Gauhati High Court
Page No.# 1/17 vs The Union Of India And 6 Ors on 13 June, 2025
Author: M. R. Pathak
Bench: Manash Ranjan Pathak, Kalyan Rai Surana
Page No.# 1/17
GAHC010031192021
2025:GAU-AS:7792-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./29/2021
AJBAHAR ALI
S/O AJGAR ALI, R/O VILL. KHERO PARA, P.O. CHECHAPANI, P.S. RANGJULI,
DIST. GOALPARA, ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECY. OF THE MINISTRY OF HOME AFFAIRS,
GOVT. OF INDIA, NEW DELHI 1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HOME DEPTT.
DISPUR
GUWAHATI 6
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI-1
4:THE STATE COORDINATOR OF NRC
ASSAM
DISPUR
GUWAHATI 6
5:THE DEPUTY COMMISSIONER
GOALPARA
Page No.# 2/17
DIST. GOALPARA
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
GOALPARA
DIST. GOALPARA
ASSAM.
7:THE OFFICER IN CHARGE
RANGJULI POLICE STATION
GOALPARA
DIST. GOALPARA
ASSAM
Advocate for the Petitioner : MR. M I HUSSAIN, MR. S M RAHMAN
Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, NRC,SC, F.T
Linked Case : WP(C)/7692/2017
AJBAHAR ALI
S/O LT. AJGAR ALI VILL- KHERO PARA P.O. CHECHAPANI P.S. RANGJULI
DIST. GOALPARA
ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY OF THE MINISTER OF HOME AFFAIRS
GOVT. OF INDIA
NEW DELH-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
Page No.# 3/17
GOALPARA
DIST. GOALPARA
ASSAM
4:THE SUPERINTENDENT OF POLCIE B
GOALPARA
DIST. GOALPARA
ASSAM
5:THE OFFICER-IN-CHARGE
RANGJULI POLICE STATION
DIST. GOALPARA
ASSAM
------------
Advocate for : MS.P AHMED Advocate for : appearing for THE UNION OF INDIA and 4 ORS.
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of Hearing : 20.02.2025
Date of Judgment : 13.06.2025
Judgment and Order (CAV)
(M. R. Pathak, J.)
Heard Mr. M I Hussain, learned counsel for the review petitioner/writ petitioner. Also heard Mr. A K Dutta, learned Central Government Counsel, for the respondent No. 1, Mr. J Payeng, learned Standing counsel, Home Department, Assam for the respondent Nos. 2, 6 & 7; Mr. M Islam, learned counsel on behalf of Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3; Mr. G Sarma, learned Standing counsel, NRC, Assam for the respondent No. 4 and Mr. H K Hazarika, learned Government Advocate, Assam for the respondent No. 5.
2. The petitioner filed this petition on 16.02.2021 for review of the judgment and order dated 25.07.2018 passed in WP(C) No. 7692/2017 by which a Co-ordinate Bench of this Court Page No.# 4/17 (comprising one of us, Justice Manash Ranjan Pathak) dismissed the said writ petition WP(C) No. 7692/2017 that was preferred against the order dated 03.02.2012 passed by Foreigners' Tribunal
- I, Goalpara in F.T. Case No. 1415/G/06 by which the said Tribunal opined the petitioner as an illegal migrant of post 1971 stream.
3. Perused the records of said F.T. Case No. 1415/G/06 that was called for by order dated 08.08.2022.
4. Brief facts of the case is that pursuant to the enquiry report of the Electoral Registration Officer, Goalpara, the Superintendent of Police (Border), Goalpara on 26.08.1998 referred the matter to the Chairman, Illegal Migrants (Determination) Tribunal, Goalpara, Assam under the Illegal Migrants (Determination by Tribunals) Act, 1983 seeking the opinion of the said Tribunal as to whether the petitioner is an illegal migrant or not. As such, a case being Case No. 5905/G(D)/01 was registered before the Illegal Migrants (Determination) Tribunal, Goalpara, during the force of the said IMDT Act, 1983, as amended.
5. In the judgment of the Hon'ble Apex Court in the case of Sarbananda Sonowal -Vs- Union of India and Another decided on 12.07.2005, reported in (2005) 5 SCC 665, the IMDT Act, 1983 as well as the IMDT Rules, 1984 were struck down being violative of Article 14 of the Constitution. The Hon'ble Supreme Court in the said case of Sarbananda Sonowal (supra), amongst others, directed that the cases pending before the IMDT Tribunals have to be taken up as a proceeding under the Foreigners Act, 1946 and those are to be considered under the provisions of the Foreigners (Tribunals) Order, 1964.
6. Consequently, the proceeding i.e., Case No. 5905/G(D)/01 pending against the petitioner before the IM(D)Tribunal, Goalpara was converted into a proceeding under the Foreigners Act and it was re-registered as F.T. Case No. 1415/G/06 before the Foreigners' Tribunal-I, Goalpara, Assam.
7. A fresh notice was issued to the petitioner on 30.03.2009 in said F.T. Case No. 1415/G/06 under the Foreigners (Tribunals) Order, 1964 directing him to submit his written reply along with the relevant documents to establish that he is not a foreigner under the Foreigners Act, 1946, which the petitioner accordingly received and submitted his written statement on 22.03.2010.
8. The petitioner on 22.03.2010 after filing his written statement took time to adduce Page No.# 5/17 evidence by producing his witnesses.
9. The said Foreigners' Tribunal, Goalpara fixed the case for evidence of the proceedee/petitioner on (i) 23.04.2010, (ii) 07.07.2010, (iii) 13.10.2010, (iv) 28.12.2010, (v) 23.02.2011, (vi) 18.04.2011, (vii) 04.06.2011, (viii) 13.07.2011, (ix) 17.08.2011 and (x) 22.09.2011. On all these dates, the petitioner remained absent and his counsel took time by filing petitions.
10. On 22.09.2011 while granting time to the petitioner, said matter was fixed on 04.11.2011 for evidence. On 04.11.2011 the Tribunal finding that in spite of directing him and granting time, the proceedee/petitioner did not submit his photographs and did not give his fingerprints and remained absent before the Tribunal, by order dated 04.11.2011 the matter was fixed on 14.12.2011 giving last opportunity to the said proceedee/petitioner for his personal attendance, observing that failure on the part of the proceedee to remain present on the said date, i.e., 14.12.2011 the said matter shall proceed ex-parte. On 14.12.2011 the petitioner appeared before the Tribunal, furnished his photographs, submitted petition with photocopy of extract of Electoral Roll of 1966 and prayed for time to submit certified copy of Voters' List of 1966.
11. The Tribunal considering the matter and for the ends of justice, granted time to the petitioner, fixing the matter on 12.01.2012 for evidence.
12. On 12.01.2012 the petitioner remained absent before the Tribunal and his counsel prayed for time.
13. The Tribunal found that from 22.03.2010 to 14.12.2011 after granting time on 11 occasions the petitioner appeared before the Tribunal only once on 14.12.2011. As such, the Tribunal fixed the matter on 03.02.2012 for final order, rejecting the petition filed by the counsel for the petitioner, granting adjournment of the matter.
14. On 03.02.2012 the petitioner remained absent before the Tribunal.
15. Considering the previous orders and finding that sufficient time was already granted to the petitioner to adduce his evidence since 23.04.2010, the Tribunal after considering petitioner's written reply, by its order dated 03.02.2012 opined that the petitioner is an illegal migrant of post 1971 stream and that he failed to discharge his burden under the Foreigners Act, 1946 to prove Page No.# 6/17 himself to be an Indian national and thereby, answered the reference in affirmative.
16. Aggrieved by the said ex-parte impugned opinion of the ForeignersTribunal-I, Goalpara dated 03.02.2012, the petitioner on 01.12.2017, after more than 5 years 10 months, filed the connected WP(C) No. 7692/2017, praying amongst others, (i) to declare the impugned ex-parte opinion dated 03.02.2012 passed by the Foreigners Tribunal-I, Goalpara in F.T. Case No. 1415/G/06 as illegal and to set aside the same; (ii) to rescind, cancel or revoke all the follow-up actions, initiated pursuant to the said ex-parte opinion dated 03.02.2012 and (iii) to remand back the said F.T. Case No. 1415/G/06 to the learned Foreigners' Tribunal-I, Goalpara for deciding the case afresh by giving him every chance to prove his Indian Nationality.
17. With regard to the default of the petitioner before the Tribunal and his inordinate delay in preferring the connected writ petition, the Court by its order dated 13.12.2017 passed in WP(C) No. 7692/2017 observed as mentioned below, directing the petitioner to file an additional affidavit, which is as follows:
"On a query by the Court as to the reasons for the default, before the Tribunaland the inordinate delay in approaching the Court, the learned counsel for the petitioner has taken us to the averments made in paragraph 6 of the writ petition and contends that because of his inability to collect the documents he could not tender evidence.Even after his declaration as a foreign national, police did not search for him. He had consulted some elderly and educated personsof the society but they never suggested him to challenge the order of the Tribunal. Now that petitioner's name has been included in the list of untraced declared foreigners, he has decided to institute the challenge.
Before we pass appropriate order in this case, we would like the petitioner to bring on record by way of an additional affidavit highlighting the following aspects: -
(1) A list of the documents which the petitioner could not collect during the time when the reference was pending before the Tribunal, with particulars of the documents;
(2) The approximate dates of collection of those documents;
(3) Names of the elderly and educated persons consulted by the petitioner who Page No.# 7/17 suggested to the petitioner that he need not challenge the order of the tribunal "
18. Though by order dated 13.12.2017 the court directed the petitioner to file such additional affidavit within 4 weeks of the said order dated 13.12.2017, but the petitioner filed such additional affidavit on 16.07.2018.
19. The said writ petition of the petitioner WP(C) No. 7692/2017 was taken up for consideration on 25.07.2018. After hearing the parties; considering the contents of the impugned ex-parte opinion dated 03.02.2012 passed by the learned Foreigners Tribunal-I, Goalpara in F.T. Case No. 1415/G/06; the provisions of Section 9 of the Foreigners Act, 1946; Order 3(14) of the Foreigners (Tribunals) Order, 1964; the decision of the Hon'ble Apex Court in the case of Sarbananda Sonowal (supra), more particularly the paragraphs 63, 70 and 73 of the said Judgment and the averments made by the petitioner in the connected WP(C) No. 7692/2017 preferred by him as well his Additional Affidavit filed on 16.07.2018, the Court by its Judgment & Order dated 25.07.2018 dismissed the said WP(C) No. 7692/2017 of the petitioner since the Court did not find any good ground to interfere with the impugned ex-parte opinion dated 03.02.2012 passed by the learned ForeignersTribunal-I, Goalpara in F.T. Case No. 1415/G/06.
20. The grounds taken by the petitioner for review of the impugned Judgment & Order dated 25.07.2018 passed in WP(C) No. 7692/2017 in this petition, amongst others, are --
(i) That the Court by the impugned judgment overlooked that the petitioner is citizen of India by birth;
(ii) That he is a citizen of India by birth and names of the members of his family have been enlisted in the National Register of Citizens (NRC) published in the year 2018;
(iii) That the Court while passing the impugned judgment did not go through the documents that he submitted along with his said writ petition in support of his nationality;
(iv) Report submitted by the Verification Officer is completely false and baseless that were prepared without visiting his house and the Inquiry Report was incomplete;
(v) Name of his father enlisted in the NRC of 1951 and Voters Details of 1966 and 1971;
(vi) He mentioned before the Court that there are simple discrepancies in the name of his father;
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(vii) The Court failed to appreciate the fact that the other members of his family are citizens of India and he only has been singled out;
(viii) The Court did not consider the provisions of Section 6A of the Citizenship Act, 1955 And came to the conclusion that petitioner has failed to establish his linkage with his parents or grandparents who are citizens of India since before 25.03.1971;
(ix) The court ought to have appreciated the fact that the Foreigners Tribunal failed to appreciate that the petitioner filed his written statement to discharge his onus as per Section 9 of the Foreigners Act, 1946.
(x) That the Tribunal failed to consider that he filed his written statement in support of his claim as Indian citizen and the referring authority could not produce an iota of evidence in support of their claim that he is an illegal migrant from Bangladesh either post 1971 or between 1966 to 1971 stream and the respondent authorities did not discharge initial burden to prove the basis of suspicion that he is a foreigner and therefore the claim of the petitioner remains uncontroverted regarding the name of his father and mother, his own name and place of his birth.
21. While dismissing the WP(C) No. 7692/2017 preferred by the petitioner that he filed against the ex-parte opinion dated 03.02.2012 passed by the learned Foreigners Tribunal-I, Goalpara in F.T. Case No. 1415/G/06, the Court in the impugned Judgment & Order dated 25.07.2018 observed as follows: -
3. Pursuant to service of notice of the proceeding, the petitioner had entered appearance and had filed his written statement. Perusal of the order goes to show that the case was fixed for evidence of the petitioner on 23.04.2010, 07.07.2010, 13.10.2010, 28.12.2010, 23.02.2011, 18.04.2011, 04.06.2011, 13.07.2011, 17.08.2011 and 22.09.2011. However, the petitioner remained absent. The learned Tribunal, despite the absence of the petitioner on all these dates, directed personal attendance of the petitioner on 04.11.2011, failing which it was indicated that the case would be proceeded ex parte. The petitioner responded to the said notice and appeared on 04.11.2011 and prayed for adjournment for adducing evidence. While granting the adjournment and fixing the case on 12.01.2012, it was indicated that no further time will be given. Once again a prayer for adjournment was made on 12.01.2012 for producing evidence. The petition was rejected.
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4. Section 9 of the Foreigners Act, 1946 provides that if in any case not falling under Section 8, any question arises with reference to the Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872, shall lie upon such person.
5. Order 3(14) of the Foreigners (Tribunals) Order, 1964 mandates disposal of a reference by the Foreigners Tribunal within a period of 60(sixty) days of the receipt of the reference from the competent authority.
6. In Sarbananda Sonowal -Vs- Union of India, reported in 2005 (5) SCC 665 at Paragraph 73, the Supreme Court had observed that the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. In Paragraph 63, the Supreme Court had observed that there can be no manner of doubt that the State of Assam is facing external aggression and internal disturbance on account of large-scale illegal migration of Bangladeshi nationals and that it, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. In Paragraph 70, it was observed that the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of the North-Eastern region and that their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts.
7. After the judgment is delivered, the petitioner had not taken any steps to question the legality and validity of the order for the last 5(five) years. It is reasonable to expect that if a question mark is raised in respect of a citizen regarding his citizenship, he would take prompt and effective steps to dispel that doubt and establish his citizenship. In the instant case, we find that when the stage of evidence came, the petitioner remained absent on 10(ten) dates, spanning over almost 1(one) year 6(six) months. As noticed earlier, once again a notice was issued by the Tribunal, though really not called for, for ensuring participation of the petitioner in the Page No.# 10/17 proceedings.
8. In the additional affidavit filed pursuant to the order of this Court dated 13.12.2017 as well as in the writ petition, plea is taken that his engaged counsel did not inform him anything about the proceedings. Further plea is taken that he had consulted with one Md. Mizanur Rahman, who is an educated person, and he also did not advise to challenge the order of the Tribunal unless police comes looking for him and accordingly, he had not taken any steps to challenge the same.
9. The pleas taken that his counsel did not inform him to take requisite steps or that a respectable educated person did not advise him not to challenge the order of the Tribunal, do not inspire confidence. When the issue of influx of foreign nationals has been in public domain in the State of Assam for more than three decades and has engaged the attention of the people, it cannot be countenanced that the petitioner was not aware of the seriousness of the issue and the possible consequences. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no gainsaying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners.
10. The petitioner had ample opportunity before the learned Tribunal to establish his case that he is not a foreigner, but he had not availed of the opportunities granted. In the circumstances of the case, we are of the opinion that the learned Tribunal was justified in proceeding with the case ex parte after appearance of the petitioner and in declaring him as a foreigner, who had entered into India after 25.03.1971. It appears to the Court that the petitioner simply bided his time, as he has approached this Court after long lapse of more than 5(five) years from the date of judgment.
11. In view of our aforesaid discussions, we find no good ground to interfere with the impugned order dated 03.02.2012 passed by the learned Member, Foreigners Tribunal No.1, Goalpara in F.T. Case No.1415/G/06 and accordingly, the writ petition is Page No.# 11/17 dismissed.
22. It is to be noted herein that the Foreigners (Tribunals) Order, 1964 has been framed in exercise of the powers conferred by Section 3 of the Foreigners Act, 1946 and as such it has statutory force.
23. Mr. Payeng, learned Standing counsel, Home Department, Assam submitted that a review petition is required to be filed within a period of 30 days but in the case in hand present review petition has been filed after two years, 7 months that too, without any separate application for condonation of delay. The petitioner made some statements in this review petition that cannot be construed as sufficient cause and explanation for the delay in preferring this petition and therefore, this review petition should be dismissed on the ground of delay and laches
24. Mr. Payeng, learned Standing counsel, Home Department stated that the petitioner failed to show any error apparent on the face of the record and also failed to establish that he, in spite of due care and diligence could not bring certain relevant materials to the notice of the Court at the relevant time and further failed to show that there are other sufficient reasons for reviewing of the Judgment & Order dated 25.07.2018 passed in WP(C) No. 7692/2017.
25. Mr. Payeng, learned Standing counsel Stated that it is a settled position of law that the grounds of review are very limited and that the petitioner failed to establish any of the three grounds exist for reviewing the order dated 25.07.2018 and the petitioner cannot file this review petition on the guise of an appeal. Mr. Payeng, further stated that The points raised by repetition in this review petition was already placed at the relevant time and therefore this review petition should be dismissed.
26. Mr. Payeng, learned Standing counsel, Home Department, Assam for the State respondent relied on the decisions of the Hon'ble Supreme Court in the cases of (i) Vedanta Limited Vs. Goa Foundation & Others, reported in (2021)7 SCC 206, (ii) Kamalesh Verma Vs. Mayawati & Others, reported in (2013) 8 SCC 320, (iii)Central Council for Research in Ayurvedic Sciences Vs. Bikartan Das & Others reported in 2023 SCC OnLine SC 996 and (iv) S Madhusudhan Reddy Vs. Narayana Reddy & Others reported in (2022) SCC OnLine SC 1034.
27. Mr. A K Dutta, learned CGC, for the respondent No. 1, Mr. M Islam, learned counsel for the respondent No. 3; Mr. G Sarma, learned Standing counsel for the respondent No. 4 and Mr. H K Hazarika, learned Government Advocate, for the respondent No. 5, respectively, adopt the Page No.# 12/17 argument of Mr. J. Payeng, learned Standing counsel, Home Department and submitted that this review petition is without any merit and also hit by delay and laches and therefore, should be dismissed.
28. It is settled that an application for review of a judgment has to be filed within thirty days of the date of the judgment or order that is sought to be reviewed. In the case in hand the petitioner approached the Hon'ble Supreme Court against the the Judgment & Order dated 25.07.2018 passed in WP(C) No. 7692/2017 by filing Special Leave Petition (Criminal) Diary No. 30653/2019 with condonation of delay application. On 17-12-2019 the petitioner had withdrawn the said petition from the Hon'ble Supreme Court seeking liberty to file Review Petition before the High Court and by its Order dated 17.12.2019 the Hon'ble Supreme Court granted the permission as sought for and further the Hon'ble Supreme Court by its Order dated 17.12.2019 dismissed the said Special Leave Petition of the petitioner as withdrawn observing that --If the petitioner fails before the High Court, liberty is reserved to him to move this Court (Hon'ble Supreme Court) once over again challenging the main order as well as the order passed in the Review Petition. From the said order dated 17.12.2019 it can be seen that the Hon'ble Apex Court did not pass any order or made any observation regarding the condonation of delay relating to the Review Petition to be filed by the petitioner before the High Court against the Judgment & Order dated 25.07.2018 passed in WP(C) No. 7692/2017. Petitioner also did not place any order before us by which the delay in preferring the said Special Leave Petition was condoned. While filing this Review Petition the petitioner did not file any application for condonation of delay of 2 years and 6 months in preferring this review petition. He totally failed to furnish any cogent grounds for his said delay merely stating that after receiving the certified copy of the order passed by the Hon'ble Supreme Court, he could not meet the advocate of this High Court due to financial crisis and thereafter, due to COVID-19 he could not move around and earn money and that his said delay was not deliberate and intentional and radar under compelling circumstances. Considering the same we found that the explanation of the petitioner for filing this review petition on 17.02.2021 is inadequate and casual, which cannot be considered as sufficient ground to condone the delay.
29. The grounds of the review petition taken by the petitioner has already been stated above. In the case of Kamlesh Verma -Vs- Mayawati, reported in (2013) 8 SCC 320, their Lordships of the Hon'ble Supreme Court have laid down when a review is maintainable and when the review will not be maintainable, which are as follows:
Page No.# 13/17 "20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
Where the words "any other sufficient reason" means "a reason sufficient on grounds at least analogous to those specified in the rule".
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
30. Contention of the petitioner before the writ Court was that name of his father Ajgar Ali appeared in the NRC details of 1951 as well as NRC Assam Voter details of voting year 1966. As per the NRC details annexed by the petitioner name of one Ajgar A Ali Sk, projected father of the petitioner aged about 33 years, son of Sabulla Sk of Village-Takimari (413) was reflected in House No. 7, Sl. No. in House 1 of South Salmara Police Station, Mouza-3, Sub-Division-Dhubri of Image District-Goalpara, Selected District-Dhubri, with Legacy Data Code 340-0034-0918.
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31. In the said NRC details annexed by the petitioner nowhere it is mentioned that it belongs to NRC of 1951. Moreover, the petitioner in spite of granting time on several dates did not adduce evidence and prove the said document. Further, law is well settled that NRC extracts adduced to prove domicile in India is not admissible in evidence for any purpose [ Bhanbhasa Sheikh -Vs- Union of India and Others reported in ALR 1970 Assam & Nagaland 206].
32. The other Annexure annexed by the petitioner is the NRC Assam Voter details of Voting year 1966 relates to one Aajgar Ali, projected father of the petitioner, aged about 38, son of Sadulla, Village-251 Khopati Pt-II, Mouza-1, Block No. 93, Sub-Division-Nill, Police Station-South Salmara, Circle-Dhubri, Image District-Goalpara, Select District-Dhubri, Voter Sl. No. 406 relating to 31 Mankachar Legislative Assembly Constituency, with Legacy Data Code 340-4051-0952.
33. The petitioner by another Annexure annexed the NRC Assam Voter details of Voting year 1971 relates to one Aajgar Ali, projected father of the petitioner, aged about 42, son of Sadulla, Village-251 Khopati Pt-II, Mouza-1, Block No. 93, Sub-Division-Nill, Police Station-South Salmara, Circle-Dhubri, Image District-Goalpara, Select District-Dhubri, Voter Sl. No. 474 relating to 31 Mankachar LAC, with Legacy Data Code 340-2020-9557.
34. From the above it can be seen that the NRC details as stated by the petitioner is of 1951 and from Village-Takimari (413) and the NRC Voter details of 1966 and 1971 is of village-251 Khopati Pt-II, the Legacy Data are different, age in NRC details and age in the NRC Voter Details of 1966 and 1971 are different, in NRC details one Ajgar A Ali Sk, projected father of the petitioner, of Village-Takimari (413) is reflected, whereas in the NRC Voter details of 1966 one Aajgar Ali of Village-251 Khopati Pt-II is reflected as well as in the NRC Voter details of 1971 one Aajgar Ali Sk of Village-251 Khopati Pt-II is reflected. Considering the NRC details as projected by the petitioner being 33 in the year 1951 his birth year appears to be 1918, considering the NRC Voter details of 1966 his age as 38, his birth year appears to be 1928 and considering the NRC Voter details of 1971 his age as 42, his birth year appears to be 1929. Inspite of granting sufficient time, petitioner did not adduce any evidence to prove those documents, noted above, before the Tribunal.
35. Petitioner also placed a certified copy of Voters' List of 1977 relating to Village-251 Khopati Pt-II, Part No. 197, Circle-South Salmara of 22 South Salmara LAC, in which his name figured in House No. 114 at Sl. No. 331. But, the petitioner before the Tribunal did not place and prove any such documents relating to existence of his projected father Ajgar Ali in India before Page No.# 15/17 25.03.1971 by adducing cogent, reliable and admissible evidence. Though petitioner annexed some other Voters' Lists, those are of post 25.03.1971.
36. Considering the petitioner to be of 26 years in the Voters' List of 1977, his birth year would be 1951 and in that case petitioner was eligible to vote on attaining the age of 21 years at that relevant period of time, as such, since 1972.
37. Entire contention of the petitioner before us is that he was not given time by the Tribunal to place the certified copy of Voters' List of 1966. But, when we made a query that whether he has the certified copy of 1966 Voters' List reflecting the name of the petitioner, learned counsel Mr. M I Hussain submitted that the petitioner has not obtained the certified copy of Voters' List of 1966 relating to 31 Mankachar LAC. The petitioner has also not placed the certified copy of 1971 Voters' List reflecting his name in 31 Mankachar LAC.
38. It is not the case of the petitioner that the Tribunal did not give him more than sufficient time as being prescribed by the Foreigners (Tribunals) Order, 1964 having statutory force, to prove his case.
39. The Hon'ble Supreme Court reiterating its various decisions relating to the writ of Certiorari in the case of Central Council for Research in Ayurvedic Sciences Vs. Bikartan Das & Others reported in 2023 SCC OnLine SC 996 have held, amongst others, as follows -
64. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.
65. A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this Page No.# 16/17 batch of appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits.
40. It is already noted above that the Tribunal gave ample opportunities to the petitioner to establish his case by adducing relevant, cogent, admissible evidence to prove that he is not a foreigner but an Indian national, which he failed to establish. The Court accordingly, in exercise of its power under Article 226 of the Constitution, the writ of Certiorari did not find any such illegality in the order dated 03.02.2012 passed by Foreigners Tribunal-I, Goalpara in F.T. Case No. 1415/G/06 by which the said Tribunal opined the petitioner as an illegal migrant of post 1971 stream and accordingly, passed the impugned order dated 25.07.2018 in WP(C) No. 7692/2017 that was preferred by the petitioner against the said order dated 03.02.2012 of the Foreigners Tribunal-I, Goalpara.
41. We have perused the decisions placed by the petitioner in (2000) 8 SCC 437 (Dadu @ Tulsidas etc. -Vs- State of Maharashtra etc.), (2004) 2 SCC 150 (Union of India -Vs- S.B. Vohra and Others), (2005) 4 SCC 741 (Board of Control for Cricket, India -Vs- Netaji Cricket Club), WP(C) No. 206/2018 (Smt. Safali Rani Das -Vs- Union of India & Others), WP(C) No. 6544/2019 (Asor Uddin -Vs- Union of India & Others), WP(C) No. 8284/2019 (Rahima Khatun -Vs- Union of India & Others) and WP(C) No. 9568/2019 (Siddique Ali -Vs- Union of India & Others). We found that in the backdrop of the case noted above, the citations placed by Mr. M I Hussain, learned counsel for the petitioner are not applicable in the present case.
42. We found that the grounds raised in this Review Petition by the petitioner did not establish any error apparent on record to justify interference with the order dated 25.07.2018 passed in WP(C) No. 7692/2017, warranting any review of the same.
43. This Review Petition, accordingly stands dismissed, both on limitation as well as on merit.
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44. Registry shall return the records of F.T. Case No. 1415/G/06 to the Foreigners Tribunal-I, Goalpara, along with a copy of this order forthwith.
45. Registry shall also forward a copy of this order to the Superintendent of Police (Border), Goalpara for its necessary information.
JUDGE JUDGE Comparing Assistant