declared not a foreigner but an Indian, the learned Tribunal ignored the same on the grounds which are not sustainable in law and declared the petitioner to be a foreigner.

4. Learned counsel for the petitioner submits that there are sufficient evidences on record to show that the petitioner is indeed the son of Md. Noor Mohammad Ali who was declared not to be a foreigner by the learned Tribunal in the earlier proceeding vide opinion dated 18.03.2016 passed in F.T.(Nal) Case No.(N) 45/09.

5. In order to appreciate the contentions of the learned counsel for the petitioner, it may be apposite to refer to the brief facts of the pleaded case of the petitioner.

6. Upon receipt of summon from the learned Tribunal, the petitioner duly appeared before the learned Tribunal and filed his written statement. In the written statement filed before the learned Tribunal, the petitioner had specifically pleaded that his grandfather was Late Amjad Ali who was a resident of village Ghilajari under Police Station-Barpeta of the then Kamrup District and was in possession of certain plot of land measuring 3(three) Bigha which was allotted in his name by the Government of Assam sometime in the year 1962.

7. It has been stated that in the voters list of 1966, the names of his grandparents, Late Amjad Ali and Late Moimona Khatun were entered in respect of 50 No. Barpeta Legislative Assembly Constituency under Serial Nos.339 and 340, House No.109 of Part 2 in village Ghilajari under Police Station Barpeta in the District Barpeta which was part of the then Kamrup, Assam.

The petitioner also mentioned in the written statement that the names of his parents were entered in the voters list of 1970 in respect of the same No.50 Barpeta Legislative Assembly Constituency under Serial Nos. 436 and 437, with the same House No.109 and Part No.2.

The petitioner also stated that his father Md. Noor Mohammad Ali was born in village Ghilajari under Police Station Barpeta of the then Kamrup District, Assam and thereafter shifted their residence to village Sariahtali under Police Station and District Nalbari, Assam from village Ghilajari.

It was also stated that certain plot of land was purchased in the year 1981, 1984, 1985 in the name of the petitioner’s grandfather and they used to reside in village Sariahtali.

It has been submitted that after shifting of residence, the name of the petitioner’s grandfather Late Amjad Ali was entered in the voters list of 1993 in respect of 59 No. Nalbari Legislative Assembly Constituency under Serial No.911, House No.239 of Part No.35, Centre No.35-Sariahtali Gopal Than Lower Primary School Centre. It has been also stated the name of his father Md. Noor Mohammad Ali appeared in the voters list of 1997 in respect of No.59 Nalbari Legislative Assembly Constituency under Serial No.781, House No.247 and Part No.35 and also i