ORDER (ORAL)

05.02.2020 (P.J. Saikia, J.)

Heard the learned counsel, Mr. G. Uddin, appearing for the petitioner. Also heard Ms. G. Hazarika, learned CGC, representing respondent No. 4; Ms. B. Das, learned Standing Counsel, Election Commission, representing respondent No. 4; Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal, representing respondent Nos. 2, 3, 6 & 7; and Ms. U. Das, learned Standing Counsel, NRC, representing respondent No. 5.

2. In this writ petition, the petitioner has challenged the opinion dated 29.06.2019, passed by the Foreigners Tribunal, Tezpur 5th, at Biswanath Chariali, Biswanath, Assam, in BNC/FT Case No. 505/2016, arising out of S.P.’s F.T. Case No. 352/2008.

3. On a reference made by the Superintendent of Police (B), Sonitpur, Tezpur, the learned Tribunal issued notice to the petitioner asking him to prove that he is not a foreigner of post 1971 stream. The petitioner filed a written statement before the Tribunal and filed 6 (six) numbers of documents to prove his case. The documents are –

1. Exhibit-1, Gaon Bura certificate of Village Niz Laluk;

2. Exhibit-2, Gaon Panchayat certificate of Village No. 2 Petulibari;

3. Exhibit-3, Electoral Photo Identity Card;

4. Exhibit-4, certified copy of Electoral Roll of 2016;

5. Exhibit-5, certified copy of Electoral Roll of 1965; and

6. Exhibit-6, certified copy of NRC of 1951.

4. In order to prove his documents, the petitioner examined himself and 2 (two) other witnesses, namely, the Village Gaon Bura of Village Niz Laluk and the Gaon Bura of Village No. 2 Petulibari. After consideration of the evidence placed before it, the learned Tribunal held the petitioner to be a foreigner of post 1971 stream.

5. We have gone through the opinion of the learned Tribunal.

6. It is clear on the face of the record that for the first time the name of the petitioner appeared in the Voter List of the 2016, wherein, his age has been shown as 58 years but prior to that no other Voter Lists bearing his name have been filed. Moreover, no such Voter Lists bearing the name of the petitioner along with his projected father are filed. The DW-2, the Gaon Bura of Village Niz Laluk, has stated in his evidence that he was 45 years old on the day when he adduced evidence. He has stated in his evidence that he had seen the petitioner since his childhood but he has not seen the father of the petitioner. If the age of the DW-2 was 45 years on that day, he must have been born in the year 1972, and at the time of filing of the writ petition, the petitioner was 61 years old.

7. Be that as it may, the certificate issued by village Gaon Bura cannot prove the citizenship of a person. The certificates issued by village Gaon Bura can only be used to prove the shifting of residence which takes place for a woman when she marries a person of another village and this is the settled position of law on the point [Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579].

8. In this case, the petitioner, in his written statement, has claimed that he was 59 years old. The Tribunal after making calculations held that if the petitioner was 59 years old then he must have been born in the year 1957 and therefore, his name must have appeared in the Voter List after 1978. The petitioner has filed the Voter List of 1965 containing the names of his projected father and mother. No other subsequent Voter Lists containing their names of have been filed. The name of the petitioner appeared for the first time in 2016 Voter Lists. For these reasons, the learned Tribunal held that the petitioner failed to prove his links with his projected parents.

9. We have carefully gone through the opinion of the Tribunal. There is no doubt that the names of the projected father and mother of the petitioner appeared in the Voter Lists of 1965. No other Voter Lists subsequent to 1965 have been filed. The name of the petitioner appeared in the Voter Lists in the year 2016, wherein, his age has been sown as 58 years. He did not file any