Gauhati High Court
Ashiqur Rahman @ Md. Ashiqur ... vs The Union Of India And 7 Ors on 8 January, 2021
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GAHC010129242020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./87/2020
ASHIQUR RAHMAN @ MD. ASHIQUR RAHMAN
S/O- LATE SAHED ALI, R/O- VILL.- FALIHAMARI, P.O. TENGAGURI, P.S.
BHURAGAON, DIST.- MORIGAON, ASSAM, PIN- 782127.
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY SECRETARY TO THE GOVT. OF INDIA, 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-6.
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001.
4:THE STATE COORDINATOR
NRC
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI-5.
5:THE STANDING COUNSEL
SPECIAL FT AND BORDER.
6:THE DEPUTY COMMISSIONER
MORIGAON
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ASSAM
PIN- 782105.
7:THE SUPERINTENDENT OF POLICE (BORDER)
MORIGAON
ASSAM
PIN- 782105.
8:THE O/C
BHRAGAON POLICE STATION
MORIGAON- 782121
Advocate for the Petitioner : MR. K M HASSAN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
08.01.2021
(Manojit Bhuyan, J)
Heard Mr. K.M. Hassan, learned counsel for the review petitioner as well as Mr. P.S.
Lahkar, learned counsel representing respondent no.1. Mr. A. Kalita, learned counsel
represents respondent nos.2, 5, 6, 7 and 8 whereas Ms. B. Das, learned counsel appears for
respondent no.3. Ms. L. Devi, learned counsel accepts notice for respondent no.4.
Petitioner seeks review of the order dated 14.08.2019 dismissing the writ petition i.e.
WP(C) 3113/2019 wherein challenge was made to the opinion dated 16.07.2018 of the
Foreigners' Tribunal 2nd, Morigaon, Assam, in Case No.F.T.1223/2012. The relevant portion of
the said order is extracted hereinunder:
"2. Petitioner assails order/opinion dated 16.07.2018 passed by the Foreigners' Tribunal
2nd, Morigaon, Assam in Case No. F.T. 1223/2012, declaring him to be a foreigner, having
illegally entered into India (Assam) from the specified territory i.e. Bangladesh on or after
25.03.1971.
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For the purpose of discharging burden as required under section 9 of the Foreigners
Act, 1946 to prove that he is not a foreigner, the petitioner projected one Sahed Ali as his
father, Khatija Begum as his mother and one Saib Ali as his grandfather. The petitioner
produced and exhibited 13 (thirteen) documents, particulars of which may be noticed as
under:
(i) Exhibit-"Ka" - Copy of NRC of 1951 of village Khalihamari Pathar, Mouza-
Boragaon, P.S.-Lahorighat, District-Nagaon.
(ii) Exhibit-"Kha" - Undated copy of Ration Card No. 4004, in the name of Sahed
Ali, issued by Tengaguri Samabai Samiti Ltd.
(iii) Exhibit-"Ga" - Land Revenue Receipt dated 05.09.1961 in the name of
Sahedali Sheikh.
(iv) Exhibit-"Gha" - Land Revenue Receipt dated 10.03.1965 in the name of
Sahedali Sheikh.
(v) Exhibit-"Unga" - Voter List of 1965 in the name of one Rustam Ali Munsi, son
of Akbar Ali, aged 50 years, of village Fakli Pathar, Mouza-Juria, P.S.-Rupahihat,
district-Nagaon.
(vi) Exhibit-"Cha" - Certificate issued by the Gaonburah of Kisam-Falihamari
Pam/Pathar/Balipara Junble/Tengaguri, in favour of Arfan Ali, son of Late Sahed
Ali.
(vii) Exhibit-"Chha" - Certificate issued by the Gaonburah of Kisam-Falihamari
Pam/Pathar/Balipara Junble/Tengaguri, in favour of Khatija Khatun, wife of Late
Sahed Ali.
(viii) Exhibit-"Ja" - Certificate issued by the Gaonburah of Kisam-Fakli Pathar in
the name of one Khatija Khatun, wife of Late Sahed Ali.
(ix) Exhibit-"Jha" - School Leaving Certificate issued by Head Master, Phalihamari
Pathar M.V. School.
(ix) Exhibit-"Nia" - Copy of Voter List of 2016 showing names of Khatija Khatun, wife
of Sahed Ali; the petitioner Ashikur Rahman, son of Sahed Ali, and one Arfan
Ali, son of Sahed Ali.
(x) Exhibit- "Ta" - Copy of jamabandi in the name of Sahed Ali.
(xi) Exhibit- "Tha" - Elector Photo Identity Card in the name of Ashikur Rahman,
showing relationship to Sahed Ali.
(xii) Exhibit- "Da" - Elector Photo Identity Card in the name of Khatija Khatun,
showing relationship to Sahed Ali.
From the above there is not a single document, as may be admissible in law, connecting
himself to the projected father Sahed Ali. Most importantly, there is not a single voter list in the name
of Sahed Ali as an elector. Not to say the least, there are no voter lists showing relationship between
the projected father Sahed Ali and the projected mother Khatija Khatun.
The Exhibit-'Ka', being the copy of the NRC of 1951, as well as the Exhibit-'Kha' cover page of
the Ration Card, both remained unproved in the absence of examination of the respective issuing
authorities. Further, the NRC of 1951 in the names of the projected grandfather, father and other
persons is not a document admissible in evidence, inasmuch as, the NRC updation process is yet to
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stand complete. The Exhibit-'Ga' and 'Gha', being land revenue payment receipts of the year 1961 and
1965 rendered itself as inadmissible in evidence without the original land records being produced to
show that the revenue so paid was in respect of land belonging to the projected father Sahed Ali. The
said receipts, thus, stood as unreliable and untrustworthy documents. Exhibit- 'Unga', being the Voter
List of 1965 in the name of one Rustom Ali Munchi, projected as his maternal grandfather, is an
irrelevant document, inasmuch as, the proceedee was not drawing lineage from the said maternal
grandfather. The Gaonburha certificates at Exhibits -'Cha', 'Chha' and 'Ja', as well as Exhibit- 'Jha'
school leaving certificate, together with the contents thereof, did not stand proved through the legal
testimony of the author of the certificates. In so far as Exhibit-'Nia' is concerned, being the Voter List
of 2016, it is seen that the same records the names of Khatija Khatun, aged 72 years; Arfan Ali, aged
38 years, and Ashiqur Rahman (the petitioner), aged 28 years. Apparently, the petitioner did not
explain his relationship with Arfan Ali appearing in the said voter list. Although the petitioner projected
one Khatija Begum as his mother, the Voter List of 2016 recorded the name of one Khatija Khatun,
aged 72 years. Assuming Khatija Khatun as the mother of the petitioner, it is left to wonder as to why
the name of Khatija Khatun did not appear in any earlier voter lists. Khatija Khatun being 72 years in
the year 2016 was, therefore, born in the year 1944 and thus attained the age of voting in the year
1965. Surprisingly, Khatija Khatun's name appears for the very first time in the Voter List of 2016,
aged 72 years. The entire aspect raises reasonable doubt as to there liability of Exhibit-'Nia' itself. The
Exhibit-'Ta' copy of Jamabandi in the name of Sahed Ali, besides being a document of post 25.03.1971
period, did not stand as are liable and trustworthy document in the absence of production of the
original land records in proof of the entries and contents of the Jamabandi itself. Finally, the Elector
Photo Identity Cards at Exhibit-'Tha' and 'Da' remained as documents inadmissible in evidence as it is
too well settled that such documents are no proof of citizenship.
Besides the documents above, one Md. Afaz Uddin deposed as DW-2, in his capacity as
cultivator and neighbour. On a bare perusal of the statement of DW-2, the same does not appear to
be credible. The DW-2 could not establish that the petitioner is the son of Sahed Ali through any
legally admissible documents. It is left to wonder as to how DW-2 had special knowledge with regard
to the family of the petitioner when nothing could be established that he was in any way related to
the petitioner. It is evident that said DW-2 is more an interested witness than anything else.
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,the petitioner utterly failed to discharge the burden and to prove that he is a descendant of
parents of Indian origin.
A mere perusal of the records in original would show that the Tribunal rendered its opinion
after due appreciation of the entire facts, evidence and documents brought on record. In this respect
we may usefully observe 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. 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 by the petitioner that interference is warranted
on ground that the Tribunal had either acted on evidence which is legally impermissible and/or that it
refused to admit admissible evidence and/or that the Tribunal gave findings not supported by any
evidence at all.
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We, therefore, find no merit in the writ petition. Accordingly, the same stands dismissed,
however, without any order as to cost.
Interim bail granted by earlier order dated 24.05.2019 stands recalled. Office to send back the
case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference . "
The present review petition is laid primarily on the following grounds :
"(ii) For that, this Hon'ble Court while passing the order dated 14.08.2019 failed to take into
consideration of the statement made in para-19 of the writ petition wherein he categorically
stated that the voter list of 1970, 1989, 1993, 1997 and 2010 could not be produced and
exhibited before this Tribunal below at the time of adducing evidence because the petitioner
could not trace out the same at the relevant time but the petitioner having collected the
certified copies of those voter lists (Annexure-3, 3A, 3B, 3C and 3D) annexed those documents
along with the writ petition with a prayer for kind consideration and for the ends of justice.
The aspect of the matter has not been touched by this Hon'ble Court while passing the order
dated 14.08.2019 causing thereby irreparable loss to the petitioner. Had there been proper
scrutiny of those documents by this Hon'ble Court, the petitioner ought not to have suffered
irreparable loss, inasmuch as, the subject matter could have been remanded to Foreigners'
Tribunal below for adducing the petitioner further evidence for proper adjudication of the case.
(iv) For that names of petitioner's own brother namely Habibuddin and his mother namely
Khatija Khatun were listed National Register of Citizen (NRC) published in 14.09.2019 in
Assam. This aspect of the matter could no be brought to the knowledge of the Hon'ble Court,
inasmuch as order of dismissing the writ petition of the petitioner was passed on 14.08.2019
whereas the subject NRC was published on 14.09.2019. The Hon'ble Supreme Court in a
recent order dated 12.09.2018 passed in SLP(C) No.8252/2018 held that a person whose other
biological brother and relatives are not found foreigner was entitle to go for bail and
accordingly the petitioner is allowed and in this instant case the petitioner's brother and
mother were not found foreigner. Considering this aspect the order dated 14.08.2019 is
required to be modified and reviewed."
Having noticed the grounds seeking review for producing new documents 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,
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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 14.08.2019.
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
