JUDGMENT AND ORDER (CAV)

(Shamima Jahan, J.)

Heard Mr. Z. Hammad, learned counsel appearing for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Home Department, Ms. R. B. Bora, learned Government Advocate, Assam, Mr. N. Kalita, learned counsel representing Mr. A. I. Ali, learned Standing Counsel for the ECI; Ms.K. Phukan, learned CGC appearing for the Union of India.

2. By this application filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the opinion dated 26.07.2016, passed by the learned Member, Foreigners’ Tribunal No. 5th, Morigaon, Assam, in Case No. FT (D) 121/2015 (New) and FT(D) No. 82 of 2012 (Old), arising out of (D/N Case No. 2072 dated 26.06.1998, whereby the petitioner was declared a foreigner of post-25.03.1971 stream.

FACTS

3. The petitioner stated that the Superintendent of Police (B), Morigaon, submitted a reference dated 26.06.1998 to the Member, Foreigners’ Tribunal, Nagaon, on the ground that the proceedee, i.e., the petitioner entered into India (Assam) after 25th of March, 1971. The aforesaid reference was received by the learned Tribunal No. 5, Morigaon, and the same was registered as FT (D) 121/2015, as mentioned above. Thereafter, notice was issued to the petitioner and the petitioner filed the written statement on 08.07.2014.

4. In the said written statement, the petitioner stated that the investigation and enquiry conducted by the Superintendent of Police (B) is based on false information. He stated that his father, namely, Nurul @ Nurul Islam was enlisted in the voters’ list of 1965, from House No. 45, under 84 No. Assam Legislative Assembly of Lahorighat Constituency. He then stated that in the voters’ list of 1970, his father appeared as a voter from House No. 43, under the same constituency.

5. The petitioner, thereafter, stated that he casted his vote in 1989, and that his name was reflected in the 1989 voters’ list, wherein his name was mentioned against his father’s name as Nurislam instead of Nurul Islam. To further establish his citizenship, he relied on a family Identity Card, wherein his name and his family were recorded and that the said card was issued by the Inspector of Food and Civil Supplies, Morigaon.

6. The petitioner was also examined as DW No. 1 and he stated in his evidence that his father had casted his vote in 1965 and 1970 and that his father’s name was Nur Islam, son of Arfan Ali. He further stated that he casted his vote in the year 1989 and not thereafter, and since the remark- ‘D’ has been put, he could not vote any further. He also stated that he has a Family Identity Card, and that the documents relating to a landed property that his father had, were destroyed in the flood. This witness was cross-examined, wherein he stated that he could not say, as to which year, he bought a plot of land. He also stated that he did not have any Voter ID and that he had no brothers and that his mother’s name was Omela Khatun.

7. Thereafter, the petitioner produced DW No. 2, who was one Joynal Abdin and who is stated to be a neighbor and he stated that the father of the petitioner voted in the year 1965 and 1970, and that the petitioner casted his vote in 1989, not before that. This witness was cross-examined and during his cross-examination, he stated that the petitioner has a younger brother, namely, Saidul Islam, and that the father of the petitioner had no landed property and that wife of the petitioner has been casting vote and her name is Bimala Khatun.

8. The petitioner had produced documents, which are exhibited by the learned Tribunal as follows:

i) Exhibit-Ka, certified copy of 1965 voters’ list.

ii) Exhibit-Kha, certified copy of 1970 voters’ list.

iii) Exhibit-Ga, certified copy of 1989 voters’ list.

iv) Exhibit-Gha, certificate issued by Gaonburah.

v) Exhibit-Unga, certificate issued by President of Gaon Panchayat

9. The learned Tribunal considered the said documents along with the evidence of