Gauhati High Court
Review.Pet./110/2021 on 13 December, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010203762021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./110/2021
Review Petitioners:
1. NEPAL DAS,
S/O LATE BHUDAI DAS,
R/O VILL-DAKSHIN DHARAMTUL,
P.S.-MAYONG, DIST-MORIGAON, ASSAM,
PIN-782412.
2: SMTI. KANANBALA DAS,
W/O SRI NEPAL DAS,
R/O VILL-DAKSHIN DHARAMTUL,
P.S.-MAYONG, DIST-MORIGAON, ASSAM,
PIN-782412.
3: SMTI. TAPATI SARKAR.
D/O NEPAL DAS.
R/O VILL-DIMORIA.
P.S.-SONAPUR, DIST- MORIGAON, ASSAM,
PIN-781032.
4: SWAPAN DAS,
S/O SRI NEPAL DAS,
R/O VILL-DAKSHIN DHARAMTUL,
P.S.-MAYONG,, DIST-MORIGAON, ASSAM,
PIN-782412..
-VERSUS-
Respondents:
1. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
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MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
SHASTRI BHAWAN, NEW DELHI-110001
2:THE STATE OF ASSAM,
THROUGH THE SECRETARY TO THE GOVT. OF ASSAM,
GOVT. OF ASSAM,
HOME DEPARTMENT,
DISPUR, GUWAHATI-6
3:THE SUPERINTENDENT OF POLICE(B), MORIGAON,
DIST- MORIGAON,ASSAM
PIN-782105.
4:THE OFFICER-IN-CHARGE,
MAYONG POLICE STATION,
DIST- MORIGAON, ASSAM,
PIN-782411
5:THE STATE COORDINATOR,
OFFICE OF THE NRC ASSAM,
1ST FLOOR,
ACHYUT PLAZA,
G.S. ROAD, BHANGAGARH,
GUWAHATI, ASSAM, PIN-781005.
6:THE ELECTION COMMISSIONER OF INDIA
ASHOKA ROAD,
NEW DELHI
PIN-11000
Advocate for the review petitioners:
Ms. D. Ghosh, Advocate.
Advocate for the Respondents,
Ms. L. Devi (On behalf of Mr. RKD Choudhury, ASGI),
Mr.A. Kalita, Special Counsel, FT,
Mr. A.I. Ali, SC, ECI,
Ms. L. Devi, SC, NRC,
Ms. U. Das, Addl. Sr. Govt. Advocate, Assam
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BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Date of hearing ::01.12.2022
Date of judgment ::13.12.2022
JUDGMENT AND ORDER (CAV)
(N. Kotiswar Singh, J.)
Heard Ms. D. Ghosh, learned counsel for the review petitioners. Also heard Ms. L. Devi,
learned counsel, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Mr. A. Kalita,
learned Special Counsel, FT; Mr. A.I. Ali, learned Standing Counsel, ECI; Ms. U. Das, learned
Additional Senior Government Advocate, Assam and Ms. L. Devi, learned Standing Counsel,
NRC.
2. In this review petition, the review petitioners have sought for review of the order dated
01.10.2018 passed by this Court in WP(C) No.6707/2018.
3. Though the issue of limitation was initially raised in preferring the review petition, Mr.
Kalita, learned Special Counsel, in his all fairness, has submitted that he will not press this
issue in view of the fact that at the relevant time, Covid-19 pandemic was raging in this
country, which may have contributed significantly to the delay in filing this petition.
4. Before we consider the grounds in seeking review and the response of the State in that
regard, it would be apposite to refer to the relevant portions of the order dated 01.10.2018
passed in WP (C) No. 6707/2018 sought to be reviewed.
"The Tribunal vide impugned order opined the reference against the petitioners after
holding as follows:
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"7. CRITICAL ANALYSIS OF THE REFERENCE
The certificate issued by "Assam Refugee Federation" dated 6.9.1963 is the
only document the O.Ps could show their presence in Indian soil prior to the base
period of 1965-1966 and this certificate is issued by a private organization which
therefore, cannot be made admissible as per Evidence Act, 1782. Assuming the O.Ps
have set their foot in 1963 for settling down in India, they ought to have obtained a
certificate of Registration being registered as Indian citizens u/s 5(1) (a) (d) of the
Citizenship Act, 1955 from competent authority. Unless the said certificate is
obtained, the O.Ps remain illegal Migrants (Bangladeshis) and moreover, they have
no voter list of 1995/1966 or 1970/1971. From the above discussion, it can be
presumed that either the O.Ps have exhibited a Fake/Tempered Refugee Certificate of
1963 or have literarily entered into India(Assam) after 25.3.1971. The other
exhibits/documents do not need any discussing as the O.Ps have miserably failed to
prove themselves as Indian citizens as is envisaged Under Section 9 of the Foreigners'
Act, 1946. And importantly, the O.Ps have not proved the contents of the documents
of the Refugee Certificate as is required under the law, more particularly as laid
down; by the Apex Court in Life Insurance Corporation of India & Anr. - Vs.- Ram
Pal Singh Bisen reported in (2010) 4 SCC 291 that " Contents of a document cannot
be proved merely by filing it in a Court unless the contents thereof are proved in
accordance with law."
Ms. Ghosh submits that the findings of the Tribunal was not proper inasmuch the claim
of entry into India by the petitioner No. 1 was on the basis of the documentary piece of
evidence i.e. the certificate issued by the "Assam Refugee Federation" dated 6.9.1963. The said
certificate ought not to have discarded only for the reason that the said certificate was not
proved as required under the Indian Evidence Act, 1872. On the basis of said submission Ms.
Ghosh sought for setting aside the impugned order.
Mr. Kalita on the other hand, vehemently opposed the submission of the learned counsel
for the petitioner on the ground that even if the said certificate is not considered at all there are
no other materials to show that the petitioner entered India prior to the cut off date i.e
25.3.1971. None of the certificates issued by the Gaonburha were proved and under such
circumstances, the submission of the learned counsel for the petitioner cannot considered at all.
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Considered the submission of the learned counsel. On perusal of the impugned order we
find that the only piece of evidence in order to prove the entry to India prior to the cut off period
be it 1966 or 25.3.1971 by the petitioners, is the said certificate issued by the said Federation. If
the said document is left out beyond the purview of consideration, the rest of the documents
even, the Voters Lists for the year 1977 and 1989 cannot be pressed for the rescue of the
petitioners considering the onus placed on the petitioners to discharge as per the contents of the
notice mentioning the cut off date of 25.3.1971. The said certificate dated 6.9.1963, Ext.1 is
issued by a private party which has no valid force under any provisions of law to have its
presumptive evidentiary value. Under such circumstances a duty is cast upon the petitioner No.
1 to prove the contents not only of the certificate i.e. Ext. 1 but also the Exts. 4, 5 and 6 which
are the certificates issued by the Gaonburha. Having not done so, we are not inclined to accept
the submission of Ms. Ghosh that leaving aside the Ext.1, the rest of the documents ought to
have been considered giving effect to its full evidentiary value as required in order to discharge
the onus on the petitioners. The petitioner No.1 has a duty cast on him at least to place on
record the materials and relevant evidence which are admissible under the law. Moreover, in
addition to that the petitioner No.1 is also laden with the burden to show before the Tribunal
that the said Assam Refugee Federation has its authority under any statute to issue the said
certificate Ext.1. The same is missing in the present case in hand and in our considered opinion,
we do not find any wrong application of the jurisdiction by the Tribunal which requires
interference of the impugned order. Accordingly with the said findings we dismiss this writ
petition."
5. From the above extracted portions of the order of this Court which also contains the
findings of the Tribunal, what is discernible is that the Tribunal rejected the plea of the
proceedees primarily on the ground that the certificate issued by "Assam Refugee Federation"
is the only document by which the proceedees could show their presence in Indian soil prior
to the period 1965-1966, which was issued by a private organization and as such, not
admissible as per Indian Evidence Act, 1872.
6. The learned Tribunal went on to observe that assuming that the proceedees had set
their foot in Assam in 1963 for settling down in Assam, they ought to have obtained a
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Certificate of Registration under Section 5(1)(a)(d) of the Citizenship Act, 1955 from the
competent authority and since they did not do so, they would be treated as illegal
immigrants. Moreover, their names were not included in the voters lists of 1965, 1966, 1970
or 1971 respectively. Thus, the Tribunal held that, from the above, it can be presumed that
either the proceedees had exhibited a fake or tempered Refugee Certificate of 1963 or have
illegally entered India (Assam) after 25.03.1971.
The Tribunal, accordingly, held that there was no need to discuss other exhibits or
documents as the proceedees had failed to prove that they are Indians as required under
Section 9 of the Foreigners Act, 1946.
7. This Court, while dismissing the said writ petition, WP(C) No.6707/2018 challenging
the opinion of the Tribunal noted that the only piece of evidence relied upon by the
proceedees to prove that they had entered India (Assam) prior to 1966 was the certificate
issued by the said Federation and taking a similar view as the Tribunal, held that the said
certificate was issued by a private party which has no legal force to have presumptive
evidentiary value and as such, it was incumbent upon the proceedees to prove the contents
of the said certificate and also other certificates issued by the Gaonburha in accordance with
law which having been not done, it was not necessary to examine other documents. This
Court also observed that if the said document is left out of consideration, the rest of the
documents cannot be pressed for rescuing the petitioners considering the onus placed on the
petitioners to discharge their burden. This Court held that no illegality has been committed by
the Tribunal so as to warrant interference by this Court in exercise of power under Article 226
of the Constitution of India.
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8. Several grounds have been raised for seeking review of the aforesaid order dated
01.10.2018 passed by this Court in WP (C) No. 6707/2018.
Firstly, it has been submitted that this Court while dismissing the said writ petition
challenging the opinion dated 28.06.2017 of the Foreigners Tribunal No.1, Morigaon in Case
No. FT(C) 586/2010 did not consider a very critical document, which the petitioners relied on,
i.e., the certificate of registration issued on 06.03.1962 by the Additional Deputy
Commissioner, the then Kamrup, Guwahati in the name of Budhai Das, who the petitioners
claim to be the father of the petitioner No.1 who had entered India in the 1950s because of
religious persecution in the erstwhile East Pakistan.
It has been submitted that the said certificate was recovered subsequently after passing
of the opinion by the Tribunal and as such could not produce before the Tribunal and hence,
denialby this Court to rely on the said certificate for the purpose of remanding the matter to
the Tribunal for considering the said document had caused great prejudice to the review
petitioners.
Secondly, it has been submitted that neither the Tribunal nor this Court had considered a
very vital evidence in the form of the testimony of one Man Mohan Das, DW2, who stated
that he had been knowing the petitioner No.1 Nepal Das and his family as they were his
neighbours and he knew that they had landed property and that he knew them since his
childhood. DW2 also stated that he also heard that the petitioners had come from East
Pakistan.
According to Ms. Ghosh, the said DW2 was about 56 years old when he gave testimony
before the Tribunal on 03.05.2017 which would indicate that he must have been born in the
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early 60s which would corroborate the plea of the review petitioners that their family along
with Budhai Das had come from East Pakistan during the aforesaid period, in which event,
they would be protected by law as they had entered India before 01.01.1966, which will be
proved by the aforesaid registration certificate, which they could recover subsequently after
the passing of the opinion of the Tribunal.
9. It was also submitted that the uncle of the petitioner No.2 (Smt. Kananbala Das),
namely, Ramananda Biswas was issued with an Identity Card by the Relief and Rehabilitation
Officer from Nagaon, Assam which stated that the bearer of the card and his family members
had migrated to India on 14.05.1952 and had been registered on 02.09.1952. The said
Identity Card bears the names of the father, mother and two sisters of the petitioner No.2
amongst others. Though the parents of the petitioner No.2 had died sometime in the year
1960, the aforesaid identity card would show that the parents were very much present in
India prior to 1966, which would also corroborate the claim of the petitioner No.1, who is the
husband of the petitioner No.2, that the petitioner No.1 was also in India prior to 1966.
10. The review petitioners have also taken another plea for seeking review by stating that
the enquiry before the proceeding was held only against Nepal Das and no enquiry was held
against the remaining family members and since the reference was made only against Nepal
Das, no reference could have been made against the remaining members of the family and
the Tribunal could not have given the opinion declaring all the petitioners to be foreigners, as
it would be without jurisdiction. In this regard, Ms. Ghosh has relied upon the decisions of
this Court in Sudhir Roy Vs. Union of India, 2019 (1) GLT 353 and Basanti Biswas
Vs. Union of India and others, 2019 (1) GLT 363.
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11. It has been further submitted that even though the Tribunal and this Court had
discounted the certificate dated 06.09.1963 issued by the Assam Refugee Federation on the
ground that it was issued by a private entity and not by any instrumentality of the State, yet,
it can be used for the collateral purpose that they were very much present in the State of
Assam in 1963, in which event,they would be protected under the provisions of the Proviso to
Section 2 of the Immigrants (Expulsion from Assam) Act, 1950 which provides that, "nothing
in this section shall apply to any person who on account of civil disturbances or the fear of
such disturbances in area now forming part of Pakistan has been displaced from or has left
his place or residence in such area and who has been subsequently residing in Assam".
12. It has been also submitted that the writ petition was dismissed at the threshold at the
motion stage by this Court without calling for the records and as such this Court passed the
order dated 01.10.2018 in WP(C) No.6707/2018 without proper consideration of the materials
on record.
It has been submitted that, this aspect of disposing of the petition without considering
the materials is evident from the fact that there is a specific prayer mentioned in the writ
petition seeking for a direction to call for the records relating to the enquiry against the
proceedees. The fact that this prayer was not considered would clearly show that this Court
at the motion stage itself rejected the writ petition and it has been submitted that, had this
Court called for the records, perhaps the irregularities committed by the Tribunal could have
been noticed by this Court and the matter could have been remanded to the Tribunal for
fresh consideration.
13. Further, it has been submitted that if this review petition is rejected on the aforesaid
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technical grounds as urged by the State, the review petitioners in spite of having a genuine
and reliable document to show that they have been staying in this country since a period
prior to 1966 would be deprived of Indian citizenship and would be rendered Stateless,
inasmuch as they themselves had admitted that they were initially residents of the then East
Pakistan and left that country because of religious persecution there, and took shelter in this
country.
Under the circumstances, it has been submitted that in view of the serious jeopardy to
which the review petitioners will be put, this Court may review the aforesaid order dated
01.10.2018 passed by this Court in WP(C) No.6707/2018 and also set aside the opinion
rendered by the Tribunal and remand it for fresh consideration by the Tribunal.
14. In response, Mr. Kalita, learned Special Counsel, FT has submitted that the present
review petition has been filed seeking re-hearing of the entire matter which was already
heard by this Court which is beyond the scope of review jurisdiction. It has been submitted
that there cannot be any re-hearing of a matter which has already been heard and
considered by this Court inasmuch as the scope of review jurisdiction is limited which is
confined to where there is any error apparent on the face of the record or where any
evidence had come to the knowledge of the petitioner which he could not have obtained even
after exercising due diligence or for any other sufficient reasons. Mr. Kalita submits that in
the present case, none of the aforesaid grounds exist and, as such, review is not permissible.
15. Mr. Kalita further referring to the grounds taken by the review petitioners in this review
petition submits that the grounds taken are all vague.
Coming to the first ground taken by the petitioners that the order of the Tribunal suffers
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from infirmity having passed without proper appreciation of evidence, it has been submitted
that it is vague, since it did not refer to any specific instance of lack of proper appreciation of
evidence by the Tribunal.
As regards the ground taken by the review petitioners that this Court while passing the
order now sought to be reviewed, did not consider the relevant records, it is also vague, in
absence of pointing out any specific instance of non consideration of any relevant aspect.
As regards the third ground that the Certificate of Registration which was issued on
06.03.1962 in respect of the father of the petitioner No.1 was not considered, it has been
submitted that this is totally a new document which was not filed before the Tribunal and, as
such, if the Tribunal did not consider the same, the Tribunal cannot be faulted with.
Coming to the fourth ground taken by the petitioners that the reference can be made
only in respect of persons against whom enquiry was conducted and in the present case, no
such enquiry was conducted against the petitioners, except the petitioner No.1, it has been
submitted by the learned counsel for the State that such a plea should have been taken
before the Tribunal and not before the High Court.
Coming to the other ground taken by the petitioners that the Tribunal had exercised
jurisdiction which is not vested on it, it has been submitted that it has not been mentioned as
to which jurisdiction had been wrongly exercised by the Tribunal.
As regards the submission advanced by the petitioners that this Court did not call for the
records, it has been submitted by Mr. Kalita that in many of the cases, the documents are
already annexed to the petition because of which sometimes the Court do not call for the
records as the petition can be disposed of on the basis of the documents available, and
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calling of records would merely delay the proceeding, and, as such it cannot be a ground for
seeking review. It has been submitted that in the present case, the review petitioners had
annexed all the relevant documents in the writ petition on which basis the High Court
disposed of the writ petition.
16. Mr. Kalita further submits that the certificate issued by the Assam Refugee Federation
was not considered for valid reason, inasmuch as the said certificate being a certificate issued
by a private agency, should have been duly proved by examining the author of the certificate,
which was, however, not done. It has been submitted that in any event, perusal of the
written statement, which is annexed in the writ petition would show that the review
petitioners have not taken any of the pleas, which has been sought to be taken before this
Court in the present review petition as well as before the Court while filing the writ petition,
WP(C) No.6707/2018.
Accordingly, it has been submitted that since the scope of review jurisdiction is limited
and no valid grounds for seeking review have been raised, the review petition is not
maintainable and liable to be dismissed.
17. In support of his submission, Mr. Kalita has placed reliance on the following decisions of
the Hon'ble Supreme Court:-
1. Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, (1980) 2
SCC 167;
2. State of Rajasthan Vs. Surendra Mohnot and others, (2014) 14 SCC 77.
Mr. Kalita also referred to a recent decision of this Court in Jamal Uddin Vs. Union of
India and others (Review Petition 70/2021) decided on 03.03.2022 reiterating the
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limitations.
18. Though we could have disposed of this petition purely on the basis of the contentions
raised by the rival parties in this regard, based on the basic principles governing law of
review, that review will be maintainable only when there is discovery of new and important
matter or evidence which after exercise of due diligence by the applicant could not be
produced by him at the time when the decree was passed or order was made, or on account
of some mistake or error apparent on the face of the record or for any other sufficient reason,
we are of the view that the present review petition requires a more nuanced approach as the
matter arises out of a sui generis proceeding before a Foreigners Tribunal and there is no
provision for appeal against the opinion of a Foreigners Tribunal, which is a quasi-judicial
body. Yet, the opinion rendered by the Foreigners Tribunal in respect of citizenship of a
person will determine the action by the State.
Citizenship is perhaps one of the most cherished rights of a person in today's modern
world consisting of nation States, where the very existence of the right and liberties, which a
person may enjoy are derived from citizenship of the country to which he identifies himself.
It is through citizenship that a person can enjoy and enforce fundamental rights and
other legal rights conferred by the Constitution and other statutes, without which a person
cannot lead a meaningful life with dignity. A person stripped of citizenship would be rendered
a stateless person, if any other country refuses to accept him or her as its citizen. Such is the
overarching significance and importance of citizenship of a person. Therefore, any such
proceeding which has the potential of depriving citizenship ought to be accordingly, examined
from that perspective also and nor merely as a legal right. In a normal proceeding before a
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court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a
citizen. Though a proceeding under the Foreigners' Tribunal, is merely quasi-judicial in nature,
yet an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate
of the proceedee as far as the issue of citizenship is concerned, as the authorities are
expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he
would be liable to be detained and deported.
19. In this regard, it may be noted that as provided under Order 2 of the Foreigners
(Tribunals) Order, 1964, the Tribunal constituted under the said Order has been authorized to
decide the question as to whether a person is or is not a foreigner. The present proceeding
arises out of an opinion rendered by a Tribunal constituted under Foreigners (Tribunals)
Order, 1964.
20. Further, as provided under Explanation (2) of Sub-Section (3) of Section 6A of the
Citizenship Act, 1955, in respect of any person seeking registration under the aforesaid
Section, who claims to have come to Assam on or after 1 stday of January, 1966 but before
25th day of March, 1971 from the specified territory and has since the date of entry into
Assam been ordinarily a resident of Assam and has been detected to be a foreigner, the
opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such
person to be a foreigner shall be deemed to be sufficient for the proof of the requirement
under Clause (c) that he has been detected to be a foreigner and if any question arises as to
whether such person complies with any other requirement under Explanation (2) of Sub-
Section (3) of Section 6A, the Registering Authority shall decide the question in conformity
with the finding given by the Tribunal.
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21. Thus, if the Foreigners Tribunal gives an opinion that such person is a foreigner, the
law requires that the concerned Registering Authority shall be guided by the opinion and will
generally go by the opinion of the Tribunal.
22. On the other hand, if the Tribunal declares a person to be an Indian and not to be a
foreigner, the authorities will accordingly act and such person has to be considered an Indian
without any further proceeding. Though the Tribunal is not a Court in the proper sense of the
term, which is admitted by all concerned, the fact remains that the opinion of a Tribunal
assumes great significance as far as determination of citizenship of a person is concerned
inasmuch as, an opinion of the Tribunal has to be accepted by the authorities concerned.
Such is the importance of an opinion rendered by a Foreigners Tribunal. Therefore, the issue
arising out of an opinion of the Tribunal declaring a person to be a foreigner or an Indian
requires to be examined with utmost care and caution.
23. In this connection, it may be also noted that the Hon'ble Supreme Court in
Sarbanabda Sonowal (II) vs. Union of India, (2007) 1 SCC 174 in para 55 had
cautioned that adequate care should be taken to see that no genuine citizen of India is
thrown out of the country. The Hon'ble Supreme Court held that a person who claims himself
to be a citizen of India in terms of the Constitution of India or the Citizenship Act is entitled to
all safeguards, both substantive and procedural provided for therein to show that he is an
Indian citizen. Para No.55 of Sarbananda Sonowal (II) reads as follows,
"55. There cannot, however, be any doubt whatsoever that adequate care should be taken to see
that no genuine citizen of India is thrown out of the country. A person who claims himself to be
a citizen of India in terms of the Constitution of India or the Citizenship Act is entitled to all
safeguards both substantive and procedural provided for therein to show that he is a citizen."
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24. The importance of determination of citizenship has been also reiterated by this Court
in Abdul Matali @ Mataleb (Md.) Vs. Union of India and Ors., 2015 2 GLT 617 , in
which Anima Hazarika, J. observed on behalf of the Court as follows:
"14. The question of determination of citizenship of a person in a country strikes upon the very
root of right of a such person emanating from the Constitution and other laws in force in the
country. Any doubt cast upon a person regarding his/her citizenship status stigmatizes him/her
and causes the potential to affect his/her fundamental right. As such, determination of
citizenship status of a person is of immense consequences and has to be proceeded strictly in
accordance with law so as to afford all opportunity to such a person to prove his/her citizenship
credential, because the law in vogue mandates that the burden of proof of citizenship lies on the
person against whom, he/she being a foreigner is alleged."
25. Citizenship, therefore, being the basic foundation of the rights, liberties and privileges
of a person granted by the fundamental law or the Constitution of the country to which one
swears allegiance, in our view any proceeding arising out of any opinion or decision, which
determines citizenship, ought to be considered with utmost care and caution.
26. It is also an admitted position that there is no provision for appeal against an opinion
rendered by the Tribunal. No appellate forum has been provided under any relevant Rules to
enable an aggrieved person to challenge the opinion of the Tribunal. Thus, legally speaking,
the opinion of a Tribunal is final and binding on the proceedee and the authority concerned.
In view of above, the High Court exercising jurisdiction under Article 226 has been the forum
to examining the legality or validity of opinions rendered by the Tribunal and in this regard
the role of the High Court becomes much more significant.
27. The Full Bench of this Court in State of Assam Vs. Moslem Mondal and others,
2013 (1) GLT 809, keeping in mind the function of the Tribunal and the power of the High
Court under Article 226, made the following observations:-
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"112. Article 226 of the Constitution confers on the High Court power to issue
appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal
constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to
discharge the quasi-judicial function. The High Court, therefore, has the power under Article
226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an
appropriate case. The scope of interference with the Tribunal's order, in exercise of the
jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for
correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without
jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in
exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the
parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the
writ Court being supervisory and not appellate jurisdiction, the Court cannot review the
findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to
the said general proposition, in as much as, the writ of certiorari can be issued and the decision
of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the
Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible
evidence or if the finding is not supported by any evidence at all, because in such cases such
error would amount to an error of law apparent on the face of the record. The other errors of
fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the
judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the
jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on
the face of the record, which also takes within its fold a case where a statutory authority
exercising its discretionary jurisdiction did not take into consideration a relevant fact or
renders its decision on wholly irrelevant factors. Hence, the failure of taking into account the
relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the
inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal's
decision in exercise of the writ jurisdiction by the High Court."
28. Having discussed the significance of an opinion rendered by the Tribunal, and of the
High Court being the only forum to examine the validity of an opinion rendered by the
Tribunal and importance of citizenship, we will proceed to examine the present review
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petition. In doing so, we also have to keep in mind the fundamental principles governing a
review application as contemplated under Order XLVII of the Code of Civil Procedure, 1908,
i.e., (i) discovery of new and important matter obtained after due diligence, (ii) error
apparent on the face of the record, and (iii) for any sufficient reason. Though the provisions
of CPC are not applicable in a proceeding in a Tribunal in strito sensu, nevertheless, the
principles contained therein cannot be ignored, the Tribunal being a quasi-judicial body.
While the two conditions for invoking review jurisdiction are self-explanatory, the third
condition, i.e., "sufficient reason" is of a very general nature and as to what is "sufficient
reason" in a particular case has to be understood in the context of the facts and situation
obtaining in a particular case also, though analogous to the earlier two grounds. [ Basselios
Catholicos Vs. Man Paulose Athanasius, [(1955) 1 SCR 520: AIR 1954 SC 526].
The aforesaid principles have been reiterated in Union of India Vs. Sandur
Manganese & Iron Ores Ltd., (2013) 8 SCC 337.
29. However, we may also keep in mind that while we are discussing the principles which
govern review as contemplated under the Code of Civil Procedure, we are also dealing with
the power of review of the Court under Article 226 of the Constitution of India.
30. The Hon'ble Supreme Court in Shivdeo Singh Vs. State of Punjab, [AIR 1963 SC
1909] held that nothing in Article 226 of the Constitution precludes a High Court from
exercising the power of review which inheres in every court of plenary jurisdiction to prevent
miscarriage of justice or to correct grave and palpable errors committed by it.
Subsequently in Aribam Tuleshar Sharma Vs. Aribam Pishak Sharma and Ors.,
(1979) 4 SCC 389 , the Hon'ble Supreme Court explained the limitation of review
Page No.# 19/31
jurisdiction in the following words,
"3. The Judicial Commissioner gave two reasons for reviewing his predecessors order. The first
was that his predecessor had overlooked two important documents exhibits A/1 and A/3 which
showed that the respondents were in possession of the sites even in the year 1948, 49 and that
the grants must have been made even by them. The second was that there was a patent illegality
in permitting the appellant to question, in a single Writ Petition settlement made in favour of
different respondents. We are afraid that neither of the reasons mentioned by the learned
Judicial Commissioner constitute a ground for review. It is true as observed by this Court
in Shivdeo Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 there is nothing
in Article 226 of the Constitution preclude a High Court from exercising the power of review
which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to
correct grave and palpable errors committed by it. But, there are definitive limits to the exercise
of power of review. 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 the review or could not be produced by him at the time when
the order was made; it may be exercised where some mistake or error apparent on the face of
the record is found; it may also be exercised on any analogous ground. But, it may not be
exercised on the ground that the decision was erroneous on merits. That would be the province
of a Court of appeal. A power of review is not to be confused with appellate power which may
enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
The Hon'ble Supreme Court in Tungabhadra Industries Ltd. Vs. Govt. of A.P.,
[AIR 1964 SC 1372] and M/s. Northern India Caterers (India) Ltd. Vs. Lt. Governor
of Delhi, 1980(2) SCC 167 observed to the similar effect.
The aforesaid principles were reiterated again in State of Rajasthan and Anr. Vs.
Surendra Mohnot and Ors., (2014) 14 SCC 77.
The principles of inherent power laid down in Shivdeo Singh (supra) were reiterated
in Municipal Corporation of Greater Mumbai and Anr. Vs. Pratibha Industries Ltd.,
(2019) 3 SCC 203.
Page No.# 20/31
31. Having discussed the principles governing the law of review, we will come to the facts
of the case, and the submissions advanced, to examine whether these warrant invocation of
power of review by us while exercising our jurisdiction under Article 226 of the Constitution of
India.
32. The relevant portions of the order of this Court rendered on 01.10.2018 in WP(C)
No.6707/2018 which is sought to be reviewed have been already reproduced above which
shows that the Tribunal as well this Court primarily focussed the attention on inadmissibility of
the "Assam Refugee Certificate" issued by a non-State body which was not proved in
accordance with law. It was thus held that shorn of the aforesaid document, other documents
which were also not proved, were of no assistance to the proceedees to discharge their
burden cast under Section 9 of the Foreigners Act that they were not foreigners.
33. In spite of the aforesaid view taken by the Tribunal and by this Court on the earlier
occasions, we will examine as to whether the petitioners have pleaded any case of discovery
of new and important matter or evidence after exercise of due diligence which was not within
their knowledge and could not be produced at the time when the order was passed by the
Tribunal.
34. The writ petitioners have specifically pleaded in para 8 of the writ petition, in WP(C)
No.6707/2018 that the father of the petitioner No.1, Late Bhudai Das had migrated into India
from the then East Pakistan sometime in early 1950s. Thereafter, he was registered as a
citizen of India to which effect a Certificate of Registration was issued on 06.03.1962 by the
Additional Deputy Commissioner, Kamrup, Guwahati and the said Certificate was recently
found by the petitioners after a thorough search of their belongings. Unfortunately, we find
Page No.# 21/31
that this Court while disposing the said writ petition, WP(C) No.6707/2018 did not advert at
all to the said specific plea taken in para No.8 of the writ petition.There is no finding or
observation by this Court about the said ground taken in seeking review of the order of the
Tribunal. Perusal of the order dated 01.10.2018 passed by this Court in WP(C) No.6707/2018
sought to be reviewed in this review petition does not indicate any reference to the aforesaid
document. The order passed by this Court on 01.10.2018 is totally silent on this aspect.
35. Accordingly, we are of the view that if the petitioners are seeking to rely on the
Certificate of Registration which they could discover belatedly as mentioned in para No.8 of
the writ petition, WP(C) No.6707/2018, we are of the view that it certainly constitutes a
permissible ground for invoking the power of review by this Court as discussed above.
In our view, this Court on the basis of the aforesaid newly discovered Certificate of
Registration issued in favour of Budhai Das, could have remanded the matter to the Tribunal
for reconsidering the matter on the basis of the newly discovered document.
36. Further, as regards the certificate issued by the Assam Refugee Federation on
06.09.1963 which has been discussed in detail both by the Tribunal in the order dated
28.06.2017 as well as by this Court in the order dated 01.10.2018 in WP(C) No.6707/2018,
we are of the opinion that the said certificate though was issued by a private entity has not
been appreciated from a proper perspective.
37. We find substance in the argument advanced by Ms. D. Ghosh, learned counsel for the
review petitioner that the said certificate even if was issued by Assam Refugee Federation, a
private entity, could have been relied upon for the collateral purpose that the proceedees
were present in Assam at least from the period when the said certificate was issued prior to
Page No.# 22/31
the period of 1966.
38. The said Refugee Certificate clearly mentions one Shri Gopal Ch. Das, son of Badui Das
as a bonafide refugee from the Village Barnagur, P.S. Nachi Nagar, District Kumilla, [East
Pakistant and now residing at Village Dharam Tul, P.S. Harigoan, District Newgoan] and that
he migrated to Assam along with his family members for the purpose of permanently settling
as Indian citizen.
The said certificate was issued by one Shri D.N. Sharma, Member of Parliament shown
to be the President of the said Assam Refugee Federation and one Dr. S.S. Bachaspati,
General Secretary of the said Federation.
39. While we also agree with the opinion of the Tribunal as well as of this Court, that the
said certificate is required to be proved in accordance with law inasmuch as the said
certificate was issued by a private entity and not by the any State authority, one has to keep
in mind that the proceeding before the Foreigners Tribunal is not between the two private
entities individuals or who are making rival claims over certain rights or interest. In a
proceeding/dispute between the two private entities in a court of law, ordinarily, the law of
evidence has to be strictly adhered to. However, the proceeding before the Foreigners
Tribunal partakes a different character inasmuch as while a proceedee as mandated under
Section 9 of the Citizenship Act, 1946 is expected to produce necessary documents which are
in his possession to show that he is an Indian and not a foreigner are also required to be
proved in accordance with law, yet it does not totally relieve the State of any obligation as
has been explained by the Hon'ble supreme Court in Sarbananda Sonowal Vs. Union of
India & Anr., (2005) 5 SCC 665. In Sarbananda Sonowal (supra), it has been held that
Page No.# 23/31
certain obligation is cast on the State once proceedee has disclosed certain facts.
In para 26 of Sarbananda Sonowal (supra), the Hon'ble Supreme Court held as
follows,
"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 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."
[emphasis added]
Thus, once the petitioners had produced this Refugee Certificate issued by the Assam
Refugee Federation, the State authorities could have also verified it also, inasmuch as it is a
historical fact that many persons belonging to Hindu community had to leave the then East
Pakistan and enter India seeking refuge in this country and thus, such a phenomenon was
well known to the Indian authorities.
40. This Court also cannot totally ignore certain historical facts which is closely entwined
with the issue of foreigners in this part of this country because of religious persecution in the
then East Pakistan and have been sheltered in this country.
41. The fact that many persons like the present petitioner No.1's father who profess
Page No.# 24/31
Hinduism as their religion had been subjected to persecution in the then East Pakistan, now
Bangladesh is a historical fact which has been acknowledged without any dispute from any
quarter. This historical fact has been also noted by the authorities as is clearly evident from
the 2ndparagraph of the "Statement of Objects and Reasons" while introducing the Citizenship
Amendment Bill, 2019 in the Parliament which was subsequently passed by the Parliament
and received the assent of the President. This historical fact forms the basis of the aforesaid
Amendment Act, relevant portions of which are reproduced hereinbelow:
"The Citizenship (Amendment) Bill, 2019
...............................................................
STATEMENT OF OBJECTS AND REASONS The Citizenship Act, 1955 (57 of 1955) was enacted to prove for acquisition and determination of Indian citizenship.
1.....................................
"2. It is a historical fact that trans-border migrant of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.
(emphasis added)
3. ............................
4 ................................
.........................."
42. It may be mentioned that the aforesaid Citizenship Amendment Act, 2019 after Page No.# 25/31 enactment has not yet been notified in the Official Gazette and hence yet not been implemented, and the vires of the Act has been challenged before the Hon'ble Supreme Court. As such, we are not relying on the provisions of the aforesaid Amendment Act in deciding the legal issues raised in this proceeding. However, a reference is made only for the purpose of drawing attention to the historical fact that many people belonging to different communities including the community to which the petitioner No.1's father belongs, had faced persecution on the ground of religion compelling them to flee East Pakistan and take shelter in India and have been allowed to stay without valid or incomplete document.
This historical fact cannot be put on the back burner by the authorities. Rather, we would hold that this country has not only a moral obligation but also a legal obligation to shelter them and certainly not to declare them foreigner and deport them. In this regard, as also submitted by the petitioners, the State cannot ignore the obligation under Section 2 of the Immigrants (Expulsion from Assam) Act, 1950.
43. We may also examine this issue from another perspective as the petitioners claim to be initially refugees and their descendants. As to who is a "refugee" has been defined in the 1951 Refugee Convention under the United Nations.
The said 1951 Refugee Convention defines a person who is outside his country or nationality or habitual residence, has a well founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion and is unable or unwilling to avail him or herself of the protection of that country, or to return there, of fear of persecution.
44. It may be noted that a constitutional obligation is cast upon the Indian State to make Page No.# 26/31 endeavours to foster respect of international law and treaty obligations in the dealings of organized peoples with one another as mentioned under Article 51(C) of the Constitution of India. Though the said 1951 Refugee Convention has not been ratified by India, yet, it does not discharge the obligation cast upon it under Article 51(C) of the Constitution of India as observed by the Hon'ble Supreme Court in Commissioner of Customs, Bengalore Vs. M/s. GB Exports &Ors., (2016) 1 SCC 91 while dealing with the issue of harmonious construction and resolution of conflicts between the international law and Municipal law as can be seen from the following paragraph.
"23. A conspectus of the aforesaid authorities would lead to the following conclusions:
(1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail.
(emphasis added) (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty.
(3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute Page No.# 27/31 should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them.
(4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations.
It is in the light of these principles that we must now examine the statute in question."
Thus it was held by the Hon'ble Supreme Court that in a situation where India is not a signatory, the rules of international law which are not contrary to domestic law are to be followed by this Court in this country.
Thus, there is always an obligation on the Indian State to respect and follow the international law which is not in conflict with any domestic law.
45. In the present case, as can be seen from the Citizenship (Amendment) Act, 2019 which has been enacted so that such unfortunate people who had to flee from East Pakistan because of religious persecution, certain protection have been already contemplated under the law. Though the said Citizenship (Amendment)Act, 2019 has not yet been implemented, yet, the Tribunal as well as this Court ought to have adopted an approach which subserves the purpose of such an Act and also the intention of the Parliament to give shelter to such persons in the light of the international obligations as discussed above. Our domestic laws, Page No.# 28/31 rather than being in conflict appear to be in harmony with the international law in many areas. Under the circumstances, the learned Tribunal ought not to have taken a very technical view in rejecting wholly, the said Refugee Certificate issued by a private entity.
46. In the context of the law and situation prevailing in our country, as discussed above, we are satisfied that the petitioners have been able to make out a clear case of review as in our view the fact of Certificate of Registration issued in the name of one Bhudai Das by the Additional Deputy Commissioner, Guwahati, Kamrup which is a critical and relevant document to support the claim of the petitioners that they are Indians and not the foreigners after being given refuge by this country and that it could not be produced earlier before the Tribunal, as the petitioners could not get hold of the same during the period of proceeding before the Tribunal but subsequently recovered. Even though the petitioners could have also approached the Tribunal directly seeking review of its opinion by filing the said Certificate of Registration, in our view, since the matter was brought to the notice of this Court in WP(C) No.6707/2018, this Court ought to have referred the matter to the Tribunal for reconsideration of its opinion after considering the said Certificate of Registration relied upon by the petitioners.
47. As discussed above, we have also noted that though this plea was taken specifically in the said writ petition, WP(C) No.6707/2018, unfortunately, the same escaped the notice of this Court and there was no observation or decision as regards the said plea taken by the petitioners in the said writ petition, WP(C) No.6707/2018.
48. Under the circumstances, we are of the view that since the writ petition was dismissed without considering a very vital document which came to the possession of the petitioners subsequently, it amounts to an error apparent on the face of record as far as the order dated Page No.# 29/31 01.10.2018 passed by this Court in WP(C) No.6707/2018 is concerned.
49. Having discussed the issue from the above perspective, we hold that as far as the opinion of the Tribunal dated 28.06.2017 passed in Case No.F.T.(C)586/2010 is concerned, in view of the subsequent discovery of a new material/evidence in the form of the Certificate of Registration issued by the Additional Deputy Commissioner, Kamrup, Guwahati on 06.03.1962 in the name of Budhai Das, certainly, a case for review is made out.
Further, as regards the order dated 01.10.2018 passed by this Court in WP(C) No.6707/2018, as this Court did not consider the specific plea taken by the petitioner of the said discovery of material/evidence in the form of the Certificate of Registration which was pleaded in the writ petition, WP(C) No.6707/2018, certainly, in our view, it amounts to an error apparent on the face of the record and on that count, the order dated 01.10.2018 passed by this Court in WP(C) No.6707/2018 would come under the purview of review as can be exercised by this Court under Article 226 of the Constitution.
50. Having come to the conclusion that the petitioners would be entitled to seek a review of the order passed by this Court on 01.10.2018 in WP(C) No.6707/2018, ordinarily, the matter could have been posted for hearing for review of the aforesaid order passed by this Court. However, in view of the fact that all the submissions, contentions which could have been urged in such review petition has been already urged before this Court and considered by us, we are of the view that it may not be necessary to again fix this matter for re-hearing of WP(C) No.6707/2018 and accordingly, we undertake the exercise at this stage by recalling the order dated 01.10.2018 passed by this Court in WP(C) No.6707/2018 for directing for remanding the matter to the Tribunal for a fresh consideration as regards the relevancy and Page No.# 30/31 implication of the said Certificate of Registration dated 06.03.1962 issued by the Additional Deputy Commissioner, Kamrup, Guwahati. While doing so, we also have kept in mind that if the aforesaid writ petition, WP(C) No.6707/2018 is heard afresh on review, certainly, the other grounds raised by the petitioners as regards ignoring the evidence of Manmohan Das (DW2) as well as the reference being made against the petitioners without there being proper enquiry against the petitioners except petitioner No.1 as alleged by the petitioners, could not have been considered as these two grounds may not fall within the scope of review within the principles as contemplated under the C.P.C. Yet, in our view these may be permissible to be considered by this Court in exercise of power under Article 226 of the Constitution while considering the challenge to the opinion of the Foreigners Tribunal.
51. We also have kept in mind that the petitioners had relied also on another document, namely, Identity Card issued by the Relief and Rehabilitation Officer, Nagaon, Assam in the name of Ramananda Biswas, uncle of petitioner No.2, Kananbala Das, which in our view is also a relevant material which can be considered by the Tribunal.
52. However, we do not wish to make any further observations as regards the aforesaid pleas made by the petitioners for the reason that we are remanding the matter to the Tribunal to consider it afresh for which the petitioners should be entitled to raise all these grounds again before the Tribunal and not restrict itself only to the Certificate of Registration dated 06.03.1962 issued by the Additional Deputy Commissioner, Kamrup, Guwahati.
53. For the reasons discussed above, we remand the matter to the Tribunal for a fresh consideration. The Tribunal will do so, keeping in mind the law and observations as discussed above.
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54. The review petitioners are accordingly, directed to appear before the Foreigners Tribunal No.1, Morigaon, Assam within a period of one month from today.
55. Thereafter, the learned Tribunal will consider the matter afresh in the light of the observations and directions made above by us and pass a fresh opinion as regards the citizenship of the petitioners.
56. The review petitioners will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 29.04.2022 till a fresh opinion is rendered by the learned Foreigners Tribunal as regards the citizenship status of the petitioners.
57. The present review petition is, accordingly, disposed of.
58. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE JUDGE Comparing Assistant