Gauhati High Court
Md Mannas Ali vs The Union Of India And 4 Ors on 16 December, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010270922025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7195/2025
MD MANNAS ALI
S/O- LATE LAL MAMUD, R/O- VILLAGE- AMRAKANDA, P.S.- RUPOHIHAT,
DIST.- NAGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA,
DEPARTMENT OF HOME, NEW DELHI
2:THE STATE OF ASSAM
REPRESNETED BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06
3:THE SUPERINTENDENT OF POLICE (BORDER)
DISTRICT- NAGAON
ASSAM
PIN- 782001
4:THE DISTRICT COMMISSIONER
NAGAON
DISTRICT- NAGAON
ASSAM
PIN- 782001
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
PIN- 11000
Advocate for the Petitioner : MR P C DEY, MR BASAB DEY
Page No.# 2/11
Advocate for the Respondent : GA, ASSAM, SC, F.T,SC, NRC,SC, ECI,DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
16.12.2025 (K.R. Surana, J) Heard Mr. P.C. Dey, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for respondent no.1; Ms. S. Katakey, learned standing counsel for respondent no.5; Mr. G. Sarma, learned standing counsel for the FT, Border matters and NRC, for respondent nos. 1 and 3; and Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.4.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Md. Mannas Ali, has assailed the ex parte opinion dated 10.05.2018, passed by the learned Member, Foreigners Tribunal 3rd, Nagaon, in Case No. NFT .(No.3) 784/16(D) [corresponding to D/Case No. 995/98], by which on failure of the petitioner to contest the proceeding and prove his Indian citizenship, the reference was answered in favour of the State and against the petitioner, thereby declaring him to be a foreigner of post 1971 stream under Section 2(a) of the Foreigners Act, 1946
3) Notice of the proceeding was served on the petitioner on 17.03.2018. However, he did not appear in the proceeding. The learned counsel for the petitioner had referred to the statements made in paragraph 15 of this writ petition and it was submitted that though notice was served to the petitioner, but as he was arrested on 12.03.2018, in connection with Rupahihat Page No.# 3/11 P.S. Case No. 187/2018, under Sections 147/148/149/447/326/325/307 IPC, he remained in judicial custody till bail was released in third week of June, 2018. Accordingly, the petitioner could not appear before the said learned Tribunal on the dates fixed and ultimately, ex parte opinion was passed on 10.05.2018. It was submitted that on his arrest, the petitioner was suspended from service and was reinstated on 11.03.2019. It has been submitted that the petitioner became ill and was under treatment from 25.06.2018 to 05.07.2018 and that from the year 2019 till the year 2022, during COVID-19 pandemic, the petitioner could not take steps. The petitioner engaged a learned counsel by paying professional fees to prepare his written statement and to take steps in the case, but he did not inform the petitioner about the fate of his case and he had told the petitioner that he would inform whenever the presence of the petitioner was required and therefore, he did not make enquiry about his case. It has been stated that in the month of June, 2025, when the police arrived at his house on 16.06.2025, searching for him, his family members were informed about the said ex parte opinion. Thereafter, some time was consumed to engage another learned counsel, obtain relevant copies and to present this writ petition on 04.12.2025.
4) The learned counsel for the petitioner has submitted that from the documents appended to the writ petition, it would be clear that the petitioner is not a foreigner but a bona fide citizen of India and he is also a Government servant.
5) From the materials available in the writ petition, it is seen that the petitioner has admitted that notice of the proceeding before the learned Foreigners Tribunal was served upon him on 17.03.2018. He claims to have been taken into custody on 20.03.218 and was released in third week of June, Page No.# 4/11 2018. Though the provisions of Order 3 of the Foreigners (Tribunals) Order, 1964 provides for application for review to vacate ex parte order, the petitioner did nor avail the benefit of the said provision.
6) In paragraph 19 of this writ petition, the petitioner has projected that he had engaged a learned counsel and provided her with documents and instructions and professional fees to file his written statement. The date on which the learned counsel was engaged and paid fees to file written statement is not disclosed. The projection that, in middle of 2023, when the petitioner had inquired about the case, his learned counsel had assured not to worry and she would inform the petitioner when it is necessary and the petitioner did not ask about his case till police came to his house on 16.06.2025, to search for him pursuant to ex parte opinion dated 10.05.2018, is just not believable.
7) The said ex parte opinion was passed on 10.05.2018, after 1 month, 23 days or 54 days after service of notice. It is not in dispute that the petitioner did not file his written statement in the case.
8) The learned counsel for the petitioner has submitted that the enquiry against her by the Local Verification Officer was perfunctory and mechanically done, which vitiates the reference.
9) The learned counsel for the petitioner has submitted that as the petitioner has all the relevant documents to prove that he is a citizen of India, the petitioner may be afforded one opportunity to file his evidence and to prove his defence. It has been submitted that if no opportunity is granted to the petitioner, he would suffer great injustice and his valuable citizenship right since birth would be irreversibly lost forever. It has been submitted that the petitioner Page No.# 5/11 had been denied reasonable opportunity to prove his defence. It has been submitted that the petitioner has no other efficacious remedy available to him.
10) In support of his submissions, the learned counsel for the petitioner had submitted that as citizenship was a valuable right, this Court in a series of orders, had granted one opportunity to the proceedee to contest the proceeding after setting aside ex parte opinion. In this regard, the learned counsel for the petitioner has placed reliance on the following cases, viz., (i) Jelekha v. Union of India & Ors., 2018 (3) GLT 520: (2017) 0 Supreme(Gau) 1412, (ii) Absul Hakim v. Union of India & Ors., W.P.(C) 6055/2019, decided by a Coordinate Bench on 18.08.2021.
11) Per contra, the learned standing counsel for the FT, Border matters and NRC had opposed the prayer made in this writ petition.
12) In this case, the notice of the proceeding was served on 17.03.2018. The ex parte opinion was passed on 10.05.2018. The present writ petition has been filed on 04.12.2018. Thus, between 17.03.2018, the date when notice was served, till 18.06.2025, when the certified copy of the impugned opinion dated 10.05.2018 was obtained, the petitioner and his family members had not made any attempt to gather information regarding the said proceeding.
13) Therefore, it is necessary to examine the scope of certiorari jurisdiction.
14) It must be taken into consideration that in this case, the Court is exercising certiorari jurisdiction and not appellate of revisional jurisdiction. The limitations of the writ Court in exercising certiorari jurisdiction is seen to have been elaborately discussed and settled by the Supreme Court of India in the Page No.# 6/11 case of Central Council for Research in Auyrvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, the scope of interference has been reiterated. Paragraph 77 thereof is quoted below:-
77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd.
Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
15) On the point of when certiorari jurisdiction ought to be invoked, it would be also relevant to refer to paragraph nos. 20 to 23 of the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC) 175, which are quoted below:-
"20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath , AIR 1954 SC 215 (K), where it was observed that in this respect Article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.
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21. Then the question is whether there are proper grounds for the issue of certiorari in the present case. There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The question has been considered by this Court in Parry & Co. v. Commercial Employees Association, Madras , AIR 1952 SC 179 (L): - Veerappa Pillai v. Raman and Raman Ltd. . AIR 1952 SC 192 (M); - Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi , AIR 1952 SC 319 (N),& quite recently in AIR 1954 SC 440(C). On these authorities, the following propositions may be taken as established:
(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings or fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari."
These propositions are well settled and and not in dispute.
22. (4) The further question on which there has been some controversy is whether a writ can be issued, when the decision of the inferior Court or Tribunal is erroneous in law. This question came up for consideration in- Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw , 1951-1 KB711 (O), and it was held that when a Tribunal made a "speaking order and the reasons given in that order in support of the decision were bad in law, certiorari could be granted. It was pointed out by Lord Goddard, C. J. that that had always been understood to be the true scope of the power. (1878) 4 AC 30 (D), and - Rex v. Nat Bell Liquors Ld , 1922-2 AC 128 (P), were quoted in support of this view. In 1878-4 AC 30 (D), Lord Cairns L. C. observed as follows :
"If there was upon the face of the order of the court of quarter sessions anything which showed that that order was erroneous, the Court of Queen s Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the court found error upon the face of it, to put an end to its existence by quashing it".
In 1922-2 AC 128 (P), Lord Summer said:
"That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise".
The decision in 1951-1 KB 711 (O), was taken in appeal, and was affirmed by the Court of Appeal in - Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw , 952-1 KB 338 (Q). In laying down that an error of law was a ground for granting certiorari the learned Judges emphasised that it must be apparent on the face Page No.# 8/11 of the record. Denning, L. J. who stated the power in broad and general terms observed :
"It will have been seen that throughout all the cases there is one governing rule: certiorari is only available to quash a decision for error of law if the error appears on the face of the record ."
The position was thus summed up by, Morris, L. J. :
"It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision , or irregularity, or absence of, or excess of, jurisdiction where shown."
In AIR 1952 SC 192 (M), it was observed by this Court that under Article 226 the writ should be issued, "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record .
In AIR 1954 SC 440 (C), the law was thus stated :
"An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings , e. g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in - Batuk K. Vyas v. Surat Borough Municipality , AIR 1953 Bom 133 (R), that no error could be said to be apparent on the face of the record it was not self-evident, & if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self
-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
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16) This Court, in the case of Ajbahar Ali v. Union of India, (2025) 0 Supreme (Gau) 763 [Review Petition No. 29/2021, decided on 13.06.2025], had held to the effect that the plea of compliance of the principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. Similar opinion has also been expressed by this Court in the case of Abu Bokkor Siddique v. Union of India, 2019 (1) GLT 813 , and Ajbahar Ali v. Union of India, 2019 (1) GLT 818: (2019) 0 Supreme (Gau) 1640.
17) It may be relevant to mentioned herein that as per the provision of Order 3(14) of the Foreigners (Tribunals) Order, 1964, a mandate is given to the Foreigners Tribunals to dispose of a reference within a period of 60 (sixty) days of the receipt of reference from the competent authority.
18) It may be mentioned that the Supreme Court of India, in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , in paragraph 73, has held to the effect that the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. In paragraph 63 thereof, the Supreme Court of India had observed that there can be no manner of doubt that the State of Assam is facing external aggression and internal disturbance on account of large-scale illegal migration of Bangladeshi nationals and that it, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution of India. In paragraph 70, it was observed that the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of the North Eastern region and that their presence has changed the demographic character Page No.# 10/11 of that region and the local people of Assam have been reduced to a status of minority in certain districts.
19) In the case of Jelekha (supra) and Abdul Hakim (supra), no law has been laid down, and without finding any infirmity in the ex parte opinion, the proceedee therein were granted an opportunity to contest the proceeding after setting aside of the opinion under challenge. The law relating to exercise of certiorari jurisdiction was not gone into.
20) The ex parte opinion was rendered on 10.05.2018 and this writ petition was filed on 04.12.2025. Thus, the petitioner has remained silent for more than 7 years, 6 months, 24 days or 2765 days, to assail the impugned ex parte opinion.
21) In this writ petition, this Court is exercising certiorari jurisdiction and not appellate or revisional jurisdiction. The Court is only to see if the learned Foreigners Tribunal has failed to act in accordance with the mandate of law and if the opinion of the learned Foreigners Tribunal is not vitiated by any procedural impropriety and if the opinion is not found to be vitiated by taking into account irrelevant considerations or ignored to take note of the pleadings and evidence, it is not open for this Court to substitute its wisdom over the otherwise correct opinion expressed by the learned Foreigners Tribunal when no fault whatsoever can be found in the impugned opinion.
22) Therefore, in light of the discussions above, this writ petition fails and the same is dismissed on the ground of unexplained and enormous delay and laches of 2765 days or 7 years, 6 months, 24 days approximately, in assailing the impugned opinion.
23) Hence, this writ petition is dismissed, leaving the parties to bear Page No.# 11/11 their own cost.
24) The learned standing counsel for the FT, Border matters and NRC, shall send a downloaded copy of this order to the Home and Political (B) Department, for communicating it to the concerned Foreigners Tribunal, so as to make it a part of the record of the case for future reference.
JUDGE JUDGE Comparing Assistant