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 24.04.2019 passed by the learned Foreigners Tribunal No.2, Bongaigaon in BNGN/FT- 2/APR/Case No. 398/2016 and Ref. Case No. BNGNIMDT Case No. 422/2004. 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) A reference was made by the Superintendent of Police (B), Bongaigaon District, against the petitioner giving rise to the aforesaid BNGN/FT-2/APR/Case No. 398/2016 and Ref. Case No. BNGNIMDT Case No. 422/2004. (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 22.09.2016 along with certain documents and adduced evidence through herself and her father. Further, there was also a Court witness. (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 her and accordingly, the opinion was rendered declaring the petitioner to be a foreign national post 25.03.1971. 3. We have heard Ms. R. Choudhury, learned Senior Counsel assisted by Ms. B. Hazarika, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department; Shri J. Payeng, learned Standing Counsel, NRC; Shri P. Sarma, GA, Assam, Shri N. Kalita, learned counsel (on behalf of Shri A.I. Ali, SC, ECI) and Ms. A. Tsopoe, learned counsel (on behalf of Shri G. Pegu, learned CGC). We have also carefully examined the records which were requisitioned vide an order dated 06.11.2019. 4. Ms. Choudhury, the learned Senior 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 adduced by 2 nos. In this regard, she has referred to the evidence adduced by 2 nos. of DWs, namely, herself and her father and also the following documentary evidence. There was also a Court witness. (i) Birth Certificate (Ext.1) (ii) Voter List of 1985. (Ext. 2) (iii) Voter List of 1966 (Ext. 3) (iv) Voter List of 1970 (Ext.4) (v) Voter List of 1997 (Ext. 5) (vi) Voter List of 2005 (Ext. 6) (vii) Voter List of 2010 (Ext. 7) (viii) Voter List of 2011 (Ext. 8) (ix) Voter List of 2016 (Ext. 9) (x) Voter Photo I/D Card (Ext. 10) DW2 evidence. (i) Voter List of 2005 (Ext.A) (ii) Voter List of 2010 (Ext. B) (iii) Voter Photo I/D Card (Ext. C) (iv) SBI Identity Card (Ext. D) (v) Jamabandi Copy (Ext. E). 5. The learned Senior Counsel has submitted that in the written statement, all material disclosures were made. She submits that the Birth Certificate of the petitioner was proved as Ext. 1 in which the names of the parents of the petitioner were clearly stated as Hazrat Ali (father) and Hazera Khatun (mother). She has relied upon the Voters Lists of 1966 and 1970 containing the names of her grandparents, Monser Ali and Eyason Nessa. The next Voters List is of the year 1985 which contains the names of the grandfather, father and few others. Thereafter, the Voters List of 1997 has been proved containing the names of her parents. Reliance has also been put to the Voters List of the year 2005 where the name of the petitioner appears along with her husband Atabar Mandal and her parents-in-law. A similar Voter List of 2010 have also been proved. Subsequent Voters Lists of 2011 and 2016 of the petitioner with her husband’s family have been proved. 6. The learned Senior Counsel has submitted that evidence was adduced by the petitioner as DW1 and her father as DW2. It is submitted that there was a Court Witness 2 who was the in-charge Moinbari MPHC to prove the Birth Certificate. The learned Senior Counsel has however fairly submitted that from the records it cannot be deciphered as to whether any order from the District Magistrate or the Executive Magistrate was proved in the context of the delayed issuance of the Birth Certificate. The learned Senior Counsel has however fairly submitted that from the records it cannot be deciphered as to whether any order from the District Magistrate or the Executive Magistrate was proved in the context of the delayed issuance of the Birth Certificate. She has also criticized the approach of the learned Tribunal in “cross examining” the witnesses and has submitted that such approach is in violation of the basic principles of law pertaining to natural justice. In this regard, she has relied upon the case of Md. Sahjahan Ali vs. Union of India [WP(C)/4496/2018 disposed of 19.11.2024]. She has also relied upon the case of Desh Raj vs. Bodh Raj reported in (2008) 2 SCC 186 7. The learned Senior Counsel accordingly submits that in view of the availability of the aforesaid materials, the impugned opinion could not have been rendered against the petitioner and therefore, the same requires interference. 8. Per contra, Ms. A. Verma, the 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 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. 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. 9. The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is vague. There is no pleadings which would be relevant to the claim of the petitioner towards her citizenship. 9. The learned Standing Counsel has further submitted that the written statement is the basic document which is supposed to lay down the foundation of the case of the proceeding and the written statement in the instant case lacks details and is vague. There is no pleadings which would be relevant to the claim of the petitioner towards her citizenship. In this connection, she has relied upon the following observations made by the Hon’ble Supreme Court in the case of Sarbananda Sonowal vs. Union of India reported in (2005) 5 SCC 665 “17. 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. Some times the place of birth of his grand parents 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.” 10. She has submitted that except for the “so-called” Birth Certificate, there is no documentary evidence at all to claim citizenship by the petitioner. She has submitted that the Reference was initiated sometime in the year 2004 and from the records it appears that the Birth Certificate was applied in the year 2011. In the Birth Certificate, the following were mentioned. Field Detail Folio 2603714 Date of Birth 15.09.1985 Registration No. 1520 Date of Issue 24.06.2011 11. She has submitted that the Reference was initiated sometime in the year 2004 and from the records it appears that the Birth Certificate was applied in the year 2011. In the Birth Certificate, the following were mentioned. Field Detail Folio 2603714 Date of Birth 15.09.1985 Registration No. 1520 Date of Issue 24.06.2011 11. She has submitted that a procedure has been prescribed for delayed issuance of Birth Certificate and when such delay is more than a year from the date of birth, application is required to be given before the District Magistrate or Executive Magistrate followed by certain other formalities. She has submitted that the records would not disclose compliance of such mandatory procedure. 12. She has also submitted that one Dr. Sahadat Ali had deposed as Court witness and had introduced himself as in-charge Moinbari MPHC and had stated that on the backside of the counterfoil, the name of one Haranor Rassid was mentioned. Further, the number of the counterfoil was 235130. She has submitted that there was no explanation at all with regard to the discrepancy in the Birth Certificate. On the aspect of probative value the Birth Certificate, she has relied upon the case of Rustom Ali vs. Union of India reported in (2018) 3 GLR 145 and the following observations have been pressed into service. “16. Registration of Births and Deaths Act, 1969 is an Act to provide for regulation of registration of births and deaths and for matters connected therewith. As per section 8, it is the duty of all persons to furnish information to the Registrar about births and deaths in the family. As per section 13(1), any birth of which information is given to the Registrar after expiry of the period specified, but within 30 days of its occurrence, shall be registered on payment of such late fee as may be prescribed. Sub-section (2) thereof, provides that any birth or death of which delayed information is given to the Registrar after 30 days but within 1 year of its occurrence shall be registered only with the written permission of the prescribed authority on payment of the prescribed fee and production of an affidavit. Sub-section (2) thereof, provides that any birth or death of which delayed information is given to the Registrar after 30 days but within 1 year of its occurrence shall be registered only with the written permission of the prescribed authority on payment of the prescribed fee and production of an affidavit. Under sub-section (3), any birth or death which has not been registered within 1 year of its occurrence, shall be registered only on an order made by a Magistrate of the 1st Class after verifying the correctness of the birth or death and on payment of the prescribed fee. 17. This position has been elaborately laid down in the Assam Registration of Births and Deaths Rules, 1999, which provides that information regarding birth and death shall have to be furnished within 21 days of the occurrence, except in the case of plantations. Rule 9 deals with delayed registration which is in terms of section 13 of the Act. 18. On the face of such statutory provision and failure of the appellants to demonstrate compliance to such statutory requirement, these two documents i.e., Annexures 3 and 3(A) not only have no evidentiary significance, but considering the circumstances under which those have been brought on record, raises grave doubts about the authenticity of such certificates, more so, when those were not tendered in evidence.” 13. The learned Standing Counsel submits that in view of the above, there is not a single document to support the claim of the petitioner. 14. In support of his submission that a certificate has to be proved from contemporaneous records, the learned Standing Counsel has relied upon the judgment passed in the case of Romila Khatun vs. Union of India reported in 2018 (4) GLT 373 and the following observations have been pressed into service. “ 20. It is trite that documentary evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the document. Proof of document is one thing and proof of contents is another. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. …” 15. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. …” 15. She has also drawn the attention of this Court to the case of Nur Begum vs. Union of India and Ors. reported in 2020 (3) GLT 347 wherein certain observations regarding exercise of Certiorari jurisdiction have been made which read as follows: “9. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.” 16. She has also relied upon the case of the Hon’ble Supreme Court in Rupjan Begum vs. Union of India reported in (2018) 1 SCC 579 , wherein it has been laid down that a certificate has to be proved on two aspects, firstly, the authenticity of the same and secondly, the authenticity of the contents. 17. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 18. The learned counsel for the other respondents have supported the submissions advanced on behalf of the Home Deptt. & NRC and have prayed for dismissal of the writ petition. 17. The learned Standing Counsel has accordingly submitted that the writ petition be dismissed and the interim order be vacated. 18. The learned counsel for the other respondents have supported the submissions advanced on behalf of the Home Deptt. & NRC and have prayed for dismissal of the writ petition. They have submitted 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. It is submitted that there is no procedural impropriety or illegality in the decision making process and therefore, the instant petition is liable to be dismissed. 19. The rival submissions made have been duly considered and the materials placed before this Court including the records of the Tribunal have been carefully perused. 20. 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.” 21. 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.” 22. 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. 23. Law is well settled in this field. 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. 23. 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. 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.” 24. In the instant case, the written statement is vague and apparently, has not met the requirements, as laid down by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). There is a requirement to disclose the following: (i) his date of birth; (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship Further, there may be a requirement to give the details of the grandparents. It has been stated that all these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. 25. From the materials available on record, it is found that except for the Birth Certificate dated 24.06.2011, there is not a single document which would link the petitioner with her parents. This aspect becomes of immense relevance inasmuch as, the petitioner is born post 1971 and in fact, her date of birth has been stated to be 15.09.1985. As mentioned above, Voters Lists of 1966, 1970, 1985 and 1997 have been proved which contain the names of the projected grandparents and the projected parents of the petitioner. However, those cannot be construed as any link documents. The Voters List in which the name of the petitioner figures is that of the year 2005 which is with her projected in-laws. Similar Voters Lists of subsequent years of 2010, 2011 and 2015 have been proved which however will not serve as a link document. The Kabinnama has also not been proved. The Voters List in which the name of the petitioner figures is that of the year 2005 which is with her projected in-laws. Similar Voters Lists of subsequent years of 2010, 2011 and 2015 have been proved which however will not serve as a link document. The Kabinnama has also not been proved. Under those circumstances, the Birth Certificate (Ext.1) would be of immense significance in the adjudication of this case. 26. As mentioned above, the Birth Certificate was issued on 24.06.2011 whereas the date of birth is 15.09.1985. There is no dispute in the Bar with regard to the procedure prescribed for delayed issuance of a Birth Certificate. As per the law holding the field, if the delay is more than a year from the date of birth, application is required to be made to the District Magistrate or the Executive Magistrate followed by certain other mandatory formalities. There is nothing on record to show that any such procedure has been followed. 27. Be that as it may, the Certificate was sought to be proved by the Court witness (CW) who was the in-charge of the concerned Moinbari MPHC. He had stated that on the backside of the counterfoil, the name of one Haranor Rassid was mentioned. What however is most intriguing is that the number in the counterfoil was different from the number appearing in the Birth Certificate. As mentioned above, the Birth Certificate contains the Folio No. as 2603714 whereas the number in the counterfoil is 235130. To a specific query, the CW had stated that both the numbers have to be one and further that, at the time of issuance, he was not posted at Moinbari MPHC. He had also stated that the concerned Birth Certificate (Ext-1) was not issued by following the proper procedure and there were anomalies in the certificate. He has also deposed that in the register, the address was mentioned as Haldia and subsequently, changed to Paschim Moinbari. 28. We also find force in the contention that the petitioner did not make any clarification or explanation with regard to the Birth Certificate in the written statement, though the Birth Certificate was mentioned. For ready reference, the relevant pleadings are extracted herein below: “4. That the opp.party beg to state that she was born in the family of Hazrat Ali i.e. Hazrat Ali s/o Monser Ali the father of the opp.party. For ready reference, the relevant pleadings are extracted herein below: “4. That the opp.party beg to state that she was born in the family of Hazrat Ali i.e. Hazrat Ali s/o Monser Ali the father of the opp.party. She born in the year of 1985 her actual date of birth is 15.09.1985 registered No. was 1520 issued on 24.06.2011 from registered birth & death Mainbori MPHC Barpeta (Assam).” 29. We agree with the contention advanced on behalf of the respondents who have relied upon the case of Rustom Ali (supra), the relevant observations being extracted above. We are of the view that in the instant case, there is no evidence which would be adduced by the petitioner to claim citizenship. In the case of Bijoy Das vs UOI reported in 2018 (3) GLT 118, this Court has laid down that in proceedings of this nature, oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records. However, in this case, the same has not been able to be done by the petitioner. 30. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 24.04.2019passed by the learned Foreigners Tribunal No.2, Bongaigaon in BNGN/FT-2/APR/Case No. 398/2016 and Ref. Case No. BNGNIMDT Case No. 422/2004 does not call for any interference. 31. The writ petition accordingly stands dismissed. Interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 32. The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.