Gauhati High Court
Hasna Begom Barbhuiya @ Hasna ... vs Union Of India And 5 Ors on 7 January, 2021
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GAHC010139472020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./89/2020
HASNA BEGOM BARBHUIYA @ HASNA BEGOM
D/O. LT. SWAKAT ALI BARBHUIYA @ SWAKAT ALI, VILL. SEWTI PART-I,
P.O. BEHARA BAZAR, P.S. KATIGORAH, DIST. CACHAR, ASSAM.
VERSUS
UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, NEW DELHI-110001.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-781006.
3:THE DY. COMMISSIONER
CACHAR
ASSAM
4:THE ELECTION COMMISSION OF INDIA
REP. BY DIST. ELECTION OFFICER
CACHAR
ASSAM.
5:THE SUPDT. OF POLICE (BORDER)
CACHAR
ASSAM.
6:THE STATE COORDINATOR
NRC
ASSAM
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ACHYUT PLAZA
BHANGAGARH
GHY- 5
Advocate for the Petitioner : MR M J QUADIR
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 Mr. M.J. Quadir, 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 and 5 whereas Ms. B. Das, learned counsel appears for
respondent no.5. Ms. L. Devi, learned counsel accepts notice for respondent no.6.
Petitioner seeks review of the order dated 02.09.2020 dismissing the writ petition i.e.
WP(C) 3149/2020 wherein challenge was made to the opinion dated 01.10.2018 of the
Foreigners' Tribunal 4th, Cachar, Silchar, Assam, in F.T. 4 th/D/419/2015. The relevant portion
of the said order is extracted hereinunder:
"2. Petitioner assails order dated 01.10.2018 passed by the Foreigners' Tribunal-4th
Cachar at Silchar in Case No.F.T. 4th/D/419/2015, declaring her to be a foreigner, having
illegally entered into the territory of India (Assam) on or after 25.03.1971 from the specified
territory.
For the purpose of discharging burden as required under section 9 of the Foreigners
Act, 1946 to prove that she is not a foreigner, the petitioner projected one Saket Ali as her
father. In support of her case, she exhibited as many as 3 (three) documents, the particulars
of which may be noticed, as under:
(i) Exhibit-1 - School Transfer Certificate dated 14.02.2004, issued by the Principal, Judhisthir
Saha Higher Secondary School certifying that the petitioner is the daughter of late Swakat Ali
Barbhuiya, an inhabitant of village Sweti Part-I, P.O. Behara Bazar, P.S. &Dist- Cachar.
(ii) Exhibit-2 - Certified copy of Voter List of 1965 in the name of one Saket Ali, projected as
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the father of the petitioner, of village Sewti Pt-I, district- Cachar under 17 No. Katigarah LAC,
which was produced by the petitioner.
(iii) Exhibit-3 - Certified copy of Sale Deed dated 13.09.1961, issued in the name of the
projected father of the petitioner.
It is stated that the Voter List of 1965, which was produced by the petitioner and
marked asExhibit-2, a similar document was produced by the State, which was marked as
Exhibit-A.
Besides the documents above, the petitioner did not present for examination any
independent witnesses in support of her case. Even in respect of the projected father, no
subsequent voter lists were brought on record. Neither any voter lists was brought on record
showing the name of the petitioner along with the projected father.
From the exhibited documents, the petitioner is only relying upon the School Transfer
Certificate at Exhibit-1 as a link to her projected father. However, the said certificate rendered
itself inadmissible in evidence, inasmuch as, the author was not examined to prove the
certificate and the contents thereof. The Sale Deed at Exhibit-3, produced by the petitioner
only reflects the name of the projected father, rendering the same as an irrelevant document
for the purpose of establishing linkage. Thus, the School Transfer Certificate at Exhibit-1 as
well as the Sale Deed at Exhibit-3 do not come to the aid of the petitioner in establishing
linkage to her projected father Sakat Ali. Anotheraspect to be noticed here is that in the Voter
List of 1965 at Exhibit-A/Exhibit-2 the name of thepetitioner's projected father is reflected as
Saket Ali whereas in the linkage document i.e. School Transfer Certificate at Exhibit-1 her
projected father is reflected as Swakat Ali Barbhuiya. Discrepancy is galore even in the name
of the petitioner's projected father, whether it is Saket Ali or Swakat Ali Barbhuiya.
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 father Saket Ali.
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.
On the discussions and findings above, we find no merit in the writ petition.
Accordingly, the same stands dismissed, however, without any order as to cost.
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A copy of this order be made part of the case records of the Tribunal for future
reference."
The present review petition is laid on the following grounds :
"(A) For that there are errors apparent on the face of the record as the Tribunal refused to
admit admissible evidence adduced by the petitioner and as such the impugned order is liable
to be reviewed by this Hon'ble Court.
(B) For that there are errors apparent on the face of the record as the learned Tribunal
placed reliance on the voter identity card of Bilatun Nessa which is not an exhibited document
while refused to admit the exhibit 1, 3 and 4 while passing the impugned judgment and order
and as such the order dated 02.09.2020 is liable to reviewed by this Hon'ble Court.
(C) For that the petitioner stated in paragraph 13 of her written statement that Swakat Ali
Barbhuiya as mentioned in her school certificate and Swakat Ali as mentioned in the voter list
of 1965 and in the sale deed is the one and same person i.e. her father and the same
remained uncontroverted.
(D) For that in paragraph 10 of the evidence in chief the petitioner stated that Swakat Ali
Barbhuiya as mentioned in her school certificate and Swakat Ali as mentioned in the voter list
of 1965 and in the sale deed is the one and same person i.e. her father and the same
remained uncontroverted.
(E) For that an uncontroverted statement is admissible evidence but the learned Tribunal
failed to appreciate the same and as such the order dated 02.09.2020 is liable to reviewed by
this Hon'ble Court.
(F) For that the petitioner could not produce any voter list to establish her linkage with her
father is as she got married to Main Uddin Barbhuiya in the year 1995 at the age of 19 years
before her name was enlisted in the voter list along with her other family members. After her
marriage she has been living with her husband and her name is being enlisted in the voter list
of 2005, 2010 and also her name has been appeared in the Final NRC list along with her
husband and children.
(G) For that the mutation certificate issued by the Assistant Settlement Officer, Katigorah
Revenue Circle on 15.11.2018 which establishes the right of inheritance of the petitioner in the
property of her father along with her brothers. This mutation certificate clearly establishes the
linkage between the petitioner with her father.
(H) For that the Hon'ble Court made an observation that in 1965 voter list petitioner's
father's name is reflected as "Sakat Ali" whereas in School Transfer Certificate his name is
reflected as "Swakat Ali Barbhuiya". The name of petitioner's father appeared in the voter list,
in Legacy Data and in land documents in vernacular. The name of her father can be spelled in
English as "Sakat Ali" or "Swakat Ali". In some land documents the vernacular can be spelled in
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English as Swakat Ali instead of Sakat Ali.
(I) For that petitioner had exhibited the Gaon Panchayat certificate issued the President
and Secretary as Exhibit-4 certifying the fact that she is the daughter of Swakat Ali Barbhuiya.
Neither the Foreigners' Tribunal nor this Hon'ble Court had discarded the said exhibited
document which clearly proves the linkage of the petitioner with her father Swakat Ali
Barbhuiya @ Swakat Ali.
(J) For that petitioner had established her linkage with her father Swakat Ali" son of
Monuhar Ali through school transfer certificate, Gaon Panchayat certificate and her statement
recorded in the cross examination. But as because her mother's nickname "Padaya Bibi" was
inadvertently recorded in the voter list of 1965 the Tribunal refused to believe that petitioner is
the daughter of Swakat Ali and Bilatun Nessa @ Padaya Bibi. Tribunal also observed that there
are some discrepancy in the age of the mother of the petitioner in voter list of 1965 and Voter
ID issued in the year 2013 but it is not the fault of the petitioner for which these discrepancy
occurs. It is the electoral enumerator who recorded the names and ages of the petitioner and
for their mistakes petitioner could not be prejudiced.
(K) For that the petitioner has all relevant documents to prove her linkage with her father
mother of which were submitted to the engaged counsels but learned counsels did not
consider that all the documents are necessary to prove her case for which all those documents
were not produced before the Tribunal and also before this Hon'ble Court with the writ
petition. The petitioner read up to class VIII and not fully aware about court proceedings, on
bona fide belief submitted the sale deed of 1996, voter lists of 2005, 2010, mutation certificate
and other documents to her engaged counsel so that the same would be exhibited before the
Tribunal to prove her Indian Citizenship but after the Tribunal's judgment petitioner with utter
shock came to know that most of these documents had been placed before the learned
Tribunal. For the fault of the counsel the petitioner may not suffer.
(L) For that the petitioner could prove her Indian citizenship during the NRC updation
process in the State of Assam which was undertaken under the supervision of the Hon'ble
Apex Court and as such the order dated 02.09.2020 may be reviewed by this Hon'ble Court.
(M) For that this Hon'ble Court in other view of the matter the order dated 02.09.2020 is
liable to be reviewed by this Hon'ble 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
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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 02.09.2020.
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
