The court affirmed the Tribunal's authority in assessing the evidence required to establish citizenship under the Foreigners' Act, emphasizing the necessity of substantial proof.

order

Date : 13-05-2019 (Manojit Bhuyan, J)

Heard Mr. I.H. Saikia, learned counsel for the petitioner as well as Mr. U. K. Nair, learned senior counsel representing respondent nos. 2, 3, 4 and 5. Ms. B. Das, learned counsel represents respondent no. 6 whereas Ms. U. Das, learned counsel appears for respondent no. 7. None appears for the respondent no. 1.

Petitioner assails order/opinion dated 28.01.2019 passed by the Foreigners’

th Tribunal No. 5 at Goalpara, in F.T. Case No.-F.T./5/310/MA/16, declaring him to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.

In the proceedings before the Tribunal the petitioner submitted written statement and adduced evidence, as required of him under Section 9 of the Foreigners’ Act, 1946, for the purpose of discharging the burden as not being a foreigner. In order to establish his lineage to Indian parents relatable to a period prior to 24.03.1971, the petitioner projected one Tomser Ali, son of Arob, as his father, whose name appeared in the Exhibit-A Voter List of 1966 pertaining to village Chaysimana of mouza Baghbor, in Barpeta Sub-division. In the said Voter List of 1966 the name of one Dehnobi Nessa also appeared. Exhibit-B Voter List of 1970 also provided similar particulars. Reference and reliance is made to the Voter List of 1985 (Exhibit-C) and the Voter List of 1997 (Exhibit-D), both lists pertaining to a different village i.e. Basantapur under mouza Matia of Goalpara East Legislative Assembly Constituency, to show recording of the name of the petitioner against Tomser Ali. Reliance is also placed in the deposition of one Hasen Ali of village Chaysimana, who deposed as DW-3 by claiming himself to be the cousin of the petitioner.

On the above, the primary issue for determination is as to whether the petitioner could successfully establish and connect Tomser Ali of Chaysimana of the Voter List of 1966 to Tomser Ali, described as the father of the petitioner, in the Voter Lists of 1985 and 1997 of village Basantapur.

Without any doubt, no documents were produced nor any statements made in the written statement with regard to shifting of residence from village Chaysimana to village Basantapur. The evidence of Hasen Ali as DW-3 does not go to support the case of the petitioner, inasmuch as, his testimony is far from inspiring the confidence of the Court. He has stated that he is ignorant as to when the petitioner was born and has only heard that the petitioner was born at Chaysimana. He also stated that the petitioner had cast vote at Basantapur along with his parents in the year 1985. On this, a mere perusal of the Exhibit-C Voter List of 1985 would give a contrary picture, in that, the name of the petitioner appears along with Asimon Nessa as voters and not with his projected parents.

In the course of hearing, Mr. Saikia made reference to a Voter List of 1997 of village Basantapur, which records the name of Tomser Ali and Johura Khatun as voters. Such reference was made to conclusively show the existence of Tomser Ali at village Basantapur. With utmost respect, the said document at Annexure-11 of the writ petition cannot be taken at its face value, so much so, that the said Voter List of 1997 at Annexure-11 is altogether a different document than the Voter List of 1997 which was exhibited as Exhibit-D before the Tribunal. In the course of hearing, Mr. Saikia also submitted that the petitioner along with his parents had cast vote in the year

1975. This submission, in our considered view, is without any basis or substance as no such Voter List of 1975 was produced and exhibited in the reference proceedings.

We find that the petitioner failed to bring on record any cogent and reliable evidence so as to satisfactorily establish linkage to Tomser Ali of the Exhibit-A Voter List of 1966 pertaining to village Chaysimana. We also find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no i