Gauhati High Court
Sri Ananda Das @ Ananda Rahi Das vs The Union Of India And 6 Ors on 1 February, 2021
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GAHC010008372020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./55/2020
SRI ANANDA DAS @ ANANDA RAHI DAS
S/O- LATE SUREN DAS @ SUREN RAHI DAS, VILL.- SARIYAHTALI, P.S. AND
DIST.- NALBARI, ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS
REP. BY THE SECRETARY TO THE HOME AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE SUPERINTENDENT OF POLICE (B)
NALBARI
ASSAM
PIN- 781337.
4:THE DEPUTY COMMISSIONER
NALBARI
ASSAM
PIN- 781335.
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001.
6:STATE CO-ORDINATOR
NRC
ASSAM
GUWAHATI.
7:THE FOREIGNERS TRIBUNAL-1
NALBARI
P.O. AND DIST.- NALBARI
ASSAM
PIN- 781335
Advocate for the Petitioner : MR. S C PANDIT
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
01.02.2021
(Manojit Bhuyan, J)
Heard Mr. S.C. Pandit, learned counsel for the petitioner as well as Mr. S.K. Medhi, learned
counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 3,
4 and 7 whereas Ms. N. Upadhyay, learned counsel appears for respondent no.5. Ms. L. Devi,
learned counsel accepts notice on behalf of respondent no.6.
Petitioner seeks review of the order dated 25.11.2019 dismissing the writ petition i.e.
WP(C) 3449/2019 wherein challenge was made to the opinion dated 19.10.2016 of the
Foreigners' Tribunal-1, Nalbari, in F.T.(Nal) Case No.(N) 3021/2006. The relevant portion of
the said order is extracted hereinunder:
"Petitioner assails ex-parte order dated 19.10.2016 passed by the Foreigners' Tribunal-1,
Nalbari in F.T.(Nal) Case No.(N) 3021/2006 declaring him to be a foreigner, having illegally entered
into India from the specified territory after 25.03.1971. Also assailed is the order dated 13.02.2019
passed in Misc. Case No.08/2018, whereby the petition praying for vacating the ex-parte opinion
dated 19.10.2016 stood dismissed.
The Tribunal recorded that despite service of notice and affording of sufficient time, the
petitioner neither appeared nor submitted documents to establish that he is not a foreigner. In such a
situation an adverse view was taken and the impugned opinion was rendered on 19.10.2016.
The petitioner submits that, in fact, no notice was received enabling him to participate and
contest the proceedings. The petitioner came to know about the proceedings when NRC Service
Centre, Nalbari showed him as Declared Foreigner in the year 2018. Immediately thereafter the
petitioner filed Misc. Case 08/2018 for vacating the ex-parte order which was also dismissed on
13.02.2019.
To test the argument as regards non-receipt of notice, regard can be had to the Report of the
Process Server dated 06.01.2014 (page 12). It is seen from the said report that notice was duly
received by the petitioner's wife Smti. Puspa Rahi Das. It is also seen from the order-sheet of the
Tribunal that petitioner was directed to appear before the Tribunal on 18.02.2014 and to file written
statement. On 18.02.2014, the petitioner remained absent without any step. Thereafter as many as
17 consecutive dates i.e. on 08.05.2014, 20.08.2014, 24.10.2014, 24.12.2014, 17.01.2015,
01.04.2015, 08.07.2015, 26.10.2015, 13.11.2015, 07.12.2015, 28.12.2015, 03.02.2016, 13.05.2016,
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04.07.2016, 19.08.2019 (sic), 22.09.2016 and finally on 19.10.206 when the ex-parte order was
passed then also petitioner remained absent without step. Thus, the finding of the Tribunal as regards
failure on the part of the petitioner to appear and file documents despite service of notice appears to
be correct and in order.
In the above 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/her own risk and peril. In the instant case the petitioner did not appear before the Tribunal
to establish her claim that she is not a foreigner. We may further 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 accordance with law. In the instant case, the petitioner utterly neglected to
participate/contest in the proceedings.
Having noticed as above, another aspect to be noted is that the scope of interference under
Article 226 of the Constitution of India to a decision of the Tribunal is limited to correcting errors of
jurisdiction or when decision is made by the Tribunal without giving opportunity of hearing or when
judgment is rendered in violation of the principles of natural justice or where there appears to be an
error apparent on the face of the record. None of the above grounds exists in the present case. To
reiterate, the petitioner failed to discharge the burden of proving that he is not a foreigner. On this
ground alone, the writ court would refrain from interfering with the impugned opinion. We also hold
that the documents enclosed in the present writ petition cannot be looked into, those not having been
proved before the Tribunal at the first instance.
We find no merit in the present petition. Accordingly, the same stands dismissed and the
order/opinion of the Tribunal is affirmed. No cost".
The present review petition is laid on the following grounds :
"A. For that, the petitioner never received any notice form the Foreigners Tribunal-1,
Nalbari though as per Service report it is allegedly claimed to be served upon the petitioner
through his wife Puspa Das.
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B. For that, his wife Puspa Rahi Das can put her signature in Assamese, but in the service
report it is claimed that she put her thumb impression in the copy of the notice.
C. For that, the proceedee has two wives namely Puspa Rahi Das (elder wife) and Bulu
Rahi Das (younger wife) for which he had to suffer from mental cruelty. He, sometimes, did
not stay at his home and from the first part of February, 2014, he remained outside of his
residence and stayed at Kharupetia under Darrang District, Assam. During his absence Puspa
Rahi Das departed his home in the last part of February, 2014 without his consent and still she
is residing at his father-in-law's house in Barpeta. As such the proceedee/petitioner has no
knowledge whether the notice was received by her or not. Even till date she does not inform
him regarding the receipt of the said notice. This being the position, he had to decline that no
notice was received by the proceedee and as such took the plea of non-receipt of notice in
the Learned Foreigners Tribunal-1 at Nalbari and similarly same plea in the Hon'ble High Court
vide WP(C) No.3449/2019.
D. For that, the petitioner did not have any knowledge in regard to above FT Case and its
order prior to the receipt of letter from NRC Sewa Kendra at Nalbari which shows Declared
Foreigner (DF). The petitioner submitted relevant documents in NRC Sewa Kendra on
27.12.2018 after receipt of order passed by Foreigners Tribunal-1, Nalbari on 11-12-2018 and
Sri Pranjal Kumar Sarma, LRCR, ITI Sarihatali NSK issued Receipt for hold (Original Copy) on
30.12.2018. Of course, the letter receipt on the NRC Sewa Kendra has been lost.
E. For that, the learned Foreigners Tribunal NO.1, Nalbari did not consider the application
made under Clause 3A of Foreigners (Tribunal) Order, 1964 and r/w section 151 CPC to set
aside the ex-parte order dated 19.10.2016.
F. For that, the learned Tribunal issued non-bailable warrant of arrest (NBWA) 08-05-2014
to the petitioner requiring his appearance before the Tribunal, but even after 6 dates until 01-
04-2015 the said N.B.W.A. could not be executed upon the said proceedee/petitioner.
G. For that, without execution of the warrant of arrest the said case fixed for evidence of
the Investigating Officer (IO) and ordered for issuance of summons to the I.O. fixing 08-07-
2015.
H. For that, despite being issued of summons to the Investigating Officer (IO) for 10
occasions from 08-07-2015 to 22-09-2016, but no service report received by the learned
Tribunal and having no alternative ex-parte order was passed declaring the proceedee to be
Foreigner of cut of date 24-03-1971. It appears that the process server/serving officer under
Superintendent of Police (Border), Nalbari has miserably failed to do their duties properly and
as such there is sufficient reason to believe that the notice was not properly served upon the
proceedee though they claimed the notice was served upon him through his wife Puspa Das.
I. For that, the learned Member of Foreigners Tribunal-1, at Nalbari ought to have
examined the process server as well as the Inquiry Officer (IO) of the case to make out a
prima facie case as this being the most prestigious right of a citizen.
J. For that, Hon'ble High Court should have taken liberal view in passing final order as the
petitioner has got sufficient documents in support of his citizenship of India and his parents
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and grandparents were also citizen of India.
K. For that, this Hon'ble High Court ought to have considered that if notice upon the
proceedee was served in one attempt then why not served the NBWA upon the proceedee and
summons upon the Inquiry Officer (IO) within 32 months.
L. For that, the petitioner being poor cobbler has no alternative way to take shelter of law
except this Hon'ble High Court".
Having noticed the grounds seeking review vis-a-vis the findings of this Court, we would first
observe as to the parameters available for seeking review. It is well settled that the scope of
review is limited to discovery of new and important matter or evidence which, after exercise
of due diligence, was not within the knowledge of the review petitioner or could not be
produced at the time when the order was passed or there has been a mistake or error
apparent on the face of the record or for any other sufficient reason. There is no dispute that
review cannot partake the character of an appeal, that is, for re-hearing and correcting a
judgment. The fact that a decision is erroneous on merit is no ground for review. On a plea
taken that the decision is erroneous on merit due to wrong interpretation of facts, cannot be
a ground for review. The error must be such as would be apparent on mere looking of the
record without requiring any long-drawn process of reasoning, inasmuch as, the reappraisal
of the entire evidence on record for finding the error would amount to exercising appellate
jurisdiction, which is not permissible.
In the instant case, the grounds assigned for causing review of the order are entirely different
from the recognised parameters of review. By the present petition, this Court has been called
upon to re-appraise and re-appreciate the facts which have already been answered in the
opinion of the Tribunal as well as in our order dated 25.11.2019.
The petitioner enclosed several documents with the writ petition for consideration. We would
observe that fresh documents introduced in the present writ proceedings cannot be looked
into or considered, the same not having been produced and exhibited before the Tribunal at
the first instance.
We, therefore, find no merit in the present review petition. Accordingly, the same
stands dismissed, however, without any order as to cost.
JUDGE JUDGE
Comparing Assistant
