Dhiljan Nessa @ Deljan Nessa vs The Union Of India And 6 Ors
2021 Latest Caselaw 50 Gua

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GAHC010135682020




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

                          Case No. : Review.Pet./93/2020

         DHILJAN NESSA @ DELJAN NESSA
         D/O- KITAB ALI, W/O- SULTAN ALI, R/O- VILL.- SATRAKANARA, P.S.
         BAGHBAR, DIST.- BARPETA, ASSAM, PIN- 781308.



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         REP. BY THE HOME SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
         INDIA, SHASTRI BHAWAN, NEW DELHI- 110001.

         2:THE STATE OF ASSAM
         THROUGH THE SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI
         ASSAM
          PIN- 781006.

         3:THE SUPERINTENDENT OF POLICE (BORDER)
          BARPETA
         ASSAM
          PIN- 781314

         4:THE OFFICER-IN-CHARGE

          BAGHBAR POLICE STATION
          P.O. BAGHBAR
          DIST.- BARPETA
          ASSAM
          PIN- 781308.

         5:THE STATE COORDINATOR
                                                                                  Page No.# 2/6

             NRC
             ASSAM
             1ST FLOOR
             ACHYUT PLAZA
             GUWAHATI- SHILLONG ROAD
             BHANGAGARH
             GUWAHATI
             ASSAM
             PIN- 781005.

             6:THE ELECTION COMMISSION OF INDIA
              REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA
              NIRVACHAN SADAN
             ASHOKA ROAD
              NEW DELHI
              INDIA
              PIN- 110001.

             7:THE MEMBER
              FOREIGNERS TRIBUNAL NO. 4

             BARPETA- 781308

Advocate for the Petitioner   : MS. D GHOSH

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




                                   BEFORE
                    HONOURABLE MR. JUSTICE MANOJIT BHUYAN
                  HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                             ORDER

07.01.2020 (Manojit Bhuyan, J)

Heard Ms. D. Ghosh, learned counsel for the review petitioner as well as Mr. K.K. Parasar, learned counsel representing respondent no.1. Mr. N. Pathak, learned counsel represents respondent nos.2, 3, 4 and 7 whereas Ms. L. Devi, learned counsel appears for respondent no.5. Ms. B. Das, learned counsel accepts notice for respondent no.6.

Petitioner seeks review of the order dated 31.08.2020 dismissing the writ petition i.e. Page No.# 3/6

WP(C) 6697/2019 wherein challenge was made to the opinion dated 29.04.2019 of the

Foreigners' Tribunal No.4th, Barpeta, in F.T. Case No.493/2016. The relevant portion of the said order is extracted hereinunder:

"2. Petitioner assails opinion dated 29.04.2019 passed by the Foreigners' Tribunal No.4 th, Barpeta in F.T. Case No.493/2016, declaring her to be a foreigner/illegal migrant, having illegally entered in to Assam on or after 25.03.1971.

For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, as many as 10 (ten) documents were exhibited by her, the particulars of which may be noticed as under :

(i) Exhibit-A - Copy of Voter List of 1966, in the name of one Kitab Ali, projected father of the petitioner and one Karfuljan Nessa, projected mother of the petitioner along with others of village Laharapara Non-K, Part No.109, Sub-Division- Barpeta, P.S.-Tarabari, District-Kamrup, under 54 No. Senga LAC.

(ii) Exhibit-B - Copy of Voter List of 1971, in the name of one Kitab Ali, projected father of the petitioner and one Karfuljan Nessa, projected mother of the petitioner along with others of village Silochi, Part No.69, Sub-Division- Barpeta, P.S.-Baghbar, District- Kamrup, under 52 No. Baghbar LAC.

(iii) Exhibit-C - Copy of Voter List of 1997, in the name of one Kitab Ali, projected father of the petitioner of village Shutib Pabo/Boroli/Silochi, Part No.64, P.S.-Baghbar, District- Barpeta, under 45 No. Baghbar LAC.

(iv) Exhibit-D - Copy of Voter List of 2010, in the name of one Kitab Ali, projected father of the petitioner of village-Silochi, Part No.3, under 45 No. Baghbar LAC.

(v) Exhibit-G - Copy of Voter List of 1997, in the name of one Sultan Ali projected husband of the petitioner, petitioner herself along with others of village-Satra Kanara, Part No.58, Sub-Division-Barpeta, P.S. Baghbar, District-Barpeta, under 45 No. Baghbar LAC.

(vi) Exhibit-H - Copy of Voter List of 2005, in the name of one Sultan Ali projected husband of the petitioner, petitioner herself along with others of village-Satra Kanara, Part No.93, under 45 No. Baghbar LAC.

(vii) Exhibit-I - Certificate dated 04.05.2017 issued by Sarbesh Ali, Gaonburah of village-

Aligaon, certifying that petitioner is the daughter of Kitab Ali and the petitioner got married to one Sultan Ali of village Satra Kanara, Seat No.11.

(viii) Exhibit-J - Certificate dated 17.10.2016 issued by the Gaonburah of village-Satra Kanara, certifying that petitioner is the wife of Sultan Ali of village Satra Kanara, Seat No.11 and she is the inhabitant of the village Satra Kanara.

vii) Exhibit- Q - Copy of Voter List of 2016, in the name of petitioner, one Dilbar Rahman, projected son of the petitioner along with others of village Satrakanara (Govindapur Reserve), Sub-Division-Barpeta (Sadar), Part No.108 under Baghbar 45 No. LAC.

viii) Exhibit- R - Affidavit filed by the petitioner stating discrepancies in names of the of herself and her father.

Petitioner examined herself as DW-1. One Kitab Ali, projected as father of the Page No.# 4/6

petitioner, deposed as DW-2 and one Sarbesh Ali, Gaonburah of village Aligaon, Sargaon Pam, Sar Gaon, deposed as DW-3.

From the documents produced and exhibited, as above, no other documents, as admissible in evidence, were brought on record to demonstrate and establish any kind of relationship/linkage to either the projected father Kitab Ali or the projected mother Karfuljan Nessa. Though their names are reflected, as shown, in the Voter Lists of 1966, 1971, 1997 and 2010 at Exhibits-A, B, C and D respectively, such reflection of their names is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entities by means of cogent, reliable and admissible document/evidence. The voter lists with the name of the petitioner are the Exhibits-G and H Voter Lists of 1997 and 2005 of village- Satra Kanara which, however, bore no relevance as her relation is shown with her projected husband and not with the projected father or mother, shown in Exhibits-A, B, C and D. The only document brought on record for the purpose of establishing linkage to Kitab Ali was the Certificate dated 04.05.2017, issued by the Gaonburah of village Aligaon, at Exhibit-I. The Gaonburah of Aligaon village deposed as DW-3. In his testimony the DW-3 stated that he had issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate. In so far as the evidence tendered by DW- 2 i.e. Kitab Ali is concerned, the same cannot be relied upon in the absence of any documents showing any relationship between DW-2 and the petitioner. Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. The evidence of DW-2 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected parents. An affidavit at Exhibit-R was brought on record to overcome the apparent shortcomings which, however, cannot be taken into consideration, being a self- serving affidavit and not coming within the definition of evidence under the Indian Evidence Act, 1872.

As the primary issue in 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, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected parents.

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.

We find no merit in the present petition. Accordingly, the same stands dismissed, however, without any order as to cost. "

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The present review petition is laid on the following grounds :

"(i) Because this Hon'ble Court's order suffers from error apparent in the face of the record wherein it has stated that "Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. The evidence of DW-2 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected parents."

The relationship between the petitioner and her father is a fact that is not the content of a document. It can thereby be proved by oral evidence as provided under Section 59 of the Indian Evidence Act, 1872, which states :

"All facts, except the contents of documents or electronic records, may be proved by oral evidence."

Reference to Section 50 the said Act is also necessary which says : "When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 or in prosecution under Sections 494, 495, 497 or 498 of the Indian Penal Code".

In the light of these provisions, it was incorrect to hold that the linkage between the petitioner and her father is not sufficiently proved. The petitioner as well her father adduced oral evidence that they are related to each other. It was corroborated by the evidence of DW-3 who also furnished a certificate in this regard. This fact was not rebutted by the Referring Authority nor any evidence been led to disprove the claim. The Tribunal found no reason to hold that the evidence given by the petitioner and her father are false and neither has any prosecution been initiated against them for giving false evidence. Thereby, coming to a conclusion that the linkage between the petitioner and her father has not been proved is arbitrary and in contravention of the established law and it is sufficient reason for this Hon'ble Court to review its impugned Order.

(ii) Because this Hon'ble Court has overlooked the interpretation of Section 9 of the Foreigners Act, 1946, made by the Hon'ble Supreme Court of India in Sarbananda Sonowal I Case (2005) 5 SCC 665 wherein paragraph 26 the Hon'ble Supreme Court has said that after a proceedee has given evidence about facts like his date of birth, place of birth, name of parents, their place of birth and citizenship, the State authorities can verity the facts and can lead evidence in rebuttal. Similar view was expressed by a Full Bench of the Hon'ble Gauhati Page No.# 6/6

High Court in paragraph 86 of the Moslem Mondal case GLT 2013 1 809. In the present case, there has not been any rebuttal of the evidence adduced by the petitioner and the Tribunal has arbitrarily held the petitioner to be a foreigner despite the fact that she is a genuine Indian citizen and had adduced sufficient evidence in support of this fact. Thus, on this ground as well, the impugned order suffers from error apparent on the face of the record and there is sufficient reason to review it.

(iii) Because this Hon'ble Court has been apathetic towards the fact that the petitioner is illiterate and comes from the economically deprived background and that she had been married before she reached the eligible age for enrolment of her name in the electoral rolls which is why her name has not appeared in the electoral rolls with her father and also why she does not possess documents such school certificates or PAN card where father's name is mentioned. This is sufficient reason for this Hon'ble Court to review its order.

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 31.08.2020.

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