Gauhati High Court
Page No.# 1/9 vs The Union Of India And 7 Ors on 24 March, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/9
GAHC010139992020
2025:GAU-AS:3670
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./97/2020
TASLIMA KHATUN
W/O- NUR ALI, R/O- VILL.- MODERTOLI, P.O. MODERTOLI, P.S. DOBOKA,
DIST.- HOJAI, ASSAM, PIN- 782440.
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, THE MINISTRY OF
HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1.
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001.
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME AND POLITICAL (B) DEPARTMENT
DISPUR
GUWAHATI- 781006.
4:THE STATE COORDINATOR
NATIONAL REGISTRAR OF CITIZEN (NRC) ASSAM
1ST FLOOR ACHYUT PLAZA
G.S. ROAD
BHANGAGARH
KAMRUP(M)
ASSAM
GUWAHATI- 781005.
5:THE FOREIGNERS TRIBUNAL
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NAGAON
COURT NO. 10TH AT SANKARDEV NAGAR
DIST.- HOJAI
ASSAM
PIN- 782442.
6:THE DEPUTY COMMISSIONER
HOJAI
P.O. SANKARDEV NAGAR
DIST.- HOJAI
ASSAM
PIN- 782442.
7:THE SUPERINTENDENT OF POLICE (BORDER)
HOJAI
DIST.- HOJAI
ASSAM
PIN- 782442.
8:THE OFFICER-IN-CHARGE
P.S. DOBOKA
DIST.- HOJAI
ASSAM
PIN- 782440
Advocate for the Petitioner : MR. L R MAZUMDER, MD. I HUSSAIN,MR. H A TALUKDAR
Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, NRC,SC, ECI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
24.03.2025
(M. Nandi, J)
Heard Mr. L.R. Mazumdar, learned counsel for the review petitioner. Also
heard Mr. J. Payeng, learned standing counsel, FT Matters and Mr. H.K.
Hazarika, learned Government Advocate.
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2. By filing this application under Order 47 Rule 1 and 2 of Civil Procedure
Code praying to review the order dated 26.08.2019, passed by this Court in
WP(C) 4405/2019.
3. The case of the petitioner in brief is that her grandfather namely, Late
Ayub Ali, son of late Forjan Ali as well as her father namely, Innus Ali have been
residing at village - Okantu under Lanka P.S, District Nagaon (erstwhile) during
pre and post independent period. The name of her grandfather appeared in the
voter lists of 1956, 1966, and 1970. The name of her father appeared in the
voter list of 1971.
4. Further case of the petitioner is that she was born and brought up at
Okantu under Hojai district. On 24.06.1993, the petitioner got married to one
Nur Ali of Village - Modertoli of District - Hojai. After the marriage, the name of
the petitioner appeared in the voter list of 1997 along with her husband. The
father of the petitioner purchased a plot of land on 22.04.1976 by executing a
registered sale deed vide Sale Deed No.3696/76 and the petitioner used to pay
the land revenue of the said land regularly. The grandfather of the petitioner
died on 14.08.1989 and the father of the petitioner died on 12.07.1977.
5. The Election Commission of India issued an Electoral Photo Identity Card
in favour of the petitioner, Aadhar Card and PAN card were also issued to the
petitioner after verifying the relevant documents. Moreover, the Government
gaonburah also issued a resident certificate in favour of the petitioner.
6. The mother of the petitioner also born and brought up at Village Charlok
gaon and married to Innus Ali of Okantu village and after the death of her
husband i.e. on 12.07.1977 she started to live with her father again at Charlok
gaon.
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7. Upon reference being made, FT Case No.1050/2015 was initiated against
the petitioner before the learned Member, Foreigners' Tribunal, Nagaon Court
No.10th at Sankardev Nagar, Hojai. After receipt of the notice, the petitioner
appeared before the Tribunal and submitted her written statement and
thereafter, the petitioner adduced evidence and exhibited several documents in
support of her claim of being a bonafide Indian citizen. However, on 26.06.2018,
the learned Member, Foreigners Tribunal answered the reference in affirmative
declaring the petitioner a foreigner of post 1971 stream.
8. Being aggrieved and dissatisfied with the said opinion, the petitioner
preferred writ petition under Article 226 of the Constitution of India vide WP(C)
No.4405/2019 before this Court and this Court vide order dated 26.08.2019
dismissed the writ petition by upholding the opinion of the Tribunal. Hence, this
review petition.
9. Learned counsel for the review petitioner stressed his argument on Exhibit
11- Jamabandi which is a public document. Therefore, the authenticity of the
said document cannot be doubted on the ground that the same was not proved
by calling its author or custodian before the Court. Hence, the order dated
26.08.2019 is liable to be reviewed.
10. It was further submitted that before the Tribunal, the petitioner produced
voter lists of 1966 and 1970 which reflects the name of her grandfather as well
as voter list of 1971 of her father and the said vital documents establishes the
link of the petitioner with her father and grandfather.
11. It is also pointed out that the certified copies of the voter lists of 1966,
1970 and 1971 exhibited by the petitioner are admissible in evidence and the
authenticity of the same cannot be disputed on the ground that the said exhibits
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are not proved by calling such witnesses who issued such documents. By relying
on the judgment of Hon'ble Apex Court in Jaswant Singh Vs. Gurdev Singh and
others, reported in (2012) 1 SCC 425, as per observation of the Court, a certified
copy of a public document is admissible in evidence without being proved by
calling witnesses. Therefore, the learned counsel for the review petitioner prays
to review the order of this Court dated 26.08.2019.
12. Per contra, Mr. Payeng, learned counsel for the FT matters has argued
that the power of the court in exercising the provision of review is very limited.
The review of the matter can be allowed only on the ground of error apparent
on the face of the record. The grounds shown by the learned counsel for the
review petitioner to review the order dated 26.08.2019 cannot be taken into
consideration as because the matter relates to factual contention which is not
permissible in eye of law.
13. Mr. Payeng has also pointed out the anomalies shown in the jamabandi
regarding father's name of the petitioner. Further the voter lists of 1966, 1970
and 1971 showing the names of Ayub Ali and Innus Ali are not sufficient to
prove the link that the petitioner is the granddaughter of Ayub Ali and Innus Ali.
Accordingly, learned counsel has prayed for dismissal of the review petition.
14. Under Order 47 Rule 1 CPC, a judgment may be open to review if there is
a mistake or an error apparent on the face of the record. An error which is not
self evident and has to be detected by a process of reasoning can hardly be said
to be an error apparent on the face of the record justifying the court to exercise
its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be
"reheard and corrected". A review petition, it must be remembered has a limited
purpose and cannot be allowed to be an appeal in disguise.
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15. In the case of Lily Thomas Vs. Union of India, reported in (2000) 6 SC 224,
it was observed and held that the power of review can be exercised for
correction of a mistake but not to substitute a view. Such powers can be
exercised within the limits of the statute with the exercise of power. The review
cannot be treated like an "appeal in disguise".
16. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in AIR
1979 SC 1047, Hon'ble Supreme Court held that there are definite limits to the
exercise of power of review. In that case, an application under Order 47 Rule 1
R/W Section 151 of the Code was filed which was allowed and the order passed
by the Judicial Commissioner was set aside and the write petition was
dismissed. On an appeal to the Apex Court, it was held as under -
" It is true as observed by this Court in Shivdeo Singh Vs.
State of Punjab, reported in AIR 1963 SC 1909, 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. But 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
on the face of the record is found; it may also be exercised
on any analogous ground. But it may not be exercised on
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the ground that the decision was erroneous on merits. That
would 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."
17. The judgment in Aribam (Supra) has been followed in Meera Bhanja Vs.
Nirmala Kumari Choudhury, reported in 1995 1 SCC 170. In that case it has been
reiterated that an error apparent on the face of the record for acquiring
jurisdiction to review must be such an error which may strike one on a mere
looking at the record and would not require any long drawn process of
reasoning. The following observations in connection with an error apparent on
the face of the record in Satyanarayan Laxminarayan Hegde Vs. Mallikarjun
Bhavanappa Tirumale, AIR 1960, SC 137, were also noted -
"An error which has to be established by a long drawn
process of reasoning on points where there may
conceivably be two opinions can hardly be said to be error
apparent on the face of the record. Where an alleged error
is far from self evident and if it can be established, it has to
be established by lengthy and complicated arguments,
such an error cannot be cured by a writ of certiorari
according to the rule governing the powers of the superior
court to issue such a writ."
18. So far as submission of learned counsel for the petitioner on the land
documents like jamabandi vide Ext.11, it reveals that as per order dated
26.11.1992, passed by the Circle Officer, the names of Mustt. Ayarun Nessa,
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Alsima Khatun and Taslima Khatun have been mutated in place of the pattadar
dated 31.11.1992.
19. It also reflects from Ext.11 that as per order dated 27.08.1996, passed by
the Circle Officer, the names of Mustt. Ayarun Nessa, wife of Idris Ali, Alsima
Khatun and Taslima Khatun, D/O Idris Ali along with Abdul Wahab and Abdul
Jabbar, both are sons of Mutahir Ali have been mutated in place of the pattadar
in Dag No.275. As per Ext.11, Dag No.275 belongs to one Idris Ali Borbhuiya. It
is pertinent to mention here that from Ext.11, it cannot be ascertained the
relationship between Mustt. Ayarun Nessa, Alsima Khatun and Taslima Khatun
with Abdul Wahab and Abdul Jabbar. The father's name of Abdul Wahab and
Abdul Jabbar are also different.
20. As per written statement as well as the evidence of the petitioner and the
documents available on record, it discloses that the petitioner is the daughter of
Innus Ali. As per remark 'Ka' of Ext.11, by mutation order dated 06.01.1997, the
mutation of the name of Idris Ali was entered by way of substitution and not by
virtue of inheritance. As per remark 'kha' , the names of three persons has been
mutated on inheritance by order dated 26.11.1992. As per remark 'ga' of Ext.11,
the names of two persons were mutated vide order dated 27.08.1996 by virtue
of purchase and possession. Therefore, not only all these entries are post
25.03.1971, but as none of the entries in Ext.11 was proved, as such the said
Ext.11 is not found to help the review petitioner in any way.
21. The error in the order is not apparent on the face of the record.
Nonetheless, as the question relating to citizenship right is raised by the
petitioner, we had examined Ext.11 i.e. jamabandi, and found that the said
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document does not help the petitioner.
22. Considered in the light of the aforesaid settled position of law and under
the facts and circumstances of the present case, we find that an application for
review is more restricted than that of an appeal and the court of review has
limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC
itself. The powers of review cannot be exercised as an inherent power nor can
an appellate power be exercised in the guise of power of review.
23. In the result, the review petition is dismissed. There shall be no order as
to costs.
24. The review petition is disposed of accordingly.
JUDGE JUDGE
Comparing Assistant
