The burden of proof for citizenship lies with the petitioner, who failed to establish lineage and continuous residency prior to the cutoff date, resulting in the declaration as a foreigner.

Judgment :

Susmita Phukan Khaund, J.

1.The petitioner Sohar Ali @Mohammad Sohar Ali is aggrieved by the opinion dated 18.03.2023, passed by the learned Member, Foreigners Tribunal, Bajali, Assam in FT Case No. 842/2017, declaring the petitioner to be a foreigner of Post 25.03.1971 Stream. It is averred that the petitioner was declared a foreigner only on the ground that there is a discrepancy relating to his grandfather’s name which appears as Malek in the voters list of 1997, whereas, in the voters list of 1989, the petitioner's grandfather's name appears as Manek.

2. Heard Shri A.W. Aman, learned counsel for the petitioner and Shri G. Sarma, learned Standing Counsel, Home Department & NRC. Also heard Shri H.K. Hazarika, learned State Counsel, Assam; Shri N. Kalita, learned counsel appearing on instructions of Shri A.I. Ali, learned Standing Counsel, ECI and Shri M.R. Adhikari, learned CGC.

3. It is submitted on behalf of the petitioner that as he did not attend school, he could not furnish any school certificate and the khiraj patta of 1971 is the only document which establishes a link between the petitioner and his parents along with his grandparents. The learned counsel for the petitioner has also submitted that the evidence of the Gaonburha as DW-3 cannot be discarded. The Gaonburha is 92 years old and his evidence establishes the petitioner's lineage to prove that the petitioner is an Indian national. Abdul Gafur as DW-3 has stated that he has been working as Gaonburha since 1981 and the petitioner's father, Naya Mia @ Naya Miya is known to him. After verifying the voters list, he had issued the certificate marked as Exhibit-8. The petitioner's father’s name, Naya Mia @ Naya Miya was enrolled in the voters list of 1965.

4. It is submitted on behalf of the petitioner that there is no law that the Gaonburha has to produce an Identity card to bolster the credibility of his evidence. It is submitted that right from 1965, the petitioner has proved his presence in the same village along with his parents and grandparents. It is further contended that despite observing in para-21 of the impugned opinion that the petitioner could establish his lineage with his parents and he is the son of Indian parents, the learned Tribunal subsequently contradicting its own observation, declared the petitioner to be a foreigner.

5. The petitioner has relied on the decision of the Hon'ble Supreme Court in Sirajul Hoque Vs. The State of Assam & Ors. (2019) 5 SCC 534 and Md. Rahim Ali @ Abdur Rahim Vs The State of Assam reported in 2024 INSC 511

6. Per contra, the learned Standing Counsel for FT matters has laid stress in his argument that the decision of the learned Tribunal warrants no interference as the petitioner has failed to establish any lineage with his projected parents and grandparents. It is submitted that the petitioner has failed to produce any voters list from 1970 to 1989. The voters list of 1989 is the only linking document and is not sufficient to establish that the petitioner is an Indian national, when there are innumerable discrepancies in the voters list.

7. The learned Tribunal has elaborately discussed about the discrepancies in the voters list. It has been correctly held by the learned Tribunal that the petitioner has not even taken the plea that his grandfather's name and his parent's age were wrongly recorded in the voters list of 1989 and 1997. It is further contended that the petitioner's projected brother, Basharat Ali deposed as DW2 that his father Naya Mia @ Naya Miya died in the year 1997 at the age of 91 years, whereas, the age of Naya Mia @ Naya Miya wa