IMPORTANT POINT
The burden of proof lies on the individual asserting citizenship, requiring documentary evidence to establish lineage and citizenship, as per Section 9 of the Foreigners' Act, 1946.

JUDGMENT :

(M. Thakuria, J.) :

Heard Mr. M. Hoque, learned counsel for the petitioner. Also heard Mr. U.K. Goswami, learned CGC for the respondent No.1; Mr. A. I. Ali, learned Standing counsel, Election Commission of India for the respondent No.2 as well as Mr. J. Payeng, learned Standing counsel, Home Department, Assam for the respondent Nos. 3 & 5.

2. This application is filed under Section 226 of the Constitution of India praying for issuance of a writ in the nature of Mandamus, Certiorari and/or any other appropriate writ, order or direction of like nature.

3. On being referred by the Superintendent of Police (Border), Darrang, Mangaldai, Assam, the learned Member, Foreigners’ Tribunal No. 3rd, Darrang, Mangaldai in F.T.(3) Case No.3222/2012 (Ref. F.T. Case No.442/2007) by the impugned order/opinion dated 19.06.2023 declared the petitioner to be a foreigner under the Foreigners’ Act, 1946, who had illegally entered into the territory of India (Assam) on or after 25.03.1971 without any valid document.

4. Being aggrieved and dissatisfied with the said impugned order/opinion dated 19.06.2023 passed by the learned Member, Foreigners’ Tribunal No. 3rd, Darrang, Mangaldai in F.T.(3) Case No.3222/2012 (Ref. F.T. Case No.442/2007), the petitioner has filed this writ petition on 13.09.2023.

5. It is the contention of the petitioner that he is an Indian citizen by birth and a permanent resident of Village-Kheteswar, P.O.- Kharupetia, P.S.- Dalgaon (now Kharupetia), District Darrang, Assam. It is contended by the petitioner that the names of his grandparents, namely, Fatik Mandal and Shanti Nessa had appeared in the voters lists of the years 1966 and 1971 from the same Village-Kheteswar, Mouza-Pachim Sialmari, P.S.- Dalgaon, District Darrang, Part-118 and Part-116 respectively. It is also stated that in some of the voters lists and documents, the petitioner’s grandfather’s name has been recorded as ‘Fatik Mandal’ and ‘Fatik’ but both are same and one person. In the year 1971 his grandfather expired and as such his name did not appear in the voters list for the year 1978, but, the petitioner’s grandmother’s name along with his parents namely Samsul and Saleha appeared in the voters list of 1978 from the Village-Kheteswar, 1st Part, Mouza- Pachim Sialmari, P.S. Dalgaon, District Darrang. Further, the petitioner’s parents’ names appeared in the voters list of 1993 from the Village-Kheteswar, Part-1, Part No.97 and their names’ also appeared in the voters lists of the years 1997 and 2005, respectively along with his brothers from the same village. Apart from that, the Government issued Elector Photo Identity Card, Aadhaar Card, PAN Card etc, in the name of the petitioner. Further, the Gaonburah of his locality also issued a report to the Circle Officer of Darrang circle certifying that the petitioner namely Hanif Ali, son of Samsul Hoque of Village-Kheteswar, P.S. Kharupetia, District Darrang is known to him and he lives in the same locality.

6. The learned counsel for the petitioner, Mr. M. Hoque submitted that the petitioner not only produced the Voters Lists of the years 1966 and 1971, wherein, the names of his grandparents are recorded, but also produced the subsequent Voters Lists where his own name appeared along with his parents and brothers. He also submitted that a plot of land covered by Patta No.168, Village- Kheteswar under Pachim Sialmari Mouza was mutated in the name of the petitioner’s father as well as his paternal uncles after the death of his grandfather vide order dated 29.01.1990. Further, he also produced the certificate of Gaonburah as a link document, wherein, name of his father- Samsul Hoque is reflected. But, inspite of having all the relevant documents, the Foreigners’ Tribunal No. 3rd, Darrang, Mangaldai had declared the petitioner as a foreigner of post 1971 stream and passed the order arbitrarily and illegally without proper appreciation of evidence as well as exhibits which the petitioner filed in support of his c