The burden of proof for citizenship lies with the claimant, requiring reliable evidence that was not sufficiently provided, leading to the dismissal of the petition declaring the petitioner a foreigner.

JUDGMENT :

S.P. Khaund, J.

Heard Shri M.U. Mahmud, learned counsel for the petitioner. Also heard Shri C.K.S. Baruah, learned CGC, Shri G. Sarma, learned Standing Counsel for the Home Department & NRC; Shri A.I. Ali, learned Standing Counsel for the Election Commission of India and Shri H.K. Hazarika, learned Junior Government Advocate.

Factual Matrix :-

2. The petitioner is aggrieved by the impugned opinion dated 25.09.2018 passed by the learned Foreigners’ Tribunal (5^th), Darrang, Mangaldoi in Case No. FT(V)2737/2017 whereby the petitioner has been declared as a foreigner of post 1971 stream.

Arguments for the petitioner :-

3. It is contended by the learned counsel for the petitioner that this is a fit case to be remanded back as the evidence of DW-2 was not elaborately discussed by the learned Tribunal to the prejudice of the petitioner. The learned Tribunal has erred in law as well as in facts as the Tribunal did not accept Exhibit-6, acknowledgment receipt from NRC Seva Kendra as it was observed that the document was a computer generated document and cannot be accepted as evidence.

4. It is further submitted that in the NRC of 1966, the petitioner’s father’s name is reflected and the petitioner could establish her linkage with her father with the help of the certificate issued by the Gaon Panchayat Secretary. It is further submitted that although the petitioner was identified as D voter, the petitioner is a citizen of India by birth.

5. It is submitted that the Gaon Panchayat Secretary’s certificate is a reliable certificate as the certificate was issued by verifying the voters’ list of 1966, reflecting the petitioner’s father’s name at House No. 31 and Sl. No. 165. It is contended that only on minor discrepancies relating to age, date of birth and shifting of residence, the petitioner was erroneously held to be a foreigner. On this aspect, learned counsel for the petitioner has relied on the decision of this Court in Abdul Matali-versus-Union of India reported in 2015 (2) GLT 617.

6. To substantiate that discrepancies in age and particulars of parents and grandparents may not thwart the evidence, the learned counsel for the petitioner has relied on the decision of this Court in Motior Rahman-Versus-Union of India and Ors. represented by Secretary to Govt. of India, Ministry of Home Affairs , reported in 2020 (1) GLT 330.

7. It is admitted that the Gaon Panchayat Secretary was not examined as a witness. Evidence stricto sensu is not required, but a case relating to nationality of a citizen can be proved on preponderance of probabilities.

Arguments for the respondents :-

8. Per contra, learned Standing Counsel for FT and NRC matters Mr. G. Sarma laid stress in his argument that the written statement is contradictory to the evidence. It is stated in the written statement that the petitioner’s brother’s name is Abdul Jalil and her sister’s name is Alekjan Bibi, whereas in her cross-examination, the petitioner Saleha Khatun has deposed that she has no brother. Even the petitioner’s sister, Alekjan Bibi has deposed that the petitioner is her younger sister and they are only two sisters in their family.

9. It is further contended that the petitioner has failed to establish any lineage with h