WP(C) 2432/2010 BEFORE THE HON’BLE THE CHIEF JUSTICE MR R S GARG HON’BLE MR JUSTICE H BARUAH (R S GARG, CJ) Heard Mr P Gogoi, learned counsel for the petitioner and Ms B Goyal, lea rned Counsel for the State. With the consent of the learned counsel for the parties, the matter is f inally heard. The petitioner being aggrieved by the order dated 28.1.2008 passed in FT Case No 114/2007 has come to this Court with the submission that on one side th e learned Presiding Officer, Foreigners Tribunal proceeded ex parte and on the o ther even when there was no evidence on record from the side of the complainant / State, simply relied on section 9 of the Foreigners Act, 1946, and came to the conclusion that the burden was required to be discharged by the petitioner the said burden was not discharged wrongly held that the petitioner was a foreigner. It is contended that even in an ex parte matter prima facie evidence is required to satisfy the judicial conscience of the authority in absence of rebu ttal of which it lead to only conclusion that the opposite party is a foreign na tional. The learned counsel for the State, on the other hand, submitted that the re were no need from the side of the complainant to lead any oral or documentary evidence. We have heard the learned counsel for the parties and have perused the o riginal records so also the proceeding recorded by the Foreigners Tribunal. It w ould appear that the notices was issued on 9.5.2007 and thereafter the matter wa s taken up on 7.9.2007, 26.10.2007, 4.12.2007, 8.1.2008. The matter thereafter a djourned to 28.1.2008 and on the said date the learned Tribunal proceeded to rec ord its final order. From the entire perusal of the proceeding it does not appear that any or al evidence in support of the allegation was produced by the complainant or any witness was examined to prove that the petitioner was a foreign national. In abs ence of such evidence in our opinion, the learned Tribunal was not justified in relying upon section 9 of the Foreigners Act, 1946 to record the findings that t he petitioner could not discharge his burden and therefore he could safely be de clared a foreign national. In our opinion, the order passed by the Foreigners Tribunal is contrary to law, it deserves to be and is hereby set aside. The matter is remanded back t o the Foreigners Tribunal with a direction that it would give appropriate opport unity to the petitioner to file his written statement. Further opportunity would be given to the parties to lead evidence documentary / oral and after providing appropriate opportunity to the parties, it shall decide the case in accordance with law. The petitioner shall appear before the learned Tribunal on 28.6.2010 and produce a copy of this order enabling the tribunal to know what it is required to do. In view of the final disposal of the matter, let the records of the Fore igners Tribunal be remitted immediately with a copy of this order. In view of fi nal disposal of the writ petition, the Misc Case is also disposed of.