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 30.11.2016 passed by the learned Foreigners’ Tribunal No. 5, Morigaon in F.T.(D) Case No. 426/16. 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) The reference was made by the Superintendent of Police (B), Morigaon District, against the petitioner giving rise to the aforesaid F.T.(D) Case No. 426/16.

                   (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 dated 16.07.2016 along with certain documents and had claimed to be an Indian Citizen. He had adduced evidence as DW1 and there are two other witnesses, namely, a neighbour as DW2 and a cousin as DW3.

                   (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. Huda, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department & NRC, Assam; Shri AI Ali, learned Standing Counsel, Election Commission of India; Shri P. Sarma, learned Additional Senior Government Advocate, Assam and Shri MR Adhikari, learned CGC.

4. Shri Huda, 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 on affidavit of the three numbers of witnesses and also the following documentary evidence

                   i. Voter List, 1965 (Exbt -A)

                   ii. Voter List, 1970 (Exbt – B)

                   iii. Voter List, 1989 (Exbt – C)

                   iv. Copy of Jamabandi (Exbt – D)

                   v. Gaonburah Certificate (Exbt – E)

                   vi. Voter List, 1985 (Exbt – F)

5. The learned counsel for the petitioner has submitted that the linkage of the petitioner with his father has been properly established. In the voter lists of 1965 & 1970, the name of the father of the petitioner A Jabbar appears and in the voter list of 1989, the name of the petitioner is there, who is shown to be son of the A Jabbar. He has submitted that in the Jamabandi, which has been exhibited as Exbt. D, the name of the petitioner appears against Sl. No. 15. He has also referred to the Voter List of 1985 containing the name of the one Jamina Khatun stated to be the wife of A Jabbar. Reference has also been made to the voter list of 1993 where the name of the petitioner appears. Subsequent voters lists of 2010 and 2016 have been referred to containing the names of the petitioner along with one Habij Begum, stated to be his wife.

6. The learned counsel for the petitioner has submitted that the evidence was adduced by the petitioner as DW1 along with two others, namely, a neighbour and a cousin. The petitioner in his evidence, had however mentioned that though he had casted vote several times, due to insertion of "D" he could not cast vote. A neighbour had deposed as DW2 who had proved the voter lists of 1965, 1970 and 1989. He had also proved the Jamabandi and the Gaonburah Certificate. DW3 is a cousin, who had stated that the petitioner is the son of his uncle and they were three brothers. He had also disclosed the name of the mother of the petitioner and proved the voter list of 1985 containing the name of the mother and the brothers of the petitioner.

7. The learned counsel for the petitioner has relied upon the judgment of this Court dated 27.04.2023 passed in WP(C)/2150/2017 [Abul Kalam Vs. UoI and Ors.] whereby the writ petition was allowed and the petitioner in that case was declared to be an Indian Citizen. It is submitted that the petitioner in that case is the brother of the present petitioner and therefore, he should get the same benefit. He accordingly submits that the impugned opinion is unsustainable in law and liable to be interfered with.

8. Per contra, Shri J. Payeng, learned Standing Counsel, Home Department & NRC has categorically refuted the stand taken on behalf of the petitioner. He 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. He 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.

9. The learned Standing Counsel has submitted that to discharge the burden of proof, the first requirement of a proceedee is to disclose all the relevant facts in the written statement. However, in the WS filed on 16.07.2016 by the petitioner, there is no disclosure regarding the grandparents, mother and the siblings of the petitioner. Nothing has been stated as to what happened to the parents after a certain period of time. There is no mention of any mutation of land in the year 1985 and the pleadings made in paragraph 8 of the WS are not only vague but incomplete.

10. So far as the depositions are concerned, Shri Payeng, the learned Standing Counsel has submitted that the petitioner as DW1 did not state anything relevant so as to discharge his burden. All the documents have been introduced by DW2, who is a neighbour. He has questioned the competence and the authority of a neighbour to prove the documents as he is not even a family member. He has submitted that DW2 is not even the custodian of such documents and for the first time had mentioned about a sister of the petitioner. He has submitted that in the voter list of 1985, the age of the projected mother of the petitioner was shown to be 40 and therefore, the year of birth would be around 1945. He has submitted that the age would not match with the age of the person said to be the brother of the petitioner. By relying upon the decision of this Court in the case of Momin Ali Vs. UoI & Ors. reported in 2017 (2) GLT 1076, he has submitted that there cannot be any variance between the written statement and the evidence and the same would not amount to a valid discharge of the burden of the proof.

11. Shri Payeng, learned Standing Counsel has also relied upon the judgment of the Hon’ble Supreme Court in the case of Central Council for Research in Ayurvedic Sciences and Anr. Vs. Bikartan Das & Ors [Civil Appeal No. 3339 of 2023] to contend 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. He submits that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed.

12. The rival contentions have been duly considered. We have also carefully examined the records of the learned Tribunal which were requisitioned vide an order dated 05.05.2017.

13. 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.

14. 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 case of Central Council for Research in Ayurvedic Sciences (supra) 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.”

15. The principal ground of challenge is that the documents have not been properly appreciated and without there being any rebuttal evidence, the depositions made on behalf of the petitioner should have been deemed to be accepted.

16. It is seen that in the written statement filed on 16.07.2016 by the petitioner, there is no disclosure of the relevant facts. As pointed out, there is no disclosure of the names of the grandparents, mother and siblings. With regard to the land document sought to be relied upon, this Court finds force in the contention advanced by the learned Standing Counsel that the pleadings are absolutely lacking and rather incomplete. For ready reference, the relevant pleadings made in the written statement are extracted below-

                   "8. That, there is a land record in the name of the father of the opp. party recorded as –

                   Annexure E

                   Photo-Copy of land record enclosed herewith."

17. In this connection, one may refer to the case of Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665, wherein the following requirements have been laid down:

                   “26. 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.”

18. As regards the deposition of the petitioner as DW1, to a query made by the learned Tribunal, he had stated that he did not remember the date and year of his birth as well as the name of his grandmother. He had also disclosed of having two elder brothers and also named the elder sister-in-law. In so far as the documentary evidence are concerned, this Court finds force in the argument advanced by the learned Standing Counsel that all those documents have not been proved by the proper person. DW2 who is a neighbour cannot be deemed either to be custodian of the documents mentioned or would have any personal knowledge and therefore, the documents cannot be regarded as admissible evidence. This Court has also noticed that to the query put by the learned Tribunal, DW2 had mentioned that the petitioner had a sister Amina Khatun. Such disclosure appears to have been made for the first time which would raise further doubts on the veracity of the evidence.

19. So far as the voter list of 1993 is concerned, apart from the same not being proved in the learned Tribunal, the same is merely a photocopy and does not have any evidentiary value. As regards the voters list of 2010 and 2016 are concerned, those were not proved or even referred to by the petitioner before the learned Tribunal in his written statement or in the evidence.

20. Apart from the fact noted above that the written statement did not disclose any siblings, DW2 and DW3 have mentioned that the petitioner have two brothers and one sister. It is very strange and surprising that none of those projected brothers or sister had come to the witness box to depose in favour of the petitioner. It is settled law that in matters of the present nature, the insistence on discharging the burden of proof by a proceedee is a mandatory requirement. We are also of the opinion that such requirements are in sync with the objectives of the scheme of the Statute and the seriousness of the matter involving influx of illegal migrants in the country. The gravity of the issue was itself highlighted by the Hon'ble Supreme Court in the case of Sarbananda Sonowal (supra), wherein the following observations have been made-

                   “32. The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order. Kautilya in his masterly work "The Arthashastra" has said that a King had two responsibilities to his State, one internal and one external, for which he needed an army. One of the main responsibilities was Raksha or protection of the State from external aggression. The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country. (Arthashastra by Kautilya - translated by Shri L.N. Rangarajan, who was in Indian Foreign Service and ambassador of India in several countries - published by Penguin Books - 1992 Edn. - page 676). The very first entry, namely, Entry 1 of List I of the Seventh Schedule is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilization". In fact entries 1 to 4 of List I of Seventh Schedule mainly deal with armed forces. Article 355 of the Constitution of India reads as under :-

                   355. Duty of the Union to protect States against external aggression and internal disturbance. - It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution."

                   The word "aggression" is a word of very wide import. Various meanings to the word have been given in the dictionaries, like, "an assault, an inroad, the practice of setting upon anyone; an offensive action or procedure; the practice of making attacks or encroachments; the action of a nation in violating the rights especially the territorial rights of another nation; overt destruction; covert hostile attitudes." The word "aggression" is not to be confused only with "war". Though war would be included within the ambit and scope of the word "aggression" but it comprises many other acts which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the following definition of "war" as given in Hall on International Law has been quoted with approval :-

                   "When differences between States reach a point at which both parties resort to force, or one of them does acts of violence, which the other chooses to look upon as a breach of the peace, the relation of war is set up, in which the combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."

21. In this connection, we may remind ourselves to the opening remarks made by the Hon’ble Supreme Court in the case of Assam Sanmilita Mahasangha & Ors. vs Union of India reported in (2015) 3 SCC 1 involving the State of Assam which is facing a serious issue of influx of illegal migrants. The same reads as follows:

                   “A Prophet is without honour in his own country. Substitute 'citizen' for 'prophet' and you will get the gist of the various writ petitions filed under Article 32 of the Constitution of India assailing Section 6A of the Citizenship Act.”

22. We have also noted that the age disclosed in the affidavit supporting the present writ petition would indicate that the year of birth of the petitioner would be 1976 and therefore, in the year 1989, his age would have been 13 years. However, in the voters list of the year 1989, the age of the petitioner is shown to be 26 years. We have also noted that the Jamabandi has been obtained on 13.10.2016 where the name of the projected father of the petitioner still existed. However, in the cross-examination, the petitioner had stated that his father had expired in the year 1980.

23. The settled law in the scheme of the present status is that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and the said burden never shifts. The said procedure is clearly laid down in Section 9 of the Act of 1946 and 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.”

24. In this connection, the observation of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration reported in AIR 1963 SC 1035 which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India reported in AIR 1961 SC 1526 in the context of Foreigners Act, 1946 would be relevant which is 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.”

25. The requirement of adducing of rebuttal evidence would only arise when a proceedee discharges his / her burden of proof by cogent, reliable and acceptable evidence and in this case, the said burden has not been discharged. As observed above, there is no acceptable document which could prove a citizenship of the petitioner.

26. With regard to the aspect of the decision in the case of Abul Kalam (supra), we are of the considered opinion that the facts of that case are clearly distinguishable from the facts of the present case. Though, it has been projected that the petitioner in that case is the brother of the present petitioner, the materials available in the present case would not establish the same. We have also noted that the name of the said Abul Kalam (supra) appears in the voter list of 1985 whereas there is no such voter list qua the petitioner in spite of the fact that he claims to have been eligible to vote in the said year. We are also of the opinion that the decision in the Abul Kalam (supra) has to be understood to be a decision which is required to be confined to the facts of that case only.

27. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 30.11.2016 passed by the learned Foreigners’ Tribunal No. 5, Morigaon in F.T.(D) Case No. 426/16 does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed.

28. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. The interim order passed earlier stands vacated.

29. The records of the aforesaid F.T.(D) Case No. 426/16be returned to the learned Foreigners Tribunal No. 5, Morigaon forthwith along with a copy of this order.