IMPORTANT POINT
The burden of proof for citizenship lies with the individual asserting it, and mere production of documents is insufficient without proper proof.

JUDGMENT

M. Nandi, J

Heard Md. H.R. Ahmed, learned counsel for the petitioner. Also heard Ms.A. Verma, learned Standing Counsel, FT Matters; Ms. B. Sarma, learned counsel, CGC; Mr. H. Kuli for A.I. Ali, learned Standing Counsel, ECI; Mr. P. Sarmah, Additional Senior Govt. Advocate and Mr. G. Sarma, learned Standing Counsel, NRC.

2. By filing this application under Article 226/227 of the Constitution of India for issuance of a writ against the impugned opinion dated 09.01.2018, passed by the learned Member, Foreigner’s Tribunal (6), Bilasipara, Dhubri in F.T.6th /DBB/593/2017, whereby the petitioner has been declared as foreigner of post 1971.

3. The case of the petitioner is that the father’s name of the petitioner is Shelku Sk, mother’s name of the petitioner is Mohuron Bibi. The parents’ name of the petitioner has been enrolled in the voter list of 1959 and father’s name of the petitioner has also appeared in the voter lists of 1966 and 1970 under 36 Bilasipara Assembly Constituency, Vill. Barshi Pt.II, P.S. Bilasipara of the then Goalpara District (now-Dhubri).

4. The petitioner got married with one Kalam Sk of village Barshi Pt.II, P.S Bilasipara under Dhubri district of Assam about 40 years back. But, after 10 years of her marriage, husband of the petitioner expired. Out of their wedlock, three children were born namely, Bellal Uddin Sk, Habeja Begum and Nasibin Begum. The name of the petitioner has been appeared in the voter list of 1997 in the aforesaid address.

5. Subsequently the petitioner had shifted to Nalbari village under Kokrajhar district about 15 years back i.e. in the year 2002. The letter ‘D’ was put against her name in the voter list at Nalbari village. The Local Verification Officer (LVO) has submitted verification report in the prescribed format to the Electoral Registration Officer without giving any comment in which stream the petitioner was suspected as foreigner and most of the column of the report are kept blank. The LVO report itself would go to show that there was no enquiry before submitting the report. As such, on that ground alone, the entire proceeding is vitiated and the matter required a fresh enquiry. But the ERO has forwarded the same to the Superintendent of Police, Dhubri for further action. Thereafter, the Superintendent of Police, Dhubri made the reference to the Foreigner’s Tribunal, Dhubri for its opinion.

6. Accordingly, the learned member, Foreigner’s Tribunal, 6th Dhubri, Bilasipara issued notice to the petitioner in connection with the aforesaid F.T. case asking her to appear before the Tribunal and to file written statement with supportive documents. Accordingly, the petitioner filed her written statement denying the allegation made in the reference and enclosed voter lists of 1959, 1966, 1970 in respect of her parents. Moreover, the elder brother-in-law of the petitioner also adduced evidence stating that the petitioner is his younger sister- in-law, he knew the proceedee since her birth but the written statement, evidence and the documents were not duly considered by the learned Tribunal and passed the impugned order declaring the petitioner as foreigner. Hence, this writ petition.

7. It was urged by the learned counsel for the petitioner that the petitioner was born at village Barshi (now Barshi part II) under Dhubri district in the year 1955 which is substantiated from the voter list of 1977 and deposition of his brother in law. As such, as per provisions of Section 3 of the Citizenship Act, 1955, the petitioner is a bonafide citizen of India by birth.

8. It is further submitted that the petitioner exhibited as many as four documents i.e. voter lists of 1959, 1966, 1970 in respect of her father and voter list of 1997 of her own and those were duly proved with original as revealed from the records. The evidence of the petitioner was not controverted by the State during the proceeding and as such, the same was duly accept