JUDGMENT :

N. KOTISWAR SINGH, J.

Heard Mr. G. Kakoti, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Chouhdury, learned Asstt. SGI appearing for respondent Nos. 1 and 4; Ms. A. Verma, learned special counsel, F.T. appearing for respondent Nos. 2 and 6; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No. 3 and Ms. U. Das, learned State counsel, Assam, appearing for the respondent No. 5.

2. Considering the nature of the case and also after hearing the learned counsel for the parties, we are of the view that the present petition can be disposed of at this stage without issuing any formal notice to the respondents.

3. In this petition the petitioner has challenged the impugned opinion dated 20.7.2018 passed by the Foreigners Tribunal No. 7th, Tezpur, Balipara, Assam, in F.T. Case No. FT-2/2017 corresponding to reference TZP(B)/411/2017 by which the petitioner was declared a foreigner who came to India after 25.03.1971.

4. Learned counsel for the petitioner submits that apart from the various grounds raised in the writ petition, the said proceeding suffers from serious irregularities, inasmuch as, the petitioner was seeking to examine certain official witnesses like the Headmaster of No. 1 Gudamghat Primary School, Tezpur, who had issued the School Certificate to the petitioner, which could have proved her linkage with the projected father Nur Mahammad, but the Tribunal rejected her application. Learned counsel for the petitioner submits that the Tribunal also did not examine various documents relied upon by the petitioner.

5. Be that as it may, what we have noticed as submitted by the learned counsel for the petitioner that the petitioner had filed an application on 10.7.2018 being No. 12/18 seeking to prove the said School Certificate adduced by her by calling the issuing Authority (the Headmaster of the said school). However, the said prayer was rejected by the Tribunal on the same date on 10.7.2018 by stating that the matter was fixed for hearing and the Petition No. 12/18 was not filed on the date of evidence. The aforesaid order dated 10.7.2018 is reproduced herein below:

“The concern advocate filed petition No. 12/18 to give further evidence but this petition was not filed on the date of evidence. So, this Tribunal fixed 10.7.2018 for argument.

In the stage of argument the further evidence would not be allowed. The proceedee is absent without appearance of the proceedee, this petition could not be considered because appearance of the proceedee is mandatory in the foreigner case. So, this petition is rejected.”

6. Though, the matter might have been fixed for oral hearing, the fact remains that the petitioner had sought to substantiate the School Certificate by examining the Headmaster of the said School which according to the petitioner would clinch the issue in her favour.

7. In this regard, we have also noticed the observation made by the learned Tribunal in his opinion dated 20.7.2018 that the State of Assam had not engaged its advocate to cross-examine the evidence on affidavit filed by the proceedee. Further, it was also observed that the burden of proof lies upon the proceedee entirely under the rule of civil procedure. The observations made by the Tribunal in its opinion dated 20.7.2018 are reproduced herein below:

“The State of Assam has not engaged it's advocate to cross-examine the evidence on affidavit filed by the proceedee, hence, the burden of proof lies upon the proceedee entirely under the rule of Civil Procedure Code if a evidence on affidavit is not cross-examined by the other party then the affidavit is presumed to be admitted fact and also stating cross declined. On rebuttal of the affidavit on evidence is amount admission by the other parties these principle of civil cases is not applied in the foreigners cases because of section 9 of the Foreigners’ Act, 1946 which is exception provision of LAW Foreigners’ Act, 1946.

So, I discus