The central legal point established is the requirement to prove Indian nationality under the Foreigners Act, 1946, and the court's reluctance to interfere with the Tribunal's finding of fact.

Ujjal Bhuyan, J.

This case was heard on 18.04.2018 and today is fixed for delivery of order.

2. We have heard Ms. S.P. Hussain, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT).

3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 30.01.2016 passed by the Foreigners Tribunal No.3, Morigaon in FT (D) Case No. 19 of 2015 (State vs. Abdul Kuddus) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

4. This Court by order dated 25.02.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

5. One Nijamuddin Khan Choudhury, Inspector of Police (B), Morigaon has filed an affidavit on behalf of Superintendent of Police (Border), Morigaon supporting the order passed by the Tribunal. It is stated that an intensive revision of electoral roll was carried out in 1997 in respect of Morigaon constituency. During verification of nationality, petitioner could not produce any document in support of his Indian nationality. Therefore, the local verification officer had submitted report to the Electoral Registration Officer suspecting the petitioner to be a foreigner. On the basis of such report, Electoral Registration Officer forwarded the matter to the Superintendent of Police (Border), Morigaon for making a reference under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). Consequently, reference was made to the Illegal Migrants (Determination), Nagaon suspecting the petitioner to be an illegal migrant i.e. a foreigner who had unauthorizedly entered into India after 25.03.1971. After the IMDT Act was declared unconstitutional by the Supreme Court with the further direction that the references pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act 1946. Accordingly, the related reference was transferred to the Tribunal.

6. Petitioner has filed an additional affidavit in support of the writ petition.

7. Submissions made by the learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.

8. Before we proceed to examine the materials on records, it would be useful to examine the impugned order dated 30.01.2016 passed by the Foreigners Tribunal No.3, Morigaon (Tribunal), relevant portion of which is extracted herein :

7. The Exhibit "Kha" and Exhibit "Ga" are voter list of 1966 and 1970 in the name of Abdul Kadir, Son of Fazar Ali purported father of O.P. whose age is shown as 40 and 44 at the relevant periods. Exhibit "Gha" and Exhibit "Unga" are voter list of O.P. namely Abdul Kuddus along with his wife Joygun Nessa. In the voter list of 1997 the Opposite Partys age is shown as 40 and in 1989, his age is recorded as 59. In Exhibit "Unga" (of Assamese version) voter list for the year 1997 was submitted in Hon’ble Foreigners Tribunal No.2 showing the voter s name in Sl-I as Md. Abdul Kadir, son of Fazar Ali bearing his age as 75 along with his wife and other family members. In Sl.5 of the said voter list, the same of present proceedee is indicated wherein his age is shown as 40. Interestingly, the said exhibit "Unga" (Assamese version) so exhibited was for another case bearing F.T. (D) case No.935/11 as has been marked. Moreover, the proceedee though averred in paragraph 4 and paragraph 5 of the Written Statement of having 1951 N.R.C. and landed documents, the records of the same has not been submitted/ produced /exhibited during evidence. Having regard to the facts and circumstances of the matter in hands, if we remotely consider the linkage of Exhibit "Kha"