Achintya Malla Bujor Barua, J.

1. Heard Mr. GP Bhowmik, learned senior counsel for the petitioner. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Mr. UK Nair, learned senior counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas as well as Ms. G Sarma, learned counsel for the authorities under the Union of India.

2. The petitioner, Sudhir Roy was enquired upon by the respondent authorities and on being satisfied that appropriate grounds do exist, his case was referred to the Foreigners Tribunal of Cachar for an opinion as to whether he is a foreigner within the definition under the Foreigners Act of 1946. The Tribunal by its order dated 17.05.2018 had held the petitioner to be a foreigner and in its order had accordingly declared the petitioner, Sudhir Roy, his wife Romita Roy, Sons Sontosh Roy and Piyush Roy and daughters Smti Rimpi Roy and Smti Mampi Roy also to be foreigners, who had entered Assam/India after 25.03.1971 from the specified territory.

3. Mr. G.P. Bhowmik, learned senior counsel contends that in respect of Sudhir Roy, the evidence rendered by him could not be completed inasmuch as, he had fallen ill on the given date. Thereafter, the Tribunal had offered two further dates to the petitioner to complete his evidence, but as because he was suffering from Typhoid at that relevant point of time he could not give his evidence before the Tribunal. It is clarified that as per the records the examination-in-chief of the petitioner was complete, but he could not be subjected to cross examination.

4. In order to substantiate his claim the petitioner had produced a certificate dated 31.07.2018 of the Senior Medical and Health Officer, Kalain F.R.U. in the Cachar district wherein it is certified that the petitioner was under the treatment of the concerned Doctor from 01.05.2018 to 31.07.2018 due to typhoid fever.

5. We take note that the certificate was issued by a Government Doctor and we find no reason to disbelieve the said certificate. In the circumstance, Mr. U.K. Nair, learned senior counsel, Government of Assam appearing for the Foreigners Tribunal and Border Areas also agrees that the interest of justice requires that the petitioner be given an opportunity to be cross-examined.

6. Accordingly, the Judgment and Order dated 17.05.2018 of the Foreigners Tribunal 4th Cachar, Silchar in Case No. F.T. 4th/2/2015 is set aside and the matter is remanded back to the Foreigners Tribunal for adjudication from the stage of cross examining the petitioner. It is accordingly directed that the petitioner shall now appear before the Foreigners Tribunal 4th Cachar at Silchar on 28.01.2019. Upon such appearance of the petitioner, the Tribunal shall proceed against him from the stage of his cross examination and pass its reasoned order thereon.

7. It is stated by Mr. G.P. Bhowmik, learned senior counsel for the petitioner that the petitioner has some other witnesses to be examined on his behalf. On a query being made as to whether such witnesses were included in the list of witnesses provided by the petitioner, it is stated that the Foreigners Tribunal follows the procedure where a list of witnesses is not required to be given. In view of the above, it is provided that the Foreigners Tribunal shall proceed against the petitioner from the stage of his cross-examination and if the petitioner desires he may be allowed to adduce any other witnesses as may be advised.

8. Accordingly, it is directed that the Tribunal shall complete the proceeding against the petitioner within a period of 30(thirty) days from the date of his appearance i.e. 28.1.2019. It is further provided that in the event, the petitioner does not appear before the Tribunal or does not cooperate with the conduct of the proceeding, the Tribunal would be at liberty to pass any order as may be permissible under the law.

9. As regards the declaration of the wife, sons and daughters of the petitioner to be foreig