Gauhati High Court
Bibijan Bibi & Ors vs The State Of Assam And Others on 19 February, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 1980 of 2009
1. Nazir Uddin,
Son of Late Ayub Ali.
2. Afia Begum,
Wife of Nazir Uddin.
3. Badrul Haque.
4. Aklas Ali.
5. Kamrul Haque.
6. Siri Begum.
Petitioners No. 3-6 are the sons and
daughter of Petitioner No.1. All are
residents of Village- Nahargaon, PS & PO.
Doboka, Dist. Nagaon (Assam).
............Petitioners.
-Vs-
1. The State of Assam represented by the
Secretary to the Govt. of Assam, Deptt. of
Home, Dispur, Guwahati-6.
2. The Union of India, represented by the
Secretary to the Govt. of India, Ministry of
Home Affairs, New Delhi.
3. The Foreigners Registration Officer,
Nagaon, Assam.
4. The Superintendent of Police, Nagaon,
Assam.
Respondents.
WP(C) 1982 of 2009
1. Bibijan Bibi, wife of Late Samerat Ali,
2. Abdul Sahid,
3. Abdul Rahman,
4. Abdul Malik,
5. Fatima.
WP(C) 1980/09 & 1982/09 - CAV Page 1 of 22
No. 2 to 5 are the sons and daughter of
Laate Samerat Ali. All are resident of
Village-Nahargaon, PS- Doboka, Dist.
Nagaon (Assam).
............Petitioners.
-Vs-
1. The State of Assam represented by the
Secretary to the Govt. of Assam, Deptt. of
Home, Dispur, Guwahati-6.
2. The Union of India, represented by the
Secretary to the Govt. of India, Ministry of
Home Affairs, New Delhi.
3. The Foreigners Registration Officer,
Nagaon, Assam.
4. The Superintendent of Police, Nagaon, Assam.
Respondents.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the petitioners : Mr. I.H. Borbhuiya, Adv.
For the respondents: Ms. R. Chakraborty, GA, Assam.
Mr. M. Bhagabati, CGC.
Mr. K.N. Choudhury, Sr. Adv.
Amicus Curiae.
Date of hearing : 07.12.2012.
Date of judgement : 19.02.2013.
JUDGEMENT AND ORDER (CAV)
B.K. Sharma, J
This is yet another case of extending protective hands to the
declared foreigners (illegal Bangladeshi migrants) by the State Govt.
by not initiating and completing the required action, which it is
bound to do under the provisions of the Citizenship Act and the
Rules framed there-under. As a consequence thereof, the 11
WP(C) 1980/09 & 1982/09 - CAV Page 2 of 22
petitioners, namely, (1) Nazir Uddin, (2) Afia Begum, (3) Badrul
Haque, (4) Aklas Ali, (5) Kamrul Haque, (6) Siri Begum, (7) Bibijan
Bibi, (8) Abdul Sahid, (9) Abdul Rahman, (10) Abdul Malik and (11)
Fatima, have continued to defy their registration with the
Registering authority, which is required to be done, they being
foreigners within the stream of 1966-71. Not only that their names
were also not deleted from the voter list as is required to be done
from the date of the declaration, which in the instant case are dated
12.11.2002 and 20.8.2002, disentitling them to cast votes. As per
the requirement of the provisions of the aforesaid acts and the rules
framed thereunder, the declared foreigner within the stream of
1966-71 is required to register himself with the Registering authority
within one month of the declaration by the Foreigners Tribunal,
extendable by 60 days, but in the instant case, the petitioners not
only have not registered themselves with the Registering Authority
for all these years (by now almost 11 years), but their names were
also not deleted from the voter lists till filing of the writ petition in
2009. It is only upon noticing the aforesaid fact when this Court
directed the State Govt. to delete their names from the voter lists,
their names have been deleted. Thus, the State Govt. of its own did
not delete the names of the petitioners for all these years.
2. As was disclosed during the course of hearing of the writ
petitions, as against the aforesaid legal provisions of not being able
to cast votes by the foreigners within the stream of 1966-71 for
10(ten) years, the petitioners participated in all the elections, be it
Parliamentary, Assembly and Panchayat and thus contributed
towards electing people's representatives to the said institutions. It
is only in Assam, such thing can happen in which not only the
constitutional mandates are violated by not taking the required
action in the matter of detection and deportation of foreign nationals
but they are also extended with the protective hands to remain in
Assam (India) with all rights of a citizen including the voting rights.
3. Both the writ petitions involving the above named 11
foreigners (illegal Bangladeshi migrants) having raised the same
WP(C) 1980/09 & 1982/09 - CAV Page 3 of 22
issue, have been heard together and are being disposed of by this
common judgement and order. The issue is, as to whether the Writ
Court can issue any direction to the Registering Authority to
register the petitioners as illegal Bangladeshi migrants within the
stream of 1966-71 after expiry of long 7(seven) years (by now
almost 11 years) as against the stipulated period of limitation of
30 (thirty) days, which is extendable by another 60(sixty) days by
the Registering Authority.
Facts in WP(C) 1980/2009
4. The petitioners, namely, (1) Nazir Uddin, (2) Afia Begum, (3) Badrul Haque, (4) Aklas Ali, (5) Kamrul Haque and (6) Siri Begum, have filed this writ petition praying for a direction to the respondents to allow them to get their names registered with the Foreigners Registration Office, Nagaon, as per the direction contained in the order dated 12.11.2002 passed by the Foreigners Tribunal, Nagaon in FT Case No. 4600/1988. The prayer so made is on 18.5.2009 when the writ petition was filed. Thus, at the time of filing the writ petition, there was delay of about 7(seven) years from the date of the order dated 12.11.2002 passed by the Foreigners Tribunal. By the said order, the petitioners had been declared to be foreigners of the stream of 1.1.1966 to 25.3.1971 and accordingly they were directed to register themselves in accordance with the Citizenship Act, 1955.
5. The FT Case No. 4600/1988 although was registered way back in 1988 but it took long 14 (fourteen) years to dispose of the same with the aforesaid declaration.
6. Being aggrieved by the aforesaid declaration, the petitioners had filed a writ petition being WP(C) No. 7283/2004 which was disposed of by order dated 28.9.2004, granting liberty to the petitioners to get their names registered with the Foreigners Registration Office, Nagaon within a period of two months from the date of the order. Legally speaking, the said order also could not have been passed in view of the expiry of the limitation period of 30 WP(C) 1980/09 & 1982/09 - CAV Page 4 of 22 days, which can be extended by another 60 days. However, without dealing with the said issue, the order was passed requiring the petitioners to register themselves within two months. The petitioners defied the said order which they had obtained through their own writ petition and did not register themselves with the Registering authority.
7. According to the petitioners after the aforesaid order passed on 28.9.2004, the communication sent by the advocate who had appeared for them did not reach them and they were under bonafide impression that the case was pending in the Court. As stated in paragraph 5 of the writ petition, they had come to know about the order when the police personnel searched for them. Thereafter, they came to the High Court to enquire about their case only to find that the writ petition was disposed of on 28.9.2004. Thereafter, they obtain the certified copy on 24.4.2009 and filed the writ petition on 18.5.2009.
Facts in WP(C) 1982/2009
8. The petitioners, namely, (1) Bibijan Bibi, (2) Abdul Sahid, (3) Abdul Rahman, (4) Abdul Malik and (5) Fatima have filed this writ petition praying for a direction to the respondents to allow them to get their names registered with the Foreigners Registration Office, Nagaon, as per the direction contained in the order dated 20.08.2002 passed by the Foreigners Tribunal, Nagaon in FT Case No. 4616/1988. The prayer so made is on 18.5.2009 when the writ petition was filed. Thus, in this case also, at the time of filing the writ petition, there was delay of about 7(seven) years from the date of the order dated 20.08.2002 passed by the Foreigners Tribunal. By the said order, the petitioners have been declared to be foreigners of the stream of 1.1.1966 to 25.3.1971 and accordingly they were directed to register themselves in accordance with the Citizenship Act, 1955.
9. As in the earlier FT Case No. 4600/1988, this FT Case No. 4616/1988 also, although was registered way back in 1988, took long WP(C) 1980/09 & 1982/09 - CAV Page 5 of 22 14 (fourteen) years to dispose of the same with the aforesaid declaration.
10. Being aggrieved by the aforesaid declaration, the petitioners had filed a review petition in the Tribunal. As stated in paragraph 7 of the writ petition, the same was not pressed as according to the petitioners, there is no provision of review under Foreigners Act, 1946. It has been stated in the writ petition that the FT case was not within the knowledge of the petitioners and accordingly they could not appear in the proceeding thereof, which resulted in the exparte declaration that they are foreigners (illegal Bangladeshi migrants) within the stream of 1.1.1966 to 25.3.1971.
12. In paragraph 9 of the writ petition, the petitioners have made a statement that they went to get themselves registered with the Registering authority i.e. Foreigners Registration Office, Nagaon. As in the other writ petition in the instant writ petition also, the petitioners have prayed for a direction to the respondents to allow them to register themselves with the said Registering authority. The prayer so made is in reference to the orders passed by this Court granting the said prayer, without however, dealing with the issue as to whether the period of limitation prescribed by the statute can be extended exercising writ jurisdiction and that too for so many years and also in the given facts and circumstances.
12. As against the aforesaid statements made in paragraph 8 of the writ petition that the FT case No. 4616/1988 was not within their knowledge, in paragraph 4 of the writ petition, the petitioners have stated that steps had been taken by their father and husband of petitioner No.1 (Samerat Ali), who had appeared before the Tribunal on one occasion praying for time to file the Written Statement but subsequently, there was no representation on behalf of the petitioners as he died.
13. Further, as against the aforesaid statement of abandoning the review petition, there is no provision for review under the Foreigners WP(C) 1980/09 & 1982/09 - CAV Page 6 of 22 Act, 1946, the file received from the Tribunal has revealed that as in the main proceeding, in the review petition also, after filing of the same on 27.3.2009, the petitioners did not appear on the dates fixed, which are 21.4.2009 and 29.4.2009, as a consequence of which the review petition was dismissed. Be it stated there that the review petition was registered as Misc. Case No. 9/2009, about which there is no mention in the writ petition, coupled with the fact that the same was dismissed because of non-appearance of the petitioners. Thus, the stand of the petitioners that they did not press the petition in absence of any review jurisdiction is a false statement. The fact of the matter is that after filing of the writ petition, they did not appear before the Tribunal, as in the main proceeding, as a consequence of which the review petition was dismissed.
Proceedings before the Tribunal in FT Case No. 4600/88 involved in WP(C) No. 1980/2009.
14. In the instant case, the FT case was registered in 1988. It took long 14 years to conclude the proceeding. In between, many dates were fixed starting from 20.3.1991. As recorded in the order dated 18.4.1991, the petitioners had received the notice, appeared before the Tribunal and prayed for another date, which was granted fixing the matter on 23.5.1991. On 23.5.1991 also, the petitioners appeared and prayed for time which was again granted fixing the mater on 24.6.1991. Thereafter, on all the dates fixed, the petitioners remained absent and eventually the exparte declaration was made.
15. In the notice served on the petitioners, the grounds specified was that they had entered into Assam (India) after 1.1.1966 but before 25.3.1971 without any valid documents and started living at Village- Nahargaon, PS -Doboka in the district of Nagaon. The notice was duly served on all the petitioners as will be evident from the record/notice. On receipt of the notice, the petitioners appeared before the Tribunal on 18.4.1991 and prayed for time and the same was allowed. However, they did not appear before the Tribunal thereafter, which naturally resulted in exparte hearing of the proceeding. Thereafter, they challenged the said order by filing WP(C) 1980/09 & 1982/09 - CAV Page 7 of 22 WP(C) No. 7283/2004 which was disposed of on 28.9.2004 requiring them to register themselves with the Registering Authority within two months, which they did not do and now have taken the plea of communication gap between them and their engaged counsel. In the process they have consumed long 7 years (by now 11 years).
Proceedings before the Tribunal in FT Case No. 4616/88 involved in WP(C) No. 1982/2009.
16. In this case also, the FT case was registered in 1988 and as per the order sheets, inspite of service of notice, the petitioners did not respond to the proceeding as is evident from the various orders passed during the period 28.5.1991 to the date of passing the impugned order. There was initial appearance of the petitioners on 20.4.1991 on which date an application was filed seeking time to file Written Statement. Thereafter, the petitioners abandoned the proceeding. It took long 14 years for the Tribunal to issue the declaration.
17. The records have revealed that the SP(B), Nagaon, deriving the prima facie satisfaction that the petitioners are illegal Bangladeshi migrants within the stream of 1.1.1966 to 25.3.1971, referred the matter to the Foreigners Tribunal, Nagaon. The said Tribunal sent notice on 30.3.1991 detailing the grounds that the petitioners had entered into Assam after 1.1.1966 but before 25.3.1971 without any valid documents and started living at Village-Nahargaon, PS-Doboka in the district of Nagaon. The notice was received by the eldest member of the family, namely, Samerat Ali, husband of the petitioner No.1 and father of the other petitioners. On receipt of the notice, all the petitioners had appeared and by the aforesaid application dated 20.4.1991 prayed for time to file written statement, which they never did. Thereafter, although the prayer was allowed granting adjournment and the proceeding continued for long 14 years. Coupled with this, the plea of not pressing the review petition, is also false, inasmuch as, the same was dismissed on 29.4.2009, because of non-appearance of the petitioners. The said order is also not under challenge in this proceeding.
WP(C) 1980/09 & 1982/09 - CAV Page 8 of 22Arguments :
18. I have heard Mr. I. H. Borbhuiya, learned counsel for the petitioners in both the writ petitions as well as Ms. R. Chakraborty, learned State Counsel. I have also heard Mr. M. Bhagabati, learned CGC. I have also meticulously gone through the records received from the Tribunal.
19. Mr. Borbhuiya, learned counsel for the petitioners submitted that because of the grounds assigned in the writ petition, direction is required to be issued to the authority to allow the petitioners to register themselves with the Registering authority. As regards the failure on the part of the petitioners involved in WP(C) 1980/2009 to register themselves inspite of the earlier order of this Court dated 28.9.2004 passed in WP(C) No. 7283/2004, he submitted that the petitioners being not aware of the said order, the time limit prescribed in the said order, which is two months is required to be extended.
20. Having regard to the importance of the matter and the issue involved, the Court made a request to Mr. K.N. Choudhury, learned Sr. Counsel to assist the Court, he readily accepted the request and made submissions on the issue. I place on record my appreciation for the assistance rendered by him.
Analysis, Finding and Conclusion :
21. As recorded in the proceeding dated 15.6.2012, the petitioners, although, have been declared to be foreigners within the stream of 1966-71, they have been enjoying all the rights of an Indian citizen including voting rights. For a ready reference, the said order dated 15.6.2012 is quoted below :-
"Response from the Union and the State Government is necessary to resolve the issue relating to the situation that has arisen due to non- registration of the petitioners with the registering authority pursuant to the orders of the Tribunal WP(C) 1980/09 & 1982/09 - CAV Page 9 of 22 declaring them to be the illegal Bangladeshi migrants within the stream of 1966-1971. As pre the provision of Section 6 A of the Citizenship Act, 1955, every person who came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 and who has been detected to be a foreigner shall register himself in accordance with the rules made by the Central Government under Section 18 with such authority as may be specified in such rules. Section 6-A (6) (b) provides that if any person referred to above submits in the prescribed manner and form and to the prescribed authority within 60 days from the date of commencement of the Citizenship (Amendment) Act, 1985, on or from the date of which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register himself under Section (3). Thus the registration is a must, unless a person submits application of non- registration to the prescribed authority within 60 days.
The pertinent question that has arisen for determination in the instant case is that the petitioners having not registered themselves with the registering authority even after expiry of about 12 years, whether they would continue to be Indian citizen with all sorts of facilities including the voting right.To clarify the above position, State and Union Government shall invariably file their affidavit on or before the next date failing which personal appearance of the Union Home Secretary and the State Home Secretary will be considered.
List on 17.7.2012.
On being asked, learned counsel for the petitioners submits that the petitioners although have been declared to be foreigners within the stream of 1966-1971, they are happily settled in Assam with all the rights of Indian citizen including voting right and they have been casting their votes in all the elections. This is a shocking revelation inasmuch as such of the foreigners within the stream of 1966-1971 are not entitled to vote. The State Government and Union Government shall clarify as to how this could happen.
Let copies of this order be furnished to Mr. M. Bhagawati, learned CGC and Mr. N. Upadhyay, learned State Counsel."WP(C) 1980/09 & 1982/09 - CAV Page 10 of 22
22. The issue as noted above is, as to whether the petitioners who have been declared to be foreigners (within the meaning of Sub- Section 3 of Section 6A of the Citizenship Act, 1955) can seek a writ of mandamus from this Court to extend the time limit fixed which is one month from the date of declaration made by the Tribunal, extendable upto 60 days, upon their failure to register as foreigners under the provisions of the Rules framed under the Act. So far as the petitioners are concerned, the said question will have to be considered from the perspective of their failure to do so without any reasonable excuse and inspite of the time granted by this Court way back in 2004. As per the requirement of the provision of Sub- section 3 of Section 6A of the Citizenship Act, 1955, a person of Indian origin, who has come to Assam on or after 1.1.1966 but before 25.3.1971 from the specified territory and as, since the date of his entry into Assam been ordinarily resident in Assam and has been detected to be a foreigner, to register himself in accordance with the Rules made by the Central Govt. in that behalf under Section 18 of the said Act, with such authority, as may be specified in such rules. As per the requirement of the said provision, the name of such person if included in any electoral roll in any Assembly or Parliamentary Constituency, shall be deleted there from.
23. Sub-Section 4 of Section 6A stipulates that the persons who registered under Sub-Section 3 shall be de-franchised for a period 10(ten) years with effect from the date when he is detected to be a foreigner. Sub-Section 5 provides that a person registered under Sub-section 3 shall be deemed to be a citizen of India for all purposes as from the date of expiry of the period of 10 (ten) years from the date on which he has been detected top be a foreigner. It will be appropriate to quote the said provision for a ready reference :-
"(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who -
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and WP(C) 1980/09 & 1982/09 - CAV Page 11 of 22
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.
Explanation.- In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall, -
(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order having jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.
(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.WP(C) 1980/09 & 1982/09 - CAV Page 12 of 22
(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner."
24. Above apart, there is also provision in the form of Sub-section 6 of Section 6A of the Citizenship Act, 1955, granting liberty to the person referred to in Sub-Section 3 to file an application in the prescribed form and to the prescribed authority within 60 days from the date on which he has been detected to be a foreigner, declaring that he does not wish to be governed by the provisions of that sub- section and sub-section 4 and 5. In such an eventuality, it shall not be necessary for such person to register himself under Sub-Section 3. The aforesaid provisions providing declaration to be made within 60 days from the date on which the person concerned has been declared or detected to be a foreigner within the stream of 1966-71, has a bearing in reference to Rule 16(f) of the Citizenship Rules, 1956, as amended in 2005. Rule 16(f) stipulates the time limit for registration of a foreigner within the meaning of Section 6(A)(3), which is 30 days from the date of detection as a foreigner. The said period is extendable by another 60 days by the Registering authority for the reasons to be recorded in writing. Similar provisions have been made in 2009 Rules which has repealed the 1956 Rules. The question that falls for consideration is as to whether the time limit fixed by the statute, which is 30 days, from the date of detection as a foreigner, extendable by another 60 days by the Registering Authority for the reasons to be recorded in writing, can further be extended by the writ Court.
25. If we go by the said provisions of the Rules, the Registering authority cannot extend the period of registration for a further period extending the extendable period of 60 days. It was argued by Mr. K.N. Choudhury, learned Amicus Curiae that the said extendable period of 60 days cannot further be extended. In this connection, he has referred to Section 29(2) of the Limitation Act, 1963, which reads as follows :-
WP(C) 1980/09 & 1982/09 - CAV Page 13 of 22"Section 29.
Savings. - (1) .....................
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) ...............
(4) .............."
26. Mr. K.N. Choudhury, learned Amicus Curiae has also referred to the decisions reported in (2008) 7 SCC 169 (Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and others) and (2009) 5 SCC 791 (Commissioner of Customs and Central Excise Vs. Hongo India Private Ltd. and another). In para 20 of Consolidated Engineering Enterprise (Supra), the Apex Court has held thus :-
"20. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the Schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law. When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of WP(C) 1980/09 & 1982/09 - CAV Page 14 of 22 Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an ward, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996."
27. In Commissioner of Customs and Central Excise (Supra), the Apex Court dealing with the applicability of Section 5 of the Limitation Act, 1963 in reference to Section 35H of the Central Excise Act, held that the High Court has no power to condone delay beyond the period specified in Section 35 A and that the time limit prescribed fro making reference to the High Court, is absolute and un-extendable by Court under Section 5 of the Limitation Act, 1963. In paragraph 27, 32, 33 and 36 of the said judgement, it has been observed thus :-
"27. The other decision relied on by the counsel for the appellant is M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd. The learned Additional Solicitor General heavily relied on the following observations: (SCC p. 466, para 66) "66. The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers."
Here again, there is no dispute about the above proposition. The High Courts in India are having inherent and plenary powers, and as a court of record the High Courts have unlimited jurisdiction including the WP(C) 1980/09 & 1982/09 - CAV Page 15 of 22 jurisdiction to determine their own powers.
However, the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act, particularly in this case, Sections 35, 35-B, 35- EE, 35-G and 35-H of the unamended Central Excise Act; it would not be possible to hold that in spite of the abovementioned statutory provisions, the High Court is free to entertain a reference application even after expiry of the prescribed period of 180 days.
32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation WP(C) 1980/09 & 1982/09 - CAV Page 16 of 22 cannot be extended by invoking the provisions of Section 5 of the Limitation Act."
28. As noted above, the time limit of 30 days extendable by another 60 days is to commence from the date of making the declaration by the Foreigners Tribunal, which in the instant case are dated 12.11.2002 and 20.8.2002. If the said time limit is not strictly adhered to, there might be false pleas, as in the instant case, seeking extension of the same giving rise to unnecessary litigations with the eventual result of no finality to the matter. While considering the issue, three things will have to be borne in mind. Firstly, the time limit prescribed for the declaration expressing wish not to be governed by the provisions of Sub-Sections 3, 4 and 5, which is 60 days ; Secondly, the requirement to register within 30 days extendable by another 60 days with the Registering Authority from the date of the declaration made by the Foreigners Tribunal and thirdly, the simultaneous action on the part of the authority to delete the name of the person concerned from the voter list from the date of the declaration made which will remain in force for 10(ten) years.
29. It can also be argued that a declared foreigner within the stream of 1966-71 by not registering himself within the stipulated period of time has opted for not to be governed by Sub-sections 3, 4 and 5 of Section 6A of the Citizenship Act, 1955, irrespective of whether any declaration has been made or not within the stipulated period of 60 days. The fact that the registration and deletion of name from the voter list are to go side by side and simultaneously, also require the declared foreigner to register his name with the registering authority within the stipulated period of time. Failure to do so, which can even be deliberate, as in the instant case would lead to a situation in which the concerned foreigner would continue to cast his votes as there may not be the simultaneous action of deletion of his name from the voter list upon registration or even otherwise.
WP(C) 1980/09 & 1982/09 - CAV Page 17 of 2230. Considering the facts involved in this case, the aforesaid issue need not detain us to answer the present proceeding. As noted above, both the writ petitions are based on false statements. Inspite of obtaining the order dated 28.9.2004 by the petitioners in WP(C) 7283/2004 granting them two months' further time to register themselves, they did not do so and once again have filed the present writ petition praying for the same order. A frivolous plea of not being aware of the said order for long 5(five) years has been raised without stating anything about their own duty of getting themselves registered. It was the petitioners who had filed the writ petition and obtained the order. It does not lie on their mouth to say that they were not aware of the same. The issue being that of citizenship and considering the fact that large number of foreigners have infiltrated into Assam, such a plea cannot be accepted. A strict interpretation and application of the citizenship law is required to be adopted.
31. In so far as the other writ petition being WP(C) 1982/2009 is concerned, in this case also the petitioners have also taken recourse to falsehood with the statement that the review petition filed by them was not pressed in absence of any review provision. But the fact of the matter is that after filing the review petition the petitioners remained absent without any steps and accordingly the review petition had to be dismissed. There is also no explanation as to the cause of delay in approaching this Court after the final order was passed on 20.8.2002. The order rejecting the review petition is also not under challenge. The review petition was also filed beyond the period of limitation. Even if it is held that the review petition was maintainable, the petitioners have also failed to project any procedural defects requiring review of the declaration made on 20.8.2002. Coupled with this, it is also well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. However, this aspect of the matter also need not detain us in view of the facts involved in this case, about which discussions have been made above.
WP(C) 1980/09 & 1982/09 - CAV Page 18 of 2232. The petitioners having failed to register themselves with the Registering Authority within the stipulated period of time without any reasonable excuse and inspite of the opportunity granted by this Court way back in 2004 and also having taken recourse to falsehood, are not entitled to any relief. Accordingly, both the writ petitioners are dismissed directing the respondents, more particularly, the Superintendent of Police (B) Nagaon to take them into custody and detain them in detention camp till such time they are deported to the country of their origin. Be it stated here that while the petitioners involved in WP(C) 1980/2009 were the ordinary resident of Village - Amalsi, PS- Jakiganj in the district of Shyllet, the petitioners involved in other writ petition being WP(C) 1982/2009 were the ordinary resident of Village- Balijan, PS- Kulaura in the district of Shyllet in Bangladesh, as could be gathered from the respective files / records received from the Tribunal.
33. The petitioners having not registered themselves with the Registering authority within the stipulated period of time and inspite of the extending period beyond the said stipulated period have made them liable for deportation to Bangladesh. They themselves have waived their right to become Indian citizens on fulfillment of the requirement of the aforesaid provisions of 1955 Act, which this Court is not empowered to serve. The petitioners being of 1966-71 stream were entitled to certain rights which they have chosen not to availed of. They having flouted the provisions of the Citizenship Act are not entitled to any relief. They are not entitled to revive their extinguished right at their suit will. The question being of citizenship of a country, cannot be viewed lightly and the law will have to be applied strictly and vigorously.
Observation and directions :
34. Before parting with the case records of both the cases, it would be most appropriate to place on record my observation and directions which I deem appropriate having regard to the gravity of the situation arising out of infiltration from across the border (Bangladesh), which needless to say is continuous and unabated, WP(C) 1980/09 & 1982/09 - CAV Page 19 of 22 seriously causing threat to the demographic pattern of the State and the rights and aspirations of the indigenous people of Assam, about which detail discussions have been made by the Apex Court in Sarbananda Sonowal-I Vs. Union of India reported in AIR 2005 SC 2920 and Sarbananda Sonowal-II Vs. Union of India reported in (2007) 1 SCC 174.
35. Having noticed the aforesaid fact of non-registration and non- deletion of the petitioner's names' from the voter list for all these years even after declarations made by the Tribunal declaring the petitioners to be foreigners within the stream of 1966-71 requiring them to register themselves with the Registering authority within 30 days, extendable by another 60 days, directions were issued to both the State and the Union Govt. to clarify their stand in the matter. Direction was also issued to clarify as to who was responsible for non- deletion of the names of the petitioners' from the electoral roles pursuant to the declaration made by the Tribunal.
36. In response to such direction, both the Govt. have filed affidavits referring to the provisions of law holding the field , about which detailed discussions have been made above, without dealing with the question as to why the name of the petitioners' could not be deleted from the voter lists for all these years. As noted above, it is only because of the intervention of this Court and direction issued, the State Govt. deleted their names from the electoral rolls but not before the declared foreigners had cast their votes in all the elections which were held during the period from 2002 to 2009, be it Parliamentary, Assembly or Panchayat. This is a matter of serious concern and cannot be viewed lightly. The State Govt. has violated the provisions of the Constitution and the Citizenship Act in allowing non-citizens to cast their votes in the elections held during the period from 2002-2009. It gives an impression that there is a design to extend protective hands to the foreigners.
WP(C) 1980/09 & 1982/09 - CAV Page 20 of 2237. Directions :
In view of the aforesaid revelation made from the instant proceeding, I feel it appropriate to issue the following directions :-
1. Disciplinary action should be initiated against the Officer(s) because of whose inaction the names of the petitioners were not deleted immediately after the declarations made on 12.11.2002 and 20.8.2002.
2. The State Government shall keep track of all the proceedings before the Tribunal and depending upon the declaration made in the said proceedings, immediate action should be taken to delete the names of the declared foreigners from the electoral rolls. Those who are declared to be foreigners of post 25.3.1971 should be immediately taken into custody and keep in detention camp till they are deported to the country of their origin.
3. As the experience of this Court goes and admitted by the State Government in its white paper published on foreigners' issue, the declared foreigners often do the act of vanishing. The State Government cannot have any excuse on that count and will have to ensure their detention and deportation. If need be, the proceedees should be kept in detention camp till finalization of the proceedings, otherwise the jurisdictional Police Station and the SP(B) of the district must be made responsible and directed to ensure the presence of such suspected foreigners during the proceedings and their immediate detention after declaration as post 25.3.1971 foreigners.
4. If the declared foreigners of 1966-71 stream do not register their names with the Registering authority within the stipulated period of time, they should be taken into custody for their deportation to the country or origin, apart from the action directed in direction No.2.WP(C) 1980/09 & 1982/09 - CAV Page 21 of 22
38. Both the writ petitions are dismissed, without however, any order as to costs.
39. List after one month for furnishing report by the respondents, more particularly, the SP(B), Nagaon and Deputy Commissioner, Nagaon in respect of the directions contained in paragraph 32 of this judgement.
40. Let copies of this judgement be sent to SP(B), Nagaon and the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up action in terms of this judgement and order.
JUDGE Sukhamay WP(C) 1980/09 & 1982/09 - CAV Page 22 of 22