Ujjal Bhuyan, J.

1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. H.K. Hazarika, learned Government Advocate, Assam.

2. By filing this petition, under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 17.02.2017, passed by the Foreigners' Tribunal 9th, Barpeta, in FT Case No. 298/2015 (State Vs. Mazor Ali), declaring the petitioner to be a foreigner, who had illegally entered in India (Assam), from Bangladesh after 25.03.1971.

3. It is seen that initially reference was made by the Superintendent of Police (Border), Barpeta under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), which was registered as IMDT Case No. 2650/1998, with the allegation that petitioner was an illegal migrant as defined under the said Act. Be it stated that under Section 3(1)(c) of the IMDT Act, an illegal migrant was defined as a foreigner, who had unauthorizedly entered into India after 25.03.1971.

4. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, whereafter the references which were pending before the Tribunals constituted under the IMDT Act were transferred to the Foreigners' Tribunals constituted under the Foreigners' Act, 1946 read with the Foreigners' (Tribunals) Order, 1964.

5. Accordingly, the related reference was also re-registered under the Foreigners' Act, 1946, read with the Foreigners' (Tribunals) Order, 1964, as FT Case No. 298/2015 and after creation of additional Tribunals, was assigned to the Foreigners' Tribunal No. 9, Barpeta (Tribunal), for opinion.

6. Notice issued by the Tribunal was duly served upon the petitioner, whereafter he had entered appearance before the Tribunal and filed written statement, denying the allegation made that he was a foreigner by claiming to be a citizen of India by birth. Petitioner also adduced evidence, oral as well as documentary.

7. After hearing the matter, Tribunal passed the order dated 17.02.2017, answering the reference in favour of the State in the above manner.

8. Following the aforesaid order, passed by the Tribunal, petitioner was taken into custody.

9. Petitioner filed an application to review the order dated 17.02.2017, which was registered as Misc. Case No. 8/2017. By order dated 22.06.2017, the review petition was dismissed.

10. Aggrieved, present writ petition has been filed.

11. This Court, by order dated 28.07.2017, issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India in the interregnum.

12. Mr. Mahmud, learned counsel for the petitioner submits that in the notice issued by the Tribunal to the petitioner, it was not mentioned as to what was the allegation against the petitioner, i.e., whether he was a foreigner belonging to the 01.01.1966 to 25.03.1971 stream or whether he was a foreigner of post 25.03.1971 stream. Therefore, the very foundation of the reference was irregular. He also submits that evidence of the petitioner was not challenged by the State. Therefore, his evidence ought to have been accepted by the Tribunal in its entirety. He further submits that petitioner wanted to adduce the evidence of another witness, namely, Moniruddin. Referring to the ordersheet of the Tribunal, he submits that orders dated 21.09.2016 and 08.11.2016 would disclose that evidence-in-chief of Moniruddin was accepted by the Tribunal, but he was not put to cross-examination, whereafter, further evidence on behalf of the petitioner was closed. In such circumstances, learned counsel submits that petitioner had discharged his burden under Section 9 of the Foreigners' Act, 1946 and therefore the impugned finding of the Tribunal is liable to be set aside. In support of his submission, learned counsel for the petitioner has referred to the decision of the Supreme Court in Standard Chartered Bank Vs. Andhra Bank Financial Services Limited, (2006) 6 SCC 94 to contend that w