The burden of proof for citizenship under the Foreigners Act lies with the proceedee, and insufficient evidence leads to the presumption of foreigner status.

JUDGMENT AND ORDER :

K.R. Surana, J.

Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned CGC for the Union of India, Mr. G. Sharma, learned standing counsel for the FT matters and Mr. H.K. Hazarika, learned Govt. Advocate for the State.

2. The matter was heard on 12.11.2024, but the judgment and order could not be delivered on time. Hence, the matter was re-heard again on09.04.2025.

3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 12.02.2018, passed by the learned Member, Foreigners Tribunal No.5th, Goalpara in FT Case No. FT/5/131/MA/2016, bearing FT Reference Case No. 582/08, by which the petitioner was declared to be a foreigner of post 1971 stream.

4. On receipt of notice of the proceedings, the petitioner has filed her written statement on 01.08.2016 and claimed that she was a bona fide citizen of India by birth and born and brought up at village Ramapara Pather, P.S. Baghbar, the then undivided Karup District in the year 1975 and her parents are Haran Sarkar and Gokuljan Nessa. She claims to be an illiterate woman. In her written statement, the petitioner has stated that her parents name was recorded in the voters list of 1966, 1970 and that on her marriage with one Abdul Hussain, she shifted to her matrimonial home at village- Sondarpur (Buduchar) under P.S. and District- Goalpara. She has also projected that after marriage, she was kept at rented house in Goalpara Town, Dudhnai Town, Dalgoma by her husband and therefore, her name was not enrolled in any voters list of any consistency in the district of Goalpara for many years and that along with her children, she has shifted to village- Bakaitari Part-III under P.S. Matia in the district of Goalpara about 18 years ago and was staying there till date and her name was recorded in the voters list of 2005 as Sonabhan Bewa, wife of Abul Hussain in village- No.172 Bakaitari Part-III under P.S. Matia under No.37 Goalpara East LAC. Thereafter, her name was recorded in the voters list of 2016. It was stated that the petitioner did not enter illegally into India after 1971 and the proceeding was falsely brought against her for harassment. Along with the written statement, the petitioner had separately filed copy of the voters list of 1966, 1970, 2005, 2016 as well as her link certificate dated 19.06.2025, issued by the Secretary, 89 No. Ramapara Gaon Panchayat, stating therein that “Sonaban Bewa” got married on 01.01.1990 to Abul Hussain, resident of Bakaitari Part-III.

5. Thereafter, on 30.09.2016, the petitioner had filed her evidence- on-affidavit and by reiterating what has already been stated in the written statement, exhibited the voters list of 1966 (Ext.A), voters list of 1970 (Ext.B), land holding certificate dated 26.07.2016 (Ext.C). The DW-1 was cross-examined by the AGP on 07.01.2017.

6. The petitioner had examined one Samed Ali, son of Late Abdul Hai, aged about 55 years, resident of village- Gunialguri, P.S. Kalgachia, district- Barpeta as DW-2, who had filed his evidence of affidavit on 20.02.2017. He has reiterated the evidence of the petitioner and he has re-exhibited Ext.A, B and C, which were already exhibited by the petitioner. The said witness claimed that the petitioner is his maternal aunt. The DW-2 was cross-examined by the learned AGP 28.03.2017.

7. Thereafter, the matter was fixed for argument. Thereafter, the impugned opinion was passed.

8. The learned counsel for the petitioner has submitted that the petitioner has been able to prove that her parents were already residents of Assam and their names appeared in the voters list of 1966 (Ext.A) and voters list of 1970 (Ext.B) and the petitioner has also shown that she had a land at Ramapathar village in her own name vide land holding certificate dated 26.07.2016 (Ext.C). Accordingly, it is submitted that the petitioner has been able to prove that she was an Indian citizen and therefore, the impugned