IMPORTANT POINT
The burden of proof lies on the petitioner to establish citizenship, and mere document production is insufficient without proper evidence.

JUDGMENT :

[SOUMITRA SAIKIA, J.]

The writ petition is directed against the order passed on 31.08.2023 by the Member of the Foreigner’s Tribunal, 4th Darrang, Mangaldai, in FT 4th Case No. 618/SPR/2017. In this order, the Tribunal affirmed the State's reference against the petitioner, concluding that the petitioner had failed to discharge the burden under Section 9 of the Foreigner’s Act, 1946. The Tribunal opined that the petitioner could not prove that he was born to genuine Indian parents and had acquired Indian citizenship by birth. As a result, the petitioner was declared a foreigner/illegal migrant of post 25.03.1971, leading to the filing of this writ petition challenging the Tribunal's opinion

2. Before the Tribunal, the petitioner submitted his written statements along with supporting documents. The petitioner himself appeared as DW1 and also presented two other witnesses, DW2 and DW3. In total, the petitioner exhibited 19 documents, including his voter identity card, in support of his case before the Tribunal.

3. Ultimately, the Tribunal rejected the case presented by the petitioner and, accordingly, answered the reference in the affirmative, declaring the petitioner a foreigner/illegal migrant.

4. In the written statement, the petitioner projected that he was born and raised in the village of Baralakhaity under Rangamati Mouza, P.S. Mangaldai, District Darrang, Assam. He further stated that, due to river erosion, he and his family had relocated to the village of Barbari in 2016. The petitioner identified his grandfather as Hussain Ali, whose name appeared in the 1966 voter list for No. 54 Chenga LAC under Boguribari Mouza, specifically at Village Kachamara Nonke, listed in Part No. 129, Serial No. 25, House No. 9. He also mentioned that Hussain Ali had legacy data, indicating his residence in Kachumari village, District Barpeta, under Barpeta Revenue Circle, and that Hussain Ali was registered in the NRC. The petitioner enclosed a certificate from the Gaonburah of Baralakhaity with his written statement, affirming that the petitioner was the son of Makbul Hussain and that he had cast his vote as a resident of Baralakhaity. Additionally, the petitioner asserted that his grandfather, Hussain Ali, had voted in the 1970 election in No. 54 Chenga LAC under Boguribari Mouza at Village Kachumara Nonke, Part No. 128, Serial No. 27, House No. 9. He presented a voter list from 1977 to show that his grandfather Hussain Ali, his father Makbul Ali, and his uncle Akkabar Ali were all enrolled as voters in No. 67 Mangaldai (SC) LAC under Rangamati Mouza at Village Oporiya Chapari, Part No. 177, House No. 28, Serial Nos. 102, 105, and 106, respectively. The petitioner also presented evidence showing that his parents, Makbul Hussain and Nurjahan, were voters in the lists of 1989, 1993, and 1997. He himself was enlisted as a voter in 2005, along with his parents, wife, and brother, at Village Baralakhaity. He further demonstrated that he remained on the voter list in subsequent years 2010, 2011, 2013, 2015, 2017, 2021, and 2022. To substantiate his claim of Indian citizenship, the petitioner attached documents such as his Job Card Registration No. 0416015009006105, NRC final draft ARN No. 10832502148149701109, PAN Card, Aadhaar Card, and Ration Card, all of which he presented to establish his permanent residence and citizenship. In his evidence, the petitioner (DW1) supported his written statement and the documents he submitted. His father, Makbul Hussain, deposed as DW2. In his affidavit, Makbul Hussain confirmed that the petitioner was born and raised in Baralakhaity under Rangamati Mouza. He also corroborated the petitioner’s claim that they had moved to Barbari in 2016 due to erosion in Baralakhaity. Furthermore, Makbul Hussain testified that his father, Hussain Ali, had voted in 1966 from Kachumara under Baguribari Mouza in No. 54 Chenga LAC, and that Hussain Ali’s legacy data was available in the NRC. He also mentioned that the Gaonb