The burden of proof to establish citizenship under the governing act rests solely on the individual. Mere production of identity documents or inconsistent records without verifiable genealogical links is insufficient, and courts cannot substitute their factual findings for those of a tribunal unless clear legal perversity exists.

Judgment :

K.R. Surana, J.

Heard Mr. H.A. Sarkar, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned CGC for respondent no.1; Mr. J. Payeng, learned standing counsel for the FT and Border matters, respondent nos.2, 4, 6 and 7; and Mr. P. Sarmah, learned Govt. Advocate for the State respondent no.5.

2. It may be mentioned that although Mr. A.I. Ali, learned standing counsel for the ECI is present and participated in the hearing. However, at the time of dictating the order, it has been noticed that as per the cause title of the writ petition, the Election Commissioner, Assam, Dispur, Guwahati, has been arrayed as respondent no.3. There is nothing on record to show that an advance copy of this writ petition was served on the learned standing counsel for the State Election Commission, Assam, when this writ petition was listed at the “motion” stage. The learned counsel for the petitioner has also not filed any memorandum showing that after notice of motion was issued, extra copies of the writ petition were served on the standing counsel for respondent no.3. Under the circumstances, it is deemed appropriate that the name of respondent no.3 be struck off without altering the seriatim of the respondents.

3. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 28.05.2019, nd passed by the learned Member, Foreigners Tribunal 2 , Kamrup (Rural) at Boko, in B.F.T. Case No. 1923/16, arising out of G.F.T. No. 1556/11, by which the petitioner was declared as an illegal migrant of post 25.03.1971 stream.

4. After receipt of the notice of proceedings the petitioner appeared before the learned Tribunal and filed his written statement on 08.11.2018. It was stated in the written statement that he was born and brought up in village Ahiyabari, Mouza- Defeli under Tamulpur P.S. in the district of Kamrup (presently Baksa district), Assam, where his father was also born. It was stated that the name of his father was enrolled in the voter list of 1970 and the legacy data of voter details of 1970 contains the name of the father of the petitioner, Hemanta Mandal, son of Nitahari. The name of his father was also enrolled in the voters list of 1970 and 1985. The petitioner had also stated that in the year 1990, he and other family members shifted from Ahiyabari to village- Neuldoba under Boko Police Station in the district of Kamrup for better living and his name appeared in the voters list of 1993, 1997, 2005, 2010, 2014 and 2017 of village- Neuldoba. He has an Elector Photo Identity Card (EPIC for short) and he also has an Income Tax PAN Card. The petitioner relies on a certificate issued by the Govt. Gaonburah showing his link with his father. The petitioner had also relied on an affidavit to explain the discrepancy in his name and his father’s name. Accordingly, the petitioner had stated that he was a citizen of India and not a foreigner.

5. The statements made in his written statement were reiterated in his evidence-on-affidavit filed by the petitioner as DW-1 on 28.11.2018. In support of his defence he had exhibited the following documents, viz., (1) certified copy of voter list of 1970 (Ext.A), (2) certified copy of voter list of 1979 (Ext.B), (3) certified copy of voter list of 1985 (Ext.C), (4) certified copy of voter list of 1993 (Ext.D), (5) certified copy of voter list of 1997 (Ext.E), (6) certified copy of voter list of 2005 (Ext.F),