Md. Abjal Khan vs The Union Of India And 5 Ors
2021 Latest Caselaw 138 Gua

                                                                    Page No.# 1/8

GAHC010115762020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : Review.Pet./76/2020

         MD. ABJAL KHAN
         S/O- LATE SURJA KHAN, R/O- VILL.- KUROBAHA PATHAR, P.O.
         KUROBAHA, P.S. AND DIST.- BARPETA, ASSAM, PIN- 781352.



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REP. BY THE MINISTRY OF 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 DEPUTY COMMISSIONER
          BARPETA
          DIST.- BARPETA
         ASSAM
          PIN- 781301.

         4:THE SUPERINTENDENT OF POLICE (B)
          BARPETA
         ASSAM
          PIN- 781301.

         5:THE ELECTION COMMISSION OF INDIA
          NEW DELHI- 110001.

         6:THE STATE COORDINATOR
          NATIONAL REGISTER OF CITIZENS (NRC)
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              ASSAM
              PIN- 781032

Advocate for the Petitioner     : MR H R A CHOUDHURY

Advocate for the Respondent : ASSTT.S.G.I.




                                        BEFORE
                        HONOURABLE MR. JUSTICE MANOJIT BHUYAN
                       HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                                ORDER

Date : 19-01-2021 (P. Saikia,J)

Heard the learned counsel Mr. F.U. Barbhuiya, appearing for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal.

2. By filing the present petition, the petitioner has sought review of the Order dated 26.02.2020 whereby WP(C) 1080 of 2019 was dismissed. The aforesaid WP(C) 1080 of 2019 was filed challenging the opinion dated 20.12.2018 passed by the Foreigners Tribunal, No.

1st, Barpeta in F.T. Case No. 41 of 2017 whereby declaring the petitioner to be a foreigner of post 1971 stream.

3. The relevant portion of the said order passed by this Court is extracted hereunder:-

"During the hearing of the case the petitioner exhibited the following documents:- 1) Exhibit-1 is the certified copy of voter list of 1965; 2) Exhibit-2 is the copy of NRC; 3) Exhibit-3 is the certified copy of voter list of 1970; Page No.# 3/6 4) Exhibit-4 is the copy of Sale Deed; 5) Exhibit-5 is the certified copy of voter list of 1989; 6) Exhibit-6 is the certified copy of voter list of 1985; 7) Exhibit-7 is the certified copy of voter list of 1997; 8) Exhibit-8 is the certificate of Gaonburah; On conclusion of the hearing the tribunal rejected the evidence adduced by the petitioner and declared his to be a foreigner of post 1971 stream. We have carefully gone through the opinion of the Tribunal. We will take up the Exhibit-2 at a later stage. Now we will take up the other exhibits. The petitioner was born at Kurabaha Pathar. In support of his case he produced some documents. The Voter List of 1965, the Ext 1, shows the name of his projected grandfather Sabas Kha, aged 45 years. Exhibit-1 discloses Page No.# 3/8

that this Sabas Kha hailed from village Rajaghat, not Kurabaha Pathar. In the paragraph 10 of his written statement, the petitioner claimed that his name appeared in the voter list of 1997.

But this document has not been exhibited by him when he had adduced evidence. The 1997 voter list, marked as Ext 7, shows the names of Surjya Khan and Abjan Nessa, the projected parents of the petitioner. In the Exhibit-3, the Voter List of the year 1970, Sabas Kha aged about 55 years is shown as a resident of village Kurobaha Pathar. Similarly in the Exhibit-6, in the Voter List of 1985, Surjya Khan, the projected father of the petitioner is shown to be a resident of Kurobaha Pathar. In Exhibit-6 Surjya Khan is shown to be aged about 40 years. In Exhibit-5 the Voter List of 1989 Surjya Khan, aged about 50 years, is again shown to be a resident of village Kurobahagaon/Kurobah Pathara. In this Exhibit Abjan Nessa, aged 42 years, the projected mother of the petitioner also appears. In Exhibit-7, the Voter List of 1997 Surjya Khan and Abjan Nessa are shown to be residents of aforesaid village Kurobahagaon/Kurobah Pathara. From the documents produced by the petitioner, it appears that in the 1985 Voter List, Surja Khan, the projected father of the petitioner appeared for the first time at the age of 40 years . The name of Surjya Khan should have appeared along with Sabas Kha in Exhibit-3 i.e the Voter List of 1970 because in the year 1970 he would have been 26 years old. Be that as it may.During the hearing of the case the petitioner examined one person named Nalu Khan aged about 40 years. He is the projected younger brother of the petitioner. He has stated Page No.# 4/6 that the petitioner was born at Kurobaha Pathar. He claimed that in the year 2006 his name appeared in the Voter List.He did not produce that voter list. In the written statement the petitioner never pleaded that he had a younger brother named Nalu Khan. So there is a variance between pleading and proof. 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 law the variance between the pleading and proof is not permissible. This Court in Momin Ali v. Union of India reported in 2017 (2) GLT 1076 has already held that where a party fails to set up a case in his pleading, he would be debarred from adducing evidence in his support at the stage of trial. This Court also held that variance between pleading and proof is not permissible. Therefore, the evidence of Nalu khan is not admissible evidence. The third witness examined by the petitioner is the village Gaonburah name Latika Padgiri. He is the village goanburah of Kurobaha Pathar. He also stated that he knew the petitioner since 2001. He further stated that he did not know when the petitioner and his family shifted from Page No.# 4/8

Rajaghat to Kurobaha Pathar. The witness claimed that he knew the father of the petitioner since last 10 (ten) years. It is also a settled position of law that a certificate of village gaonburah cannot be used to prove the citizenship of the person. The Supreme Court has clarified in Rupajan Begum-vs-Union of India; (2018) 1 SCC 579 that such a certificate by itself is no proof of citizenship. It is at best a linkage document between a married woman and her parents. But such a document would have to be verified at two stages; at the first stage authenticity of the document has to be verified and, thereafter, at the second stage, the contents of the document would have to be verified. On scrupulous perusal of the opinion of the Tribunal we find that the petitioner claimed to have born and brought up in the village Kurobaha Pathar, whereas Sabas Kha, aged 45 years, the projected grandfather of the petitioner appearing in the Voter List of 1965, is shown as a resident of village Rajaghat. In the Voter List of 1970, Sabas Kha, aged 55 years is shown to be a resident of Kurobaha Pathar. In the Voter List of 1985 Suryja Kha, the projected father of the petitioner is shown to be resident of village Kurobaha Pathar. In the Voter List of 1989, Surjya Khan and Abjan Nessa, the projected parents of the petitioner, are shown to be residents of Kurobaha Pathar. Here at this stage the question arises as to whether Sabas Kha of village Rajaghat and Sabas Page No.# 5/6 Kha of village Karubaha Pathar are one and the same person. The written statement is totally silent about shifting of residence of Sabas Kha from Rajaghat to Kurobaha Pathar. We have mentioned herein before that Surjya Khan, the projected father of the petitioner appeared in the Voter List of 1985 for the first time at the age of 40 years. Naturally his name should have been there along with Sabas Kha of village Karubaha Pathar in the Voter List of 1970 because at that time he must have been about 26 years old. Now we have reasons to hold that Sabas Kha of village Rajaghat and Sabas Kha of village Karubaha Pathar are two different persons. Therefore, we find that the link between Sabas Kha of Kurobaha Pathar with Surjya Khan of Rajaghat has not been established. Therefore, Exhibit- 6, the 1985 Voter List and Exhibit-5 the 1989 Voter List showing Surjya Khan to be a son of Sabas Kha of Kurobaha Pathar are not reliable for the present case. Before the tribunal the petitioner did not exhibit 1997 voter list showing his name. We find that in the said 1997 Voter List the petitioner appears for the first time at the age of 30 years and no other Voter List prior to that showing him to be voter has been filed. We have already observed that the linkage between Sabas Kha of Rajaghat and Surjya Khan of Kurobaha Pathar has already broken. At this stage it is clear that Surjya Khan, the projected father of the petitioner Page No.# 5/8

appeared in the 1985 voters list for the first time at the age of 40 years. The petitioner did not file his own voter list of 1997 to establish his link with his projected father Surjya Khan. Now we shall take up ext 2.In this case the petitioner had exhibited the NRC details of Sabas Kha of village Rajaghat. This Court long back in Bhanbhasa Sheikh-vs-Union of India reported in 1970 Assam LR 206 has held that statements or certificate based on NRC 1951 is not admissible in evidence."

4. Now I shall take up the ground upon which the review petition has been filed. The grounds are:-

A. For that, in the instant case, there is no spot enquiry made at all and the so-

called Verification Report prepared by the Verification Officer, specifically mentioned that the petitioner is the son of Surja Khan of Village-Kurobaha Pathar and he has not migrated into Assam and nowhere mentioned that the petitioner is a suspected foreigner by the Electoral Registration Officer, Bhawanipur LAC arbitrarily and malafide forwarded the instant case before the Superintendent of Police (B), Barpeta to take step for deciding the question of Citizenship of the petitioner under IM(D) Tribunal and accordingly the Ld. Tribunal without complying the mandatory requirements issued notice and decided the matter thereby declaring the petitioner as a foreigner which is illegal and not sustainable in law and this Hon'ble Court also affirmed the opinion of the Ld. Tribunal which is an error apparent on the face of record and hence the impugned order is required to be reviewed in view of discovery of new and important ground and other sufficient reason the impugned order is required to be modified and liable to be set aside and quashed.

B. For that, the instant case records shows that the petitioner has not migrated into Assam and born at Village-Kurobaha Pathar of Barpeta district, Assam being the son of Surja Khan and no allegation of suspicion of the petitioner as a foreigner but the Ld. Tribunal while issuing notice alleging that the petitioner is a suspected foreigner entered into Assam without valid documents thereby mentioning the stream of before 1.1.1966, between 1.1.1966 to 24.3.1971 and after 25.3.1971 and subsequently declared the petitioner as a foreigner of post Page No.# 6/8

25.3.1971 which is illegal and beyond its jurisdiction and this Hon'ble Court by the impugned order affirmed the order of the Tribunal which is an error apparent on the face of record and as such the impugned order is bad in law which is required to be reviewed and liable to be set aside and quashed.

C. For that, the petitioner was born and brought up at village Kurobaha Pathar and is the son of Surja Khan which is not denied by the State rather the Verification Officer support the same. Since the voter list of 1970 (Ex.3) shows that Sabas Kha grandfather of the petitioner is a resident of Village-Kurobaha Pathar and the Voter list 1985 (Ext.6) shows that Surja Khan is the son of Sabas Kha, a resident of Kurobaha Pathar and as such the link between Sabas Kha and Surja Khan is very much clear and for determination of Citizenship of the person concerned the cut off date is 25.3.1971 and while passing the impugned order this Hon'ble Court held that the link between Sabas Kha and Surja Khan has not been established and thus the voter list of 1985 (Ext.6) and the voter list of 1989 (Ext.5) are not reliable in the present case which is an error apparent on the face of record and hence the impugned order is required to be modified and give relief to the petitioner.

D. For that, the name of the petitioner appeared in the Voter list of 1997 along with his parents but due to insertion of mark 'D' against his name, the authority did not provide certified copy of the voter list of 1997 showing his name but the certified copy of 1997 was provided wherein his parents name appear and in this regard the petitioner has annexed the photocopy of the Voter list of 1997 in the writ petition wherein showing his name along with his parents.

E. For that, the petitioner specifically mentioned the details of his parents both in the pleadings and in evidence of his case and the same having been reflected in the NRC Final List which are prepared by quasi-judicial authority after following due procedure wherein name of his close family members are included and therefore the opinion rendered by the Foreigners Tribunal as well as the opinion of this Hon'bl Court are required to be reviewed in view of decision dated 17.05.2019 passed by the Hon'ble Supreme Court reported in (2019) 6 SCC 604 Page No.# 7/8

Abdul Kuddus Vs Union of India & Ors. and give relief to the petitioner.

F. For that, in any view of the matter the impugned order is bad in law and is liable to be set aside and quashed.

5. We have considered the grounds seeking review of the order passed by this Court. At this stage we would remind ourselves that an application for review of a judgment must not be an appeal in disguise. In the case in hand the petitioner has assailed the judgment of this Court on various points and also speaks about introduction of a new document.

6. It is a settled position of law that a review is maintainable only on the following grounds:-

(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on the points where there may be conceivable be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate.

(v) An application for review may be necessitated by way of invoking the doctrine `actus curiae neminem gravabit'."

7. Reverting to the case in hand, the plea taken by the applicant that the decision of this Court is erroneous on merit due to erroneous interpretation of facts, cannot be a ground for review as contemplated under Order 47 of the Code of Civil Procedure. For a successful attempt under Order 47 of the Code of Civil Procedure, the error must be apparent on the Page No.# 8/8

face 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, as because any attempt to find out the error would amount to exercising appellate jurisdiction and it is not permissible in law. In the present case the grounds assigned for causing a review of the order dated 26.02.2020 are absolutely different from the settled parameters of review. In fact, by filing the present petition, this Court has been called upon to re-apprise and re-appreciate the facts which have already been answered in the opinion of the Tribunal as well as in Order dated 26.02.2020.

8. We therefore find no merit in the present review petition. Accordingly, the present review petition is dismissed, however, without any order as to costs.

JUDGE

Comparing Assistant