The Tribunal's failure to consider critical evidence invalidated its decision, necessitating a fresh review of the case.

Judgment and Order :

M. R. Pathak, J.

1) Heard Mr. Monowar Hussain, learned counsel for the petitioner and Ms. Anita Verma, learned Standing Counsel, Home Department, Assam for the respondent Nos. 2 and 4. Also heard Mr. Prem Sharma, learned Additional Senior Government Advocate, Assam for the respondent No.3 as well as Mr. H. Kuli, learned counsel on behalf of Md. Akram Imtiaz Ali, learned Standing counsel, Election Commission of India for the respondent No.5.

2) Aggrieved with the Final Order dated 10.11.2023 passed by learned Member, Foreigners Tribunal, 5^th, Barpeta, Assam in Case No. F.T.(5^th) 319/2017 by which she has been declared to be a foreigner of post 1971 stream, the petitioner has filed this writ petition praying, amongst others, for issuance of Writ of Certiorari to set aside the said Final Order dated 10.11.2023 and also to issue Writ in the nature of Mandamus directing the respondents not to deport her from India.

3) By order dated 19.01.2024 the Court called for the records of said Case No. F.T.(5^th 319/2017 from the Foreigners Tribunal, 5^th, Barpeta, Assam and in the interim, directed the respondents not to take the petitioner in custody and deport her from India and further, granted her interim bail, directing her to appear before the Superintendent of Police (Border), Barpetaon or before 02.02.2024.

4) The Registry received the relevant records and the petitioner is on interim protection as directed above.

5) From the records of the case, it is seen that in F.T. Case No. 197/2016, the Superintendent of Police (Border), Barpeta made a police enquiry through the In-Charge of Border Unit of Kalgachia Police Station, District-Barpeta against the petitioner, Bahatan Nessa, daughter of late Niyat Ali, wife of Jaharuddin, village-Khudrakhowa, Police Station-Kalgachia, District-Barpeta. After giving her due notice and recording her statement and on making necessary enquiry, the Sub- Inspector (Border), Kalgachia on 05.11.2016 submitted the enquiry report suspecting the petitioner to be a foreigner who had illegally entered into India on or after 25.03.1971. On perusalof the said enquiry report of the S.I.(B), Kalgachia dated 05.11.2016 and being satisfied, the Superintendent of Police (Border), Barpeta by its communication dated 23.12.2016 referred the said F.T. Case No. 197/2016 to the Foreigners Tribunal, Barpeta for its opinion under Order 2(1) of the Foreigners (Tribunals) Order, 1964 as to whether the petitioner, Bahatan Nessa, is or is not a foreigner under the Foreigners Act, 1946.

6) The record of said F.T. Case No. 197/2016 referred by the SP(B), Barpeta on 23.12.2016 was placed before the Foreigners Tribunal, 5^th, Barpeta (hereinafter referred to as the Tribunal) for its opinion, wherein, it was re-registered and numbered as F.T. Case No.197/2016. The Tribunal on 22.02.2017 issued notice of said F.T. Case No.197/2016 to the petitioner, fixing the matter on 19.04.2017 for her appearance, submission of written reply/written statement with relevant documents and evidence to prove her case.

7) On receipt of notice of said F.T. Case No.197/2016, the petitioner on 19.04.2017 appeared before the Tribunal and submitted her written statement with photocopies of the documents.

8) In her written statement filed on 19.04.2017, the petitioner stated that she is an Indian by birth and that she did not enter into the territory of India (Assam) after 25.03.1971. She stated that she was born and brought up at Village - Nararvita Part-II, Post Office-Nararsita, Police Station-Mererchar, District-Bongaigaon and that on attaining the age of majority, she was married to Jeher Ali @ Jehor Uddin of village - Khudrakhowa.

9) The petitioner in her written statement also stated that name of her father is Niyat Ali, whose name figured in the Voters list of 1997 at Srl. No. 28, House No. 12 at Village - Nararvita, under Abhayapuri Legislative Assembly Constituency. After the death of her father, name of her mother, Surjyo Bhanu figured in th