Basana Shill vs The Union Of India And 4 Ors
2022 Latest Caselaw 4538 Gua

                                                                      Page No.# 1/8

GAHC010285862019




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

                        Case No. : Review.Pet./190/2019 In
                          WP(C)/2459/2017 (D/O)

         BASANA SHILL
         W/O- SRI KISHOR SHILL, D/O HARIDAS SHILL. R/O- WARD NO. 7,
         LAESHWARI GRANT, P.S- LANKA, DIST- HOJAI, ASSAM



         VERSUS

         THE UNION OF INDIA AND 4 ORS.
         REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA.
         MINISTRY OF POLITICAL AND HOME AFFAIRS, NEW DELHI

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-781006

         3:THE DIRECTOR GENERAL OF POLICE
          ULUBARI
          GUWAHATI-6

         4:THE DEPUTY COMMISSIONER
          -CUM-DISTRCT ELECTION OFFICER-CUM-ELECTORAL REGISTRATION
         OFFICER
          HOJAI
          P.O.SANKARDEVNAGAR
          DIST- HOJAI
         ASSAM
          PIN- 782442

         5:THE SUPERINTENDENT OF POLICE (BORDER)
                                                                          Page No.# 2/8

             HOJAI
             P.O.SANKARDEVNAGAR
             DIST- HOJAI
             ASSAM
             PIN- 78244

Advocate for the Petitioner   : MS. G BORAH

Advocate for the Respondent : SC, A.S.G.I.




                                  BEFORE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
                 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                         JUDGMENT

Date : 17-11-2022

Sanjay Kumar Medhi, J The present petition has been filed for review of an order dated 09.04.2019 passed in WP(C)/2459/2017. By the aforesaid order, the writ petition, which was filed against an order dated 30.03.2017 passed by the learned Foreigner's Tribunal-7 at Lanka, Nagaon (for short hereinafter referred to as the Tribunal) in F.T/L/Case No.408/2016 has been dismissed and the order of the Tribunal declaring the petitioner, as a foreigner of post 25.03.1971 stream, has been upheld.

2. The review petition has been stated to be filed under Section 114 read with Order 47 of the Code of Civil Procedure.

3. We have heard Ms. G Borah, learned counsel for the review petitioner as well as Shri PS Bhattacharyya, learned CGC for the Union of India. We have also heard Shri G Sarma, learned Standing Counsel, Foreigners Tribunal; Ms. U Das, learned State Counsel, Assam; Mr. AI Ali, learned Standing Counsel, Election Commission of India as well as Ms. L Devi, learned Standing Counsel, State Co-ordinator, NRC.

Page No.# 3/8

4. The grounds, which have been urged in this review petition, can be summarised as follows:

(i) The engaged counsel in the Tribunal did not take steps to call for the relevant witnesses to prove Ext.-1, which is a certificate relating to the applicant's educational qualification and Ext.-4 issued by the Ward Commissioner of Hojai Municipal Board.

(ii) The applicant should not be made to suffer because of the negligence of her engaged counsel in not calling for the relevant witnesses to prove the aforesaid two documents.

(iii) A complaint has been lodged against the engaged Advocate of the Tribunal at the Bar Association of Sankardev Nagar, Hojai with the help of the present counsel.

(iv) The applicant being an ordinary person was not aware of the intricacies of law which involves technicalities in proving a document.

5. Ms. Bora, learned counsel for the applicant has submitted that the findings of the learned Tribunal is erroneous whereby the relevant documents have not been properly appreciated and the aforesaid findings have been affirmed by this Court in the judgment dated 09.04.2019 which requires to be reviewed.

6. Per contra, Shri G Sarma, learned counsel for the respondent nos. 2, 3 5 has contended that there are absolutely no grounds of review. He further submits that the present petition is for review and unless the petitioner is able to make out a ground Page No.# 4/8

for review, the same is not maintainable. It is submitted that the present exercise is an afterthought as no error, apparent on the face of it, has been committed by this Court. Endorsing the aforesaid submission questioning the maintainability of the present petition, Shri PS Bhattacharyya, learned CGC-respondent no. 1 and Ms. U Das, learned Govt. Advocate, Assam have further contended that the present application is nothing but an appeal in disguise which is not the purport and ambit of a review petition.

7. Shri AI Ali, learned Standing Counsel, Election Commissioner of India and Ms. L Devi, learned Standing Counsel, NRC also assisted the Court. It is submitted by them that none of the ingredients of Order 47 of the CPC are fulfilled by the applicant.

8. In support of their submissions, the learned counsel for the respondents have placed reliance upon the following case laws:

(i) (2013) 8 SCC 320, Kamlesh Verma Vs. Mayawati & Ors.;

(ii) (2022) SCC OnLine 1034, S Madhusudhan Reddy Vs. V Narayana Reddy & Ors.

9. In the case of Kamlesh Verma (supra), the following have been laid down by the Hon'ble Supreme Court:

"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of Page No.# 5/8

the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

Page No.# 6/8

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

10. In the recent decision dated 18.08.2022 in the case of S Madhusudhan Reddy (supra), a Three Judges' Bench of the Hon'ble Supreme Court has reiterated the aforesaid law laid down in the case of Kamlesh Verma (supra).

11. At this stage, this Court is reminded of the settled position of law that to maintain a review petition, the conditions precedent have to be there i.e., error apparent on the face of the records, discovery of new facts which were not within the knowledge of the review applicant and would have a material bearing in the adjudication and thirdly, for any other sufficient reasons.

12. In the case of Shivdev Singh & Ors. Vs. State of Punjab & Ors. , reported in AIR 1963 SC 1909, the Hon'ble Supreme Court has clarified that there is no restriction in Article 226 of the Constitution of India for exercising the power of review as, it is a Court of plenary jurisdiction. However, it has been held that there are definitive limitations and are not to be exercised on the ground that the decision was erroneous on merits, as the same could be a matter within the domain of an Appellate Court. It has further been clarified that a review power should not be confused with appellate power which may enable an Appellate Court to correct all matters of error committed by a subordinate court.

13. The aforesaid view has been uniformly followed by the Hon'ble Supreme Court, including in the landmark case of Aribam Tuleswar Sharma Vs. Aribam Pishak Page No.# 7/8

Sharma, reported in (1979) 4 SCC 389, a case which had gone from this High Court.

14. In the instant case, it is seen that the so-called grounds of review revolve around a statement that the engaged counsel of the applicant in the Tribunal had erred in not calling for the proper witnesses to prove two documents which were exhibited as Ext.-1 and Ext.-4. The further statement has been made that a complaint has been lodged against the counsel in the Bar Association, Sankardev Nagar, Hojai. A bare perusal of the pleadings made in the writ petition, however, would reveal that there were no such grounds or averments regarding any default on the part of the engaged counsel. Rather, there is not even a whisper to that effect. It clearly appears that the aforesaid ground is an afterthought and in any case, cannot be construed as a ground of review. Lodging of a complaint against the engaged counsel cannot be a ground to review and in any case, as per the pleadings, the complaint has been lodged before the Bar Association, Sankardev Nagar, Hojai which otherwise, would also be of no consequence as the controlling authority is the Bar Council. It appears that the review petition has been structured and presented as if, it is an appeal against the order dated 09.04.2019 and to say the least, no grounds of appeal are also discernible.

15. This Court finds force in the contention of the learned counsel for the respondents that a review petition cannot be equated with the original writ petition as, in a review petition, the grounds are circumscribed and limited. This Court, in the judgment dated 09.04.2019, has duly considered the case of the applicant and thereafter, dismissed the same and no error, apparent on the face of it, is discernible.

16. In the instant case, we are of the opinion that in the findings reached by this Court, as recorded in the order dated 09.04.2019, no error apparent on the face of the records, is seen therein and the same has been passed by taking into consideration all Page No.# 8/8

the relevant materials. It is an established law that the correctness of an order cannot be tested in a review petition for which the appellate forum is available. It is further laid down that a judgment may be erroneous but that by itself, would not make it fit for review unless, the error is apparent on the face of the records. In the course of hearing, nothing could be shown on behalf of the petitioner that the judgment was palpably erroneous on the face of the records.

17. In that view of the matter, we are of the considered opinion that no grounds, whatsoever have been able to be made out warranting review of the findings arrived at by this Court in its order dated 09.04.2019.

18. The review petition is accordingly dismissed.

19. No order, as to costs.

                                                  JUDGE             JUDGE



Comparing Assistant