The burden of proof for citizenship lies with the individual asserting it, and failure to produce evidence can lead to a declaration of foreigner status.

JUDGMENT :

K.R. Surana, J.

Heard Mr. M.U. Mahmud, learned Counsel for the petitioners. Also heard Mr. K.K. Parashar learned CGC for respondent no.1, Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no.2, Ms. A. Verma, learned standing counsel for the F.T. matters appearing for respondent nos. 3, 6 and 7, Mr. G. Sharma, learned standing counsel for respondent no.4 and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.5.

2. By filing this writ petition under Article 226 of the Constitution of India the petitioner has assailed the opinion dated 30.01.2018, passed by the learned Member, Foreigners’ Tribunal No. 5th, Morigaon, in Case No. F.T.(C) 281/2016 [F.T.(C)1330/12 (old), arising out of IM(D)T case no.565/2001 dated 27.09.2001], by which the petitioners were declared to be foreigners who have entered into India (Assam) on or after 25.03.1971.

3. The learned counsel for the petitioner has submitted that along with his written statement, the petitioner had submitted the voters list of 1965, 1970, 1977, 1985, 1989, 1997, 2017, certificate of Govt. Gaonbura, Ulubari, Solmari, Sonarigaon. Moreover, alongwith the additional written statement filed by all the petitioners, the voters list of 2011 was also submitted. The learned counsel for the petitioners has further submitted that as annexure to this writ petition the petitioners have alleged all the documents referred above and moreover the petitioners have also annexed the HSLC admit card and provisional certificate for the year 2009 of petitioner no.2; transfer certificate of petitioner no.3, voter list of 2013 and 2018 of petitioner no.3; transfer certificate and voters list of 2018 of petitioner no.4; admit card, provisional certificate and B.A. 4th Semester mark sheet of petitioner no.5; transfer certificate of petitioner no.6, voters list of 1966 of grandfather of petitioner no.7, voters list of 1970 of father of petitioner no.7 and Panchayat certificate of petitioner no.7 to show her linkage. Accordingly, it is submitted that the petitioners have no reason not to give evidence.

4. In this regard, by referring to the statements made in paragraphs nos. 12 and 13 of the writ petition, it is submitted that the petitioners did not get proper advice from the learned counsel and thus, they did not adduce evidence before the learned Tribunal. It is further, submitted that the learned counsel without asking the petitioners to adduce evidence filed several petitions before the learned Tribunal and ultimately the learned Tribunal had rejected the adjournment petitions and an ex parte opinion was rendered against the petitioners. Accordingly, it is submitted that at least one opportunity should granted to the petitioners to adduce evidence to prove their citizenship, which is a valuable right.

5. By referring to page nos. 9 and 10 of the records of the Tribunal, it is submitted that the enquiry officer had examined two witnesses in course of his enquiry and the said witnesses had stated that petitioner no.1 is an Indian citizen and accordingly, as per enquiry officer’s report dated 10.11.2001, as entered in the case diary the petitioner was born in Solmari Gaon and his name is entered in the voters list of 1993 and his father’s name appeared in the voters list of 1966 and therefore, the petitioner was a Indian citizen. Accordingly, it is submitted that the reference made by the Superintendent of police (B), Morigaon was illegal and not sustainable as there was no material before the said authority to allege that the petitioners are foreigners who had illegally entered into India (Assam) after 25.03.1971.

6. In support of his submission, the learned counsel for the petitioner has relied on paragraph no.98 of the case of State of Assam & Ors. v. Moslem Mondal, 2013 (1) GLT 809.

7. The learned standing counsel for the FT matters has submitted that the learned Tribunal had granted more than reasonable time to the petitioner