Gauhati High Court
Samsul Hoque vs Union Of India And 6 Ors on 25 January, 2021
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GAHC010314312019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./17/2020
SAMSUL HOQUE
S/O- LT TOMSER ALI, R/O- VILL- BOSONTOPUR, P.S. MORNAI, DIST-
GOALPARA, ASSAM
VERSUS
UNION OF INDIA AND 6 ORS
THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI- 110001
2:THE STATE OF ASSAM
THROUGH THE SECRETARY
GOVT. OF ASSAM
POLITICAL (B)
GUWAHATI-781006
3:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-781007
4:THE SUPERINTENDENT OF POLICE (B)
GOALPARA
P.O. AND DIST- GOALPARA
PIN- 783101
5:THE DEPUTY COMMISSIONER
GOALPARA
ASSAM
PIN- 783101
6:THE ELECTION COMMISSION OF INDIA
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THROUGH THE ELECTION COMMISSIONER OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
7:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GUWAHATI-
Advocate for the Petitioner : MR. I H SAIKIA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
25.01.2021
(Manojit Bhuyan, J)
Heard Mr. I.H. Saikia, learned counsel for the review petitioner as well as Smt. J.
Sarma, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel
represents respondent nos.2, 3, 4 and 5 whereas Ms. B. Das, learned counsel appears for
respondent no.6. Ms. L. Devi, learned counsel accepts notice for respondent no.7.
Petitioner seeks review of the order dated 13.05.2019 dismissing the writ petition i.e.
WP(C) 2895/2019 wherein challenge was made to the opinion dated 28.01.2019 of the
Foreigners' Tribunal No.5th at Goalpara, in F.T. Case No.F.T./5/310/MA/16. The relevant
portion of the said order is extracted hereinunder:
"Petitioner assails order/opinion dated 28.01.2019 passed by the Foreigners' Tribunal
No. 5th at Goalpara, in F.T. Case No.-F.T./5/310/MA/16, declaring him to be a foreigner,
having illegally entered into India (Assam) after 25.03.1971.
In the proceedings before the Tribunal the petitioner submitted written statement and
adduced evidence, as required of him under Section 9 of the Foreigners' Act, 1946, for the
purpose of discharging the burden as not being a foreigner. In order to establish his lineage
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to Indian parents relatable to a period prior to 24.03.1971, the petitioner projected one
Tomser Ali, son of Arob, as his father, whose name appeared in the Exhibit-A Voter List of
1966 pertaining to village Chaysimana of mouza Baghbor, in Barpeta Sub-division. In the said
Voter List of 1966 the name of one Dehnobi Nessa also appeared. Exhibit-B Voter List of 1970
also provided similar particulars. Reference and reliance is made to the Voter List of 1985
(Exhibit-C) and the Voter List of 1997 (Exhibit-D), both lists pertaining to a different village
i.e. Basantapur under mouza Matia of Goalpara East Legislative Assembly Constituency, to
show recording of the name of the petitioner against Tomser Ali. Reliance is also placed in the
deposition of one Hasen Ali of village Chaysimana, who deposed as DW-3 by claiming himself
to be the cousin of the petitioner.
On the above, the primary issue for determination is as to whether the petitioner could
successfully establish and connect Tomser Ali of Chaysimana of the Voter List of 1966 to
Tomser Ali, described as the father of the petitioner, in the Voter Lists of 1985 and 1997 of
village Basantapur.
Without any doubt, no documents were produced nor any statements made in the
written statement with regard to shifting of residence from village Chaysimana to village
Basantapur. The evidence of Hasen Ali as DW-3 does not go to support the case of the
petitioner, inasmuch as, his testimony is far from inspiring the confidence of the Court. He has
stated that he is ignorant as to when the petitioner was born and has only heard that the
petitioner was born at Chaysimana. He also stated that the petitioner had cast vote at
Basantapur along with his parents in the year 1985. On this, a mere perusal of the Exhibit-C
Voter List of 1985 would give a contrary picture, in that, the name of the petitioner appears
along with Asimon Nessa as voters and not with his projected parents.
In the course of hearing, Mr. Saikia made reference to a Voter List of 1997 of village
Basantapur, which records the name of Tomser Ali and Johura Khatun as voters. Such
reference was made to conclusively show the existence of Tomser Ali at village Basantapur.
With utmost respect, the said document at Annexure-11 of the writ petition cannot be taken
at its face value, so much so, that the said Voter List of 1997 at Annexure-11 is altogether a
different document than the Voter List of 1997 which was exhibited as Exhibit-D before the
Tribunal. In the course of hearing, Mr. Saikia also submitted that the petitioner along with his
parents had cast vote in the year 1975. This submission, in our considered view, is without
any basis or substance as no such Voter List of 1975 was produced and exhibited in the
reference proceedings.
We find that the petitioner failed to bring on record any cogent and reliable evidence
so as to satisfactorily establish linkage to Tomser Ali of the Exhibit-A Voter List of 1966
pertaining to village Chaysimana. We also 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
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that the findings finds no support by any evidence at all. In other words, the petitioner could
not make out any case demonstrating any errors apparent on the face of the record to
warrant interference of the impugned opinion.
We, therefore, find no merit in the writ petition. Accordingly, the same stands
dismissed, however, without any order as to cost.
The directions made by the Tribunal to the authorities concerned shall now be
complied with"
The present review petition is laid on the following grounds :
"(I) For that the learned Tribunal, in passing the order dated 28/01/2019, committed gross
error of law by not properly appreciating the materials on record and came to a wrong
conclusion by holding the petitioner to be an illegal migrant. As such the same is bad in law
and liable to be set aside and quashed. (II) For that the Ld. Tribunal has wrongly
appreciated the materials on record and passed the impugned order holding the petitioner as
foreigner in as much as the petitioner failed to prove his link with his parents. In this regard,
the petitioner submits that the prosecution, in their cross-examination, never casted any doubt
that petitioner is not the son of "Tomser Ali". In all the documents of the prosecution case, the
name of his father was recorded as 'Tomser Ali'. Therefore, Linkage with 'Tomser Ali' is not
required to be proved by the petitioner and his only burden was to prove whether his father
'Tomser Ali' is an Indian citizen or not. Be it mentioned herein that during cross-examination of
the Defence Witnesses, the prosecution never questioned the paternity of the petitioner and
therefore, it can be presumed that prosecution has admitted/accepted that the petitioner is the
son of 'Tomser Ali'. As the petitioner has successfully discharged the burden, there is no
question of declaring him to be a Foreigner and as such the impugned order is liable to be set
aside and quashed.
(III) For that the Ld. Tribunal has failed to consider the authenticity of the Voter's List of
1975 & 1985 which was annexed as Annexure-III & IV to the Evidenced-in-chief of the
petitioner where the name of the petitioner along with his parents are reflected and came to
an erroneous conclusion by disbelieving the same. The petitioner applied before the authority
for supplying certified copies of the aforesaid Voter's lists pursuant to which the certified
Voter's list of the year 1975 was supplied to him on 10/10/2019 (Annexure No.-5). If the
Tribunal was suspecting the authenticity thereof, it could have been verified by directing the
State authorities to produce the records of the said documents. That being not done is illegal
and bad in law and as such the impugned order is liable to be set aside and quashed.
(IV) For that as the certified copy of the Voter's list of the year 1975 could not be produced
before the Ld. Tribunal as well as before this Hon'ble Court on earlier occasion, it is a fit case
where your Lordships may be pleased to invoke the review jurisdiction by reviewing the order
dated 13/05/2019 in the interest of justice.
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(V) For that the unrebutted oral evidence of the DW-3 clearly proves that the petitioner is
the son of Tomser Ali. Apart from the annexed documents as the oral testimony of both DW-1
& DW-3 remained unrebutted during their cross-examination, the said pieces of evidence
cannot be discarded without proving contrary thereof. As such, the Judgment and Order dated
13/05/2019 passed in W.P.(C) No.2895/2019 may be required to be reviewed.
(VI) For that the petitioner prays for allowing him to take any other appropriate grounds at
the time of hearing in the interest of justice.
(VII) For that in any view of the matter, the petitioner has a good case on merit therein and
the balance of convenience is in his favour. Therefore, this Hon'ble Court may be pleased to
review the Judgment and order dated 13/05/2019 passed in W.P.(C) 2895/2019"
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 13.05.2019.
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
