Gauhati High Court
Page No.# 1/13 vs The Union Of India And 5 Ors on 7 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010058072021
2026:GAU-AS:3401-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./54/2021
HAREJ ALI @ HARAJ ALI @ HAREJ
S/O- LATE BASIR ALI @ MD. BASER ALI @ BASIR, R/O- VILL.- BORAJAL,
P.S. GHOGRAPAR, DIST.- NALBARI, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
TO BE REP. BY THE SECRETARY, GOVT. OF INDIA, DEPARTMENT OF HOME
AFFAIRS, NEW DELHI, INDIA.
2:THE STATE OF ASSAM
TO BE REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI-6.
3:THE SUPERINTENDENT OF POLICE (B)
CITY
GUWAHATI
KAMRUP(METRO)
ASSAM
GUWAHATI-1.
4:THE DEPUTY COMMISSIONER
KAMRUP(M)
DIST.- KAMRUP(M)
ASSAM
GUWAHATI-1.
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI-01.
Page No.# 2/13
6:THE NRC CO-ORDINATOR
NATIONAL REGISTER OF CITIZEN (NRC)
BHANGAGARH
GUWAHATI-05
Advocate for the Petitioner : MR. A R SIKDAR, MR. S I TALUKDAR,MD A ALI,MS S
PARVEEN,MR A RASHID
Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, F.T,SC, NRC
BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA
HON’BLE MRS. SHAMIMA JAHAN
For the petitioner : Mr. A.R. Sikdar, Advocate
For the Union of India : Mr. M.R. Adhikari, CGC
For ECI : Mr. A.I. Ali, standing counsel
For FT and NRC : Mr. G. Sharma, standing counsel
For the State : Mr. H.K. Hazarika, Junior Govt. Advocate
Date on which judgment is reserved : 11.12.2025
Date of pronouncement of judgment : 07.03.2026
Whether the pronouncement is of
the operative part of the judgment? : N/A
Whether the full judgment has been
Pronounced : YES
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr.
M.R. Adhikari, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI;
Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr.
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H.K. Hazarika, learned Junior Govt. Advocate for respondent.
2. This review petition has been filed to assail the order dated
15.11.2019, passed by this Court in WP(C) 4759/2019. By the said order, this
Court had dismissed the writ petition and thereby refused to interfere with the
opinion dated 31.05.2019, passed by the learned Member, Foreigners Tribunal
Kamrup (M) 2nd, in F.T. Case No. 1552/2015, by which the petitioner was
declared to be a foreigner of post 25.03.1971 stream.
3. The learned counsel for the petitioner has submitted that in
the proceedings before the learned Foreigners Tribunal, the petitioner had
exhibited 9 (nine) documents, viz., voters list of 1965 (Ext.A), voters list of
1966 (Ext. B), voters list of 1970 (Ext. C), voters list of 1993 (Ext. D), voters
list of 1997 (Ext. E), voters list of 2014 (Ext. F), school certificate dated
11.06.2012 (Ext. G), socio-economic and caste census-2011
acknowledgement slip of Basir Ali (Ext. H), Gaonburah’s certificate dated
25.01.2019 (Ext.I). It is submitted that the name of the petitioner is Harej Ali
who is a daily wage earner and he had stated that his father name is Late
Basir Ali. However, the learned Tribunal on finding some discrepancy in the
age and spelling of the name of persons whose names appear in the voters
lists, held that from the voters’ lists of 1965, 1966 and 1970, it cannot be
ascertained that person named as Basir Ali is the same person named as Basir
projected father of Harej Ali/ Haraj Ali, the voter in the voters lists of 1993,
1997 and 2014 and therefore, rejected the entire evidence in the absence of
continuous existence in Indian soil.
4. It has been submitted that even in the notice of the
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proceedings, which was served on the petitioner, the name of the father of
the petitioner is recorded as Md. Basir Ali. Moreover, it is submitted that the
evidence tendered by the petitioner claiming that the name of his father is
Basir Ali @ Md. Basir Ali @ Basir and that the mother’s name is Moymon
Khatun was not even questioned in his cross-examination and there was no
rebuttal evidence of the State. It is submitted that it is an admitted position in
the judgment of this Court in the case of Md. Anuwar Hussain v. Union of
India and Ors., AIR 2015 NOC 77 (Gau) , it has been held to the effect that “…
it is common phenomenon in rural areas more particularly among Muslim
community to have more than one name and this discrepancy in the name of
petitioner’s father was not too great to draw adverse inference .” In this regard
the learned counsel for the petitioner has also relied on the decision of the
Supreme Court of India in the case in the case of Sirajul Hoque v. State of
Assam & Ors., (2019) 5 SCC 534.
5. It has been further submitted that the investigation which
was done by the Enquiry Officer was not a fair investigation and similarly, the
trial of the petitioner was also not fair. In this regard he has placed reliance in
the paragraph no. 97 and 98 of the Full Bench decision of this Court in State
of Assam v. Moslem Mondal, 2013 (1) GLT 809.
6. It is further submitted that under Article 221 of the
Constitution of India, there is a Constitutional right of the petitioner to protect
his life and personal liberty and that the same has been lost due to unfair
investigation and trial. The learned counsel for the petitioner has submitted
that at the time when the writ petition was filed and being heard, the
petitioner, by filing an additional affidavit had brought on record his family
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tree which disclosed the name of the petitioner and his siblings, which has
been submitted in the updation of the National Register of Citizens (NRC for
short). However, owing to certain lapses in the pleadings like none disclosure
of the name of mother of the petitioner, lack of reasons explaining the name
of mother of the petitioner in the exhibited voter’s list, this Court had drawn
an adverse inference against the petitioner. In this regard, it is submitted that
this was a case of poor drafting of the written statement by the learned
counsel engaged by the petitioner in course of the proceedings before the
Foreigners Tribunal.
7. It is submitted that there is no settle law which prescribes the
manner in which the written statement has to be drafted and filed and there
is no requirement in law to disclose every details in the written statement.
Referring to the observations made by the Supreme Court of India in
paragraph 26 of the case of Sarbananda Sonowal v. Union of India, (2005) 5
SCC 665, which is reiterated in paragraph 62 of the case of Sarbananda
Sonowal v. Union of India & Ors., (2007) 1 SCC 174 , it has been submitted
that the petitioner was only required to show the proof of her citizenship.
Accordingly, it has been submitted that the statement made by the petitioner
made before the Foreigners Tribunal, disclosing that his mother name is
Moymon Khatun was a sufficient evidence of the existence of the mother of
the petitioner, which was not rebutted by the State. It is submitted that during
the course of proceedings before the learned Foreigners Tribunal, the
petitioner had exhibited voter’s list of 1993, which contains only the name of
Harej Ali, son of Basir. However, when the writ petition was filed, the
petitioner obtained another certified copy of voters list of 1993, which
contains the name of Basir Ali son of Kandu, male, 60 years; Moymon Khatun,
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wife of Basir, female. 55 years; and Harej Ali, son of Basir, male, 86 years. It is
submitted that however, this Court did not take into consideration the link
which the petitioner had established with his parents through the said voters
list of 1993.
8. It is further submitted that the allegation against the
petitioner was that she had entered into the State of Assam after 25.03.1971.
Therefore, it has been submitted that as the petitioner had disclosed reliable
evidence regarding existence of the name of father of the petitioner by
producing the voters list of 1965, 1966 and 1970, the petitioner was of the
view that production of certified copies of subsequent voters list of 2016 was
not necessary. It is submitted that petitioner had exhibited sufficient
documents to prove his citizenship of India, but due to procedural lapses on
the part of the petitioner, which is curable in nature, the Tribunal held that the
petitioner had failed to establish his genuine claim as an Indian Citizen.
Hence, it is submitted that this Court in exercise of review jurisdiction would
modify the impugned order dated 15.11.2019, passed in the writ petition and
remand the matter back to the learned Tribunal for a fresh opinion. Similarly,
it is submitted that if the matter is remanded the petitioner would be in a
position to show the family tree so as to establish linkage with his parents and
to produce copies of voter’s list containing the names of members of the
family so as to buttress the claim as a citizen of India.
9. It has been submitted that in the case of Idrish Ali v. Union of
India & Ors., WP(C) 4116/2019, decided on 27.01.2019 , this Court had held
that strict rules of evidence is not applicable in case of the Tribunal. Moreover,
it was also submitted that in the case of Abdul Kuddus v. Union of India &
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Ors., (2019) 6 SCC 604, the Supreme Court of India had held that the orders
passed by the learned Foreigners Tribunal is amenable to review. Thus,
submitted that owing to the subsequent developments and because of the
additional documents, which are now in possession of the petitioner, the
petitioner is required to be given a fair chance of proving her citizenship and
to dispel the allegation that she is not an Indian but a foreigner.
10. Per contra, the learned standing counsel for the FT and Border
matters has submitted that the learned counsel for the petitioner, instead of
showing that the order of this Court that is impugned in this review petition,
suffers from any error apparent on the face of record, he has conducted an
re-hearing of the entire matter. It is submitted that none of the documents
which are now being produced in this review petition by the petitioner can be
said to be discovery of new materials. Rather, it is submitted that the in the
guise of review, the petitioner has filed additional documents to cover up the
lapses that had occurred in tendering evidence before the learned Foreigners
Tribunal. Accordingly, it was submitted that the case of the petitioner does not
meet the essential requirements in law so as to entertain this review petition
which is belatedly filed on 18.03.2021 to assail the order dated 15.11.2019.
11. In support of his submissions, the learned counsel for the FT
and Border matters has cited the case of Board of Control for Cricket in India
v. Netaji Cricket Club, (2005) 4 SCC 741, and case of Kamalesh Verma Vs.
Mayawati and Ors., (2013) 8 SCC 320, both on the exercise of review
jurisdiction. He has also cited the case of Ajij Miah v. Union of India & Ors.,
(2023) 4 GLT 246, and Rofiqul v. Union of India & Ors., (2025) SCC OnLine SC
1160, to show that draft NRC would not override the decision of the
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Foreigners Tribunal, declaring a person to be an illegal migrant.
12. Examined the materials available on record and also
considered the submissions made by the learned counsel for the petitioner
and also carefully considered the cases cited at the Bar.
13. As stated hereinbefore, the petitioner had exhibited only 9
(nine) documents. It is noted that the school certificate dated 11.06.2012
(Ext. G), issued by the Headmaster of No. 2 Borajol L.P. School was not
proved by not examining the author who has issued the said certificate.
Similarly, the concerned Gaonburah, who had issued the certificate dated
25.01.2019 (Ext.I), was also not examined before the learned Tribunal. The
learned counsel for the petitioner has not been able to satisfy that how an
acknowledgement slip issued in respect of socio-economic and caste census,
2011 (Ext.H), issued on 11.03.2012, by the enumerator, can be said to be a
proof of correctness of the entries made in the application form because the
said acknowledgement slip (Ext.H) only contains the name of Basir Ali as the
head of the household without disclosure of any other names or other
relevant particulars of the persons in the household. Moreover, the author of
the said Ext. H was also summoned and examined as witness.
14. The voters list of 1965 (Ext.A) contains the name of Basir Ali,
son of Kanu Sheikh and Moymon Khatun, wife of Basir. The voters list of 1966
(Ext.B) and voter’s list 1970 (Ext.C) contains a single entry of Basir Ali, son of
Kanu Sheikh; the voters list of 1993 (Ext.D) contains a single entry of Harej
Ali, son of Basir, male, 26 years; and voter’s list of 1997 (Ext.E) contains the
name of Harej Ali, son of Basir, male, 27 years and voter’s list of 2014 (Ext.F)
contains the name of Harej Ali, son of Basir, male, 44 years. Thus, there is no
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trace of the projected father of the petitioner in any of the voter’s list after
1970, though it has been projected that the petitioner’s father is stated to
have died about 3 (three) years prior to the date of petitioner’s cross-
examination on 15.05.2019, i.e., his approximate year of death would be
2016. There is no trace of projected mother of the petitioner after 1965.
Moreover, before the learned Foreigners Tribunal, the petitioner had not
disclosed about his entire projected family. There was no reason for the
petitioner to not disclose about her paternal family, her siblings, and about her
own family. Such a disclosure was very relevant because in her cross-
examination, the petitioner had stated that she had 10 (ten) siblings, with 3
(three) brothers and 7 (seven) sisters. Strangely, the name of none of the
petitioner’s siblings or the name of her projected mother had appeared in any
voters list after 1965. Therefore, even on examination of all the materials that
are available in the Tribunal’s records, it cannot be said that the petitioner has
been able to prove her link with her projected parents so as to show their
continuous stay in the Country from prior to 01.01.1966 as well prior to the
cut-off date of 25.03.1971.
15. The learned counsel for the petitioner has placed heavy
reliance on paragraph 28 of the case of Abdul Kuddus (supra), which ex facie
appears to be misconceived because it is not the case of the petitioner that
she had disclosed the name of any of her close relatives in her written
statement and such person has either been adjudged to be not a foreigner, or
such person, after family tree hearing on NRC, has been included as Indian.
Rather, as per the decision of the Supreme Court of India in paragraph 28 of
the case of Rofiqul Hoque (supra), it has been held to the effect that inclusion
of the name of the appellant in the draft NRC would have no bearing on the
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order passed by the learned Foreigners Tribunal, as affirmed by the High
Court, declaring the appellant to be a foreigner. Moreover, having considered
paragraph 28 of the case of Abdul Kuddus (supra), this Court cannot remain
oblivious of the observation made by the Supreme Court of India that some or
one member of the near family members may have migrated into India prior
to midnight of 25.4.03.1971 and therefore, fall within a different category. In
this case, the mother of the petitioner gave birth to 10 children, but their
existence is not shown by the petitioner in any of the voters list after 1966
and moreover, the existence of the names of none of the siblings of the
petitioner has been proved in any of the documents exhibited by the
petitioner.
16. It may be stated that in paragraph 18 of the case of Kamalesh
Verma (supra), the Supreme Court of India has held that review is not
rehearing of the original matter and that the power of review is not to be
confused with appellate power which enables the superior court to correct all
errors committed by a subordinate court. In this case the learned counsel for
the petitioner has repeated the old and rejected argument. Review would not
lie if error apparent on the face of record is to be found out after a lengthy
and detailed re-hearing, as has been done in this case. Despite lengthy and
strenuous submissions, the learned counsel for the petitioner has failed to
show any error apparent on the face of the impugned judgment and order. No
effort has been made by the learned counsel for the petitioner to show that
the material error, which is ex facie apparent on the face of the order,
undermines its soundness and that if the erroneous decision, on account of
material error apparent, is allowed to remain, would result in miscarriage of
justice.
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17. The learned counsel for the petitioner has failed to appreciate
that while dealing with the challenge to the opinion expressed by the
Foreigners Tribunals, this Court while exercising power under Article 226 of
the Constitution of India, is exercising certiorari jurisdiction. In paragraph 63
and 64 of the case of Central Council for Research in Ayurvedic Sciences &
Anr. v. Bikartan Das, (2023) 16 SCC 462 , has held to the effect that certiorari
shall issue to correct errors of jurisdiction, that is to say, absence, excess or
failure to exercise and also when in the exercise of undoubted jurisdiction,
there has been illegality and certiorari shall also issue to correct an error in
the decision or determination itself, if it is an error manifest in the proceedings
and it was further held that by exercise of certiorari jurisdiction, only a patent
error can be corrected but not a mere wring decision, but a finding of fact,
based on ‘no evidence’ or purely on surmises and conjectures or which are
perverse, could be challenged by way of certiorari. None of the submissions
made by the learned counsel for the petitioner could bring home the point
that the opinion passed by the learned Foreigners Tribunal was vitiated by any
error apparent on the face of the record. The nature of submissions made by
the learned counsel for the petitioner also establishes that no ground for
review has been made out, if the error apparent has to be found out after
elaborate submissions have been made by the learned counsel for the
petitioner. Therefore, the reliance of the learned counsel for the petitioner on
paragraph 92 of the case of Board of Control for Cricket in India & Anr.
(supra) does appear not help the petitioner in any manner.
18. It is trite that review petition can only be entertained on the
broad parameters which have been laid down under the provisions of Section
114 read with Order 47, Rule 1 of the Civil Procedure Code i.e., only when
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some new and important material has been discovered, which after the
exercise of due diligence was not within his knowledge or could not be
produced when the opinion was passed by the learned Foreigners Tribunal. A
review can also be entertained on account of some mistake, which is mistake
or error apparent on the face of record. In this case there is no document can
be said to be not in the knowledge of the petitioner. It cannot be accepted
that the petitioner was not aware of the names and other particulars of her
mother, her siblings, the name and other particulars of the siblings of her
father and/or name and other particulars of her cousins, if any. Hence, the
production of additional documents in the writ petition by way of additional
affidavit and moreover, the annexing of further documents in this review
petition can only be seen as an attempt by the petitioner to overcome the
lacuna which has remained in course of trial and/or in presenting her
evidence. Nonetheless, as the issue of citizenship is involved, the Court has
perused all the documents, but despite careful examination of the documents,
there appears to be no error apparent on the face of record, so as to warrant
re-hearing of the matter on merit.
19. Accordingly, in light of the discussions above, the Court is
inclined to hold that no part of the order dated 15.11.2019, passed by this
Court in W.P.(C) 4759/2019, is found to be vitiated by any error apparent on
the face of record. The said order is not found to be vitiated by non-
consideration of any important piece of pleadings or evidence. The impugned
order is not found to be vitiated for taking into consideration any extraneous
materials which did not form a part of the record.
20. The Court is further inclined to hold that in the guise of review,
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the learned counsel for the petitioner has conducted a re-hearing of the writ
petition, which is impermissible in law as a review jurisdiction cannot be
equated to an appellate or revisional jurisdiction where all errors can be
corrected.
21. Resultantly, this review petition fails on all counts and the
same is dismissed.
22. There shall be no order as to cost.
23. The consequences of the opinion dated 31.05.2019, passed by
the learned Member, Foreigners Tribunal Kamrup (M) 2nd, in F.T. Case No.
1552/2015, shall follow.
24. The learned standing counsel for the FT and Border matters
shall transmit a downloaded copy of this order to the Home and Political (B)
Department, to bring the order to the notice of the concerned authorities.
JUDGE JUDGE.
Comparing Assistant
PRATIK Digitally signed
by PRATIK GUPTA
GUPTA Date: 2026.03.07
14:56:21 +05'30'
