Point of law: Citizenship - Merely because a witness or a proceedee has not produced the land document, it would be sufficient to draw an adverse inference that he is not an Indian.

JUDGMENT :

[N. Kotiswar Singh, J.]

1. Heard Mr. A.M. 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; Mr. J. Payeng, learned special counsel, FT, appearing for respondent Nos.2, 4 & 5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No.3.

2. In this petition, the petitioner has challenged the order dated 30.01.2017 passed by the learned Member, Foreigners' Tribunal-4th, Goalpara, Assam, in F.T. Case No.336/2016, whereby the petitioner has been declared as a foreigner of post 25.03.1971 stream.

3. Learned counsel for the petitioner submits that on receipt of the summon from the Tribunal, the petitioner filed her written statement, in which the petitioner had given details of her family including about her father, grandfather, grandmother and also about the birth certificate issued by the competent authority. The petitioner also filed the birth certificate in original issued by the competent authority. The petitioner also filed the school certificate issued by the Headmaster stating that the petitioner had passed Class-IV examination in Sarkar Para L.P. School and as per the admission register, her age was 26 years 11 months 15 days. The petitioner also has submitted different voters lists such as voters list of 1966, in which the name of her grandfather Fazal Hoque appears. Similarly, voters list of 1970 was also filed by the petitioner, in which the name of her grandmother Sakina Khatun as the wife of Fazal Hoque, her grandfather is also shown. The petitioner also has filed the voters list of 1979, in which the name of her grandmother is shown as the wife of Fazal Hoque. The petitioner also filed the voters list of 1985, in which the names of her parents along with her grandmother are shown. The petitioner also filed the voters list of 1997, in which the names of her parents are shown. The petitioner also filed a certificate, issued by the Secretary of the 34 No Kharmuza Gaon Panchayat.

4. In addition to the aforesaid documentary evidences, the petitioner also examined herself. He also examined her father Rajab Ali, one Abdul Karim, who was the Panchayat Secretary, one Sofiul Islam, an employee of the office of the Registrar of Birth and Death, who issued the birth certificate and one Manoj Das, an employee of the Election Office of Goalpara district, who had proved the voters lists of 1966, 1970, 1985 and 1997. Accordingly, it has been submitted that there are sufficient documentary evidences to show that the petitioner is an Indian and not a foreigner. It has been submitted that however, unfortunately, the learned Tribunal has not accepted the said evidences as worthy of believing.

5. It has been submitted that the learned Tribunal did not rely on the said birth certificate on the ground that as per the witness examined by the petitioner, the said certificate was issued without any inquiry and also could not disclose the basis on which the said certificate was issued. The learned Tribunal also noted that the said certificate was issued on 20.08.2015 i.e. after 25 years of the alleged birth. The learned Tribunal also observed that the petitioner's projected father Rajab Ali, who was examined as DW-2, clearly stated that he could not remember the date and year of birth of the proceedee and as such, the learned Tribunal was not inclined to believe the said birth certificate.

6. As regards the certificate issued by the school, the learned Trial Court held that the said certificate was not proved by examining the issuing authority. Accordingly, the learned Tribunal held that the aforesaid documentary evidences do not clearly establish linkage of the petitioner with her ancestors and in any case, she could not establish their existence beyond 1966.

7. As regards the school certificate issued by the Headmaster of the Sarkar Para L.P. S