Gauhati High Court
Md Abdul Hamid @ Abdul Hamid And 2 Ors vs The Union Of India And 7 Ors on 27 September, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan, Kalyan Rai Surana
Page No.# 1/15
GAHC010120982018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 74/2018
1:MD ABDUL HAMID @ ABDUL HAMID AND 2 ORS.
S/O LT. MD. TAZ ISLAM @ LT. MD. TAZ ALI @ LT. MD. TAIZ ISLAM R/O
VILL- DHING BORI PATHER, P.S. JURIA, DIST. NAGAON, ASSAM
2: MUSSTT. ASIA KHATUN
W/O MD. ABDUL HAMID
D/O ALI MILAN
R/O VILL- DHING BORI PATHER
P.S. JURIA
DIST. NAGAON
ASSAM
3: MD. RAFIQUL ISLAM
S/O MD. ABDUL HAMID
R/O VILL- DHING BORI PATHER
P.S. JURIA
DIST. NAGAON
ASSA
VERSUS
1:THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT.OF
INDIA, SASTRI BHAWAN, NEW DELHI, PIN - 110001.
2:THE SUPERINTENDENT OF POLICE (B)
NAGOAN
P.S.NAGOAN (SADAR
DIST. NAGOAN
ASSAM
PIN - 782001.
3:THE OFFICER-IN-CHARGE
JURIA POLICE STATION
Page No.# 2/15
P.O. JURIA
DIST.NAGAON
ASSAM
PIN - 782124.
4:THE ELECTION COMMISSION OF INDIA
REP. BY THE SECRETARY OF COMMISSION
HEAD QUARTER
NEW DELHI- 110001.
5:THE STATE CO-ORDINATOR
NRC
ASSAM
ACHYUT PLAZA
BHANGAGARH
GUWAHATI -5.
6:THE REGIONAL FOREIGNERS REGISTRATION OFFICER
NAGAON
P.O. AND DIST. NAGOAN
ASSAM
PIN - 782001
7:THE DEPUTY COMMISSIONER
NAGAON
P.S. NAGAON (SADAR)
DIST. NAGAON
ASSAM
PIN - 782001
Advocate for the Petitioner : MR. R B PHOOKAN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 27-09-2019 (Ujjal Bhuyan, J.) Heard Mr. K. Goswami, learned counsel for the review petitioners; Mr. R.C. Borpatragohain, learned Advocate General, Assam assisted by Ms. D. Das Barman, learned Government Advocate, Assam; Mr. U. K. Nair, learned Senior counsel and Sr. Special Counsel, Page No.# 3/15 Foreigners Tribunal; Mr. D. Baruah, learned Standing Counsel, Election Commission of India; and Ms. U. Das, learned counsel for State Coordinator, National Register of Citizens (NRC).
2. This review petition was initially filed by the three petitioners as a writ petition for quashing of order dated 23.02.2000 passed by the then Foreigners Tribunal, Nagaon in FT Case No.2221/1988 with an alternative prayer for a direction to the respondents to allow registration of the petitioners as foreigners belonging to the 01.01.1966 to 25.03.1971 with the Foreigners Regional Registration Officer, Nagaon.
3. However, this Court by order dated 25.05.2018, directed the Registry to re-register the writ petition as a review petition when it was found that earlier writ petition filed by the petitioners against the aforesaid order dated 23.02.2000 passed by the Foreigners Tribunal was not interfered with by this Court by dismissing the writ petition.
4. However, for proper appreciation, facts may be briefly noted.
5. The three petitioners were declared to be foreigners belonging to the 01.01.1966 to 25.03.1971 stream vide order dated 23.02.2000 passed by the then Foreigners Tribunal, Nagaon in FT Case No.2221/1988.
6. After more than 16 years, the said order came to be challenged by the petitioners before this Court in WP(C) No.7475/2016. Writ Court by a detailed order passed on 15.12.2016 dismissed the writ petition. Relevant portion of the order dated 15.12.2016 is extracted hereunder:-
"In the writ petition, petitioners have not denied receipt of notice from the Tribunal. In fact, it is stated that upon receipt of notice, petitioner No. 1 appeared before the Tribunal and engaged Anil Kumar Das, an Advocate of Nagaon Bar. It is further stated that he had handed over the necessary documents to the lawyer, who prepared the written statement and, thereafter, filed the same before the Tribunal on 16.02.1990. It is stated that the lawyer had told the petitioners t hat they need not come to the Tribunal and that he would inform them as and when their appearance would be necessary. No such information came from the lawyer. It was only in the month of October, 2016 that the fair price shop keeper told t he petitioners that they were no Page No.# 4/15 longer entitled to use their ration card as they were declared foreigners. That is how the petitioners could come to know about the decision of the Tribunal. Thereafter, they could further gather that their lawyer had expired about 2 years back.
We are afraid we can accept such untenable contention of the petitioners. When t he petitioners had received notice and had filed written statement, it was their duty to adduce cogent and reliable evidence before the Tribunal to prove their Indian citizenship. Section 9 of the Foreigners Act, 1946 mandates that it is the duty of the procedee to prove his Indian citizenship by adducing cogent and re liable evidence. A Full Bench of this Court in State -Vs- Moslem Mondal, reported in 2013 (1) GLT 809, has held that if a procedee fails to contest such proceeding before the Tribunal, it would amount to failure to discharge the statutory burden under Section 9 and, in such an eventuality, Tribunal would be fully justified in deciding the reference in favour of the State. This is precisely what ha s happened in the present case. Section 6 A (4) of the Citizenship Act, 1955 provides that a foreigner, who had illegally entered into India (Assam) from the specified territory between 01.01. 1966 to 25.03.1971, would have to register himself before the competent Registering Authority; on such registration, he would be disenfranchised for 10 years, but, thereafter, he would regain his full citizenship. The period for registration is provided under Rule 19 of the Citizenship Rules, 1956, as amended. In the above case of State -Vs- Moslem Mondol, the Full Bench has held that if a procedee declared to be a foreigner, belonging to the aforesaid stream, fails to register himself before the competent Registering Authority, he would not be entitled to the safeguard of Section 6 A (4) of the aforesaid Act and, being a foreigner, he would have to face the consequences. Admittedly, petitioners did not register themselves as foreigners belonging to the aforesaid stream before the competent Registering Authority for all these 16 years. Therefore, they cannot claim the protection of Section 6 A (4) of the Citizenship Act, 1955 and admittedly being illegal migrants, they are liable to be deported from India.
That apart, petitioners have approached this Court after more than 16 and ½ years of passing of the impugned order. This speaks volumes about the conduct of the petitioners. There is clear delay and laches on the part of the petitioners, which Page No.# 5/15 disentitles them to any relief. They have shown utter carelessness and defiance to the order passed by the Tribunal. In such circumstances, Court is not at all inclined to entertain this writ petition filed so belatedly. Writ petition is accordingly dismissed."
7. Thereafter, petitioners approached the Supreme Court by filing petition for Special Leave to Appeal No.6191/2018. It was contended on behalf of the petitioners that an amendment was introduced in the Foreigners Rules, 2009 in the year 2013 which had not been seen by the High Court. In the order dated 16.03.2018, Supreme Court observed that it was not clear whether this point was raised before the High Court. It was further observed that if the petitioners are covered by the amendment introduced in the year 2013, they should go back to the High Court and apprise the High Court in that regard. It was also observed that if such a course was adopted by the petitioners within one month the same should not be dismissed on the ground of delay, clarifying that the matter was not considered on merit.
8. When the petitioners approached this Court thereafter by way of a writ petition being WP(C) No.2713/2018, the following order was passed on 18.05.2018:-
"The three petitioners were declared to be foreigners belonging to the 01.01.1966 but 25.03.1971 stream by the then Foreigners Tribunal, Nagaon in FT Case No. 2221/1988 (State Vs Md. Abdul Hamid and 2 Ors).
This order was challenged by the petitioners before this Court after more than 16 years in WP(C) No. 7475/2016 which was dismissed vide order dated 15.12.2016. While dismissing the writ petition, this Court had referred to the provisions contained in Section 6 A (4) of the Citizenship Act, 1955.
Petitioners thereafter approached the Supreme Court vide SLP(C) No. 6191/2018. It was contended before the Supreme Court that the Citizenship Rules, 2009 was amended in 2013 which was not addressed by the High Court. Supreme Court observed that whether this point was raised before the High Court or not was not discernible. However, liberty was granted to the petitioners to move the High Court if they are covered by the amendment introduced in the year 2013.
In 2013, Sub-Rule 2 (A) was inserted in Rule 19 of the Citizenship Rules, 2009. As per this provision, a person who was declared to be a foreigner by the Foreigners Tribunal Page No.# 6/15 prior to 16.07.2013 and had not been registered under Sub Section (3) of Section 6 A of the Citizenship Act, 1955, as amended, on account of non-receipt of order or refusal by the registering authority to register such person as a foreigner on account of delay, may make an application within a period of 30 days from the date of receipt of the order or from the date of publication of the said notification to the registering authority for registration.
Learned counsel for the petitioner submits that petitioners had received copy of the order passed by the Tribunal dated 23.02.2000 on 23.11.2016.
In view of the submissions made, we consider it appropriate to call for the record of WP(C) No. 7475/2016 disposed of on 15.12.2016.
Office to tag the record of WP(C) No. 7475/2016 alongwith this case on the next date."
9. On 25.05.2018, learned Special Counsel, Foreigners Tribunal raised an objection regarding delay in filing the writ petition, beyond the time limit prescribed by the Supreme Court. However, this Court took the view that it would be in the interest of justice if the writ petition was converted into a review petition. Accordingly direction was issued to the Registry. Relevant portion of the order dated 25.05.2018 is extracted hereunder:-
"Record of WP(C) No.7475/2016 disposed of on 15.12.2016 has been placed before us in terms of our order dated 18.05.2018.
At this stage, Mr. Payeng, learned Special Counsel, has raised an objection that as per the Supreme Court's order dated 16.03.2018, petitioners were given liberty to approach the High Court within a period of one month in which event such approach should not be dismissed on the ground of delay. Decision of the High Court dated 15.12.2016 has not been set aside by the Supreme Court. Therefore, what was implicit in the order dated 16.03.2018 is that petitioners ought to have approached this Court by filing a petition for review of the order dated 15.12.2016 in the light of the observations made by the Supreme Court. That has not been done.
Though Mr. Goswami, learned counsel for the petitioners, have tried to rebut the submissions made by Mr. Payeng, we feel that there is substantial force in the Page No.# 7/15 arguments put forwarded by Mr. Payeng. However, instead of returning the present writ petition and directing the petitioners to file review petition, we feel that it would be in the interest of justice if we convert this writ petition into a review petition though the writ petition so converted may not be as per the format prescribed by the High Court Rules.
However, in the light of the above, we direct the Registry to re-register this writ petition as a review petition for review of order dated 15.12.2016 passed in WP(C) No.7475/2016 whereafter case be listed before us after two weeks."
10. Section 6A of the Citizenship Act, 1955 was inserted in the aforesaid Act by an amendment made in the year 1985 with effect from 07.12.1985. As per Sub-Section (3), every person of Indian origin who came to Assam on or after 01.01.1966 but before 25.03.1971 from the specified territory, i.e., present day Bangladesh; since the date of his entry into Assam has ordinarily been resident of Assam; and has been detected to be a foreigner, he shall register himself in accordance with the Citizenship Rules and from the date of such detection his name would be deleted from the electoral roll for a period of 10 years though he would continue to enjoy the same rights and obligations as a citizen of India.
11. The time limit for registration was provided under Rule 16(f) of the Citizenship Rules, 1956 which provided for 30 days time for registration extendable by another 30 days.
12. Citizenship Rules, 1956 was repealed and was replaced by the Citizenship Rules, 2009 where also the period of registration was prescribed as above.
13. A question cropped up before a Full Bench of this Court in State of Assam Vs. Moslem Mondal, 2013 (1) GLT 809 as to whether an application filed by a foreigner under Sub-Section (3) of Section 6A of the Citizenship Act read with Rule 19 of the Citizenship Rules could be entertained beyond the time limit prescribed by Rule 19? If so, the grounds on which such delayed application could be entertained? A second question was framed as to whether a person who was so detected would be liable to be deported from India if he did not register his name as required under the Citizenship Act and the Citizenship Rules.
14. The Full Bench answered these two questions in the following manner:-
Page No.# 8/15 "108. Rule 16F of the Citizenship Rules, 1956, as amended in 2005, provides the time limit for registration of a foreigner within the meaning of Section 6A(3), which is 30 days from the date of detection as a foreigner, which period is extendable by another 60 days by the registering authority for the reasons to be recorded in writing. Rule 16D of the said Rules also empowers the registering authority to make a reference to the Tribunal if any question arises as to whether such person complies with any requirement contained in Section 6A(3) of the 1955 Act, which is required to be decided by the Tribunal under Rule 16E of the said Rules. The 2009 Rules, which has repealed the 1956 Rules, also contains pari materia provisions. From the aforesaid provisions, it, therefore, appears that the 1955 Act confers the deeming citizenship on the persons of Indian origin who came to Assam from the specified territory before 01.01.1966 and who have been ordinarily resident in Assam since the date of their entry into Assam. The other class of persons, namely, the persons who came to Assam from the specified territory on or after 1st day of January, 1966 but before 25th day of March, 1971, would not become citizens of India automatically and they would continue to be foreigners, unless of course they are registered in accordance with the provisions contained in sub-section (3) of Section 6A of the 1955 Act read with Rule 19 of the 2009 Rules.
109. Prescription of time for filing such application seeking registration has a purpose.
Such persons, who are detected to be a foreigner of the stream between 01.01.1966 and 25.03.1971, cannot enjoy the right under sub-section (4) of Section 6A for an indefinite period of time, without registering their names as required by law. They being recognized as the foreigners by sub-section (3) of Section 6A, they will be treated as foreigners for all purposes, unless they register their names within the time limit prescribed. The limited rights and obligations as a citizen of India, however, has been conferred on those persons, by virtue of sub-section (4) of Section 6A, so that they are not deprived of the basic rights as a citizen during the time limit prescribed for filing the application and till the order is passed by the registering authority registering their names. By virtue of the provisions contained in sub-section (4) of Section 6A, it cannot be said that the persons who are detected to be foreigners of the Page No.# 9/15 stream between 01.01.1966 and 25.03.1971 would continue to be the citizens of India and as such cannot be deported from India, even if they do not file their applications for registration at all, as required by law. The time limit prescribed by the aforesaid provisions of law would, however, commence from the date of rendering the opinion by the Tribunal.
110. Section 6A of the 1955 Act does not provide the time limit within which the application seeking registration under sub-section (3) is to be filed, except providing that such person shall have to register himself in accordance with the rules made by the Central Government in that behalf under Section 18 of the said Act. Section 18 is the rule making power of the Central Government. The time limit, however, has Page 104 of 104 been prescribed by Rule 19 of the 2009 Rules. The Apex Court in Sales Tax Officer Vs. K.I. Abraham reported in AIR 1967 SC 1823 while dealing with the provisions of the Central Sales Tax Act, 1956 and the third proviso to Rule 6(1) of the Central Sales Tax (Kerala) Rules, 1957, which prescribed a time limit within which the declaration is to be filed by the registered dealer, has opined that in the absence of the time limit prescribed in the Act, there cannot be any prescription of time limit in the Rules. The Apex Court, therefore, opined that the assessee was not bound to furnish the declaration within the time limit as prescribed by the third proviso of the aforesaid Rules and such declaration can be filed within a reasonable time before the order of assessment was made. In Topline Shoes Ltd. Vs. Corporation Bank reported in (2002)6 SCC 33 the Apex Court, while dealing with provisions of Section 13(2)(a) of the Consumer Protection Act, 1986, has held that the time limit prescribed for filing the opposite party's version is directory and not mandatory and the Forum/Commission has the discretion to extend the said time. In Kailash Vs. Nanhku & ors. reported in (2005)4 SCC 480 the Apex Court while dealing with the provisions of Order VIII Rule 1 of the CPC, as amended, has also held that the time limit prescribed for filing the written statement is directory in nature and not mandatory.
111. 1956 Rules as well as 2009 Rules, as noticed above, provide the initial time limit for filing application for registration, i.e. 1(one) month, which is extendable by another 60 days by the registering authority. Though there is no time limit prescribed in Page No.# 10/15 Section 6A of the 1955 Act for filing such application, having regard to the purpose for Page 105 of 105 which Section 6A of the 1955 Act has been enacted, it also cannot be said that the fixation of time limit for filing the application has no bearing on the purpose sought to be achieved by such enactment. However, such time limit can be extended by the registering authority, only under very exceptional circumstances preventing the applicant from filing the application due to reasons beyond his control, for which the reasons have to be recorded by the registering authority. But such extension of time cannot also be for an indefinite period of time, having regard to the object of the enactment of Section 6A of the 1955 Act. A person who does not register within the time limit fixed or within the time limit that may be extended by the registering authority, is liable to be deported from India as he is admittedly a foreigner and he has not acquired the right of a citizen of India as has been acquired by a person of Indian origin who came to Assam from the specified territory prior to 01.01.1966, by virtue of the deeming provision in sub-section (2) of Section 6A of the 1955 Act. The decision of the Apex Court in National Human Rights Commission (supra) on which Mr. Das, learned Sr. counsel has placed reliance, does not support the contention that a person of Indian origin who came to Assam from specified territory between 01.01.1966 to 25.06.1971 would continue to be the citizen of India despite non-filing of application for registration. In the said case, the Apex Court had interfered with the quit notices and ultimatum issued by a Student organization, on the ground that they do not have the authority to issue the same and it tantamounts to threat to the life and liberty of each and every person of Chakma tribe. The Apex Court had also directed not to evict or remove the Chakmas from their occupation on the ground that he is not a citizen of India until the Page 106 of 106 competent authority takes a decision on the application filed by them for registration under the provisions of the 1955 Act."
15. From the above, it is evident that the Full Bench had expressed the view that a person who is detected to be a foreigner belonging to the 01.01.1966 to 25.03.191 stream cannot enjoy the right of an Indian citizen for an indefinite period of time without registering his name as required by law. It was clarified by the Full Bench that the time limit prescribed by the Page No.# 11/15 aforesaid provisions of law would commence from the date of rendering of opinion by the Foreigners Tribunal. Full Bench further held that time limit fixed by the Citizenship Rules can be extended by the Registering Authority only under very exceptional circumstances which prevented the applicant from filing the application due to reasons beyond his control for which reasons have to be recorded by the Registering Authority. It was further held that such extension of time cannot also be for an indefinite period of time having regard to the object behind insertion of Section 6A in the Citizenship Act. It was also held that a person who is detected to be a foreigner of the aforesaid stream does not register within the time limit fixed or within the time limit that may be extended by the Registering Authority is liable to be deported from India as he has not acquired the right of a citizen of India required to be acquired as provided under the law. The decision of the Full Bench is dated 03.01.2013.
16. After the Full Bench rendered the judgment as above, Rule 2A was inserted in Rule 19 of the Citizenship Rules on 16.07.2013 with effect from the said date. Rule 2A is extracted hereunder:-
"[2A) A person who has been declared as a foreigner by the Foreigners Tribunal prior to 16th July, 2013 and has not been registered under sub-section(3) of Section 6A for the reason of non-receipt of order of the Foreigners Tribunal or refusal by the registering authority to register such person as a foreigner on account of delay may, within a period of thirty days from the date of receipt of the order passed by the Foreigners Tribunal, or, from the date of publication of his notification, make an application for registration in Form XVIII to the registering authority of the district in which such person is ordinarily a resident:
Provided that the registering authority may, for reasons to be recorded in writing, extend the said period to such further period as may be justified in each case but not exceeding one hundred eighty days.]"
17. Rule 2A as extracted above has two portions; one, the parent portion and second, the proviso. As per the main portion of the Rule, a person who has been declared to be a foreigner belonging to the aforesaid stream prior to 16.07.2013 and has not been registered for reason of non-receipt of order of the Foreigners Tribunal or refusal of the Registering Authority to Page No.# 12/15 register such person as a foreigner on account of delay, may within 30 days from the date of receipt of the order or date of the said amendment i.e., 16.07.2013 may make an application before the competent Registering Authority for registration of his name. As per the proviso, the Registering Authority may for reasons to be recorded in writing may extend the said period of 30 days to such period as may be justified in each case but not exceeding 180 days.
18. From a perusal of the above, it is evident that Sub-Rule 2A of Rule 19 of the Citizenship Rules clearly negates the directions of the Full Bench as extracted and discussed above. The aforesaid Sub-Rule would have the effect of completely nullifying the Full Bench judgment.
19. Supreme Court in Virender Singh Hooda Vs. State of Haryana, (2004) 12 SCC 588 categorically declared that legislature has no jurisdiction to set aside a decision of a Court of law. While the legislative power to make law with retrospective effect is well recognised, it is also well settled that though the legislature has no power to sit over Court's judgment or usurp judicial power, it has subject to its competence the power to remove the basis which led to the Court's decision. However, legislature has no power to change a judgment of a Court of law either retrospectively or prospectively. Legislature cannot by a bare declaration without anything more directly overrule, reverse or override a judicial decision. Relevant portion of the decision of the Supreme Court in Virender Singh Hooda (supra) is as under:-
"20. Undoubtedly, the legislature has no jurisdiction to set aside a decision of a court of law. The decisions in Hooda and Sandeep Singh's cases have to be assumed to be correct and on that basis it is to be considered whether the Act has removed the basis of those decisions or, in fact, in that disguise, it has usurped the judicial power. The contention that the Hooda's case was not properly argued is of no relevance.
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33. The legislative power to make law with retrospective effect is well recognised. It is also well settled that though the legislature has no power to sit over Court's judgment or usurp judicial power, but, it has, subject to the competence to make law, power to remove the basis which led to the Court's decision. The legislature has power to enact laws with retrospective effect but has no power to change a judgment of court of law Page No.# 13/15 either retrospectively or prospectively. The Constitution clearly defines the limits of legislative power and judicial power. None can encroach upon the field covered by the other. The laws made by the legislature have to conform to the constitutional provisions. Submissions have also been made on behalf of the petitioners that by enacting law with retrospective effect, the legislature has no power to take away vested rights. The contention urged is that the rights created as a result of issue of writ of mandamus cannot be taken away by enacting laws with retrospective effect. On the other hand, it was contended on behalf of the respondent-State that the power of the legislature to enact law with retrospective effect includes the power to take away vested rights including those which may be created by issue of writs.
34. Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law (7th Edn.) at page 387 defines retrospective statutes in the following words. "A statute is deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past". Judicial Dictionary: (13th Edition) K.J. Aiyar, Butterworth, pg.857, states that the word 'retrospective' when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) re-opening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure. Words and Phrases: Permanent Edition: Vol.37A page 224/225. defines a 'retrospective' or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.
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45.It is well settled that if the legislature has the power over the subject- matter and competence to make a valid law, it can at any time make such a valid law and make it Page No.# 14/15 retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject- matter and whether in making the validation it removes the defect which the courts had found in the existing law.
46. It is equally well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based {I.N. Saksena and Anr. v. State of Madhya Pradesh [1976] 4 SCC 750]}. In Saxena's case facts in brief were that the appellant attained the age of 55 years on 22nd August 1963. On 28th February, 1963, by a memorandum, the State Government raised the age of compulsory retirement to 58 years. It, however, empowered the Government to retire an employee after the age of 55 years. This provision, however, was not incorporated in the statutory rules. On 11th September, 1963, the respondent passed an order retiring the appellant. The order of retirement of the appellant was quashed by this Court. The Government, however, amended the rules under which the retirement age was raised to 58 years and the Government was empowered to retire the Government servant after completion of 55 years of age. By a deeming clause, the rules were made effective from March 1, 1963. By Act of 1967, the State Legislature validated the retirement of certain Government servants including the appellant, despite the judgment of this Court. Upholding the validity of 1967 Act, this Court held that adjudication of the rights of the parties according to the law enacted by the legislature is a judicial function. In the performance of this function, the Court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the laws prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law. It was held that the rendering ineffective of judgments of courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts, it would be useful to reproduce para 22 as under :
"While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally Page No.# 15/15 altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain. [1975] Supp SCC 1, the rendering ineffective of judgments or orders of competent courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power."
20. In the instant case, it is not even the legislature; the offending Rule 2A was inserted in Rule 19 of the Citizenship Rules by a mere Central Government notification which is unacceptable and untenable. This aspect of the matter may be looked into by the Central Government.
21. Therefore, on a thorough consideration of the matter, we do not find any good ground to review our order dated 15.12.2016. No case for review is made out.
22. Consequently, review petition is dismissed.
JUDGE JUDGE Comparing Assistant