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2020 DIGILAW 106 (GAU)

Ram Biswas v. Union Of India

2020-01-31

MANISH CHOUDHURY, MANOJIT BHUYAN

body2020
JUDGMENT Manish Choudhury, J. - Heard Mr. P.C. Dey, learned counsel for the review petitioner. Also heard Ms. G. Hazarika, learned counsel representing respondent no. 1 and Mr. A. Kalita, learned counsel representing respondent nos. 2, 3 and 4. 2. The petitioner seeks review of the order dated 25.04.2019 passed in the writ petition, W.P.(C) No. 2790/2017 whereby challenge made to the order/opinion dated 21.11.2016 passed by the Foreigners Tribunal, (2 nd ), Nagaon in F.T. Case No. 415/2011 was rejected. 3. The review of the order dated 25.04.2019 is sought for by stating that in the written statement filed before the Foreigners Tribunal as well as in the writ petition, it was specifically stated that the petitioners father, 'Late Guru Dayal Biswas' came to India/Assam in the year 1963 from East Pakistan due to civil disturbance which took place there and fear of religious persecution and his father had settled at Village - Sutipara and his name was recorded in the voter lists of 1965, 1970, 1997, etc. As such, he being the son of 'Late Guru Dayal Biswas', is entitled to the protection under the provision of Order 3A of the Foreigners Order, 1948, as amended in 2015 w.e.f. 08.09.2015. Having regard to the above, the petitioner seeks review on the primary ground that while passing the order dated 25.04.2019, this Court did not take into consideration that aspect of the matter. The said ground of challenge is reproduced hereunder for ready reference : 'I. For that as the petitioner clearly stated in his written statement in paragraph 1 as well as in the writ petition at paragraphs 2 and 14 that his father Guru Dayal Biswas (since deceased) came to Assam/India from east Pakistan due to civil disturbance and fear of religious persecution and took shelter permanently at Shorsebari under Samaguri P.S. and the petitioner was also born and brought up at the said village and residing thereon, he is protected under the provision of Order 3A of the Foreigners Order 1948 as amended up to date, which is a statutory provision, but neither the F.T. No. 2, Nagaon, nor by this Honble Court has considered the aforesaid statutory provisions and as such the impugned order dated 25/4/2019 passed by this Honble Court is liable to be reviewed for the interest of Justice.' 4. In order to appreciate the merit of such contention, it may be stated that the petitioner as the proceedee before the learned Tribunal had exhibited the voter list of 1965 (Ext.-1), the voter list of 1970 (Ext.-2) and the voter list of 1997 (Ext.-3) in order to establish his linkage with his projected father, Guru Dayal Biswas. This Court considered the aforesaid documentary evidence in the context of the linkage sought to be established by the petitioner and had observed as under : 'In the voter list of 1965 (Ext.-1), the name of one Gurucharan, son of Gourhari, age - 60 years was found enrolled. In the voter list of 1970 (Ext.-2), the name of one Gurucharan, son of Bijay, age - 65 years was found enlisted. When the voter list of 1997 (Ext.-3) is perused, the names of (i) Sri Gurudayal Biswas, son of Gobardhan, age - 67 years; (ii) Smti. Sandhya Biswas, wife of Gurudayal, age - 35 years; (iii) Sri Ram Biswas (the petitioner), son of Gurudayal, age - 26 years; & (iv) Sri Lakhan Biswas, son of Gurudayal, age - 21 years were found enlisted. The petitioner had sought to clarify the discrepancies found in respect of the names of his projected father as 'Gurucharan' & 'Gurudayal Biswas' and his projected grandfather as 'Gourhari', 'Bijay' & 'Gabardhan' in Ext-1, Ext-2 & Ext-3 by submitting an affidavit sworn by him which he exhibited as Ext.-4. It is a settled legal proposition that an affidavit is not 'evidence' within the meaning of Section 3 of the Evidence Act, 1872. Affidavits are not included within the purview of the definition of 'evidence'. It is held in Ayaaubkhan Noorkhan Pathan vs. State of Maharasthra and others, (2013) 4 SCC 465 , that the filing of an affidavit of ones own statement, in ones 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. That apart, even if we ignore the discrepancies in those names, Ext.-1 & Ext.-2 vis--vis Ext.-3 do not go to support the story projected by the petitioner. In Ext.-1 the age of 'Gurucharan' was 60 years in the year 1965 and in Ext.-2, the age of 'Gurucharan' was 65 years in 1970. That apart, even if we ignore the discrepancies in those names, Ext.-1 & Ext.-2 vis--vis Ext.-3 do not go to support the story projected by the petitioner. In Ext.-1 the age of 'Gurucharan' was 60 years in the year 1965 and in Ext.-2, the age of 'Gurucharan' was 65 years in 1970. In such situation, the age of 'Gurudayal Biswas' @ 'Gurucharan' in the year 1997 should have been 97 years but in Ext.-3 i.e. the voter lists of 1997, the age of 'Gurudayal Biswas' was recorded as 67 years. On the basis of the materials on record, it is not possible to accept that 'Gurucharan' appearing in the voter list of 1965 (Ext.-1) and in the voter list of 1970 (Ext.-2) and 'Gurudayai Biswas' appearing in the voter list of 1997 (Ext.-3) as one and the same person. Similarly, it is not possible to accept that 'Gourhari' appearing in the voter list of 1965 (Ext.-1), 'Bijay' appearing in the voter list of 1970 (Ext.-2) and 'Gabardhan' appearing in the voter list of 1997 (Ext.- 3) are one and the same person. Furthermore, the ages of the projected mother, Smti Sandhya Biswas and the petitioner in Ext.-3 i.e. the voter lists of 1997, were mentioned as 35 years and 26 years respectively, meaning thereby, the difference in ages between the projected mother, Smti. Sandhya Biswas and the petitioner was only 9 years. 7. In the writ petition, it is contended that subsequent to the passing of the order/opinion dated 21.11.2016, the petitioner approached the Tribunal by filing a review petition under Order 3A (2) of the Foreigners Tribunal Orders, 1964 read with Section 151 C.P.C. along with an application for condonation of delay in filing the review petition. It is further contended that the Tribunal did not accept and entertain the review petition. When the records of the Tribunal is seen, there is nothing on record to show that such review petition and application for condonation of delay were received by the Tribunal. The petitioner has failed to produce anything to substantiate the fact that such a review petition and application for condonation of delay were filed before the Tribunal. Therefore, there is no requirement for further consideration on that aspect.' 5. Having noticed the ground seeking review vis--vis the findings of this Court, we would first observe as to the parameters available for seeking review. Therefore, there is no requirement for further consideration on that aspect.' 5. Having noticed the ground seeking review vis--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. 6. The grounds 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 had 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 25.04.2019. 7. We, therefore, find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.