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. 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 the Voters List of 2011 at Srl. No. 45, House No. 12 in village – Nararvita under Abhayapuri LAC. 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 the Voters List of 2011 at Srl. No. 45, House No. 12 in village – Nararvita under Abhayapuri LAC. 10) Petitioner in her written statement stated that actual name of her grandfather was Eso Monsi and wrongly written as Esub Munsi and as such Eso Monsi @ Esob Monsi son of Osman Ali @ Osman Seikh is the same and one person and that name of her grandfather Eso Monsi figured in the Voters Lists of 1966 and 1970 vide Srl. Nos. 293&286 respectively, House No. 79 atVillage-Nararvita under Abhayapuri LAC. 11) She stated that Bahis Ali,her son was born to her during the wedlock with Jeher Ali @ Johur Uddin and that the name of her father-in-law Kaddus Ali figured in the Voters Lists of 1966, 1970 and 1997 vide Srl. Nos. 8, 10 and 630 respectively, House No.3, 3 and 184 respectively at Village-Khudrakhowa under Jania LAC. After the death of her father-in-law, name of her mother-in-law Japa Khatun figured in the Voters List of 2010 vide Srl.No. 809, House No. 184 at village-Khudrakhowa under Jania LAC. 12) She stated that she has submitted birth certificate of her child, Gaon Burah certificate, Panchayat linkage certificate and land records to prove her nationality and linkage with her father. 13) The petitioner on 13.06.2017 filed her evidence-on-affidavit with 12 (twelve) exhibits which are ? 12) She stated that she has submitted birth certificate of her child, Gaon Burah certificate, Panchayat linkage certificate and land records to prove her nationality and linkage with her father. 13) The petitioner on 13.06.2017 filed her evidence-on-affidavit with 12 (twelve) exhibits which are ? (i) Certified copy of the Voters List of the year 1966 pertaining to 42 No. Abhayapuri (SC) Legislative Assembly Constituency of Village-411 No. Narar Vita Part-II, consisting the names of Eisu Munsi, Naser Sheikh, Taser Ali, all sons of late Usman Seikh; Malancha Bewa, wife of late Usman Seikh; Hukuman Nessa, wife of Eisu Munsi and Sujiman, wife of Naser Ali, as Exhibit-1 (ii) Certified copy of the Voters List of the year 1970 pertaining to 42 No. Abhayapuri (SC) LAC of Village-411 No. Narar Vita Part-II, consisting the names of Eisu Munsi, Naser Sheikh, Taser Ali, all sons of late Usman Seikh; Malancha Bewa, wife of late Usman Seikh; Hukuman Nessa, wife of Eisu Munsi and Sujiman Nessa, wife of Naser Ali, as Exhibit-2 (iii) Translated copy of the Voters List of the year 1997 pertaining to 34 No. Abhayapuri North LAC of Village-174 No. Narar Vita Part-II, consisting the names of Niyat Ali, son of Esob Munsi and Surjya Bhanu, wife of Niyat Ali, as Exhibit-3 (iv) Translated copy of the Voters List of the year 2011 pertaining to 34 No. Abhayapuri North LAC of Village-179 No. Narar Vita Part-II, consisting the names of Surjya Bhanu, wife of Niyat Ali; Mojiran Nessa, wife of Saijuddin; Aijuddin, Saijuddin and Sajidul Islam, all sons of Niyat Ali, as Exhibit-4 (v) Birth Certificate of Bahej Ali, Date of Birth-01.01.2001, son of Bahatan Nessaand Johar Ali issued on 03.06.2014 by Registrar of Birth and Death, Moinbari Public Health Centre, District-Barpeta, as Exhibit-5 (vi) Certified copy of the Voters List of the year 1966 pertaining to 51 No. Jania LAC of Village-Khudrakhowa, Part No.110, Police Station-Baghbar, Mouza-Titapani, Sub- Dvision-Barpeta, District-Kamrup consisting the names Rustam Ali, son of Mina Seikh; Annessa Biwi, wife of Rustam Ali and Kuddush Ali, son of Rustam Ali, as Exhibit-6 (vii) Translated copy of the Voters List of the year 1970 pertaining to 51 No. Jania LAC of Village-Khudrakhowa, Part No.111, Police Station-Baghbar, Mouza-Titapani, Sub- Dvision-Barpeta, District-Kamrup consisting the name of Kuddush Ali, son of Rustam, as Exhibit-7 (viii) Translated copy of the Voters List of the year 1997 pertaining to 44 No. Jania LAC of Village-Khudrakhowa, Part No.60, Police Station-Baghbar, Mouza-Titapani, Sub- Dvision-Barpeta, District-Barpeta consisting the names of Kuddush Ali, son of Rustam and Japa Khatun, wife of Kaddus, as Exhibit-8 (ix) Translated copy of 2010 Voters List pertaining to 44 No. Jania LAC ofVillage- Khudrakhowa,Part No.60, Police Station-Kalgachia, Sub-Dvision–Barpeta, District- Barpeta, consisting the name of Japa Khatun, wife of Kaddus, as Exhibit-9 (x) Certificate dated 22.01.2017 issued by Abdul Barek, Gaon Burah of Village-Khudrakhowa in the name of the petitioner Bahatun Nessa, wife of Johar of Village-Khudrakhowa, as Exhibit-10 (xi) Certificate dated 18.08.2016issued by the Secretary of Rangapani Gaon Panchayat in the name of the petitioner Bahatun Nessa, daughter of late Niyat Ali of Village-Nararbhita Part-II, as Exhibit-11 (xii) Chita relating to 2 Bighas – 1 katha – 4 Lechas of land of Dag No. 275, Patta No. 47 of village-Nararbhita Part-II, Lat No.5, Mouza & Circle – Srijangram, Sub-Division – North Salmara, District-Bongaigaon reflecting the name of Bahatan Nessa, daughter of Niyat Ali, as Exhibit-12 14) On 02.02.2018 the petitioner was queried by the Tribunal during which she replied that she was 42 years old having five brothers and five sisters amongst whom she is the eldest and that her father had already expired about 12 years back and mother is alive and that she did not see her paternal grandfather but saw her grandmother, who died about two years back and that she has four children. 15) During her cross examination, on 24.06.2019 the petitioner stated that she has 10 siblings, amongst which she is the eldest, her paternal grandmother died three years back and that her paternal uncles are Akkas Ali, Arman Ali and Samar Ali and that she has four children. 16) The petitioner adduced evidence of one Surjo Bhanu, wife of Niyat Ali as DW-2 whom she claimed to be her mother, who filed her evidence-on-affidavit on 05.03.2019. Said DW-2 Surjo Bhanu, in her evidence-in-chief stated that she is the wife of Niyat Ali; petitioner is her eldest daughter, who is about 43 years old and married to Jaher Ali @ Jaher Uddin; that actual name of her father-in-law is Eso Monsi, but wrongly written as Esub Munsi in the Voter list of 1997, who had two brothers Naser Sheikh and Taser Ali; Malanso Bewa was her grandmother-in-law; that name of her father-in-law Eso Monsi, his two brothers and the name his mother figured in the Voters List of 1970 under Abhayapuri LAC; her name along with the name of her husband Niyat Ali figured in the VotersList of 1997 under 34 Abhayapuri North LAC vide Srl. No. 28, 29 House No.12 Village-Nararvita Part-II, District-Bongaigaon; her husband expired about 12 years back, her name with her three sons Aijuddin Saijuddin and Sajidul Islam and daughter-in-law Mojirun Nessa (wife of Saijuddin) figured in the Voter List of 2011 at 34 No. Abhayapuri North LAC; she has five sons and five daughters, amongst which the petitioner is the eldest daughter; her husband had three brothers and two sisters and that her husband had land documents and her name along with her children including the petitioner figured as land holder of her husband’s land at Dag No. 275, Patta No. 47 and that she has been allotted with Voter ID Card No.JGY1315000, which she has submitted (Exhibit-13). 17) In her cross examination on 24.06.2019 said DW-2 Surjo Bhanu deposed before the Tribunal that she is 62 years old, have 10 children and her husband expired 13 years back. 18) Petitioner also adduced evidence of one Abdul Khalek Talukdar, Secretary of Rangapani Gaon Panchayat as DW-3, who issued a certificate in the name of the petitioner on 18.08.2016, Exhibit-11. 18) Petitioner also adduced evidence of one Abdul Khalek Talukdar, Secretary of Rangapani Gaon Panchayat as DW-3, who issued a certificate in the name of the petitioner on 18.08.2016, Exhibit-11. 19) Said DW-3 on 06.02.2020 in his evidence-in-chief deposed before the Tribunal that since 06.06.2014 he has been working as the Secretary of Rangapani Gaon Panchayat till 02.12.2016 and presently, serving as the Secretary of Pasaaria Khoragaon Gaon Panchayat, District- Bongaigaon. He deposed that the petitioner had applied for issuance of a certificate and accordingly, he had issued the said certificate, Exhibit-11. During his cross examination on 06.06.2020 he stated that there are 8 (eight) villages under Rangapani Gaon Panchayat and that he personally does not know the petitioner. He also exhibited his Identity Card as Gram Panchayat Secretary, issued by the Chief Executive Officer, Zilla Parishad, Bongaigaon. 20) The petitioner also adduced evidence of one Saijuddin, son of Niyat Ali as DW-4, who in his evidence-in-chief deposed that petitioner is his eldest sister and she was born 43 years back at village Nararvita Part-II and on attaining the age of majority, she was married to Jaher Ali @ Jaher Uddin son of Kaddus Ali of Village-Khudrakhowa. He also stated same as that of DW-2 with regard to his grandfather Eso Monsi; that name of his father is Niyat Ali and mother is Surjo Bhanu whose names figured in the Voter List of 1997, his name along with his mother, DW-2 and wife Mojiran Nessa figured in the Voter List of 2011; he stated that he has five sisters and four brothers, of which the petitioner is the eldest sister; his father had three brothers, their names along with the name of the petitioner figured in the land document of his father, that he had been issued with a Voter ID Card No. JGY1315033, which he had placed before the Tribunal as Exhbit-14. 21) During his cross examination said DW-4 Saijuddinon 26.07.2023 deposed before the Tribunal that he had produced himself to depose on behalf of his sister Bahatan Nessa, the petitioner. Niyat Ali was his father, who expired about 15 years back, his mother is Surjo Bhanu Bewa, who resides along with his younger brother Jaidul Islam at Bongaigaon, Esue Monsi was his grandfather, Sukumon Bewa expired about 8 years back and that the petitioner resides at Khudrakhowa. Niyat Ali was his father, who expired about 15 years back, his mother is Surjo Bhanu Bewa, who resides along with his younger brother Jaidul Islam at Bongaigaon, Esue Monsi was his grandfather, Sukumon Bewa expired about 8 years back and that the petitioner resides at Khudrakhowa. He stated that for the first time he had cast vote in the year 2005 along with their mother and they are ten siblings out of which petitioner is the eldest, he was born at village- Nararvita,he is aged about 45 years and that no other case is pending against any of his family members. 22) In her written statement filed on 19.04.2017 before the Tribunal, the petitioner did not name her paternal (s), aunt(s) or her own siblings. She also did not state about them in her evidence-on-affidavit submitted before the Tribunal on 13.06.2017. 23) It is seen from the above that the petitioner exhibited 12 (twelve) Nos. of documents and also adduced evidence of herself. In addition to that she had also adduced evidence of three others as defence witnesses, namely, one Surjo Bhanu, wife of Niyat Ali as DW-2, one Abdul Khalek Talukdar, Secretary of Rangapani Gaon Panchayat as DW-3 and one Saijuddin, son of Niyat Ali as DW-4. 24) From the impugned Final Order dated 10.11.2023 passed in the Case No. FT(5 th ) 319/2017, we have seen that the Tribunal discussed the Exhibits 10, 11 and 12 only. The said Tribunal discarded Exhibits 10 and 11 as both the certificates – Exhibit 10 issued by the Gaon Burah of Khudrakhowa on 22.01.2017 in favour of the petitioner as wife of Johar, resident of village Khudrakhowa and Exhibit 11 issued by the Secretary of Rangapani Gaon Panchayat (DW-3) on 18.08.2016 in favour of the petitioner as daughter of Niyat Ali, resident of village Nararvita Part-II on the ground that both the certificates contain the National Emblem, used inunauthorized manner rendering both the documents inadmissible in evidence as been settled by the Court in WP(C) No. 5852/2016. 25) It is also seen that the Tribunal while issuing the impugned Final Order dated 10.11.2023 considered the judgments of the Hon’ble Supreme Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, reported in (2003) 8 SCC 745 and LIC Vs. 25) It is also seen that the Tribunal while issuing the impugned Final Order dated 10.11.2023 considered the judgments of the Hon’ble Supreme Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, reported in (2003) 8 SCC 745 and LIC Vs. Ram Palsingh Bisen reported in (2010) 4 SCC 491 in opining the petitioner to be a foreigner of post 1971 stream. 26) But we noticed that the Tribunal in the impugned Final Order dated 10.11.2023 passed in Case No. FT(5 th ) 319/2017 did not discuss the evidence of DW-2 Surjo Bhanu, wife of Niyat Ali and DW-4, Saijuddin, son of Niyat Ali adduced on behalf of the petitioner nor gave any reason in discarding their evidence. 27) Similarly, from the impugned Final Order dated 10.11.2023 passed in said Case No. FT(5 th 319/2017 it is also seen that the Tribunal did not discuss about the Exhibits 1 to 9 exhibited by the petitioner nor stated as to why those were not considered. 28) For not considering and discussing those Exhibits ? 1 to 9 exhibited by the petitioner as well as for not discussing the evidences of DWs 2 and 4, adduced on behalf of the petitioner, noted above, in the impugned Final Order dated 10.11.2023 passed by the Foreigners Tribunal, 5 th , Barpeta, Assam in said Case No. FT(5 th ) 319/2017 and coming to the conclusion that the petitioner is a foreigner of post 1971 stream, we are of the opinion that the said Final Order is bad in law and cannot sustain. 29) Accordingly, we set aside the impugned Final Order dated 10.11.2023 passed by the Foreigners Tribunal, 5 th , Barpeta, Assam in said Case No. FT(5 th ) 319/2017 and remand back the matter to the Foreigners Tribunal, 5 th , Barpeta, Assam for its fresh decision in the matter. 30) The Foreigners Tribunal, 5 th , Barpeta, Assam shall now decide the reference afresh, i.e., the Case No. FT(5 th ) 319/2017 by giving its fresh opinion considering the evidences already adduced by the petitioner and concerned witnesses as well as all the Exhibits already exhibited by the petitioner and her other witnesses in the case. 30) The Foreigners Tribunal, 5 th , Barpeta, Assam shall now decide the reference afresh, i.e., the Case No. FT(5 th ) 319/2017 by giving its fresh opinion considering the evidences already adduced by the petitioner and concerned witnesses as well as all the Exhibits already exhibited by the petitioner and her other witnesses in the case. 31) The Foreigners Tribunal, 5 th , Barpeta shall dispose of said Case No. FT(5 th ) 319/2017 by rendering a fresh decision in accordance with law, as directed above, however, not later than a period of 90 (ninty) days from the date of the record of said case placed before the Tribunal concerned. 32) It is also made clear that the Tribunal shall not be influenced by any observation made by this Court relating to the evidence and Exhibits adduced by the petitioner and other defence witnesses, made herein above. 33) The interim protection and interim bail granted to the petitioner earlier on 19.01.2024 stands merged with this order. 34) Registry shall return the record of Case No. FT(5 th ) 319/2017 along with a copy of this order to the Foreigners Tribunal, 5 th , Barpeta forthwith. 35) Registry shall also forward a copy of this order to the Superintendent of Police (Border), Barpeta for its information. 36) With the above observation and direction, this writ petition stands disposed of.