Gauhati High Court
Musstt Subdan Begum @ Sabjan Nessa vs Union Of India And 5 Ors on 8 January, 2021
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GAHC010062812020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./60/2020
MUSSTT SUBDAN BEGUM @ SABJAN NESSA
W/O MD. AKRAMAN HUSSAIN @ AKRAM ALI, R/O VILL-KALATALI, P.S.-
MUKALMUA, DIST. NALBARI, ASSAM.
VERSUS
UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF
HOME AFFAIRS, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY
HOME AND POLITICAL DEPARTMENT
DISPUR.
3:THE SUPERINTENDENT OF POLICE BORDER
NALBARI
ASSAM
4:THE DEPUTY COMMISSIONER
NALBARI
ASSAM
5:THE OFFICER-IN-CHARGE
MUKALMUA POLICE STATION
MUKALMUA
ASSA
Advocate for the Petitioner : MR. A R SIKDAR
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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. A.R. Sikdar, 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, 3 and 4 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 10.09.2019 dismissing the writ petition i.e.
WP(C) 4421/2017 wherein challenge was made to the opinion dated 16.05.2017 of the
Foreigners' Tribunal No.3, Nalbari, Mukalmua, in F.T. (Nal) MMA 3 Case No.29/2017. The
relevant portion of the said order is extracted hereinunder:
"2. Petitioner assails order/opinion dated 16.05.2017 passed by the Foreigners'
Tribunal No.3, Nalbari, Mukalmua in F.T. (Nal.) MMA 3 Case No.29/2017, declaring her to be a
foreigner.
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 Rahim as her
grandfather; Akshed Ali as the father, and Bimola Khatun as her mother. In support of her
case, the petitioner produced and exhibited 11 (eleven) documents, the particulars of which
may be noticed, as under :
(i) Exhibit-1 - Land Revenue Paying Receipts dated 12.05.1987, 27.02.1996
and11.03.1994 in the name of one Akshed Ali.
(ii) Exhibit-2 - Voter List of 1966 in the name of one Akshed Ali, son of Rahim, of
village Paschim Kajia under 58 No. Chenga LAC, district Kamrup.
(iii) Exhibit-3 - Voter List of 1971 in the name of one Akshed Ali, son of Rahim, of
village Chatala under 53 No. Sarukhetri LAC, district Kamrup, amongst others.
(iv) Exhibit-4 - Voter List of 1985 in the name of Akshed Ali, son of Rahim, and Bimola
Khatun, wife of Akshed, of village Bhagnamari under 60 No. Barkhetri LAC,
districtNalbari.
(v) Exhibit-5 - Voter List of 1997 in the name of one Akshed Ali, son of Rahim, of
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village Bhanganmari under 60 No. Barkhetri LAC, district Nalbari.
(vi) Exhibit-5A - Voter List of 1997 in the name of the petitioner showing one Akram as
her husband, of village Bhanganmari under 60 No. Barkhetri LAC, district Nalbari.
(vii) Exhibit-6 - Voter List of 2014 in the name of one Akram Ali and Sabjan Nessa, of
villagePeradhara under 60 No. Barkhetri LAC, district Nalbari.
(viii) Exhibit-7 - Certificate issued by the Secretary of 64 No. Bhagnamari Gaon
Panchayat, certifying Sabjan Nessa as the daughter of Akshed Ali, having got married
to Akram Ali on 01.02.1990.
(ix) Exhibit-8 - Elector Photo Identity Card dated 01.10.2013, issued by the Election
Commission of India in the name of 'Sabajan Necha', with relation to one Akram Ali.
(x) Exhibit-9 - Certificate dated 05.02.2017, issued by the In-Charge Headman i.e.
Abdul Matlib, of Lat No.3, village Bhangnamari, certifying Akshed Ali as the father of
Sabjan Nessa.
(xi) Exhibit-10 - Certificate dated 13.01.2017, issued by the Gaonburah of villages
Peradhora, Kaltali, Nadia, certifying one Akram Ali as the husband of Sabjan Nessa.
Besides the documents above, the petitioner presented for examination one witness, namely
Md. Sukur Ali, being the Gaonburah of villages Peradhora Kaltali and Nadia.
From the documents produced and exhibited, petitioner placed reliance onExhibit-7 Certificate
issued from the Bhangnamari Gaon Panchayat; Exhibit-8 Elector Photo Identity Card; Exhibit-9
Certificate of the i/c Headman of village Bhangnamari, and the Exhibit-10 Certificate of the Gaonburah
of villages Peradhara Kaltali and Nadia. There are, apparently, no voter lists recording the name of the
petitioner showing relationship with any of her projected parents or grandfather. The link documents,
particularly Exhibits-7 and 9 rendered itself as inadmissible in evidence, inasmuch as, neither the
certificates nor the contents thereof stood proved through the legal testimony of the issuing
authority/author. The Exhibit-10 Certificate also rendered itself as irrelevant despite the fact that the
author had deposed as DW-2.The said Certificate shows relationship of the petitioner only with the
projected husband Akram Ali. Besides, it clearly appears from the records that the petitioner could not
have been known to the author of the Exhibit-10 Certificate, inasmuch as, the Gaonburah concerned
is from village Kaltali and the petitioner's recorded existence at the said village Kaltali is only from the
year 2014. Further, the evidence tendered by DW-2, on the face of it, is wholly unreliable and
untrustworthy and serves no purpose in establishing linkage to the projected father.
One submission made on behalf of the petitioner is that during the proceedings a Report from
the Superintendent of Police (Border), Nalbari was called for, regarding the name of the petitioner, her
husband and that of her father, as because their names were incorrectly described in the reference. It
is stated that such Report was submitted before the Tribunal and in the order of the Tribunal dated
27.08.2015 it is recorded to the effect that the petitioner's name is Subjan Nessa, her husband's name
is Md. Akram Ali and her father's name is Akshed Ali. Submission made that having regard to the
Report there cannot be any dispute that Akshed Ali is the father of the petitioner. On this, we cannot
take on board the submission so made. Establishing linkage/relationship in a proceeding under the
Foreigners Tribunals Act, 1946 and the Foreigners (Tribunals) Order, 1964 can only come by way of a
declaration/opinion of the Foreigners' Tribunal concerned. A Report from the police authority cannot
be deemed to be sufficient for the purpose of establishing linkage/relationship between the proceedee
and the person from whom lineage is claimed.
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
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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 not only failed to discharge the burden but also utterly failed to establish linkage to her
projected grandfather Rahim or to the projected father Akshed Ali or to the projected mother Bimola
Khatun through any cogent, reliable and admissible evidence.
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.
Interim bail granted by this Court on 28.07.2017 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 :
"III. For that the writ petition was dismissed without considering a Report which was
submitted by the Superintendent of Police (B), Nalbari was called for, regarding the name of
the petitioner, her husband and that of her father, as because their names were incorrectly
described in the reference. The order of the Tribunal dated 27.08.2015 it is recorded to the
effect that the petitioner's name is Subjan Nessa, her husband's name is Md. Akram Ali and
her father's name is Akshed Ali. The Police Report was not considered for establishing linkage
therefore the view taken is apparently erroneous. The report itself indicates that she is the
daughter of Akshed Ali who is citizen of India being voter in the Voter List of 1966 and 1970.
The initial reference was made illegally without fair investigation and there was wrong
mentioning of names of the proceedee, her husband and her father. Based on the claim of the
petitioner, the fresh enquiry report was called for from the Police. The fresh enquiry reported
supported the claim of the petitioner and the same is also tallied with documents produced by
the petitioner. But the learned Tribunal has concluded the case relying on the false enquiry
report and ignored the pleaded case, documents and the fresh enquiry report. This Hon'ble
Court has also not looked into aspects and thereby error apparent has been caused.
IV. For that the writ petition was dismissed holding a view that no voter list showing the
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name of parents of the petitioner and grandfather the review petitioner respectfully begs to
state that her father namely Aksed Ali was a Pattadar and possession holder of a plot of land
measuring 1 (one) Bigha, covered by Dag No.562 and 567, village Paschim Kajia, Lot Number-
5, Mouza-Pashim Barkhetri, Circle-Barkhetri, Sub-Division-Nalbari in the District of Nalbari.
That after the death of the petitioner's father the legal heirs filed an application to mutate their
name as a legal heir and same was registered as 295/2006-2007 6/3/07 and Vide order dated
29/08/2008 by the Circle Officer the land was mutated in the name of Bilal, Akiran, Khorshed,
Sabjan, Bakful, Lalbhanu, Jahad Nirala, Rajmala as legal heir of their father Late Aksed Ali. The
petitioner name has been recorded along with her siblings and that was not in knowledge of
the review petitioner and also was not in her custody, more over the engaged counsel did not
advise to submit this land mutation order is awarded in this annexed in this review petition as
Annexure No.27. It is clearly established that the petitioner is the daughter of Aksed Ali. The
said Jamabandi shows the linkage that the petitioner father is Aksed Ali the said clarifying
documents may be accepted and opinion may be modified. It is because issued relates to
citizenship, precious most right."
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,
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 10.09.2019.
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
