Gauhati High Court
Sultana Begum vs The Union Of India And 3 Ors on 30 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 242
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Nani Tagia
Page No.# 1/5
GAHC010021372019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 53/2019
1:SULTANA BEGUM
W/O- LATE AKKAS ALI,
R/O- BATMARI, P.S. TEZPUR, DIST.- SONITPUR, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, THE MINISTRY OF
HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI- 6.
3:THE SUPERINTENDENT OF POLICE (BORDER)
SONITPUR
P.O. AND P.S. TEZPUR
DIST.- SONITPUR
ASSAM.
4:THE DEPUTY COMMISSIONER
SONITPUR
P.O. AND P.S. TEZPUR
DIST.- SONITPUR
ASSA
Advocate for the Petitioner : MD. I HUSSAIN
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE NANI TAGIA
O R D E R
30.05.2019 (Manojit Bhuyan, J) Heard Mr. I. Hussain, learned counsel for the review petitioner as well as Mr. J. Payeng, learned counsel represents respondent nos.2, 3 and 4. None to represent respondent no.1. Petitioner seeks review of the order dated 20.11.2018 dismissing the writ petition i.e. WP(C) 7115/2016 wherein challenge was made to the opinion dated 23.08.2016 of the Foreigners' Tribunal, Tezpur in F.T.(D) Case No.4034/2012. The relevant portion of the said order reads as follows:
"3. Facts to be noticed are that the petitioner Musstt. Sultana Begum, born on 28.04.1993,projected one Abdul Kalam as her father, Musstt. Hanufa Khatun as her mother and one Alimuddin as her grandfather. By means of a copy of the Voter List of 1997 (Exhibit-C), the existence of her father, who was aged 45 years, was demonstrated. Against the name of her projected father Abdul Kalam in the Voter List of 1997, relationship was shown with one Alimuddin. To trace the lineage of her projected father, the petitioner exhibited the Voter List of 1966 (Exhibit-B), which recorded the name of her projected grandfather Alimuddin. As it was vital to establish her linkage/relationship with her projected father Abdul Kalam to complete the lineage from her projected grandfather Alimuddin, reliance was placed in the School Certificate dated 12.10.2015 (Exhibit-A), issued by the Headmaster of Chatai Chapori Lower Primary School, district Sonitpur and Certificate dated 13.07.2015 (Exhibit-D), issued by one Sri Hemanta Bora as Secretary of Bhomoraguri Gaon Panchayat, district- Sonitpur.
4. Apparently, the issuing authorities/authors of Exhibit-A and Exhibit-D certificates were not examined to prove the said certificates and the contents thereof. In this connection, Mr. Sikdar submits that notwithstanding non-examination of the authors, at least in the case of the Exhibit -A school certificate, the same having been taken in evidence and marked as an exhibit without objection to its admissibility and mode of proof, no further evidence was required to prove the contents thereof that the petitioner is the daughter of Late Abdul Kalam. In short, Mr. Sikdar submits that the Exhibit-A school certificate being a document within the ambit of Section 74 of the Indian Evidence Act, 1872, as such, it is admissible perse without formal proof. On this, reliance is placed in the case of Sham Lal @ Kuldip vs. Sanjeev Kumar and Ors., reported in (2009) 12 SCC 454.
5. In the aforesaid case of Sham Lal (supra), one of the issues was with regard to aSchool Leaving Certificate, which was exhibited as Ext.P-2 issued by the Headmaster, Government Primary School, recording Sham Lal to be the son of one Sri Balak Ram. The District Judge deciding the suit Page No.# 3/5 observed to the effect that the said School Leaving Certificate as Ext.P-2 issued by the Headmaster, Government Primary School, is a public documentrecording Sham Lal as the son of Sri Balak Ram. Before the Supreme Court the defendants in the suit questioned the findings of the District Judge holding Exhibit P-2 as a public document and for admitting the same without formal proof. The same was answered by the Supreme Court by holding that the defendants in the suit cannot question the same in the appeal before the Supreme Court since no any objection was raised by them when such document was tendered and received in evidence.
6. Whether a document, which is marked as an exhibit, is a public document within the meaning of Section 74 of the Indian Evidence Act and would be admissible per se without formal proof, the test would be that it must satisfy the nature of the documents as described in the said Section 74. A school certificate without any particulars as regards its date of establishment, proof of its recognition and provincialisation by the State authority, absence of any particulars of having its name captured in the District Information System for Education(DISE) data, as required under the law, per se cannot be held to be a public document, as inthe Exhibit-A school certificate in the instant case. Further, the Exhibit-A school certificate cannot be deemed to be part of any public records kept in any State of private documents. This certificate showing the petitioner Musstt. Sultana Begum as daughter of Late Abdul Kalam is a document which can only be obtained from the school in question. If school certificates in the nature of Exhibit- A are deemed to be public documents and made admissible per se without formal proof, in our considered opinion it will be adding a new definition to the meaning of 'public documents' in Section 74 of the Indian Evidence Act. This is clearly not permissible. While on the issue of Exhibit-A herein, another important aspect to be noted is with regard to the improper use of the State emblem in the certificate. We would observe that the Central Government has framed statutory rules called State Emblem of India(Regulation of Use) Rules, 2007 (in short the Rules), in exercise of powers conferred by Section11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act).Section 3 of the Act specifically prohibits improper use of the state emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non- Government Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. Therefore, the Certificate dated 12.10.2015 (Exhibit-A) containing the State Emblem of India cannot be regarded as a valid and acceptable document. It stands that the State Emblem has been improperly used and the same being in clear violation of the aforesaid Act and Rules, renders the said Certificate as Page No.# 4/5 inadmissible in evidence. Having held that the Exhibit-A is not a public document within the meaning of Section 74 of the Indian Evidence Act, the case in Sham Lal (supra), to the extent relied upon, do not come to the aid of the petitioner.
7. From the available records the existence of the projected father of the petitioner i.e. Abdul Kalam can only be traced from the year 1997 at village Batamari. There is no disclosure made in the pleadings as to when her projected father shifted to village Batamari from village Chatai Chapori i.e. the place where her projected grandfather was residing. Be that as it may, the name of Abdul Kalam first appears in the Voter List of 1997 at village Batamari. An inherent contradiction arises when the petitioner pleads that she was born in village Batamari on28.04.1993, which is 7 (seven) year priors to her projected father's recorded existence at village Batamari. There are also no disclosures made with regard to her mother's name, particulars of her siblings, the date of demise of her grandfather etc., which are vital pleadings to claim citizenship. Another inescapable aspect is that it is difficult to comprehend as to why no other voter list in the name of the projected father Abdul Kalam, prior to the voter list of 1997, was produced and exhibited, in view of the fact that the recorded age of said Abdul Kalam was 45years in the year 1997.
8. From the foregoing, we are of the opinion that the petitioner failed to establish her claim as a citizen of India and/or that she is not a foreigner within the meaning of the Foreigners Act,1946. She utterly failed to establish her linkage with her projected father Abdul Kalam and to her projected grandfather Alimuddin by cogent, reliable and admissible evidence. In this regard, wefind no infirmity in the opinion dated 23.08.2016 "
The present review petition is laid on the following grounds :
"A) For that, the Hon'ble Court failed to appreciate the fact that the petitioner adduced evidence before the learned Tribunal and on oath, she deposed before the learned Tribunal, but the respondent side declined to cross examine her statement. Under such circumstances, her oral evidence is enough to establish her case. As such, the Order dated 20.11.2018 is required to be reviewed. B) For that the Hon'ble Court failed to appreciate the fact that the statement of witnesses cannot be discarded unless there is contradiction, inconsistency and embellishment. As such, the Order dated 20.11.2018 is liable to be reviewed.
C) For that the Hon'ble Court failed to appreciate that cross was declined by the prosecution and hence the evidence of the petitioner remained uncontroverted. As such, the Order dated 20.11.2018 is liable to be reviewed.
D) For that, in any view of the matter, the Order dated 20.11.2018 is liable to be reviewed ."
From the grounds above it is seen that the petitioner claims that her case is established on her oral testimony alone as there was no cross-examination from the respondents' side. The statement of the petitioner, it is submitted, could not have been Page No.# 5/5 discarded in the absence of any contradiction or inconsistency thereof. In other words, it is stated, that the evidence tendered by the petitioner remained uncontroverted and there was no finding by this Court on the above grounds.
In the above aspect of the matter, we would observe 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. A 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 or erroneous finding, whether in law or on fact, 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, this Court has been called upon to re-appraise and re-appreciate the facts which have already been answered in the opinion of the Tribunal as well as in our order dated 20.11.2018.
We, therefore, find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE Comparing Assistant