TaxTMI 
TaxTMI 
2019 (5) TMI 1856
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....ndia provide and create an appellate forum for deciding disputes regarding the citizenship status of persons residing in the State of Assam. 3. Articles 5 to 9 of the Constitution delineate and determine persons who are citizens of India on commencement of the Constitution. Article 10 provides for their continuance as citizens subject to the provisions of any law that may be made by the Parliament. Article 11 of the Constitution, expressly confers power on the Parliament to make laws with respect to acquisition and termination of citizenship and all matters relating to citizenship. To achieve and with this objective, the Parliament has enacted the Citizenship Act, 1955 (the Citizenship Act for short) which provides for acquisition of citizenship after the commencement of the Constitution by birth, registration, naturalisation and incorporation of territory. 4. Section 14A of the Citizenship Act states that the Central Government may compulsorily register every citizen of India and issue national identity card to him/her. The Central Government may maintain a National Register of Indian Citizens and can establish a National Registration Authority for this purpose. Procedure to....
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....nuary, 1966 but before 25th March, 1971 from specified territory and from the date of entry have been ordinary resident of Assam and have been detected to be foreigners shall register themselves with the Registering Authority in accordance with Rules made by the Central Government. If name of any such person has been included in the electoral rolls of any Assembly or Parliamentary constituency, the same shall be deleted therefrom. Explanation to Section 6A(3) states that the opinion of the Tribunal under the Foreigners (Tribunal) Order, 1964 (the 1964 Order for short) that the person was a foreigner shall be deemed sufficient for the requirement of Sub-section (3). The opinion of the Tribunal is also binding with respect to any other requirement of sub-Section (3) to Section 6A of the Citizenship Act. The Registering Authority is required to refer the matter to the Tribunal constituted under the said Order if the earlier opinion of the Tribunal on other requirements is silent. Thereupon, the question is decided by the Registering Authority in conformity with the opinion received from the Tribunal. 6. Before we advert to the 1964 Order, we would like to refer to Rule 4A and the S....
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.... March, 1971. The list so prepared has to be published and made available to the Local Registrar of Indian Citizens for wide circulation and public inspection in every village and ward. The Local Registrar of Indian Citizens are mandated to receive application forms and issue receipt to the applicants. 8. Sub-para (3) to paragraph 2 of the Schedule to the 2003 Rules reads as under: The Local Registrar of Citizen Registration, after the receipt of the application under sub-paragraph (2) shall scrutinize the applications and after its verification, prepare a consolidated list thereof which shall contain the names of the following persons, namely: persons whose names appear in any of the electoral rolls upto the midnight of the 24th day of March, 1971 or in the National Register of Citizens, 1951; descendants of the persons mentioned in Clause (a) above. This sub-para states that the Local Registrar, after receipt of the application from citizens in terms of sub-para (2), has to scrutinize them and after verification prepare a consolidated list including the names of the persons whose names had appeared in any of the electoral rolls upto the midnight o....
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....ained beyond reasonable doubt and to the satisfaction of the Registering Authority. As per Sub-para (4) in case of any doubt during scrutiny in respect of parental linkage or any particular mentioned in the application received under sub-para (2) of paragraph 2, the Local Registrar of citizens is required to refer the matter to the District Magistrate for investigation and decision by him. The Local Registrar is required to inform about any such directions to the individual or his family. Sub-para (5) to paragraph 3 deals with investigation to be made by the Local Registrar in respect of persons who are residing in a place other than the State of Assam upto the midnight of the 24th day of March, 1971 or has shifted from one district to another within the State of Assam upto the midnight of the 24th day of March, 1971. Sub-para (2) to paragraph 3 of the Schedule deals with a separate class or cases of persons who have been declared as illegal migrants or foreigners by the Competent Authority. Sub-para (2) mandates that the illegal migrants or foreigners so declared by the Competent Authority shall not be included in the consolidated list. Proviso applies to persons who had come to t....
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.... order; and on the disposal of appeal by the Tribunals the names shall be included or deleted, as the case may be, in the National Register of Indian Citizens in the State of Assam. Paragraph 8 provides for a right of appeal to the person who had filed objections and is not satisfied with the outcome of the decision under the final list published under paragraph 7. Such persons may prefer an appeal before the designated Tribunal constituted under the 1964 Order within a period of sixty days and on disposal of appeal by the Tribunal, such persons can accordingly be included or deleted from the National Register of Indian Citizens in the State of Assam. Paragraph 8, therefore, makes the Foreigners Tribunal under the 1964 Order as the appellate forum to decide claims and objections under paragraph 7 of the Schedule. 13. The 1964 Order has been issued in exercise of power Under Section 3 of the Foreigners Act, 1946 (the Foreigners Act for short). The Tribunals under the 1964 Order have the power to decide whether the person is a foreigner or not within the meaning of the Foreigners Act. The 1964 Order before its amendment in 2012 was examined by this Court in Sarbananda Sonowal v....
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....it did not have a provision similar to Section 9 of the Foreigners Act regarding the burden of proof observing that it would be difficult for the State to give an exact date of entry of a foreign national who had surreptitiously crossed the Indian national border and that the court cannot be remain a quiet spectator to the continuing influx of illegal migrants. A Bench of 3 Judges did not hesitate to observe that the IMDT Act which had been constituted for the detection and deportation of illegal migrants having entered into India on or after 25th March, 1971 had designedly failed in its purpose. 14. Subsequently, this Court in Sarbananda Sonowal (II) v. Union of India (2007) 1 SCC 174 (Sarbananda Sonowal (II) for short) had struck down the Foreigners (Tribunals) Amendment Order 2006 inter alia for several reasons including those mentioned and which had found favour in Sarbananda Sonowal (I). The amendment Order in distinction to the 1964 Order had required the Tribunal to first consider whether there were sufficient grounds for proceeding and only on the Tribunal being satisfied that the basic facts are prima facie established that the notice could be issued to a person suspect....
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....ents had referred to the 1964 Order prior to its amendment vide Foreigners (Tribunal) Amendment Order, 2012. In order to appreciate the contentions raised by the Appellants, we would like to first reproduce Paragraph 3 of the amended 1964 Order, which reads as under: 3. Procedure for disposal of question: (1) The Tribunal shall serve on the person to whom the question relates a show cause notice with a copy of the main grounds on which he or she is alleged to be a foreigner. This notice should be served as expeditiously as possible and in any case, not later than ten days of the receipt of the reference of such question by the Central Government of any competent authority. (2) The Tribunal shall give him or her a reasonable opportunity to show cause by filing a representation. Ordinarily, not more than ten days' time from the date of service of the notice as aforesaid should be given to file such a representation. (3) The Tribunal shall give him or her a reasonable opportunity to produce evidence in support of his or her case. Ordinarily, not more than ten days' time should be given to produce such evidence. (4) A prayer for exam....
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....blings and close blood relations of such persons have been named in the draft National Register of Citizens. It is averred that in these cases of contradictions, an aggrieved person should be entitled to take recourse to paragraph 8 of the Schedule to the 2003 Rules. 18. We have examined the contentions and have no hesitation in holding that they have no force. The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. Pertinently, the Rules framed under the Citizenship Act are subordinate legislation. The expression Competent Authority used in sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act. Indeed, the learned Counsel for the Appellants did not make any attempt to point out and highlight that there could be any other authority covered by the expression 'Competent Authority' or which would qualify and can be treated as a Competent Authority referred to in sub-para (2) to Paragraph 3 of the Schedule to the 2003 Rules. Paragraph 3 of th....
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....rmination has civil consequences. Explaining the meaning of quasi-judicial body in Indian National Congress (I) v. Institute of Social Welfare and Ors. (2002) 5 SCC 685, it was held that when any body of persons has a legal authority to determine questions affecting the rights of subjects and a duty to act judicially, such body of persons constitute a quasi-judicial body and decision given by them is a quasi-judicial decision. It would also be a quasi-judicial order if the statute empowers an authority to decide the lis not between the two contesting parties but also when the decision prejudicially affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi-judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules. 20. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreign....
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.... we apply general principles of res-judicata, the contention of the Appellants that the person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable. The plea is fallacious and has no merit. This contention therefore must be rejected and fails. 22. As stated above, a person aggrieved by the opinion/order of the Tribunal can challenge the findings/opinion expressed by way of a writ petition wherein the High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of error in the decision-making process, etc. This serves as a necessary check to correct and rectify an 'error' in the orders passed by the Tribunal. 23. It was highlighted that there could be contradicting decisions/opinions of Foreigners Tribunal even in cases of near family members, albeit contradictions can be avoided when 'family tree hearing' are held as is now being undertaken. In the absence of joint decisi....