Page No.# 1/17 GAHC010103912024 2025:GAU-AS:11038-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2071/2025 ASIA KHATUN AND ANR W/O ABDUL AZIZ ABDUL AZIT 2: ABDUL AZIT @ ABDUL AZIZ S/O LATE ABDUL RASHID BOTH ARE R/O WARD NO. 12 HEDAYET NAGAR NAGAON TOWN P.S. AND DIST. NAGAON ASSAM VERSUS UNION OF INDIA AND 6 ORS REPRESENTED BY THE SECY. TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, TILAK MARG, NEW DELHI 1 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI 6 3:THE SUPERINTENDENT OF POLICE NAGAON P.O. P.S. AND DIST. NAGAON ASSAM PIN 782001 Page No.# 2/17 4:THE OFFICER IN CHARGE P.O. AND DIST. NAGAON ASSAM PIN 782001 5:NURUL HUDA CHOUDHURY ADVOCATE NAGAON BAR ASSOCIATION P.O. AND DIST. NAGAON ASSAM Advocate for the Petitioner : MR. A R SIKDAR, MR. S I TALUKDAR Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T Linked Case : ASIA KHATUN AND ANR VERSUS UNION OF INDIA AND 6 ORS ------------ Advocate for : MR. A R SIKDAR Advocate for : appearing for UNION OF INDIA AND 6 ORS Page No.# 3/17 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 13.08.2025 (K.R. Surana, J) Heard Mr. A.R. Sikdar, learned counsel for the applicant. Also heard Ms. M. Das, learned counsel appearing on behalf of Mr. S.K. Medhi, learned CGC, representing respondent no.1; Ms. A. Verma, learned standing counsel for the FT and Border matters, representing respondent nos. 2 to 4. 2. It may be mentioned that notice has not yet been issued upon the respondents including respondent no. 5. 3. This interlocutory application is in connection with the connected and unnumbered review application under section 114 read with Order XLVII, Rule 1 of the Civil Procedure Code is filed for review of the order dated 25.07.2017, passed by the Division Bench of this Court in W.A. No. 265/2010. Brief facts leading to the connected review petition: 4. The background facts of the case is that four proceedings were taken up together by the learned Member, Foreigners Tribunal, Nagaon, being, (i) FT Case No. 109/2007- State v. Musstt. Asia Begum, (ii) FT Case No. 110/2007- State v. Md. Abdul Aziz, (iii) FT Case No. 111/2007- State v. Md. Abdul Hashim, (iv) FT Case No. 112/2007- State v. Musstt. Ambia Khatoon. On receipt of reference from the jurisdictional Superintendent of Police (Border), the said four cases were registered before the learned Foreigners Tribunal, Nagaon. 5. Out of these four cases, the learned Tribunal had held that the Page No.# 4/17 proceedee in FT Case No. 111/2007, namely, Md. Abdul Hashim, and the proceedee of FT Case No. 112/2007, namely, Musstt. Ambia Khatoon, were not foreigners. However, in respect of the applicants, the proceedees in F.T. Case No. 109/2007 and F.T. Case No. 110/2007, were declared as foreigner from Bangladesh of post 25.03.1971 stream. 6. The said common opinion passed in F.T. Case No. 109/2007 and F.T. Case No. 110/2007, were unsuccessfully challenged by the applicants by filing a writ petition, which had been registered and numbered as W.P.(C) 3369/2010. The learned Single Judge had dismissed the said writ petition by order dated 02.07.2010 after an elaborate discussion on pleadings, evidence and law involved. The said judgment by the learned Single Judge was unsuccessfully assailed before the Division Bench in an intra-Court appeal, which was registered and numbered as W.A. 265/2010 and dismissed by order dated 25.07.2017 upon an elaborate discussion on the points urged before the Division Bench. Delay in presentation of the unnumbered review petition: 7. The connected review petition to assail the order dated 25.07.2017, passed by the Division Bench of this Court in W.A. 265/2010, was filed on 22.05.2024, however, with certain defects. The report of the Stamp Reporter’s was made on 20.06.2025, which appeared from the Filing Stamp of the Filing Section of the Registry. Therefore, by an order dated 14.07.2025, a report from the Filing Section was called for. Accordingly, the Administrative Officer (J), Filing Section, vide Report dated 18.07.2025, had stated that the matter was filed on 24.05.2024. While reporting on 24.05.2024, some defects were found and the file was sent to the Defective Cell on the same day to be sent to the learned counsel for necessary rectification. The files were returned Page No.# 5/17 only on 06.06.2025, i.e. after more than one year. On verification, some defects which were pointed out earlier were not rectified. So, the file was again given to the learned counsel for the applicants for further rectification. The rectified file was returned on 18.06.2025. Accordingly, the matter was reported on 20.06.2025. The said report has been vouched to be correct by the Registrar (Judicial), who, vide report dated 19.07.2025, has stated that it is apparent that the delay in the final reporting was due to the non-returning of the file after making necessary rectifications by the learned counsel for the applicants. 8. In this Court, there are many instances of defective filing being made and therefore, the Court is of the opinion that this issue of defective filing requires to be taken up on the administrative side so that appropriate steps can be taken to add the number of days of delay in making rectifications for calculating the delay, if any in filing of any matter before this Court, where limitation is required to be considered. 9. Be that as it may, apart from the delay of 392 days in curing the defects, there is also a delay of 2828 days (i.e. 2858-30=2828) days in presenting the review petition against the order dated 25.07.2017, passed in W.A. 265/2010. 10. The issue of delay shall be considered at a later stage of this order. Submissions of the learned counsel for the petitioner: 11. It has been submitted that on 08.12.2021, the applicants had filed a review petition against the said order dated 25.07.2017, but the same was allowed to be withdrawn with liberty to approach again vide order dated 16.05.2024, as there were some formal defects. Moreover, it was submitted that Page No.# 6/17 the further delay of 392 days in curing the defect was a mistake on part of the counsel, for which the applicants should not suffer. 12. It was submitted that the notice issued to the applicants by the learned Tribunal were defective. It was submitted that in the notice issued to the applicant no. 2, namely, Abdul Azit @ Abdul Aziz, he was referred to as the son of Md. Abdul Ali, but he not the son of Md. Abdul Ali, but he is the son of Abdul Rashid. It was submitted in the notice that was issued to the applicant’s brother, namely, Md. Abdul Hashim, where he was referred to as the son of late Abdul Roshid, though Abdul Rashid is alive. Accordingly, it was submitted that the inquiry by the police was perfunctorily conducted. 13. It was submitted that the applicants had engaged respondent no.5, a learned counsel to conduct the case, but he had not conducted the case properly. It is alleged that the learned counsel for the applicants did not file evidence-on-affidavit of the applicants despite being provided with all necessary instructions. It is also alleged that the said learned counsel had misguided the applicant no. 2 herein to sign as Abdul Aziz, although he used to write his name as Abdul Azit. 14. It was submitted that on the same set of evidence, the learned Tribunal, by a common opinion dated 09.04.2010, declared the brother of the applicant no. 2 and his wife to be the citizens of India, but the applicants, who hail from the same family were declared as foreigners of post 25.03.1971 stream. 15. By referring to the statements made in paragraph 20 of the unnumbered review petition, it was submitted that the Court had taken a wrong view of Ext.E, which cannot be an evidence under Section 25 and 26 of the Page No.# 7/17 Evidence Act, 1872. It was also submitted that the Court had incorrectly rejected the documentary evidence on the ground that the documents were not produced as per provision of the Evidence Act and in the said context, it was submitted that the State did not raise any objection when the said documents were exhibited. It was also submitted that Ext.1 to Ext.4 and Ext.7 were public documents and were not required to be proved, but the learned Single Judge had negated the said exhibited documents with a biased view, which was upheld by the Division Bench. 16. It was submitted that the applicants have several other documents, which would prove that they are Indian citizens. 17. By referring to the statements made in paragraph 23 and 24 of the unnumbered review petition, about 12 (twelve) mistakes committed by the Court in appreciating evidence were highlighted. It was submitted that the petitioners were illiterate persons and if they have committed mistake in relying on birth certificate dated 05.01.2005 (Ext. 8), the same may be expunged and excluded from consideration. Accordingly, it was submitted that the applicants may be given one more chance to adduce fresh evidence. 18. In support of his submissions, the learned counsel for the applicants has cited the case of M. Ramappa & Anr. V. M. Bojappa & Anr., AIR 1963 SC 1633, wherein it has been held that certified copy of public document is admissible in evidence. By citing the case of Majibar Miya v. Union of India & Ors., W.P.(C) 871/2019, decided by this Court on 13.02.2019, it was submitted that the certified copy of chitha, jamabandi and voter list are public document and not required to be proved by calling official witnesses. By citing the case of Idris Ali v. Union of India & Ors., WP(C) 4116/2019, decided by this Court on 27.02.2020, it was held that strict rules of evidence are not applicable in a Page No.# 8/17 Tribunal and nothing is required to be proved beyond reasonable doubt. By citing the case of Sirajul Hoque v. State of Assam & Ors., (2019) 5 SCC 534 and Haider Ali v. Union of India, 2021 (3) GLT 85, it was submitted that rulings and provisions of CPC are not applicable in proceeding before a Tribunal and for minor discrepancy in the name and shifting of place of residence, cannot take away citizenship of a person. 19. Painstakingly, the learned counsel for the applicants has referred to the entries and contents of all the exhibited documents and difference in the names of persons in the voters lists were also pointed out. 20. The learned counsel for the applicants has made submissions on all the grounds on which the unnumbered review petition is presented so as to convince the Court that the delay may be condoned. The grounds of review are extracted below:- I. For that grave injustice has been caused in passing erroneous order dated 25.07.2017 passed in WA No. 265/2010 dismissing the same. II. For that there are apparent errors in passing the order dated 25.07.2017 in WA No. 265/2010 on the face of the record. III. For that relying upon the report of police regarding alleged statement/ confession of the applicant No. 2 whole evidence both documentary or oral have been discarded. Such statement/ confession before police are not valid evidence u/s 25 & 26 of the Evidence Act., 1872. This point has not been considered and is a serious apparent legal error and wrongly discarded pleaded case and documentary evidence. IV. For that strict Rule of evidence has been applied in the given Page No.# 9/17 case which is not permissible in the case of Tribunal. V. For that minor discrepancies of the name, age are picked up which is not permissible in the light of Sirajul Hoque –Vs- State of Assam reported as 2019 (5) SCC 534 and in that case of Haider Ali-Vs- Union of India & Ors., reported as 2021 (3) GLT 85, this Hon’ble Court held that minor inconsistency is to be ignored. VI. For that the petitioners claimed their parents are voters since 1965 & onwards and as they are citizen of India by birth. Such claim of the petitioners are neither denied by denial cross examination nor the state could led any rebuttal evidence. As such the views taken are violation of principles of preponderance of probabilities as held in paragraph 122.1/ 122.2 of the Moslem Mondal (supra) case. Moreover, the petitioner No. 2 himself is a voter in 1971 voter list vide Annexure No. 10. Considering this document the review may be allowed. VII. For that the impugned orders have been passed jurisdiction. The legal and factual errors are apparent on the face of the records. Such errors are palpable, manifestly committed with patent mistake in passing the impugned orders. 21. In the context of explaining the delay and laches in filing this review petition, it was stated that after dismissal of the writ appeal, the applicants were taken into custody. They were released after detention of 2 (two) years. It has been submitted that due to lockdown period, the applicants could not take appropriate steps and some delay was caused during the Covid- 19 pandemic period. It is submitted that Review Pet. No. 112/2022, was filed by the petitioner on 08.12.2021. However, as the review petition was filed without the signature of the advocate in the certificate, which was a formal defect, the Page No.# 10/17 said review petition was allowed to be withdrawn vide order dated 16.05.2024, by also granting liberty to the petitioner to file a fresh review petition. Accordingly, it is submitted that the delay for the period from 08.12.2021, till the earlier review petition was withdrawn on 16.05.2024 is liable to be condoned as a time spent on a bona fide proceedings. Submissions by the learned standing counsel for respondent nos. 2 to 4: 22. Per contra, the learned standing counsel for the respondent nos. 1 to 4 has made their submissions to oppose the prayer for condoning the delay and for entertaining of the unnumbered review petition. Discussion and decision: 23. Perused this application and the unnumbered review petition consisting of 29 pages. Also considered the submissions on behalf of both sides and also considered the case laws cited by the learned counsel for both sides. 24. It is seen that four proceedings were taken up analogously by the learned Member, Foreigners Tribunal, Nagaon. The proceedings are (i) FT Case No. 109/2007- State v. Musstt. Asia Begum, (ii) FT Case No. 110/2007- State v. Md. Abdul Aziz, (iii) FT Case No. 111/2007- State v. Md. Abdul Hashim, (iv) FT Case No. 112/2007- State v. Musstt. Ambia Khatoon. All the said cases were registered on receipt of the reference from the jurisdictional Superintendent of Police (Border), Nagaon. The applicants had filed one common and joint written statement for all the said proceedings. The applicants had cited 8 (eight) witnesses, but in the unnumbered review petition, the petitioner has annexed deposition of 7 witnesses, being OPW-1 and OPW-3 to OPW-8 and 9 (nine) documents were exhibited. As per the documents annexed, the OPWs examined by the applicants are: Abdul Aziz (OPW-1); Md. Ali (OPW- Page No.# 11/17 3); Abdul Sattar (OPW-4); Makbul Hussain (OPW-5); Abdul Mazid (OPW-6); Nur Mahmad (OPW-7); and Danesha Khatoon (OPW-8). 25. The applicants had exhibited the following documents, viz., (i) NRC of 1951 (Ext.1); (ii) summons of GR Case No. 778/65 (Ext.2); (iii) document dated 17.12.1965 (Ext.3); (iv) voter list of 1971 (Ext.4); (v) certificate given in favour of Abdul Hashem by OPW-5 as Ward Commissioner (Ext.5); (vi) certificate given in favour of Abdul Azit by OPW-5 as Ward Commissioner (Ext.6); (vii) voter list of 1965 (Ext.7); (viii) birth certificate dated 05.01.2005, showing date of birth of Abdul Aziz as 02.05.1957 (Ext.8); and (ix) certificate given in plain paper certifying that Ambia Khatun is the daughter of Ah. Kadir and her marriage with Ah. Hasen (Ext.9) and her grandfather’s name appeared in voter list of 1970. 26. It is observed that in this case the Tribunal had examined Chandi Nath, Sub Inspector of Police (Border) as CW-1. As per his evidence, vide Ext.A, Ext.B, Ext.C and Ext.D, he had investigated about the suspect Abdul Aziz. He had exhibited the statement of Abdul Aziz (Ext.E) and Abdul Hashim (Ext.F). 27. In his submissions, the learned counsel for the applicants is seen to have been agitating all the points which had already been taken up by the applicants and most of it are seen to have been urged before the learned Single Judge in connection with W.P.(C) 3369/2010 and before the Division Bench of this Court in connection with intra-court appeal, being W.A. 265/2010. Thus, it appears that the learned counsel for the applicants is proposing a re-hearing of the writ petition and writ appeal in guise of the unnumbered review petition. 28. In his submissions which went on for more than an hour, the learned counsel for the applicants has not demonstrated even one instance of Page No.# 12/17 the impugned orders passed in the writ petition or in the writ appeal being vitiated by error apparent on the face of the record. The learned counsel for the applicants has not been able to show even one instance where the orders passed in the writ petition or in the writ appeal is vitiated owing to misconception of fact or law. 29. The submissions of the learned counsel for the applicants by and large accuses this Court of a biased approach and mistakes that has allegedly been committed by the learned Single Judge and by the Division Bench of this Court while deciding the writ petition and writ appeal. It is trite law that on both the counts, interference in a review proceedings is uncalled for. 30. None of the cases cited by the learned counsel for the applicant are authorities on the proposition that in guise of review, the writ petition and writ appeal can be re-heard by examining afresh the merit of the impugned opinion dated 09.04.2010, passed by the learned Member, Foreigners Tribunal, Nagaon. 31. In the case of Beghar Foundation v. Justice K.S. Puttuswamy, 2021 STPL 1373 SC, the Supreme Court of India had held to the effect that change in the law or subsequent decision/judgment of a coordinate or larger Bench, by itself, cannot be regarded as a ground for review. 32. One of the submissions by the learned counsel for the applicants is that the applicants have more documents which can prove their Indian citizenship. Thus, the applicants are making an attempt to raise entirely a new issue in the guise of the unnumbered review petition. In this regard, it may be mentioned that the Supreme Court of India, in the case of Nehali Panjiyara v. Shyama Devi, (2002) 10 SCC 578, has held to the effect that interference in Page No.# 13/17 review proceedings on the totally new point was not proper. 33. Thus, from the nature of submissions made by the learned counsel for the applicants, in guise of review, his endeavour is only to show how erroneous were the judgment passed by the learned Single Judge and the Division Bench. In the said context, it may be mentioned that it is a well settled legal position that an erroneous judgment and order is not to be confused with judgment or order that is vitiated by error apparent on the face of the record. An otherwise erroneous judgment or order can only be corrected in appeal. In the case of Hage Gumto & Ors. v. Ninya Bagra & Ors., (2010) 1 GLR 174, the Division Bench of this Court has held that the power of review is not to be confused with the appellate power. Review petition has a limited purpose and cannot be permitted to act as an appeal in disguise. We are in respectful agreement with the said well settled legal position. 34. The delay and laches in filing this review petition is not properly found explained, specifically regarding delay of more than one year in rectifying the mistakes. However, as the learned counsel for the applicants has submitted that citizenship is a precious right, on such distinguishing factor and without intending to make the exercise done by this Court is a precedent, the matter has been examined on merit, which is not found. 35. One factor which the learned counsel for the applicants had urged is that while two members of a family were held to be not foreigners, the applicants were held to be foreigners. This, is quite possible. For example, there are four persons in the family and they surreptitiously enter into India in three different period of time; viz., between 15.08.1947 to 31.12.1965; between 01.01.1966 and 24.03.1971; and after 25.03.1971. Under the provisions of the Citizenship Act, 1955, the cases of all three sets of persons have to be Page No.# 14/17 separately considered. Therefore, one entering into India (Assam) from the specified territory after 25.03.1971, cannot claim right similar to the ones in his/her family, who had entered into India (Assam) during preceding period of between 15.08.1947 to 31.12.1965 and/or between 01.01.1966 and 24.03.1971. In the said context, the learned counsel for the applicants had cited the case of Sirajul Haque (supra). It would be appropriate to quote paragraph 3 of the said case, which is extracted below:- “3. We have heard learned counsel for both sides extensively and have gone through the documents produced by the appellant ourselves. On a perusal of the same, we find that a number of documents have been relied upon by the appellant starting with a voters’ list of his grandfather Kematullah in village Sotobashjani. There is no doubt that the great grandfather’s name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father’s name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note is that his father’s name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voters lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Election Commission of India and identity cards issued to his brother including voters lists in which the appellant’s name appears.” Practice of impleading of advocates in writ petitions filed to assail opinion of the Foreigners Tribunal: 36. In so far as impleading of conducting counsel as one of the party respondents, the same is deprecated because the applicants have not shown that they have made any complaint against their learned counsel before the appropriate statutory authority competent to examine the same. Page No.# 15/17 37. The High Court, in exercise of writ jurisdiction under Article 226 of the Constitution of India, cannot embark upon any enquiry against a learned counsel for professional misconduct, if there be any. 38. Therefore, the plea against the learned counsel of having not conducted a case properly, in a given case, may be a case of collusive litigation, where the counsel would come and admit his mistake or in a given case, on receipt of notice, the learned counsel does not appear and a view may be taken by the Court regarding deemed admission of guilt by the counsel, and then the applicants would get a fresh opportunity to cover up the lapses that had occurred in conducting the case, which ought not to be permitted. If such a plea is accepted, it would lead to prolonging of litigations by filing review on ground of wrong conducting of case whenever an issue is decided in favour of a litigating party. 39. In this case, the learned counsel for the review petitioner had submitted that the learned counsel engaged by the applicants did not file evidence-on-affidavit despite being provided with instructions. 40. The documents annexed to the writ petition reveals that the OPW-1 was examined on 10.06.2008 and the OPW-6 was examined by the applicants on 10.09.2008. The matter was heard on 09.02.2010. Therefore, through the applicants had got sufficient time, but they did not make any endeavour to approach the learned Foreigners Tribunal and make a prayer to accept the evidence-on-affidavit of their witnesses. 41. Thus, it cannot be ruled out that the applicants remained nonchalant for 21 (twenty one) months from the commencement of examination of OPW-1 and did not file their evidence-on-affidavit. Accordingly, Page No.# 16/17 in the considered opinion of the Court, it would be another thing to implead conducting counsel as respondents in writ petitions challenging opinion by the Foreigners Tribunals if the competent statutory authority gives a finding of commission of professional misconduct by an engaged counsel for a party. 42. Accordingly, the Court is inclined to pass the following– O R D E R 43. Therefore, in light of the discussions above, on all counts, the prayer for condonation of delay fails and the same is dismissed without issuing notice on the respondents. 44. Under the circumstances of the case, the parties to bear their own cost. 45. Before parting with the record, regarding the issue of delay of more than one year by the learned counsel for the applicants to rectify the mistakes pointed out by the Filing Section of the Registry, the Court is of the considered opinion that this issue be taken up by the Registry on the administrative side and to explore the possibility of calculating the number of days of delay in rectification, requiring separate explanation by way of another interlocutory application for such further delay. 46. The Registry shall transmit a copy of this order to the Foreigners Tribunal, Nagaon, for making it a part of the record of the following cases: a. FT Case No. 109/2007- State v. Musstt. Asia Begum. b. FT Case No. 110/2007- State v. Md. Abdul Aziz. c. FT Case No. 111/2007- State v. Md. Abdul Hashim. d. FT Case No. 112/2007- State v. Musstt. Ambia Khatoon. 47. In view of the dismissal of this interlocutory application, the Page No.# 17/17 unnumbered Review Petition No. 5832/2024 [Filing Number] is also dismissed without issuing notice on the respondents. JUDGE JUDGE Comparing Assistant