High Court
Case Details
WA 104/2013 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA HON’BLE MR. JUSTICE L.S. JAMIR (ORAL)
Decision
Hazarika, J In this writ appeal, the validity of the orders dated 13.3.2012 and 30.11.2012 p assed by the learned Single Judge in WP(C) No.195/2012 (Annexure-W) and Review P etition No.140/2012 (Annexure-W-5) respectively, dismissing the writ petition as well as the review petition filed by the present appellant has been put to chal lenge. 2. Heard Mr. AR Sikdar, learned counsel appearing for the petitioner. Also heard Ms HM Phukan, learned State counsel appearing for respondent Nos.1 and 2 a nd Mr. M Bhagabati, learned CGC appearing for respondent No.3. The facts, in brief, may be noted at the outset,- 3. 3.1. The appellant as writ petitioner filed the writ petition being WP(C) No. 195/2012 praying for setting aside the ex-parte judgment and order dated 31.12.2 004 passed by the learned Foreigners Tribunal, (’Tribunal’ for short) Barpeta ho lding that the petitioner is an illegal migrant within the meaning of Section 3( 1)(c) of the Illegal Migrants (Determination by Tribunals) Act, 1983 [’IM(D)T’ A ct for short]. 3.2. Subsequent to the passing of the said ex-parte judgment and order dated 31.12.2004, the appellant had filed an application on 11.4.2005 before the Tribu nal praying for setting aside and vacating the said ex-parte judgment and order on the ground that no notice was served upon him. It was also contended therein that unless the judgment and order dated 31.12.2004 was set aside and the petiti oner was allowed to submit documents, the petitioner would suffer irreparable lo ss and injury. 3.3. cate the order dated 31.12.2004. 3.4. Perusal of the order dated 7.5.2005 would reveal that one Taraprasad Das appeared before the Tribunal and by filing a petition sought for another date s tating the cause of absence of the second party (appellant herein) on that date. But on the next date fixed, i.e. 22.12.2003, the second party (proceedee) was absent without taking any steps and accordingly, prayer for vacating the ex-part e order was rejected. The order dated 7.5.2005 is quoted hereinbelow;- However, vide order dated 7.5.2005, the Tribunal refused to set aside/va (cid:28)ORDER Date-7-5-05 Case record put up with the petition filed by the Second Party. Second P arty stated that he did not receive any notice issued from the court and hence p rayed to vacate the exparte Order and Judgment and give him chance to adduce evi dence. Perused the case record. It appears that the case was registered on 16/9 /03 fixing for appearance of the second party on 7/10/03. Notice was not returne d on 7/10/03 and second party was also not appeared on that date and the next da te was fixed on 28/11/03. On that day one Tara Prasad Das of the same village of the second party appeared and by filing a petition took another date stating ca use of absence of the second party on that date. But on the next date i.e. 22/12 /03 the Second Party was absent without taking any steps and accordingly case wa s proceeded ex-parte. Later on, after examination of the Local Verification Offi cer ex-parte Judgment was delivered on 31/12/04. Hence, prayer of the petition c annot be accepted at this stage. Accordingly prayer is rejected. (cid:29) 3.5. Being aggrieved, the petitioner had filed a writ application under Artic le 226 of the Constitution of India, challenging the legality and validity of th e aforesaid two orders dated 31.12.2004 and 7.5.2005 respectively on the ground that if the aforesaid orders are not set aside, he would suffer irreparable loss and injury, as the same would confirm his citizenship status. This Court after hearing the learned counsel appearing for the parties a 3.6. nd upon perusal of the materials on record did not incline to invoke the extra o rdinary power under Article 226 of the Constitution of India and vide order date d 13.3.2012 dismissed the writ petition on the ground of delay. 3.7. The appellant thereafter filed a review petition being Review Petition N o.140/2012 on the ground that the appellant had challenged the ex-parte judgment and order dated 31.12.2004 by way of filing an appeal before the IM(D)T Appella te Tribunal, Guwahati; being IM(D)T Appellate Case No.35/2005, thereby explainin g the delay in filing the writ petition. However, the said review petition was a lso dismissed by the learned Single Judge on 30.11.2012 due to non-placing of an y order passed by the Appellate Tribunal in the record. 3.8. In our considered opinion, there is no serious error on the part of the appellant for not furnishing any order passed by the Appellate Tribunal before t he court, inasmuch as, after scrap of the IM(D)T Act and Rules by the Hon’ble Su preme Court, the Tribunals and Appellate Tribunals constituted under IM(D)T Act ceased to function. 3.9. This writ appeal has been preferred against the aforesaid orders dated 1 3.3.2012 and 30.11.2012 passed in WP(C) No.195/2012 and Review Petition No.140/2 012 by the learned Single Judge of this Court. 4. We have perused the judgment and orders dated 31.12.2004 and 7.5.2005 pa ssed by the Tribunal as well as the orders dated 13.3.2012 and 30.11.2012 passed by this Court. 5. In view of the facts and circumstances narrated hereinabove, the questio n arises as to the scope of interference with the Tribunals order in a writ proc eeding. Article 226 of the Constitution of India confers on the High Court, powe r to issue appropriate writ to any person or authority within its territorial ju risdiction. It has been held by this Court that the Tribunal constituted under t he Foreigners Act 1946, (’1946 Act’ for short) read with Foreigners (Tribunals) Order 1964, (’1964 Order’ for short) is required to discharge the quasi judicial function. The High Court, therefore, has the power under Article 226 of the Con stitution to issue writ of certiorari quashing the decision of the Tribunal in a n appropriate case. The scope to interfere with the Tribunal’s order in exercise of jurisdiction under Article 226, however, is limited, inasmuch as, the writ o f certiorari can be issued for correcting errors of jurisdiction, or failed to e xercise its jurisdiction or if such court or Tribunal acts illegally in exercise of its undoubted jurisdiction or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The po wer of writ court under certiorari jurisdiction being supervisory and not appell ate jurisdiction, the Court cannot review the findings of facts reached by the i nferior court or Tribunal. However, writ of certiorari can be issued if prima fa cie found in Tribunal’s order an error apparent on the face of the record as not iced above. In the present case in hand, the main ground of challenge of the app ellant is that no notice being served upon him, he was not aware of any order pa ssed by the Tribunal. Perusal of the order dated 7.5.2005 passed by the Tribunal in the petition for setting aside ex-parte order, it would reveal that the said order was passed basing on an adjournment petition filed by one Tara Prasad Das , a person belonging to the same village of the appellant. Nowhere, we have foun d that the notice along with the main grounds on which the appellant is suspecte d to be a foreigner has been actually served upon him. Clause 3(1) of the Foreigners (Tribunals for Assam) Order 2006 (’Order 2 6. 006’ for short) mandates about just and proper service of notice. Clause 3(1) be ing relevant is quoted hereunder;- (cid:28)3. Procedure for disposal of questions.-(1) The Tribunal, upon receipt of a ref erence under sub-clause (1) of Cl.2. shall consider whether there is sufficient ground for proceeding and if the tribunal is satisfied that basic facts are prim a facie established, it shall serve on the person to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in s upport of his case and after considering such evidence as may be produced and af ter hearing such person as may desire to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of re ference. (cid:29) 7. As noticed above, the said aspect of the matter has not been considered by the learned Single Judge. The learned Single Judge has failed to take into ac count the relevant facts which have a bearing on the decision of the Tribunal an d also has failed to exercise its jurisdiction vested in it by law. The learned Single Judge, by not considering an important aspect of the matter as indicated hereinabove, i.e. failing to take into consideration about non-serving of notice on the appellant due to which he could not take steps immediately in such a ser ious mater, has failed to exercise jurisdiction vested in him by law. More so, t he question of determination of citizenship of a person in a country strikes upo n the very root of right of such person emanating from the Constitution and othe r laws in force in the country. Any doubt cast upon a person regarding his/her c itizenship status stigmatizes him/her and causes the potential to affect his/her fundamental rights. As such, determination of citizenship status of a person is of immense consequence and has to be proceeded strictly in accordance with law so as to afford all opportunity to such a person to prove his/her citizenship cr edential, because the law in vogue mandates that the burden of proof of citizens hip lies on the person against whom, he/she being a foreigner is alleged. 8. Hence, considering the facts and circumstances of the case and in view o f the discussion made hereinabove, the orders dated 31.12.2004 and 7.5.2005 are liable to be set aside and quashed, which we hereby do. 9. Consequently, the order dated 13.3.2012 passed in WP(C) No.195/2012 as w ell as the order dated 30.11.2012 passed in Review Petition No.104/2012 in WP(C) No.195/2012 are also set aside and quashed. 10. Mr. Sikdar, learned counsel appearing for the appellant has submitted th at the Full Bench of this Court in the case of State of Assam and anr. -vs- Mosl em Mondal and Ors. reported in 2013 (3) GLR 402 has laid down certain guidelines for the Foreigners Tribunal in deciding the foreigners case. Paragraph 92 of th e aforesaid judgment deals with the cases where an ex-parte order was passed by the learned Foreigners Tribunal. Paragraph 92 of the judgment is quoted hereinbe low;- (cid:28)92. As discussed above, the Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set asi de an ex parte opinion, provided it is proved to the satisfaction of the Tribuna l that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, r eason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application pr ovided the proceedee could demonstrate the existence of the special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, wo uld have the jurisdiction to reject such application at the threshold, if no gro und is made out. (cid:29) 11. Accordingly, as per direction issued by this Court at para 92 of Moslem Mondal (supra) quoted hereinabove, the appellant shall be at liberty to file app ropriate petition before the Tribunal, Barpeta within a period of eight weeks fr om today seeking setting aside of the ex-parte judgment and order dated 31.12.20 04 passed by the learned Tribunal as referred to hereinabove. If such an applica tion is filed within the stipulated period, the learned Member, Foreigners Tribu nal, Barpeta shall consider the same in accordance with law keeping in view the provisions under Order IX Rule 13 of the Code of Civil Procedure. 12. posed of. In view of aforesaid observations and directions, this appeal stands dis