Gauhati High Court
Page No.# 1/ vs The Union Of India on 13 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Manish Choudhury
Page No.# 1/10
GAHC010037552025
2025:GAU-AS:5998
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./30/2025
ANOWARA BEWA
W/O- LATE ABDUL MAJID, R/O- VILL- KAYASTHAGAON, KHARIJABIJNI
MOUZA, PS SORBHOG, DIST- BARPETA, ASSSAM, PIN- 781317
VERSUS
THE UNION OF INDIA
REP BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS,
SHASTRI BHAWAN, NEW DELHI- 01
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR GUWAHATI 05
3:THE DEPUTY COMMISSIONER
BARPETA ASSAM
4:THE SUPERINTEDENT OF POLICE (B)
BARPETA
ASSAM
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
6:THE STATE CO ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC) ASSA
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Advocate for the Petitioner : MR F Z MAZUMDER,
Advocate for the Respondent : DY.S.G.I., SC, NRC,SC, ECI,GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 13.05.2025
(K.R. Surana, J)
Heard Mr. F.Z. Mazumdar, learned counsel for the petitioner. Also
heard Mr. P.S. Bhattacharyya, learned CGC for respondent no.1; Mr. J. Payeng,
learned standing counsel for respondent nos. 2 and 4; Mr. H.K. Hazarika,
learned G.A. appearing for respondent no.3; Mr. M. Islam, learned counsel,
appearing on behalf of Mr. A.I. Ali, learned standing counsel for the respondent
no.5.
2) This review petition is directed against the order dated
17.05.2019, passed by this Court in W.P.(C) 905/2019, thereby dismissing the
said writ petition that was filed to challenge the opinion dated 28.12.2018,
passed by the learned Member, Foreigners Tribunal 8 th, Barpeta in F.T. Case No.
242/2016, by which the petitioner was declared to be a foreigner of post
25.03.1971 stream.
3) The learned counsel for the petitioner had referred to the eight
grounds on which this review petition is presented. It was submitted that except
for examining whether the opinion dated 28.12.2018 suffered from any
perversity, this Court had not examined as to whether or not the petitioner had
suffered any injustice, which has been emphasised in the judgment of the
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Supreme Court of India in the case of Abdul Kuddus v. Union of India & Ors.,
(2019) 6 SCC 604, By referring to the case of S. Nagraj & Ors. V. State of
Karnataka & Anr., 1993 Supp (4) SCC 595. It was submitted that the purpose of
review is to rectify the order which stems from the fundamental principle that
justice is above all and is exercised to correct the error which has occurred by
some accident without any blame.
4) It was submitted that the learned Foreigners Tribunal had
rejected the documentary evidence of Ext.L, which was the appointment letter
of DW-2. Moreover, the learned Tribunal had also ignored the Elector Voter
Identity Card (EPIC for short) of DW-2, which was exhibited as Ext.K, which was
a link document of DW-2 to Kazimuddin Mia,the projected father of the
petitioner and DW-2. Moreover, the learned Tribunal had not appreciated the
Family Identity Card of the petitioner, which was exhibited as Ext.N on the
ground that it was not an authentic document. It was submitted that the said
Ext.N was exhibited to prove the petitioner's link to his projected father.
5) Lastly, it was submitted that this Court had also not considered
the said documents and thus, this review was maintainable.
6) The learned standing counsel for the FT matters has opposed
the prayer for review on merit as well as on the ground that the delay of about
6 (six) years in filing this review petition against order dated 17.05.2019,
remains not properly explained.
7) At the outset, the non-consideration and/or non-appreciation of
evidence amounts to an erroneous order and it cannot be said that because
when evidence is not considered, the order suffered from bona fide error or
accidental omission or inadvertent happenings. Therefore, the case of S. Nagraj
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(supra), cited by the learned counsel for the petitioner has no application in this
case.It is well settled legal proposition that the power of review is not to be
confused with the appellate power and that review petition has a limited
purpose and cannot be permitted to act as an appeal in disguise. If one needs
any authority on the point, the case of Hage Gumto & Ors. v. Ninya Bagra &
Ors., (2010) 1 GLR 174, decided by a coordinate Bench of this Court may be
referred to.The Supreme Court of India, in the case of Surendra Kumar Vakil &
Ors. Vs. Chief Executive Officer, M.P. & Ors., (2004) 10 SCC 126, has held that a
point that has been heard and decided cannot form a ground for review even
assuming that the view taken in the judgment under review is erroneous.
8) In the case ofSmt. Longjam Ongbi Pishak Devi Vs. Smt.
Longjam Ongbi Toyaima Devi & Ors., (1987) 2 GLR 226 , this Court had
examined the limitations on power of review and it was held, inter alia, that the
(1) Court cannot extend its limited power by using inherent powers; (2) it 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 review, or could not be produced by him at the time when the order
was made; (3) It may be exercised where some mistake or error apparent on
the face of record is found; (4) it may also be exercised on any analogous
ground:and that (5) it may not be exercised on the ground that the decision
was erroneous and cannot be confused with appellate powers.
9) The learned counsel for the petitioner has utterly failed to
demonstrate that any inadvertent error apparent had crept in the order assailed
in this review petition.
10) Moreover, the case of S. Nagaraj (supra), has no application in
this case. In the said case, the writ petition was filed by stipendiary teachers
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seeking declaration that they were regular employees under the applicable rules
and the orders passed by the High Court was assailed before the Supreme Court
of India. Thus, in the said case, the High Court was not exercising certiorari
jurisdiction.
11) It is trite law that this Court, when entertaining the challenge to
the opinion passed by the Foreigners Tribunals in exercise of power under
Article 226 of the Constitution of India, is doing so under certiorari jurisdiction,
where the scope of examination of the record of the Tribunal is only to see if the
opinion suffers from any fundamental legal error in appreciation of pleadings
and evidence, which would vitiate the opinion on ground of perversity. Thus,
this Court is not exercising appellate jurisdiction so as to correct all errors. In
this regard, it would be appropriate to refer to the observations made by the
Supreme Court of India in the case of Central Council for Research in Ayurvedic
Sciences & Anr. v. Bikartan Das, (2023) 0 Supreme(SC) 763 , decided by a Three-
Judge Bench. Paragraph nos. 53 and 54 thereof are quoted below:
"53. Relying on T.C. Basappa (supra), the Constitution Bench of this Court in the
case of Hari Vishnu Kamath (supra), laid down the following propositions as well
established:
"(1) 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.
(2) 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.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the court will not
review findings of fact reached by the inferior court or tribunal, even if they
be erroneous."
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54. This Court explained that a court which has jurisdiction over a 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 that decision, it would be defeating
its purpose and policy if a superior court were to rehear the case on the evidence
and substitute its own finding in certiorari."
12) On examination of the record of W.P.(C) No. 905/2019, it is seen
that the learned Foreigners Tribunal had disbelieved the evidence of the
petitioner as DW-1 because the name of the projected mother of the petitioner
did not appear in the electoral roll/ voter list of 1965 and 1970 and thus, when
as per the evidence of DW-2, the projected brother of the petitioner, his mother
had died in the year 1965, the Tribunal had expressed doubt as to how the
petitioner was born the year 1966. The petitioner had exhibited the voter lists of
1966 (Ext.A) and voter list of 1970 (Ext.B). However, when the authenticated
copies of the said voter lists were produced, the entries made in Ext.B did not
match with the authenticated copy of voter list of 1970, which was produced by
its custodian. Thus, as Ext.B was held to be not genuine, the learned Tribunal
had discarded Ext.A also as it created doubt as to whether Kalimuddin Mia, son
of Sadek Ali, whose name appeared in the voter list of 1970 was petitioner's
father. The evidence of DW-2 was discarded, amongst others, because he did
not prove his identity card, which is an observation made by the learned
Tribunal in light of the fact that in the appointment letter (Ext.L), while the
name therein appeared as "Abdul Rahman", the word "Ahmed" was written by
hand, which remained unexplained by DW-2. In this regard, the learned counsel
for the petitioner, by referring to the grounds of review has submitted that the
identity card of the DW-2 was referred to in the written statement of the
petitioner. Therefore, this is a case where the presumption can be drawn under
Section 114, Illustration (g) that evidence which could be and not produced
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would, if produced, be unfavourable to the person who withholds it. Thus, the
case of the petitioner in this review, insofar as it relates to non-exhibiting of
identity card of DW-2 is worse than what was what it was in the writ petition.
13) The author of marriage certificate (Ext.C)was not examined by
the petitioner. In the State of Assam, certificates issued for marriage solemnized
for a person professing Mohammedan Law is governed by the Assam Muslim
Marriage and Divorce Act, 1934 and Rules framed thereunder and therefore,
marriage certificate was required to be proved by the Muslim Marriage and
Divorce Registrar by producing record, which was not done in this case. The
Gaonburah's certificate (Ext.F) in respect of the petitioner was not proved by the
petitioner by examining its author, i.e. the Gaonburah of village- Sahpur. The
petitioner had examined another Gaonburah's certificate(Ext.G) in respect of her
and another Gaonburah's certificate (Ext.O), in respect of DW-2 by examining its
author, i.e. Gaonburah of Kayastha Gaon (DW-3). However, the learned Tribunal
held that in Ext.O, it was written that the name of DW-2 appeared in the voter
list of 1997, house no. 164, serial no. 483, Part No. 24, but in the photocopy of
the voter list annexed by the petitioner as Annexure-VI, it appears that in serial
no. 483, the name of the voter is not Abdur Rahman Ahmed, but the voter was
one Muhammad Ali and accordingly, it was held that the DW-3 had issued
certificate without verification of the documents and thus, Ext.O did not prove
that DW-2 was the son of Kazimuddin Mia. Ration Card (Ext.E) was also not
proved by calling for the records from the custodian. In the case of Md. Babul
Islam v. Union of India & Ors, WP(C) 3547/2016 , decided by this Court on
09.05.2018, it has been held that EPIC is not admissible to prove parentage or
kinship. Therefore, the EPIC (Ext.H, Ext.I, and Ext.J) are not a valid piece of
evidence to prove citizenship, because the cut-off date for proving existence in
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the State of Assam is on or before 25.03.1971. There is nothing on record to
show that EPIC (Ext.K) of DW-2 was exhibited to link him with his projected
father and moreover, the citizenship of the DW-2 was not in question before the
learned Tribunal. Under the Assam Land and Revenue Regulation, a chitha is
initial in a draft stage, which is then entered as final chitha, after considering
the objections, etc., if any,the entries made in the chitha has to be entered in
the jamabandiso as to become a revenue record of right. Hence, the name of
DW-2 appearing in the chithadoes not help to establish petitioner's citizenship
and/or his continuous presence in the State of Assam.
14) Although in the review petition, the petitioner claims that Ration
Card (Ext.L) was a link document, but ration card is not a document to prove
citizenship and therefore, the learned Tribunal did not consider the said
document as proof of citizenship.
15) This Court, in the impugned order dated 17.05.2019, has
appreciated the evidence before the learned Tribunal including Ext.A to Ext.O,
except Ext.K, and arrived at a conclusion that the opinion of the learned
Tribunal did not warrant any interference. In respect of Ext.K, which is the EPIC
of DW-2, the non-consideration of the said exhibit is neither fatal nor would it
lead to inference of perversity because in the case of Md. Babul Islam (supra) , it
is well settled that EPIC is not the evidence of citizenship.
16) In this review petition, the following documents only are
available, viz., voter list (Ext.A), voter list of 1970 (Ext.B), voter list of 1989
(Ext.D), Gaonburha's certificate (Ext.G), EPIC of Abdur Rahman Ahmed (Ext.K),
Family Identity Card of DW-2 (Ext.N). Copies of other exhibited document has
been withheld in this review petition for the reasons best known to the review
petitioner. Thus, selectively documents are found to have been annexed to this
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review petition. Withholding of copies of all exhibited document and copies of
deposition of all the three DW's amounts to suppression of facts from the Court
and therefore this review petition is also dismissed for not annexing and/or
suppression of the same.
17) Although, there was no legal necessity to examine the evidence
again in this review petition, the Cour has done so as because a valuable
citizenship right of the petitioner is involved. Therefore, it is clarified that this
order is not to be cited as a precedent in future.
18) In light of the discussions above, this review petition is found
without any merit.
19) Coming to the issue of inordinate delay of nearly six years in
filing this review petition on 20.02.2025, against the order dated 17.05.2019,
passed in W.P.(C) 905/2019, it is seen that the petitioner has tendered no
explanation at all for the delay. Although the Limitation Act, 1963 and schedule
appended thereto is not strictly applied in a writ petition, but as a thumb rule,
the spirit of the law of limitation would still apply for entertaining a review
petition. Therefore, the Court is of the considered opinion that on the principle
that delay defeats equity, this review petition is also liable to be dismissed on
the ground of inordinate and unexplained delay in the presentation of this
review petition.
20) Accordingly, on merit as well as on the ground of delay, this
review petition is liable to be dismissed. Resultantly, this review petition, being
devoid of any merit, stands dismissed.
21) For not annexing copies of all the exhibited documents, the
Court is inclined to impose a cost of Rs.5,000/- upon the learned counsel for the
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petitioner, as he is also responsible to the Court as an officer of the Court and
he owes a duty to the Court to ensure that all relevant documents are annexed
to the review petition. Such cost, if not deposited by the learned counsel for the
petitioner before the Registry of this Court within 2 (two) weeks, shall become
recoverable from him as per the applicable rules. On such deposit being made,
the said cost shall be sent to Shishu Sarothy, Guwahati, an NGO involved in care
of specially abled children.
22) The Registry shall transmit a copy of this order to the learned
Foreigners Tribunal 8th, Barpeta vide its following e-mail address -
[email protected] to make it a part of the record of F.T. Case No.
242/2016 [arising out of IM(D)T Case No. 608/B/98].
JUDGE JUDGE
Comparing Assistant
