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2022 DIGILAW 424 (GAU)

Kodvanu v. Union of India

2022-04-26

N.KOTISWAR SINGH, SANJAY KUMAR MEDHI

body2022
JUDGMENT : Sanjay Kumar Medhi, J. 1. The present application has been filed for review of the judgment and order dated 30.07.2019 passed by this Court in WP (C) No. 7814/2016. 2. The writ petition was filed assailing an order dated 03.12.2016 passed by the learned Foreigner's Tribunal (2nd) Bongaigaon in BNGN/FT Case No. 30/2011. Vide the impugned opinion dated 03.12.2016, the petitioner was declared to be foreigner of post 1971 stream. 3. Before the learned Tribunal, the petitioner had produced the following documents: (1) Annual Patta of 1933 (Exhibit-I) (2) Annual Patta of 1955 (Exhibit-II) (3) Voter List of 1966 (Exhibit-III) (4) Voter List of 1970 (Exhibit-IV) (5) Voter List of 1985 (Exhibit-V) (6) Voter ID of Brother (Exhibit-VI) (7) Certificate by GP Secretary (Exhibit-VII) (8) Voter List of 1989 (Exhibit-VIII) (9) Voter List of 1997 (Exhibit-IX) (10) Voter ID of OP (petitioner) (Exhibit-X) (11) Order dated 13.02.2012 in favor of OP (petitioner's) niece (Exhibit-XI) (12) Affidavit (Exhibit-XII) (13) Gift Deed (Exhibit-XIII) 4. The learned Tribunal after considering the facts and circumstances came to a finding that the petitioner was unable to discharge her burden under Section 9 of the Foreigner's Act and accordingly, the reference was answered by holding the petitioner to be a foreigner who has entered Assam post March, 1971 and consequently, orders have been passed. Accordingly, the opinion was rendered on 03.12.2016, which was the subject matter of challenge in the writ petition. 5. This Court after hearing the parties had passed an order dated 30.07.2019 whereby the impugned opinion dated 03.12.2016 was considered in details. This Court came to a finding that not a single document could be produced to conclusively prove the case of the petitioner. This Court had noticed that the petitioner has projected one Taleb Ali as her elder brother, whose name had appeared in the Voter List of 1966 and the said Taleb Ali was introduced as a witness (DW-2). In the proceeding, a Gift Deed (Ext.-XIII) by said Taleb Ali in favour of the petitioner was brought on record to prove the connection. However, this Court has noticed an intriguing fact that the Deed (Ext. XIII) was executed on 20.10.2016 i.e. after the deposition of the said DW-2, which was on 14.09.2016. In the proceeding, a Gift Deed (Ext.-XIII) by said Taleb Ali in favour of the petitioner was brought on record to prove the connection. However, this Court has noticed an intriguing fact that the Deed (Ext. XIII) was executed on 20.10.2016 i.e. after the deposition of the said DW-2, which was on 14.09.2016. Even with regard to the deposition of DW-2, though it was pleaded that he was the brother of the petitioner, the same was not proved in accordance with law. It may be mentioned that the materials fact pleaded in the written statement is required to be proved in accordance with law which was not done in the instant case. It is also a fact that though the petitioner claimed to have elder brothers, none of them had come forward to depose. 6. This Court had further observed that exercise of the Certiorari jurisdiction would not empower the Court to act as a supervising one or an appellate one but it is a jurisdiction to be exercised to examine the decision making process and in the present case, this Court had come to a conclusion that the finding arrived at by the learned Tribunal are findings of fact based upon materials on record and unless such findings are perverse, a writ Court would be loathe in interfering with such finding. 7. The writ petition was accordingly dismissed, vide an order dated 30.07.2019. 8. We have heard Ms. R. Choudhury, learned counsel for the review petitioner. We have also heard Ms. L. Devi, learned counsel appearing on behalf of Shri R.K. Dev Choudhury, learned Assistant Solicitor General of India, for the respondent No. 1; Shri J. Payeng, learned special counsel, FT, appearing for respondent Nos. 2 and 4 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No. 3. 9. Ms. Choudhury, the learned counsel for the petitioner submits that the opinion dated 03.12.2016 passed by the learned FT declaring the petitioner to be an illegal migrant is erroneous as the documents pertaining to her citizenship was ignored/overlooked. It is further submitted that the said error committed by the learned FT was failed to be appreciated by this Court leading to dismissal of the writ petition vide the impugned order dated 30.07.2019 leading to filing of the present application for review. 10. It is further submitted that the said error committed by the learned FT was failed to be appreciated by this Court leading to dismissal of the writ petition vide the impugned order dated 30.07.2019 leading to filing of the present application for review. 10. On the other hand, Shri J. Payeng, learned Standing Counsel, FT submits that the present petition is for review and unless the petitioner is able to make out a ground for review, the same is not maintainable. The other counsel for the respondents submit that the present exercise is an afterthought as no error, apparent on the face of it has been committed by this Court. 11. This Court has noticed that in support of the prayer for review of the judgment dated 30.07.2019, only two substantial grounds have been pleaded. The first ground is with regard to the Gift Deed (Exhibit XIII) and Gaon Panchayat Certificate (Exhibit VII) which were held to be in sufficient to prove her linkage. The second ground is the omission on the part of the applicant to adduce further evidence through her other brothers other than DW-2. 12. At this stage, this Court is reminded of the settled position of law that to maintain a review petition, the conditions precedent have to be there i.e. error apparent on the face of the records, discovery of new facts which were not within the knowledge of the review applicant and would have a material bearing in the adjudication and thirdly for any other sufficient reasons. 13. In the instant case, neither of the two grounds can be deemed to be grounds for review and would fulfill the conditions for preferring a review. It appears that the review petition has been structured and presented as if it is an appeal against the order dated 30.07.2019 and to say the least, no grounds of appeal are also discernible. This Court finds force in the contention of Shri Payeng, learned Standing Counsel, FT that a review petition cannot be equated with the original writ petition as in a review petition, the grounds are circumscribed and limited. 14. This Court finds force in the contention of Shri Payeng, learned Standing Counsel, FT that a review petition cannot be equated with the original writ petition as in a review petition, the grounds are circumscribed and limited. 14. In the instant case, we are of the opinion that in the findings reached by this Court as recorded in the order dated 30.07.2019, no error apparent on the face of the records are seen in the judgment and the same has been passed by taking into consideration all the relevant materials. It is an established law that the correctness of an order cannot be tested in a review petition for which the appellate forum is available. It is further laid down that a judgment may be erroneous but that by itself would not make it fit for review and unless the error is apparent on the face of the records. In the course of hearing, nothing could be shown on behalf of the petitioner that the judgment was palpably erroneous on the face of the records. 15. This Court has also taken into consideration that fraudulent means was taken recourse to before a judicial forum which would otherwise disentitle a litigant from any equitable relief. There was no explanation from the side of the petitioner regarding the alleged Gift Deed by the DW-2 (brother) exempted only on 20.10.2016 which was much after the said DW-2 had deposed before the learned Tribunal on 14.09.2016. 16. In the instant case, there was no document to substantiate the claim of the petitioner regarding her citizenship and the only connection sought to be made was the alleged Gift Deed which was apparently executed by the said DW-2 after his deposition. None of the Electoral Roll of the relevant period contained the name of the petitioner, which could act as a link with her alleged parents. 17. In that view of the matter, we are of the considered opinion that no grounds, whatsoever have been able to be made out warranting review of the findings arrived at by this Court in its order dated 30.07.2019. 18. The review petition is accordingly dismissed. 19. No order, as to cost.