Gauhati High Court
Page No.# 1/2 vs The Union Of India And 6 Ors on 13 August, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/20
GAHC010148022025
2025:GAU-AS:11144-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./41/2023
MD. ASHRAF ALI AND 7 ORS.
S/O LATE JONAB ALI
RESIDENT OF BHERBARI
PS DHARAMTUL
PO BELTALA
DIST MORIGAON
ASSAM 782425
2: MUSST. HAFIZA BEGUM
W/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
3: HUSNARA BEGUM (HASNARA BEGUM )
D/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
4: PARMINAL BEGUM (PARMINA BEGUM )
D/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
5: AFIZA BEGUM
D/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
Page No.# 2/20
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
6: KHAIRUN NESSA
D/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
7: ANOWARA BEGUM
D/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
8: MD. AZIZUR RAHMAN(AZIZUL HAQUE )
S/O ASHRAF ALI
RESIDENT OF VILL- BERBARI
P.S. DHARAMTAL
DIST. MORIGAON
ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
SHASTRI BHAWAN
TILAK NAGAR
NEW DELHI
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI 06
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI
4:THE CO ORDINATOR OF NRC
ASSAM
BHANGAGARH
GUWAHATI 781005
Page No.# 3/20
5:THE DEPUTY COMMISSIONER
MORIGAON
ASSAM
6:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
ASSAM.
7:THE OFFICER IN CHARGE
DHARAMTUL DIST MORIGAON
ASSAM
------------
Advocate for : MR. M U MAHMUD
Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 6 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 13.08.2025 (K.R. Surana, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioners. Also heard Ms. M. Das, learned counsel appearing on behalf of Mr. S.K. Medhi, learned CGC; Mr. J. Payeng, learned standing counsel for the FT matters and NRC; Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Junior Govt. Advocate for the State.
2) This application for review is directed against the order dated 09.09.2016, passed by the Division Bench of this Court in connection with an intra-court appeal, which has been registered and numbered as W.A. 12/2010, thereby dismissing the appeal preferred against the order dated 08.01.2010, passed by the learned Single Judge in W.P.(C) No. 2405/2009, thereby Page No.# 4/20 upholding the opinion dated 28.05.2009, passed by the learned Member, Foreigners Tribunal (1st), Morigaon, in Case No. FT(C) 652/2006. By the said opinion, the reference was answered in favour of the State, holding the 8 (eight) petitioners herein to be foreigners who have illegally migrated into India after 25.03.1971 and declaring them to be foreigners under Section 2(a) of the Foreigners Act, 1946.
Submissions by the learned counsel for the petitioners:
3) The learned counsel for the petitioners, upon specific query of the Court, had submitted that he is pressing the review petition due to subsequent developments. However, contrary to his reply as stated hereinbefore, while making his submissions, the learned counsel for the petitioners has submitted that the reference against the petitioners was erroneous and mistake on part of the State because, all the petitioners would derive their citizenship from their respective parents. It was submitted that the learned Tribunal, the learned Single Judge and the Division Bench did not examine the said aspect.
4) By referring to paragraph nos. 88 to 90 of the decision of the Supreme Court of India in the case of Board of Control for Cricket in India v.
Netaji Cricket Club, (2005) 4 SCC 741, it was submitted that the Court would have power to review its order, if it was vitiated due to (i) mistake of the Court;
(ii) mistake committed by the advocate, and (iii) misconception of facts and law.
5) In this case, the petitioners are (1) Md. Ashraf Ali son of Late Jonab Ali; (2) Musstt. Hafiza Begum, wife of petitioner no.1; (3) Husnara Begum, daughter of petitioner no.1; (4) Parminal Begum (Parmina Begum), daughter of petitioner no.1; (5) Afiza Begum, daughter of petitioner no.1; (6) Page No.# 5/20 Khairun Nessa, daughter of petitioner no.1; (7) Anowara Begum, daughter of petitioner no.1; and (8) Md. Azizur Rahman, son of petitioner no.1.
6) It has been submitted that two brothers of petitioner no. 1 and one brother of the petitioner no. 2 were declared to be not a foreigner by the learned Member, Foreigners Tribunal (1st), Morigaon. Therefore, by referring to paragraph 28 of the case of Abdul Kuddus v. Union of India & Ors., (2019) 6 SCC 604, it was submitted that as in a subsequent adjudication, the brothers of the petitioner no. 1 and 2, were declared to be not a foreigner, the present review petition would be maintainable.
7) It was further submitted that the name of other family members of the petitioners have appeared in the National Register of Citizens (NRC for short) and therefore, the impugned order is liable to be reviewed.
8) To explain the powers of Court for review, the learned counsel for the petitioners has made submissions regarding power of the High Court for "judicial review in respect of administrative actions". When asked by the Court as to whether a review petition filed under Section 114 read with Order XLVII, Rule 1 CPC can be equated with power for judicial review in respect of administrative actions, the learned counsel for the petitioners has answered in the affirmative by submitting that to the best of his legal knowledge, both are one and same.
9) By citing the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, it was submitted that the Court in exercise of review jurisdiction, ought to take into consideration the review petition, as it is supported by an affidavit, and treat the same as an additional evidence regarding subsequent development, whereby the brothers of the petitioner nos. 1 and 2 were declared Page No.# 6/20 to be not foreigners.
10) No other submissions were made.
Submissions of the learned standing counsel for the FT and Border matters:
11) The learned standing counsel for the respondent nos. 2, 4, 6 and 7 has submitted that the review petition was misconceived and abuse of the process of Court. It was submitted that this review petition was filed after the dismissal of the Special Leave to Appeal (Civil) Diary No. 30063/2017. It was submitted that the cases cited by the learned counsel for the petitioners does not help the petitioners in any manner. It was also submitted that the submissions of the learned counsel for the petitioners is not backed-up by any foundational facts or pleadings. Accordingly, by referring to those very cases which the learned counsel for the petitioners has cited, it was prayed that this review petition is liable to be dismissed.
Discussion and decision:
12) The submissions by the learned counsel for the petitioners, as referred to in paragraph 3 above is taken up first. From the TCR, the Court has perused the joint written statement filed by the petitioners and also perused the examination-in-chief and cross-examination of the petitioner no. 1 as DW-1. The learned counsel for the petitioners has not been able to show any statement made in the written statement filed by the petitioners, questioning how when one reference was made, proceedings could be registered by the Foreigners Tribunal against all the 8 (eight) petitioners. No statement of the petitioners could be shown objecting that the reference and registration of one proceeding for 8 (eight) petitioners was erroneous or mistake on part of the State.
Moreover, the petitioners has not annexed a copy of any order passed by the Page No.# 7/20 learned Tribunal by which the prayer of the petitioners to split up one common reference against the petitioners into 8 (eight) separate references before the learned Foreigners Tribunal. Moreover, the learned counsel for the petitioners has failed to show that the said point was pleaded in W.P.(C) 2405/2009, or was raised as a ground on which W.A. No. 12/2010 was filed. The learned counsel for the petitioner also could not show that the said point has either been pleaded in this review petition or is set out as one of the grounds on which this review petition was filed. The learned counsel for the petitioner also could not show that the said point was urged either before the learned Single Judge or before the Division Bench, when the intra-court appeal was being heard.
13) Thus, as per the submissions of the learned counsel for the petitioners, it appears that his expectations are that the learned Single Judge or the Division Bench of this Court would examine points which were neither pleaded nor urged before the Hon'ble Bench at the time of hearing.
14) The learned counsel for the petitioners has submitted that the petitioner no. 1 and the petitioner no. 2 would derive their Indian citizenship from their respective parents. Therefore, it was submitted that it was necessary that one separate proceeding should have been instituted against the petitioner nos.1, and 3 to 8 and the second proceedings should have been instituted against the petitioner no.2. It was submitted that the learned Foreigners Tribunal, the learned Single Judge and the Division Bench did not examine or go into the said aspect.
15) Thus, the learned counsel for the petitioners has spent a lot of judicial time of the Court in making submissions on non-pleaded points. The said misadventure by the learned counsel for the petitioners is strongly deprecated and the displeasure of the Court against the learned counsel for the Page No.# 8/20 petitioners for making such unfounded submissions and to waste the valuable time of the Court, is made a part of the record.
16) In Ground-I of this review petition, it has been stated that there are large number of judgments by this Court and by the Supreme Court of India on the point that for discrepancies in names and age of a person one should not be declared as a foreigner. In this regard, the case of Abdul Matali @ Matalab v. Union of India, 2015 (2) GLT 617 and Sirajul Haque v. State of Assam, (2019) 5 SCC 534 were cited.
17) In the said context, it may be mentioned as follows:-
a. The learned Single Judge and the Division Bench of this Court have both examined the pleadings and evidence and by rejecting the plea of the petitioners, upheld the opinion passed by the learned Foreigners Tribunal.
b. It may be mentioned that before the learned Foreigners Tribunal, the petitioner no.1, namely, Md. Asrab Ali, had examined himself as OPW-1 and he had also examined one Md. Habibur Rahman, a cultivator as OPW-2. However, no document was exhibited by them.
c. The TCR reveals that the petitioner nos. 2 to 8 were not examined as witnesses.
d. The petitioner no. 1 has stated in his examination-in-chief recorded on 06.05.2009, that he was born in village- Dewaguri under Lahorighat P.S. and due to crisis, in the year 1977, he had migrated with his family to Berbari village, under Dharamtal P.S. He had married Hafiza Begum, daughter of A. Sattar of village- Bherberi in 1984. His name appeared in voter list of 1985 and he has been casting his vote since 1985 till Page No.# 9/20 date. He had stated that he had submitted the voter list of 1985. He had stated that he was born in the year 1969 at Dewaguri and his father's name is Dengu Fakir. However, it may be mentioned that while getting his name and particulars recorded by the learned Tribunal in the deposition form, the petitioner no. 1 had got his name and father's name recorded as Md. Ashraf Ali, son of Late Jonab Ali.
e. The petitioners have not annexed the evidence of OPW-2 in the instant review petition for reasons best known to them. However, from a perusal of the TCR of the learned Tribunal, it is seen that the petitioners had examined one Md. Habibur Rahman as OPW-2, who had merely stated that he knows the Asrab Ali and his family. He has two sons and 3/4 daughters. He had stated that in the year 1986, Asrab Ali came to village- Barbari from village- (illegible).
f. The petitioners have annexed copy of NRC 1951, voter list of 1966, 1970, 1985 and Gaon Panchayat Certificate respectively as Annexure nos. 1 to 5 to the writ petition. Those documents relate to the petitioner no.1. In respect of the petitioner no. 2, the voter list of 1965 and 1970 and panchayat certificate dated 01.03.2007 have been annexed as Annexures 6, 7 and 8 to the writ petition.
g. At the cost of repetition, it may be mentioned again that no documents have been exhibited by the petitioners before the learned Tribunal. Thus, the petitioners have not proved the contents of any of the documents. Yet, the submissions of the learned counsel for the petitioners are found to have been considered by the learned Tribunal. This accounts for lack of reference to the exhibited documents in the impugned opinion.
Page No.# 10/20 h. Thus, the Court is constrained to hold that this is not a case where any evidence tendered by the petitioners has been misread or misconstrued.
i. If despite adducing evidence, no document is exhibited, the presumption under Section 114, Illustration (g) of the Evidence Act, 1872 can be drawn to the effect that the evidence, which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.
j. Accordingly, it appears that the learned counsel for the petitioners, by not highlighting the above, has made a deliberate attempt to mislead the Court. Due to lack of proper assistance to the Court, a lot of time had to be wasted in perusing the TCR.
18) Ground-II of this review petition is to the effect that the learned Appellate Court (i.e. the intra court appellate Bench) did not believe the public document, which is an unacceptable legal proposition, as public documents are acceptable in view of Section 74 of the Evidence Act. In a writ petition filed to assail the opinion of the learned Foreigners Tribunal, the High Court, under Article 226 of the Constitution exercises certiorari jurisdiction. No attempt has been made by the learned counsel for the petitioners to show any legal provision or any case citation, where it has been laid down that in exercise of certiorari jurisdiction, the learned Single Judge as well as the Division Bench, in intra-court appeal, has to appreciate documents, which were hitherto not exhibited before the learned Foreigners Tribunal.
19) It is trite law that in exercise of certiorari jurisdiction under Article 226 of the Constitution of India, the High Court ought not to substitute Page No.# 11/20 its view over opinion of the learned Foreigners Tribunal, which is not found to be vitiated for any error whatsoever. If one requires any authority on the point, the decision of the Supreme Court of India in the case of Central Council for Research in Auyrvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, may be referred to. Paragraph 77 thereof is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
20) In Ground-III, it has been stated that due to shifting of residence, one does not become a foreigner. In this regard, it was the duty of the petitioner nos. 1 and 2 to prove that they have any link with their projected parents whose name appear in any of the voter lists of 1965, 1966 and 1970. Thus, the case of Sirajul Hoque (supra), cited by the learned counsel for the petitioners does not help the petitioners in any way. Without any documentary evidence, oral evidence from "A" cannot be accepted to the effect that "A" is the son of "B", but "B's" name is wrongly written as "C" and therefore, "B" and "C" is Page No.# 12/20 one person. This is not a case where there is some spelling error in the names, but as all the family members of the petitioners, specifically, of the petitioner nos. 1 and 2, are not pleaded and/or accounted for, this is a case where the petitioners are attempting to substitute a particular name with another, by projecting such person to be the father of the petitioner nos.1 and 2 respectively.
21) In Ground-IV, it has been stated that legal evidence of witnesses were not believed by the Courts, which has caused prejudice to the petitioners, which is against the principles of law laid down in various cases. In this regard, it may be mentioned that though the learned counsel for the petitioners has made his submissions for more than one hour, but not even once, the learned counsel for the petitioners has made any attempt to refer to any legal evidence available in the TCR, which was not considered in its correct perspective.
22) In Ground-V, by referring to the case of Union of India v. Ibrahim Uddin (supra), it has been stated that there are ample instances where the Court has ordered to accept fresh documents as additional evidence which are vital for determination of citizenship. However, despite the Court query as to whether circumstances required for allowing production of additional evidence as discussed in paragraphs 36 to 49 of the case of Ibrahim Uddin existed in this case, the learned counsel for the petitioners has refused to give a straight answer either in affirmative or in the negative.
23) In the absence of any assistance from the learned counsel for the petitioners, the TCR has carefully been perused by the Court, which does not disclose that at any stage the petitioners had made any prayer before the learned Tribunal for adducing additional evidence, which was refused. No such prayer is found to be made in the writ petition and no such prayer is found to Page No.# 13/20 have been made during the course of hearing of the writ appeal. Thus, a totally new point is sought to be urged in this review petition, which is impermissible in light of the facts and circumstances of this case.
24) In Ground-VI, it has been urged that many new developments has occurred as the name of Itabali is recorded in the NRC 1951. The petitioners claims that the brother of the petitioner no. 1 is Kitab Ali, but wrongly written as Itabali in the NRC. Further, it is projected that Fatima Begum, projected to be the sister of petitioner no. 1, was declared to be an Indian citizen. It is also stated that the name of Kulsuma Bibi, projected to be another sister of the petitioner no.1, has been recorded in the Final NRC of 2019. In paragraph 8 of the review petition, it has been stated that Abdul Latif, brother of petitioner no.2, namely, Hafiza Begum has been declared to be Indian citizen. In this regard, the learned counsel for the petitioners has referred to the following three opinions rendered by the Foreigners Tribunal, being:-
a. Opinion dated 28.02.2022, passed by Foreigners Tribunal (1st), Morigaon, in Case No. FT(C) 819/2010 [Police Ref. I.M.(D.) T. Case No. 305/2000 dated 25.09.2000] - Union of India v. Kitab Ali.
b. Opinion dated 21.09.2016, passed by Foreigners Tribunal (1 st), Morigaon, in Case No. FT(C) 2008/2010 [Police Ref. I.M.(D.)T. Case No. 816/04 dated 27.08.2004] - State of Assam v. Md. Amiruddin & Ors.
c. Opinion dated 28.09.2016, passed by the Foreigners Tribunal (1 st), Morigaon, in Case No. FT(C) 10/2008 [Police Ref. I.M.(D.)T. Case No. 37/2001 dated 29.01.2001] - State of Assam v. Md. Abdul Latif & Ors.
25) The learned counsel for the petitioners could not show from the contents of the hereinbefore referred opinion dated 28.02.2022, that it contains Page No.# 14/20 any reference to any of the petitioners herein as relative of the proceedees therein, namely, Kitab Ali. Moreover, in the written statement of the petitioners, which is available in the TCR of Case No. FT(C) 652/2006, that was called for from the Foreigners Tribunal (1st), Morigaon, the petitioners have not disclosed the name of the said Kitab Ali as the brother of Ashraf Ali (petitioner no.1).
26) Similarly, the learned counsel for the petitioners did not make any attempt to show from the contents of the opinion dated 21.09.2016, regarding reference to any of the petitioners herein to be the close relative of the four proceedee therein, namely, (1) Md. Amiruddin, (2) Musstt. Fatema Begum, (3) Md. Abdul Kuddus, (4) Musstt. Noor Begum. Moreover, in the written statement of the petitioners in Case No. FT(C) 652/2006, available in the TCR, the petitioners have not disclosed the name of Fatema Begum, as sister of petitioner no.1.
27) Similarly, the learned counsel for the petitioners did not make any attempt to show from the contents of the opinion dated 28.09.2016, regarding reference to any of the petitioners herein to be the close relative of the proceedee therein, namely, Md. Abdul Latif. Moreover, in the written statement of the petitioners, which is available in the TCR of Case No. FT(C) 652/2006, the petitioners have not disclosed the name of Md. Abdul Latif as the brother of petitioner no.2, namely, Musstt. Hafiza Begum.
28) Thus, in guise of review, the petitioner nos. 1 and 2 are making an attempt to connect themselves to Kitab Ali, Fatema Begum and Md. Abdul Latif, against whom opinion referred hereinbefore were rendered by the learned Foreigners Tribunal. The learned counsel for the petitioners have not made any attempt to show anything from the record that the said proceedees, namely, Page No.# 15/20 Kitab Ali, Fatema Begum and Md. Abdul Latif had admitted in their respective written statement that the petitioners, namely, (1) Md. Ashraf Ali, (2) Musstt.
Hafiza Begum, (3) Husnara Begum, (4) Parminal Begum, (5) Afiza Begum, (6) Khairun Nessa, (7) Anowara Begum, and Md. Azizur Rahman @ Azizul Haque were related to them. Similarly, the learned counsel for the petitioners could not show from the written statement jointly filed by the petitioners that they have made any statement made in their written statement filed in Case No. FT(C) 652/2006, disclosing that (i) Kitab Ali, the proceedee in Case No. FT(C) 819/2010 [Police Ref. I.M.(D.)T. Case No. 305/2000 dated 25.09.2000]; (ii) Fatema Begum, the proceedee no.2 in Case No. FT(C) 2008/2010 [Police Ref. I.M.(D.)T. Case No. 816/04 dated 27.08.2004]; and (iii) Md. Abdul Latif, the proceedee no.1 in Case No. FT(C) 10/2008 [Police Ref. I.M.(D.)T. Case No. 37/2001 dated 29.01.2001] were the close relatives of the petitioners in this review petition.
29) It is too well settled that in guise of review, a matter which has been heard and decided on merit cannot be re-heard again. In the case of Surendra Kumar Vakil & Ors. v. Chief Executive Officer, M.P. & Ors., (2004) 10 SCC 126, the Supreme Court of India 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.
30) It is also trite law that review is not an appeal in disguise. Moreover, it is also well settled that review must disclose error apparent on the face of the record, which can be found without elaborate hearing. None of the aforesaid parameters are available in this case.
31) In the case of Smt. Longjam Ongbi Pishak Devi v. Smt. Longjam Ongbi Toyaima Devi & Ors., (1987) 2 GLR 226 , it has been held by this Court Page No.# 16/20 that 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 review, or could not be produced by him at the time when the order was made.
32) It is not the pleaded case of the petitioners that when they were contesting the proceedings of Case No. FT(C) 652/2006, they were not aware of existence of their close relationship with the proceedees in (a) Case No. FT(C) 819/2010 [Police Ref. I.M.(D.)T. Case No. 305/2000 dated 25.09.2000], namely, Kitab Ali; (b) Case No. FT(C) 2008/2010 [Police Ref. I.M.(D.)T. Case No. 816/04 dated 27.08.2004], namely, Fatema Begum; and (c) Case No. FT(C) 10/2008 [Police Ref. I.M.(D.)T. Case No. 37/2001 dated 29.01.2001], namely, Md. Abdul Latif. It is not the pleaded case of the petitioners that existence of their close relationship with the said three proceedees of separate cases were discovered only after the said proceedings were decided and after the writ petition and the writ appeal was dismissed. It is also not the pleaded case of the petitioners that they were not aware of the existence of their relationship with the said Kitab Ali, Fatema Begum, wife of Md. Amiruddin and Md. Abdul Latif despite exercise of due diligence.
33) It would be appropriate to quote the observations made by the Supreme Court of India in paragraph 26 and 32 of the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which are quoted below:-
26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of Page No.# 17/20 the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary.
If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
* * *
32. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in UK and some other Western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative.
34) In the case of Rashminara Begum v. Union of India, 2017 (4) GLT 346, and Saru Sheikh v. Union of India, (2017) 4 GLR 295 , this Court has held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. In the case of Ayesha Khatun v. Union of India, (2017) 3 GLR 820, and Jehirul Islam v. Union of India, (2017) 5 GLR 670, this Court has held that failure to disclose material facts would lead to adverse presumption. Thus, the petitioners, having not made any pleadings in their written statement to project any of the proceedees in the three cases referred above to be their close relations, it would lead to an adverse presumption against the petitioners.
35) Thus, no case for review has been made out. Nonetheless, as the petitioners claim citizenship as a valuable right, though not required, the merit of the case of the petitioners has been examined. Therefore, as this exercise has been done on the unique facts of this case, the re-examination of materials on record in connection with a review petition is not intended to be cited as a precedent in any other case.
36) The learned counsel for the petitioners has made yet another Page No.# 18/20 attempt to mislead the Court by his incomplete reading of only the last part of paragraph 28 of the case of Abdul Kuddus (supra). The said paragraph, which is self explanatory as to how it is possible for some member of the family to be Indian and the other members of the family to be a foreigner, which had not been read is quoted below:-
28. It was highlighted that there could be contradicting decisions/ opinions of the Foreigners Tribunal even in cases of near family members, albeit contradictions can be avoided when "family tree hearings" are held as is now being undertaken.
In the absence of joint decisions, conflict is possible as the principle of res judicata would not apply to separate proceedings even if against two closely related but different persons, as each case has to be strictly decided on the facts and evidence on record. Secondly, there is a possibility that some/one of the near family members may have migrated to India prior to midnight of 24-3-1977 and, therefore, fall in a different category. Any such conflict, however, would not compel us to take a different view, in terms of the clear statutory provisions. In a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or if necessary, review jurisdiction before the High Court or this Court to ensure that no injustice is done. Any order passed in case of close family members, subsequent to adjudication order determining the citizenship status of a person, would necessarily be a material evidence which can be duly taken note of and considered while deciding a writ petition or a review application.
37) Thus, as an example, if 'A' is shown to have entered India between 01.01.1966 and before 25.03.1971, he may be registered under the provisions of the Citizenship Act, 1955 and claim to be Indian. However, other members of the family of 'A', who has entered into India from the specified territory after 25.03.1971, can still be declared as an illegal foreigner in the Country. Therefore, the Supreme Court of India, in the case of Abdul Kuddus (supra), has held to the effect that each case has to be examined on its own merit.
38) As stated hereinbefore, the petitioners in this case have not even annexed the written statement filed by the proceedees in the said three Page No.# 19/20 subsequent references, which is yet another attempt to withhold material facts from this Court. Thus, under Section 114, Illustration (g) of the Evidence Act, 1872, adverse presumption is drawn to presume that had the petitioners annexed the written statement filed in those three proceedings in this review petition, it would have come to light that the proceedees in those three Foreigners Tribunal's proceedings did not make any pleadings that the petitioners herein are their close relation, i.e. brother and sister of petitioner no. 1 and brother of petitioner no.2.
39) The learned counsel for the petitioners had cited the case of Board of Control for Cricket in India (supra) , regarding power of a Court to review its order. However, the learned counsel for the petitioner has failed to show (i) what mistake was committed by the Court; (ii) what mistake was committed by the advocate for the petitioners while deciding the writ petition and the writ appeal; and (iii) owing to which misconception of facts and law, the orders passed in the writ petition and/or the writ appeal is vitiated.
40) Thus, by a series of challenges, i.e. by filing (i) writ petition, (ii) writ appeal, and (iii) this review petition, the petitioners have been successful to stall the implementation of the consequences of the opinion dated 28.05.2009, passed by the learned Member, Foreigners Tribunal (1 st), Morigaon, in Case No. FT(C) 652/2006, i.e. for about 16 (sixteen) years.
41) Therefore, in light of the discussions above, on all counts, this review petition fails and is accordingly, dismissed.
42) In view of several instances referred herein before, where the learned counsel for the petitioners is found to have made attempts to mislead the Court, the Court is inclined to direct the learned counsel for the petitioners, Page No.# 20/20 namely, Mr. M.U. Mahmud to deposit a token cost of Rs.5,000/- (Rupees Five thousand only) before the Gauhati High Court Bar Association for its Advocates Benevolent Fund, which shall be done within a period of one month from the date of the order. Therefore, let a copy of this order be sent to the Secretary, Gauhati High Court Bar Association.
43) The consequences of opinion dated 28.05.2009, passed by the learned Member, Foreigners Tribunal (1st), Morigaon in Case No. FT(C) 652/2006, shall follow.
44) It is also clarified that order dated 15.04.2020, passed by the coordinate Bench of this Court in W.P.(C) (Suo Motu) 1/2020- XXX v. In Re: The Union of India & Ors., shall not come in the way for the State to take such appropriate measures, as may be so required, to deport/send-back the petitioners to the specified territory in case there is no other legal impediment.
JUDGE JUDGE. Comparing Assistant