Gauhati High Court
Page No.# 1/15 vs The Union Of India And 4 Ors on 4 August, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Parthivjyoti Saikia
Page No.# 1/15
GAHC010148132025
2025:GAU-AS:10028-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3975/2025
FUJERA KHATOON ALIAS JAHURA KHATOON
D/O- LATE HARMUJ ALI, W/O- SAHARUDDIN, R/O- VILL.- MAHGURI, P.O.
SINGARI MADRASSA, P.S. JURIA, DIST. NAGAON, ASSAM, PIN- 782122.
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
DEPARTMENT OF HOME AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT
OF ASSAM
HOME AND POLITICAL (B) DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE DISTRICT COMMISSIONER
NAGAON
DIST. NAGAON
PIN- 782001.
4:THE SUPERINTENDENT OF POLICE (BORDER)
NAGAON
ASSAM
PIN- 782124.
5:THE STATE CO-ORDINATOR NATIONAL REGISTRATION (NRC)
ASSAM
HOUSEFED COMPLEX
GUWAHATI
Page No.# 2/15
ASSAM-781006.
6:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
Advocate for the Petitioner : MR. A MOBARAQUE,
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the petitioner : Mr. A. Mobaraque, Adv.
For respondent no. 1 : Mr. M.R. Adhikari, CGC,
For respondent nos.2, 4 & 5 : Mr. G. Sarma, SC, FT & Border matters.
For respondent no.3 : Mr. P. Sarmah, Addl. Sr. G.A.
For respondent no.6 : Ms. P. Barua, SC, ECI,
Date of hearing : 28.07.2025.
Date of order : 04.08.2025.
ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. A Mobaraque, learned counsel for the petitioner. Also
heard Mr. M.R. Adhikari, learned CGC; Mr. G. Sarma, learned standing counsel
for the FT matter and NRC; Mr. M. Kalita, learned counsel appearing on behalf
of Ms. P. Barua, learned standing counsel for the ECI; and Mr. P. Sarmah,
learned Additional Senior Government Advocate for the State.
2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Fujera Khatoon @ Jahura Khatoon, has assailed
the opinion dated 28.06.2019, passed by the learned Member, Foreigner's
Tribunal, Nagaon (4th) at Juria, in FT Case No. 344/15, arising out of Police
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Reference 'D' Case No. 1100/98, thereby declaring the petitioner to be a
foreigner, who has entered into the territory of India (Assam) after 25.03.1971.
3) In order to assail the impugned opinion dated 28.06.2019, this
writ petition has filed on 30.06.2025, i.e. about 6 years later. Therefore, by an
order dated 21.07.2025, the Court had granted the learned counsel for the
petitioner some time to address the Court on the maintainability of the writ
petition on the ground of unexplained delay and laches to assail the said
opinion. Accordingly, the matter was heard on the said preliminary point.
4) The learned counsel for the petitioner has referred to the
statements made in the writ petition and it has been submitted that the
petitioner is a poor woman with no adequate source of income. Moreover, it is
projected that during the pandemic period, the family of the petitioner had
suffered immense loss, resulting in severe financial hardship from which she is
yet to overcome.
5) It has been submitted that under similar circumstances, this
Court was pleased to accept the said ground as good and sufficient cause for
delay in approaching this Court. It is submitted that the Limitation Act has no
application to a writ petition. Moreover, it has been submitted that the opinion
of the learned Tribunal is patently illegal. Therefore, if this writ petition is
dismissed as not maintainable it would affect the fundamental right of the
petitioner and accordingly, it has been submitted that the delay and laches in
filing this writ petition is required to be condoned. In this regard, the learned
counsel for the petitioner has referred to the statements made in paragraph 46
of the judgment and order dated 13.12.2024, passed by the Supreme Court of
India in the case of Urban Improvement Trust v. Smt. Vidhya Devi & Ors., Civil
Appeal No. 14473/2024 & 3 (three) connected cases [arising out of SLP(C) No.
Page No.# 4/15
12116/2010].
6) The learned standing counsel for the FT and Border matters has
opposed the prayer made in this writ petition on the ground of unexplained
delay and laches in assailing the impugned opinion.
7) Considered the pleadings made in the writ petition and the
documents appended thereto. Also considered the case cited by the learned
counsel for the petitioner.
8) In this case, it is not the pleaded case of the petitioner that she
was not aware of pronouncement of the impugned opinion dated 28.06.2019,
by the learned Foreigners Tribunal. From the photocopy of the certified copy of
the opinion dated 28.06.2019, which is annexed to the writ petition, it is seen
that the application for certified copy was made on 16.08.2019 and the copy
was received by the person applying it on 05.09.2019. Therefore, the petitioner
is deemed to be aware of the said opinion dated 28.06.2019, on the date it was
rendered and she is deemed to be aware of the contents of the opinion on and
from 05.09.2019 onwards.
9) In so far as the Covid-19 pandemic period is concerned, in light
of the orders passed by the Supreme Court of India, as well as orders passed by
this Court, the limitation in order to assail the impugned opinion is deemed to
be extended from 15.03.2020 to 28.02.2022, as an effect of the order dated
10.01.2022, passed by the Supreme Court of India in Re: Cognizance for
extension of limitation, M.A. 29/2022 in Suo Motu W.P.(C) No. 3/2020.
10) On a careful perusal of paragraph 46 of the case of Urban
Improvement Trust (supra), cited by the learned counsel for the petitioner, it is
noted that the Supreme Court of India has reiterated the law that undue delay
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in approaching the Court can be a ground for refusing relief and it has been
expressed that that only in exceptional cases, delay can be condoned. The said
paragraph 46 is quoted below:-
"46. As regards the appellant's challenge to the inordinate delay of 21 years in
filing of the writ petitions by the respondents, we are of the view that the same
needs to be considered in the facts and circumstances of the case. While it is true
that the courts have consistently held that undue delay in approaching the court
can be a ground for refusing relief, the courts have also recognized that in
exceptional cases, where the impugned action is patently illegal or affects
fundamental rights, the delay must be condoned."
11) Now coming to the statement made by the petitioner to explain
the delay, in paragraph 23 of the writ petition, the petitioner has stated that she
is a poor woman, dependent on the income of her husband with no source of
income. The said statement does not inspire any confidence. In paragraph 2 of
the writ petition, the petitioner has stated her father had inherited her
grandfather's property and thereafter, she along with her siblings have inherited
her father's property. Be that as it may, in this regard, the petitioner has
exhibited the jamabandi (Ext.5) in respect of a plot of land, where the name of
the petitioner and her projected father does not appear. The relevant entry in
the jamabandi (Ext.5), showing the name of the petitioner and her projected
father or any siblings of the petitioner has not been exhibited. The learned
counsel for the petitioner has not been able to show the said entries in the
jamabandi. Thus, the petitioner has failed to prove that her name or the name
of her projected father was mutated in respect of the said land covered by the
jamabandi (Ext.5). Moreover, in her written statement, the petitioner has not
pleaded how much land fell in her share. The petitioner has also not disclosed
the Zonal/ District Level Land Valuation in respect of her projected share of the
land to show that she does not have sufficient means to assail the impugned
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opinion within a reasonable time. The petitioner has also not explained why she
did not avail free legal aid services extended by District Legal Services Authority
to assail the impugned opinion. Therefore, the petitioner has failed to show
from any cogent and reliable materials that she is so poor that for 6 (six) years,
she could not assail the impugned opinion.
12) As mentioned hereinbefore, the petitioner had applied for the
certified copy of the impugned opinion on 16.08.2019, and the same was
collected by the petitioner on 05.09.2019. However, there is no material on
record that she had made any attempt to assail the impugned opinion
immediately after receiving the certified copy of the impugned opinion.
13) It may be mentioned that the petitioner has made certain
allegations and/or statements in the writ petition, which is required to be dealt
with.
14) In paragraph 7 of this writ petition, the petitioner has stated that
the opinion cannot stand as the opinion is silent under which stream the
petitioner is a foreigner. The said point has no legs to stand because in
paragraph 1 of the impugned opinion, the learned Tribunal has mentioned that
upon the report of the then Electoral Registration Officer of the 85 No.
Rupahihat Assam Legislative Assembly Constituency, Police Reference 'D' Case
No. 1100/98 was registered and the Superintendent of Police (Border), Nagaon
had submitted a reference case to the then Illegal Migrants (Determination)
Tribunal, Nagaon [hereinafter referred to as IM(D)T for brevity] for opinion. It
has also been mentioned that after abolition of the IM(D)T's in the State, the
instant reference pending before the erstwhile IM(D)T was transferred to the
Foreigners Tribunal 1st, Nagaon. In this regard, it may be stated that as per the
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provisions of Section 3(1)(c) of the Illegal Migrants (Determination by Tribunals)
Act, 1983 [hereinafter referred to as IM(DT) Act for brevity], the definition of
"illegal migrant" is as follows:-
"Illegal migrant" means a person in respect of whom each of the following
conditions are satisfied, namely:-
(i) he has entered into India on or after 25th day of March, 1971;
(ii) he is a foreigner;
(iii) he has entered into India without being in possession of a valid passport or
other travel document or any other lawful authority in that behalf."
15) Reference or applications to an erstwhile IM(D)T was required to
be made as per the provisions of Section 8 of the IM(DT) Act, 1983 (since
declared ultra vires). Therefore, it would also be appropriate to quote
hereinbelow the provisions of Section 8 of the erstwhile IM(DT) Act, 1983:-
"8. References or applications to Tribunals.-
(1) If any question arises as to whether any person is or is not an illegal migrant,
the Central Government may, whether such question has arisen on a
representation made by such person against any order under the Foreigners Act,
1946 (31 of 1946) requiring him not to remain in India or to any other effect or
has arisen in any other manner whatsoever, refer such question to a Tribunal for
decision.
(2) Any person may make an application to the Tribunal, for its decision, as to
whether the person whose name and other particulars are given in the application,
is or is not an illegal migrant.
(3) Every application made under sub-section (2) shall be made in such form and
in such manner as may be prescribed and shall be accompanied by affidavits
sworn by not less than 1 [two persons residing within the jurisdiction of the same
police station] in which the person referred to in the application is found, or
residing, corroborating the averments made in the application, and shall also be
accompanied by such fee, being not less than 2 [ten] and not more than one
hundred, rupees, as may be prescribed.
(4) Every reference under sub-section (1) shall be made to the Tribunal within the
territorial limits of whose jurisdiction the place of residence of the person named in
such reference is, at the time of making such reference, situated:
Provided that where such person has no place of residence, the reference shall
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be made to the Tribunal within the territorial limits of whose jurisdiction such
person, is at the time of making such reference, found.
(5) Every application under sub-section (2) shall be made to the Tribunal within
the territorial limits of whose jurisdiction the person named in such application is
found or, as the case may be, has his place of residence, at the time of making
such application."
16) It may also be stated that the reference before the erstwhile
IM(D)T was required to be made for determination as per the provisions of
Section 3(1)(c) of the erstwhile IM(DT) Act, 1983. In the case of Sarbananda
Sonowal v. Union of India & Ors., (2005) 5 SCC 665 , the Supreme Court of India
had declared the said IM(DT) Act, 1983 as ultra vires and all proceedings
pending before the erstwhile IM(D)T's were transferred to the Foreigners
Tribunals. Accordingly, on receipt of the records of the jurisdictional IM(D)T, the
reference in the instant case was registered before the Foreigners Tribunal
No.1st, Nagaon. However, on establishment of the Foreigners Tribunal 4 th,
Nagaon at Juria, the proceedings of FT Case No. 344/2015 [bearing Police Ref.
'D' Case No. 1100/98] was transferred to the said learned Tribunal. Therefore,
as the persons who can be declared as an illegal migrant is defined under
Section 3(1)(c) of the IM(DT) Act, 1983, the reference, if answered in the
affirmative, must be construed to be a reference answered by declaring the
proceedee to be a foreigner of post 25.03.1971 stream.
17) Moreover, the impugned opinion makes it clear that in the
present case in hand, the reference was made by the Electoral Registration
Officer (ERO for brevity), 85 No. Rupahihat Legislative Assembly Constituency,
which was registered as Police Reference 'D' Case No. 1100/98 and the
Superintendent of Police (Border), Nagaon, had submitted a reference case to
the then IM(D)T, Nagaon. It may also be stated that pursuant to the orders
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passed by the Election Commission of India extensive revision of electoral rolls
was undertaken at the relevant time. In those cases, where the voter was found
doubtful, reference of "doubtful" voter was made in those cases. Be that as it
may, as the cases pending before IM(D)T were transferred to the Foreigners
Tribunals in terms of the order passed by the Supreme Court of India, this Court
is required to exercise restraint to examine any issue other than those which
can be examined under certiorari jurisdiction, i.e. only limited to the opinion
rendered by the Foreigners Tribunal. The reason being that the transfer of
reference from IM(D)T to Foreigners Tribunals was done by virtue of orders
passed by the Supreme Court of India in the case of Sarbananda Sonowal
(supra).
18) In respect of the legal preposition that delay and laches is fatal
to belated challenge to the opinion of the Foreigners Tribunals, it may be
relevant to refer to the decision of this Court in the case of Jonali Das v. Union
of India, 2018 (5) GLT 492: (2018) 0 Supreme (Gau) 1186 . Paragraph 9 thereof
is as follows:-
"9. In Azmat Ali @ Amzad Ali Vs. Union of India [WP(C) No.4971/2018] disposed
of on 01.08.2018, this Court had observed as follows:-
"It is more than three decades that the issue of influx of foreign nationals has
been in public domain in the State of Assam and has engaged the attention
of the people. Interest of the State is of paramount importance in that
unabated influx has the potential to affect the integrity and sovereignty of
the country. Citizenship of a person, no doubt, is a very valuable right and
should be zealously guarded. There is no gainsaying the fact that a person
who is alleged to be a foreigner must be given due and reasonable
opportunity to establish that he is a citizen of India. However, if a person
does not take steps for safeguarding his interest, he does so at his own risk
and peril as grant of opportunity cannot be an endless exercise. Right to a
fair hearing or principles of natural justice cannot be permitted to lead to a
farcical situation and to be an engine for defeating the very object of
identification and deportation of foreigners."
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19) It would also be relevant to refer to the observations made by
the Full Bench of this Court in paragraph 91 of the case of State of Assam v.
Moslem Mondal, 2013 (1) GLT 809, which is quoted below:-
"91. The Apex Court in Grindlays Bank Ltd. (supra) while dealing with the power of
the Labour Court, constituted under the Industrial Disputes Act, to entertain an
application to set aside its ex parte award, has held that there being no statutory
prohibition to entertain such an application, the Tribunal has the power to
entertain the same in the interest of justice. It has also been held that though
there is no express provision in the Industrial Disputes Act or the Rules framed
thereunder giving the Tribunal jurisdiction to entertain such application, the
Tribunal should be considered to be endowed with such ancillary or incidental
powers as are necessary to discharge its functions effectively for the purpose of
doing justice between the parties. It has also been held that the power given to
the Tribunal under section 11(1) of the Industrial Disputes (Amendment and
Miscellaneous Provisions) Act, 1956 to follow such procedure as the Arbitrator or
other authority concerned may think fit, are of widest amplitude and confer anoxic
power upon the Tribunal and other authorities to devise its procedure as the
justice of the case demands. The Apex Court further opined that the object of
giving such wide power being to mitigate the rigour of the technicalities of the law
for achieving the object of effective investigation and settlement of the disputes,
the Tribunal can entertain an application for setting aside an ex parte award. The
Tribunal, however, is required to exercise its discretion relating to the
entertainment of such application, in a judicial manner, without caprice and
according to the general principle of law and rules of natural justice. The same
view has also been reiterated by the Apex Court in Satnam Verma (supra) ."
20) In view of the discussions above, the Court is of the considered
opinion that due to willful and deliberate abstinence on part of the petitioner to
challenge the impugned opinion within a reasonable time, the petitioner has not
been able to make out any case for any interference whatsoever in respect of
the opinion impugned herein.
21) In this writ petition, the petitioner has expressed her grievance
that the learned Tribunal had excluded Ext.1, Ext.2 and Ext.3 from
consideration. Statement to that effect in paragraph 7 of the writ petition
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appears to be ex facie questionable because those three exhibits are found to
have been duly considered and rejected by the learned Tribunal in paragraph
nos. 10, 11 and 12 of the impugned opinion. Moreover, in paragraph 10 of the
impugned opinion, the learned Tribunal has expressed that out of six documents
exhibited, only three documents indicates relationship between the petitioner
and Harmuj Ali (i.e. the projected father of the petitioner) could be ascertained.
The learned Tribunal is found to have discussed the remaining exhibited
documents, which have been referred to in paragraph nos. 4 and 12 of the
impugned opinion.
22) Thus, in light of the discussions above, the petitioner has
miserably failed to satisfactorily explain the inordinate delay of about 6 (six)
years to assail the impugned opinion. Moreover, even on merit, the petitioner
has failed to show that the impugned opinion is otherwise vitiated by any
reason whatsoever.
23) In exercise of certiorari jurisdiction under Article 226 of the
Constitution of India the High Court ought not to substitute its view over opinion
of the learned Foreigners Tribunal, which is not found to be vitiated for any
error whatsoever. If one needs any authority on the point, the decision of the
Supreme Court of India in the case of Central Council for Research in Ayurvedic
Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763 , may be
referred to. Paragraph 77 thereof is quoted below:-
"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals
within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal
assumption of it and not to correct errors of finding of fact or interpretation of law committed
by them in the exercise of powers vested in them under the statute. The accepted rule is that
where a Court has jurisdiction it has a right to decide every question which crops up in the
case and whether its decision is correct or otherwise, it is bound to stand until reversed by a
competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd.
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Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable
the High Court to issue them in grave cases where the subordinate tribunals or
bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of
the principles of natural justice, or refuse to exercise a jurisdiction vested in them,
or there is an error apparent on the face of the record, and such act, omission,
error, or excess has resulted in manifest injustice. However extensive the
jurisdiction may be, it seems to us that it is not so wide or large as to enable the
High Court to convert itself into a court of appeal and examine for itself the
correctness of the decision impugned and decide what is the proper view to be
taken or the order to be made."
24) On the point of when certiorari jurisdiction ought to be invoked,
it would also be relevant to refer to paragraph nos. 20 to 23 of the case of Hari
Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC)
175, which is quoted below:-
"20. We are also of opinion that the Election Tribunals are subject to the superintendence of
the High Courts under Article 227 of the Constitution, and that that superintendence is both
judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath , AIR
1954 SC 215 (K), where it was observed that in this respect Article 227 went further than
section 224 of the Government of India Act, 1935, under which the superintendence was
purely administrative, and that it restored the position under section 107 of the Government
of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High
Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also
issue further directions in the matter. We must accordingly hold that the application of the
appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and
227 of the Constitution.
21. Then the question is whether there are proper grounds for the issue of certiorari
in the present case. There was considerable argument before us as to the character
and scope of the writ of certiorari and the conditions under which it could be issued.
The question has been considered by this Court in Parry & Co. v. Commercial
Employees Association, Madras , AIR 1952 SC 179 (L): - Veerappa Pillai v. Raman and
Raman Ltd. . AIR 1952 SC 192 (M); - Ebrahim Aboobaker v. Custodian General of
Evacuee Property New Delhi , AIR 1952 SC 319 (N),& quite recently in AIR 1954 SC
440(C). On these authorities, the following propositions may be taken as established:
(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior
Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2)
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Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of
its undoubted jurisdiction, as when it 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 or fact reached by the
inferior Court or Tribunal, even if they be erroneous. This is on the principle that a
Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as
well as right, and when the Legislature does not choose to confer a right of appeal
against that decision, it would be defeating its purpose and policy if a superior Court
were to re-hear the case on the evidence, and substitute its own findings in certiorari."
These propositions are well settled and and not in dispute.
22. (4) The further question on which there has been some controversy is whether a
writ can be issued, when the decision of the inferior Court or Tribunal is erroneous in
law. This question came up for consideration in- Rex v. Northumberland Compensation
Appeal Tribunal; Ex parte Shaw , 1951-1 KB711 (O), and it was held that when a
Tribunal made a "speaking order and the reasons given in that order in support of the
decision were bad in law, certiorari could be granted. It was pointed out by Lord
Goddard, C. J. that that had always been understood to be the true scope of the
power. (1878) 4 AC 30 (D), and - Rex v. Nat Bell Liquors Ld , 1922-2 AC 128 (P), were
quoted in support of this view. In 1878-4 AC 30 (D), Lord Cairns L. C. observed as
follows :
"If there was upon the face of the order of the court of quarter sessions anything
which showed that that order was erroneous, the Court of Queen s Bench might be
asked to have the order brought into it, and to look at the order, and view it upon the
face of it, and if the court found error upon the face of it, to put an end to its
existence by quashing it".
In 1922-2 AC 128 (P), Lord Summer said:
"That supervision goes to two points; one is the area of the inferior jurisdiction
and the qualifications and conditions of its exercise; the other is the observance of the
law in the course of its exercise".
The decision in 1951-1 KB 711 (O), was taken in appeal, and was affirmed by the
Court of Appeal in - Rex v. Northumberland Compensation Appeal Tribunal; Ex parte
Shaw , 952-1 KB 338 (Q). In laying down that an error of law was a ground for
granting certiorari the learned Judges emphasised that it must be apparent on the face
of the record. Denning, L. J. who stated the power in broad and general terms
observed :
"It will have been seen that throughout all the cases there is one governing rule:
certiorari is only available to quash a decision for error of law if the error appears on
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the face of the record ."
The position was thus summed up by, Morris, L. J. :
"It is plain that certiorari will not issue as the cloak of an appeal in disguise. It
does not lie in order to bring an order or decision for rehearing of the issue raised in
the proceedings. It exists to correct error of law where revealed on the face of an
order or decision , or irregularity, or absence of, or excess of, jurisdiction where
shown."
In AIR 1952 SC 192 (M), it was observed by this Court that under Article 226 the
writ should be issued,
"in grave cases where the subordinate tribunals or bodies or officers act wholly
without jurisdiction, or in excess of it, or violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or there is an error apparent on the
face of the record .
In AIR 1954 SC 440 (C) , the law was thus stated :
"An error in the decision or determination itself may also be amenable to a writ of
certiorari but it must be 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."
23. It may therefore be taken as settled that a writ of certiorari could be issued to
correct an error of law. But it is essential that it should be something more than a
mere error; it must be one which must be manifest on the face of the record. The real
difficulty with reference to this matter however, is not so much in the statement of the
principle as in its application to the facts of a particular case. When does an error
cease to be mere error, and become an error apparent on the face of the record?
Learned Counsel on either side were unable to suggest any clear-cut rule by which the
boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain
observations of Chagla, C. J. in - Batuk K. Vyas v. Surat Borough Municipality , AIR
1953 Bom 133 (R), that no error could be said to be apparent on the face of the
record it was not self-evident, & if it required an examination or argument to establish
it. This test might afford a satisfactory basis for decision in the majority of cases. But
there must be cases in which even this test might break down, because judicial
opinions also differ, and an error that might be considered by one Judge as self
-evident might not be so considered by another. The fact is that what is an error
apparent on the face of the record cannot be defined precisely or exhaustively, there
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being an element of indefiniteness inherent in its very nature, and it must be left to be
determined judicially on the facts of each case.
25) Resultantly, this writ petition fails on merit as well as on the
ground of lack of satisfactory explanation about the inordinate delay of 6 (six)
years in assailing the impugned opinion passed by the Foreigners Tribunal.
Accordingly, this writ petition is dismissed at the motion stage, without issuance
of notice on the respondents.
26) Resultantly, the opinion dated 28.06.2019, passed by the learned
Member, Foreigners Tribunal 4th, Nagaon at Juria in F.T. Case No. 344/2015
[arising out of Police Ref. 'D' Case No. 1100/98], by which the petitioner was
held to be a foreigner, does not call for any interference whatsoever.
27) However, there shall be no order as to cost.
28) The Registry shall transmit a copy of this order to the concerned
Tribunal to be made a part of the record by the said learned Tribunal.
JUDGE JUDGE.
Comparing Assistant
