Gauhati High Court
Sanora Bibi @ Sanowara Khatun vs The Union Of India And 8 Ors on 28 February, 2020
Author: Manish Choudhury
Bench: Manojit Bhuyan, Manish Choudhury
Page No. 1/6
GAHC010294412019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review. Pet. 16/2020
1:SANORA BIBI @ SANOWARA KHATUN
D/O- SEKENDAR ALI, W/O- EYASIN ALI @ IASIN ALI @ EYASIN ALI SK.,
R/O- VILL.- UJANPETIA PART-I, P.O. UJANPETIA, P.S. TAMARHAT, DIST.-
DHUBRI, ASSAM, PIN- 783324.
VERSUS
1:THE UNION OF INDIA AND 8 ORS
REP. BY THE MINISTRY OF HOME AFFIARS, GOVT. OF INDIA, NEW DELHI-
01.
2:THE STATE OF ASSAM
REP. BY CHIEF SECRETARY TO THE GOVT.OF ASSAM
DISPUR
GHY-06.
3:THE COMMISSIONER AND SECRETARY TO THE GOVT.OF ASSAM
HOME DEPARTMENT
DISPUR
GHY-06.
4:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-05.
5:THE SUPERINTENDENT OF POLICE (B)
DHUBRI
ASSAM
6:THE DEPUTY COMMISSIONER
DHUBRI
ASSAM
7:THE OFFICER-IN-CHARGE
Page No. 2/6
TAMARHAT POLICE STATION
DIST.- DHUBRI
ASSAM.
8:THE ELECTION COMMISSIONER OF INDIA
REP. BY THE ELECTION COMMISSIONER
NEW DELHI-01.
9:THE ASSAM STATE ELECTION COMMISSIONER
REP. BY THE SECRETARY
HOUSFED COMPLEX
DISPUR
GHY-06
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 28-02-2020 (Manish Choudhury, J) Heard Mr. M. U. Mondal, learned counsel for the review petitioner. Also heard Ms. G. Haziraka, learned counsel representing respondent no. 1; Mr. U. K. Nair, learned Senior Counsel representing respondent no. 2 to 7 and Ms. B. Das, learned counsel representing respondent no. 8.
2. The petitioner seeks review of the order dated 21.05.2019 passed in the writ petition, W.P.(C) No. 5325/2016 whereby challenge made to the order/opinion dated 18.07.2016 passed by the Foreigners Tribunal No. 10th, Dhubri, Assam in Case No. FT-(10)/TMH/105/2015 was rejected.
3. The review of the order dated 21.05.2019 is sought for, in essence, on 2 (two) grounds, firstly, the review petitioner in the written statement dated 26.11.2015 and in her evidence as D.W.-1 had pleaded and adduced all the necessary evidence which, in turn, had established and proved her linkage with the projected grandfather through her projected father but the learned Tribunal as well as this Court had failed to appreciate the matter in its right perspective; and secondly, the final National Registrar of Citizens (NRC, for short) has been published by the NRC authority on 31.08.2019 Page No. 3/6 wherein the name of the review petitioner has been found omitted but the names of her brothers and sisters as well as the names of her husband, sons and daughters have been included. In support of such contention, the review petitioner has annexed the documents pertaining to inclusion of the names of her relatives in the NRC as Annexure-3 series. In this connection, reliance is also placed in the decision of the Supreme Court in the case of Abdul Kuddus vs. Union of India and others (Civil Appeal No. 5012/2019), reported in (2019) 6 SCC 604.
4. Having noticed the grounds seeking review, we would first observe as to the parameters available for seeking review. It is well settled that the scope of review is limited to discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the review petitioner or could not be produced at the time when the order was passed or there has been a mistake or error apparent on the face of the record or for any other sufficient reason. There is no dispute that review cannot partake the character of an appeal, that is, for re- hearing and correcting a judgment. The fact that a decision is erroneous on merit is no ground for review. On a plea taken that the decision is erroneous on merit due to wrong interpretation of facts, cannot be a ground for review. The error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning, inasmuch as, the reappraisal of the entire evidence on record for finding the error would amount to exercising appellate jurisdiction, which is not permissible.
5. In so far as the first ground in this review petition is concerned, it will be apposite to refer to the relevant parts of the order dated 21.05.2019 wherein a discussion was made as regards the pleadings and evidence placed by the review petitioner in the proceedings of Case No. FT- (10)/TMH/105/2015. Thus, in order to appreciate the merit of the first ground, the relevant parts of the order dated 21.05.2019 are extracted hereunder for ready reference :-
"5. In the written statement, the petitioner had, inter alia, stated that she, also known as Sanowara Khatun, was born at Village - Khodarchar, Police Station - Dhubri, District -Dhubri. The name of her father was Sekendar Ali, s/o Jhakar Sk. @ Jhagar Ali and the name of her mother was Fazila Bibi @ Fazila Bewa. She got married to one Eyasin Ali @ Yasin Ali Sk. on 30.01.2002 and after her marriage she had been residing at Village - Ujanpetla Part-I, Police Station - Tamarhat, District - Dhubri. She further asserted that she was a student of2427 No. Khodarchar Ujan Gaon L.P. School till 1989. She, inter-alia, stated that name of her projected grandfather, Jhakar Sk. @ Jhagar Sk. was recorded in the Electoral Rolls of 1966and 1971 as a voter as well as in the NRC of 1951. She further stated that her parents' names were enrolled together in the Electoral Roll of 1997 and, thereafter, her mother's name was enrolled in the Electoral Roll of 2015. Her own name as Sanora Bibi, w/o Eyasin Ali Sk. was enrolled in the Electoral Rolls of 2005 and 2015.Page No. 4/6
6. In course of proceeding before the Tribunal, the proceedee adduced her evidence wherein she reiterated the same facts as in her written statement. She also exhibited 5 (five)number of documents marked as Ext.1 to Ext.5 which were (i) Ext.1 - a certificate dated26.06.2005 issued by the Secretary, Motirchar Gaon Panchayat and countersigned by the Block Development Officer, Gauripur Development Block, Dharmasala; (ii) Ext.2 - a certificate dated 13.10.2015 issued by the President, Kumargans Gaon Panchayat; (iii) Ext.3 - a school certificate dated 08.12.2012 issued by the Head Master, 2427 No. Khodarchar Ujan Gaon L.P. School; (iv) Ext.4 - a certified copy of extract of Electoral Roll of the year 1966; and (v) Ext.5- a self-sworn affidavit dated 16.02.2016.
7. The records in original have been perused. In so far as the proceedee is concerned, though she claimed that her name was enrolled as a voter in the Electoral Rolls of 2005 and2015 she did not exhibit and prove any such Electoral Rolls before the Tribunal. In so far asExt.1, Ext.2 and Ext.3 were concerned, neither the concerned Gaon Panchayat Secretary nor the Gaon Panchayat President nor the Head Master of the school who issued those certificates came before the Tribunal to prove about issuance of the same by them. In Rupajan Begum vs. Union of India, reported in (2018) 1 SCC 579, the Supreme Court has clarified that a certificate issued by the Gaon Panchayat Secretary is basically for married women and is used as a linkage document of such married women. It has been clarified that such a certificate by no means is proof of citizenship. Such certificate has to be verified at two stages i.e. verification of the genuineness of the documents and secondly, verification of the contents. As the concerned Gaon Panchayat Secretary and Gaon Panchayat President were not examined, the first stage of verification was not effectuated, not speak of the second stage of verification. Therefore, no reliance can be placed on Ext.1 and Ext.2.Likewise, no reliance can be placed on Ext.3, since the same was also not proved. Ext.5 is an affidavit sworn by the proceedee wherein she stated that the names, Sanora Bibi and Sonowara Khatun, on one hand and the names, Eyasin Ali, Lasin Ali and Eyasin Ali Sk., were different names of two persons i.e. the proceedee and her husband respectively. It is held in Ayaaubkhan Noorkhan Pathan vs. State of Maharasthra and others, (2013) 4 SCC 465, 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, on the basis of which it can come to a conclusion as regards a particular fact situation. In any view of the matter, Ext.5 did not go to establish any kind of linkage of the proceedee with her projected father and, in turn, with her projected grandfather.
8. When Ext.4 i.e. a certified copy of extract of Electoral Roll of 1966, which conspicuously does not bear any date, is perused, it is noticed that only the name of Jhakar Sk. (60 years),s/o Turu was shown as a voter from the Village - No. 188 Kaim Bhashani Part-I, Police Station- Dhubri under 33 No. Dhubri LAC. The proceedee did not exhibit and prove any Electoral Roll any other year wherein the names of her projected grandfather and her projected father were found enrolled together. The proceedee even failed to exhibit and prove any Electoral Roll of any year wherein the name of her projected father was enrolled as a voter. The Tribunal had further observed that the proceedee in her written statement as well as in her evidence on affidavit had stated that she was born and brought up at Village - Khodarchar and also studied at the said village. But she did not mention anywhere about Village - No.188 Kaim Bhashani Part-I, Police Station - Dhubri wherefrom her projected grandfather was enrolled as a voter in the year 1966. The proceedee had stated that her projected father died in the year 1997 and in such situation, the Tribunal was of the view that from the facts of non-inclusion of her projected father, Sekender Ali in any of the of the Electoral Rolls published prior to 1997 and the proceedee's failure to provide any explanation for the same the only opinion that could be drawn was that there was no linkage between the proceedee's projected grandfather, Jhakar Sk. and projected father, Sekender Ali, not to speak of any linkage between the proceedee's projected grandfather, Jhakar Sk. and the proceedee through the proceedee's projected father, Sekender Ali. The proceedee had even failed to establish, by reliable and cogent evidence before the Tribunal, that her projected father, Sekender Ali was an Indian national. On perusal of the materials available on record and on due consideration to the reasons assigned by the Tribunal for reaching its opinion, we are of the considered view that the Tribunal is not unjustified in its approach.
9. A perusal of the order/opinion dated 18.07.2016 passed by the Tribunal shows that the Tribunal had appreciated the entire evidence led by the petitioner before it in the proper perspective and, thereafter, had rendered the finding that the petitioner had failed to establish her claim to be a citizen of India by reliable and cogent oral and documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure ourselves as to whether there was any perversity or error in appreciation in the order/opinion of the Tribunal. We seeno reason to depart from the assessment of evidence by the Tribunal nor are we impressed by the learned counsel's submission that material evidence was wrongly discarded. In our considered opinion, the proceedee despite leading oral evidence as well as documentary evidence in order to discharge the burden of proof, had failed to establish any linkage withher projected grandfather, Jhakar Sk. through her projected father, Sekender Ali, whose status of Indian citizenship she also she failed to establish. As the petitioner has not been able to make out any case demonstrating any error apparent on the face of the record and there being no perversity, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs."Page No. 5/6
6. From the above, it is noticed that the first ground sought to be urged in this review petition had already been raised by the review petitioner in the writ petition and the same were considered by this Court which has been reflected in the order sought to be reviewed. By the present review 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 21.05.2019. Thus, the first ground merits no consideration.
7. The review petitioner has referred to the inclusion of the names of her brothers and sisters as well as the names of her husband, sons and daughters in the NRC published by the NRC authority on 31.08.2019 and the omission of her name in the said NRC as the second ground for review. As could be seen, the order of this Court in the writ petition, W.P.(C) No. 5325/2016 was passed on 21.05.2019 and as per the statement of the review petitioner herself, the NRC was published on 31.08.2019. This Court on 21.05.2019 examined the issue qua the review petitioner with reference to the evidence and materials in the exercise of its power of judicial review and no error was detected in the decision- making process. The publication of the NRC on 31.08.2019 is a subsequent event after passing of the order dated 21.05.2019. Thus, the subsequent event of publication of NRC and inclusion of the relatives of the review petitioner therein and her omission therefrom cannot be a case of review on the ground of discovery of new and important matter, because such matter has to be something which exist at the date of the order. It is settled that there can be no review of an order which was right when made on the ground of the happening of some subsequent event.
8. In so far as reliance placed on Abdul Kuddus (supra) is concerned, the petitioner makes reference to paragraph 28 thereof while taking this Court to the documents, which is stated to show the names of the family members of the petitioner, as indicated above, as having been included in the Final List of NRC. Indeed, at paragraph 28 of Abdul Kuddus (supra), the Supreme Court has laid down that "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".
9. A careful reading of paragraph 28 would only disclose that if any order is passed by a competent Foreigners' Tribunal in case of close family members, although subsequent to a decision Page No. 6/6 determining the citizenship status of a particular proceedee, such order in respect of close family members would necessarily be a material evidence for the purpose of deciding a writ petition or a review application. The above ratio laid down in Abdul Kuddus (supra), in our considered view, cannot have any bearing in the present case, inasmuch as, it is not the case of the petitioner that there are orders passed by a competent Foreigners' Tribunal in case of her close family members. The only ground assigned is that the names of her family members are included in the Final List of NRC, which list is certainly not the outcome of a quasi-judicial process. Therefore, the petitioner cannot allege that names of her family members being found in the Final List of NRC constitutes a material evidence to be taken note of and considered while deciding the present review application.
10. We, therefore, find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE Comparing Assistant