ORDER : (K.R. Surana, J.) Heard Mr. M.U. Mondal, learned counsel for the petitioner. Also heard Ms. R. Devi, learned CGC for the respondent no.1; Mr. G. Sarma, learned standing counsel for the FT matters, representing respondent nos. 2, 4 and 6; Mr. H.K. Hazarika, learned Govt. Advocate for respondent no. 5; and Ms. N. Bedi, learned counsel appearing on behalf of Ms. P. Barua, learned standing counsel for the respondent no.3. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 29.09.2022, passed by the learned Member, Foreigners Tribunal No.4th , Barpeta, in F.T. Case No. FT- 1153/2016 [arising out of IMDT Case No. 2830/01], by which the petitioner, namely, Pahar Ali @ Md. Lalchan Ali, was declared to be a foreigner of post 25.03.1971 stream. 3) The matter was listed for consideration of the prayer made by the petitioner for bail. In view of the inordinate delay in assailing the opinion dated 29.09.2022, and moreover, the effort which would be taken to examine the records so as to consider the prayer for bail, with the consent of the learned counsel for all sides, this writ petition was taken up for hearing. 4) The reference bearing I.M.D.T. Case No. 2830/01, against the petitioner was originally forwarded by the Superintendent of Police (Border), Barpeta under the erstwhile Illegal Migrants (Determination by Tribunal) Act, 1985 [hereinafter referred to as the IM(D)T Act for brevity], expressing doubt about the nationality of the petitioner. The Supreme Court of India, vide decision rendered in the case of Sarbananda Sonowal v. Union of India & Ors., (2005) 5 SCC 665 , declared the IM(D)T Act and rules thereunder as ultra vires and directed that the pending cases be transferred to the Foreigners Tribunal under the Foreigners Act, 1946 to be tried under the Foreigners (Tribunals) Order, 1964. Accordingly, the said proceeding was transferred to the Foreigners Tribunal No.4th , Barpeta. 5) The petitioner, on receipt of the notice, entered appearance before the said learned Tribunal and submitted his written statement of defence. Accordingly, the said proceeding was transferred to the Foreigners Tribunal No.4th , Barpeta. 5) The petitioner, on receipt of the notice, entered appearance before the said learned Tribunal and submitted his written statement of defence. In the written statement, the petitioner had stated that his actual name is Pahar Ali, which is written in the voter list, land record, Gaonburah certificate, except in the voter list of 1989, where his name is written as Lalchan Miah but in case record, the name is written as Lalchan Ali . Hence, it was stated that Lalchan Miah @ Lalchan Ali @ Pahar Ali, son of Mofiz Uddin @ Mofiz Ali @ Mofiz Sheikh is one and same person. It was also stated that the actual and correct name of his father is Mofiz Sheikh, which is written in the voter list of 1966, but in other voter list, land record and case record, his father’s name is written as Mofiz Uddin Ahmed, Mofiz Ali and as such, Mofiz Sheikh @ Mofiz Ali @ Mofiz Uddin is one and same person. It was stated that he was born and brought up at village- Balikuri Non-K, Mouza- Jania, P.S. Kalgachia, District Barpeta, Assam and his father, who was a resident of said village, was a voter in the year 1966 and 1970 and he had shifted to Bordoloni, Mandia Pathar due to purchase of land. The petitioner has referred to his wife, father-in-law and mother-in-law, which is not relevant for this case. It was stated that two sons, namely, Usman Ali, Jaydul Islam @ Jahidul Islam and one daughter, Batasi Nessa @ Amina Khatun were born out of their wedlock. 6) It may be stated that though reference was made only against the petitioner, the proceeding was drawn up against the petitioner and his wife. However, by an order dated 29.08.2018, it was ordered that the reference would only proceed against the petitioner. Accordingly, the petitioner, who had already filed his evidence-on-affidavit on 02.06.2018, was allowed to file a fresh evidence-on-affidavit, which was filed on 09.11.2018. However, by an order dated 29.08.2018, it was ordered that the reference would only proceed against the petitioner. Accordingly, the petitioner, who had already filed his evidence-on-affidavit on 02.06.2018, was allowed to file a fresh evidence-on-affidavit, which was filed on 09.11.2018. 7) The petitioner had examined himself as DW-1 and as per his evidence-on-affidavit, he had exhibited the following documents, viz., (i) certified copy of voter list of 1966 (Ext.1); (ii) certified copy of voter list of 1970 (Ext.2); (iii) certified copy of voter list of 1989 (Ext.3); (iv) certified copy of voter list of 1997 (Ext.4); (v) certified copy of voter list of 2005 (Ext.5); (vi) certified copy of voter list of 2010 (Ext.6); (vii) certified copy of voter list of 2017 (Ext.7); (viii) certified copy of voter list of 1966 (Ext.8); (ix) certified copy of voter list of 1970 (Ext.9); (x) certified copy of voter list of 1989 (Ext.10); (xi) certified copy of voter list of 1997 (Ext.11); (xii) certified copy of voter list of 2010 (Ext.12); (xiii) certified copy of voter list of 2017 (Ext.13); (xiv) Gaonburah certificate (Ext.14); (xv) birth certificate (Ext.15 to Ext.17); (xvi) death certificate (Ext.18); (xvii) elector photo identity card (EPIC for short) (Ext. 19 to Ext.24); panchayat certificate (Ext.25). 8) However, it may be mentioned herein that as per the Tribunal’s record, vide order dated 08.12.2021, the evidence-on-affidavit of DW-3 was filed with documents and on his prayer, the original Ext-B (sic. certified copy of 1970) and Ext.I (land deed) had been returned by the learned Tribunal. The learned Member, while counter-signing the exhibited documents has marked the exhibited documents as follows, viz., certified copy of electoral roll of 1966 (Ext.A); certified copy of electoral roll of 1970 (Ext.B); certified copy of electoral roll of 1989 (Ext.C); certified copy of electoral roll of 1997 (Ext.D); certified copy of electoral roll of 2005 (Ext.E); certified copy of electoral roll of 2010 (Ext.F); certified copy of electoral roll of 2017 (Ext.G); land revenue paying receipt (Ext.H); registered sale deed (Ext.I); Gaonburah certificate of Pahar Ali (Ext.J); EPIC of Pahar Ali (Ext.K); land revenue paying receipt (Ext.L); land revenue paying receipt (Ext.M); certified copy of electoral roll of 1997 (Ext.N); and EPIC of Jabed Ali, son of Mafej Uddin (Ext.O). 9) It may also be stated that the petitioner, as DW-1 had filed his evidence-on-affidavit on 09.11.2018. 9) It may also be stated that the petitioner, as DW-1 had filed his evidence-on-affidavit on 09.11.2018. The next two dates were fixed for cross- examination of DW-1 on 26.03.2019 and 31.05.2019, but DW-1 was not cross- examined. Rather, it appears that he was examined by the learned Tribunal on 31.05.2019. In his examination by the learned Tribunal on 31.05.2019, amongst others, he had stated that they are three brothers and two sisters. His brothers are Jabed Ali and Hamed Ali. He had stated that his father had died when he was 10/15 years old. He did not vote with his brothers. 10) The next date of the case was fixed on 24.06.2019, for further evidence. As per records, the evidence-on-affidavit of DW-2 was filed on 21.10.2019, without marking any document as exhibit and he was examined by the learned Tribunal and discharged on 08.12.2021. The evidence-on-affidavit of DW-3 was filed on 08.12.2021, without marking any document as exhibit and he was examined by the learned Tribunal and discharged on 17.02.2022. On 11.05.2022, the evidence-in-chief of the Gaonburah (DW-4) was recorded and he was examined by the learned Tribunal and discharged on the same date and he had also not marked any document as exhibit. 11) Hamed Ali, son of Late Mafez, who was examined as DW-2, in his evidence-on-affidavit, has projected that the petitioner is his elder brother and projected that he had been born and brought-up at village- Balikuri Non-K. He has reiterated all that was stated by the petitioner in his evidence-on- affidavit. He had also stated that the petitioner has two uncles, namely, Ketu Miya and Rohij Uddin. He has also stated that his two brothers are Jabed Ali and Pahar Ali @ Lalchan Ali. He had also stated that the petitioner has two sons, namely, Osman Ali and Joydul Islam @ Jahidul Islam and two daughters, Batasi Nessa @ Amina Khatun and Fulmala Aktar. Although the DW-2 had stated that he is a voter of the year 2005 in village- Aligaon under Baghbar LAC and that he had submitted land record and revenue receipt relating to the petitioner and that he has an EPIC. He had also stated that the petitioner has land deed and jamabandi with their family members. However, he had not exhibited any documents. He had also stated that the petitioner has land deed and jamabandi with their family members. However, he had not exhibited any documents. In his examination by the learned Tribunal, the DW-2 had stated that the petitioner was 8/9 years older than him. His father had no brothers. He had stated that they are three brothers and three sisters, namely, (1) Pahar Ali, (2) Jabed Ali, (3) Hamed Ali, (4) Mohum, (5) Batasi and (6) Anjan Nessa. He had stated that there is no reference against any other member of his family except Pahar Ali. He had stated in his examination by the learned Tribunal that his father had died 5/6 years ago. He had stated that he was born and brought- up at Village- Balikuri. Thereafter, they shifted to village- Aligaon, where they had resided for about 5 years and then he shifted to village- Shilashi and the petitioner shifted to village- Mandia, where he is still residing. He had cast his vote since 2010. He does not know the name of wife of Pahar Ali. The petitioner has two sons and two daughters. The petitioner is aged about 60 years and his father died in village- Shilashi. He had denied that the petitioner is not his brother. 12) Jabed Ali, who has projected that the petitioner is his elder brother, was examined as DW-3. In his evidence-on-affidavit, he had stated that he was born and brought-up at village- Balikuri Non-K. From there, their family shifted to various places. The petitioner had shifted to Bordoloni, Mandia Pathar and he had shifted to Silochi Pathar due to purchase of land. He had stated that in the voter list of 1966, Mofez Sheikh, his father; Mahi Juddin, his uncle; and Ful Khatun, his aunt were voter. He had also stated that in the voter list of 1970, the name of his uncle is wrongly written as Nai Juddin Sheikh instead of Mahi Juddin. His father- Mafez Sheikh, his uncle- Nai Juddin Sheikh @ Mahi Juddin; and Aunty- Ful Khatun were also voter. He had stated that in the voter list of 1989, his step mother- Lalbhanu, petitioner- Lalchan Miah, and sister-in-law – Rupsi Nessa are also voters, and that the name of grandfather (father of step- mother) is Hanif, whose name is written there. He had stated that in the voter list of 1989, his step mother- Lalbhanu, petitioner- Lalchan Miah, and sister-in-law – Rupsi Nessa are also voters, and that the name of grandfather (father of step- mother) is Hanif, whose name is written there. He had stated that the voter list of 1997 contains the name of petitioner, his step-mother- Lalbhanu, sister-in- law – Rupsi Nessa. His two uncles are Kety Miya and Mahi Juddin @ Nai Juddin. He has stated that he has two brothers, Pahar Ali @ Lalchan Ali and Hamed Ali. The voter list of 1997 contains his name; Mafez Uddin, his father; Jabeda Khatun- his mother. He had stated that he had submitted his voter-id. Though DW-3 has referred to certified copy of voter list and voter-id, but he has not mentioned the exhibit numbers. DW-3 had not exhibited any documents. In his examination by the learned Tribunal, DW-3 had stated that his father had died 8 years ago. His mother is Jabeda Nessa. The petitioner is his step-brother and his mother’s name is Lalbhanu. He had stated that both mothers are still alive. His father had two brothers, Raijuddin and Ketu. They are three brothers and three sisters, (1) Lalchan- step brother; (2) Jabed (himself); (3) Hamed; (4) Anjan Nessa- step sister; (5) Mohiran; (6) Batashi Nessa. He has stated that the petitioner is 20/30 years older to him. The other name of the petitioner is Pahar Ali. His grand-father’s name is Hussain Ali. He was born and brought-up at village- Silachi. The petitioner resides at Mandia Pathar. His father died in village- Silachi. He had denied that the petitioner is not his brother. 13) In his examination-in-chief, DW-4 had stated that Ext.J is the certificate issued by A. Hakim, his father, as a in-charge of Charge no.20, of which he was appointed as the Gaonburah. Bahar Ali to whom the said certificate was issued is known to him. He is a resident of No.2, Mandia Bordoloni. He had not exhibited any documents. In his cross-examination, he has stated that he does not know on what basis his father had issued the said certificate. He has no idea about the format of certificate printed with National Emblem. He is a resident of No.2, Mandia Bordoloni. He had not exhibited any documents. In his cross-examination, he has stated that he does not know on what basis his father had issued the said certificate. He has no idea about the format of certificate printed with National Emblem. 14) The learned Tribunal had discarded the evidence of the petitioner, amongst others, by returning a finding to the following effect: “During cross examination the witness D.W.2 had stated that his father Mafez Ali was died about 5/6 years ago and D.W.3 stated that his father Mafez was died 8 years ago whereas O.P. stated that his father was died about 40/45 years ago. 15) Accordingly, it was held that there were contradiction and if the father of the petitioner had died 40/45 years ago, how his name appeared in voter list of 1997 (Ext.N). 16) The manner in which the learned Member has conducted the proceeding discloses that the learned Tribunal has conducted this particular proceeding in accordance with established procedure. a. Firstly, when the DW-1 has exhibited his documents and marked those as Ext.1 to Ext.25, the learned Tribunal was not authorised to give another set of marking to the exhibited documents without mentioning it in the order-sheet. b. The exhibited documents morefully referred to in paragraph 7 when compared to exhibited documents morefully referred to in paragraph 8, ex facie shows that there is a substitution of exhibited documents. The “proved-in-original” exhibits are available at pages 106 to 125. Thus, there appears to be unauthorised substitution of exhibited documents because there is no mention in the order-sheet as to what necessitated substitution of exhibits. c. Interestingly, as per office-note appended below the order dated 11.05.2023, the learned advocate for the petitioner was allowed to receive return of Ext. Nos. A, C to H, L, M and N as well as “bail bond papers- registered sale deed”. d. There is no order in the order-sheet as to whether the cross- examination of the DWs was refused by the counsel for the State. There is also not mentioned in any of the relevant order that the DW nos. 2, 3 and 4 were examined by the learned Tribunal. Moreover, the opinion by the learned Tribunal is also not based on the answers given by the DWs to the examination by the learned Tribunal. There is also not mentioned in any of the relevant order that the DW nos. 2, 3 and 4 were examined by the learned Tribunal. Moreover, the opinion by the learned Tribunal is also not based on the answers given by the DWs to the examination by the learned Tribunal. This appears to be contrary to the provision of Section 165 of the Evidence Act, 1872. e. Moreover, in this case, the petitioner and his two witnesses had filed his evidence-on-affidavit. Hence, there was no necessity under any provision of the Foreigners (Tribunals) Order, 1964 for the learned Tribunal to again examine the DW-1 to DW-3 on oath. Thus, the question by the learned Tribunal partakes the character of questions put to the said DWs in exercise of power under Section 165 of the Evidence Act, 1872. f. As per the record of examination of DW-4, which is available at page-61 of the Tribunal’s record, the DW-4 was examined, cross- examined and discharged. However, as per order dated 11.05.2022, the “The Gaonburah (DW-4) is examined and discharged.” Thus, there is no answer as to who did the cross-examination. 17) Thus, the proceeding was conducted in a casual manner. 18) As this Court is examining the impugned opinion in exercise of certiorari jurisdiction, this Court cannot exercise appellate jurisdiction. Therefore, there is no alternative but to remand the matter to the Foreigners Tribunal for a fresh decision, which shall be done in strict and scrupulous compliance of law and established procedure for trial of Foreigners Tribunals cases. 19) Resultantly, the matter is remanded back to the said learned Tribunal at the stage of evidence of DWs. 20) The petitioner, namely, Pahar Ali @ Md. Lalchan Ali, who is represented by his learned counsel, is directed to appear before the said learned Tribunal on or before 30.07.2025, without any requirement of any fresh notice to be issued by the said learned Tribunal. The petitioner, by producing a certified copy of this order, shall wait for further directions and fixing of next date by the said learned Tribunal. 21) It is clarified that if the petitioner fails to appear before the said learned Tribunal within the time allowed, it would be open to the said learned Tribunal to treat the petitioner as absent on call and it would be permissible to pass such further order as may be deemed fit and appropriate. 21) It is clarified that if the petitioner fails to appear before the said learned Tribunal within the time allowed, it would be open to the said learned Tribunal to treat the petitioner as absent on call and it would be permissible to pass such further order as may be deemed fit and appropriate. 22) On the prayer made by Mr. G. Sarma, learned standing counsel for the FT matters, the records of the tribunal is handed over to him for returning it back to the concerned Tribunal. 23) The parties are left to bear their own cost. 24) The petitioner is also directed to produce a certified copy of this order before the Superintendent of Police (Border), Barpeta to bring the order to the notice of the said authority.