JUDGMENT : 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 the impugned order dated 14.09.2018 passed by the learned Foreigners’ Tribunal (2nd) Nagaon in F.T. Case No. 2223/2011 arising out of SPs F.T. Ref. Case No. 1258/1998. 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), Nagaon District, against the petitioner giving rise to the aforesaid F.T. Case No. 2223/2011 arising out of SPs F.T. Ref. Case No. 1258/1998; (ii) Vide an opinion dated 31.10.2016, the learned Tribunal had declared the petitioner a foreigner. However, since the aforesaid opinion was an ex parte one, an application was filed for setting aside the ex parte order which was also rejected vide an order 14.09.2017. Both the aforesaid orders were assailed in WP(C)/2119/2018. The said writ petition was allowed by this Court vide an order dated 16.05.2018 with a direction to produce the petitioner before the learned Tribunal which was to proceed with the Reference. (ii) As per the 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 adduced evidence through himself and three other witnesses. (iii) The learned Tribunal, after considering the facts and circumstances and taking into account 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 T.K. Dey, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A.I. Ali, 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 03.12.2021. 4. We have also heard Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned Addl. Sr. Govt. Advocate, Assam; Shri A.I. Ali, 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 03.12.2021. 4. Shri Dey, 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 petitioner and following documentary evidence: (i) Certified copy of voter list in the year 2005 (Ext. – 1); (ii) Certified copy of voter list in the years 1993 (Ext. – 2); (iii) Certified copy of voter list in the year 2010 (Ext. – 3); (iv) Certified copy of voter list in the year 2016 (Ext. – 4); (v) Copy of Jamabandi (Ext. – 5) and (vi) Certified copy of voter list in the year 1965 (Ext. – 6). 5. The learned counsel has submitted that the Head Master of the No.1 Sonajuri LP School had issued a certificate dated 16.11.2017 wherein the names of his father and mother are clearly stated. It further states that the petitioner had concluded his Class-III examination and left school on 31.12.1994 and in the Admission Register, his date of birth was recorded as 01.01.1984. He has thereafter referred to a Voters List of 1959 containing the name of one A. Sobhan who is said to be the grand-father of the petitioner. The same also contains the name of one A. Jabbar stated to be his uncle. He has also relied upon a Voters List of 1965 containing the name of A. Jabbar, the uncle of the petitioner. The petitioner has also placed reliance upon Voters List of 1971 containing the names of his father as Siraj, son of Sobhan and mother as Halima. In the said voters list, there are also the names of Sobhan the grand- father of the petitioner and one Sahara Banu who is projected to be the grand- mother. The petitioner has also placed reliance upon Voters List of 1971 containing the names of his father as Siraj, son of Sobhan and mother as Halima. In the said voters list, there are also the names of Sobhan the grand- father of the petitioner and one Sahara Banu who is projected to be the grand- mother. The petitioner has also relied upon a Voters List of 1977 containing the name of his father as Siraj Uddin and mother as Halima Khatun. 6. The learned counsel for the petitioner has submitted that evidence was adduced by 4 nos. of witnesses, including his father, brother and the Headmaster of the School which are cogent and reliable. He has also submitted that the Headmaster, as DW4, has produced the result sheet containing the name of the petitioner. He accordingly submits, that there were sufficient materials from which a conclusion can be arrived at that the petitioner is a citizen of India. 7. Per contra, Shri G. Sarma, learned Standing Counsel, Home Department as well as 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 inspires confidence and is acceptable and only thereafter, the question of adducing rebuttal evidence may arise. 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, he has submitted that those of the years 1959, 1971 and 1977 were not proved before the learned tribunal and, therefore, cannot be introduced before this Court which is exercising certiorari jurisdiction. As regards, the voters lists, he has submitted that those of the years 1959, 1971 and 1977 were not proved before the learned tribunal and, therefore, cannot be introduced before this Court which is exercising certiorari jurisdiction. He submits that in any case, those will not have any material bearing. He has submitted that similarly, the school certificate and the result sheets were not proved and have been introduced only in the writ proceeding. As regards the Voters List of 1993, he has submitted that though one Musstt. Rohima Khatun has been projected to be the sister, the same has not been revealed in the written statement or even in the writ petition. 9. In this regard, he has relied upon a judgment of this Court in the case of Jalaluddin Vs. Union of India [Order dated 11.06.2018 in WP(C)/7677/2016 and 7698/2016 ]. In the said case, it has been laid down that the contents of a certificate are required to be proved from the records. 10. The learned Standing Counsel has submitted that in a case of present nature, all evidence are to be supported by documents and in this regard, he has relied upon the case of Bijoy Das Vs. Union of India , reported in 2018 (3) GLT 118 . He has also relied upon the case of Nur Begum Vs. Union of India reported in 2020 (3) GLT 347 wherein it has been laid down that even the evidence of a purported mother, without link document cannot be accepted. A similar view has been laid down in the case of Asia Khatoon Vs. Union of India & Ors. [Judgment dated 21.11.2019 in WP(C)/4020/2017 ] wherein, the evidence of a purported father was held to be unacceptable in absence of any link document. 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 . 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 an elaborate one which takes care of every aspect and accordingly, there is no scope for any interference. 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. 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.” 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. As regards the school certificate is concerned which has been relied upon by the petitioner, it appears that the same was not proved before the learned Tribunal in the proceeding. As noted above, in the case of Jalaluddin (supra) it has been laid down the contents of the certificate has to be proved from the contemporaneous records. As regards the school certificate is concerned which has been relied upon by the petitioner, it appears that the same was not proved before the learned Tribunal in the proceeding. As noted above, in the case of Jalaluddin (supra) it has been laid down the contents of the certificate has to be proved from the contemporaneous records. As regard the result sheet, though extract of the same with translated version had been enclosed to the writ petition, the same was not produced before the learned Tribunal. 17. As regards the Voters List of 1969, apart from the fact that only a photo copy of the same has been produced, the same has not been exhibited or proved before the learned Tribunal. In any event, the same would not have any material bearing in the present case to establish any linkage of the petitioner to his parents. The Voters List of 1965 will not come to the aid of the petitioner to establish any linkage. So far as the Voters List of 1971 is concerned, the same was not proved before the learned Tribunal. Further, we have noted that for the first time, the name of the projected grand-mother has appeared who is aged 60 years. No voters lists of earlier periods were produced containing such name. As regards the Voters List of 1977, the same was not proved. We have also noted that apart from the discrepancy in the names of the projected parents in the Voters Lists of 1971 and 1977, there is also a gross discrepancy in the age. He has relied upon the Voters List of 1993 containing the names of his parents and one Rohima Khatun who is stated to be his sister. Thereafter reliance is placed on the Voters List of 2005 containing the name of the petitioner along with his parents and also the Voters List of 2010 containing the name of his father. 18 . We find force in the contention advanced by the learned Standing Counsel that though in the Voters List of 1993 one Musstt. Rohima Khatun was projected to be the sister, the said aspect was not revealed in the written statement or even in the writ petition. It is a settled law that material facts are required to be pleaded in the written statement and cannot be introduced later. In the case of Momin Ali Vs. Rohima Khatun was projected to be the sister, the said aspect was not revealed in the written statement or even in the writ petition. It is a settled law that material facts are required to be pleaded in the written statement and cannot be introduced later. In the case of Momin Ali Vs. Union of India , reported in 2017 (2) GLT 1076 (supra), the following has been laid down: “12. This written statement of the petitioner was wholly inadequate and did not disclose any material facts. As noticed above, it was the allegation of the State that petitioner was a foreigner. Therefore, as per mandate of Section 9 of the Foreigners Act, 1946, it was the bounden duty of the petitioner to have disclosed all material facts which were specifically within his knowledge in the written statement but he did not do so. Petitioner neither mentioned his date of birth nor his age. He was silent regarding the name of his mother and identity of his grandparents - both paternal and maternal. He did not mention anything about his brothers and sisters or about his marital status. On the basis of such a written statement, it cannot be said that petitioner had stated anything substantial to show that he was not a foreigner but a citizen of India. 13. It is a settled proposition of law that where a party fails to set up a case in his pleadings, he would be debarred from adducing evidence in his support at the stage of trial. As a matter of principle, variance between pleading and proof is not permissible.” 19 . The scope of oral evidence in a proceeding of this nature is absolutely circumscribed which is in sync with the objective of the scheme of the Act. The grave and serious issue of influx of illegal migrants in the country in general and in the State of Assam in particular is well accepted and such issue has to be dealt with in an appropriate manner. However, at the same time a balance has to be struck with the individual liberty of a genuine citizen. 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. However, at the same time a balance has to be struck with the individual liberty of a genuine citizen. 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 which 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.” 20 . On the serious issue of influx which is country facing, certain observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal Vs. Union of India , reported in (2005) 5 SCC 665 are required to be reminded which are as follows: “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. 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." In Introduction to International Law by J.G. Starke (Chapter 18) it is said that the war in its most generally understood sense is a contest between two or more states primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace. With the passage of time, the nature of war itself has become more distinctly clarified as a formal status of armed hostility, in which the intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war may involve not merely the armed forces of belligerent states but their entire population. With the passage of time, the nature of war itself has become more distinctly clarified as a formal status of armed hostility, in which the intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war may involve not merely the armed forces of belligerent states but their entire population. In Essays on Modern Law of War by L.C. Green the author has said that in accordance with traditional international law, "war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.". The framers of the Constitution have consciously used the word "aggression" and not "war" in Article 355.” 21 . 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.” 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 is extracted hereinbelow- “22. 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.” 23 . In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 14.09.2018 passed by the learned Foreigners’ Tribunal (2nd) Nagaon in F.T. Case No.2223/2011 arising out of SPs F.T. Ref. Case No. 1258/1998 does not call for any interference. Accordingly, this writ petition being devoid of merits stands dismissed. The interim order stands vacated. 24 . The actions consequent upon the opinion rendered by the learned Tribunal would follow, in accordance with law. 25 . The records of the aforesaid F.T. Case No.2223/2011 be returned to the learned Foreigners’ Tribunal (2nd) Nagaon forthwith, along with a copy of this order.