Kalpana Mondal V. The Union of India and The State of Assam and The Election Commission of India and The State Co-ordinator NRC Assam and The Deputy Commissioner Kamrup (R) and The Superintendent of Police (B) Kamrup (R)

Review.Pet./80/2020

AI Insights

The case involves Kalpana Mondal, who sought a review of a previous court order dismissing her writ petition challenging the opinion of the Foreigners' Tribunal, which declared her an illegal migrant. The review was based on several grounds, including the non-consideration of a school certificate and the relevance of other documents like the PAN card and voter ID. The court dismissed the review, stating that the grounds presented did not constitute new evidence or a mistake apparent on the record, and reiterated that the review process is not meant for re-hearing or correcting judgments based on merit.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 800948 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 19-01-2021
• Assessment Year: misc
• Other Referred Cases: Khudeja Khatoon vs. Union of India [WP(C) 7756/2016]
• Laws Referred To: Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964, Evidence Act, 1872
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I
• Assessee Lawyers: A ALI
• Keywords: Burden of Proof; Citizenship; Evidentiary value; Foreigners tribunal; Illegal migrant; Review petition
• Section: 9

Judgement Text

"Page No.# 1/5 GAHC010123582020 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Review.Pet./80/2020 KALPANA MONDAL W/O SRI NIREN MONDAL, D/O RAMCHARAN MONDAL, R/O H. NO. 36, PUB SHANTINAGAR, KAHILIPARA, KAHILIPARA, GUWAHATI 19, DIST. KAMRUP (M), ASSAM. VERSUS THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF INDIA, HOME AFFAIRS DEPTT., NEW DELHI 01 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI 06 3:THE ELECTION COMMISSION OF INDIA NEW DELHI 01 INDIA 4:THE STATE CO-ORDINATOR NRC ASSAM 5:THE DEPUTY COMMISSIONER KAMRUP (R) DIST. KAMRUP (R) ASSAM PIN 781031 6:THE SUPERINTENDENT OF POLICE (B) KAMRUP (R) DIST. KAMRUP (R) ASSAM PIN 78103 Advocate for the Petitioner : MR A ALI Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA ORDER 19.01.2021 (Manojit Bhuyan, J) Heard Mr. A. Ali, learned counsel for the petitioner as well as Mr. K. Gogoi, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 5 and 6 whereas Ms. N. Upadhyay, learned counsel appears for respondent no.3. Ms. L. Devi, learned counsel accepts notice on behalf of respondent no.4. Petitioner seeks review of the order dated 24.01.2020 dismissing the writ petition i.e. WP(C) 4726/2019 wherein challenge was made to the opinion dated 17.05.2019 of the Foreigners’ Tribunal, Kamrup(Rural) No.1, in GFT(R) Case No.1169/2017. The relevant portion of the said order is extracted hereinunder: “ Petitioner assails opinion dated 17.05.2019 passed by the Foreigners’ Tribunal, Kamrup (Rural) No.1, in GFT (R) Case No.1169/2017, declaring her to be a foreigner/illegal migrant, having illegally entered into India after 25.03.1971. For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, she exhibited as many as 9 (nine) documents, the particulars of which may be noticed as under: (i) Exhibit-I– Certificate dated 17.01.2019 issued by the Gaonbura of Khapartari, Kandulimari Lat of Mouza-Dakhin Charu Bongsor certifying that petitioner is the daughter of Late Ramcharan Mandal and resident of village-Panikhaiti. It is also certified that Ramcharan Das and Ramcharan Mandal are one and same person. (ii) Exhibit-II– Registered Sale Deed in the name of one Muthi Ram Mandal, projected grandfather of the petitioner. (iii) Exhibit-III–Certificate dated 19.10.1997 issued by the Headmaster of Panikhaity Anchalik High School stating that the petitioner read upto Class-IX and left the school in the year 1990. (iv) Exhibit-IV– Certificate issued by the Secretary, 27 No. Sapartari Gaon Panchayat certifying that petitioner is the daughter of Ramcharan Mandal and got married with one Niren Mandal. (v) Exhibit-V– Elector Photo Identity Card of the petitioner. vi) Exhibit-VI– Certified copy of Voter List of 2011, in the name of the petitioner under the locality of 1 Kahilipara and the name of the LAC is 53 No. East Guwahati LAC. Page No.# 3/5 vii) Exhibit-VII– PAN Card in the name of the petitioner. viii) Exhibit-VIII– Certified copy of Voter List of 2014, in the name of one Ramcharan Mandal, aged 66 years son of Muchiram Mandal of village Panikhaiti, Part No.4 under 50 Palashbari LAC. vii) Exhibit-IX– Draft NRC details of Ramcharan Mandal, projected father of the petitioner. Petitioner examined herself as DW-1. Two projected brothers of the petitioner namely Parimal Mandal and Chittaranjan Mandal deposed as DW-2 and DW-3 From the documents above and for establishing linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971, the petitioner projected one Ramcharan Mandal, aged 66 years, son of Mushiram Mandal, as her father, which name appeared in the Voter List of 2014 at Exhibit-8. But in the Sale Deed at Exhibit-2, her grandfather name is reflected as Muthi Ram Mandal. From the name of the projected grandfather reflected in the above two documents, it is seen that they are two different entities. The documents brought on record for the purpose of establishing linkage to said Ramcharan Mandal were the Certificate dated 17.01.2019 issued by the Gaonburah at Exhibit-1; Certificate issued by the Headmaster of Panikhaity Anchalik High School at Exibit-3 and Certificate issued by the Secretary, 27 No. Sapartari Gaon Panchayat at Exhibit-4. The said documents rendered itself as inadmissible in evidence in the absence of the authors of the certificates standing to prove the contents thereof. The Elector Photo Identity Card at Exhibit-5, PAN Card at Exhibit-7 of the petitioner and the NRC details of the projected father at Exhibit-9 are not relevant piece of documents to prove citizenship of the petitioner. No voter lists were produced and exhibited showing relationship with her projected father. The petitioner’s name along with her projected husband appeared in the Voter List of 2011 at Exhibit-6 of Kahilipara locality at Guwahati, which, however, bore no relevance as her relation is shown with her projected husband and not with the projected father Ramcharan Mandal. The petitioner also annexed three documents i.e. two Voter Lists of 1966 and Voter List of 2014, but these were not exhibited by the petitioner. The petitioner in her written statement stated that notice was issued in the name of Mayarani Mandal and she denied that she is Mayarani Mandal and claims to be Kalpana Mandal. Further, that the Notice was received by the relative of the petitioner wrongly believing that the noticee and the petitioner are the same person. Notwithstanding the denial, the petitioner in her deposition stated that she is called as Mayarani Mandal at home. The statements of Parimal Mandal as DW-2 and Chittaranjan Mandal as DW-3, who claimed to be the brothers of the petitioner, also stated in their depositions that their sister’s home name is Mayarani Mandal. As regards the other statements of DW- 2 and DW-3, the same cannot be relied upon in the absence of any documents showing their relationship to the petitioner. In this we would observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony without support of documentary evidence is wholly insignificant. Oral testimony alone is no proof of citizenship. The evidence of DW-2 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to them. The petitioner has enclosed few documents with the writ petition for consideration. We would observe that fresh documents introduced in the present writ proceedings cannot be looked into or considered, the same not having been produced, exhibited and proved before the Tribunal at the first instance. The petitioner have made reference to the application filed before the Tribunal on 11.02.2019 and submits that her prayer for summoning the author/Headmaster of Exhibit-III was ignored and no order was passed thereon. In this respect we would observe that no infirmity is caused as it was not the case of the petitioner that despite the petitioner giving notice to the official first, no appearance had been made compelling the petitioner to file application before the Tribunal to summon the person/official Page No.# 4/5 concerned. The requirement for giving notice by the proceedee at the first instance is clearly laid down in the case of Khudeja Khatoon vs. Union of India [WP(C) 7756/2016] As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected father and/or the grandfather. On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion. On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost. Interim bail granted by this Court on 02.09.2019 stands recalled. Office to send back the case records to the Tribunal forthwith. A copy of this order be made part of the case records of the Tribunal for future reference.“ The present review petition is laid on the following grounds : “(i) For that the petitioner submitted the original copy of the school certificate before the tribunal as (Ext-3) alongwith an application dated 11.02.2019 vide Petition No.111/2019 praying for issuing summon to the Head Master to proof the certificate but the tribunal neither considered her application nor passed any order in respect of the application. In fact the school certificate is her very strong link document with her father. (ii) For that the petitioner is also having PAN card wherein her date of birth is mentioned as 01.01.1972 and her father’s name is also mentioned, this is a valid link document. It is proved in original and it is not possible to summon the Income Tax Department to the Govt. of India. (iii) For that voter ID Card (Ext-5), PAN Card (Ext-7) and NRC (Ext-9) are relevant documents but the tribunal observed that these are not relevant. (iv) For that during the Govt. advocate never made any objection for not summoning the Page No.# 5/5 Govt. authorities as the Govt. advocate understood that the issuing authorities of PAN card, voter ID card and NRC can not be summoned and those documents were produced in original. (v) For that another ground was taken by the tribunal that the petitioner’s grand father’s name was written as Muthiram in place of Muchiram in the sale deed (Ext-2), but in fact the actual name is written as Muchiram in the sale deed. The hand Written style of the writer appears that it is Muthiram. But the assamese writer correctly wrote as Muchiram, he did not write Muthiram. However the grand father executed the sale deed whose name is also reflected in the voter list of 1966 as Muchiram. (vi) For that the Ld. Tribunal also ought to have considered that the notice was served upon her in a subsequent manner, it was not properly served. However, she duly proceeded the case. .” Having noticed the grounds seeking review for producing new documents 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 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 are 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 24.01.2020. 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 "