JUDGMENT AND ORDER : (S.K.Medhi, J) 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 24.02.2023 passed by the learned Foreigners Tribunal 3rd, Hojai at Sankardev Nagar in F.T. (D) Case No. 1550/2015 corresponding to Case No.F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010. 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. As per the projection made in the petition, the aforesaid order is an ex parte one. 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), Nagaon against the petitioner giving rise to the aforesaid F.T.(D) Case No.1550/2015 corresponding to Case No.F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010. (ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner was duty bound to file written statement to prove his citizenship. Though at least 5 dates were fixed for the petitioner to appear and contest, the petitioner had utterly failed to do the same. (iii) The learned Tribunal, after noticing the aforesaid 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 on 24.02.2023, declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Shri J.C. Gogoi, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sarma, learned Additional Senior Government Advocate, Assam. 4. Shri Gogoi, the learned counsel for the petitioner has submitted that the petitioner is an illiterate and rustic villager who is not aware of the technical aspects and therefore there was some default in contesting the case. He has also attributed certain negligence on the part of his counsel in the Tribunal who did not give him proper advice as a result of which, the impugned order has been passed. He has also attributed certain negligence on the part of his counsel in the Tribunal who did not give him proper advice as a result of which, the impugned order has been passed. The learned counsel has also submitted that a complain has been made against the concerned counsel in the Bar Association, Nagaon. 5. The learned counsel has further submitted that the documents which are available and annexed to the writ petition would demonstrate his citizenship which include certain Voter Lists. 6. He accordingly submits that the impugned opinion dated 24.02.2023 be set aside and another chance be given to him to prove his citizenship. 7. Per contra, Shri Sarma, learned Standing Counsel, Home Department has, at the outset emphatically refuted the primary contention made on behalf of the petitioner that the order dated 24.02.2023 of the learned Tribunal is an ex parte order. It is submitted that notices were duly served whereafter, the petitioner had also appeared and also filed his written statement and thereafter, kept on seeking adjournments and there was continuous default. He has also highlighted that initially a final opinion was passed on 06.12.2021 by the learned Tribunal declaring the petitioner a foreigner and such opinion was the subject matter of challenge in WP(C)/5122/2022. This Court vide order dated 18.08.2022 had however set aside the said order by directing the petitioner to appear on a particular date before the Tribunal. However, the petitioner had failed to abide by the said direction and ultimately the impugned order has been passed. He has submitted that the petitioner is not entitled to any equitable relief from this Court. He has relied upon the observations of this Court in the case of Sadar Ali vs- Union of India [order dated 31.08.2020 in WP(C)/ 8489/2019] which reads as follows:- “Having regard to the facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish his claim as not being a foreigner or to refute the allegation that he had illegally entered into the territory of India after 25.03.1971. In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful to take steps to safeguard his interest, he does so at his own risk and peril. In the instant case several opportunities were granted to the petitioner to establish his claim, which he utterly failed to do so. In this context, we may observe that in a proceeding under the FOREIGNERS ACT , 1946 and the Foreigners (Tribunals) Order, 1964, the primary issue for determination is whether the proceedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. The said position would not change even in an ex-parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, where notice was issued and duly served upon the proceedee. In the instant case, the petitioner utterly neglected to participate/contest in the proceedings.” 8. Both Shri P. Sarma, learned State counsel and Shri A.I. Ali, learned Standing Counsel, ECI have endorsed the submissions advanced by the learned Standing Counsel of the Home Department. They have reiterated that the petitioner has acted with utter negligence and not entitled to the equitable relief. 9. The rival contentions have been duly considered. The concerned records of the Foreigners Tribunal placed before this Court have been carefully perused. 10. 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. 10. 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. 11. 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.” 12. The grounds of challenge is default of the lawyer as well as the social status and economic condition of the petitioner. However, it is seen that the explanations / pleadings made in this regard are wholly insufficient and vague. This Court has noticed that there was no complaint in the Bar Council against the concerned lawyer and the complaint appears to be given to the Nagaon Bar Association. 13. As regards the default of the petitioner, certain dates would be necessary to be put on record. The learned Tribunal had issued notice in this case on 24.12.2019 pursuant to which, the petitioner had appeared on 28.02.2020. However, due to situation of Covid-19 (first wave), the matter was adjourned and re-fixed on 19.06.2020. The petitioner had accordingly filed his written statement on 17.11.2020. Thereafter, three dates were fixed on 05.12.2020, 18.12.2020 and 04.01.2021 to enable the petitioner to file his examination-in- chief by way of affidavit. Such affidavit was ultimately filed only on 21.01.2021. Thereafter, three more dates were given followed by the second wave of Covid- 19 and the case was re-fixed on 05.08.2021. The petitioner had appeared on 26.10.2021. Thereafter, the matter had to be adjourned due to the absence of the petitioner on three occasions viz. 26.10.2021, 16.11.2021 and 06.12.2021 when the opinion was given against the petitioner. 14. As observed above, the aforesaid opinion dated 06.12.2021 was the subject matter of challenge in WP(C)/5122/2022 and this Court vide order dated 10.08.2022 had set aside the said opinion with however the following directions: “11. 26.10.2021, 16.11.2021 and 06.12.2021 when the opinion was given against the petitioner. 14. As observed above, the aforesaid opinion dated 06.12.2021 was the subject matter of challenge in WP(C)/5122/2022 and this Court vide order dated 10.08.2022 had set aside the said opinion with however the following directions: “11. The petitioner shall appear before the learned Member, Foreigners’ Tribunal 10th , Nagaon, at Sankardev Nagar, Hojai, Assam, on 31.08.2022, along with a certified copy of this order and shall submit the relevant documents before the concerned Tribunal, subject to payment of Rs. 2,500/- (Rupees Two Thousand and Five Hundred Only) to the District Legal Services Authority, Hojai In the event of adducing any such documents and evidence, as directed above, the learned Tribunal, after considering them, shall proceed with the matter in accordance with law and shall pass an opinion afresh. Needless to say, in the event of failure on the part of the petitioner to appear before the concerned Tribunal on 31.08.2022 and on the subsequent dates, as may be fixed by the said Tribunal, the said authority shall be at liberty to pass necessary order(s) as per law.” 15. It appear from the records of the case that in spite of such clear direction, the petitioner did not appear before the learned Tribunal and seven more dates were given by the Tribunal to enable the petitioner to appear. It was only thereafter that the impugned opinion has been passed on 24.02.2023. 16. The learned counsel for the petitioner had contended that certain important documents have been procured which would have a material bearing in the adjudication of the issue of his citizenship. The said documents have also been enclosed to the writ petition. A cursory glance of the said documents would however reveal that the certified copy of the same was applied on 05.04.2023 which is even after the date of rendering of the second opinion on 24.02.2023 which is the subject matter of challenge. It clearly appears that the directions of this Court in its order dated 18.08.2022 were completely disregarded and the petitioner had chosen not to appear and contest the proceeding before the learned Tribunal. We are of the opinion that such conduct of the petitioner will disentitle him from any equitable relief. 17. It clearly appears that the directions of this Court in its order dated 18.08.2022 were completely disregarded and the petitioner had chosen not to appear and contest the proceeding before the learned Tribunal. We are of the opinion that such conduct of the petitioner will disentitle him from any equitable relief. 17. As regards the reliance upon the new documents made on behalf of the petitioner, this Court is of the view that such documents cannot be looked into by a writ Court for the first time when it was not filed and proved before the learned Tribunal. Though, in an exceptional case wherein a party can conclusively establish that he was not at all aware of a case which was proceeding ex-parte and certain documents are annexed to the writ petition, this Court can come to an ex-facie satisfaction on the issue of citizenship of the said party. However, the general proposition would be that when documents were not proved by the petitioner before the learned Tribunal in accordance with law, the said documents cannot be looked into by this Court as that would amount to dispensing the requirement of proof of documents. In a proceeding under the FOREIGNERS ACT , 1946 and the Foreigners (Tribunals) Order, 1964 for determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee and therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under Section 9 of the aforesaid Act, 1946 which reads as follows: “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.” 18. It is a settled position of law that a proceeding before the Foreigners’ Tribunal cannot be an endless exercise. A coordinate Bench of this Court in the case of Ijjat Ali Vs. It is a settled position of law that a proceeding before the Foreigners’ Tribunal cannot be an endless exercise. A coordinate Bench of this Court in the case of Ijjat Ali Vs. Union of India [Order dated 12.10.2020 of this Court in WP(C)/8361/2019 ] has made the following observations: “Having regard to the undisputed facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish his claim as not being foreigner or to refute the allegation that he had illegally entered into the territory of India after 25.03.1971. In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful to take steps to safeguard his interest, he does so at his own risk and peril.” 19. In the case of Sajiran Nessa Vs. UOI [Order dated 05.01.2021 of this Court in WP(C)/1293/2020] the meaning of sufficient opportunities qua a proceedee before a Foreigners’ Tribunal have been explained. For ready reference, the relevant part is extracted herein below- “Having regard to the facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish her claim as not being a foreigner or to refute the allegation that she had illegally entered into the territory of India after 25.03.1971. In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful to take steps to safeguard his/her interest, he/she does so at his own risk and peril. In the instant case several opportunities were granted to the petitioner to establish her claim, which she utterly failed to do so. A person who is not diligent and/or is unmindful to take steps to safeguard his/her interest, he/she does so at his own risk and peril. In the instant case several opportunities were granted to the petitioner to establish her claim, which she utterly failed to do so. In this context, we may observe that in a proceeding under the FOREIGNERS ACT , 1946 and the Foreigners (Tribunals) Order, 1964, the primary issue for determination is whether the proceedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. The said position would not change even in an ex-parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee. In a situation where no evidence is adduced or the burden is not discharged, the only option left to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated, where notice was issued and duly served upon the proceedee. In the instant case, the petitioner utterly neglected to participate/contest in the proceedings.” 20. In the case of Ayub Ali vs. Union of India reported in (2016) 1 GLR 375 , it has been laid down that the principles of natural justice cannot be put in a strait jacket formula and in view of the unabated influx, the situation is required to be balanced. It has further been laid down that if a proceedee chooses not to contest a proceeding, he does so at his own peril. In the case of Kadbhanu Bhanu Begum vs. Union of India reported in (2016) 4 GLR 182 , this Court has laid down the requirement of approaching a writ court with clean hands so as to be entitled to the equitable relief. 21. In view of the aforesaid facts and circumstances, we are of the opinion that the final order dated 24.02.2023 passed by the learned Foreigners Tribunal 3rd, Hojai at Sankardev Nagar in F.T. (D) Case No. 1550/2015 corresponding to Case No. F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010 does not call for any interference. Accordingly, this writ petition being devoid of merits, stands dismissed. Accordingly, this writ petition being devoid of merits, stands dismissed. 22. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 23. The records of the Foreigners Tribunal 3rd, Hojai at Sankardev Nagar in F.T. (D) Case No. 1550/2015 corresponding to Case No.F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010 be returned forthwith along with a copy of this order.