The burden of proof for citizenship lies with the individual claiming it, and failure to provide credible evidence results in a declaration of foreigner status.

JUDGMENT :

K.R. Surana, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned CGC for the Union of India, Mr. A.I. Ali, learned counsel for the Election Commission of India; Mr. J. Payeng, learned standing counsel for FT matters; Mr. G. Sarma, learned standing counsel for N.R.C.; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate.

Challenge in this writ petition:

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 21.08.2018, passed by the st learned Member, Foreigners Tribunal No. 1 , Barpeta, in F.T. Case No. 289/2016 [arising out of F.T. Ref. Case No. 25/16], thereby declaring the petitioner to be a foreigner, who has entered into India (Assam) on or after 25.03.1971.

Case of the petitioner before the Foreigners Tribunal:

3) In brief, the case of the petitioner is that upon service of notice, he had appeared and filed his written statement before the learned Tribunal and contested the proceeding. Later on, he had filed his additional written statement. The petitioner had denied that he was a foreigner and claimed that his parents were Indian citizens and he was born and grew up at Village- Bheraldi, Mouza, P.S. and District- Barpeta, Assam. The name of his grandfather is Innas Ali and his father’s name is Khaimuddin.

4) The evidence-on-affidavit is in consonance with the contents of the written statement and additional written statement. Hence, the contents of the written statement and the additional written statement are not reproduced herein. However, it would suffice to mention that along with his additional written statement, the petitioner had filed the following eight documents, viz., voter lists of 1966, 1970, 1989 and 1997, copy of jamabandi, birth registration certificate, registration certificate, Gaonburah certificate.

5) The petitioner has examined himself as DW-1 and had exhibited the following documents, viz., (i) copy of voter list of 1966 (Ext.A); (ii) copy of jamabandi (Ext.B); (iii) copy of voter list of 1989 (Ext.C); (iv) copy of Electoral Roll of 1997 (Ext.D); (v) copy of electoral roll of 1966 (Ext.E); (vi) copy of electoral roll of 1997 (Ext.F); (vii) copy of Registration Card dated 30.09.2011, issued by the Secretary, Board of Secondary Education, Assam (Ext.G); (viii) copy of birth certificate of his son (Ext.H); (ix) Gaonburah’s certificate dated 22.10.2017 (Ext.I); (x) affidavit sworn by the petitioner to explain the discrepancy in his name, and the names of his father, grandfather, father-in-law, wife’s grandfather (Ext.J). The DW-1 was cross-examined and discharged.

6) The petitioner had examined one Jaliluddin as DW-2, who in his evidence-on-affidavit had projected himself as the uncle of the petitioner. He had exhibited the following documents, viz., copy of electoral roll of 1997 (Ext.K); copy of electoral roll of 2016 (Ext.L); Elector Photo Identity Card (Ext.M); affidavit to explain the discrepancy in the name of his father, mother and elder brother (Ext.N). He was cross-examined and discharged.

Submission by the learned counsel for the petitioner:

7) The learned counsel for the petitioner has submitted that the learned Tribunal had not considered the documentary evidence of the petitioner in its proper perspective and arrived at a wrong conclusion. Moreover, it was submitted that the evidence of DW-2 was not properly discussed. Accordingly, it was submitted that the impugned opinion was not sustainable on facts and in law.

8) It was submitted that the report of the Investigating Officer was vague and it shows that no investigation was carried out and merely because the petitioner could not show any documents at the time when the police personnel had interrogated him, he was suspected to be a foreigner. Accordingly, it was submitted that the investigation carried out against the petitioner was not fair and that the petitioner was not provided with the grounds to suspect him as a f