Hazrat Ali S/O Abdul Karim Sheikh V. The Union of India and The State of Assam and The Election Commission of India and The State Coordinator NRC Assam and The Deputy Commissioner Goalpara and The Superintendent of Police (B) Goalpara

Review.Pet./31/2022

AI Insights

The case involves Hazarat Ali, who sought a review of a previous court decision declaring him a foreigner. The review was based on claims of overlooked evidence and procedural errors in the original judgment. The court examined various documents and testimonies, including electoral rolls and previous tribunal decisions regarding the petitioner's family members. The court found inconsistencies in the petitioner's claims and noted procedural lapses in filing the review petition, leading to its dismissal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 692386 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 13-05-2025
• Assessment Year: misc
• Other Referred Cases: Abdul Kuddus v. Union of India & Ors., (2019) 6 SCC 604
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I SC F T SC ECI SC NRC
• Assessee Lawyers: N AHMED
• Keywords: Certiorari jurisdiction; Electoral roll; Foreigner; Foreigners tribunal; Review petition

Judgement Text

"Page No.# 1/9 GAHC010105402021 2025:GAU-AS:5997-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Review.Pet./31/2022 HAZARAT ALI S/O ABDUL KARIM SHEIKH RESIDENT OF SALPARA, MOLANDUBI, PS KRISHNAI DIST GOAPARA, ASSAM 783126 VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI 01 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THEGOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHTI 06 3:THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE CHIEF ELECTION COMMISSION INDIA NEW DELHI 01 4:THE STATE CO ORDINATOR NRC ASSAM BHANGAGARH GUWAHATI 781006 5:THE DEPUTY COMMISSIONER Page No.# 2/9 GOALPARA ASSAM 783101 6:THE SUPERINTENDENT OF POLICE (B) GOALPARA ASSAM 78310 Advocate for the Petitioner : MR. N AHMED, MD B ISLAM,MR. A A MONDAL,MR A ALAM,MR M AHMED,MR R A AHMED Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ECI,SC, NRC Linked Case : WP(C)/2076/2017 HAZARAT ALI S/O ABDULKARIM SHEIKH VILL- SALPARA MOLANDUBI P.O. KRISHNAI P.S. KRISHNAI DIST. GOALPARA ASSAM PIN - 783126 VERSUS THE STATE OF ASSAM and 3 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI -06. 2:THE DEPUTY COMMISSIONER GOALPARA DIST. GOALPARA ASSAM PIN- 783126 3:THE SUPERINENDENT OF POLICE BORDER GOALPARA DIST. GOALPARA ASSAM PIN - 783126 4:THE UNION OF INDIA Page No.# 3/9 REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI PIN - 110001 ------------ Advocate for : MR.N UPADHAYA Advocate for : ASSTT.S.G.I. appearing for THE STATE OF ASSAM and 3 ORS. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 13.05.2025 (K.R. Surana, J) Heard Mr. B. Islam, learned counsel for the petitioner. Also heard Mr. P.S. Bhattacharyya, learned CGC; Mr. J. Payeng, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent. 2. This application for review is directed against the order dated 04.04.2019, passed by this Court in WP(C) 2076/2017, thereby dismissing the writ petition, which was filed to assail the opinion dated 09.03.2017, passed by the learned member, Foreigners Tribunal No.2, Goalpara in F.T.2.Case No. 687/K/2016, arising out of Reference No.2006/247 and ERO’s Case No.455/16/36, thereby declaring the petitioner to be a foreigner of post 25.03.1971 stream. 3. In the grounds of review, it has been stated that while passing the order in the writ petition, the Court had overlooked/ignored the written statement filed by the petitioner, wherein it has been stated that Abdul Karim Page No.# 4/9 and Abdul Karim Sheikh is one and the same person. It is further projected that if the voter list of 1985 and 1997 were illegible, blurred and incomplete, it ought not to have been accepted and the petitioner ought to have been directed to submit a fresh copy. It is further submitted that the concerned authorities did not furnish a copy of the Electoral Roll of 1985 as it was not available in the office, for which the petitioner ought not to have been punished by declaring as a foreigner. 4. It is further projected in the grounds of review that this Court had erred in rejecting the documents of the petitioner merely because there has been a shifting of his residence and it is stated that there is no law which prohibits shifting of the address of the person for livelihood. 5. It is the further ground of review that the petitioner has a brother, namely, Md. Anser Ali, who has been declared to be an Indian citizen by the Foreigners' Tribunal No.2nd, Goalpara in connection with F.T. Case No.329/2009, and accordingly, a review is called for in this case. It is the further ground of review that the petitioner is an Income Tax PAN Card holder, and his name and his father's name is recorded therein, and accordingly, this ought to have been considered as a linkage document with his father. It is further urged in the grounds of review that the Tribunal proceeded with the trial/hearing of the case on a day to day basis, which is serious and unconstitutional, for which the order of this Court is liable to be reviewed. The other ground of review is that finding of the Court that in exercise of certiorari jurisdiction of this Court, being supervisory, and not appellate for which the Court would refrain from reviewing the finding of fact reached by the tribunal is erroneous. In the said context, reliance is placed on the case of Abdul Kuddus v. Union of India & Ors., (2019) Page No.# 5/9 6 SCC 604, and it is projected that the scope of exercise of certiorari jurisdiction is also to correct and rectify any error, which has crept in the order of the learned Tribunal. 6. It is also a ground of review that the impugned order was passed mechanically, and therefore, it is bad law and liable to be reviewed. 7. Per contra, the learned standing counsel for the FT matters has opposed the prayer made in this review petition and he has submitted that case of Abdul Kuddus (supra) does not help the petitioner in any way. 8. Considered the submissions made at the bar as well as the grounds of review urged in the review petition. 9. In this case, the petitioner places reliance on an opinion dated 08.10.2020, passed by the learned Member, Foreigner’s Tribunal-2, Goalpara in F.T. Case No. GRT(2) 251/2020, corresponding to Old F.T.(2) Case No. 1007/K/16, F.T. Case No. 329/2009 to project that the proceedee therein, namely, Md. Anser Ali was his brother, who was declared to be Indian. On a perusal of the said opinion, it is seen that the learned Tribunal took note of the various aliases of the father of the said proceedee, being, Lt. Abdul Korim Sheikh, Abdul Korim, Abdul and A. Korim. However, in paragraph-10 of the evidence on affidavit filed by the petitioner, the various aliases of the father of the present petitioner is as follows: Abdul Karim Sheikh, Abdul Karim, Abdul and Karim Shikh. Therefore, though there appears to be a similarity in the names of the projected father of the petitioner, there is a mismatch as regards the aliases which are referred to in the opinion rendered in the case of Md. Anser Ali. On a perusal of the written statement filed by the petitioner and that of Md. Anser Ali, Page No.# 6/9 but it is noted that the petitioner has not introduced Md. Anser Ali as his brother. 10. It is also interesting to note that in paragraph-5 of the opinion dated 09.03.2017, passed in the case of the petitioner, namely, Hazarat Ali, the learned Tribunal has referred to the cross-examination of the petitioner. It would be appropriate to quote the said paragraph-5: “5. In his cross examination he has stated that his grandfather is Lt. Miajan Sk and grandmother is Lt. Upatjan Bibi. They were residents of Salpara Molandubi, Khoridhora. Apart from his father, they had two daughters, namely Piajan Bibi and Milijan Bibi. His father was born in Salpara Monaldubi and the respondent too born there. Including the respondent they are three brothers. Motleb Ali and Anser Ali. His younger brother stays in Salpara Molandubi. He married Anowara Bibi D/O Moniar Sk. of Krishnai Guria Pt-I. After marriage he enrolled his name there in 1985 and casted voter in Guria for two times. Thereafter, he again returned to Salpara Molandubi in 1997 and again enrolled his name there, but he was made to be 'D' voter. He has a bittle nut shop as his earning source. He presently stays in Salpara Molandubi Khoridhora. He has submitted the necessary documents in support of his case.” 11. From the above, it appears that the petitioner has projected in his cross-examination that including him, there are 3 (three) brothers, i.e. himself, Motleb Ali and Anser Ali and that the younger brother stays in Salpara Molandubi. However, in contrast, in the opinion dated 08.10.2020 of Md. Anser Ali, during cross-examination, the petitioner’s projected brother, Md. Anser Ali states that they are 2 (two) brothers including himself, and OP is the second, he never went to school. Therefore, the said statement, being the part of opinion dated 08.10.2020 is quoted below: “Learned Asst. Govt. Pleader duly crossed the OP and disclosed in crossed that she is OP of this case, and he is son of Abdul Korim S/O. Miyajan Sheikh of village Salpara Molandubi Pt-1. Khoridhora, PS: the then Dudhnoi (now Krishnai PS). Dist:- Goalpara. Assam. OP and his father were born and brought up at the Page No.# 7/9 above mentioned locality. His father expired when he was 7/8 years old. They are two brothers including OP himself and OP-is second. He never went to School. He casted his first vote in 1989. In 2011 his name was marked as 'D'. He denied the suggestion the Asstt. Govt. Pleader that he came from Bangladesh.” 12. Similarly, as per opinion dated 08.10.2020, the proceedee therein, namely, Md. Anser Ali, had examined one Piyaruddin Sheikh, projecting him to be his cousin brother. The said witness had stated that the said proceedee's father had two sons and the proceedee was the second. Therefore, even the cousin brother of the projected brother of the petitioner had admitted the existence of 2 (two) sons of the proceedee’s projected father. The said part of the opinion is also quoted below: “In cross this OPW-2, Piyaruddin Sheikh S/O. Late Joynuddin Sheikh, stated that OP is his cousin brother. OP's residence is at Salpara Molandubi, Khoridhora under Krishnai PS of district Goalpara of Assam. OP's father name is Abdul Korim @ Abdul Korim Sheikh. OP's father had two sons. OP is second. He knows him from his childhood. He denied the suggestion the Astt. Govt. Pleader that he deposed falsely.” 13. Notwithstanding similarity in the names, as there is a mismatch in the number of brothers, which the petitioner Hazarat Ali and his projected brother Md. Anser Ali has disclosed, the Court is of the considered view that the opinion dated 08.10.2020, passed by the learned Member, Foreigner’s Tribunal-2, Goalpara in F.T. Case No. GRT(2) 251/2020 would not be sufficient to review the order impugned in this review petition. 14. Insofar as the other grounds of review are concerned, having exhibited the voter list of 1985 and 1997, which are not readable, it was an invitation by the petitioner to the Tribunal and/or this Court for rejecting it on the grounds that those were not readable. The learned counsel for the review petitioner has Page No.# 8/9 not been able to show that readable copies of the voter list of 1985 was annexed in WP(C) 2076/2017. 15. By an order dated 02.08.2022, this Court took note that against the order dated 04.04.2019, the petitioner had preferred an SLP (Crl.) Diary No. 31144/2019, which was withdrawn by order dated 17.12.2019 with liberty to file the review petition. However, the review petition was presented on 14.07.2021, without any explanation of the delay, and therefore, this Court had directed that the review petitioner shall properly explain the reasons for such delay in preferring the review petition. Although, the said order was passed on 02.08.2022, but no explanation is forthcoming by the petitioner by way of an affidavit. 16. Under such facts and circumstances, this is a case where in light of the contents of the two separate opinions of the learned Foreigners Tribunal as discussed above, the case of Abdul Kuddus (supra) does not help the petitioner. 17. Ordinarily, a review petition ought to have been preferred within a period of 30 (thirty) days. Having not done so, this Court gave an opportunity to the petitioner to explain the delay by order dated 02.08.2022. However, the said the opportunity was not availed by the petitioner. Thus, there is a clear case of negligence and laches on part of the petitioner to file this review petition. 18. Accordingly, the petitioner has failed to prima facie establish his connection with his projected brother Md. Anser Ali. Resultantly, no case is made out by the petitioner for review of the order dated 04.04.2019, passed by this Court in WP(C) 2076/2017. 19. Resultantly, this review petition fails and the same is dismissed. Page No.# 9/9 20. Interim order dated 26.04.2022, not to take the petitioner into custody and deported from India, stands vacated. The consequences of the opinion of the learned Foreigners Tribunal, in the case of the petitioner shall follow. 21. The Registry shall return back the Tribunal’s record along with a copy of this order, to be made a part of the record. JUDGE JUDGE Comparing Assistant "