JUDGMENT AND ORDER (CAV)

(Shamima Jahan, J.)

Heard Shri S. Choudhury, learned Counsel for the petitioner. Also heard, Shri J. Payeng, learned Standing Counsel, Home Deptt. & NRC, Shri P.Sarma, learned Government Advocate, Assam, Shri. A.I. Ali, learned Standing Counsel, ECI and Shri S. Kakati, learned CGC.

2. By this application filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 25.04.2019 passed by the learned Member Foreigner’s Tribunal No.2. Kamrup (Rural) at Boko, Assam in B.F.T. case no. 1750/2016 corresponding to Police no.1246/1998 (IMDT) (NAL)C/No.2194/1998 by which the petitioner was declared a foreigner of post 25.03.1971 stream.

FACTS:

3. The petitioner stated that his grandfather late Hakimuddin Sheikh had a landed property at village Uttar Godhuni, P.S. Tarabari, Mouza-Boguribari in the district of then Kamrup, now Barpeta, Assam and that an annual Khiraj Patta bearing no. 77 covered by Dag no.24 was issued to him by the authorities concerned in the year 1942. The petitioner further stated that his father’s name was late Ashan Ali and that the name of his father was enrolled in the NRC details showing him as son of Abul Haki. He also stated that he was born in the year 1956 and brought up in the above mentioned village and that in the year 1957, his mother namely Reshma Khatun expired and that his father also expired three years later i.e. in the year 1960 and that he was under the care and protection of his paternal uncle namely late Shanejuddin. He thereafter stated that due to erosion caused by Brahmaputra river, he shifted to a different village being village no.3 Malibari Pathar in the district of Kamrup (Assam). He then stated that on attaining majority, his name was recorded as a voter in 1977 voters list, at the aforesaid village under the 48 No. Boko, L.A.C. Thereafter, in the voters list of 1985, his name was enlisted along with his wife’s name and that his name was shown as son of Ashan instead of Ashan Ali and that both the names belong to one and the same person i.e. his father. Thereafter, in the year 2005, the name of the petitioner along with his wife was recorded in the voters list of the said year and his name was reflected as son of Ashan Ali. Apart from the said voters list, the petitioner, in order to establish his citizenship had relied on the certificate issued by the Gaonburah of his village on 09.01.2019 certifying that petitioner is a permanent resident of the said locality and that his name appeared in the voters list of 1977.

4. However, he stated that the Superintendent of Police (Border) Boko made a Reference to the learned Tribunal, on suspicion that the petitioner is not a citizen of India and subsequent thereto, the learned Tribunal issued notice to the petitioner and on receipt of the same, the petitioner appeared and submitted his written statement along with documents.

5. Today when the matter is heard, the learned Counsel stated that he had filed an additional affidavit to bring on record the written statement as well as evidence on affidavit filed by the petitioner before the Tribunal but the same was not found in the records. However, the said additional affidavit filed in the month of February, 2022 was placed and the said written statement was annexed with the said affidavit and perused.

6. In the said written statement, the petitioner stated that his grandfather was late Hakimuddin Sheikh, who had a plot of land and to whom annual Khiraj Patta was issued as stated above and that his father’s name was enrolled in the NRC details. He also stated that he was born in 1956 and that his mother and father expired in the year 1957 and 1960 respectively and further that he was brought up by his uncle. He also stated that due to erosion by river Brahmaputra, he shifted his residence to another place and that he married after attaining majority. He also stated that his name appeared in voters lists of 1985, 1997 as well as 2005. He f