High Court
Case Details
WP(C) 256/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) The petitioner, who has been identified as ’D’ (Doubtful) voter, has fil ed this writ petition, challenging the proceeding that has been initiated agains t him by the Foreigners Tribunal, Goalpara vide FT Case No. 5368/G/12 arising ou t of district Case No. 793/2010. Apart from claiming that initiation of such pro ceeding is uncalled for in view of the fact that the petitioner is an Indian cit izen, the said proceeding has also been questioned on the ground of pendency of a suit being Title Suit No. 95/2012 in the Court of the learned Munsif No.1, Goa lpara, by which the petitioner as the plaintiff has prayed for a declaration tha t he is an Indian citizen as defined in the Citizenship Act and that the alphabe t (cid:28)D (cid:29) shown against his name in the electoral roll be removed entitling him to c ast votes in elections. 2. Having regard to the importance of the issue involved, which is, as to w hether in view of the existing special law for determination of citizenship issu e, a civil suit is maintainable towards determination of one’s citizenship, Mr. K.P. Pathak, learned ASGI was requested to assist the Court as Amicus Curiae, mo re particularly when the Union of India is also party respondent in the writ pet ition. Similarly, Mr. K.N. Choudhury, learned Sr. AAG, Assam was also requested to assist the Court. Both of them readily agreed to do so. 3. The writ petition was first entertained on 24.1.2013 and thereafter adjo urned to 28.1.2013. On that day, Mr. A.R. Sikdar, learned counsel for the petiti oner prayed for a week’s time and suggested the next date as 13.2.2013. Accordin gly, the matter was adjourned and could be taken up for final hearing on 21.2.20 13, on which date Mr. Sikdar, learned counsel for the petitioner, at the first i nstance, wanted to withdraw the writ petition to which Mr. Pathak, learned ASGI, acting as Amicus Curiae, raised objection having regard to the importance of th e issue involved. Eventually, the learned counsel for the petitioner agreed for final adjudication of the matter and made his submissions. In addition to his or al submission, he also submitted a written argument. Mr. Sikdar, learned counsel for the petitioner during the course of his 4. argument submitted that irrespective of filing the suit by the petitioner, he ha s already responded to the proceeding before the Tribunal. However, on being ask ed as to what will be the consequence of two simultaneous proceedings, he submit ted that it is the judgement and decree in the civil Court proceeding which will prevail over the opinion rendered by the Foreigners Tribunal. Referring to the notice dated 13.12.2012 served on the petitioner including his other family memb ers, Mr. Sikdar, learned counsel for the petitioner submitted that the said noti ce having not contained the grounds on which they are alleged to be foreigners, it is difficult on the part of the petitioner to effectively respond to the said notice. Both Mr. K. P. Pathak, learned Amicus Curiae and ASGI and Mr. K.N. Choud 5. hury, learned Sr. AAG, Assam, opposing the said submission submitted that the ci vil suit filed by the petitioner is not maintainable in view of the existing spe cial provisions in the form of Citizenship At, 1955 ; Foreigners Act, 1946 and F oreigners (tribunal) Order, 1964. In addition, they also referred to the constit utional provisions relating to citizenship. 6. Mr. A.R. Sikdar, learned counsel for the petitioner in reference to the written argument submitted by him, submitted that the petitioner is a citizen of India, his grand parents’ names having appeared in the NRC of 1951 and voter li st of 1966. It was also submitted that his father’s name was in the voter list of 1966 onwards upto 1989. It was also submitted that his father expired in 1996 and that the petitioner’s name along with the other family members appeared in the voter lists from 1989 onwards. However, in April, 2011, the petitioner was p revented from casting his votes by the Presiding Officer in the General Assembly Election on the ground of there being ’D’ inserted against his name in the vote r list. His request for correction of the same having not been entertained, he f iled Title Suit No. 95/2012 on 27.8.2012. It was further submitted by Mr. A.R. Sikdar, learned counsel for the pet 7. itioner that although the defendants in the suit who are Union of India ; Chief Election Commissioner of India ; State of Assam ; Election Commission ; the Dist rict Election Officer and Superintendent of Police, initially appeared in the sa id Title Suit proceeding but in view of their subsequent absence, the learned Mu nsiff No. 1 has passed an order for exparte hearing. But in the mean time, the p etitioner was served with the impugned notice dated 13.12.2012 issued by the For eigners Tribunal, Goalpara requiring his and his family members presence. By the said notice, they have been asked to appear before the Tribunal along with the supporting documents including the voter list of 1966 in response to the proceed ing that has been initiated under the Foreigners Act. others) ; AIR 1966 SC 1718 (Abdul Waheed Khan Vs. Bhawani and others Placing reliance on the decisions reported in (1) AIR 1961 SC 1526 (The 8. Union of India Vs. Ghaus Mohammad) ; 2010(2)GLT01 (Moslem Mondal and others Vs. Union of India and others) ; Review Judgement (RA 22/2010) dated 3.1.2013 passe d in Moslem Mandal (Supra) ; (2003) 6 SCC 151 (Sahebgouda and others Vs. Ogeppa and others) ; AIR 1969 SC 439 and 560 (Musamia Imam Haider Bax Razvi Vs. Rabari Govindbhai Ratnabhai and others and State of UP and others Vs. Shah Mohammad and ) ; (200 3) 6 SCC 220 (Dwarka Prasad Agarwal and another Vs. Ramesh Chander Agarwal and o thers) ; AIR 1965 SC 1942 (Kamala Mills Ltd. Vs. State of Bombay) ; (1997) 5 SCC 460 ( Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna Ranganayaka ) ; AIR 1948 (PATNA) 49(Luthra Uraon Vs. Samua Uraon and others) and AIR 1952 (MADRAS) 106 (Gadhavajhala Satyanarayanamurthi Vs. Rao aahed Y. Narayanamu rthi and others), Mr. Sikdar, learned counsel for the petitioner in his elaborat e and detailed argument, submitted that there cannot be any bar of jurisdiction of Civil court to determine the citizenship of a person. According to him, the Citizenship Act and the Foreigners Act having not excluded the jurisdiction of t he civil Court, the Title Suit filed by the petitioner is very much maintainable and the declaration thereof would prevail over the opinion rendered by the Fore igners Tribunal. Mr. A.R. Sikdar, learned counsel for the petitioner also submit ted that the issue being no longer resintegra in view of the judgement in Moslem Mondal (Supra), this Court is not entitled to adjudicate the same issue once ag mma ain. 9.
Legal Reasoning
Opposing the aforesaid submission, Mr. K.P. Pathak, learned ASGI, acting as Amicus Curiae in the matter with the assistance of Mr. M. Bhagawati, learned CGC submitted that having regard to the special law as envisaged in the Citizen ship Act and the Foreigners Act, there is implied ouster of jurisdiction of the civil court in the matter of determination of one’s citizenship. Referring to t he Moslem Mandal’s case (Supra), he submitted that while deciding the said case, the issue as has been raised in the present proceeding was not the issue and th us the observations made therein, cannot be said to be determination of the issu e in question. He submitted that the rights and liabilities associated with citi zenship can only be constitutional or statutory but can never be a right under c ommon law so as to agitate or assert the same by way of a civil suit as in the c ase of land Dispute, etc. 10. Referring to Articles 5 to 11 of the Constitution of India under Part-II (Citizenship), he submitted that the Parliament having enacted the Citizenship Act, 1955 for acquisition and termination of Indian citizenship, as provided fo r under Article 11 of the Constitution of India, there is automatic ouster of ju risdiction of civil Court in the matter of determination of citizenship. Referri ng to the provisions of Foreigners Act, 1946, he also submitted that the said ac t having specifically been enacted towards exercising certain powers in respect of foreigners, there is no question of entitlement to initiate simultaneous proc eeding by way of filing a suit for determination of the same issue. As regards t he power of the Foreigners tribunal by way of rendering ’Opinion (cid:29) as to whether a person is not a foreigner within the meaning of Foreigners Act, 1946, referri ng to the dictionary meaning, he submitted that (cid:28)Opinion (cid:29) being a statement by a Judge or Court of the decision reached in regard to a case tried or argued befo re them, expounding the law as applied to the case, and detailing the reasons up on which the judgement is based, it cannot be argued that such opinion is inferi or than the declaration made by the Civil Court. In this connection, he has spec ifically referred to the observations made in Moslem Mandal (Supra) in which the expression (cid:28)Opinion (cid:29) in reference to Civil Court jurisdiction was held thus :- We deem it necessary to point out that under the scheme of the Foreigner (cid:28)37. s Act, 1946, read with Foreigners (Tribunal) Order, 1964 (in short ’1964 order’) , the Tribunal, constituted under the 1964 Order, is required to give, on the ’ reference’ made to it, only an ’opinion’ whether the person, proceeded against, is or is not a ’foreigner’. For the purpose of rendering such an opinion, the Tr ibunal has to necessarily determine the question as to whether the person, again st whom a ’reference’ is made, is or is not an Indian citizen. The question as t o whether a person is or is not an Indian citizen can also be decided by a civil Court at the option of the person, who is alleged to be a foreigner or held to be a foreigner by the Tribunal constituted under the 1964 Order, inasmuch as a c ivil court is entitled to pass a decree declaring the status of a person as an I ndian citizen. By enacting the Foreigners Act and / or the 1964 Order, the power of the civil courts, to determine the status of a person as an Indian citizen, has not been taken away. 39. It is, thus, clear that on the basis of the pleadings of the parties in a writ proceeding and/or, on the basis of the documents placed on record in a wr it proceeding, a Court cannot determine the question as to whether a person is o r is not a foreigner. The determination of the question, as to whether a person is or is not a foreigner, falls, when a ’reference’ is made to a Tribunal under the provisions of the Foreigners Act read with the 1964 Order, within the ambit of the powers of the Tribunal and, in other cases, by a civil court of competent jurisdiction. We may hasten to point out that so far as the Tribunal is concern ed, it only renders an ’opinion’ with regard to the question as to whether the p erson alleged to be a foreigner is or is not a foreigner and, then, it is for th e Central Government or the authorities, otherwise empowered, to decide as to wh ether such a foreigner needs to be deported from the territory of India or not. Thus, the procedure, adopted, in the writ proceeding, in the present case of det ermining, on the basis of the pleadings made in the writ proceeding and the docu ments annexed thereto, whether the writ petitioners were or were not foreigners, cannot be said to be a legally permissible procedure. 106. There is yet another reason, which leads us to hold that the standard of proof in a proceeding before the Tribunal, constituted under the 1964 Order, is same as that of the civil court and the reason is that a civil court is entitle d, under Section 9 of the Code of Civil Procedure, to declare the status of a pe rson as an Indian citizen. This position is recognized even in Union of India Vs . Gaus Mohammed; AIR 1961 SC 1526, which the respondents have relied upon. When the civil court’s declaration, made under Section 9, is binding on the Governmen t, it logically follows that the Tribunal cannot adopt a higher standard than th e one, which is applied by the ordinary civil courts for the purpose of making a declaratory decree of the fact as to whether a suitor is or is not a foreigner. (cid:29) 11. Elaborating his argument, Mr. Pathak, learned ASGI and Amicus Curiae sub mitted that in view of the special law towards determination of citizenship, th ere is bar of jurisdiction of civil Court. He has also referred to certain decis ions which are (1) 2010 (2) GLT 1 (Moslem Mondal and others Vs. Union of India a nd others) ; the Full Bench decision dated 03.01.2013 in RA No. 22/2010 and othe r related writ appeals arising out of Moslem Mondal (Supra) ; AIR 2011 SC 3056 ( Arun Kumar Agarwal Vs. State of Madhya Pradesh) ; (2008) 10 SCC 01 (Official Liq uidator Vs. Dayanand and others) ; (1976) 1 SCC 496 (The Premier Automobiles Ltd . Vs. Kamlekar Shantaram Wadke of Bombay and others) ; (2008) 5 SCC 542 (Rajasth an State Road Transport Corporation and others Vs. Mohar Singh) and (2005) 5 SCC 665 (Sarbananda Sonowal Vs. Union of India and another). 12. Mr. K.N. Choudhury, learned Sr. AAG, Assam, assisted by Ms. A. Deka, lar ned counsel representing the State respondents submitted that when there is spec ial law covering a particular area then the general law is excluded. Referring t o the decision reported in Ghaus Mohammad (Supra), he submitted that the same wa s altogether in a different context and cannot help the case of the petitioner. Exclusively referring to the provisions of Foreigners Act, 1946 and the Citizens hip Act, 1955, he submitted that there cannot be any second opinion that the civ il court jurisdiction is ousted. He submitted that it was never the intention of the Central Govt. or the Parliament to confer jurisdiction to the Civil Court. As regards the aforesaid observation of the Division Bench in Moslem Mondal (Su pra) case, referring to the decision of the Apex Court reported in (1991) 4 SCC State of UP and another Vs. Synthetics and Chemicals Ltd. and another), 139 ( he submitted that when the said issue was not before the Division Bench, any ob servation made in the context of an issue for determination cannot be said to ha ve laid down the law on the issue involved in this proceeding. He also submitted that in view of the Full Bench decision arising out Moslem Mondal (supra) and n on-determination of the issue in question, when the said issue is directly invol ved in this proceeding, the same is required to be resolved by this Court. Refer ring to the case of Sarbananda Sonowal (Supra), he also submitted that after the said decision whatever doubt on the issue even if, was there, stands removed an d it cannot be argued that the civil Court jurisdiction is not ousted in view o f the special law holding the field. 13. I have very carefully considered the submissions made by the learned cou nsel for the parties and have also perused the entire materials on record. Befor e proceeding any further towards determination of the main issue involved in thi s proceeding, let me first deal with the argument advanced by the learned counse l for the petitioner that in view of the Division Bench judgement and Moslem Mon dal (Supra), the said issue cannot be taken up once again for determination as t he same conclusively stood answered in the said judgement.
Decision
14. Moslem Mondal (Supra) case had arisen out of a judgement dated 25.7.200 8 dismissing the writ petition being WP(C) No. 1355/2008, by which the opinion r endered by the Tribunal declaring the petitioners to be foreigners had been uphe ld. While answering the appeal against the said judgement, the Division Bench id entified certain questions of law which according to the Division Bench arose fo r consideration towards deciding the appeals. The said questions identified by t he Division Bench are incorporated in paragraph 43 of the judgement. For a ready reference, the said paragraph is reproduced below :- Certain common questions of law arise in all these appeals. Therefore, w (cid:28)43. e though it fit to request the learned counsel, appearing for the various partie s, in this batch of appeals, to identify the questions of law, which arise for c onsideration of this court for deciding this batch of appeals and make their sub missions. The learned Court for all the parties have accordingly made their subm issions on the commonly identified questions of law. The following questions of law are identified :- i) when proceedings under the Foreigners Act are initiated before the Tribu nal constituted under the Foreigners Order, 1964 on whom does the burden of proo f lie ? ii) whether the State is required to prima facie satisfy the Tribunal before a person, against whom proceedings are initiated, is called upon to discharge t he burden under Section 9 of the Foreigners Act ? iii) whether the documents prepared under the Census Act and the Electoral Ro lls prepared for the purpose of elections under the Representation of the People Act are admissible piece of evidence and if they are admissible what is the evi dentiary value of such documents ? iv) v) what is the standard of proof in such proceedings ? what is the role of the Tribunal in such proceedings ? (cid:29) 15. On a bare perusal of the said questions which the Division Bench had ide ntified for determination would go to show that the same did not include the que stion as to whether in view of the special law towards determination of citizens hip, the civil court jurisdiction is ousted. One of the the questions that was formulated by the Full Bench in Review Petition No 22/2010 arising out of the ju dgement in Moslem Mondal (Supra) along with some writ appeals being WA nos. 258/ 08, 264/08, 265/08, 266/08, 268/08, 280/08, 281/08, 370/08, 59/09, 71/09, 171/20 10, 313/2011 was as follows :- (cid:28) i) tion that the plaintiff is not a foreigner ? (cid:29) Whether the civil court has jurisdiction to entertain a suit for declara 16. As pointed out by the learned counsel representing the respondents inclu ding the Amicus Curiae, the said question was not answered by the Full Bench wit h the following observation :- (cid:28)114. The contention raised by the learned counsel for the parties as to whether the Civil Court has the jurisdiction to entertain a suit for declaration of his status as the citizen of India has not been gone into in the present appeals as the said question does not arise for consideration in these appeals. Hence, the decisions cited by the learned counsel appearing for the parties in that regard are not discussed. (cid:29) 17. It is in the above context coupled with the argument that the issue was not before the Division Bench in Moslem Mondal’s case, the issue cannot be said to have been conclusively determined precluding this Court from answering the is sue. In Moslem Mondal (Supra), the above quoted observations were in the context of examination of the documents annexed to the writ petitions. It was held tha t on the basis of such examination of documents annexed to the writ petition by the Single Judge on the basis of pleadings of the parties in a writ proceeding a nd / or on the basis of the documents placed on record in a writ proceeding, the Court cannot determine as to whether a persons is or is not a foreigner. 18. It will be pertinent to mention here the background fact of the aforesai d review petition and the writ appeals placed for determination by Full Bench. A gainst the Division Bench judgement in Moslem Mondal (Supra), the State of Assam had filed a review petition being RP No. 22/2010. As recorded in the Full Bench judgement when the review petition was taken up for consideration by a Division Bench, a prayer was made by the learned counsel appearing for the appellants in WP(C) No. 238/2008, to hear all the learned counsel appearing for the parties i n the appeal including the Amicus Curiae assisting the Court and to hear the rev iew petition along with other matters, which was accepted by the Court by order dated 17.5.2010. The matter was referred to a Full Bench considering the (cid:28)import ance of the issue involved in the matter and that there are number of judgements , which if are not taking contrary view but are taking different view (cid:29) other th an the view taken by the Division Bench in the judgment in Moslem Mondal (Supra) . It was pursuant to the said order, the review petition along with other connec ted matters relating to detection and deportation of foreigners under the provis ions of the Foreigners Act, 1946 read Foreigners (Tribunal) Order, 1964 had been placed before the Full Bench for hearing. 19. One of the questions formulated by the Full Bench was the one quoted abo ve. However, the said issue, although was not answered by the Full Bench but at the same time will have to be borne in mind that the Division Bench judgement in Moslem Mondal (Supra) stood merged with the Full Bench decision, in which the o ther issues raised therein have been answered. However, the particular issue wit h which this proceeding is concerned having not been answered by the Full Bench for the reasons stated therein, in my considered view, there cannot be any bar f or determination of the said issue in this proceeding. Above apart, as has been rightly submitted by both Mr. Pathak, learned A 20. SGI and Mr. K.N. Choudhury, learned Sr. AAG, Assam, the issue relating to civil court jurisdiction was not even an issue before the Division Bench. As to what w ere the issues has been noted above. It has also been noted above that the parti cular observation in respect of jurisdiction of civil court was in reference to the jurisdiction exercised by the writ court towards examining the documents ann exed to the writ petition. In Arun Kr. Aggarwala (Supra), it has been observed by the Apex Court th 21. at obiter dictum is a mere observation or remark made by the Court by way of aid while deciding the actual issue before it. The mere casual statement or observa tion which is not relevant, pertinent or essential to decide the issue in hand d oes not form the part of the judgement of the court and have no authoritative va lue. In paragraph 29, 30 and 31 of the said judgement, the Apex Court has reprod uced its earlier views in certain decisions and has also held thus :- (cid:28)29. d the concept of the obiter dictum thus: In State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court has discusse (cid:28)A decision, it is well settled, is an authority for what it decides and not wha t can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decis ion. It may be an expression of a viewpoint or sentiments which has no binding e ffect. See ADM, Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207). It is also well settled that the statements which are not part of the ratio decidendi constitut e obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. M ahadeva Shetty)(AIR 2003 SC 4172). (cid:29) 30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, this Court has held: (cid:28)Thus, observations of the Court did not relate to any of the legal questions ar ising in the case and, accordingly, cannot be considered as the part of ratio de cidendi. Hence, in light of the aforementioned judicial pronouncements, which ha ve well settled the proposition that only the ratio decidendi can act as the bin ding or authoritative precedent, it is clear that the reliance placed on mere ge neral observations or casual expressions of the Court, is not of much avail to t he respondents. (cid:29) 31. In view of above, it is well settled that obiter dictum is a mere observ ation or remark made by the court by way of aside while deciding the actual issu e before it. The mere casual statement or observation which is not relevant, per tinent or essential to decide the issue in hand does not form the part of the ju dgment of the Court and have no authoritative value. The expression of the perso nal view or opinion of the Judge is just a casual remark made whilst deviating f rom answering the actual issues pending before the Court. These casual remarks a re considered or treated as beyond the ambit of the authoritative or operative p art of the judgment. (cid:29) 22. In Dayanand (Supra), the Apex Court discussing on binding affects of jud gement of Supreme Court and the cardinal principles involved in judicial discipl ine, observed thus :- (cid:28)92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB V. P ooran Chandra Pandey {(2007) 11 SCC 92 } should be read as obiter and the same s hould neither be treated as binding by the High Courts, tribunals and other judi cial foras nor they should be relied upon or made basis for bypassing the princi ples laid down by the Constitution Bench. (cid:29) 23. ng significant observation :- In Synthetics and Chemicals Ltd (Supra), the Apex Court made the followi Does this principle extend and apply to a conclusion of law, Which was n (cid:28)41. either raised nor preceded by any consideration. In other words can such conclus ions be considered as declaration of law? Here again the English Courts and juri sts have carved out an exception to the rule of precedents. It has been explaine d as rule of sub-silentio. ’A decision passes sub-silentio, in the technical sen se that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind.’ (Salmond on jurisprudence 12th Edition, P.153). In Lancaster Motor Company (Lon don) Ltd. v. Bremith Ltd., [1941] IKB 675, 677 the Court did not feel bound by e arlier decision as it was rendered ’without any argument, without reference to t he crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur, [1989] 1 SCC 101. The Bench held that, ’precedents sub-silentio and without argument are of no moment’. The Courts thus have taken recourse to this principle for reliev ing from injustice perpetrated by unjust precedents. A decision which is not exp ress and is not founded on reasons nor it proceeds on consideration of issue can not be deemed to be a law declared to have a binding effect as is contemplated b y Article 141. Uniformity and consistency are core of judicial discipline. But t hat which escapes in the judgment without any occasion is not ratio decedendi. I n D. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480 it was observ ed, ’it is trite to say that a decision is binding not because of its conclusion s but in regard to its ratio and the principles, laid down therein’. Any declara tion or conclusion arrived without application of mind or preceded without any r eason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of st ability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. (cid:29) 24. In Delhi Airtech Services Pvt. Ltd. Vs. State of UP reported in (2011) 9 SCC 354 dealing with the concept of sub-silentio, the Apex Court held that when a point does not fall for decision of a Court, it incidentally arises for its c onsideration and is not necessary to be decided for the ultimate decision of the case, such a decision does not form a part of the ration of the case but the sa me is treated as a decision passed sub-silentio. (cid:28)43. ence (cid:28)12th Edition (cid:29) as follows: The concept of ’sub silentio’ has been explained by Salmond on Jurisprud (cid:28)A decision passes sub silentio, in the technical sense that has come to be atta ched to that phrase, when the particular point of law involved in the decision i s not perceived by the Court or present to its mind. The Court may consciously d ecide in favour of one party because of point A, which it considers and pronounc es upon. It may be shown, however, that logically the Court should not have deci ded in favour of the particular party unless it also decided point B in his favo ur; but point B was not argued or considered by the Court. In such circumstances , although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is sai d to pass sub silentio. (cid:29) The aforesaid passage has been quoted with approval by the three Judge B (cid:28)44. ench in Gurnam Kaur (supra). This Court in Gurnam Kaur (supra), in order to illu strate the aforesaid proposition further relied on the decision of the English C ourt in Gerard v. Worth of Paris Ltd., reported in 1936 (2) All England Reports 905. In Gerard, the only point argued was on the question of priority of the cla imant’s debt. The Court found that no consideration was given to the question wh ether a garnishee order could be passed. Therefore, a point in respect of which no argument was advanced and no citation of authority was made is not binding an d would not be followed. This Court held that such decisions, which are treated having been passed sub silentio and without argument, are of no moment. The Cour t further explained the position by saying that one of the chief reasons behind the doctrine of precedent is that once a matter is fully argued and decided the same should not be reopened and mere casual expression carry no weight. (cid:29) 45. In Gurnam Kaur (supra) this Court conclusively held that : (cid:28)12. eated as (cid:28)ex cathedra statement, having the weight of authority (cid:29) & & & &.Not every passing expression of a Judge, however eminent, can be tr 46. Similarly, it has also been held by the majority opinion in Constitution Bench of this Court in the case of Madhav Rao Jivaji Rao Scindia v. Union of In dia, reported in AIR 1971 SC 530 that : (cid:28)it is difficult to regard a word, a clause or a sentence occurring in a judgmen t of this Court, divorced from its context, as containing a full exposition of t he law on a question when the question did not even fall to be answered in that judgment. (cid:29) 47. In another Constitution Bench decision of this court in Padma Sundara Ra o (Dead) & Ors., v. State of Tamil Nadu & others reported in (2002) 3 SCC 533, s imilar views have been expressed by this Court in para 9, at page 540 of the rep ort wherein the unanimous Constitution Bench of this Court opined: (cid:28)9. Court should not place reliance on decisions without discussing as to how th e factual situation fits in with the fact situation of the decision on which rel iance is placed. There is always peril in treating the words of a speech or judg ment as though they are words in a legislative enactment, and it is to be rememb ered that judicial utterances are made in the setting of the facts of a particul ar case, said Lord Morris in Herrington V. British Railways Board - (1972) AC 87 7. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. (cid:29) 25. A (cid:28)decision (cid:29) necessarily involves determination of each question of law /issue which arose and decided in a given case. In Moslem Mandal (Supra) case, t he question / issue involved in the present proceeding did not arise at all. The observation made in the said case, referred to above, cannot be said to constit ute any binding precedent. Moreover, the Full Bench, although formulated the que stion, but having not answered the same due to the reasons stated in the judgeme nt and referred to above, it is very much open for determination. It was also su bmitted that the observations in Moslem Mondal (Supra) was de horse any argument by the parties on the issue. 26. Having regard to the aforesaid position, more particularly, when the iss ue under consideration of this Court was not the issue before the Division Bench in Moslem Mondal (Supra) coupled with the fact that before the Full Bench, the said issue was formulated but was not answered, I am of the considered opinion t hat this court is not precluded from answering the said issue. As already noted above, pursuant to the review and writ appeal proceedings before the Full Bench and the judgement delivered therein, the Division Bench judgement also got merge d with the said Full Bench judgement, as not only the appeal which was already d ecided by the Division Bench but also other connected appeals including the revi ew petition have been decided afresh by the said Full Bench. 27. This now leads us to the moot question as to whether one’s citizenship c an be determined by a declaration in the civil Court irrespective of the special law existing for the purpose. Section 9 of the Civil Procedure Code provides th at the Courts have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. Order 07 Rule 10 and 11 of the CPC provides for return of plaints and rejection of pla int respectively. Under Rule 10, the plaint shall at any stage of the suit is re quired to be returned, to be presented to the Court in which the suit should hav e been instituted. On the other hand, Rule 11 provides for rejection of plaint i nteralia on the ground of the suit being barred by law. Thus, if it is held that the plaint submitted by the petitioner on the basis of which the aforesaid suit has been registered in the Court of learned Munsiff No.1, Goalpara is barred by the provisions of citizenship Act read with Foreigners (Tribunal) Order, 1964 a nd the Foreigners Act, 1946, the same will have to be returned to the petitione r. 28. Articles 5 to 10 of the Constitution deal with citizenship like citizens hip at the commencement of the constitution ; rights of citizenship of certain m igrants to Pakistan, rights of citizenship of certain persons of Indian origin r esiding outside India ; persons voluntarily acquired citizenship of a foreign co untry, continuance of the rights of citizenship, etc. Apart from the said provis ion Article 11 empowers the Parliament to regulate the rights of citizenship by law, in terms of which nothing in the provisions contain in Article 1 to 10, sha ll derogate from the powers of Parliament to make any provision with respect of the acquisition and termination of citizenship and all other matters relating to citizenship. The Citizenship Act, 1955 was enacted to provide for acquisition and ter 29. mination of Indian citizenship. The statement of objects and reasons pertaining to the said Act, interalia read as follows :- (cid:28)Statement of Objects and Reasons.- Articles 5 to 9 of the Constitution determin e who are Indian citizens at the commencement of the Constitution and article 10 provides for their continuance as such citizens subject to the provisions of an y law that may be made by Parliament. The Constitution does not, however, make a ny provision with respect to the acquisition of citizenship after its commenceme nt or the termination of citizenship or other matters relating to citizenship. U nder article 11 of the Constitution expressly saves the power of Parliament to m ake a law to provide for such matters. It is obviously necessary to make such a law to supplement the provisions of the Constitution and this Bill seeks to achi eve this object. This Bill provides for the acquisition of citizenship, after the commencement of the Constitution, by birth, descent, registration, naturalization and incorpora tion of territory. It also makes necessary provisions for the termination and de privation of citizenship under certain circumstances. The Bill also seeks to for mally recognize Commonwealth citizenship and permit the Central Government to ex tend on a reciprocal basis such rights of an Indian citizen as may be agreed upo n to the citizens of other Commonwealth countries and the Republic of Ireland. (cid:29) By an amendment Act 65 of 1985, it was further provided as follows :- 30. (cid:28)Amendment Act 65 of 1985 - Statement of Objects and Reasons - The core of the M emorandum of Settlement (Assam Accord) relates to the foreigners’ issue, since t he agitation launched by the A.A.S.U. arose out of their apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adver se effects upon the political, social cultural and economic life of the State. (2) Assam Accord being a political settlement, legislation is required to gi ve effect to the relevant clauses of the Assam Accord relating tom the foreigner s’ issue. (3) It is intended that all persons of Indian origin who came to Assam befor e the 1st January, 1966 (Including such of those whose names were included in th e electoral rolls used for the purpose of General Election to the House of the P eople held in 1967) and who have been ordinarily resident in Assam ever since sh all be deemed to be citizens of India as from the 1st day of January, 1966. Furt her, every person of Indian origin who came on or after the 1st January, 1966 bu t before the 25th March, 1971 from territories presently included in Bangladesh and who has been ordinarily resident in Assam ever since and who has been detect ed in accordance with the provisions of the Foreigners act, 1946 and the Foreign ers (Tribunals) Order, 1964, shall, upon registration, be deemed to be a citizen for all purposes as from the date of expiry of a period of ten years from the d ate of detection as a foreigner. It is also intended that in the intervening pe riod of 10 years, these persons should not suffer from any other disability vis- à-vis citizens, excepting the right to vote and that proper record shall be main tained of such persons. To inspire confidence, judicial element should be associ ated to determine eligibility in each and every case under this category. (cid:29) 31. By further Amendment Act 6/04 and Amendment Act 32/05, further amendment s to the Citizenship Acts were brought about in respect of Acquisition of Indian Citizenship by Registration, Prevention of Illegal Migrants from Becoming eligi ble for Indian Citizenship, etc. 32. Foreigners Act, 1946 is an Act to confer upon the Central Government cer tain powers in respect of foreigners. The statement of objects and reasons inclu ding the amendment Act 42 of 1962 are reproduced below :- (cid:28)Statement of Objects and Reasons - At present the only permanent measures gover ning foreigners specifically are the Registration of Foreigners Act of 1939 and the Foreigners Act, 1864. The Act of 1939 provides for the making of rules to re gulate registration of foreigners and formalities connected therewith, their mov ement in, or departure from, India. The Act of 1864 provides for the expulsion o f foreigners and their apprehension and detention pending removal and for a ban on their entry into India after removal ; the rest of the Act which provides fo r report on arrival, travel under a license and certain incidental measures can be enforced only on the declaration of an emergency. The powers under this Act have been found to be ineffective and inadequate both during normal times and du ring an emergency. The needs of the war emergency were met by the enactment of a Foreigners Ordinan ce in 1939 and the promulgation under it of the Foreigners Order and the Enemy F oreigners Order. Even at that time the need for more satisfactory permanent legi slation was recognized but it was decided to postpone consideration of such a me asure until after the war. The Ordinance was, therefore, replaced by the Foreign ers Act, 1940, the life of which was to expire on the 30th September, 1946, but has recently been extended by the Foreigners (Amendment) Ordinance, 1946, upto t he 25th March, 1947. Meanwhile the question of permanent legislation, more or less on the lines of th e Act of 1940 has been examined, in consultation with the Provincial Government. All Provincial Governments agree that such permanent legislation in repeal of t he Act of 1864, is necessary. The Bill in the main reproduces the provisions of the Foreigners Act of 1940. Amendment Act 42 of 1962 - Statement of Objects and Reasons - In view of the pre sent emergency, it is necessary that powers should be available to deal with any person not of Indian origin who was at birth a citizen or subject of any countr y at war with, or committing external aggression against, India or of any other country assisting the country at war with or committing such aggression against India but who may have subsequently acquired Indian citizenship in the same mann er as a foreigner. It is also necessary to take powers to arrest and detain and confine these persons and the nationals of all such countries under the Foreigne rs Act, 1946, should such need arise. Since the Parliament was not in session and immediate action had to be t 2. aken in the interest of national security an Ordinance called the Foreigners Law (Application and Amendment) Ordinance, 1962, was promulgated on 30th October, 1962, to take the above powers. The object of the Bill is to convert this Ordnan ce into an Act of the Parliament. (cid:29) 33. There is provision in the Act for determination of nationality (Section 8), Burden of Proof (Section 9), Power to exempt from application of the Act (Se ction 10), power to give effect to orders / directions etc (Section 11) etc. 34. Under the Foreigners (Tribunal) Order, 1964 issued by the Govt. of India , Ministry of Home Affairs, the Central Government may be order refer the questi on as to whether a person is not a foreigner within the meaning of the Foreigner s Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. The procedure envisaged for disposal of questions under Order No.3 is to the effect that the Tribunal shall serve on the person, to whom the question relates, a co py of the main grounds on which he is alleged to be a foreigner and give him a r easonable opportunity of making a representation and producing evidence in suppo rt of his case and if considered such evidence as may be produced and after hear ing such persons as may desired to be heard, the Tribunal shall submits its opin ion to the officer or authority specified in this behalf in the order of referen ce. Power of Tribunal under 4 is as follows :- (cid:28)4. Power of Tribunals ;- The Tribunal shall have the powers of a civil court while trying a suit under th e Code of Civil Procedure, 1908 in respect of the following matters, namely :- (a) n oath ; summoning and enforcing the attendance of any person and examining him o (b) requiring the discovery and production of any document ; (c) issuing commissions for the examination of any witness. (cid:29) Citizenship Act, 1955 deals with citizenship by birth, by decent, by reg 35. istration, by naturalization. By Amendment act 65 of 1985, Section 6(A) has been inserted as special provisions as to citizenship of persons covered by the Assa m Accord. The Act also deals with the situations arising out of renunciation of citizenship, termination of citizenship, deprivation of citizenship, etc. Sectio n 18 of the Act makes provisions for making rules by the Central Government. 36. It is under the said provision, the Citizenship Rules has been framed la ying down the procedure for registration as provided for under the Act. Under Pa rt-IV of the Citizenship Rules, there is provision as to citizenship of India fo r persons covered by Assam Accord. Rule 19 prescribes the Registering Authority and the form of registration. Significantly, Rule 20 provides for reference to T ribunals. Whether in case of a person seeking registered under Sub-section 3 of Section 6(A) in question arises as to whether such person fulfills any requirem ent contained in the said sub-section or the opinion of the Tribunal constituted under Foreigners (Tribunal) Order, 1964 in relation to such person does not con tain a findings with respect to any requirement contained in the said sub-sectio n other than the question that he is a foreigner, than the Registering authority shall, within a period of 15 days of receipt of the application under Sub-Rule 2 of Rule 19 make a reference to the Tribunal in this regard. Sub-Section3 of Se ction 6(A) deals with the person of Indian origin who came to Assam on or after the first date of January, 1966 but before 25th day of March, 1971. 37. Rule 21 of the Citizenship Rules determines the jurisdiction of Tribunal as follows :- (cid:28)21. Jurisdiction of Tribunal. - The Tribunal constituted under the Foreigners ( Tribunals) Order, 1964 having jurisdiction over a district or part thereof in th e State of Assam shall have jurisdiction to decide references, received from the registering authority of that district or part thereof in relation to all refer ences made under sub-section (3) of section 6-A. (cid:28) 38. There are other provisions regarding the form in which declaration relat ing to citizenship is to be made in certain circumstances, renunciation and depr ivation of citizenship of India, etc. There is no manner of doubt that the prov isions contained in the Citizenship Act, 1955 and the Foreigners Act, 1946 are a ll inbuilt provision and in case of requiring any determination relating to citi zenship of a person, it is only by the Central Government and / or by the Foreig ners Tribunal made applicable to the State of Assam, have jurisdiction over the same and by necessary implication, the jurisdiction of the civil Court stands ou sted. Let me now deal with the cases cited by the learned counsel for the part 39. ies in support of their respective cases. In Ghaus Mohammad (Supra), it was held that a proceeding under Article 226 of the Constitution was not appropriate for a decision on the question as to whether the respondents therein was a foreigne r. It was held that the question would stand best decided by a suit on which nei ther party had any serious objection. Unlike the present case, in the said case, there was no provision for determination of such issue by the Foreigners Tribun al. The determination was made by the Chief Commissioner of Delhi when he direct ed that the respondent should not remain in India after the expiry of 3 (three) days from the date on which the particular notice was served on him. The respond ent instead of complying with the said order moved the High Court for a writ to quash the notice. It was in that context, the Apex Court granted liberty to the respondent therein to pursue his remedy by filing a suit instead of initiating a proceeding under Article 226 of the Constitution of India. Apart from the fact that the issue before the Court was not as to whether the civil suit would be ma intainable or not, that was also not a case of ousting the jurisdiction of the F oreigners tribunals inasmuch as admittedly the forum of Foreigners Tribunal was not available in that case, unlike the instant case. Thus, in my considered opin ion, the said case is of no help to the case of the petitioner. 40. As regards the Division Bench decision in Moslem Mondal (Supra), the sam e has been dealt with in detail in earlier part of this judgement. The said deci sion is also of no help to the case of the petitioner for the reasons stated her einabove. In Sahebgouda (Supra), the Apex Court had the occasion to answer the q uestion whether the suit filed by the appellants was barred by the provisions of Section 80 of the Bombay Public Trust Act, 1950. It was held that the jurisdic tion of Civil court under Section 9 of the CPC is not to be lightly interfered. However, noticing the said provision, it was also observed that such exclusion o f jurisdiction of the civil Court could be either of express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. In the instant case as has been discussed above, the jurisdiction of civil Court is excluded by necessary implication. The question of citizenship cannot be determ ined by application of common law but will have to be decided in reference to th e special law framed for the purpose i.e. the Citizen Act and the Foreigners Act . Before examining the first limb of the question, formulated above, it wo The Division Bench decision in Moslem Mondal’s case is not applicable to the issue raised in this writ petition. In this connection para 14 of the decis ion of the Apex Court reported in (2011) 7 SCC 397 (Union of India and others Vs . Arulmozhi Iniarasu and others) is quoted below :- (cid:28)14. uld be instructive to note, as a preface, the well settled principle of law in t he matter of applying precedents that the Court should not place reliance on dec isions without discussing as to how the fact situation of the case before it fit s in with the fact situation of the decision on which reliance is placed. The ob servations of the courts are neither to be read as Euclid’s theorems nor as prov isions of statute and that too taken out of their context. These observations mu st be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additi onal or different fact may make a world of difference between conclusions in two cases.(Ref. Bharat Petroleum Corpn. Ltd. Vs. N.R. Vairamani reported in (2004) 8 SCC 579 & &. (cid:29) 41. In Dwarka Prasad Agarwal (Supra) also the Apex Court observed that bar o f jurisdiction of civil court is not to be readily inferred. In that case, the d ispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Unlike the said case, in the instant case, apart from the fact that the jurisdiction of civil court stands ousted in view of the provisions of the Citizenship Act and the Foreigners Act, the question fo r determination is eminently a question to be answered by the Foreigners tribuna l as per the provisions of the said two Acts. 42. In Musamia Imam Haider Bax Rajvi (Supra), the Apex Court was concerned with the provisions of Bombay Tenancy and Agricultural Land Act. It was held tha t the provisions thereof did not bar the jurisdiction of the civil Court to exam ine and decide the question whether the defendants had acquired the title of sta tutory owners to the disputed land under the Act. In Ganpatlal (Supra), the Apex Court noticing that there was no ouster of civil court jurisdiction by the Bera r Regulation of Agricultural Leases Act, either expressly or by necessary implic ations, held that the suit was maintainable. 43. None of the aforesaid two decisions can render any help to the case of t he petitioner, inasmuch as, while in the first case, it was a dispute relating t o title in respect of the disputed land, in the second case, there was no exclus ion of jurisdiction of civil court either by express provision or by necessary i mplication. Unlike the said cases, the question involved in this proceeding is a s to whether any right of citizenship can be decided by the civil court irrespec tive of empowerment of such determination by the Foreigners Tribunal constituted under the provisions of the aforesaid two Acts along with the Foreigners (Tribu nal) Order, 1964. 44. The decision in Abdul Waheed Khan (Supra) is also of no help to the case of the petitioner inasmuch as it was found that Section 71 of the Bhopal State Land Revenue Act did not comprehend decision on question of title. Accordingly, it was held that a suit in civil court for declaration of title and possession a gainst trespassers is not barred. The other decision referred to by the learned counsel for the petitioner, namely, Dwarka Prasad Agarwal (Supra) is also of no help to the case of the petitioner, which are more or less on the principles tow ards maintainability of the civil suit in absence of any express or implied bar. 45. Section 2(a) of the Foreigners act, 1946 defines (cid:28)Foreigner (cid:29) as a person who is not a citizen of India. As to whether a person is a foreigner or not and / or whether he is an Indian citizen or not is a question necessarily to be det ermined as per the provision of the Citizenship Act, 1955 and the Foreigners Act , 1946 with the aid of the Foreigners (Tribunal) Order, 1964. Under the said ord er, the Central Government, may by order, refer the question as to whether a per son is not a foreigner within the meaning of Foreigners act, 1946 to a Tribunal to be constituted for the purpose, for its opinion. In AIR 1969 SC 78 (Dhulabhai and others Vs. State of Madhya Pradesh and 46. others), dealing with the principles regard exclusion of jurisdiction of civil c ourt, the Apex Court held thus :- (cid:28)Where there is an express bar of the jurisdiction of the court, an examinati on of the scheme of the particular Act to find the adequacy or the sufficie ncy of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examina tion of the remedies and the scheme of the particular Act to find out the intend ment becomes necessary and the result of the inquiry may be decisive. In the l atter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and furt her lays down that all questions about the said right and liability shall b e determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute o r not. (cid:29) 47. In State of UP Vs. Shah Mohammad reported in AIR 1969 SC 1234, the Apex Court dealing with the provision of Section 9 of the Citizenship Act read with R ule 30 of the Citizenship Rules, 1956, held that pending suit involving question s falling within the said Sections and Rules was not maintainable and that civil court jurisdictions stood ousted by the provisions of the said Section and Rule s. In that case, the plaintiff had gone to Pakistan after 26.1.1950 and before c ommencement of the Citizenship Act, 1955, returned to India on a Visa issued by the Indian High Commission in Pakistan. He instituted a suit before the commence ment of the Act for a declaration that in the circumstances of the case his nati onality never changed even though he had gone to Pakistan and that he continued to remain citizen of India. It was contended by the Govt. that a civil Court had no jurisdiction to decide the question arising in the suit in view of Section 9 of the Citizenship Act. The High Court rejected the objection and framed issue on the question whether the plaintiff had or had not acquired the citizenship of Pakistan during his stay there and remitted the case to the lower appellate cou rt for a finding on that basis. Allowing the appeal, it was held that under Arti cle 11 of the Constitution of India, the Parliament has the power to make any pr ovision with respect to the acquisition and termination of citizenship and all o ther matters relating to citizenship. The Parliament could thus regulate the rig ht of citizenship by law. It was held that if a question arises as to whether, w hen or how an Indian citizen has acquired the citizenship of another country, th at has to determined by the Central Government by virtue of provision of Sub-Sec tion 2 of Section 9 read with Rule 30 of the Citizenship Rules. In paragraph 7 a nd 8 of the judgement, it has been observed thus :- It has next been contended that retrospective operation should not be gi 7. ven to Sec. 9 of the Act because loss of Citizenship is a serious and grave matt er and it involves loss of personal liberty. Under Article 21 no person can be d eprived of his life or personal liberty except according to procedure establishe d by law. The procedure established by law before the commencement of the Act wa s the ordinary procedure of determination by civil courts whenever a question ar ose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned counsel for respondent No. 1 that b y giving retrospective operation to Sec. 9 so as to make it applicable to pendin g proceedings the provisions of Article 21 will be contravened or violated. This would render Sec. 9 of the Act unconstitutional. It is somewhat difficult to ap preciate the argument, much less to accede to it. If the Parliament was competen t under Article 11, which is a constitutional provision read with the relevant E ntry in List 1, to legislate about cases of persons belonging to categories 2 an d 3 referred to at a previous stage it could certainly enact a legislation in ex ercise of its sovereign power which laid down procedure different from the one w hich obtained before. The new procedure would itself become the \procedure estab lished by law\ within the meaning of Article 21 of the Constitution. Therefore e ven on the assumption that loss of Indian citizenship with consequent deportatio n may involve loss of personal liberty within the meaning of Article 21, it is n ot possible to hold that by applying Sec. 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the A ct there would be any contravention or violation of that Article. 8. In conclusion it may be mentioned that this Court, in several cases, has consistently held that questions falling within Sec. 9(2) have to be determined to the extent indicated therein by the Central Government and not by the Courts . Such matters as are not covered by that provision have, however, to be determi ned by the courts; (see Akbar Khan Alam Khan Vs. Union of India reported in 1962 (1)SCR 779 and The Government of Andhra Pradesh Vs. Syed Mohd. Khan reported in (1962) Supp (3) SCR 288. (cid:29) In the said case, the particular determination fell on the Central Gover 48. nment ousting the jurisdiction of the civil Court. In the instant case and for t hat matter in all cases pertaining to citizenship and as to whether a person is a foreigner or not fall within the jurisdiction of the Foreigners tribunal as pe r the provisions of the Citizenship Act and the Foreigners Act aided by the Fore igners (Tribunal) Order, 1964 and cannot be determined by the civil Court. 49. In The Premier Automobiles (supra), dealing with Section 9 of the CPC a nd the question of ouster of civil court’s jurisdiction, the Apex Court held thu s :- (cid:28)23. urt in relation to an industrial dispute may be stated thus : To sum up, the principles applicable to the jurisdiction of the Civil Co (1) If the dispute is not an industrial dispute, nor does it relate to enfor cement of any other right under the Act the remedy lies only in the civil court. (2) If the dispute is an industrial dispute arising out of a right or liabi lity under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concern ed to choose his remedy for the relief which is competent to be granted in a par ticular remedy. (3) If the industrial dispute relates to the enforcement of a right or an ob ligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under th e Act such as Chapter VA then the remedy for its enforcement is either section 3 3C or the raising of an industrial dispute, as the case may be. 24. We may, however, in relation to principle 2 stated above hasten to add t hat there will hardly be a dispute which will be an industrial dispute within th e meaning of section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Ac t will be an industrial dispute even though it may otherwise be an individual di spute. Civil Courts, therefore, will have hardly an occasion to deal with the ty pe of cases falling under principle 2. Cases of industrial disputes by and large , almost invariably, are bound to be covered by principle 3 stated above. (cid:29) 50. In Rajasthan State Road Transport Corporation (Supra)also the Apex Court had the occasion to deal with the jurisdiction of civil court in Labour Dispute s. Referring to the law laid down in Premier Automobile Ltd. (Supra) case held t hat the civil Court jurisdiction is barred when a right is claimed. The question which arose before the Apex Court was as to whether the provisions of the Indus trial Disputes Act 1947 bar the jurisdiction of the civil Court by necessary imp lication, it was held that the principles laid down in Premier Automobile Ltd. ( Supra) should be complied. 51. In Rajasthan SRTC Vs. Krishnakant reported in (1995) 5 SCC 75, it was h eld by the Apex Court that where a dispute involves recognition, observance and enforcement of rights and obligations created under the Industrial Disputes Act and / or its sister enactments, such as Industrial Employment (Standing Orders) Act, the civil court will have no jurisdiction. In Premier Automobile Ltd. (Supr a) was explained in the said case with the following observations :- (cid:28)25. It is the Principle No. 2, and particularly the qualifying statements in pa ra 24, that has given rise to good amount of controversy. According to Principle No. 2, if the dispute is an industrial dispute arising out of a right or liabil ity under the general or common law and not under the Industrial Disputes Act, t he jurisdiction of the civil court is alternative and it is left to the person c oncerned either to approach the civil court or to have recourse to the machinery provided by Industrial Disputes Act. But Principle No. 2 does not stand alone; it is qualified by para 24. Now what does para 24 say? It says (i) in view of th e definition of \industrial dispute\ in the Industrial Disputes Act, there will hardly be an industrial dispute arising exclusively out of a right or liability under the general or common law. Most of the industrial disputes will be dispute s arising out of a right or liability under the Act. (ii) Dismissal of an unspon sored workman is an individual dispute and not an industrial dispute (unless of course, it is espoused by the union of workmen or a body of workmen) but Section 2-A has made it an industrial dispute. Because of this ’civil courts will have hardly an occasion to deal with the type of cases falling under Principle No. 2’ . By and large, industrial disputes are bound to be covered by Principle No. 3. (Principle No. 3 says that where the dispute relates to the enforcement of a rig ht or obligation created by the Act, the only remedy available is to get an adju dication under the Act.)\ 52. In Rajeev Kumar and another Vs. Hemraj Singh Chauhan and others reported in (2010) 4 SCC 554, the Apex Court noticing that the Division Bench of the Hig h Court allowed the appeals to treat the High Court as a Court of first instance in respect of the service disputes raised by the appellants for adjudication, o f which the Central Administrative Tribunal (CAT) has been constituted, held tha t the High Court clearly fell into an error in entertaining the matter as if it was the Court of first instance. As has been held in L. Chandra Kumar Vs. Union of India reported in (1997) 3 SCC 261, the Central Administrative Tribunal is th e Court of first instance in service related maters and it is only there after t he aggrieved party can approach the High Court for adjudication by a Division Be nch. This aspect of the matter is mentioned to take note of the situation in whi ch a special Tribunal is constituted for adjudication of certain matters. 53. In V. Kishan Rao Vs. Nikhil Super Speciality Hospitali reported in (2010 ) 5 SCC 513, the Apex Court holding the particular directions issued in Martin F . D’Souza Vs. Mohd. Ishfaq reported in (2009) 3 SCC 1 was contrary to the consum er Protection Act, 1986 also reminded the background in which the act was enacte d. It was held that the Act was enacted to provide for greater protection of the interest of the consumers by providing Fora for quick and speedy disposal of th e grievances of the consumers. In the instant case also, Foreigners Tribunals ha ve been constituted as per the provisions of the aforesaid two acts and the dire ction of the Apex Court in Sarbananda Sonowal-1 Vs. Union of India and others re ported in AIR2005SC 2920 which cannot be frustrated by taking recourse to civil suit proceeding. 54. In Dayaram Vs. Sudhir Batham and other