The burden of proof for establishing citizenship lies with the individual, requiring substantial evidence beyond mere documentation.

JUDGMENT & ORDER :

M. Nandi, J.

Heard Mr. Md. S. Hoque, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, FT matters, Mr. P. Sarmah, learned Government Advocate and Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned Standing Counsel, ECI.

2. By filling this application under Article 226 of the Constitution of India, the petitioner has challenged the impugned opinion dated 20.01.2018, passed by the learned Member, Foreigners’ Tribunal, Bongaigaon No.2, Abhayapuri in F.T. Case No.224/2016, declaring the petitioner as foreigner/illegal migrant of post 25.03.1971.

3. On the basis of the reference made by the Superintendent of Police (B), Bongaigaon vide reference no. BNGN/P.E No.180/2008, an investigation was conducted and subsequently, it was reported that petitioner is a foreigner who had entered into India from Bangladesh after 25.03.1971. Accordingly, SP (B), Bongaigaon sent the reference for opinion of the Tribunal.

4. On receipt of the notice from the Tribunal, the petitioner contested the reference and by filing written statement contended that she is the citizen of India by birth. It is stated in the written statement that the petitioner is the daughter of late Moksed Ali, son of Nasher Dewani and her mother’s name is Rabeya Khatun. After attainment of majority, the petitioner got married with her cousin Alimuddin, son of Koser Uddin @ Koser Ali. Her name is recorded in the voter lists of 1985, 1997, 2016 as wife of Alimuddin. It is also stated in the written statement that the petitioner as a daughter of late Moksed Ali, inherited a plot of land which was possessed by her deceased father during his lifetime. The father of the petitioner expired in the year 2006 and her mother is still alive and residing at village Balarchar under Abhayapuri P.S under Bongaigaon district.

5. The petitioner also submitted her evidence-on-affidavit and reiterated the same thing whatever stated in her written statement. The petitioner also exhibited some documents i.e. NRC 1951 vide Ext.1, voter list of 1966 vide Ext.2, voter list of 1970 vide Ext.3, voter list of 1985 vide Ext.4, voter list of 1997 vide Ext.5, voter list of 2006 vide Ext.6, voter list of 1985 vide Ext.7, voter list of 1997 vide Ext.8, voter list of 2016 vide Ext.9, voter ID of the petitioner vide Ext.10, certificate issued by President & Secretary of Gaon Panchayat vide Ext.11, copy of jamabandi vide Ext.12.

6. In her cross-examination, the petitioner as DW-1 replied that Nasher Dewani is her grandfather. Her father’s name is Moksed Ali. Koser Uddin is her uncle. She has only one uncle. She did not know Baser Uddin whose name is included in the Electoral Roll of 1970 along with her father. She has only one uncle and his name is Koser Uddin. In 1985, she had casted her vote for the first time at Balarchar. She did not know Jahanara whose name was included along with her name in the Electoral Roll of 2016.

7. Learned counsel for the petitioner has argued that although the petitioner had adduced sufficient evidence along with the exhibited documents in support of her claim of Indian citizenship but the learned Member, Foreigners’ Tribunal without taking into consideration of the documents adduced by the petitioner, had declared the petitioner as an illegal migrant of post 25.03.1971 on the basis of minor discrepancies in her father’s name and age in the voter lists.

8. Further submission of learned counsel for the petitioner is that the learned Tribunal picked up some minor discrepancies in her grandparent’s name in written statement and evidence which are not having any material bearing when she has the public documents like NRC 1951, voter list of 1966 and 1970. According to the learned counsel for the petitioner, the voter lists are the public documents which are not required to be proved by calling the author of the same as witness as per provision of Section 35 and 74 of the Evidence Act.

9. It is also submitted that the