IMPORTANT POINT
The burden of proving citizenship lies with the individual, and failure to establish this results in the presumption of foreign status under the Foreigners Act.

JUDGMENT

M. Nandi, J

Heard Mr. U. Das, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, FT Matters; Ms. P. Barua, learned Standing Counsel, ECI; Mr. T. Pegu, learned Standing Counsel, assisted by Mr. A.I. Ali, Standing Counsel, ECI; Mr. P. Sarmah, Addl. Sr. GA and Mr. H. Gupta, learned CGC.

2. The petitioner has preferred this writ petition under Article 226 of the Constitution of India against the opinion dated 02.04.2018, passed by the learned Member, Foreigners’ Tribunal No.5, Goalpara, in F.T. Case No. F.T./5/343/MA/16 arising out of IM(D)T Reference Case No.423/04, whereby it was held that the proceedee/petitioner herein is a foreigner of post 1971.

3. The case of the petitioner is that her father being an eligible voter had been enlisted in the voters’ list of 1966 and 1970 in no.45 Goalpara LAC of the then Goalpara district. Petitioner was born and brought up at Buduchar village under Matia Police Station in Goalpara district of Assam. She was given into marriage with one Md. Dilbahar Sheikh of Nigam Shantipur village under Matia Police Station. On attaining majority, her name has been enrolled in the voter list of 1989 along with her husband and other members of her in-laws family. Thereafter, her name was continuously being appeared in the subsequent voters’ lists. However, suspecting her enrollment in the voters’ list of Goalpara East LAC, petitioner has been proceeded with under the provision of Foreigners’ Act, 1946.

4. On receipt of the notice, the petitioner had appeared before the concerned Tribunal and filed her written statement. Thereafter, she had adduced her evidence and her uncle Amzad Ali also adduced evidence in order to corroborate her evidence. Certain documents were also exhibited i.e. voters’ list of 1966, 1970, 1989, 1997 and copy of the land documents and gaonburah certificates. However, the learned Foreigners’ Tribunal did not rely on the documents submitted by the petitioner and opined that the petitioner is a foreigner and entered into Assam after 1971.

5. Learned counsel for the petitioner has submitted that the name of the father of the petitioner is Chandu Sk and mother is Bahatun Nessa and in support of her claim, the petitioner has produced the voters’ list of 1966, 1970, 1989 and 1997 and the land documents. But as per reference, the name of the father of the petitioner has been shown as Mahammad Ali instead of Chandu Sk which has been reflected in the written statement submitted by the petitioner. As such, the observation made by the Tribunal is perverse that the petitioner has failed to prove the fact that Mahammad Ali is her father.

6. By referring the judgment of the State of Assam and Ors vs. Moslem Mondal and Ors reported in 2013 (1) GLT 809 , the learned counsel for the petitioner has pointed out that Hon’ble Supreme Court has discussed in detail about the manner in which an investigation is to be carried out by the Investigating Officer and the referral authority before making a reference to a Tribunal for adjudication.

7. According to learned counsel for the petitioner, since there is doubt about the actual name of the father of the petitioner, therefore, the learned Tribunal before passing impugned order dated 02.04.2018, ought to have called the Investigating Officer who had conducted the alleged investigation. Since there is irregularity/doubt in this regard, so the same needs to be interfered with by this Court under the Article 226 of the Constitution of India.

8. On the other hand, Mr. G. Sarma, learned Standing Counsel, FT Matters has contended that though the petitioner stated that she is the daughter of Chandu Sk and Bahatun Nessa by relying on the voters’ list of 1966, 1970 and 1979 but she has failed to prove the link with her projected parents that she is their daughter and by producing such documents, it is not proved that she is a citizen of Ind