The burden of proof regarding citizenship lies with the individual asserting their status, and failure to provide sufficient evidence results in the presumption of foreign status.

ORDER

29.07.2024 Date :

(K.R. Surana, J)

Heard Mr. M.A. Sheikh, the learned counsel for the petitioner. Also heard Mr. R.K.D. Choudhury, learned DSGI, representing respondent No.1, Ms. A. Verma, learned Standing Counsel for Home Department, representing respondent nos. 2 and 4 and Mr. R. Talukdar, learned Govt. Advocate, representing respondent no.4.

2) By filing this writ petition filed under Article 226 of the Constitution of India , the petitioner has challenged the impugned opinion dated th 04.07.2017, passed by the learned Member, Foreigners Tribunal No.5 , Goalpara, Assam in F.T. Case No. F.T/5/228/MA/16, whereby the petitioner was declared a foreigner who had illegally entered into India subsequent to 25.03.1971.

3) The learned counsel for the petitioner has referred to the written statement filed by the petitioner and it is submitted that the petitioner was born and brought up in Village- Sarapara, P.S. & Dist. Goalpara, Assam. The petitioner has projected that his father is Kherullah Sheikh and his mother is Sairon Nessa @ Sairun Bewa and that Earu Sheikh (Earuddin in NRC 1966) and Khademjan Bibi were his grand-parents. It has also been projected that the name of his grand-parents and parents were entered in the National Register of Citizens- 1951 (“NRC-1951” for short). It was also projected that the name of his father was recorded in the voter’s list of 1966 and 1970 in village- Sarapara, PO & Dist. Goalpara.

4) It is projected that the petitioner along with his family had shifted to village- Tangabari, P.S. Dudhnoi, District- Goalpara. It is projected that the name of Sairon Nessa, mother of the petitioner and the name of Saher Ali, elder brother of the petitioner was entered in the voters list of 1979 in village- Tangabari, but in the said voter’s list, the name of her father appeared differently as Nirulla instead of correct name Kherullah. It is projected that in the voter’s list of the year 1990, the name of petitioner’s mother and Samser Ali, elder brother of the petitioner is entered in village- Tangabari, District- Goalpara. The petitioner and his family had then shifted from village- Tangabari to village- Sidhabari Part-II, P.S. Matia, Dist. Goalpara. It is projected that the name of the petitioner, his mother and wife have been recorded in the voter’s list of 1997, being Jafar Ali, Saherun Nessa and Achlatun Nessa respectively, in respect of village- Sidhabari Part-II, Dist. Goalpara.

5) It is projected that the petitioner and his family had shifted from village- Sidhabari Part-II to village- Rabhapara, Dist. Goalpara, where he is still residing. His name along with the name of his wife, Achalatun Nessa has been recorded in the voter’s list of 2005, however, as ‘D’ voter.

6) The learned counsel for the petitioner has submitted that the learned Foreigner’s Tribunal had failed to consider the oral and documentary evidence on record and had whimsically passed the impugned opinion by taking a hyper- technical view by taking into account the minor discrepancy in the names and age of persons recorded in the voters list and non-production of voter’s list of 1975, 1977, 1985 and 1995. It is submitted that for no apparent reason, the evidence tendered by the petitioner as DW-1 was disbelieved.

7) The learned counsel for the petitioner has referred to (i) the additional affidavit filed by the petitioner on 23.05.2023, and (ii) the additional affidavit filed by the petitioner on 12.06.2023. Referring to the additional affidavit filed on 23.05.2023, it has been submitted that the petitioner has brought on record the following, viz., (i) affidavit sworn on 12.05.2023 by one Ussaranga Basumatari, regarding shifting of the petitioner from village- Sarapara to village- Tangabari and then to village- Sidhabari Part-II; (ii) affidavit sworn on 12.05.2023 by one Jamal Uddin Sheikh regarding shifting of the petitioner from village- Sidhabari Part-II to village- Rabhapara; and (iii) affidavit sworn on 12.05.2023 by one Matior Rahman r