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2020 DIGILAW 214 (GAU)

Md. Misher Ali @ Meser Ali v. Union Of India

2020-02-17

MANOJIT BHUYAN, SOUMITRA SAIKIA

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JUDGMENT Manojit Bhuyan, J. - Heard Mr. M.A. Islam, learned counsel for the review petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. A. Kalita, learned counsel represents respondent nos. 2, 3, 4, 5, 6 and 7; Ms. B. Das, learned counsel represents respondent no.8 and Ms. U. Das, learned counsel for respondent no.4. 2. Petitioner seeks review of the order dated 06.12.2019 dismissing the writ petition i.e. WP(C) 6462/2019 wherein challenge was made to the opinion dated 22.03.2018 of the Foreigners Tribunal, Jorhat in Case No.F.T./SVR/310/2010. The present review petition is laid on the following grounds : I. For that in view of the apparent perversity and error on the face of the record, the impugned order dated 06.12.2019 passed in WP(C) No. 6462/2019 is liable to be reviewed and modified. II. For that the Hon'ble High Court while placing reliance on the mode of service of the notice by hanging in terms of the provisions of para 3(5)(f) of the Foreigners Tribunal Order, 1964 failed to take into consideration report of the process server which clearly stated that the process server while went for serving the notice upon the petitioner (proceedee) at the rented house, it was reported by the landlord that the petitioner had left the place. In spite of that, the Ld. Foreigners Tribunal did not issue any notice upon the petitioner at his permanent address which was available in the Reference as reflected in the impugned order of the Foreigners Tribunal dated 22.03.2018. Therefore, the expression 'place of residence or place of work' appearing in para 3(5)(f) the Foreigners Tribunal Order, 1964 does not mean a place of residence or work for a few days but it should be understood to mean that the person resides for some long duration with animus. In the instant case, the petitioner who belonged to the South Salmara Mankachar district of Assam, went to the Sivasagar district for working as a daily labour and stayed there for about one month or less, cannot be said to be a resident of the said place for serving the notice. Hence, the illiterate petitioner also cannot be expected to report to the investigating authorities about change of his residence unless he was actually aware of the Reference made by the police authorities. Hence, the illiterate petitioner also cannot be expected to report to the investigating authorities about change of his residence unless he was actually aware of the Reference made by the police authorities. As such, the impugned order dated 06.12.2019 passed in WP(C) No. 6462/2019 is liable to be reviewed and modified. III. For that para 3(5)(h) of the Foreigners Tribunal Order, 1964 also deals with the modes of service of notice upon a proceedee which stipulates that if the proceedee resides outside the jurisdiction of the Foreigners Tribunal, the notice shall be sent for service to the officer- in-charge of the police station within whose jurisdiction of the proceedee resides. That apart, Paras 3(5)(i) and (j) of the Foreigners Tribunal Order, 1964 also deal with a situation where a person if not available for service of notice, the Foreigners Tribunal can issue direction to the competent authority for tracing out the proceedee for production before the said Tribunal. But, in the present case, the proceedee who left the rent house at Haluating, Sivasagar much before issuance of the notice by the Foreigners Tribunal as reported by process server, the service of the notice by hanging at the abandoned address cannot be presumed to be a valid service. On the other hand, the Ld. Foreigners Tribunal could have issued the notice to the petitioner at his permanent residential address at Baliabil village under the Mankachar Police Station of the South Salmara Mankachara district of Assam but the same was not done and without doing so and ensuring proper service of the notice, proceeding ex-parte against the petitioner and passing the impugned ex-parte order declaring the petitioner a foreigner of post 1971 is completely violation of the principles of natural justice and fair-play. IV. For that a proceeding before the Foreigners Tribunal is in substance a civil proceeding and apart from the mode of service of notice as stipulated in Para 3 of the Foreigners Tribunal Order, 1964, the other modes of service of notice as stipulated in Order 5 of the CPC can also be resorted to against a proceedee. But the substituted mode of service by hanging in an abandoned place cannot amount to be a valid service of notice without actually bringing to the knowledge of the noticee. But the substituted mode of service by hanging in an abandoned place cannot amount to be a valid service of notice without actually bringing to the knowledge of the noticee. V. For that the petitioner who is a bonafide Indian citizen having all the documents to prove the same since the Pre-Republic of India, cannot be denied of his citizen without due process of law. The ex-parte proceeding drawn against the petitioner without ensuring valid service of the notice, cannot be termed a valid legal procedure and as such the impugned order dated 06.12.2019 passed by the Hon'ble Gauhati High Court in WP(C) No. 6462/2019 need to be reviewed and modified by interfering with the ex-parte of the Foreigners Tribunal dated 22.03.2018 and giving an opportunity to the petitioner to contest the case on merits. VI. For that in view of the matter, the impugned order dated 06.12.2019 in WP(C) No. 6462/2019 passed by the Hon'ble Gauhati High Court is liable to be reviewed and modified. 3. We have given due consideration to the submissions and the primary ground urged in the present petition. We have also gone through the order of this Court under review as well as the legal parameters within which review power can be exercised. In this regard, we would observe that application for review of judgment under Article 226 must be in the spirit of Order 47 of the Code of Civil Procedure. The scope of review is limited to discovery of new and important matter or evidence which, after the 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 on the face of the record or for any other sufficient reason. A review cannot partake the character of an appeal for re-hearing and correcting a judgment. The fact that a decision is erroneous on merit is no ground for review under the review jurisdiction. It is not permissible for this Court to consider an entirely new substratum of issues, as urged in this petition. The power of review would be available only within the parameters prescribed under Order 47 of the Code of Civil Procedure. The fact that a decision is erroneous on merit is no ground for review under the review jurisdiction. It is not permissible for this Court to consider an entirely new substratum of issues, as urged in this petition. The power of review would be available only within the parameters prescribed under Order 47 of the Code of Civil Procedure. On a plea taken that the decision is erroneous on merit due to wrong interpretation of law or because of illegal and erroneous finding, whether on fact or in law, cannot be a ground for review. What may constitute an error apparent on the face of the record would be if a judgment of the Court has been rendered in ignorance of a binding decision of the Supreme Court. Further, the error must be such as would be apparent on mere perusal of the record without requiring any long drawn process of reasoning, inasmuch as, the re-appraisal of the entire evidence on record for finding the error would amount to exercising appellate jurisdiction, which is not permissible. 4. In the instant case the grounds assigned for causing review of the judgment and order are tangentially different from the recognized parameters of review. This Court is called upon to re- appraise and re-appreciate the issues which have already been answered in the judgment and order. There is no discovery of new and important matter or that the order of this Court warrants a re-look on account of some mistake or error apparent on the face of the record or for any other sufficient reason. 5. We, therefore, find no merit in the present review petition. Accordingly, the same stands dismissed, however, without any order as to cost.