Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 131 (GAU)

Bimala Khatun v. Union of India

2016-02-25

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT : Rumi Kumari Phukan, J. The review petitioner sought review of the judgment and order dated 25.8.2015 in WA 235/2015 of the Division Bench on the ground of non-consideration of the documents produced by the petitioner before the learned Single Judge in WP(C) 6658/2013, as well as in the writ appeal. (2) We have heard Mr HRA Choudhury, learned senior counsel for the petitioner and Mr SC Keyal, learned Assistant Solicitor-General of India and Mr M Bhagabati, learned state counsel. (3) The petitioner herein made a prayer in WP(C) 6658/2013 for setting aside the ex parte order of the learned Foreigners’ Tribunal, Sonitpur in Tezpur on 3.8.2010 in FT(DC) case 191/2008, which was forwarded by the Superintendent of Police(B), Sonitpur, wherein the petitioner was declared foreigner. The said writ petition was disposed by the learned Single Judge on 21.7.2015 refusing to interfere in the ex parte order of the learned Foreigners’ Tribunal on various grounds, including the fact that though the petitioner appeared before the Tribunal in response to service of notice but failed to submit written statement within the period 5.8.2008 to 28.7.2010. Ultimately the learned Tribunal passed an ex parte order on 3.8.2010. The learned Single Judge further considered the aspect that nowhere in the petition the petitioner explained the cause of delay from 3.8.2010 to 14.11.2013(date of filing of the writ petition), for which ground alone the petition is not maintainable. That apart, taking note of the decision of a Full Bench in State of Assam v. Moslem Mondal reported in 2013 (1) GLT(FB) 809 it has also been held that unless and until the petitioner made out an extraordinary ground to interfere in the ex parte order, the writ court in a routine manner has no jurisdiction to set aside such ex parte order which was passed by the learned Tribunal in a proper manner. (4) The school certificate issued by the Headmaster of Kamarchuburi Primary School, annexed with the writ petition, was also discussed by the learned Single Judge and it was held that the said document cannot be accepted in view of the fact that the certificate is shown to have been issued under serial no. 644 dated 22.1.1992 and if that was so, then the petitioner would be of 7 years of age as on 21.1.1992, as per the disclosure statement her date of birth is 22.1.1985. 644 dated 22.1.1992 and if that was so, then the petitioner would be of 7 years of age as on 21.1.1992, as per the disclosure statement her date of birth is 22.1.1985. With all the above findings the writ petition was dismissed by the learned Single Judge upholding the impugned order passed by the learned Tribunal. (5) Against the said order of the learned Single Judge the petitioner herein filed an appeal, which was numbered WA 235/2015, on the same ground as taken before the learned Single Judge with a prayer to set aside the impugned ex parte order passed by the learned Foreigners’ Tribunal as well as to set aside the order passed by the learned Single Judge in WP(C) 6658/2013. (6) The grievance raised by the petitioner herein is that she could not appear before the learned Tribunal and failed to produce documents and file written statement owing to ignorance and illiteracy and therefore prayed direction for setting aside the ex parte order and allowing her to appear before the learned Tribunal for reconsideration of her case. The further contention of the petitioner as appellant in the said appeal is that the learned Single Judge did not consider her case in spite of having requisite documents to show that the petitioner is a citizen of India but the refusal of the learned Single Judge to consider the school certificate (annexure D), annexed with the writ petition, has occasioned great injustice to her as in view the said document she will be able to prove her case before the Tribunal. (7) The Division Bench by the order dated 25.8.2015 dismissed the said appeal by endorsing the view of the learned Single Judge with the observation that there is nothing to interfere with the order of the learned Single Judge as the appellant(petitioner herein) has failed to prove her case before the Tribunal and she has frittered away all those opportunities for which the learned Tribunal ultimately declared the petitioner as foreigner in the post-1971 stream. (8) In para 14 of the judgment the appellate court also considered the observations of the learned Single Judge in WP(C) 6658/2013, wherein the learned Single Judge discussed about the school certificate that there is discrepancies in the said school certificate regarding issuance of the same, which read as follows “8. (8) In para 14 of the judgment the appellate court also considered the observations of the learned Single Judge in WP(C) 6658/2013, wherein the learned Single Judge discussed about the school certificate that there is discrepancies in the said school certificate regarding issuance of the same, which read as follows “8. Even in Annexure-D document said to be a school certificate issued by the Headmaster of Kamarchuburi Primary School, there is discrepancies. As per the said certificate, the petitioner completed her studies on 31.12.1997 having passed Class-IV examination in 3rd Division. As per the said certificate her date of birth is 22.1.1985. On the other hand in the purported seal of the school, the certificate is shown issued under serial No. 644 dated 22.1.1992. If it was issued on 22.1.1992, the petitioner was aged about 7 years and could not have passed Class-IV examination. As submitted by Mr. Ghosh, learned State Counsel and Ms. G. Sarma, learned counsel representing the Union of India, normally in the Class-IV results, there is no provision for providing division like HSLC examination. Be that as it may, this aspect of the matter need not detain us in view of the aforesaid fact.” (9) Now the petitioner filed the present review petition assailing the finding of the learned Single Judge that the school certificate is wrong resulting in the dismissal of the writ petition is not proper. Similarly the finding of the appellate court is also not proper whereby the appeal is dismissed on the same ground. According to the petitioner, school certificate seal bears the date 22.1.1992 is the date of admission but the learned Single Judge took the view that it is a date of issuing the certificate, so it is submitted that the entire decision of the learned Single Judge is wrong and that the subsequent finding of the appellate court is also liable to be interfered by way of this review petition so as to appreciate the documents filed by the petitioner. According to the petitioner, she has many documents in support of her claim that she is an Indian citizen and she being ignorant about the ex parte order prayed one more opportunity to proceed with the case. According to the petitioner, she has many documents in support of her claim that she is an Indian citizen and she being ignorant about the ex parte order prayed one more opportunity to proceed with the case. Petitioner herein filed some more documents, including a certificate given by the Headmaster who clarified that in the school certificate book(produced before the writ court) that E 45 is the page in the certificate book, 644 is the serial number of the admission book and 22.1.1992 is her date of admission, but the said certificate bears no seal of the headmaster as he retired. (10) The petitioner is now praying review of the judgment and order dated 25.8.2015 passed in WA 235/2015 with a prayer to release her on bail as she was arrested on 27.11.2013. (11) From the above discussions what we find is that the petitioner is banking upon a document which was filed before the learned Single Judge the school certificate at annexure D, which is reproduced below. “644/22.1.1992 Seal It is certified that Musstt. Bimala Khatun, D/O Md Chand Mia, village-Kumar Chubri, P.S.-Thelamara, Sub-Division – Tezpur, District-Sonitpur, Assam. She studied in Kumar Chuburi L.P. School. On 31.12.1997 her learning is completed in this School. She has passed Class-IV in 3rd Division in this School. Her character was good during the period of this Schools. On 31.12.1997, her age is 12 years 11 months 9 days as per admission book. Date of birth 22.1.85. Sd/- Bhadreswar Nath Headmaster kumar Chubri L.P. School P.O. Thelamara Sub-Division – Tezpur, Dist. Sonitpur, Assam. 5.1.98. (12) After going through the matter on record it is abundantly clear that the aforesaid document was never produced before the learned Tribunal, rather the petitioner did not contest the proceeding by filing written statement despite notice having been served. Though she entered appearance on 5.8.2008 and took time for filing written statement, the petitioner did not file written statement even after 2 years, not to speak of filing any document. However, the petitioner took the privilege of filing the said document while filing the writ petition before the learned Single Judge and while disposing of the writ petition the learned Single Judge made an observation about the said document as mentioned above that the same cannot be considered due to discrepancies about the date of issuing the same. However, the petitioner took the privilege of filing the said document while filing the writ petition before the learned Single Judge and while disposing of the writ petition the learned Single Judge made an observation about the said document as mentioned above that the same cannot be considered due to discrepancies about the date of issuing the same. In view of the Division Bench decision of this Court in Moslem Mondal and others vs. Union of India and others 2010 (2) GLT 1 the writ court cannot look into the document which was not filed before the learned Tribunal. (13) Evidently in the present case, as the petitioner did not produce the said document before the learned Tribunal now she cannot avail the privilege of producing the said document or any other documents at the subsequent stage when there was no illegality in passing the ex parte order. The petitioner herself is guilty of not availing the opportunity of filing written statement, producing the relevant document as such before the learned Tribunal and as per the proposition laid down by the Division Bench of this Court in Moslem Mondal (supra) petitioner is debarred from producing any document in the subsequent stage. The whole submission of the petitioner is unfounded and cannot be entertained, for which the appellate court also refused to interfere in the order of the learned Single Judge as well as the ex parte order of the learned Tribunal. (14) The fact that the document filed was not considered was not the sole ground in dismissing the appeal by the Division Bench. Similarly the learned Single Judge also dismissed the writ petition not solely on the ground of not having documents but on certain other parametres which were discussed above. (15) The Court has inherent power of review and in fact every court has plenary power to prevent miscarriage of justice or to correct the grave and palpable errors committed by it by way of review petition. However, the condition precedent before invoking the review provision is that it must be shown that because of the judgment there is either miscarriage of justice or there is a grave and apparent error on the face of the record. Without invoking the condition precedent there cannot be an exercise of the power of review. However, the condition precedent before invoking the review provision is that it must be shown that because of the judgment there is either miscarriage of justice or there is a grave and apparent error on the face of the record. Without invoking the condition precedent there cannot be an exercise of the power of review. Such power may be exercised on discovery of new, important matter or evidence which after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, but the review court cannot act as an appellate court. Mere possibility of two views is not the ground for review. Similarly in review petition the reassessing of evidence without pointing out any defects in the order of the appellate court cannot be made. The scope of review is limited only to the errors apparent on the face of the record. The error must be such as would apparent on mere looking on record without requiring any long-drawn process of reasoning. The redressal of the entire evidence on record for finding the error would amount to exercising the appellate jurisdiction which is not permissible. Only where there is glaring error apparent on the face of the record the court can exercise the power of review. It cannot convert itself to an appellate court in order to find out errors by delving deep into the entire records. (16) In the instant case the petitioner has in the guise of review assailed all the grounds that were urged before the appellate court. The palpable error is committed by the petitioner herself, she has not produced the relevant document before the learned Tribunal despite giving 2 years’ time. The writ court as well as the appellate court did rightly not entertain such document. The more horrible aspect of the matter is that the petitioner is now trying to clarify the said document(school certificate) by producing more documents from the school authority trying to explain the date of admission of the petitioner in the school, whereas the said document itself is bereft of proper seal and signature of the authority concerned. The petitioner is not at all legally permissible to raise such issue before the either forum as mentioned above. Hence the review of the order dated 25.8.2015 is not at all maintainable. The petitioner is not at all legally permissible to raise such issue before the either forum as mentioned above. Hence the review of the order dated 25.8.2015 is not at all maintainable. (17) In view of the findings and discussions above we are of the considered view that the review petition has no merit and hence it is dismissed.