The main legal point established in the judgment is the proper application of the burden of proof under the Foreigners Act, 1946 and the admissibility of electronic records under Section 65B of the Indian Evidence Act, 1872.

JUDGMENT :

AM Bujor Barua, J.

Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Ms. L. Devi, learned CGC appearing on behalf of respondents in the Union of India and the authorities under the NRC being the respondent Nos.1 & 6, Mr. P. Sarma, learned Government Advocate for the State respondents being the respondent No.3, Mr. G. Sarma, learned Standing Counsel representing the respondents Nos. 2 & 4, being the under the Home Deportment, and Mr. T. Pegu, learned counsel for the Election Commission of India being respondent No.5.

2. The petitioner, Forhad Ali, had been referred to the Foreigner’s Tribunal No.2, Bongaigaon at Abhyapuri, Assam for rendering an opinion as to whether he is a foreigner under the Foreigners Act, 1946 resulting in registration of Case No. BNGN/FT-2/APR/736/2016. The Tribunal rendered an opinion dated 29.10.2019 declaring the petitioner to be a foreigner. Being aggrieved this writ petition is instituted.

3. Before the Tribunal, the petitioner relied on the Voters List of 1966 as Exhibit-2; Voters List of 1970 as Exhibit-3; Voters List of 1985 as Exhibit-4; Voters List of 1989 as Exhibit-5; Voters List of 1997 as Exhibit-6; as well as the Voters List of 2011 as Exhibit-7 and Voters List of 2016 as Exhibit-8, where all the voters lists are of Village Lotibari Part-III. The petitioner also relied upon the Jamabandi of a plot of land of the Village Lotibari Part-III. By relying upon the contents of the information in the Jamabandi and the Voters Lists of 1966 & 1970 as well as the Voters List of 1985 of Village Lotibari Part-III, wherein the names of Habi Rahman and Habibar Rahman, respectively appeared, the petitioner sought to establish that the burden under Section 9 of the Foreigners Act, 1946 has been discharged.

4. The Tribunal in its opinion dated 29.10.2019 rejected the Exhibit-11 Jamabandi with an observation that the document is not sufficient to prove that Habi Rahman of Exhibits-1 & 2 and Habibar Rahman of Exhibits-3, 4 & 11 are one and the same person. If the name of Habi Rahman appears in the Voters Lists of 1966 & 1971 and that of Habibar Rahman in the later Voters List of 1985 and the Jamabandi contains the information that the land which earlier stood in the name of Habibar Rahman has been mutated, amongst others, in the name of Forhad Ali, the same may prima facie discharge the burden under Section 9 of the Foreigners Act, 1946 that the petitioner proceede, Forhad Ali, is the son of Habi Rahman or Habibar Rahman of the Voters Lists of Village Lotibari Part-III. No material is available on record to show as to why the Tribunal was of the view that the documents are not sufficient to prove that Habi Rahman of Exhibits-1 & 2 and Habibar Rahman of Exhibits-3, 4 & 11 are one and the same person.

5. Once the initial burden had been discharged, it is for the respondents to rebut such evidence and in the absence of any rebuttal evidence, we see no material as to how the Tribunal can arrive at its conclusion that the documents are not sufficient to prove that Habi Rahman and Habibar Rahman are one and same person. No material is also available on record which may show that the names of Habi Rahman and Habibar Rahman appeared together in the same document to give an indication that they are different person. In Sirajul Hoque Vs. State of Assam & Others reported (2019) 5 SCC 534, the Supreme Court was of the view that the minor variation in the spellings of the name is not to be made a basis to conclude that the two persons may be different persons.

6. It is also noticed that the Tribunal by taking note of the discrepancy in the age of the person in successive voters list often rejects the voters list itself to be unreliable by indulging in arithmetic calculation. For example if a person is shown as 40 years in the voters list of 1966 and in the voters list of the same village he is shown as 55 years, often it is noticed that arithmetic calculation are made that the age ought to have bee