Review petition challenging the dismissal of a writ petition against a Foreigners Tribunal opinion. The court dismissed the review, ruling that new documents were known to the petitioner earlier and not due diligence-based discoveries.
The review petition was dismissed without any order as to cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010153332019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 107/2019
1:BABULAL NAMASUDRA S/O- RAIMOHAN NAMASUDRA, KARKHANAPUTNI, P.S. PATHARKANDI, DIST.- KARIMGANJ, ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 6 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR, GUWAHATI- 781006.
2:THE DEPUTY COMMISSIONER KARIMGANJ DIST.- KARIMGANJ ASSAM PIN- 788710.
3:THE SUPERINTENDENT OF POLICE KARIMGANJ DIST.- KARIMGANJ ASSAM PIN- 788710.
4:THE SUPERINTENDENT OF POLICE (BOARDER) DIST.- KARIMGANJ ASSAM PIN- 788710.
5:THE ELECTORAL REGISTRATION OFFICER PATHARKANDI LAC DIST.- KARIMGANJ ASSAM
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PIN- 788710.
6:THE UNION OF INDIA REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-1.
7:THE STATE CO-ORDINATOR OF NRC ASSAM P.O. AND P.S. BHANGAGARH GUWAHATI-05 DIST.- KAMRUP(M) ASSAM
Advocate for the Petitioner : MR. R P SARMAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR
O R D E R
11.11.2019
( Manojit Bhuyan, J )
Heard Mr. R.P. Sarmah, learned senior counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos.1, 2, 3, 4 and 5. Ms. G. Hazarika, learned counsel represents respondent no.6 whereas Ms. U. Das, learned counsel appears for respondent no.7.
Petitioner seeks review of the order dated 28.11.2017 dismissing the writ petition i.e. WP(C) 659/2016 wherein challenge was made to the opinion dated 05.07.2014 of the Foreigners’ Tribunal-1, Karimganj in F.T. Case No.88/2006.
For a better appreciation, the relevant portion of the order under review is perused and reproduced hereunder :
“In his written statement, petitioner stated that he was born on 10.09.1977 at village Gobindapur (Hurua), Police Station Dharmanagar in the district of North Tripura, Tripura State. Family of
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the petitioner shifted to the present place at Karimganj in Assam for better livelihood where name of the petitioner has been enlisted in the voters list.
This is all that the petitioner stated in his written statement which by any account was wholly inadequate to establish the identity of the petitioner as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal (supra). Petitioner did not mention the names of his parents as well as that of his paternal grandparents. He also did not disclose the identity of his brothers and sisters as well as his avocation. That apart, he was silent regarding the address of his present residence and particulars thereof.
In his deposition before the Tribunal on 03.01.2009, petitioner disclosed his age as 27 years. If petitioner was 27 years of age in 2009, it would mean that he was born sometime in the year 1982 which contradicts his date of birth as mentioned by him in the written statement as 10.09.1977; both cannot be true at one and the same time. In his deposition, he disclosed the name of his father as Rai Mohan Namasudra and that of his grandfather as late Kamini Namasudra. They had resided at village Hurua under Dharmanagar Police Station in the State of Tripura where he was born about 27 years ago, i.e., sometime in the year 1982. When he was a child, his father shifted to village Karkhanaputni under Patharkandi Police Station in the district of Karimganj. Name of grandfather Kamini Namasudra was enlisted in the voters list of 1956 in respect of Dharmanagar (North) constituency.
Proceeding to the exhibits, we find that Ext.1 is an extract of voters list of 1956 in respect of Dharmanagar constituency. This document, we find, is a photo-copy only and remained unproved. In this document, there is only one voter, namely, Kamini Namasudra, son of Joyram, aged 30 years.
Ext. 2 again is a photo-copy of a certificate dated 30.03.1986 issued by the Secretary, Gobindapur Gaon Panchayat, Dharmanagar certifying that Rai Mohan Namasudra and his family members, namely, Parbati Namasudra, Sudhamoi Namasudra, Swarnamoi Namasudra, Parmadini Namasudra and Shyamlal Namasudra, who were residents ofvillage Gobindapur under Kurti constituency, had left the said Gaon Panchayat on 30.03.1986.
As per statement of the petitioner made in the written statement, he was born on10.09.1977 at Gobindapur under Dharmanagar Police Station in Tripura and in hisevidence, he stated that during his childhood, his father had shifted to Karimganj district but in Ext.2, there is no mention about Babulal Namasudra, the petitioner. This document does not indicate that petitioner is a family member of Rai Mohan Namasudra. Therefore, this belies the contention of the petitioner that he was born at Gobindapur in Tripura. What happened to Kamini Namasudra? We do not know. His wife, i.e., the projected grandmother of the petitioner is also conspicuous by her absence in both Ext.1 and Ext.2. There is nothing on record to establish linkage of the petitioner either with Rai Mohan Namasudra or with Kamini Namasudra. In such circumstances, it is quite evident that petitioner had failed to establish linkage with an Indian parent or grandparent relatable to a period prior to 25.03.1971 which is the cutoff date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. Thus, it cannot be said that petitioner had discharged his burden under Section 9 of the Foreigners Act, 1946.
Before parting with the record, we find that petitioner has made a statement in paragraph 10 of the writ petition referring to the Central Government notification dated 07.09.2015. Be it stated that the said notification has been issued by the Central Government to give protection to persons belonging to the minority communities in Bangladesh and Pakistan who have been compelled to seek shelter in India due to religious persecution or fear of religious persecution. However, nowhere petitioner has stated that his forefathers were citizens of what was thenEast Pakistan and had to seek shelter in India because of
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religious persecution. In the absence thereof, protection of the said notification would not be available to the petitioner.
On due consideration, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated.”
Primary ground for review is that after a hearing in the NRC Seva Kendra, the petitioner and one of his brother have met the lawyer in Karimganj who had conducted their case before the Tribunal with request to provide necessary guidance for approaching this Court. They had also requested the lawyer to make search in an old trunk (box) which was lying unattended to for years. On a visit of the lawyer to their house, he had taken out bundles of papers and documents from the trunk (box) and had sorted out few documents and handed over the same to the elder brother of the petitioner with advice to approach their lawyer in the High Court for filing a fresh case. Reliance is placed in the documents which the lawyer at Karimganj had been able to trace out, being the School Certificate dated 22.05.2010 (page 31); the Caste Certificate dated 15.05.2012 (page 31A); the Sale Deed dated 03.03.2015 (page 33); Aadhaar Card (page 40), and the Notice issued from the NRC Seva Kendra to the petitioner and other members of the family to attend hearing on 04.06.2019 (page 21).
Having noticed the grounds seeking review vis-a-vis the findings of this Court in its order dated 28.11.2017, read with the opinion of the Tribunal dated 05.07.2014, we would first observe as to the parameters available for seeking review. It is well settled that the scope of review is limited to discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the review petitioner or could not be produced at the time when the order was passed or there has been a mistake or error apparent on the face of the record or for any other sufficient reason. There is no dispute that review cannot partake the character of an appeal, that is, for re-hearing and correcting a judgment. The fact that a decision is erroneous on merit is no ground for review. On a plea taken that the decision is erroneous on merit due to wrong interpretation of facts, cannot be a ground for review. The error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning, inasmuch as, the reappraisal of the entire evidence on record for finding the error would amount to exercising appellate jurisdiction, which is not permissible.
In the instant case, the grounds assigned for causing review of the order are entirely different from the recognised parameters of review. By the present petition, and effort is made to seek review on the basis of documents which could not be said to not have been to the knowledge of the petitioner, inasmuch as, the said documents pertains to the petitioner himself and bears dates much
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prior to the rendering of the opinion dated 05.07.2014. Neither the School Certificate dated 22.05.2010 nor the Caste Certificate dated 15.05.2012 were brought on record either before the Tribunal or even before this Court in the related writ petition. It is not a case that the said documents could not be brought on record despite due diligence. They are not documents having come to his knowledge and discovered after opinion was rendered or the writ petition was disposed of. In so far as the Sale Deed is concerned, no value can be attached to it, inasmuch as, the same is shown to have been executed on 03.03.2015, which is well after opinion was rendered by the Tribunal.
On the documents above, this Court has now been called upon to re-appraise and reappreciate the facts and evidence which have already been considered and answered in the opinion of the Tribunal as well as in our order dated 28.11.2017. It is clearly not permissible in law.
We find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the discovery of new documents constitutes a valid ground for review of the Foreigners Tribunal order dismissing the writ petition.
Whether the documents produced could have been brought on record before the Tribunal and the Court prior to the dismissal.
Babulal Namasudra
The State of Assam
Deputy Commissioner Karimganj
Superintendent of Police Karimganj
Superintendent of Police (Boarder) Karimganj
Union of India
Manojit Bhuyan
Ajit Borthakur
As recorded by the court registry
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