IMPORTANT POINT
The burden of proof for citizenship lies with the individual asserting it, requiring substantial evidence of birth and residence, and mere document production is insufficient.

JUDGMENT :

M. Nandi, J.

Heard Mr. A. Ali, learned counsel for the writ petitioner. Also heard Ms. S.T.,Khan for Ms. P. Barua, learned Standing Counsel, ECI; Mr. J. Payeng, learned Standing Counsel, FT and Mr. H.K. Hazarika, learned Government Advocate.

2. The petitioner has preferred this application under Article 226 of the Constitution of India against the impugned opinion dated 10.11.2020 in F.T. Case No. BNC/D/1222/2016 passed by the Foreigners’ Tribunal, Tezpur 5th , Biswanath Chariali, wherein the petitioner was declared foreigner of post 1971.

3. The case of the petitioner is that the petitioner was born and brought up at village Balidubi under Behali P.S (Now Ginjia) in the district of Biswanath (the then Tezpur), Assam. After her marriage, she was enlisted in voter list with her husband namely, Majibar of Niz Baghmari village of Biswanath district.

4. According to the petitioner, her father’s name was late Mukshed Ali whose name appeared in the voter list of 1959 onwards. And her father’s name was also recorded in the Patta, Jamabandi and Revenue record. After the death of the petitioner’s father, the name of her brother Soyed Badshah appeared in the voters’ lists of 2016, 2017 and 2018 wherein the name of her father late Mukshed Ali has also reflected. Her brother Soyed Badshah was examined as DW-2, who deposed that the petitioner is his own sister, daughter of Mukshed Ali.

5. The further case of the petitioner is that though the petitioner filed her written statement along with relevant documents to prove her citizenship but the Tribunal did not believe such documents and the evidence of her witnesses i.e. DW-1, DW-2, DW-3 and DW-4 and opined that the petitioner entered India after 25.03.1971 without authority.

6. It was urged by the learned counsel for the petitioner that the petitioner is an Indian citizen by birth and village Balidubi is her birth place in the district of Biswanath. Her father was Mukshed Ali who casted his vote since 1959. Subsequently, he died and after the marriage of the petitioner, her name was enrolled with her husband in the voter list and they casted their votes in their own constituency.

7. It is further submitted that after the death of husband of the petitioner, he used to stay with his own brother i.e. DW-2 , whose name has appeared in the voters’ list of 2016, 2017 and 2018 showing the name of his father as Mukshed Ali. Moreover, the gaonburah has issued certificate certifying the link of the petitioner with her father. Apart from that the father of the petitioner was having landed properties and the relevant document was duly exhibited before the Tribunal.

8. According to the learned counsel for the petitioner, in spite of such relevant documents as well as the evidence of the witnesses, the petitioner proved the fact that she is an Indian citizen by birth as such, the opinion of the Tribunal is considered to be perverse and liable to be set aside.

9. Per contra, learned Standing Counsel, FT has argued before this Court by stating that there are lots of contradictions in the evidence of the petitioner along with other witnesses for which their statements cannot be considered on the issue of citizenship of a person.

10. Mr. Payeng has pointed out several anomalies recorded by the Tribunal in the evidence of the witnesses, one of which is that according to the petitioner as DW-1, her father has six sons and three daughters i.e. nine in numbers which is not tallied with the evidence of DW-2, who claims to be the brother of the petitioner. According to him, his father has eight children. Mr. Payeng also pointed out that DW-1 stated that the name of her grandfather was Akbar but as per 1959 voter list, the father’s name of Mukshed Ali (Petitioner’s father) shows as Ajimuddin. Accordingly, the learned counsel has prayed for dismissal of the writ petition.

11. We have considered the submissions of learned counsel for the p