Gauhati High Court
Abdul Salam vs The Union Of India And 3 Ors on 23 February, 2021
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GAHC010044862020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1505/2020
ABDUL SALAM
S/O- LT. SEKENDAR ALI, R/O- VILL. MAHMARA RESERVE, P.S.
LAHORIGHAT, DIST. MORIGAON, ASSAM.
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, JAISALMER HOUSE, 26, MANSINGH ROAD, NEW DELHI- 110011.
2:THE STATE OF ASSAM
REP. BY ITS SECY.
DEPTT. OF HOME
DISPUR, GHY.- 06.
3:THE SUPDT. OF POLICE (B)
MORIGAON, DIST.- MORIGAON
ASSAM, PIN- 782105.
4:THE ELECTION OFFICER
MORIGAON, DIST.- MORIGAON
ASSAM, PIN- 782105
Advocate for the Petitioner : MR. B C DAS
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Date : 23-02-2021
For the Appellant : Mr. U. Dutta, Adv.
For the Respondent(s) : Ms. L. Devi, SC, NRC
: Ms. B. Das, SC, ECI
: Ms. J. Sarma, CGC
: Mr. G. Sarma, SC, FT
Date of Hearing
& : 23.02.2021
Date of Judgment
JUDGMENT & ORDER (ORAL)
(N. Kotiswar Singh, J)
Heard Mr. U. Dutta, learned counsel for the petitioner. Also heard Ms. L.
Devi, learned Standing counsel for the NRC as well as Ms. J. Sarma, learned
Central Government Counsel, Ms. B. Das, learned Standing counsel for the
Election Commission of India and Mr. G. Sarma, learned Standing counsel for
the Foreigners Tribunal.
2. The present writ petition has been filed, being aggrieved by the Opinion
dated 24.05.2018 expressed by the Foreigners Tribunal No. 2, Morigaon, Assam
in Case No. F.T.(C) No 09/16 arising out of Police Reference I.M.(D).T. Case No.
563/2003 dated 18.07.2003 declaring the petitioner to be a foreigner of post
25.03.1971 stream, and thereby directing the authorities to delete the name of
the petitioner from the voters list, and also subsequent order dated 20.09.2019
passed by the same Tribunal dismissing the petition seeking review of the earlier
opinion dated 24.05.2018 based on certain corrected voters lists and land
documents.
3. Without going much into the detail facts of the case, it would suffice to
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mention herein only few of the relevant facts. A proceeding was initiated in
terms of a reference made by the Superintendent of Police (B), Morigaon
mentioned above, to the learned Chairman, Illegal Migrant (Determination)
Tribunal, Nagaon against the petitioner, Md. Abdul Salam S/o- Late Sekendar Ali,
village- Mahmara Reserve, P.S. Lahorighat, District- Morigaon, Assam,
suspecting him to be a foreigner who entered India (Assam) after 25.03.1971.
Subsequently, the said reference was transferred to the Foreigners Tribunal No.
2, Morigaon, Assam in Case No. F.T.(C) No 09/16.
4. The petitioner being duly notified, appeared before the Tribunal and
submitted his written statement along with the relevant documents. The
petitioner, along with other documents, filed certified copies of the voters lists of
1966 and 1970. In the voters list of 1966, the name of the petitioner's
grandfather was recorded as "Abbas Ali, S/o Babujan" and his age was shown to
be 45 years and the father of the petitioner was shown as "Sekendar Ali, S/o
Abbas Ali" and his age was shown to be 50 years. Similarly, in the voters list of
1970, the name of the petitioner's grandfather "Abbas Ali S/o Babujan", was
again shown as 50 years of age and the name of his father "Sekendar Ali, S/o
Abbas Ali" was shown to be 55 years old.
5. The petitioner unwittingly without verifying the correctness of the age
entered in the certified copies of these voters lists of 1966 and 1970 filed these
and other documents and exhibited the same. Unfortunately, when the matter
was considered by the Tribunal, the Tribunal opined that the grandfather's age
was 45 (forty five) in the 1966 voters list and the father's age was 50 (fifty).
Similarly, the grandfather's age was recorded as 50 (fifty) in the 1970 voters list
and the age of the petitioner's father was recorded as 55 (fifty five) years. Thus,
the father was shown to be 5 (five) years older than his grandfather. Therefore,
the learned Tribunal disbelieved these documents as unreliable and
untrustworthy as can be seen from the Opinion dated 24.05.2018. The relevant
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portions of the opinion of the learned Tribunal reads as follows:-
"The Ext. "A" and Ext. "B" are the voter lists of 1966 and 1970
respectively and the proceedee claim that the name at Sl. No. 332
Sekendar Ali age 50 (fifty) years in his father and the name
Sekendar Ali at Sl. No. 332 aged about 55(fifty five) years in the
voter list of 1970 is also his father. On scrutiny of the voter lists of
1966 and 1970 it is found that in the voter list of 1966 the name
of one Abbash Ali age 45 (forty five) years has been recorded at
Sl. No. 330 and in the voter list of 1970 also the name Abbash Ali
age 50 (fifty) years has been recorded at Sl. No. 330 of the voter
list. The proceedee neither in his W/S nor in his evidence has
explained his relationship with Abbash Ali and the relationship of
Abbash Ali with Sekendar Ali whom he claims to be his father. On
questions put by the Court, the proceedee stated that Abbash Ali
is his grandfather. On scrutiny of the documents Ext. "A" and
Ext. "B" it is found that the age of Abbash Ali in 1966 has been
recorded as 45 (forty five) years and age of Sekendar Ali whom
proceedee claims to be his father in the voter list of 1966 has
been recorded as 50 (fifty) years. Similarly, in the voter list of
1970 the age of Abbash Ali has been recorded as 50 (fifty) years
and the age of Sekendar Ali has been recorded as 55 (fifty five)
years. The age of grandfather can never be less than the father.
As such in no way it can be believed that the voter list of 1966
and 1970 are that of the proceedee's father. Moreover, the
proceedee has not produced any land document or any other
tenancy document to show that his father had landed property
and resided in the House No. 64 recorded in the voter list of 1966
and 1970 at the time of house to house enumeration which was
carried out before recording names in the voter lists. The
proceedee has also not produced original Electoral Roll to prove
the contents of the documents and has not examined the official
who had issued the certified copy. Apparently it appears that the
documents Ext. "A" and Ext. "B" are picked up documents
standing in the name of Sekendar Ali whose name resembles the
name of the father of the proceedee and the contents of the
documents have not been proved from the original Electoral Roll.
In view of the Judgment and Order dated 05.04.2018 passed by
the Division bench of the Hon'ble Gauhati High Court in WP(C) No.
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3728/2016 (Nasir Uddin Vs. Union of India and Ors.) the
documents cannot be accepted as reliable and trustworthy
documents. The documents Exts. "D", "E", "F" and "G" are the
voter lists of 1997, 2005, 2010 and 2014 which the proceedee
claims to be his own voter lists. But the documents are of post
1971 period and merely recording of name in the voter list by
itself is not a conclusive proof of citizenship. As such the
documents cannot be accepted in support of the proceedee's
claim of Indian Citizenship".
6. Thus, the aforesaid voters lists of 1966 and 1970 which were exhibited as
Ext. "A' and "B" before the Tribunal were not accepted as reliable and
trustworthy but manufactured documents. There could perhaps, be no
disagreement with such conclusion arrived at, based on the entry of the age of
the father and the petitioner's grandfather in the aforesaid voters lists of 1966
and 1970. The matter stood as such till the petitioner was informed of the
defects in the voters lists and obtained copies of the same and sought review of
the opinion of the Tribunal.
7. According to the petitioner, pursuant to the aforesaid opinion rendered by
the Tribunal, he was kept in detention. He, however, subsequently came to
know from his co-villagers that there had been some mistakes while issuing
certified copies of the voters lists of 1966 and 1970 as mentioned in his review
application filed before the Tribunal. On obtaining the certified copies of the
correct voters lists of 1966 and 1970, the petitioner approached the Tribunal
seeking review of the opinion which was based on the incorrect certified copies
of the voters lists submitted earlier by the petitioner, which however, was
rejected on the ground that the Tribunal does not have the power to entertain
any application for review after a lapse of 30 (thirty) days.
8. It has been submitted by the petitioner that after coming to know that
the certified copies of the voters lists of 1966 and 1970 submitted before the
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Tribunal earlier were not correct, one of his brothers, namely, Md. Jalal Uddin
went to the Office of the Election Officer, Morigaon, and with the help of the
officials inspected the voters list of 1970 but he was unable to trace out the
voters list of 1966 immediately. Upon inspection of the voters list of 1970, it was
found that the age of the grandfather of the petitioner was reflected as 80
(eighty) years. Accordingly, he applied for a certified copy of the voters list of
1970 which was delivered to him on 20.05.2019. Later on, he could inspect the
voters list of 1966 and upon inspection, it was found that the age of the
grandfather of the petitioner was reflected as 75 (seventy five) years in the said
voters list and, accordingly, applied for a certified copy of the same. On
obtaining the certified copies of the voters lists of 1966 and 1970 as mentioned
above, the petitioner found that in the corrected voters list of 1966, the age of
the petitioner's grandfather, "Abbas Ali, S/o- Babujan" was reflected as 75
(seventy five) years and that of his father, "Sekendar Ali, S/o- Abbas Ali" as 50
(fifty) years, thus showing a difference of 25 years between them. Similarly, in
the corrected certified copy of the voters list of 1970, the age of the grandfather
of the petitioner, "Abbas Ali" was shown to be 80 (eighty) years and the
petitioner's father was shown to be 55 (fifty five) years, thus corresponding to
their age shown in the voters list of 1966 thereby, showing correctly the age of
the petitioner's father as well as grandfather in the two voters lists.
9. It has also been submitted that his grandfather as well as his father
during their lifetime owned and possessed landed properties at villages -
Mohmara and Nagabandha. It has submitted that the father of the applicant
during his lifetime sold the aforesaid lands to others. After receiving notice from
the Foreigners Tribunal, he tried to trace out the details of these lands with the
intention to collect the certified copies of the Jamabandi to submit before the
Ld. Tribunal in support of his claim that he is an Indian. However, despite his
best efforts, he was not able to trace out the details of the aforesaid lands and
thus could not collect the certified copies of the Jamabandi of the aforesaid
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lands. It was only after petitioner was kept in the detention camp, other family
members again tried to trace out the details of the lands sold. After vigorous
search they were able to trace out the land details and thereafter, applied for
the certified copies of the Jamabandi in respect of land of Patta No. 17 (New)
and Patta No. 57 (New) of village - Mohmara. The concerned office on
application issued the certified copies of the Jamabandi of the aforesaid pattas
on 18.05.2019 and 28.05.2019.
10. Accordingly, equipped with the correct certified copies of the voter lists of
1966 and 1970 and of the Jamabandi, the petitioner approached the Foreigners
Tribunal (2nd), Morigaon, Assam by filing a review petition, which was registered
as Review Petition No. 04/2019 for reviewing the Opinion dated 24.05.2018
passed by the Tribunal in F.T.(C) Case No. 09/2016. However, the learned
Tribunal rejected the same vide order dated 20.09.2019 holding that though
Order 3A(2), and 3C(2) of the Foreigners (Tribunals) Order, 1964 after
amendment, permit review of the decision of Foreigners Tribunal within a period
of 30 (thirty) days, the Tribunal cannot review its opinion after 30 (thirty) days,
as the Tribunal does not have the power to condone any delay beyond the
prescribed period of 30 (thirty) days within which the Tribunal can review its
order.
11. Being aggrieved, the petitioner has approached this Court by filing the
present writ petition.
12. We, are thus, in this proceeding primarily concerned with the correctness
or otherwise of the view of the Tribunal that the Tribunal has no power to
review its own order after expiry of 30 (thirty) days and whether there is any
remedy available, if there is no such power of review by the Tribunal after thirty
days.
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13. It is not in dispute that there is no Appellate Forum available to challenge
the order or opinion of the Foreigners Tribunal. It has been reiterated by the
Hon'ble Supreme Court in Abdul Kuddus -Vs- Union of India and Ors.
reported in (2019) 6 SCC 604, that this Court in exercise of the power of
Judicial Review under Article 226 of the Constitution of India can examine the
legality of the opinion of the Tribunal. Such examination, ordinarily, can be done
by issuing a writ of certiorari.
It is now well settled that a writ of certiorari will lie if certain relevant
factors/materials have not been considered, or if the consideration is based on
certain irrelevant materials. Though in the present case, apparently no fault can
be found with the learned Tribunal in rendering its opinion based on certain
certified copies of voters lists submitted by the petitioner, the contention of the
petitioner is that the opinion rendered by the Tribunal on 24.05.2018 was based
on certain erroneous certified copies of the voters lists of 1966 and 1970
supplied by the State authorities. If that is so, the opinion rendered by the
learned Tribunal based on erroneous evidence can certainly be interfered by this
Court in exercise of power under Article 226 of the Constitution of India.
However, since, these new documents are yet to be considered by the Tribunal,
it may not be appropriate for this Court at this first instance to consider the
same.
14. If the petitioner is able to show that the earlier voters lists of 1966 and
1970 were indeed incorrect and the voters lists sought to be submitted
subsequently were the correct ones, the Tribunal can certainly reconsider its
earlier the opinion. These certified copies of the voters lists of 1966 and 1970
sought to be relied upon now by the petitioner show that the grandfather's age
was more than the father's as mentioned above. The defective voters lists of
1966 and 1970 which were earlier submitted and relied upon by the petitioner
and considered by the Tribunal will now be replaced by the corrected voters lists
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of 1966 and 1970. In such an event, if these new certified copies of the voters
lists are proved, these cannot be brushed aside as not trustworthy or unreliable.
These documents certainly would have a bearing on the overall assessment of
the evidences on record and are very relevant evidences to the issue involved.
These, if proved, cannot be ignored by the Tribunal.
15. Thus, the problem before us is, how this Court, in exercise of the power
under Article 226, can direct the Tribunal to consider these new documents,
when it has been already decided by the Tribunal that it cannot look into the
same for the purpose of reviewing as the Tribunal cannot undertake any such
exercise of review beyond 30 (thirty) days of the passing of the opinion by the
Tribunal.
16. Order 3A(2) of the Foreigners (Tribunal) Order, 1964, provides for a
window of 30(thirty) days to apply for review of the opinion of the Tribunal by
the proceedee that he is not a foreigner.
In this regard it may be appropriate to reproduce the provisions of Order
3A as follows:
"3A. Procedure for setting aside ex parte order.
(1) Where the Foreigners Tribunal has passed an ex-parte order for
non-appearance of the proceedee and he or she has sufficient
cause for not appearing before the Foreigners Tribunal, it may on
the application of the proceedee, if filed within 30 days of the said
order, set aside its ex-parte order and decide that is accordingly.
(2) The proceedee may file an application to the Foreigners Tribunal
within thirty days to review the decision of the Foreigners Tribunal
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claiming that he is not a foreigner and the Foreigners Tribunal may
review its decision within thirty days of the receipt of such
application and decide the on merits.
(3) Subject to the provisions of this order, the Foreigners Tribunal
shall have the powers to regulate its own procedure for disposal of
the cases expeditiously in a time bound manner."
The Tribunal, relying on the decision of the Hon'ble Supreme Court in Om
Prakash -Vs- Ashwani Kumar Bassi reported in (2010) 9 SCC 183 and
other decisions rejected the application filed by the petitioner for review of the
opinion by considering the said new documents after 30 (thirty) days as time
barred.
17. This is how this matter has come up before us. We, are thus, called upon
to decide as to whether this Court can direct the Tribunal to entertain the plea
for review after thirty days.
18. Before we proceed, it may be noticed that there is no specific provision
for condoning the delay in approaching the Tribunal for review after 30 (thirty)
days. At the same time, there is also no provision specifically barring
entertaining any application after 30 (thirty) days. The rule is silent on this
aspect. Further, it may be noted that Order 3A(3) provides that subject to the
provisions of the order, the Foreigners Tribunal shall have the powers to regulate
its own procedure for disposal of the cases expeditiously in a time bound
manner.
19. This takes us to the scope of power of the High Court under Article 226
to which an application would lie against an opinion/order passed by the
Tribunal. As reiterated in Abdul Kuddus (supra) a person aggrieved by the
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opinion/order of the Tribunal can challenge the findings/opinion expressed by
way of a writ petition wherein the High Court would be entitled to examine the
issue with reference to the evidence and material in the exercise of its power of
judicial review premised on the principle of "error in the decision-making
process", etc. and this serves as a necessary check to correct and rectify an
"error" in the orders passed by the Tribunal.
The power of judicial review exercised by the High Court as well as scope
of writ of certiorari against the orders of inferior courts or tribunals are well
defined.
In Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675, the
Hon'ble Supreme Court held that
"10. Article 226 of the Constitution of India preserves to the High Court
the power to issue writ of certiorari amongst others. The principles on
which the writ of certiorari is issued are well settled. It would suffice for
our purpose to quote from the seven-Judge Bench decision of this Court
in Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1
SCR 1104] . The four propositions laid down therein were summarized by
the Constitution Bench in Custodian of Evacuee Property v. Khan Saheb
Abdul Shukoor [AIR 1961 SC 1087 : (1961) 3 SCR 855] as under: (AIR p.
1094, para 15)
".............................The limit of the jurisdiction of the High Court
in issuing writs of certiorari was considered by this Court in Hari
Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1 SCR
1104] and the following four propositions were laid down --
(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the court or tribunal acts
illegally in the exercise of its undoubted jurisdiction, as when it
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decides without giving an opportunity to the parties to be
heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One consequence of
this is that the court will not review findings of fact reached by
the inferior court or tribunal, even if they be erroneous;
(4) An error in the decision or determination itself may also be
amenable to a writ of certiorari if it is a manifest error
apparent on the face of the proceedings, e.g., when it is based
on clear ignorance or disregard of the provisions of law. In
other words, it is a patent error which can be corrected by
certiorari but not a mere wrong decision."
20. In the present case, it cannot be said that the Foreigners Tribunal in
declining to accept the application of the petitioner for review of its opinion after
30 days committed any legal "error", for it was merely following the law as
adumbrated in Om Prakash (supra) that provisions of Limitation Act, 1963
does not apply to statutorily created bodies other than "courts". But the fact
also remains that the petitioner cannot be faulted with for not submitting the
correct voters lists of 1966 and 1970 during the proceeding before the Tribunal
as the petitioner was provided with defective voters lists of 1966 and 1970 by
the State authorities. These defective documents were not created by the
petitioner. These were official documents which were provided by the State
authorities to the petitioner. If the State authorities were maintaining and
providing defective voters lists, certainly the fault primarily lies with the
authorities and the petitioner cannot be put to a disadvantageous position for
the mistake committed by the authorities. If the plea of the petitioner is to be
accepted that he was furnished with defective voters lists, it is because of the
defective voters lists that the Tribunal gave an adverse opinion against the
petitioner. Now that the petitioner has been able to procure the correct voters
lists of 1966 and 1970, a great injustice would be caused to the petitioner, if the
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petitioner is not afforded an opportunity to submit the same to the Tribunal for
reconsideration of its opinion. If the petitioner is able to convince the Tribunal of
the genuineness of the corrected voters lists of 1966 and 1970 and that
"Sekendar Ali" and "Abbas Ali" included in the said lists are indeed his father and
grandfather respectively with the age difference of about 25 years between
them, the petitioner can legitimately claim himself to be a citizen of this country
and not a foreigner. Thus, there a very high stake is involved in the application
of the petitioner seeking review of the opinion of the Tribunal based on the
aforesaid voters lists. The review application filed by the petitioner before the
Tribunal was not a routine application for review. The fate and a very valuable
right of the petitioner about his citizenship will be determined on the basis of
the aforesaid documents. Citizenship, in the modern State, is perhaps the most
important attribute of a person, without which, a person can hardly enjoy any of
the rights conferred, protected and guaranteed by the State. If the petitioner is
declared as a foreigner as has been done, he shall be forfeited with many of the
rights and fundamental rights guaranteed by the Constitution of India. It is in
that context that it can be said that a great prejudice and the gross injustice
may be caused to the petitioner, if the prayer of the petitioner seeking review of
its opinion is not allowed on the ground of delay.
21. If the Tribunal had been invested with the power to condone the delay in
approaching it, perhaps the issue raised in the present case might not have
arisen. Yet, because of this technical hurdle, the petitioner is not being able to
approach the Tribunal to seek review of its opinion which may cause gross
injustice and prejudice to the petitioner. If, the petitioner is indeed the son of
Sekender Ali and grandson of Abbas Ali, as claimed by the petitioner and is able
to prove so through these documents, a great injustice will be caused him by
stripping him of his citizenship, because of the fault of the State.
22. It is in this context that this Court has to examine whether, the High
Court in exercise of the power conferred under Article 226 of the Constitution of
India, can direct the Tribunal to accept the application even after lapse of 30
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days mentioned under Order 3A(2) of the Foreigners (Tribunals) Order, 1964.
23. As regards technical hurdles like availability of alternative remedy and
limitation coming in the way of relief being granted by the High Court exercising
writ jurisdiction, similar issue had been considered by the Apex Court by
invoking the doctrine of ubi jus ibi remedium to provide the needed relief. The
Hon'ble Supreme Court inShiv Shankar Dal Mills v. State of Haryana ,
(1980) 2 SCC 437 observed as follows:-
"1. ...........................Where public bodies, under colour of public laws,
recover people's moneys, later discovered to be erroneous levies, the
dharma of the situation admits of no equivocation. There is no law of
limitation, especially for public bodies, on the virtue of returning what
was wrongly recovered to whom it belongs. Nor is it palatable to our
jurisprudence to turn down the prayer for high prerogative writs, on the
negative plea of "alternative remedy", since the root principle of law
married to justice, is ubi jus ibi remedium. Long ago Dicey wrote:
"The law ubi jus ibi remedium, becomes from this point of view
something more important than a mere tautological proposition.
In its bearing upon constitutional law, it means that the
Englishmen whose labours gradually formed the complicated set
of laws and institutions which we call the Constitution, fixed their
minds far more intently on providing remedies for the enforcement
of particular rights or for averting definite wrongs, than upon any
declarations of the Rights of Man or Englishmen.... The
Constitution of the United States and the Constitutions of the
separate States are embodied in written or printed documents,
and contain declaration of rights. But the statesmen of America
have shown an unrivalled skill in providing means for giving legal
security to the rights declared by American Constitutions. The rule
of law is as marked a feature of the United States as of England."
24. In the same decision in Shiv Shankar (supra), the principle of equity
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was invoked to remedy legal injury by exercising the extraordinary jurisdiction.
It was held that,
"6. Article 226 grants an extraordinary remedy which is essentially
discretionary, although founded on legal injury. It is perfectly open
for the court, exercising this flexible power, to pass such order as
public interest dictates and equity projects:
"Courts of equity may, and frequently do, go much further
both to give and withhold relief in furtherance of the public
interest than they are accustomed to go where only private
interests are involved. Accordingly, the granting or
withholding of relief may properly be dependent upon
considerations as of public interest... [27 Am Jur 2/d Equity,
p. 626] ................................................................................."
25. One may also note what the Supreme Court held to similar effect that a
person with a grievance must have a remedy for redressal in Bhagubhai
Dhanabhai Khalasi v. State of Gujarat, (2007) 4 SCC 241, as follows:
"10. A party having a grievance must have a remedy. Access to justice is
a human right. When there exists such a right, a disputant must have a
remedy in terms of the doctrine ubi jus ibi remedium."
26. It may be also mentioned that the decision of the Hon'ble Supreme Court
in Om Prakash (supra) on the basis of which the Tribunal rejected the
application filed by the petitioner for review as time-barred, was considered by
the Hon'ble Supreme Court in M.P. Steel Corpn. v. CCE, (2015) 7 SCC 58 :
(2015) 3 SCC (Civ) 510. The Hon'ble Supreme Court in M.P. Steel Corpn.
(supra) proceeded to examine the issue from the perspective of advancing the
cause of justice. While reiterating the principle that provisions of Limitation Act,
1963 apply in respect of proceedings being prosecuted in courts proper, i.e.,
courts, as understood in the strict sense of being part of the Judicial Branch of
the State, the Supreme Court held that the principles underlying provisions of
Limitation Act may be applied to quasi-judicial tribunals also so long as there is
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nothing in the relevant statutory scheme that rules out or bars applicability of
such principles. It was held that courts always lean in favour of advancing the
cause of justice where a clear case is made out for doing so, since justice and
reason is at the heart of all legislation.
27. In the aforesaid M.P. Steel Corp. (supra), the Hon'ble Supreme Court
was considering applicability of Section 14 of the Limitation Act, 1963 in a
proceeding before the Commissioner (Appeals) under Section 128 of the
Customs Act.
It was held inM.P. Steel Corp. (supra) as follows:
"20. Now to the case law. A number of decisions have
established that the Limitation Act applies only to courts and not to
tribunals. The distinction between courts and quasi-judicial
decisions is succinctly brought out in Bharat Bank
Ltd. v. Employees [1950 SCR 459 : AIR 1950 SC 188] .
..................................................................................
......................................................................................................
22. A series of decisions of this Court have clearly held that the
Limitation Act applies only to courts and does not apply to quasi-
judicial bodies ..............................................
........................................................................................
28. Two other judgments of this Court need to be dealt with at
this stage. In Mukri Gopalan v. Cheppilat Puthanpurayil
Aboobacker [(1995) 5 SCC 5], a two-Judge Bench of this Court
held that the Limitation Act would apply to the appellate authority
constituted under Section 13 of the Kerala Buildings (Lease and
Rent Control) Act, 1965. This was done by applying the provision
of Section 29(2) of the Limitation Act. Despite referring to various
earlier judgments of this Court which held that the Limitation Act
applies only to courts and not to tribunals, this Court in this case
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held to the contrary. In distinguishing the Parson Tools
case [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] ,
which is a three-Judge Bench binding on the Court that
decided Mukri Gopalan case [(1995) 5 SCC 5] , the Court held:
(Mukri Gopalan case [(1995) 5 SCC 5] , SCC p. 23, para 18)
........................ .............................. ..................... ....................
...............................................................................
It then went on to follow the judgment in CST v. Madan Lal Das &
Sons [(1976) 4 SCC 464 : 1977 SCC (Tax) 27] , which, as has been
pointed out earlier, is not an authority for the proposition that the
Limitation Act would apply to tribunals. In fact, Mukri Gopalan
case [(1995) 5 SCC 5] was distinguished in Om Prakash v. Ashwani
Kumar Bassi [(2010) 9 SCC 183 : (2010) 3 SCC (Civ) 648] , at para
22 as follows: (Om Prakash case [(2010) 9 SCC 183 : (2010) 3
SCC (Civ) 648] , SCC p. 188) ........................... ............
................................................................................. .........
...................................................................................................
38. We have already held that the Limitation Act including Section
14 would not apply to appeals filed before a quasi-judicial tribunal
such as the Collector (Appeals) mentioned in Section 128 of the
Customs Act. However, this does not conclude the issue. There is
authority for the proposition that even where Section 14 may not
apply, the principles on which Section 14 is based, being principles
which advance the cause of justice, would nevertheless apply. We
must never forget, as stated in Bhudan Singh v. Nabi Bux [(1969)
2 SCC 481 : (1970) 2 SCR 10] that justice and reason is at the
heart of all legislation by Parliament. This was put in very felicitous
terms by Hegde, J. as follows: (SCC p. 485, para 9)
9. "Before considering the meaning of the word 'held' in Section 9,
it is necessary to mention that it is proper to assume that the
Page No.# 18/25
lawmakers who are the representatives of the people enact laws
which the society considers as honest, fair and equitable. The
object of every legislation is to advance public welfare. In other
words as observed by Crawford in his book on 'Statutory
Constructions' that the entire legislative process is influenced by
considerations of justice and reason. Justice and reason constitute
the great general legislative intent in every piece of legislation.
Consequently where the suggested construction operates harshly,
ridiculously or in any other manner contrary to prevailing
conceptions of justice and reason, in most instances, it would
seem that the apparent or suggested meaning of the statute, was
not the one intended by the lawmakers. In the absence of some
other indication that the harsh or ridiculous effect was actually
intended by the legislature, there is little reason to believe that it
represents the legislative intent."
39. This is why the principles of Section 14 were applied in J.
Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009) 4
SCC (Civ) 656] to a revision application filed before the High Court
of Kerala. The Court held: (SCC pp. 180-81, paras 16-18)
16. "The provisions contained in Sections 5 and 14 of the
Limitation Act are meant for grant of relief where a person
has committed some mistake. The provisions of Sections 5
and 14 of the Limitation Act alike should, thus, be applied in
a broad based manner. When sub-section (2) of Section 14
of the Limitation Act per se is not applicable, the same
would not mean that the principles akin thereto would not
be applied. Otherwise, the provisions of Section 5 of the
Limitation Act would apply. There cannot be any doubt
whatsoever that the same would be applicable to a case of
this nature.
Page No.# 19/25
17. There cannot furthermore be any doubt whatsoever that
having regard to the definition of 'suit' as contained in
Section 2(l) of the Limitation Act, a revision application will
not answer the said description. But, although the
provisions of Section 14 of the Limitation Act per se are not
applicable, in our opinion, the principles thereof would be
applicable for the purpose of condonation of delay in filing
an appeal or a revision application in terms of Section 5
thereof.
18. It is also now a well-settled principle of law that
mentioning of a wrong provision or non-mentioning of any
provision of law would, by itself, be not sufficient to take
away the jurisdiction of a court if it is otherwise vested in it
in law. While exercising its power, the court will merely
consider whether it has the source to exercise such power
or not. The court will not apply the beneficent provisions
like Sections 5 and 14 of the Limitation Act in a pedantic
manner. When the provisions are meant to apply and in fact
found to be applicable to the facts and circumstances of a
case, in our opinion, there is no reason as to why the court
will refuse to apply the same only because a wrong
provision has been mentioned. In a case of this nature, sub-
section (2) of Section 14 of the Limitation Act per se may
not be applicable, but, as indicated hereinbefore, the
principles thereof would be applicable for the purpose of
condonation of delay in terms of Section 5 thereof."
40. The Court further quoted from Consolidated Engg.
Enterprises [(2008) 7 SCC 169] an instructive passage: ( Iric Sohan
case [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] , SCC p. 183,
para 21)
Page No.# 20/25
21. "In Consolidated Engg. Enterprises vs. Irrigation Deptt.
[(2008) 7 SCC 169] this Court held: (SCC p. 181, para 22)
22. "The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect cannot
be decided on merits and is dismissed. While considering
the provisions of Section 14 of the Limitation Act, proper
approach will have to be adopted and the provisions will
have to be interpreted so as to advance the cause of justice
rather than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the
invocation of Section 14. In fact, the section is intended to
provide relief against the bar of limitation in cases of
mistaken remedy or selection of a wrong forum. On reading
Section 14 of the Act it becomes clear that the legislature
has enacted the said section to exempt a certain period
covered by a bona fide litigious activity. Upon the words
used in the section, it is not possible to sustain the
interpretation that the principle underlying the said section,
namely, that the bar of limitation should not affect a person
honestly doing his best to get his case tried on merits but
failing because the court is unable to give him such a trial,
would not be applicable to an application filed under Section
34 of the 1996 Act. The principle is clearly applicable not
only to a case in which a litigant brings his application in the
court, that is, a court having no jurisdiction to entertain it
but also where he brings the suit or the application in the
wrong court in consequence of bona fide mistake or (sic of)
law or defect of procedure. Having regard to the intention
of the legislature this Court is of the firm opinion that the
Page No.# 21/25
equity underlying Section 14 should be applied to its fullest
extent and time taken diligently pursuing a remedy, in a
wrong court, should be excluded.'
See Shakti Tubes Ltd. v. State of Bihar [(2009) 1 SCC 786 :(2009)
1 SCC (Civ) 370] ."
28. It may be noted that in the above referred case of M.P. Steel Corp.
(supra), the Supreme Court highlighted the ennobling provisions of Section 5
and 14 of the Limitation Act to grant relief where a person has committed some
mistake and, accordingly, held that these provisions should be applied in broad
based manner, as held in Kumardasan Nair (supra).
In the present case, the mistake was not of the petitioner but of the
State authorities in providing with erroneous voters lists of 1966 and 1970.
Thus, this equity based principles contained in Section 5 of the Limitation Act
should be applicable in the present case with equal force.
29. Further, as discussed above, Order 3A (3) of the 1964 Order provides
that, subject to the provisions of this order, the Foreigners Tribunal shall have
the powers to regulate its own procedure for disposal of the cases expeditiously
in a time bound manner. Thus, this general provision enabling the Tribunal to
regulate its own procedure can certainly be also invoked to condone any delay,
if found just and reasonable. It may be noted that there is no provision under
the 1964 Order that no application can be entertained after lapse of thirty days
of the passing of the order/opinion.
30. As noted above, the opinion of the Tribunal as regards citizenship of the
proceedee has a far-reaching consequence for, if he is not able to discharge the
burden cast upon him person under Section 9 of the Foreigners Act, he will be
declared a foreigner and as a result he will be liable to be deported from this
country. Section 9 of the Foreigners Act, 1946 places the onus of proof on the
person when any question arises as to whether the person is a foreigner or not.
Most of the fundamental rights and other legal rights enjoyed by an Indian
Page No.# 22/25
citizen in this country will stand forfeited if the petitioner is declared a foreigner.
Such is the importance of the opinion of the Foreigners Tribunal. As per the
existing legal framework, there is no provision for appeal against the opinion of
the Tribunal. Thus, there is no appellate forum available to examine the
correctness or otherwise of the opinion of the Foreigners Tribunal by
appreciating the evidences assessed by the Tribunal. There is only a limited
power of supervision by the High Court in exercise of the power of judicial
review under Article 226. Thus, considering the enormity of the stakes involved
in the proceeding before the Foreigners Tribunal and in absence of any appellate
forum which otherwise would have provided a wider scope of examining the
legality of the opinion/order of the Tribunal, but only a limited supervisory
power of the High Court under Article 226 of Constitution of India, if this Court
feels that a gross prejudice or injustice may be caused to any person, this Court
can invoke its extraordinary power based on the principle of ubi jus ibi
remedium and doctrine of equity, and direct the Tribunal to entertain such an
application for review even if it is beyond the period of limitation provided under
rules.
31. In the light of the aforesaid decisions, we, would hold that, even though
the provisions of Limitation Act, 1963 may not be applicable in a proceeding
before the Foreigners Tribunals in the strict legal sense, yet, there is nothing in
the Foreigners (Tribunal) Order, 1964 which specifically excludes application of
the principles of the Limitation Act. Hence, the principles underlying Section 5 of
the Limitation Act can be made applicable in the proceedings before the
Tribunal, where it advances the cause of justice and also by applying the
principle of ubi jus ibi remedium.
We have already noted that in the present case, if the review application is not
allowed, it would lead to gross injustice to the petitioner.
32. Thus, we, in exercise of our extra-ordinary jurisdiction conferred under
Article 226 of the Constitution of India are inclined to grant the petitioner
opportunity to approach the Tribunal to file these certified copies of the voters
Page No.# 23/25
lists of 1966 and 1970 which show that the age of the grandfather was more
than the age of father. The Tribunal after assessing the genuineness and
authenticity of the same and on consideration of these documents with other
documents which are already on record will re-consider its opinion and pass a
fresh opinion.
We have also noted that the learned Tribunal, while passing the impugned
opinion on 24.05.2018, had made an observation that other documents, namely,
Exts. H(ii), H(iii), H(iv) and H(v)and also documents Exts. "I", "J", "K", "L" and
"M" would have no relevancy in the case as the voters lists of 1966 and 1970
were found to be not reliable and trustworthy. Thus, it appears that the learned
Tribunal gave the opinion against the petitioner mainly on the ground that these
documents, viz., voters lists of 1966 and 1970 exhibited as Ext- "A" and "B"
were not trustworthy and not reliable, and as such, the other documents have
no relevancy. From the above, it is clearly evident that the adverse opinion of
the Tribunal was primarily based on the earlier defective voters lists of 1966 and
1970.
33. The petitioner has also drawn our attention to two land documents as
mentioned as para-2 and para-6 of the review application i.e. Jamabandi of
village- Mohmara of 1932 and Jamabandi of the same village of 1969-70.
According to the petitioner, these documents which were obtained belatedly
could not be also considered as the learned Tribunal rejected the Review
Application on the ground of delay.
34. The petitioner submits that he may be allowed to rely on these land
documents also. On this aspect, Mr. Sarma, learned State Counsel has objected
on the ground that the same had not been mentioned in the written statement
presented before the Tribunal and as such subsequently produced documents
could not be considered.
35. As regards his objection, we have examined the copies of the land
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documents attached in this petition. It appears that though these documents
were obtained subsequently, the documents appear to be relating to the year
1932 and the 1969-70 which are very relevant documents preceding the
proceeding.
Further, if these documents were discovered belatedly, the petitioner
could not have mentioned these in his written statement. Thus, we are of the
view that non mentioning of these land documents in the written statement will
not debar the petitioner from relying on the same.
In that view of the above, as these documents would have some
relevancy and since we have already allowed the petitioner to approach the
Tribunal which will consider his citizenship on the basis of voters lists, we feel
that no prejudice will be caused to the State if the said two land documents are
also allowed to be relied on, subject to admissibility and reliability as per law.
36. Accordingly, the order dated 20.09.2019 passed in Review Petition No.
04/2019 is set aside with the direction to the Tribunal reconsider the case of the
petitioner that he is an Indian citizen not a foreigner, by taking into
consideration, the aforesaid certified copies of the voters lists of 1966 and 1970
and certified copies of the Jamabandi in respect of land of Patta No. 17(New)
and Patta No. 57 (New) of village -Mohmara dated 18.05.2019 and 28.05.2019.
The learned Tribunal will, accordingly, pass a fresh order which will
supersede the earlier opinion dated 24.05.2018 in Case No. F.T.(C) 09/2016.
37. Since the petitioner has already been declared a foreigner by the Tribunal
and his nationality has come under cloud, we direct that though the petitioner
will be released from detention to pursue his case before the Tribunal, he will
continue to remain on bail on furnishing a bail bond of Rs.5,000/- (Rupees five
thousand) with one local surety of the like amount to the satisfaction of the
Superintendent of Police (Border), Morigaon. The concerned Superintendent of
Police (Border) shall also take steps for capturing the fingerprints and biometrics
Page No.# 25/25
of the iris of the petitioner, if so advised. The petitioner shall appear before the
concerned Superintendent of Police (Border) as and when required. The
petitioner shall also not leave the jurisdiction of Morigaon district without
furnishing the details of the place of destination and necessary information
including the contact number to the Superintendent of Police (Border),
Morigaon. The petitioner within 30(thirty) days of his release shall appear before
the Foreigners Tribunal 2nd, Morigaon, Assam, failing which the opinion dated
24.05.2018 shall stand revived and law will take its own course.
38. Mr. Sarma, learned standing counsel submits that this order passed in this
case may be confined to this case only and it may not be precedence for the
other cases. We have noted his submission with the observation that each case
is to be examined on its own merit.
39. Records be immediately sent back to the Tribunal.
40. Copy may be furnished to Superintendent of Police (Border), Morigaon
and also to the concerned authority of detention camp at Tezpur for immediate
release of the petitioner.
JUDGE JUDGE
Comparing Assistant
