JUDGMENT : 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 27.03.2025 passed by the learned Foreigners’ Tribunal 7th, Tezpur in F.T. Case No. FTDC 1835/2016, arising out of Ref No.TZP.(B)/796/B/98. 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), Sonitpur District, against the petitioner giving rise to the aforesaid F.T. Case No. FTDC 1835/2016. (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 along with certain documents and had also adduced evidence as DW1. (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 Ms. P.M. Ahmed, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri H.K. Sarma, learned Government Advocate, Assam; Ms. S. Katakey, learned Standing Counsel, ECI and Shri M.R. Adhikari, learned CGC. We have also carefully examined the records which were requisitioned vide an order dated 06.08.2025. 4. Ms. 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, she has referred to the evidence on affidavit of the petitioner and also the following documentary evidence: 1. Ext 1: Voter Lists of 1966 of No. 78 Balipara LAC. 2. Ext 2: Voter Lists of 1971 of No. 74 Rangapara LAC 3. Ext 3: Voter Lists of 1989 of No. 74 Rangapara LAC 4. In this regard, she has referred to the evidence on affidavit of the petitioner and also the following documentary evidence: 1. Ext 1: Voter Lists of 1966 of No. 78 Balipara LAC. 2. Ext 2: Voter Lists of 1971 of No. 74 Rangapara LAC 3. Ext 3: Voter Lists of 1989 of No. 74 Rangapara LAC 4. Ext 4: Certificate of Goanburah of Village Khanamukh regarding the death of the father of the petitioner on 20.02.2008. 5. Ext 5: LVO Report. 5. The learned counsel has submitted that apart from the Voters List of 1966, 1971 and 1989, there is another voter list of 1996 which due to in advertence was not produced before the learned Tribunal. It is submitted that the first two voter lists of 1966 and 1971 contain the name of the father of the petitioner, Abdul Hamid and in the voter list of 1989, the names of both the petitioner and his father figure. The fact of the death of the father in the year 2008 has been proved by Ext. 4 Certificate issued by the Gaonburah of village Khanamukh from where the linkage is established. The Local Verification Officer’s report has also been relied upon to establish the leakage. 6. She has submitted that the voter lists of 1989 have been ignored by the learned Tribunal and there is no discussion or finding on the same causing grave prejudice to the petitioner. She accordingly submits that the present writ petition be allowed and the impugned opinion be set aside. 7. Per contra, Shri Sharma, learned Standing Counsel, Home Department 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. 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. 8. He further submits that so far as the documents relied upon by the petitioner are concerned, a part of the same cannot be relied upon and the document as a whole is to be read. As regards the Voters Lists of 1966 and 1971, those pertain to the projected father of the petitioner. However, the list of the year 1966 is of the No. 78 Balipara LAC while that of the year 1971 is of another constituency, namely, No. 74 Rangapara LAC and there is no explanation. As regards the voter lists of 1989, he has denied the allegation that the same was not discussed in the impugned opinion and though the same contains the name of the petitioner with his projected father, it would not be a conclusive proof as there are in consistencies. In this regard, he has relied upon a judgment of a Coordinate Bench of this Court reported in 2023 (4) GLT 246 [ Aziz Miya Vs. Union of India ]. 9. The learned Standing Counsel has also submitted that there is no document prior to 1989 to link the petitioner with the projected father in spite of the fact that in the said year of 1989, the petitioner was aged about 30 years. He has submitted that the projected father of the petitioner had died in the year 2004 and till such period also, there is no document. There is no explanation regarding the aspect of shifting / change of constituency. He has also relied upon the judgment of this Court in the case of Sayam Uddin Vs. Union of India reported in 2019 (4) GLT 456 wherein the aspect of the reports of the Local Verification Officer (LVO) and Electoral Registration Officer (ERO) has been dealt with and the following observations were made: “ 22. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a "D" voter in the electoral roll is a quasi judicial exercise. In so far Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a "D" voter in the electoral roll is a quasi judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.” 10. The learned Standing Counsel has submitted that the aforesaid judgment which was rendered by an Hon’ble Single Judge was upheld by the Hon’ble Division Bench in WA/170/2019 vide order dated 29.07.2019. He has further submitted that in the subsequent case of Shukurjan Nessa Vs. Union of India [order dated 28.02.2025 passed in WP(C)/245/2019] , the said view has been reiterated. 11. The learned Standing Counsel further submits 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 learned counsel for the other respondents have supported the views of the learned Standing Counsel and have added that the impugned opinion is in accordance with law and the present challenge is devoid of any merits. 13. The rival contentions have been duly considered. The records of the learned Tribunal placed before this Court have been carefully perused. 14. The learned counsel for the other respondents have supported the views of the learned Standing Counsel and have added that the impugned opinion is in accordance with law and the present challenge is devoid of any merits. 13. The rival contentions have been duly considered. The records of the learned Tribunal placed before this Court have been carefully perused. 14. 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. 15. 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 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.” 16. 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. We have however noticed that so far as the voters list of 1966 and 1971 are concerned, those pertain to the projected father of the petitioner. The next voter list which has been relied upon is of the year of 1989 which allegedly contains the names of the petitioner and his father. It is seen that in the said voter list, the age of the petitioner has been shown to be 30 years and there is not a single document prior to that to establish the link. There is no explanation of the long gap from 1971 to 1989 regarding the projected father. It is seen that in the said voter list, the age of the petitioner has been shown to be 30 years and there is not a single document prior to that to establish the link. There is no explanation of the long gap from 1971 to 1989 regarding the projected father. Though the petitioner in his written statement had pleaded that his father had expired in the year 2004, there is no document from 1989 till 2004 of the petitioner to show his linkage with his father. Though, a voter list of 1996 has been sought to be annexed to the writ petition, the same cannot be looked into by this Court in exercise of its certiorari jurisdiction as the decision under challenged has to be scrutinized on the basis of the factors which were before the decision making authority. 17. It is a settled law that materials fact are required to be pleaded in the written statement and cannot be introduced out of the blue. Nonetheless, in the interest of substantial justice, a cursory glance of the said document would show that the photocopy is illegible and blurred from which no finding can be given. In any case, the so called voter list of the year 1996 would not have much relevancy. 18. The settled law in this field 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.” 19. In this connection, the observation of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. 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.” 20. On the aspect of the evidentiary value of a voter list, law has been settled that such voter list would not be a conclusive proof. In this regard, the observations made by this Court in the case of Aziz Miya (supra) may be referred which read as follows: “ 15. On the aspect of the evidentiary value of a voter list, law has been settled that such voter list would not be a conclusive proof. In this regard, the observations made by this Court in the case of Aziz Miya (supra) may be referred which read as follows: “ 15. We are constrained to observe that a mere claim by a suspected person by referring to a voters' list claiming a person therein to be his father is not a conclusive proof and that by doing so, the person has discharged the burden that he is not a foreigner. This is because there is also a further requirement to prove that the person who is reflected in the voters' list relied upon is actually the father of the person who makes the claim and the claim will have to be substantiated with further material/materials acceptable in law.” 21. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 30.01.2020 passed by the learned Foreigners’ Tribunal, 7th, Tezpur in F.T. Case No. FTDC 1835/2016 does not call for any interference. 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 aforesaid F.T. Case No. FTDC 1835/2016 be returned to the learned Foreigners’ Tribunal 7th, Tezpur forthwith along with a copy of this order.