Gauhati High Court
Abdul Motleb @ Abdul Motaleb vs The Union Of India And 5 Ors on 26 September, 2019
Bench: Manojit Bhuyan, Nani Tagia
Page No.# 1/5
GAHC010079872019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 101/2019
1:ABDUL MOTLEB @ ABDUL MOTALEB
S/O- LATE KASEM ALI, VILL.- JHARPARA (PART-1), P.O. LENGTISINGA, P.S.
ABHAYAPURI, DIST.- BONGAIGAON, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY, MINISTRY OF HOME DEPARTMENT, NEW
DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE DEPUTY COMMISSIONER
BONGAIGAON
ASSAM.
4:THE SUPERINTENDENT OF POLICE (B)
BONGAIGAON
ASSAM.
5:THE ELECTION COMMISSIONER OF INDIA
REP. BY THE SECRETARY TO THE COMMISSION
H.Q. NEW DELHI.
6:THE STATE CO-ORDINATOR
NRC
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ACHYUT PLAZA
BHANGAGARH
DIST.- KAMRUP(M)
ASSAM
GUWAHATI-5
Advocate for the Petitioner : MD. S ISLAM
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE NANI TAGIA
O R D E R
26.09.2019 (Manojit Bhuyan, J) Heard S. Islam, learned counsel for the review petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel appears for respondent nos.2, 3 and 4 whereas Ms. B. Das, learned counsel represents respondent no.5. Ms. A. Verma, learned counsel appears for respondent no.6.
Petitioner seeks review of the order dated 26.11.2018 dismissing the writ petition i.e. WP(C) 7706/2018 wherein challenge was made to the opinion dated 28.11.2017 of the Foreigners' Tribunal Bongaigaon No.2, Abhayapuri in Case No. BNGN/FT-2/APR/282/2016.
Review of the order dated 26.11.2018 is sought by making reference to that portion of the order wherein this Court had framed the point for determination of the case by observing whether Exhibit-1 Affidavit alone can be considered as sufficient evidence linking the petitioner to the projected father Kashem Sheikh of the Voter List Page No.# 3/5 of 1966. The said portion of the order dated 26.11.2018, is re-produced hereunder-
"It is seen from the materials on record that for the purpose of establishing linkage to Kashem Sheikh, whose name appeared in the Voter List of 1966, the petitioner had executed the Exhibit-1 affidavit dated 21.11.2016 to say that the correct name of his father is Kashem Sheikh, but nicknamed as Kashem Ali and that both Kashem Sheikh and Kashem Ali are one and the same person. The question, therefore, arising for consideration is as to whether Exhibit-1 Affidavit alone can be considered as sufficient evidence linking the petitioner to Kashem Sheikh of the Voter List of 1966. In this regard we may observe that in the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Ors., reported in (2013) 4 SCC 465, the Supreme Court held that it is a settled legal proposition that an Affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872. It can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order 19 of the Code of Civil Procedure, 1908. The Supreme Court held that the filing of an Affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal to reach a conclusion as regards a particular fact situation. While holding thus, the Supreme Court also made reference to the case in Sudha Devi vs. M.P. Narayanan, reported in (1988) 3SCC 366. Law being clear on the evidentiary value of an Affidavit, the Exhibit-1 document cannot be regarded as sufficient proof linking the petitioner to Kashem Sheikh, whose name appeared in the Voter List of 1966. The petitioner utterly failed to discharge his burden, as required of him, under Section 9 of the Foreigners Act, 1946"
Having regard to the above the petitioner seeks review on the primary ground that while passing the order dated 26.11.2018, this Court did not take into consideration the documentary evidence on record. The said ground of challenge is reproduced hereunder for ready reference :
"2. For that, the Hon'ble High Court has failed to appreciate the documentary evidence on record i.e. Ext-2 to 7 as well as Written Statement (Para-8) and Evidence-in-Chief on Affidavit (Para-3) where the petitioner clearly stated that 'Kashem Sheikh' and 'Kashem Ali' is one and same person and as such the impugned order dated 26.11.2016 is liable to be modified".
Having noticed the ground seeking review vis-a-vis the findings of this Court, we would first observe as to the parameters available for seeking review. It is well settled that the scope of review is limited to discovery of new and important matter or Page No.# 4/5 evidence which, after exercise of due diligence, was not within the knowledge of the review petitioner or could not be produced at the time when the order was passed or there has been a mistake or error apparent on the face of the record or for any other sufficient reason. There is no dispute that review cannot partake the character of an appeal, that is, for re-hearing and correcting a judgment. The fact that a decision is erroneous on merit is no ground for review. On a plea taken that the decision is erroneous on merit due to wrong interpretation of facts, cannot be a ground for review. The error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning, inasmuch as, the reappraisal of the entire evidence on record for finding the error would amount to exercising appellate jurisdiction, which is not permissible.
In the instant case, the grounds assigned for causing review of the order is entirely different from the recognised parameters of review. By the present petition, this Court has been called upon to re-appraise and re-appreciate the facts which have already been answered in the opinion of the Tribunal as well as in our order dated 26.11.2018.
We, therefore, find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE
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Comparing Assistant