Sanjay Kumar Medhi, J.

1. The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India by putting to challenge the opinion rendered vide impugned order dated 08.02.2019 passed by the learned Foreigners Tribunal, Hojai in F.T.(D) Case No. 1448/2015 corresponding to SP’s FT Case No.597/13. By the impugned judgment, the petitioner, who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971.

2. The facts of the case may be put in a nutshell as follows:

                   (i) A reference was made by the Superintendent of Police (B), Hojai District, against the petitioner giving rise to the aforesaid F.T.(D) Case No. 1448/2015 corresponding to SP’s FT Case No.597/13.

                   (ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner had filed the written statement on 22.04.2018 along with certaindocumentsand adduced evidence through 3 nos. of DWs.

                   (iii) The learned Tribunal, after considering the facts and circumstances and taking into account of the provisions of Section 9 of the Foreigners’ Act, 1946 had come to a finding that the petitioner, as opposite party, had failed to discharge the burden cast upon him and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri S. Ahmed, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Deptt., Shri G. Sarma, learned Standing Counsel, NRC, Shri P. Sarma, learned GA, Assam, Shri N. Kalita, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, ECI and Ms. B. Sarma, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 21.06.2019.

4. Shri Ahmed, the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and in view of the fact that there was no rebuttal evidence, the learned Tribunal should have accepted the said proof and accordingly hold the petitioner to be a citizen of India. In this regard, he has referred to the evidence adduced by him as DW1, his father as DW2 and his neighbour as DW3 and also the following documentary evidence.

                   (i) Ext. 1 is the certified copy of Voter List of 1966

                   (ii) Ext. 2 is the certified copy of Voter List of 1970.

                   (iii) Ext. 3 is the certified copy of Voter List of 1975

                   (iv) Ext. 4 is the certified copy of the Voter List of 1985

                   (v) Ext. 5 is the certified copy of the Voter List of 1989

                   (vi) Ext.6 is the certified copy of the Voter List of 1997

                   (vii) Ext. 7 is the certified copy of the Voter List of 2005

                   (viii) Ext. 8 is the certified copy of the Voter List of 2008

                   (ix) Ext. 9 is the certified copy of the Voter List of 2010

                   (x) Ext. 10 is the certified copy of the Voter List of 2013

                   (xi) Ext. 11 is the certified copy of the Voter List of 2016

                   (xii) Ext. 12 is the certified copy of the Voter List of 2017

                   (xiii) Ext. 13 is the Elector Photo Identity Card.

                   (xiv) Ext. 14 is the School Certificate.

                   (xv) Ext. 15 is the Driving Licence.

                   (xvi) Ext. 16 is the Pan card.

                   (xvii) Ext. 17 is the Gaonburah Certificate.

                   (xviii) Ext. 18 & 18 (A) is the Sale Deed.

5. The learned counsel for the petitioner has submitted that in the written statement, all material disclosures were made. Reliance has been placed in the Voters Lists of 1966 and 1970 containing the names of the grandfather, grandmother and granduncle. The next Voters List relied upon is of the year 1985 containing the names of the grandparents, father, uncle and two others followed by the Voters List of 1989 wherein there is an addition of two more names. The next three Voters Lists are of the years 1997, 2005 and 2011 having similar names. The Voters List of 2013 has been relied upon containing the name of the petitioner. Another Voters List of 2017has been relied upon containing the names of the parents. The petitioner has also relied upon a Gaonburah certificate dated 03.10.2013, school transfer certificate dated 30.12.2007, EPIC of the petitioner and one Sale deed of his grandfather as purchaser. The learned counsel for the petitioner has also drawn the attention of this Court to the evidence adduced by himself, his father as DW2 and one neighbour as DW3. He has submitted that the evidence adduced would fully prove that the petitioner is a citizen of India.

6. In support of his submission, the learned counsel for the petitioner has relied upon the following case laws:

                   (i) 2013 (1) GLT 809 (State of Assam & Ors. vs. Moslem Mondal & Ors.)

                   (ii) 2013 (1) GLT 941 (Abdul Khalique vs. Union of India & Ors.)

                   (iii) 2012 (5) GLT 162 (Samad Ali @ Samat Ali vs. Union of India & Ors.)

                   (iv) 2015 (2) GLT 617 (Abdul Matali @ Mataleb vs. Union of India & Ors.)

                   (v) (2007) 1 SCC 174 (Sarbananda Sonowal (II) vs. Union of India)

7. The cases of Moslem Mondal (supra)and Abdul Khalique (supra) have been cited in support of the contention that in case of lack of cross examination and rebuttal evidence, the opinion should be in favour of the proceedee. The case of Samad Ali (supra) has been cited to bring home the contention that opportunity may be granted to prove documents which could not be done before the Tribunal due to illiteracy or ignorance. In the case of Abdul Matali (supra), it has been laid down the minor discrepancy in the particulars of documents may be overlooked. The case of Sarbananda Sonowal (II) (supra) has been cited to contend that genuine citizens are not to be declared as foreigners and adequate care is required to be taken.

8. The learned counsel for the petitioner accordingly submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and therefore, the same requires interference.

9. Per contra, Ms. Verma, the learned Standing Counsel, Home Department has categorically refuted the stand taken on behalf of the petitioner. She submits that a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, the relevant facts are especially within the knowledge of the proceedee and accordingly, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872 and this is mandated under Section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. It is also submitted that rebuttal evidence is not mandatory in every case and would be given only if necessary. She further submits that the evidence of a proceedee has to be cogent, relevant, which inspire confidence and acceptable and only thereafter, the question of adducing rebuttal evidence may come in.

10. The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is totally vague. There is no date or year of the birth of the petitioner and there are no details of the family members or the siblings. In this connection, she has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in(2005) 5 SCC 665:

                   “17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1) (d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

11. She has also raised an objection with regard to the presentation of the writ petition by contending that the documents enclosed to the writ petition are different than those appearing in the records of the Tribunal. She has submitted that such conduct would disentitle the petitioner from any equitable relief.

12. She has submitted that the petitioner has not been consistent in stating his date of birth and there is a finding in the opinion that there are three dates of birth which are discernible from the records. She has also submitted that the emphasis on behalf of the petitioner is more on the Voters List of others than his own Voters List. She has also pointed out in paragraph 15 of the written statement, an incorrect averment has been made that in 2017, the name of the petitioner had appeared with his family members. It is submitted by the learned Standing Counsel that there is not even a single Voters List to connect the petitioner with his parents. She has also pointed out that neither the Gaonburah Certificate nor the School Certificate has been proved in accordance with law. She has submitted that the EPIC of the petitioner would not be determinative of his citizenship.

13. By submitting that mere enlistment in a Voters List would not be conclusive on the aspect of citizenship, the learned Standing Counsel has relied upon the case of Aziz Miya vs. Union of India & Ors. reported in 2023 (4) GLT 246 and the following observations have been pressed into service:

                   “14. On facts of the present case, we have noticed that the inquiring authority in its report dated 28.03.2001 had stated that during the inquiry the petitioner had produced the voters' list of 1966 which belonged to his father and therefore, the petitioner is not a foreigner.”

14. She has also submitted that the case of Abdul Matali (supra)has been distinguished in the subsequent decision of Basiron Bibi vs. Union of India & Ors. reported in 2018 (1) GLT 372, the relevant observations being extracted herein below:

                   “30. Reliance placed in the case of Abdul Matali @ Mataleb (Md.) (supra), can be of no assistance to the petitioner inasmuch, as it has already been clarified by this Court in previous decisions that the said decision did not lay down any law and was a decision confined to the facts and circumstances of that case. Regarding discrepancies in the voters' lists which the petitioner contended were not her creation being entered into by officials of Election Commission and therefore should not be used adversely against the petitioner, such contention is without any substance. The voters' lists were adduced as evidence by the petitioner herself to prove her case that she was not a foreigner but a citizen of India. Petitioner cannot insist that only that portions of the voters' lists which are in her favour should be accepted and those portions going against her should be over-looked. This is not how a document put forward as a piece of evidence should be examined. The document has to be appreciated as a whole.”

15. In support of her submission that a document has to be proved from contemporaneous records, the learned Standing Counsel has relied upon the judgment passed in the case of Romila Khatun vs. Union of India reported in 2018 (4) GLT 373 and the following observations have been pressed into service.

                   “20. It is trite that documentary evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the document. Proof of document is one thing and proof of contents is another. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. …”

16. She has also drawn the attention of this Court to the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347wherein certain observations regarding exercise of Certiorari jurisdiction have been made which read as follows:

                   “9. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.”

17. She has also relied upon the case of the Hon’ble Supreme Court in Rupajan Begum vs. Union of India reported in(2018) 1 SCC 579, wherein it has been laid down that a document has to be proved on two aspects, firstly, the authenticity of the same and secondly, the authenticity of the contents.

18. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated.

19. The learned counsel for the rest of the respondents have supported the submissions advanced on behalf of the Home Deptt. & NRC and have prayed for dismissal of the writ petition. They have submitted that this Court in exercise of its Certiorari jurisdiction does not act as an Appellate Court and it is only the decision making process which can be the subject matter of scrutiny. It is submitted that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed. They have further submitted that the procedure adopted for adjudication of a reference by a Foreigners Tribunal is summary in nature and there is also a time frame for completion. It is also submitted that there is a question of national security by the unabated influx of foreign nationals and before any action is taken, the proceedee is given an opportunity whereby he or she is required to prove the citizenship through cogent, credible and acceptable evidence.

20. The rival submissions made have been duly considered and the materials placed before this Court including the records of the Tribunal have been carefully perused.

21. With regard to the aspect of burden of proof as laid down in Section 9 of the Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts. In the said Section, there is non-obstante clause that the provisions of the Indian Evidence Act would not be applicable. For ready reference, Section 9 is extracted hereinbelow-

                   “9. Burden of proof.—If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.”

22. In this connection, the observations of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context of Foreigners Act, 1946 would be relevant which are extracted hereinbelow-

                   “22. This Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including their arrest, detention and confinement. The most important provision is Section 9 which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. In Union of India v. Ghaus Mohd. the Chief Commissioner of Delhi served an order on Ghaus Mohammad to leave India within three days as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be prima facie material on the basis of which the authority can proceed to pass an order under Section 3(2)(c) of the Foreigners Act, 1946. In appeal the Constitution Bench reversed the judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent.”

23. Before embarking to adjudicate the issue involved vis-a-vis the submissions and the materials on record, we are reminded that a Writ Court in exercise of jurisdiction under Article 226 of the Constitution of India would confine its powers to examine the decision making process only. Further, the present case pertains to a proceeding of a Tribunal which has given its findings based on the facts. It is trite law that findings of facts are not liable to be interfered with by a Writ Court under its certiorari jurisdiction.

24. Law is well settled in this field. The Hon’ble Supreme Court, after discussing the previous case laws on the jurisdiction of a Writ Court qua the writ of certiorari, in the recent decision of Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023] has laid down as follows:

                   “49. Before we close this matter, we would like to observe something important in the aforesaid context: Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.

                   50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

                   51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.”

25. In the instant case, the written statement is absolutely vague and apparently, has not met the requirements as laid down by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). There is a requirement to disclose the following:

                   (i) his date of birth;

                   (ii) place of birth

                   (iii) name of his parents

                   (iv) their place of birth and citizenship

Further, there may be a requirement to give the details of the grandparents. It has been stated that all these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State.

26. So far as the Voters Lists are concerned, those of the years 1966 and 1970 pertain to the grandparents and granduncle. There is however a discrepancy in the name of the grandmother which can be overlooked. Those Voters List would be relevant to establish a link of the petitioner who is apparently born in the year 1978, i.e., post 1971. The Voters List which contains the name of the father of the petitioner is of the year 1985 which is written as Atasur Rahman, aged 27 years. The names of the grandparents however changes from A. Latif and Akukon Nessa to Abdul Latif and Angur Nessa. There are few others names in the said Voters List, who are projected to be the uncle and aunt of the petitioner. The next Voters List projected is of 1989 where the name of the father is stated to be Ataur Rahman, aged 30 years. The name of the grandmother under goes a further change as Angurun Nessa. It may be noted that on each Voters List, there is a change in the House Nos. from 67, 120 and 199. The next Voters List is of the year 1997 containing the names of the projected parents and few others including the grandmother. The House Nos. further changes to 100. The name of the petitioner however does not feature in this list in spite of the fact that he had attained the age of voting prior to that. It may be noted that as per the School certificate produced by the petitioner, his date of birth is 12.05.1978. Even in the next two Voters Lists of 2005 and 2011, the petitioner does not figure with the members of the projected family. For the first time, the name of the petitioner features in the Voters List of 2013 where his name is alone without any family members and his age is shown to be 24. Such projection is wholly inconsistent as from the documents relied upon by the petitioner, he was born in the year 1978 and therefore should have been around 35 years. What is intriguing is that the Voters List of 2017 has been relied upon containing the names of the projected parents and even in this list, his name is not there. There is further change in the House No. to 205.

27. The Gaonburah certificate dated 03.10.2013 has not been proved and would therefore not be relevant. Similarly, the School Transfer Certificate dated 30.12.2007 was not proved. The EPIC of the petitioner will not be a proof of citizenship and the same only serves as an Identity Card and for availing certain services. The Sale Deed in the name of the grandfather would not be relevant inasmuch as no link could be established with the petitioner by any credible documentary evidence.

28. As regards the oral evidence, those were adduced by the petitioner, the projected father and a neighbour. It is well established that oral evidence alone would not be sufficient to discharge the burden under Section 9. It is also strange that when the petitioner claimed to have a number of siblings, the evidence was adduced by a neighbour as DW3. In any case, the cursory glance of the same would show that the deposition was not based on any documents.

29. As regards the reliance on the cases of Moslem Mondal(supra) and Abdul Khaleque (supra) are concerned, the same have to be read together with the observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). Though the observations have already been extracted above, the relevant part is reiterated which reads as follows:

                   “After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

30. The ratio laid down in the case of Samad Ali (supra) will be applicable only when there are ex-facie materials which would make a material difference in the decision of the Tribunal and were not considered. As regards the reliance on the case of Abdul Motali (supra), we find force in the contention that the said judgment has to be understood and confined to the facts of this case which is clarified and distinguished in the subsequent decision of Basiron Bibi (supra). There is absolutely no dispute with the proposition and direction of the Hon’ble Supreme Court in the subsequent case of Sarbananda Sonowal (II) (supra) that no genuine citizens are to be thrown out and adequate care is required to be taken. We are of the view that the aforesaid directions stand duly complied with as the learned Tribunal has given full and adequate opportunity to the petitioner to prove his citizenship in accordance with law. On the other hand, the Hon’ble Supreme Court, in the said case had deprecated the move of the Central Government to circumvent the mandamus issued in the first case of Sarbananda Sonowal (I) . In fact, the directions issued in this regard by Supreme Court in the first case was attempted to be nullified by way of a subordinate legislation which the Hon’ble Supreme Court had severely criticized.

31. We are of the view that the petitioner, as proceedee had failed to discharge his burden to prove his citizenship which has been rightly decided by the learned Tribunal.

32. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 08.02.2019 passed by the learned Foreigners Tribunal, Hojai in F.T.(D) Case No. 1448/2015 corresponding to SP’s FT Case No.597/13 does not call for any interference.

33. The writ petition accordingly stands dismissed. Interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

34. The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.