IMPORTANT POINT
The burden of proof lies with the petitioner to establish citizenship through credible evidence, and discrepancies in documentation can lead to a declaration of foreign nationality.

JUDGMENT :

(Susmita Phukan Khaund, J.)

1. Heard Mr A Chaliha, learned counsel for the petitioner. Also heard Mr J Payeng, learned Standing Counsel, appearing on behalf of the Foreigners’ Tribunal, Mr H K Hazarika, learned Government Advocate, Assam appearing on behalf of State respondents and Mr A I Ali, learned Standing Counsel, appearing on behalf of the Election Commission of India.

2. The petitioner in this case is Nur Islam, who has filed this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of mandamus, certiorari or any other appropriate order of like nature for quashing and setting aside the Judgment and Order dated 04.09.2019, passed by the Foreigners’ Tribunal 1st at Barpeta in FT Case No. 116 of 2017, arising out of IM(D)T Reference Case No. 7244/B/98, declaring him as a foreigner, who entered into Assam, post 25.03.1971.

3. The genesis of the case was that the IM(D)T Reference Case No. 7244/B/98 was forwarded by the Superintendent of Police (Border), Barpeta (SP, for short), alleging inter alia, that the petitioner is a foreign national. Later, this case was re-numbered as FT Case No. 116/2017 and registered under the Foreigners’ Act, 1946. Notice was duly served upon the petitioner, who appeared before the Tribunal and filed written reply/Written Statement (WS for short) claiming to be an Indian citizen by birth. To substantiate his WS, the petitioner adduced the evidence of five witnesses, including himself and exhibited some documents.

Decision of the Tribunal

4. It was held by the learned Tribunal that the names of the petitioner’s parents have appeared along with the name of his uncle in the Voters’ List of 1970. His mother’s name has appeared as Basiran Nessa. It has been submitted by the petitioner through his reply that Basiran Nessa @ Shabjan Nessa is one and the same person. However, the learned Tribunal did not accept the petitioner’s submission that Basiran Nessa @ Shabjan Nessa is one and the same person, stating that mere statement without supporting evidence is not acceptable. Further, it was observed by the learned Tribunal that the petitioner submitted the Voters’ Lists of 1985, 1989, 1994 and 1997, which reflects his name, along with the name of his mother, Shabjan Nessa, but in the Voters’ List of 1966 and 1970, his mother’s name is shown as Basiran Nessa instead of Shabjan Nessa. The learned Tribunal did not accept the petitioner’s submission that Basiran Nessa and Shabjan Nessa is one and the same person, but it was observed by the learned Tribunal that the 1966 Voters’ List and the 1997 Voters’ List (Exhibit-10), reflects the name of the projected grandmother of the petitioner, who has failed to explain the enormous gap between the Voters’ List of 1966 and 1997. It was held that the petitioner has failed to explain as to why he could not submit any Voters’ Lists between 1966 and 1997. The learned Tribunal also did not accept the evidence adduced by the other witnesses, DW-2, DW-3, DW-4 and DW-5.

5. DW-2 is the projected uncle of the petitioner, who has stated that Mafiz Uddin @ Mahiz Uddin @ Mahi Dewani is one and the same person, which was not accepted as valid evidence by the learned Tribunal due to the failure of the petitioner to explain why his grandfather is identified by three different names. Although DW-4, a Junior Assistant of R.K.G Branch, at DC’s Office, Barpeta, exhibited Jamabandi copies as Exhibits-3 and 5, yet as the petitioner has failed to submit a copy of the Circle Officer’s mutation order and the death certificate of his father to prove Exhibits-3 and 5, the Tribunal did not accept Exhibits-3 and 5 as valid evidence. Other reasons have been attributed to explain, why the Tribunal did not accept Exhibits-3 and 5 as bankable evidence. This will be discussed at the appropriate stage.

6. It has been held by the learned Tribunal that the petitioner has stated in his WS that his grandparents’ names, parents’ names, along with the names o