S.K. 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 13.01.2023 passed by the learned Foreigners Tribunal Bongaigaon No. 2, Abhayapuri in F.T. Case No. 1603/2008(Ref- BNGN IMDT case no.456/04) 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), Bongaigaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 1603/2008.

(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 24.05.2016 along with certain documents.

(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. Alom, learned counsel for the petitioner. We have also heard Ms A. Verma, learned Standing Counsel, Home Department, Assam, Shri H. Kuli learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sarma, learned Additional Senior Government Advocate, Assam. We have also carefully examined the materials placed before us.

4. Shri S. Alom the learned counsel for the petitioner has submitted that the petitioner could prove his case with cogent evidence and therefore, 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 two numbers of witnesses including that of the proceedee and also the following documentary evidence.

i. Voter list, 1959 (Exbt -1)

ii. Voter list ,1966 (Exbt – 2)

iii. Voter list ,1970 (Exbt – 3)

iv. Periodic Khiraj patta (Exbt – 4)

v. Leaving certificate (Exbt – 5)

vi. Marriage kabinnama (Exbt – 6)

vii. Voter list , 1997 (Exbt – 7)

viii. Voter list , 2008 as (Exbt – 8)

ix. Voter list,2013 (Exbt – 9)

x. Voter Identity Card (Exbt-10)

xi. Link Certificate ( Exbt-11)

xii. Pan Card (Exbt-12)

xiii. SBI Passbook (Exbt-13)

5. Per contra, Ms Verma, 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. This is mandated under section 9 of the aforesaid Act, 1946. However, in the instant case, the petitioner utterly failed to discharge the burden. 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.

6. She further submits that so far as the documents are concerned, a part of the same cannot be relied upon and the document, as a whole is to be read. In any case, she submits that there are gross discrepancies in the name of the projected father of the petitioner and there is not even a single document to show the link of the petitioner with her father. She points out that the name of the father of the petitioner which was shown as Nobjel Ali should have been Nobjesh. So far as the School Certificate is concerned dated 18.08.1999, the same was not proved. Even, the certificate by the concerned Gaon Panchayat dated 02.05.2016 was not proved and was not even mentioned in the written statement.

7. In support of her submissions, Ms Verma, the learned Standing Counsel has placed reliance upon the case of Rupajan Begum vs. Union of India reported in (2018) 1 SCC 579, wherein the procedure to be followed including the aspect as to how a document before the Tribunal is to be proved have been laid down. Reliance is also placed on the case of Rashminara Begum vs. Union of India reported in 2017 (4) GLT 346 wherein it has been laid down that it is the duty of a proceedee to make all disclosures in the written statement.

8. The rival contentions have been duly considered. The records of the Tribunal placed before this Court have been carefully perused.

9. 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.”

10. In this connection, the observation 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 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.”

11. 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.

12. 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.”

13. The principal ground of challenge is that the documents have not been properly appreciated and that there were sufficient materials to hold the petitioner to be a citizen of India.

14. This Court has however noticed that there is not even a single document to show the link of the petitioner with her projected father. Further, while the name of the father appears as Nobjel Ali in the voters list of 1970, the petitioner has contended that the name of her father is Nobjesh Ali. None of the other documents namely, the K.P. Patta, i.e., land document as well as the voters list of 2008 and 2013 establishes any link of the petitioner with her father. The School Certificate dated 18.08.1999 has not been proved and the Gaon Panchayat Certificate dated 02.05.2016 was not even mentioned in the Written Statement filed by the petitioner in May, 2016.

15. In view of the aforesaid facts and circumstances, we are of the opinion that the final order dated 13.01.2023 passed by the learned Foreigners Tribunal Bongaigaon No. 2, Abhayapuri in F.T. Case No. 1603/2008(Ref- BNGN IMDT case no.456/04) does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed.

16. The actions consequent upon the opinion rendered by the learned Tribunal would follow, in accordance with law.