Page No.# 1/13 vs The Union Of India And 5 Ors on 7 March, 2026

Author: K.R. Surana

Bench: Kalyan Rai Surana

                                                                   Page No.# 1/13

GAHC010058072021




                                                         2026:GAU-AS:3401-DB

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

                        Case No. : Review.Pet./54/2021

         HAREJ ALI @ HARAJ ALI @ HAREJ
         S/O- LATE BASIR ALI @ MD. BASER ALI @ BASIR, R/O- VILL.- BORAJAL,
         P.S. GHOGRAPAR, DIST.- NALBARI, ASSAM.



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         TO BE REP. BY THE SECRETARY, GOVT. OF INDIA, DEPARTMENT OF HOME
         AFFAIRS, NEW DELHI, INDIA.

         2:THE STATE OF ASSAM
         TO BE REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
          DEPARTMENT OF HOME
          DISPUR
          GUWAHATI-6.

         3:THE SUPERINTENDENT OF POLICE (B)

          CITY
          GUWAHATI
          KAMRUP(METRO)
          ASSAM
          GUWAHATI-1.

         4:THE DEPUTY COMMISSIONER
          KAMRUP(M)
          DIST.- KAMRUP(M)
         ASSAM
          GUWAHATI-1.

         5:THE ELECTION COMMISSION OF INDIA
          NEW DELHI-01.
                                                                                 Page No.# 2/13


            6:THE NRC CO-ORDINATOR
             NATIONAL REGISTER OF CITIZEN (NRC)
             BHANGAGARH
             GUWAHATI-05

Advocate for the Petitioner    : MR. A R SIKDAR, MR. S I TALUKDAR,MD A ALI,MS S
PARVEEN,MR A RASHID

Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, F.T,SC, NRC

BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA HON'BLE MRS. SHAMIMA JAHAN

For the petitioner : Mr. A.R. Sikdar, Advocate

For the Union of India : Mr. M.R. Adhikari, CGC For ECI : Mr. A.I. Ali, standing counsel For FT and NRC : Mr. G. Sharma, standing counsel For the State : Mr. H.K. Hazarika, Junior Govt. Advocate

Date on which judgment is reserved : 11.12.2025

Date of pronouncement of judgment : 07.03.2026

Whether the pronouncement is of the operative part of the judgment? : N/A

Whether the full judgment has been Pronounced : YES

JUDGMENT AND ORDER (CAV)

(K.R. Surana, J) Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. Page No.# 3/13

H.K. Hazarika, learned Junior Govt. Advocate for respondent.

2. This review petition has been filed to assail the order dated 15.11.2019, passed by this Court in WP(C) 4759/2019. By the said order, this Court had dismissed the writ petition and thereby refused to interfere with the opinion dated 31.05.2019, passed by the learned Member, Foreigners Tribunal

Kamrup (M) 2nd, in F.T. Case No. 1552/2015, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream.

3. The learned counsel for the petitioner has submitted that in the proceedings before the learned Foreigners Tribunal, the petitioner had exhibited 9 (nine) documents, viz., voters list of 1965 (Ext.A), voters list of 1966 (Ext. B), voters list of 1970 (Ext. C), voters list of 1993 (Ext. D), voters list of 1997 (Ext. E), voters list of 2014 (Ext. F), school certificate dated 11.06.2012 (Ext. G), socio-economic and caste census-2011 acknowledgement slip of Basir Ali (Ext. H), Gaonburah's certificate dated 25.01.2019 (Ext.I). It is submitted that the name of the petitioner is Harej Ali who is a daily wage earner and he had stated that his father name is Late Basir Ali. However, the learned Tribunal on finding some discrepancy in the age and spelling of the name of persons whose names appear in the voters lists, held that from the voters' lists of 1965, 1966 and 1970, it cannot be ascertained that person named as Basir Ali is the same person named as Basir projected father of Harej Ali/ Haraj Ali, the voter in the voters lists of 1993, 1997 and 2014 and therefore, rejected the entire evidence in the absence of continuous existence in Indian soil.

4. It has been submitted that even in the notice of the Page No.# 4/13

proceedings, which was served on the petitioner, the name of the father of the petitioner is recorded as Md. Basir Ali. Moreover, it is submitted that the evidence tendered by the petitioner claiming that the name of his father is Basir Ali @ Md. Basir Ali @ Basir and that the mother's name is Moymon Khatun was not even questioned in his cross-examination and there was no rebuttal evidence of the State. It is submitted that it is an admitted position in the judgment of this Court in the case of Md. Anuwar Hussain v. Union of India and Ors., AIR 2015 NOC 77 (Gau) , it has been held to the effect that "... it is common phenomenon in rural areas more particularly among Muslim community to have more than one name and this discrepancy in the name of petitioner's father was not too great to draw adverse inference ." In this regard the learned counsel for the petitioner has also relied on the decision of the Supreme Court of India in the case in the case of Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534.

5. It has been further submitted that the investigation which was done by the Enquiry Officer was not a fair investigation and similarly, the trial of the petitioner was also not fair. In this regard he has placed reliance in the paragraph no. 97 and 98 of the Full Bench decision of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809.

6. It is further submitted that under Article 221 of the Constitution of India, there is a Constitutional right of the petitioner to protect his life and personal liberty and that the same has been lost due to unfair investigation and trial. The learned counsel for the petitioner has submitted that at the time when the writ petition was filed and being heard, the petitioner, by filing an additional affidavit had brought on record his family Page No.# 5/13

tree which disclosed the name of the petitioner and his siblings, which has been submitted in the updation of the National Register of Citizens (NRC for short). However, owing to certain lapses in the pleadings like none disclosure of the name of mother of the petitioner, lack of reasons explaining the name of mother of the petitioner in the exhibited voter's list, this Court had drawn an adverse inference against the petitioner. In this regard, it is submitted that this was a case of poor drafting of the written statement by the learned counsel engaged by the petitioner in course of the proceedings before the Foreigners Tribunal.

7. It is submitted that there is no settle law which prescribes the manner in which the written statement has to be drafted and filed and there is no requirement in law to disclose every details in the written statement. Referring to the observations made by the Supreme Court of India in paragraph 26 of the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which is reiterated in paragraph 62 of the case of Sarbananda Sonowal v. Union of India & Ors., (2007) 1 SCC 174 , it has been submitted that the petitioner was only required to show the proof of her citizenship. Accordingly, it has been submitted that the statement made by the petitioner made before the Foreigners Tribunal, disclosing that his mother name is Moymon Khatun was a sufficient evidence of the existence of the mother of the petitioner, which was not rebutted by the State. It is submitted that during the course of proceedings before the learned Foreigners Tribunal, the petitioner had exhibited voter's list of 1993, which contains only the name of Harej Ali, son of Basir. However, when the writ petition was filed, the petitioner obtained another certified copy of voters list of 1993, which contains the name of Basir Ali son of Kandu, male, 60 years; Moymon Khatun, Page No.# 6/13

wife of Basir, female. 55 years; and Harej Ali, son of Basir, male, 86 years. It is submitted that however, this Court did not take into consideration the link which the petitioner had established with his parents through the said voters list of 1993.

8. It is further submitted that the allegation against the petitioner was that she had entered into the State of Assam after 25.03.1971. Therefore, it has been submitted that as the petitioner had disclosed reliable evidence regarding existence of the name of father of the petitioner by producing the voters list of 1965, 1966 and 1970, the petitioner was of the view that production of certified copies of subsequent voters list of 2016 was not necessary. It is submitted that petitioner had exhibited sufficient documents to prove his citizenship of India, but due to procedural lapses on the part of the petitioner, which is curable in nature, the Tribunal held that the petitioner had failed to establish his genuine claim as an Indian Citizen. Hence, it is submitted that this Court in exercise of review jurisdiction would modify the impugned order dated 15.11.2019, passed in the writ petition and remand the matter back to the learned Tribunal for a fresh opinion. Similarly, it is submitted that if the matter is remanded the petitioner would be in a position to show the family tree so as to establish linkage with his parents and to produce copies of voter's list containing the names of members of the family so as to buttress the claim as a citizen of India.

9. It has been submitted that in the case of Idrish Ali v. Union of India & Ors., WP(C) 4116/2019, decided on 27.01.2019 , this Court had held that strict rules of evidence is not applicable in case of the Tribunal. Moreover, it was also submitted that in the case of Abdul Kuddus v. Union of India & Page No.# 7/13

Ors., (2019) 6 SCC 604, the Supreme Court of India had held that the orders passed by the learned Foreigners Tribunal is amenable to review. Thus, submitted that owing to the subsequent developments and because of the additional documents, which are now in possession of the petitioner, the petitioner is required to be given a fair chance of proving her citizenship and to dispel the allegation that she is not an Indian but a foreigner.

10. Per contra, the learned standing counsel for the FT and Border matters has submitted that the learned counsel for the petitioner, instead of showing that the order of this Court that is impugned in this review petition, suffers from any error apparent on the face of record, he has conducted an re-hearing of the entire matter. It is submitted that none of the documents which are now being produced in this review petition by the petitioner can be said to be discovery of new materials. Rather, it is submitted that the in the guise of review, the petitioner has filed additional documents to cover up the lapses that had occurred in tendering evidence before the learned Foreigners Tribunal. Accordingly, it was submitted that the case of the petitioner does not meet the essential requirements in law so as to entertain this review petition which is belatedly filed on 18.03.2021 to assail the order dated 15.11.2019.

11. In support of his submissions, the learned counsel for the FT and Border matters has cited the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741, and case of Kamalesh Verma Vs. Mayawati and Ors., (2013) 8 SCC 320, both on the exercise of review jurisdiction. He has also cited the case of Ajij Miah v. Union of India & Ors., (2023) 4 GLT 246, and Rofiqul v. Union of India & Ors., (2025) SCC OnLine SC 1160, to show that draft NRC would not override the decision of the Page No.# 8/13

Foreigners Tribunal, declaring a person to be an illegal migrant.

12. Examined the materials available on record and also considered the submissions made by the learned counsel for the petitioner and also carefully considered the cases cited at the Bar.

13. As stated hereinbefore, the petitioner had exhibited only 9 (nine) documents. It is noted that the school certificate dated 11.06.2012 (Ext. G), issued by the Headmaster of No. 2 Borajol L.P. School was not proved by not examining the author who has issued the said certificate. Similarly, the concerned Gaonburah, who had issued the certificate dated 25.01.2019 (Ext.I), was also not examined before the learned Tribunal. The learned counsel for the petitioner has not been able to satisfy that how an acknowledgement slip issued in respect of socio-economic and caste census, 2011 (Ext.H), issued on 11.03.2012, by the enumerator, can be said to be a proof of correctness of the entries made in the application form because the said acknowledgement slip (Ext.H) only contains the name of Basir Ali as the head of the household without disclosure of any other names or other relevant particulars of the persons in the household. Moreover, the author of the said Ext. H was also summoned and examined as witness.

14. The voters list of 1965 (Ext.A) contains the name of Basir Ali, son of Kanu Sheikh and Moymon Khatun, wife of Basir. The voters list of 1966 (Ext.B) and voter's list 1970 (Ext.C) contains a single entry of Basir Ali, son of Kanu Sheikh; the voters list of 1993 (Ext.D) contains a single entry of Harej Ali, son of Basir, male, 26 years; and voter's list of 1997 (Ext.E) contains the name of Harej Ali, son of Basir, male, 27 years and voter's list of 2014 (Ext.F) contains the name of Harej Ali, son of Basir, male, 44 years. Thus, there is no Page No.# 9/13

trace of the projected father of the petitioner in any of the voter's list after 1970, though it has been projected that the petitioner's father is stated to have died about 3 (three) years prior to the date of petitioner's cross- examination on 15.05.2019, i.e., his approximate year of death would be 2016. There is no trace of projected mother of the petitioner after 1965. Moreover, before the learned Foreigners Tribunal, the petitioner had not disclosed about his entire projected family. There was no reason for the petitioner to not disclose about her paternal family, her siblings, and about her own family. Such a disclosure was very relevant because in her cross- examination, the petitioner had stated that she had 10 (ten) siblings, with 3 (three) brothers and 7 (seven) sisters. Strangely, the name of none of the petitioner's siblings or the name of her projected mother had appeared in any voters list after 1965. Therefore, even on examination of all the materials that are available in the Tribunal's records, it cannot be said that the petitioner has been able to prove her link with her projected parents so as to show their continuous stay in the Country from prior to 01.01.1966 as well prior to the cut-off date of 25.03.1971.

15. The learned counsel for the petitioner has placed heavy reliance on paragraph 28 of the case of Abdul Kuddus (supra), which ex facie appears to be misconceived because it is not the case of the petitioner that she had disclosed the name of any of her close relatives in her written statement and such person has either been adjudged to be not a foreigner, or such person, after family tree hearing on NRC, has been included as Indian. Rather, as per the decision of the Supreme Court of India in paragraph 28 of the case of Rofiqul Hoque (supra), it has been held to the effect that inclusion of the name of the appellant in the draft NRC would have no bearing on the Page No.# 10/13

order passed by the learned Foreigners Tribunal, as affirmed by the High Court, declaring the appellant to be a foreigner. Moreover, having considered paragraph 28 of the case of Abdul Kuddus (supra), this Court cannot remain oblivious of the observation made by the Supreme Court of India that some or one member of the near family members may have migrated into India prior to midnight of 25.4.03.1971 and therefore, fall within a different category. In this case, the mother of the petitioner gave birth to 10 children, but their existence is not shown by the petitioner in any of the voters list after 1966 and moreover, the existence of the names of none of the siblings of the petitioner has been proved in any of the documents exhibited by the petitioner.

16. It may be stated that in paragraph 18 of the case of Kamalesh Verma (supra), the Supreme Court of India has held that review is not rehearing of the original matter and that the power of review is not to be confused with appellate power which enables the superior court to correct all errors committed by a subordinate court. In this case the learned counsel for the petitioner has repeated the old and rejected argument. Review would not lie if error apparent on the face of record is to be found out after a lengthy and detailed re-hearing, as has been done in this case. Despite lengthy and strenuous submissions, the learned counsel for the petitioner has failed to show any error apparent on the face of the impugned judgment and order. No effort has been made by the learned counsel for the petitioner to show that the material error, which is ex facie apparent on the face of the order, undermines its soundness and that if the erroneous decision, on account of material error apparent, is allowed to remain, would result in miscarriage of justice.

Page No.# 11/13

17. The learned counsel for the petitioner has failed to appreciate that while dealing with the challenge to the opinion expressed by the Foreigners Tribunals, this Court while exercising power under Article 226 of the Constitution of India, is exercising certiorari jurisdiction. In paragraph 63 and 64 of the case of Central Council for Research in Ayurvedic Sciences & Anr. v. Bikartan Das, (2023) 16 SCC 462 , has held to the effect that certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality and certiorari shall also issue to correct an error in the decision or determination itself, if it is an error manifest in the proceedings and it was further held that by exercise of certiorari jurisdiction, only a patent error can be corrected but not a mere wring decision, but a finding of fact, based on 'no evidence' or purely on surmises and conjectures or which are perverse, could be challenged by way of certiorari. None of the submissions made by the learned counsel for the petitioner could bring home the point that the opinion passed by the learned Foreigners Tribunal was vitiated by any error apparent on the face of the record. The nature of submissions made by the learned counsel for the petitioner also establishes that no ground for review has been made out, if the error apparent has to be found out after elaborate submissions have been made by the learned counsel for the petitioner. Therefore, the reliance of the learned counsel for the petitioner on paragraph 92 of the case of Board of Control for Cricket in India & Anr. (supra) does appear not help the petitioner in any manner.

18. It is trite that review petition can only be entertained on the broad parameters which have been laid down under the provisions of Section 114 read with Order 47, Rule 1 of the Civil Procedure Code i.e., only when Page No.# 12/13

some new and important material has been discovered, which after the exercise of due diligence was not within his knowledge or could not be produced when the opinion was passed by the learned Foreigners Tribunal. A review can also be entertained on account of some mistake, which is mistake or error apparent on the face of record. In this case there is no document can be said to be not in the knowledge of the petitioner. It cannot be accepted that the petitioner was not aware of the names and other particulars of her mother, her siblings, the name and other particulars of the siblings of her father and/or name and other particulars of her cousins, if any. Hence, the production of additional documents in the writ petition by way of additional affidavit and moreover, the annexing of further documents in this review petition can only be seen as an attempt by the petitioner to overcome the lacuna which has remained in course of trial and/or in presenting her evidence. Nonetheless, as the issue of citizenship is involved, the Court has perused all the documents, but despite careful examination of the documents, there appears to be no error apparent on the face of record, so as to warrant re-hearing of the matter on merit.

19. Accordingly, in light of the discussions above, the Court is inclined to hold that no part of the order dated 15.11.2019, passed by this Court in W.P.(C) 4759/2019, is found to be vitiated by any error apparent on the face of record. The said order is not found to be vitiated by non- consideration of any important piece of pleadings or evidence. The impugned order is not found to be vitiated for taking into consideration any extraneous materials which did not form a part of the record.

20. The Court is further inclined to hold that in the guise of review, Page No.# 13/13

the learned counsel for the petitioner has conducted a re-hearing of the writ petition, which is impermissible in law as a review jurisdiction cannot be equated to an appellate or revisional jurisdiction where all errors can be corrected.

21. Resultantly, this review petition fails on all counts and the same is dismissed.

22. There shall be no order as to cost.

23. The consequences of the opinion dated 31.05.2019, passed by

the learned Member, Foreigners Tribunal Kamrup (M) 2nd, in F.T. Case No. 1552/2015, shall follow.

24. The learned standing counsel for the FT and Border matters shall transmit a downloaded copy of this order to the Home and Political (B) Department, to bring the order to the notice of the concerned authorities.

                              JUDGE                   JUDGE.



Comparing Assistant
                                                PRATIK         Digitally signed
                                                               by PRATIK GUPTA

                                                GUPTA          Date: 2026.03.07
                                                               14:56:21 +05'30'