Ujjal Bhuyan, J.

Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. T.C. Chutia, learned Government Advocate, Assam.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 16.06.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2, Abhayapuri in BNGN/FT/Case No. 1082/2007 declaring the petitioner to be a foreigner who had illegally entered into India from the specified territory, i.e., Bangladesh after 25.03.1971.

3. It is seen that initially a reference was made by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that petitioner was an illegal migrant as defined under the said Act. The reference was registered as IM (D) T Case No. 620/2005 before the Tribunal constituted under the said Act.

4. After the aforesaid Act was declared unconstitutional by the Supreme Court, the reference was registered under the Foreigners Act, 1946 as BNGN/FT/Case No. 1082/2007 and after creation of additional Tribunals was assigned to the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) for opinion.

5. Notice issued by the Tribunal was served upon the petitioner, where after, he had entered appearance and filed written statement along with copies of certain documents denying the allegation made and claimed to be a citizen of India by birth. Petitioner also adduced evidence by testifying as his witness and exhibited five documents. Thereafter, he filed an additional affidavit (written statement) and exhibited three more documents.

6. After hearing the matter, Tribunal passed the order dated 16.06.2016 answering the reference in favour of the State as above.

7. Aggrieved, present writ petition has been filed.

8. When the writ petition was moved on 05.09.2016 it was submitted that following order passed by the Tribunal petitioner was taken into custody. This Court, while issuing notice and requisitioning the case record, passed an interim order to the effect that the petitioner should not be deported from India.

9. Mr. Mahmud, learned counsel for the petitioner vehemently argued that petitioner had produced more than the required documents and firmly established his claim that he was a citizen of India by birth. However, the Tribunal misreading the evidence on record arrived at an erroneous finding causing serious prejudice to the petitioner. Writ court should interfere in the matter and set aside the order of the Tribunal, he submits.

10. Per contra, Mr. Chutia, learned Government Advocate submits that Tribunal had considered all aspects of the matter and after appreciation of evidence had returned a finding of fact which does not suffer from any infirmity. Therefore, no case for interference is made out, he submits.

11. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

12. As already noticed above, proceeding against the petitioner was initiated under the Illegal Migrants (Determination by Tribunals) Act, 1983 where unlike Section 9 of the Foreigners Act, 1946 burden was on the State to prove that the person concerned was an illegal migrant. In the enquiry report submitted by the Enquiry Officer to the Superintendent of Police (Border) on 22.06.2005 it was mentioned that after causing enquiry including recording of statement of the petitioner and other witnesses it was found that original address of the petitioner was at village Kadamtol under Mirzapur Police Station in the district of Mymensingh, Bangladesh. On account of poverty petitioner had illegally migrated to India (Assam) after the cut-off date 25.03.1971. Report of the Enquiry Officer was scrutinised by the superior authorities and thereafter, by the screening committee constituted under the Illegal Migrants (Determination by Tribunals) Rules, 1984 as it was the procedure followed when the Illegal Migrants (Determination by Tribunals) Act, 1