Gauhati High Court
Review.Pet./27/2022 on 3 June, 2025
Bench: Kalyan Rai Surana, Manish Choudhury
Page No. 1/30
GAHC010011132022
2025:GAU-AS:7141-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Review Petition no. 27/2022
In W.P.[C.] 2853/2019
Altar Ali, Aged 41 years, S/O - Late Insan Ali,
R/O - Village - Salmara, P.O. - Domoria, P.S. -
Tamulpur, District - Baksa, BTR, Assam, Pin
Code - 781368.
.................. Review Petitioner
-Versus-
1. The Union of India, represented by the
Secretary to the Govt. of India, Ministry of Home
Affairs, New Delhi-1.
2. The Election Commission of India, New
Delhi-1.
3. The State of Assam, represented by the
Commissioner and Secretary to the Govt. of
Assam, Home Department, Dispur, Guwahati-6.
4. The State Co-Ordinator of NRC, Bhangagarh,
Assam, Ghy-5.
Page No. 2/30
5. The Deputy Commissioner, Baksa, District -
Baksa, BTR, Assam, PIN - 784125.
6. The Superintendent of Police [B] Baksa,
District -Baksa, BTR, Assam, PIN - 784125.
7. The Officer-in-Charge, Tamulpur Police
Station, Dist - Baksa, BTR, Assam, PIN -
784145.
...................Respondents
Advocates :
Review Petitioner : Mr. M.U. Mahmud, Advocate
Respondents : Mr.P.S. Bhattacharyya, CGC; Mr. P. Sarma,
Addl. Senior Government Advocate, Assam;
Mr. A.I. Ali & Mr. J. Payeng, Standing
Counsel; Mr. M. Islam, Advocate
Date of Hearing : 13.05.2025
Date of Judgment : 03.06.2025
BEFORE
HOn'BlE MR. JUsTICE KAlyAn RAI sURAnA
HOn'BlE MR. JUsTICE MAnIsH CHOUDHURy
JUDGMEnT
[Manish Choudhury, J]
This review petition under Chapter-X of the Gauhati High Court Rules
read with Order XLVII, Rule 1 and Rule 2, Code of Civil Procedure, 1908
['CPC' or 'the Code', for short] is preferred seeking review of an Order
dated 10.05.2019 passed in a writ petition, W.P.[C] no. 2853/2019.
2. The events leading to the passing of the Order dated 10.05.2019 can
be recapitulated, in brief, at first.
2.1. A reference was made by the Superintendent of Police [Border], Baksa
under Section 2 [1] of the Foreigners [Tribunals] Order, 1964 to the
Foreigners Tribunal, Baksa at Tamulpur ['the Tribunal', for short] on the
ground that on being asked, the proceedee-opposite party, that is, the
petitioner could not produce within given time any documentary
evidence in support of his entry into India prior to 25.03.1971, though
he claimed to be a citizen of India. The reference was made to the
Tribunal for its opinion as to whether the proceedee-opposite party-
petitioner was a foreigner or not.
2.2. On receipt, the reference was registered as F.T. Case no.
17/BAKSA/2018. After registration, the Tribunal issued notice to the
proceedee-opposite party-petitioner [hereinafter also referred to as 'the
petitioner', at places, for easy reference] and on receipt of the notice,
the petitioner duly entered appearance and contested the proceedings
by filing a written statement denying the allegations and later on, by
adducing his evidence on affidavit as O.P.W.1 along with documentary
evidence. The proceedee also adduced evidence of two other
witnesses, O.P.W.2 and O.P.W.3 in support of his claim as an Indian
citizen and the witnesses were duly cross-examined.
2.3. In the written statement, it was inter-alia contended by the petitioner
that the name of his father was Insan Ali, who was a citizen of India by
birth and was born at Village - Narayangaon, Police Station -
Ghograpar, District - Nalbari and the names of his family were enrolled
in the Electoral Roll of 1966 in the then 64 no. Barbhag LAC. It was
further claimed that Insan Ali migrated from Nalbari District to Kamrup
District in the year 1962-1963 and since then, the parents of the
petitioner along with their family were permanently residing at Village -
Salmara, Police Station - Tamulpur, District - Baksa and his father's
name was enrolled in the Electoral Roll of 1979 in the said village. It
was also mentioned that the petitioner's name was not enrolled in the
voters list. In the written statement, the petitioner declared his age as
40 years as on 05.09.2018.
2.4. When the petitioner adduced evidence as O.P.W.1, he for the purpose
of discharging the burden as not being a foreigner and to establish his
linkage with his projected father, Insan Ali, produced and exhibited six
nos. of documents as Ext.-1 to Ext.-6. A photocopy of extract of
Electoral Roll of 1966 was also submitted. The evidence of O.P.W.3 was
adduced in relation to Ext.-4 whereas the evidence of O.P.W.2 was
adduced to establish the linkage.
2.5. The Tribunal after consideration and evaluation of the exhibited
documents and the evidence of the witnesses, came to a finding that
the petitioner failed to discharge the burden as required under Section
9 of the Foreigners Act, 1946 and held that the petitioner was not
successful to prove his citizenship. In its Opinion/Order dated
21.01.2019 passed in F.T. Case no. 17/BAKSA/2018, the Tribunal held
that the proceedee-opposite party-petitioner entered into India illegally
on or after 25.03.1971 from the specified territory.
2.6. Being dissatisfied with and aggrieved by the Opinion/Order dated
21.01.2019 passed by the Tribunal, the petitioner preferred a writ
petition under Article 226 of the Constitution to assail the Opinion/Order
dated 21.01.2019 and also seeking a direction to declare him as an
Indian citizen. The said writ petition was registered and numbered as
W.P.[C] no. 2853/2019.
3. During the writ proceedings, notices were issued to the respondents
and the case records of F.T. Case no. 17/BAKSA/2018 were
requisitioned. The writ petition came up for consideration on
10.05.2019. After hearing the learned counsel for the petitioner and the
respondents; and after perusal of the materials available in the case
record of F.T. Case no. 17/BAKSA/2018 and other materials, the writ
petition was dismissed by the Order dated 10.05.2019 finding the writ
petition bereft of any merit.
3.1. In the Order dated 10.05.2019, it was observed that while passing the
Opinion/Order dated 21.01.2019 the Tribunal had carefully appreciated
whatever evidence was led by the petitioner before it and, thereafter,
had rendered the finding that the petitioner had failed to establish his
claim to be a citizen of India by reliable and cogent evidence. It has
been observed that such a finding being a finding of fact, a writ court
exercising jurisdiction under Article 226 of the Constitution does not,
ordinarily, interfere with such finding of fact unless there is perversity,
because the jurisdiction so exercised is supervisory and not appellate.
4. It is after dismissal of the writ petition, W.P.[C] no. 2853/2019 on
10.05.2019, the present review petition has been preferred on
19.01.2022. Notices were issued to the respondents on 08.04.2022 and
in the interim, it was provided that the petitioner, if not detained till
then, shall not be detained/arrested and deported from India.
5. We have heard Mr. M.U. Mahmud, learned counsel for the review
petitioner at length; Mr. P.S. Bhattacharjee, learned Central
Government Counsel for the respondent no. 1; Mr. A.I. Ali, learned
Standing Counsel, Election Commission of India [ECI] for the
respondent no. 2; Mr. J. Payeng, learned Standing Counsel, Home
Department and NRC etc. for the respondent no. 3, 4, 6 & 7; and Mr. P.
Sarma, learned Additional Senior Government Advocate, Assam for the
respondent no. 5.
6. Mr. Mahmud, learned counsel for the petitioner in the course of his
submissions has extensively referred to the grounds of review raised in
the review petition vis-à-vis the Order dated 10.05.2019. He has
submitted that the Court by adopting a pedantic approach, had
dismissed the writ petition. He has further submitted that the name of
one of the petitioner's brother, namely, Intaz Ali has been entered in
the National Register of Citizen [NRC] and the petitioner being a
brother of Intaz Ali, both the Opinion/Order dated 21.01.2019 of the
Tribunal and the Order dated 10.05.2019 of this Court call for a
reconsideration and review. It is further contended by him that the
documents exhibited by the petitioner before the Tribunal were not
considered in the right and correct perspective.
6.1. In support of his submissions that a case for review is made out, the
learned counsel for the petitioner has relied upon the decisions : [i]
Harpal Singh and another vs. State of Himachal Pradesh, [1981] 1
SCC 560; [ii] State of Assam and others vs. Moslem Mondal and
others, 2013 [1] GLT [FB] 809, Para 112; [iii] M.M. Thomas vs. State
of Kerala and another, [2000] 1 SCC 666, Paras 14 & 17; [iv] M.C.
Mehta vs. Union of India and others, [2004] 6 SCC 588 , Para 41; [v]
Board of Control for Cricket in India and another vs. Netaji Cricket
Club and others, [2005] 4 SCC 741, Paras 88, 89 & 90; [vi] State of
Manipur and another vs. Ambition Ragui and another, 2015 [2]
GLT 517, Paras 10 & 14; [vii] Sirajul Hoque vs. State of Assam and
others, [2019] 5 SCC 534, Paras 2 to 5; and [viii] Abdul Kuddus vs.
Union of India and others, [2019] 6 SCC 604 , Para 28.
7. Au contraire, the learned counsel for the respondents have submitted
that the petitioner has failed to make out any ground for review. It is
their contention that none of the grounds on which review is sought,
comes within the scope and ambit of review jurisdiction. By referring to
the grounds urged in the present review petition, it is contended that
the petitioner is trying to re-agitate the case on the grounds which were
urged earlier during the writ proceedings, thereby, trying to do a
rehearing. They have contended that the issues which were already
heard and decided during the writ proceedings, cannot be agitated
again in a review petition. Just because the name of the petitioner's
projected brother is included in NRC, the same would not enure any
benefit to the petitioner and on that ground, the review petition is not
maintainable. Learned counsel for the respondents have also referred
to the decision in Moslem Mondal [supra] to highlight about the
certiorari jurisdiction of the High Court under Article 226 of the
Constitution.
7.1. Apart from relying on a number of authorities as regards review
jurisdiction, the learned counsel for the respondents have also relied in
the decisions in Moslem Mondal [supra], Sirajul Hoque [supra] and
Abdul Kuddus [supra].
8. We have duly considered the submissions of the learned counsel for the
parties and have also gone through the Order/Opinion dated
21.01.2019 passed by the Tribunal in F.T. Case no. 17/BAKSA/2018 as
well as the Order dated 10.05.2019 passed in the writ petition, W.P.[C]
no. 2853/2019.
9. The present review petition is preferred on the following grounds :-
GROUNDS :
[i] For that the Hon'ble High Court has not considered the School
Certificate as linkage where the name of the petitioner is mentioned as
Atar Ali, Son of Late Insan Ali, an inhabitant of Village - Salmara, Post
Office - Dumuria, Mouza - Kumarikata, Police Station - Tamulpur,
District - Baksa, BTAD, Assam. As the Headmaster came to witness
box, the linkage has been duly proved. In such cases, this Hon'ble
Court has given chance to many individuals to prove their linkage
under similar circumstance.
[ii] For that the Hon'ble Court may considre the case of the petitioner,
as his own brother's name has been listed in final NRC, 2019 as Intaz
Ali, Son of Insan Ali and Momina Khatun as ACCEPTED, which is a
good ground for review in view of the Hon'ble Supreme Court's order
passed in the case of Abdul Kuddus.
[iii] For that the Hon'ble High Court in Full Bench decision, as
reported in 2013 [1] GLT 809, Paras 90, 91 & 92, it has categorically
observed that the Tribunal has the power to review the order, if
appropriate ground exists. Moreover, in a large number of judgments,
the Hon'ble Apex Court has also held that the courts have ample
powers to review its own orders even on subsequent developments.
[iv] That the voter list of 1966 and duplicate school certificate have
been marked as Ext.-A and Ext.-4, respectively. So, there is no
justification to disbelieve the same by Tribunal or by Hon'ble High
Court.
[v] For that a large number of documents including Land's
Jamabandi, Chitha copy, voter lists, revenue receipts, etc. have been
submitted and also exhibited but those were not considered by the
learned Tribunal and High Court, which require interference.
[vi] For that the other grounds may be submitted at the time of
hearing.
10. It is apposite to mention that as per Rule 3 of Order XLVII, CPC, the
provisions as to the form of preferring appeals shall apply mutatis
mutandis, to applications for review.
11. One of the fundamental principles for issuing of a writ of certiorari is
that the writ can be availed of only to remove or adjudicate on the
validity of judicial acts. The expression, 'judicial acts' includes the
exercise of quasi-judiciary functions by administrative bodies or
tribunals or other authorities or persons, obliged to exercise such
function. The second essential feature of a writ of certiorari is that the
control which is exercised through it over judicial or quasi-judicial
tribunals or bodies is not in an appellate but in a supervisory capacity.
In granting a writ of certiorari, the High Court does not exercise the
power of an appellate court and it does not review or reweigh the
evidence upon which the determination of the tribunal purports to be
based. A five-Judge Bench of the Hon'ble Supreme Court in T.C.
Basappa vs. T. Nagappa and another, AIR 1954 SC 440, has held that
a writ in the nature of certiorari under Article 226 can be issued in
grave cases where the subordinate tribunals or bodies or officers act
wholly without jurisdiction, or in excess of it, or in violation of the
principles of natural justice, or refuse to exercise a jurisdiction vested in
them, or there is an error apparent on the face of the record, and such
act, omission, error or excess has resulted in manifest injustice. It has
been held that however extensive the certiorari jurisdiction may be, it is
not so wide or large as to enable the High Court to convert itself into a
court of appeal and examine for itself the correctness of the decision
impugned and decide what is the proper view to be taken or the order
to be made. It has been observed that a tribunal may enter upon an
enquiry but in making the enquiry, it may act in flagrant disregard of
the rules of procedure or where no particular procedure is prescribed, it
may violate the principles of natural justice. A writ of certiorari may be
available in such cases. An error in the decision or determination itself
may also be amenable to a writ of certiorari but it must be a manifest
error apparent on the face of the proceedings, for example, when it is
based on clear ignorance or disregard to the provisions of law. In other
words, it is patent error which can be corrected by certiorari but not a
wrong decision. It demolishes the order which it considers to be without
jurisdiction or palpably erroneous but does not substitute its own view
for those of the tribunal.
12. A seven-Judge Bench of the Hon'ble Supreme Court in Hari Bishnu
Kamath vs. Ahmad Ishaque and others, AIR 1955 SC 233 , has
considered the character and scope of the writ of certiorari. The
decision has laid down the following propositions : [i] certiorari will be
issued for correcting errors of jurisdiction, as when an inferior court or
tribunal acts without jurisdiction or in excess of it, or fails to exercise it;
[ii] certiorari will also be issued when the court or tribunal acts illegally
in the exercise of its undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or violates the
principles of natural justice; and [iii] the court issuing a writ of certiorari
acts in exercise of a supervisory and not appellate jurisdiction. The
consequence flowing out of this proposition is that the court will not
review findings of fact reached by the inferior court or tribunal, even if
they be erroneous. The proposition is based on the principle that a
court which has jurisdiction over of subject-matter has jurisdiction to
decide wrong as well as right, and when the legislature does not choose
to confer a right of appeal against the decision, it would be defeating its
purpose and policy if a superior court were to re-hear the case on the
evidence, and substitute its findings in certiorari jurisdiction. The seven-
Judge Bench has held these propositions as well settled and
undisputed.
13. The Full-Bench decision of this Court in Moslem Mondal [supra] has
held that the Foreigners Tribunals constituted under the Foreigners Act,
1946 read with the Foreigners [Tribunals] Orders, 1964 are required to
discharge quasi-judicial function and, therefore, the High Court has the
power under Article 226 of the Constitution to issue a writ of certiorari
to quash the decision of a Foreigners Tribunal in an appropriate case.
The Full-Bench in Paragraph 112 of Moslem Mondal [supra] has
discussed the scope and ambit of the certiorari jurisdiction of the High
Court under Article 226 of the Constitution in dealing with an
opinion/order of a Foreigners Tribunal, which are largely in the same
line as exposited in the preceding two paragraphs. The Hon'ble
Supreme Court in Abdul Kuddus [supra] has observed that a person
aggrieved by the opinion/order of the Foreigners Tribunal can challenge
the findings/opinion expressed by way of a writ petition wherein the
High Court would be entitled to examine the issue with reference to the
evidence and material in exercise of its power of judicial review
premised on the principle of 'error in the decision-making process', etc.
14. Section 9 of the Foreigners Act, 1946 has inter-alia provided that if any
question arises with reference to the said Act or any order made or
direction given thereunder, whether any person is or is not a foreigner
or is or is not a foreigner of a particular class or description the onus of
proving that such person is not a foreigner or is not a foreigner of such
particular class or description, as the case may be, shall,
notwithstanding anything contained in the Indian Evidence Act, 1872,
lie upon such person.
15. It is pertinent to mention that during the proceedings before the
Tribunal, the petitioner for the purpose of discharging the burden under
Section 9 of the Foreigners Act, 1946 and to establish the link with his
projected father, produce and exhibited the following documents :-
[i] Ext.- 1: Certified copy of Voter List of 1979 of Village -
Salmara, Mouza - Kumarikata, Police Station - Tamulpur, under
58 No. Tamulpur LAC, wherein, sole name of Insan Ali [38 years],
son of Duru was enlisted as a voter.
[ii] Ext.- 2: Certified copy of Jamabandi of Village - Dimilapar,
Mouza - Pub Baksa, wherein, the name of Md. Insan Ali was
shown as a pattadar on his name being mutated by an order
dated 27.02.1970 in a plot of land measuring 2 Bighas along with
one Nekbor. No other details in respect of Md. Insan Ali are
indicated therein.
[iii] Ext.- 3: Certified copy of Jamabandi of Village - Hahkata,
Mouza - Pub Baksa, wherefrom, it was reflected that names of [a]
Md. Sajahan Ali, [b] Atar Ali and [c] Intas Ali, all sons of Lt. Insan
Ali, were mutated in place of Insan Ali, son of Hipo Ali, by an
order dated 10.08.2015.
[iv] Ext.- 4: Duplicate Transfer / Leaving Certificate dated
04.09.2018 issued by Head Master, Pub Salmara, L.P. School
stating that Md. Atar Ali, son of Md. Insan Ali and Mobina Khatun
of Village - Salmara, Police Station - Tamulpur, left the school on
31.10.1987 and as per the school admission register, his age was
10 years 1 month on 01.01.1988.
[v] Ext.- 5: A certificate issued on 07.11.1976 under Assam
Weight and Measurements [Implementation] Act, 1950 in the
name of Md. Insan Ali.
[vi] Ext.- 6: A land revenue paying receipt [torn] dated
13.06.1954 showing the name of Md. Insan Ali, wherefrom, no
details of the land in question in respect of which land revenue
was paid could be read.
16. As the petitioner in the writ petition urged non-consideration of the
exhibited documents and also improper consideration of the exhibited
documents and the testimony of the witnesses, apart from raising a
point as regards perversity, the writ court revisited the evidence laid
before the Tribunal by the petitioner only to reassure itself as to
whether there was any perversity in the Opinion/Order of the Tribunal
and whether the Tribunal had properly appreciated the evidence or not.
17. For ready reference, the relevant excerpts from the Order dated
10.05.2019 are reproduced hereinbelow :-
7. The photocopy of Electoral Roll of 1966 besides being
inadmissible, cannot be related to Ext.- 1 as both pertained to two
different Legislative Assembly Constituencies. In the Electoral
Roll of 1966, the father of Insan Ali was recorded as Hiru Sheikh
whereas in Ext.- 1, the father of Insan Ali was recorded as Duru.
That apart, there were discrepancies in respect of age of Insan
Ali. The proceedee neither in his written statement nor in his
evidence had provided any explanation in that respect. In the
written statement as well as in his evidence on affidavit, the
proceedee stated that his father migrated in the year 1962 / 1963.
If that was so, the name of his projected father should have been
shown as a voter at the same place in the year 1966 as well as in
the year 1979. Thus, it cannot be accepted that Insan Ali [30
years], son of Hiru Sheikh, Village - Narayanpur, Mouza -
Paschim Banbhag, Police Station - Narayanpur under 64 No.
Barbhag LAC of the Electoral Roll of 1966 was the same Insan Ali
[38 years], son of Duru, Village - Salmara, Mouza - Kumarikata,
Police Station - Tamulpur, under 58 No. Tamulpur LAC of the
Electoral Roll of 1979. In such situation, the presence of Insan Ali
whose name was enrolled as a voter in the Electoral Roll of 1979
on Indian soil could only be traced to the year 1979 onwards.
8. Ext.-2 did not provide any detail of Md. Insan Ali shown
therein. The proceedee did not prove his linkage with Insan Ali,
appearing in Ext.- 2 by any cogent, acceptable and reliable
evidence. Ext.- 3 besides being a document of recent origin i.e.
10.08.2015, showed the name of one Insan Ali, son of Hipo Ali.
Insan Ali, whose name appeared in Ext.- 3 is not relatable to
Insan Ali, appearing in Ext.- 1 and Ext.- 2. Similarly, Ext.- 6 as
well as Ext.- 7, save and accept showing the name, did not
provide any detail of Md. Insan Ali. Thus, Ext.-2, Ext.-3, Ext.-6 and
Ext.-7 do not establish any kind of linkage between Md. Insan Ali
and the proceedee, notwithstanding the fact that those were not
proved in accordance with law.
9. It is pertinent to note that the proceedee did not exhibit and
prove any Electoral Roll before the Tribunal wherein his name
was recorded as a voter. In the written statement as well as in his
evidence as O.P.W.1, the proceedee declared his age as 40
years in the year 2018. If that is so, his year of birth would be in
and around 1978 and the year of his attaining the age of
exercising the right of adult suffrage i.e. 18 years would be in and
around 1996. In such situation, non-enrollment of the proceedee
as a voter has remained inexplicable. The fact of such
inexplicable non-inclusion instead of supporting the case of the
procedure, goes against the proceedee.
10. In order to establish his linkage with his projected father,
Insan Ali, the proceedee also exhibited Ext.-4 i.e. a duplicate
school certificate issued on 04.09.2018. The proceedee did not
explain the reason behind requirement of obtaining such duplicate
copy, without accounting for the failure to produce the original.
The proceedee adduced the evidence of O.P.W.3 who deposed
that Ext.-4 was issued by him on the basis of attendance register,
earlier counter folio of certificate and police report. He deposed
that the proceedee's name appeared in school attendance
register at Serial No. 24, Roll No. 24. During his cross-
examination, O.P.W.3 stated that there was no admission register
of Pub Salmara L.P. School of which he was the Head Master
since August, 2013 till first week of 2018. The school
amalgamated with another school in July, 2018. The pages of the
attendance register for the period prior to October, 1984 were
found missing and the details were available from Serial No. 28,
Roll No. 26 of Class - II. He further deposed that the proceedee's
name was written at Roll No. 24 of Class - I but there was no
serial number and no page number in the attendance register. He
deposed that the proceedee's name could also be seen in March,
1985 at Roll No. 24. O.P.W.3 further stated that though the daily
attendance of the students were marked up to serial No. 158 and
Roll No. 100, the spaces kept for names of the students were kept
blank. In the said register, only the name of the proceedee was
written in different months. He further deposed that the register
was kept blank intentionally and not properly maintained. O.P.W.3
also exhibited a police report dated 03.09.2018 in respect of
Tamulpur Police Station missing entry No. 39/2018 dated
03.09.2018 as Ext.-4[3] in the relevant portion of the attendance
register which was marked as Ext.-4[2]. This witness further
testified that he had written the proceedee's mother's name as
Momina Khatun as dictated by the proceedee. It was mentioned
that one Giasuddin Ahmed [since deceased] was the Head
Master at the relevant point of time. In view of the aforesaid
testimony of O.P.W.3, the Tribunal did not place any reliance on
Ext.-4 as well as on the evidence of O.P.W.3 which, in our
considered opinion, rightly so. The very nature of deposition of
O.P.W.3 and the document he issued i.e. Ext.-4, based on the
attendance register so indicated and without having any kind of
witness, had made the same unreliable and unacceptable.
O.P.W.3 was not the Head Master at the relevant point of time
and his testimony was entirely based on the attendance register,
which itself got discredited and when the foundation got detached,
the testimony of O.P.W.3 cannot also be accepted for the purpose
of linkage.
11. The proceedee also adduced the evidence of one Dwijen
Nath Das as O.P.W.2. He stated, in his evidence on affidavit, that
he knew proceedee's father since 1965 without disclosing the
name, and the proceedee since his childhood was brought up in
the same village at Salmara where O.P.W.2 resided. During his
cross-examination, O.P.W.2 deposed that he knew Insan Ali since
1968 but he did not know the names of father and wife of Insan
Ali. He knew nothing about the family of the proceedee before
1968. He further mentioned Sajahan Ali [45-50 years], Atab Ali
[30-32 years] and Intaj Ali [25-28 years] as the sons of Insan Ali.
The proceedee had sought to establish his linkage, in absence of
any other reliable and acceptable evidence including
documentary evidence, with his projected father, Insan Ali through
the oral testimony of O.P.W.2. In absence of reliable and
acceptable documentary evidence, the status of citizenship
cannot be established on the sole basis of oral testimony, and as
such, the evidence of O.P.W.2 cannot be held to be sufficient for
the purpose of establishing linkage of the proceedee with his
projected father. As had been discussed above, the exact identity
of Insan Ali itself was not established as a citizen of India. In view
of the above, the Tribunal is, in our considered opinion, not
unjustified in its approach to hold that there was failure on the part
of the proceedee to establish his status as a citizen of India and to
declare him as a foreigner of post 1971 period.
18. At this juncture, it appears appropriate for us to make an endeavour to
find out the scope and extent of review of an order passed in a
proceeding under Article 226 of the Constitution. It has been held in
Shivdev Singh vs. State of Punjab, AIR 1963 SC 1909, that there is
nothing in Article 226 of the Constitution to preclude a High Court from
exercising the power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. Following Shivdev Singh [supra], it
has been observed in Aribam Tuleshwar Sharma vs. Aribam Pishak
Sharma, [1979] 4 SCC 389, that there are definitive limits to the
exercise of the power of review. The power of review may be exercised
on the discovery of new and important matter or evidence which, after
the exercise of due diligence was not within the knowledge of the
person seeking the review or could not be produced by him at the time
when the order was made; it may be exercised where some mistake or
error apparent from the face of the record is found; it may also be
exercised on any analogous ground. But, it may not be exercised on the
ground that the decision was erroneous on merits as that will be the
province of a court of appeal. A power of review is not to be confused
with appellate powers which may enable an appellate court to correct
all manner of errors committed by the subordinate court. It has been
held in Union of India and others vs. B. Valluvan and others, [2006]
8 SCC 686, that the High Court, indisputably, has a power of review,
but must be exercised within the framework of Section 114 read with
Order XLVII of the Code.
19. Section 114 of the Code is the substantive provision for review. When a
person considering himself aggrieved either by a decree or by an order
of court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in the
court, which may order or pass the decree. Section 114, CPC has not
laid down any condition as the condition precedent in exercise of power
of review nor the said Section imposed any prohibition on the court for
exercising its power to review its decision. However, an order can be
reviewed by a court only on the prescribed grounds delineated in Order
XLVII, Rule 1, CPC. For ready reference, Rule 1 of Order XLVII is
quoted hereinbelow :-
1. Application for review of judgment -
[1] Any person considering himself aggrieved -
[a] by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
[b] by a decree or order from which no appeal is allowed, or
[c] by a decision on a reference from a Court of Small Causes, and
who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake or
error apparent on the face of the record, or for any other sufficient
reason, desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment to the Court
which passed the decree or made the order.
[2] A party who is not appealing from a decree or order may apply for
a review of judgment notwithstanding the pendency of an appeal by
some other party except where the ground of such appeal is
common to the applicant and the appellant, or when, being
respondent, he can present to the Appellate Court the case on which
he applies for the review.
Explanation - The fact that the decision on a question of law on
which the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior Court in any other
case, shall not be a ground for the review of such judgment.
20. It is noted in M.M. Thomas [supra], referred to by the learned counsel
for the review petitioner, that the High Court as a court of record, as
envisaged in Article 215 of the Constitution, has inherent powers to
correct the records. A court of record envelops all such powers whose
acts and proceedings are to be enrolled in a perpetual memorial and
testimony. A court of record is a superior court which is itself
competent to determine the scope of its jurisdiction. The High Court, as
a court of record, has a duty to itself to keep all its records correctly
and in accordance with law. Hence, if any apparent error is noticed by
the High Court in respect of any orders passed by it, the High Court has
not only power, but duty to correct it. The plenary powers of the High
Court would include the power of review relating to errors apparent on
the face of the record.
21. It has been observed in the decision in Board of Control for Cricket in
India [supra] to the effect that Section 114, CPC empowers a court to
review its order if the conditions precedent laid down therein are
satisfied. The substantive provisions of law does not prescribe any
limitation on the power of the court except those which are expressly
provided in Section 114 of the Code in terms whereof it is empowered
to make such order as it thinks fit. Order XLVII, Rule 1, CPC provides
for filing an application for review. Such an application for review would
be maintainable not only upon discovery of a new and important piece
of evidence or when there exists an error apparent on the face of the
record but also if the same is necessitated on account of some mistake
or for any other sufficient reason. What would constitute sufficient
reason would depend on the facts and circumstances of the case. The
words, 'sufficient reason' in Order XLVII, Rule 1 of the Code are wide
enough to include a misconception of fact or law by a court.
22. In M.C. Mehta [supra], it is duly observed that judicial discretion
cannot be guided by expediency. Courts are not free from statutory
fetters. Justice is to be rendered in accordance with law. Judicial
discretion wherever it is required to be exercised has to be in
accordance with law and set legal principles. Judicial review is
permissible if the impugned action is against law or in violation of the
prescribed procedure or is unreasonable, irrational or mala fide.
23. With regard to the scope and ambit of review jurisdiction, a three-
Judge Bench of the Hon'ble Supreme Court in S. Madhusudhan Reddy
vs. V. Narayana Reddy and others, [2022] 11 SCR 42 , has observed in
the following manner :-
19. After discussing a series of decisions on review jurisdiction in
Kamlesh Verma vs. Mayawati and Others, [2013] 8 SCC
320, this Court observed that review proceedings have to be strictly
confined to the scope and ambit of Order XLVII Rule 1, CPC. As long
as the point sought to be raised in the review application has already
been dealt with and answered, parties are not entitled to challenge
the impugned judgment only because an alternative view is possible.
The principles for exercising review jurisdiction were succinctly
summarized in the captioned case as below :
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 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' has been interpreted
in Chajju Ram vs. Neki, AIR 1922 PC 112, and approved by this
Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar
Poulose Athanasius & Ors., 1955 SCR 520, 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
vs. Sandur Manganese & Iron Ores Ltd. & Ors., [2013] 8
SCC 337.
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 re-heard 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.
[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.
24. An error which is not self-evident and has to be detected by a process
of reasoning, is not to be termed an error apparent on the face of the
record justifying the court to exercise its power of review under Order
XLVII Rule 1, CPC. Under Order XLVII Rule 1, CPC, a judgment may be
open to review inter-alia if there is a mistake or an error apparent on
the face of the record. The term, 'mistake or error apparent' means an
error which is evident per se from the record of the case and does not
require detailed examination, scrutiny and elucidation either of the facts
or the legal position. If a mistake or an error is not self-evident, it
cannot be treated as a mistake or an error apparent on the face of the
record for the purpose of Order XLVII Rule 1, CPC. In exercise of
review jurisdiction under Order XLVII Rule 1, CPC, it is not permissible
for an erroneous decision to be reheard and corrected.
25. In Ground nos. [i] and [iv] of the present review petition, the review
petitioner has, in essence, contended that the writ court did not
properly consider and appreciate the exhibit, Ext.-4 : Duplicate
Transfer/Leaving Certificate dated 04.09.2018 and the evidence of
O.P.W.3 who deposed on Ext.-4. In Ground nos. [iv] and [v] of the
present review petition, the review petitioner has contended that a
large number of documents including Jamabandi, Chitha copy, Voter
Lists, revenue receipts, etc. were submitted and also exhibited but
those were not considered by the Tribunal and the writ court and
therefore, the Order dated 10.05.2019 needs to be reviewed. What
documents were produced and exhibited by the petitioner before the
Tribunal are already enumerated in Paragraph 15 above.
26. In the Order dated 10.05.2019 passed in the writ petition, W.P.[C] no.
2853/2019, this Court in Paragraph 10 had, in detail, examined and
considered acceptability or otherwise of the Duplicate Transfer/Leaving
Certificate, Ext.-4 and the evidence of O.P.W.3 and it was after such
examination and consideration, a finding was recorded that the
testimony of O.P.W.3 and the document he issued, that is, Ext.-4 were
unreliable and unacceptable. The testimony of O.P.W.3 and the
Duplicate Transfer/Leaving Certificate were found unacceptable for the
purpose of linkage for the reasons assigned therein. Similarly in
Paragraph nos. 7, 8, 9 and 11 of the Order dated 10.05.2019, the writ
court after examining the documents exhibited by the petitioner, that is,
Ext.-1, Ext.-2, Ext.-3, Ext.-5 and Ext.-6 and the evidence of O.P.W.1
[the petitioner] and O.P.W.2, on which Ground nos. [iv] and [v] of this
review petition are based, had recorded reasons why those could not
be accepted for the purpose proving linkage of the petitioner with his
projected father, as claimed.
27. From the above discussion, it is evident that the review petitioner has
sought to urge and repeat the same grounds, as already urged in the
writ petition. The review petitioner on the pretext of filing a review
petition, cannot be permitted to re-agitate and re-urge the same
grounds for which conclusions were already arrived at. A repetition of
the very same grounds, which were earlier urged in the writ petition
culminating in the Order dated 10.05.2019, are not permissible in a
review petition. Thus, the above grounds, that is, Ground no. [i], [iv]
and [v] for review are found not sustainable.
28. In Ground no. [ii] of the review petition, the petitioner has contended
that his brother's name, Intaz Ali, son of Insan Ali was included in the
final NRC, 2019 and the same is a good ground for review in view of
the decision in Abdul Kuddus [supra].
29. In the three-Judge Bench decision in Abdul Kuddus [supra], the
Hon'ble Supreme Court has inter-alia considered the right to appeal
provided in Para 8 of the Schedule to the Citizenship [Registration of
Citizen and Issue of National Identity Cards] Rules, 2003 ['2003 Rules']
framed under the Citizenship Act, 1955 and to whom such right to
appeal is available. After consideration, it has been held that the right
to appeal before the Foreigners Tribunal under Para 8 is available only
to persons whose citizenship status has not been declared by the
Foreigners Tribunal. Rule 4A of the 2003 Rules has contained special
provisions as regards National Register of Indian Citizen [NRC] in the
State of Assam.
30. It is pertinent to mention that in a case titled Roufiqul Hoque vs.
Union of India and others, 2025 INSC 730, decided on 19.05.2025,
the appellant therein was declared foreigner by the Foreigners Tribunal
by an Order dated 04.03.2017 and thereafter, when the appellant
preferred a writ petition under Article 226 of the Constitution, the writ
petition was dismissed by an Order dated 20.11.2017. In the appeal
before the Hon'ble Supreme Court, a plea was advanced that the
appellant's name had appeared in the draft NRC published on
30.07.2018 and consequently, he could no longer being considered a
foreigner.
30.1. One of the issues framed for consideration by the Hon'ble Supreme
Court as Issue no. [b] was : 'Whether on inclusion of the name of the
appellant in the draft NRC published by the competent authority in the
year 2018, the declaration made by the Tribunal, as affirmed by the
High Court, would be rendered invalid ?'
30.2. For answering the issue, the Hon'ble Supreme Court has considered the
decision in Abdul Kuddus [supra] and the provisions contained in the
Citizenship [Registration of Citizens and Issue of National Identity
Cards] Rules, 2003. The Hon'ble Court has thereafter, proceeded to
observe that : firstly, consequent to the declaration by the Tribunal
that appellant is a foreigner, the name of the appellant could not have
been included in the draft NRC and, secondly, even if it has been
included, it would not annul the declaration made by the Tribunal. It
has been held that the inclusion of the name of the appellant in the
draft NRC would have no bearing on the Order passed by the Tribunal,
affirmed by the High Court, declaring the appellant a foreigner. Issue
[b] has been decided in the afore-stated manner.
31. In Review Petition no. 184/2019 [Md. Siraj Ali @ Chiraj Ali and two
others vs. Union of India and five others, 2024 : GAU - AS : 12406 ],
decided on 05.12.2024, it was urged on behalf of the review petitioners
that in the supplementary list published on 31.08.2019 by the State
Coordinator of National Registration [NRC], Assam after dismissal of
their writ petition on 31.01.2018, the names of the relatives of the
review petitioners were included. Therefore, the review petition should
be allowed and the matter should be remanded back to the Foreigners
Tribunal for reconsideration.
31.1. The said plea was negated by a coordinate bench of this Court
observing that the publication of the supplementary list of NRC after
examination of claims and objections under Paragraph no. 6[3] of the
Schedule under Rule 4-A[4] of the 2003 Rules was to be done by the
Local Registrar of Citizens Registration. Thereafter, the Registrar
General of Citizens Registration would be required to publish the final
National Register of Indian Citizens in the State of Assam. There was no
material that the Registrar General of Citizens Registration had
accepted the publication of supplementary list by the Local Registrar
and published the final list. The coordinate bench has observed that in
the absence of such exercise, it cannot be a ground for review its
previous Order dated 31.01.2018. In respect of the decision in Abdul
Kuddus [supra], the coordinate bench has further observed that the
question of the person aggrieved having liberty to invoke writ
jurisdiction or even review jurisdiction of the High Court as well as the
Supreme Court would arise when there would be contradictory
decisions/opinions rendered by the Foreigners Tribunal in cases of near
family members. The coordinate bench has gone on the observe that in
the case before it, no two contradictory decisions/opinions in respect of
family members of the petitioners had been produced before it to
attract invocation of review jurisdiction.
32. Reverting back to the case in hand, it is not the case of the petitioner
that his name has been included in the NRC. The review petitioner has
urged in Ground no. [ii] that since his brother's name has been listed in
final NRC, the Order dated 10.05.2019 passed in the writ petition needs
to be reviewed. It is urged in Ground no. [iii] that since it is a
subsequent development, it is a good ground to review. In view of the
decisions in Abdul Kuddus [supra], Roufiqul Hoque [supra] and Md.
Siraj Ali @ Chiraj Ali [supra], the above grounds urged in this review
petition are found not merited. Inclusion of the name of the petitioner's
projected brother in the NRC would not have any effect in the
determination of the Tribunal as regards declaring the petitioner as
Foreigner, subsequently affirmed by this Court, and such subsequent
development cannot be made a ground of review.
33. The Foreigners Tribunals are constituted under the Foreigners
[Tribunals] Order, 1946, framed under the Foreigners Act, 1946. The
Foreigners Tribunals are creatures of a statute. The opinion of the
Foreigners Tribunal is a quasi-judicial order. It is settled that the power
to review is not an inherent power. Therefore, the power to review is to
be conferred by law. In other words, jurisdiction of review can only be
derived from the statute. In Ground no. [iii], the review petitioner has
urged that the Foreigners Tribunal has the power to review its order, if
appropriate ground exists. In Special Leave Petition [Criminal] no.
12481/2023 : Rejia Khatun @ Rezia Khatun vs. Union of India ,
decided on 11.02.2025, the Hon'ble Supreme Court has held that the
Foreigners Tribunal has no power to reopen a case by sitting in appeal
over its own concluded Judgment. In the absence of any power
available to the Foreigners Tribunal to review with own order, Ground
no. [iii] is not sustainable in law.
34. The decision in Md. Sirajul Hoque @ Chiraj Ali [supra] pertains to
discrepancies in the name appellant's grandfather in some of the
documents. The facts of the case therein are not similar to the facts of
the case in hand and therefore, the decision in Md. Sirajul Hoque @
Chiraj Ali [supra] is found to be of no assistance for the review
petitioner herein. The decision in Harpal Singh [supra] is also found to
be of no assistance to the case of the review petitioner. The decision in
Ambition Ragui [supra] pertains to anomaly in pay-scale and claim for
arrears after rectification of anomaly and upon consideration, the
decision is found to be having no relevancy to the present case in hand.
35. The writ petition, W.P.[C] no. 2853/2019 was adjudicated on
10.05.2019 and the review petition was filed on 19.01.2022. The sole
explanation for filing the review petition is that there was delay in
collecting donation from public for filing the review petition, which is
found unsatisfactory.
36. The whole gamut of submissions advanced by the learned counsel for
the review petitioner are considered in detail. In view of the
observations made, the reasons recorded and the findings reached at
above qua the grounds urged in this review petition, we do not find any
reason, not to speak of good and sufficient reason, to hold that the
review petitioner has made out any case to review of the Order dated
10.05.2019 passed in the writ petition, W.P.[C] no. 2853/2019.
Meaning thereby, the review petition is devoid of any merit.
Consequently, the review petition is dismissed. The interim Order dated
08.04.2022 is recalled.
JUDGE JUDGE
Comparing Assistant
