IMPORTANT POINT
The burden of proof lies on the individual asserting citizenship to establish their linkage with legacy persons and provide evidence based on personal knowledge. Documentary evidence alone may not suffice to prove citizenship.

JUDGMENT :

(M. Thakuria, J.) :

Heard Mr. S. C. Biswas, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for respondent No. 1; Mr. G. Sharma, learned Standing Counsel, Home Department Assam for respondent Nos. 2 & 6; Mr. A. I. Ali, learned Standing Counsel, Election Commission of India for respondent No. 3; and Mr. R. Talukdar, learned Government Advocate, Assam for respondent No. 5.

2. This writ petition, under Article 226 of the Constitution of India, is directed against the impugned order dated 28.05.2018, passed by the learned Foreigners Tribunal, Bongaigaon No. 2, Abhayapuri in BNGN/FT/Case No. 1731/07, whereby the petitioner was declared to be a foreigner/illegal migrant of post 25.03.1971 stream.

3. The brief facts of the case is that in pursuant to a reference made by the Superintendent of Police (Border), Bongaigaon, vide REF:BNGN IMDT Case No. 1953/04, the Foreigners’ Tribunal, Bongaigaon No. 2, Abhayapuri registered a case, being BNGN/FT/Case No. 1731/07. Thereafter, notice was issued to the petitioner/proceedee for appearance. Accordingly, the petitioner appeared before the learned Tribunal and contested the case by filing Written Statement and also adduced her evidence as DW-1 and evidence of another witness, namely, Jogesh Chandar Das (elder brother), as DW-2. In support of her Indian nationality, the petitioner also produced and exhibited several documents and she was duly cross-examined by the State.

4. It is the contention of the petitioner that she is an Indian citizen by birth and a permanent resident of Village Bharalipara Part-II, District Bongaigaon, Assam. The name of her father Late Kinu Ram Das was enlisted in the NRC of 1951 as well as in the Voters List of 1970 of the same under Abhayapuri (SC) LAC. She was married to one Sudhir Chandra Das, son of Late Puwa Uram Das, of her same village. Thereafter, her name appeared in the Voters List of 1985 and in the subsequent Voters Lists under Abhayapuri (SC) LAC. She accordingly exhibited the following documents in support of her case:

(i) Copy of NRC 1951 (Exhibit-1)

(ii) Voter List of 1970 (Exhibit-2)

(iii) Voter List of 1985 (Exhibit-3)

(iv) Voter List of 1989 (Exhibit-4)

(v) Voter List of 1997 (Exhibit-5)

(vi) Voter List of 2005 (Exhibit-6)

(vii) Voter List of 2011 (Exhibit-7)

(viii) Voter List of 2016 (Exhibit-8)

(ix) Voter Photo Identity Card (Exhibit-9)

(x) Gaon Panchayat Certificate (Exhibt-10)

(xi) Affidavit by OP for discrepancy in name (Exhibit-11)

5. Accordingly, it is the case of the petitioner that her name appeared in the Voters Lists of 1985, 1989, 1997, 2005, 2011 & 2016 under Abhayapuri (SC) LAC. Moreover, the petitioner also exhibited a certificate (Exhibit-10), dated 22.06.2015, issued by the Nasatra Baghekhaity Gaon Panchayat and also exhibited her Voter Identity Card as Exhibit-9. However, the Foreigners’ Tribunal, Bongaigaon No. 2, Abhayapuri, without considering the materials on record, vide its impugned order dated 28.05.2018, declared her as foreigner under the Foreigners’ Act, 1946 who had illegally entered into the territory of India from Bangladesh after 25.03.1971. Hence, being aggrieved and dissatisfied with the said impugned order, the present petition has been filed by the petitioner.

6. Mr. S. C. Biswas, learned counsel for the petitioner, has submitted that the present petitioner/proceedee is an Indian citizen by birth and she furnished sufficient relevant documents including the NRC of 1951, wherein the name of her projected father is shown, and her parent also cast their votes in the year 1970. He further submitted that the brother of the petitioner/proceedee also adduced his evidence as DW-2, who has already been declared as an Indian citizen. More so, the petitioner also cast her vote regularly after her name entered along with her husband. But the learned Tribunal below did not consider all these facts and the relevant documents which were exhibited by the petitioner and passed the order arbitrarily declaring the