23 Feb 2121

A party having grievance must have a remedy for redressal - Gauhati High Court

Case : Abdul Salam v. Union of India and 3 Ors. WP(C)/1505/2020

Court : Gauhati High Court

Bench : Justice N. Kotiswar Singh and Justice Soumitra Saikia

Decided on : 23 Feb 2121

The Relevant Statutes

Article 226 of the Constitution of India

Order 3A (2), and 3C (2) of the Foreigners (Tribunals) Order, 1964

Section 9 of the Foreigners Act, 1946

Limitation Act, 1963

Brief Facts and Procedural History

1. The proceeding was initiated against the petitioner by reference of Superintendent of police the learned chairman, Illegal Migrant Tribunal, Nagaon, suspecting him to have entered India (Assam) after 25.03.1971. The reference was transferred to the Foreigners Tribunal No. 2, Morigaon, Assam.

2. The petitioner being duly informed appeared before the Tribunal and submitted his written statement along with the relevant documents and certified copies of the voters' lists of 1966 and 1970. However, the voters' list copies depict the age of Petitioner’s father 5 years older than his grandfather. Therefore, the learned Tribunal disbelieved these documents as unreliable and untrustworthy.

3. On obtaining the certified copies of the correct voters' lists of 1966 and 1970, the petitioner approached the Tribunal seeking review of the opinion which was based on the incorrectly certified copies of the voter’s lists submitted earlier by the petitioner, which, however, was rejected on the ground that the Tribunal does not have the power to entertain any application for review after a lapse of 30 (thirty) days.

4. Accordingly, equipped with the correct certified copies of the voter lists of 1966 and 1970 and of the Jamabandi, the petitioner approached the Foreigners Tribunal (2nd), Morigaon, Assam by filing a review petition which was rejected stating that the Tribunal cannot review its opinion after 30 (thirty) days, as the Tribunal does not have the power to condone any delay beyond the prescribed period of 30 (thirty) days within which the Tribunal can review its order. Being aggrieved, the petitioner has approached this Court by filing the present writ petition.

The Issues of the Case

Whether the Foreigner Tribunal has the power to review its own order after the expiry of 30 (Thirty) days?

Whether the Honourable High Court can direct the Foreigner Tribunal to entertain the plea for review after 30 days?

The Observations of the Court

Issue 1

1. The Honourable Gauhati High Court observed that in case the petitioner submits the correct documents showing that the earlier ones were erroneous, the tribunal can certainly reconsider its earlier opinion. The Honourable High Court relying on the interpretation that there is no specific provision for condoning the delay in approaching the Tribunal for review after 30 (thirty) days. At the same time, there is also no provision specifically barring entertaining any application after 30 (thirty) days. The Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time-bound manner.

2. The Honourable Gauhati High Court rightly acknowledges the fact that the defective documents were not created by the petitioner. They were the official documents that were provided by the State authorities to the petitioner. If the State authorities were maintaining and providing defective voters lists, certainly the fault primarily lies with the authorities and the petitioner cannot be put to a disadvantageous position for the mistake committed by the authorities.

3. The Honourable Gauhati High Court held that while pointing towards the seriousness of the matter states that a great prejudice and gross injustice may be caused to the petitioner if the prayer of the petitioner seeking review of its opinion is not allowed on the ground of delay. The Honourable Court observed that the principles underlying Section 5 of the Limitation Act can be made applicable in the proceedings before the Tribunal, where it advances the cause of justice and also by applying the principle of ubi jus ibi remedium.

Issue 2

4. The Honourable Gauhati High Court relying on the judgement of Honourable Supreme Court in Abdul Kuddus Vs Union of India and Ors. (2019) 6 SCC 604, that this Court in the exercise of the power of Judicial Review under Article 226 of the Constitution of India can examine the legality of the opinion of the Tribunal. Such examination, ordinarily, can be done by issuing a writ of certiorari.

5. The Honourable Gauhati High Court emphasizing the judgement of Abdul Kuddus Vs Union of India and Ors. (2019) 6 SCC 604 a person aggrieved by the opinion/order of the Tribunal can challenge the findings/opinion expressed by way of a writ petition wherein the High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of “error in the decision-making process”, etc. and this serves as a necessary check to correct and rectify an “error” in the orders passed by the Tribunal.

6. Relying on the judgement of J. Kumaradasan Nair v. Iric Sohan [(2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656] the Honourable Gauhati High Court observed that the mistake was not of the petitioner but of the State authorities in providing with erroneous voters lists of 1966 and 1970. Thus, the equity-based principles contained in Section 5 of the Limitation Act should be applied in the present case with equal force

7. Considering the enormity of the stakes involved in the proceeding, if this Court feels that a gross prejudice or injustice may be caused to any person, this Court can invoke its extraordinary power based on the principle of ubi jus ibi remedium and doctrine of equity, and direct the Tribunal to entertain such an application for review even if it is beyond the period of limitation provided under rules, thus granting the petitioner opportunity to approach the Tribunal to file these certified copies of the voters' lists of 1966 and 1970.

The Decision held by the Court

1. The order dated 20.09.2019 passed in Review Petition No. 04/2019 is set aside with the direction to the Tribunal reconsider the case of the petitioner by taking into consideration, the aforesaid certified copies of the voters' list of 1966 and 1970 and certified copies of the Jamabandi. The learned Tribunal will, accordingly, pass a fresh order which will supersede the earlier opinion dated 24.05.2018 in Case No. F.T.(C) 09/2016.

2. Directed that though the petitioner will be released from detention to pursue his case before the Tribunal, he will continue to remain on bail on furnishing a bail bond of Rs.5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Morigaon. The concerned Superintendent of Police (Border) is also directed to take steps for capturing the fingerprints and biometrics of the iris of the petitioner if so advised.

3. The petitioner shall appear before the concerned Superintendent of Police (Border) as and when required. The petitioner shall also not leave the jurisdiction of Morigaon district without furnishing the details of the place of destination and necessary information

4. The petitioner within 30(thirty) days of his release shall appear before the Foreigners Tribunal 2nd, Morigaon, Assam, failing which the opinion dated 24.05.2018 shall stand revived and law will take its own course.

5. Records to be immediately sent back to the Tribunal.

Click here to view/download the judgement >