ABDUL KUDDUS versus UNION OF INDIA AND OTHERS on 17 May 2019

O R D E R

SANJIV KHANNA, J.

1. Delay condoned. Leave granted.

2. This order decides perceived conflict between sub-paragraph(2) to paragraph 3 and paragraph 8 of the Schedule to the Citizenship(Registration of Citizens and Issue of National Identity Cards) Rules,2003 (“the 2003 Rules” for short). We shall also examine the alternativeargument and suggestion of the appellants that this court should by wayof a judicial pronouncement and in exercise of power under Article 142of the Constitution of India provide and create an appellate forum fordeciding disputes regarding the citizenship status of persons residing inthe State of Assam.

3. Articles 5 to 9 of the Constitution delineate and determine personswho are citizens of India on commencement of the Constitution. Article10 provides for their continuance as citizens subject to the provisions ofany law that may be made by the Parliament. Article 11 of theConstitution, expressly confers power on the Parliament to make lawswith respect to acquisition and termination of citizenship and all mattersrelating to citizenship. To achieve and with this objective, the Parliamenthas enacted the Citizenship Act, 1955 (“the Citizenship Act” for short)which provides for acquisition of citizenship after the commencement ofthe Constitution by birth, registration, naturalisation and incorporation ofterritory.

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A4. Section 14A of the Citizenship Act states that the CentralGovernment may compulsorily register every citizen of India and issuenational identity card to him/her. The Central Government may maintaina National Register of Indian Citizens and can establish a NationalRegistration Authority for this purpose. Procedure to be followed forcompulsory registration of citizens shall be such as may be prescribed.B

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5. Section 6A of the Citizenship Act incorporates special provisionsas to the citizenship of persons covered by the Assam Accord. For thepurpose of the present order, we would like to reproduce sub-section (3)to Section 6A of the Citizenship Act which reads as under:

C“6A. Special provisions as to citizenship of persons coveredby the Assam Accord. ¯

(3) Subject to the provisions of sub-sections (6) and (7), everyperson of Indian origin who¯

(a) came to Assam on or after the 1[st] day of January, 1966 butDbefore the 25th day of March, 1971 from the specified territory;and (b) has, since the date of his entry into Assam, been ordinarilyresident in Assam; and

(c) has been detected to be a foreigner, E

shall register himself in accordance with the rules made by theCentral Government in this behalf under section 18 with suchauthority (hereafter in this sub-section referred to as the registeringauthority) as may be specified in such rules and if his name isincluded in any electoral roll for any Assembly or Parliamentaryconstituency in force on the date of such detection, his name shallbe deleted therefrom.

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Explanation.¯In the case of every person seeking registration underthis sub-section, the opinion of the Tribunal constituted under theForeigners (Tribunals) Order, 1964 holding such person to be aforeigner, shall be deemed to be sufficient proof of the requirementunder clause (c) of this subsection and if any question arises as towhether such person complies with any other requirement underthis sub-section, the registering authority shall,¯

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(i) if such opinion contains a finding with respect to such otherrequirement, decide the question in conformity with such finding;

(ii) if such opinion does not contain a finding with respect to suchother requirement, refer the question to a Tribunal constituted underthe said Order having jurisdiction in accordance with such rulesas the Central Government may make in this behalf under section18 and decide the question in conformity with the opinion receivedon such reference.”

Sub-Section (3) to Section 6A states that subject to the provisionsof sub-section (6) and (7), all persons who have come to Assam on orafter the 1[st] day of January, 1966 but before 25[th] March, 1971 fromspecified territory and from the date of entry have been ordinary residentof Assam and have been detected to be foreigners shall registerthemselves with the Registering Authority in accordance with Rulesmade by the Central Government. If name of any such person hasbeen included in the electoral rolls of any Assembly or Parliamentaryconstituency, the same shall be deleted therefrom. Explanation to Section6A (3) states that the opinion of the Tribunal under the Foreigners(Tribunal) Order, 1964 (“the 1964 Order” for short) that the person wasa foreigner shall be deemed sufficient for the requirement of sub-section(3). The opinion of the Tribunal is also binding with respect to any otherrequirement of sub-Section (3) to Section 6A of the Citizenship Act.The Registering Authority is required to refer the matter to the Tribunalconstituted under the said Order if the earlier opinion of the Tribunal onother requirements is silent. Thereupon, the question is decided by theRegistering Authority in conformity with the opinion received from theTribunal.

6. Before we advert to the 1964 Order, we would like to refer toRule 4A and the Schedule to the 2003 Rules which was inserted byG.S.R 803 (E) dated 9[th] November, 2009, as a special provision relatingto National Register of Indian Citizens in the State of Assam. Rule 4Aof the 2003 Rules reads as under:

“4A. Special provisions as to National Register of IndianCitizens in the State of Assam— (1) Nothing in rule 4 shall, onand after the commencement of the Citizenship (Registration ofCitizenship and Issue of National Identity Cards) AmendmentRules, 2009, apply to the State of Assam.

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A(2) The Central Government shall, for the purpose, of the NationalRegister of Indian Citizens in the State. of Assam, cause to carryout throughout the State of Assam for preparation of the NationalRegister of Indian Citizens in the State of Assam by invitingapplications from all the residents, for collection of specifiedparticulars relating to each family and individual, residing in a localBarea in the State including the citizenship status based on theNational Register of Citizens 1951, and the electoral rolls upto themidnight of the 24th day of March, 1971.

(3) The Registrar General of Citizens Registration shall notify theperiod and duration of the enumeration in the Official Gazette.C

(4) The manner of preparation of the National Register of IndianCitizens in the State of Assam shall be such as specified in theSchedule appended to these rules.”

Sub-rule (2) of Rule 4A states that the Central Government forthe purpose of preparation of the National Register of Indian Citizens inDthe State of Assam shall invite applications from all residents for collectionof specified particulars relating to each family and individual residing inthe local area in the State including the citizens’ status based upon theNational Register of Citizens, 1951 and the electoral rolls upto the midnightof 24[th] March, 1971. The manner of preparation of the National RegisterEof Indian Citizens in the State of Assam shall be such as specified in theSchedule to the 2003 Rules.

7. We are not reproducing the entire Schedule but would like torefer to paragraph 2 of the Schedule which prescribes the mandate toprepare and specifies the manner of preparation of the draft NationalRegister of Indian Citizens in the State of Assam on the basis of theFNational Register of Citizens, 1951 and electoral rolls upto the midnightof 24[th] March, 1971. The list so prepared has to be published and madeavailable to the Local Registrar of Indian Citizens for wide circulationand public inspection in every village and ward. The Local Registrar ofIndian Citizens are mandated to receive application forms and issueGreceipt to the applicants.

8. Sub-para (3) to paragraph 2 of the Schedule to the 2003 Rulesreads as under:

“The Local Registrar of Citizen Registration, after the receipt ofthe application under sub-paragraph (2) shall scrutinize the H

applications and after its verification, prepare a consolidated listthereof which shall contain the names of the following persons,namely:

persons whose names appear in any of the electoral rolls upto themidnight of the 24[th] day of March, 1971 or in the National Registerof Citizens, 1951; descendants of the persons mentioned in clause (a) above.”

This sub-para states that the Local Registrar, after receipt of theapplication from citizens in terms of sub-para (2), has to scrutinize themand after verification prepare a consolidated list including the names ofthe persons whose names had appeared in any of the electoral rolls uptothe midnight of 24[th] March,1971 or in the National Register of Citizens,1951 and the descendants of such persons.

9. Paragraph 3 of the Schedule to the 2003 Rules reads as under:

“3. Scrutiny of applications— (1) The scrutiny of applicationsreceived under sub-paragraph (3) of paragraph 2 shall be madeby comparing the information stated in the application form withthe official records and the persons, of whom the information isfound in order, shall be eligible for inclusion of their names in theconsolidated list.

(2) the names of persons who have been declared as illegal migrantsor foreigners by the competent authority shall not be included inthe consolidated list:

Provided that the names of persons who came in the State ofAssam after 1966 and before the 25th March, 1971 and registeredthemselves with the Foreigner Registration Regional Officer andwho have not been declared as illegal migrants or foreigners bythe competent authority shall be eligible to be included in theconsolidated list;

(3) the names of persons who are originally inhabitants of theState of Assam and their children and descendants, who areCitizens of India, shall be included in the consolidated list if thecitizenship of such persons is ascertained beyond reasonable doubtand to the satisfaction of the registering authority; A

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(4) the Local Registrar of Citizens Registration may, in case ofany doubt in respect of parental linkage or any particular mentionedin the application received under sub-paragraph (3) of paragraph2, refer the matter to the District Magistrate for investigation andhis decision and Local Registrar of Citizens Registration shall alsoinform the same to the individual or the family; B

(5) the Local Registrar of Citizens Registration may, in respectof a person who—

(a) was residing in a place other than the State of Assam upto themidnight of the 24th day of March, 1971; or C

(b) has shifted from one district to another within the State ofAssam upto the midnight of the 24th day of March, 1971.

verify information relating to such person through inter-Statecorrespondence, or, as the case may be, through inter-districtcorrespondence.”

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Paragraph 3 deals with the preparation of consolidated list oforiginal inhabitants of Assam, their children and descendants if theircitizenship is ascertained beyond reasonable doubt and to the satisfactionof the Registering Authority. As per Sub-para (4) in case of any doubtduring scrutiny in respect of parental linkage or any particular mentionedEin the application received under sub-para (2) of paragraph 2, the LocalRegistrar of citizens is required to refer the matter to the DistrictMagistrate for investigation and decision by him. The Local Registrar isrequired 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 theLocal Registrar in respect of persons who are residing in a place otherFthan the State of Assam upto the midnight of the 24[th] day of March,1971 or has shifted from one district to another within the State of Assamupto the midnight of the 24[th] day of March, 1971. Sub-para (2) toparagraph 3 of the Schedule deals with a separate class or cases ofpersons who have been declared as illegal migrants or foreigners by theGCompetent Authority. Sub-para (2) mandates that the illegal migrants orforeigners so declared by the Competent Authority shall not be includedin the consolidated list. Proviso applies to persons who had come to theState of Assam after 1966 but before 25[th] March, 1971 and had registeredthemselves with the Foreigner Registration Regional Office and had not H

been declared as illegal migrants or foreigners by the Competent Authority.They are eligible to be included in the consolidated list.

10. It is obvious to us that the persons covered by sub-para (2) toparagraph 3 of the Schedule i.e. persons who have been declared to beillegal migrants or foreigners by the Competent Authority fall in a separateand distinct class and in such cases, no enquiry or investigation is requiredto be conducted in terms of sub-paragraph 4. Such persons cannot, interms of the specific language used in sub-para (2) to paragraph 3 of theSchedule, be included in the National Register of Citizens. The reasonas is evident is that their citizenship status has already been determinedby the Competent Authority. A person once declared an illegal migrantor a foreigner cannot claim or put forth a claim to the citizenship of Indiaon the basis that he/she has been residing in the State of Assam.

11. We are not referring to paragraphs 4 to 7 of the Schedulewhich deal with the publication of the consolidated list, additional list,claims and objections by a person whose name does not appear in thedraft list published under paragraph 2 or additional list or objections by athird person for inclusion of a name in the draft list or the additional list.We would, however, reiterate that the said list(s) would not include nameof the persons who have been declared illegal migrants or foreigners bythe Competent Authority in terms of sub-para (2) to paragraph 3 of theSchedule. In other cases, i.e. cases not covered by sub-para (2) toparagraph 3, the Local Registrar after considering the objections andclaims has to prepare a supplementary list to be published under paragraph7 of the Schedule for inclusion and deletion of names, as the case maybe, and thereafter, a final list of National Citizens in the State of Assam.

12. This brings us to paragraph 8 of the Schedule to the 2003Rules which reads as under:

“8. Appeal- Any person, not satisfied with the outcome of thedecisions of the claims and objections under paragraph 7, mayprefer appeal, before the designated Tribunal constituted underthe Foreigners (Tribunals) Order, 1964 within a period of sixtydays from the date of such order; and on the disposal of appeal bythe Tribunals the names shall be included or deleted, as the casemay be, in the National Register of Indian Citizens in the State ofAssam.”

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AParagraph 8 provides for a right of appeal to the person who hadfiled objections and is not satisfied with the outcome of the decisionunder the final list published under paragraph 7. Such persons mayprefer an appeal before the designated Tribunal constituted under the1964 Order within a period of sixty days and on disposal of appeal by theTribunal, such persons can accordingly be included or deleted from theBNational Register of Indian Citizens in the State of Assam. Paragraph 8,therefore, makes the Foreigners Tribunal under the 1964 Order as theappellate forum to decide claims and objections under paragraph 7 ofthe Schedule.

13. The 1964 Order has been issued in exercise of power underCSection 3 of the Foreigners Act, 1946 (“the Foreigners Act” for short).The Tribunals under the 1964 Order have the power to decide whetherthe person is a foreigner or not within the meaning of the ForeignersAct. The 1964 Order before its amendment in 2012 was examined bythis Court in Sarbananda Sonowal vs. Union of India & Anr.[1]D(“Sarbananda Sonowal (I)” for short), wherein it was held that theprocedure prescribed for the Tribunals constituted under the 1964 Orderwas just, fair and reasonable. This reasoning formed the basis to strikedown provisions of the Illegal Migrants (Determination of Tribunals Act,1983) (“the IMDT Act” for short) as ultra vires the Constitution of India,primarily on the ground that the offending Act did not contain any provisionEsimilar to Section 9 of the Foreigners Act which stipulates that the burdenof proof as to whether any person is or is not a foreigner lies upon thesaid person notwithstanding anything contained in the Indian EvidenceAct, 1872. Referring to the factual data reflecting discernible illegalmigration threatening the demographic structure of the area, resultantFoutbreak of insurgency in Assam and other concomitant dimensions thathad greatly undermined the national security, duty of the UnionGovernment under Article 355 of the Constitution to protect the Stateagainst external aggression and internal disturbance, it was held that theword “aggression” is a word of very wide import and would includeinflux of foreigners who had illegally migrated. Reference was also madeGto the Memorandum of Settlement between the Government of Indiaand All India Students Union and the State of Assam. In paragraph 33 inSarbananda Sonowal (I) acknowledging the role of the Tribunalsconstituted under the 1964 Order, it was observed:

“33. Clause (b) of sub-Section 6-A(1)of the Citizenship Act, 1955defines “detected to be a foreigner” and it means detected to bea foreigner in accordance with the provisions of the ForeignersAct, 1946 and the Foreigners (Tribunals) Order 1964 by a Tribunalconstituted under the said Order. Similarly, the explanationappended to Section 6-A (2)also refers to the “opinion of theTribunal constituted under the Foreigners (Tribunals) Order, 1964holding such person to be a foreigner”. These provisions mandatethe establishment and functioning of a Tribunal constituted underthe Foreigners (Tribunals) Order, 1964 in the State of Assam.The learned Additional Solicitor General and Shri K.K. Venugopal,learned senior counsel for the State of Assam have made astatement that such Tribunals are actually functioning in the Stateof Assam.”

Thus, the IMDT Act was struck down as it did not have a provisionsimilar to Section 9 of the Foreigners Act regarding the burden of proofobserving that it would be difficult for the State to give an exact date ofentry of a foreign national who had surreptitiously crossed the Indiannational border and that the court cannot be remain a quiet spectator tothe continuing influx of illegal migrants. A Bench of 3 Judges did nothesitate to observe that the IMDT Act which had been constituted forthe detection and deportation of illegal migrants having entered into Indiaon or after 25[th] March, 1971 had designedly failed in its purpose.

14. Subsequently, this Court in Sarbananda Sonowal (II) vs.Union of India[2] (“Sarbananda Sonowal (II)” for short) had struckdown the Foreigners (Tribunals) Amendment Order 2006 inter alia forseveral reasons including those mentioned and which had found favourin Sarbananda Sonowal (I). The amendment Order in distinction tothe 1964 Order had required the Tribunal to first consider whether therewere sufficient grounds for proceeding and only on the Tribunal beingsatisfied that the basic facts are prima facie established that the noticecould be issued to a person suspected of being an illegal migrant. TheDivision Bench in Sarbananda Sonowal (II) was pleased to observe inparagraphs 64 and 65 as under:

“64. In the face of the clear directions issued in Sonowal I, it wasfor the authority concerned to strengthen the Tribunals under the AB

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1964 Order and to make them work. Instead of doing so, the 2006Order has been promulgated. It is not as if the respondents havefound the 1964 Order unworkable in the State of Assam; theyhave simply refused to enforce that Order in spite of directions inthat behalf by this Court. It is not for us to speculate on the reasonsfor this attitude. The earlier decision in Sonowal, has referred tothe relevant materials showing that such uncontrolled immigrationinto the North- Eastern States posed a threat to the integrity ofthe nation. What was therefore called for was a strictimplementation of the directions of this Court earlier issued inSonowal I, so as to ensure that illegal immigrants are sent out ofthe country, while in spite of lapse of time, the Tribunals under the1964 Order had not been strengthened as directed in Sonowal I.Why it was not so done, has not been made clear by the CentralGovernment. We have to once again lament with Sonowal I thatthere is a lack of will in the matter of ensuring that illegal immigrantsare sent out of the country.

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65. It appears that the 2006 Order has been issued just as a coverup for non-implementation of the directions of this Court issued inSonowal I. The Order of 2006, in our view, is clearly unnecessaryin the light of the 1946 Act and the Orders made thereunder andthe directions issued in Sonowal I. It does not serve the purposesought to be achieved by the 1946 Act or the Citizenship Actandthe obligations cast on the Central Government to protect the nationin terms of Article 355of the Constitution of India highlighted inSonowal. We have also earlier struck down the repeal of the 1964Order as regards Assam. The 2006 Order is therefore found tobe unreasonable and issued in an arbitrary exercise of power. Itrequires to be quashed or declared invalid.”

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15. We have referred to the two decisions in Sarbananda Sonowal(I) and (II) to indicate and show that the issues and arguments raisedbefore us and noticed below have already been substantially examinedGand dealt with and rejected earlier.

16. The aforesaid judgments had referred to the 1964 Order priorto its amendment vide Foreigners (Tribunal) Amendment Order, 2012.In order to appreciate the contentions raised by the appellants, we wouldlike to first reproduce Paragraph 3 of the amended 1964 Order, whichreads as under:H

“3. Procedure for disposal of question:

(1) The Tribunal shall serve on the person to whom the questionrelates a show cause notice with a copy of the main grounds onwhich he or she is alleged to be a foreigner. This notice should beserved as expeditiously as possible and in any case, not later thanten days of the receipt of the reference of such question by theCentral Government of any competent authority.

(2) The Tribunal shall give him or her a reasonable opportunity toshow cause by filing a representation. Ordinarily, not more thanten days’ time from the date of service of the notice as aforesaidshould be given to file such a representation.

(3) The Tribunal shall give him or her a reasonable opportunity toproduce evidence in support of his or her case. Ordinarily, notmore than ten days’ time should be given to produce such evidence.

(4) A prayer for examination of witnesses in Court or a Commissionfor production of documents shall be refused if, in the opinion ofthe Tribunal, such prayer is made for the purpose of vexation ordelay or similar purpose.

(5) The Tribunal shall take such evidence as may be produced bythe Superintendent of Police concerned.

(6) The Tribunal shall hear such persons as, in its opinion, arerequired to be heard.

(7) A party to the proceeding may be allowed to appear beforethe Tribunal either in person or through a legal practitioner orsuch person or relation authorized by him in writing as the Tribunalmay admit as a fit person to represent the party.

(8) The power of granting adjournment or any plea should bevery sparingly exercised.

(9) After the case has been heard, the Tribunal shall submit itsopinion as soon thereafter as may be practicable, to the officer orthe authority specified in this behalf in the order of reference.Every case should be disposed of within a period of 60 days afterthe receipt of the reference from the competent authority.

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A(10) The Tribunal’s final order containing its opinion on the questionreferred to need not be a detailed order as it is not a judgment; aconcise statement of facts and the conclusion will suffice.

(11) Subject to the provisions of this order, the Tribunal shall havethe power to regulate its own procedure for disposal of the casesBexpeditiously in a time bound manner.”17. Referring to the above amended provisions, it is urged onbehalf of the appellants that an order of the Foreigners Tribunal is anexecutive order which renders an opinion and therefore, it cannot beequated with a judgment. Summary opinion of the Foreigners Tribunal, itCis submitted, is not a detailed order and hence, is not a decision orjudgment. Based on the said submission, it is argued that the opinionformed by the Foreigners Tribunal is not an order of the CompetentAuthority for the purposes of sub-para (2) to paragraph 3 of the Scheduleto the 2003 Rules. Further, the opinion formed by the Foreigners Tribunalbeing an executive order would not operate as res judicata. It isDhighlighted that in some cases, persons who have been declared to be aforeigner under the Foreigners Act have been included in the draftNational Register of Citizens for the State of Assam, while in otherssiblings and close blood relations of such persons have been named inthe draft National Register of Citizens. It is averred that in these casesEof contradictions, an aggrieved person should be entitled to take recourseto paragraph 8 of the Schedule to the 2003 Rules.

18. We have examined the contentions and have no hesitation inholding that they have no force. The Foreigners Act and the CitizenshipAct including the Rules framed under the two Acts have to be readFharmoniously as both the Acts are inter-related and sister enactments.Pertinently, the Rules framed under the Citizenship Act are subordinatelegislation. The expression Competent Authority used in sub-para (2) toparagraph 3 of the Schedule to the 2003 Rules would obviously andwithout a doubt has reference to the duly constituted authority under theForeigners Act. Indeed, the learned counsel for the appellants did notGmake any attempt to point out and highlight that there could be any otherauthority covered by the expression ‘Competent Authority’ or whichwould qualify and can be treated as a Competent Authority referred toin sub-para (2) to Paragraph 3 of the Schedule to the 2003 Rules.Paragraph 3 of the amended 1964 Order uses the expression ‘CompetentHAuthority’ as is also used in sub-para (2) to paragraph 3 of the Schedule, albeit in a different context as a competent authority that makesreference to the Tribunal in terms of Paragraph 3. On receipt of suchreference, the Tribunal has to submit its opinion/decision, which opinion/decision in terms of Explanation to Section 6A of the Citizenship Act isfinal and binding. Decisions of the Tribunal have been given primacy.Thus, the Competent Authority referred to in sub-para (2) to paragraph3 of the Schedule would be, without a doubt, the Tribunal constitutedunder the Foreigners Act i.e. the 1964 Order.

19. The procedure prescribed by the post 2012 amendment underthe 1964 Order mandates compliance with the principles of natural justice.All the allegations and grounds are required to be served by the Tribunalin the form of a show cause notice to the person who is alleged to be aforeigner [see paragraph 60 in Sarbananda Sonowal (II) (supra)].Thereupon, the person has to be given a reasonable opportunity to filerepresentation and also produce evidence. The Tribunal has beenauthorised to consider and allow prayer for production and examinationof the witnesses which can be refused if found to be vexatious, or madewith the intent to cause delay, etc. The evidence produced by theSuperintendent of Police can also be recorded. The person concernedhas to be heard before the Tribunal gives its opinion. The person concernedmay appear in person or can be represented by a legal practitioner or anauthorised representative. Opinion is to be given within a period of sixtydays after the reference from the competent authority. No doubt, theRules do not prescribe and require an opinion of the Tribunal to be adetailed judgment, nevertheless, it is obvious that the opinion renderedmust state the facts and reasons for drawing the conclusions. It is adecision and an order. Fixing time limits and recording of an order ratherthan detailed judgment is to ensure that these cases are disposed ofexpeditiously and in a time bound manner. The opinion by the ForeignersTribunal is a quasi-judicial order and not an administrative order. Theexpression ‘quasi-judicial order’ means a verdict in writing whichdetermines and decides contesting issues and question by a forum otherthan a court. The determination has civil consequences. Explaining themeaning of quasi-judicial body in Indian National Congress (I) vs.Institute of Social Welfare & Ors.[3], it was held that when any body ofpersons has a legal authority to determine questions affecting the rightsof subjects and a duty to act judicially, such body of persons constitute a A

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Aquasi-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 authorityto decide the lis not between the two contesting parties but also whenthe 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-judicialBact is that a quasi-judicial body is required to make an enquiry beforearriving at a conclusion. In addition, an administrative authority is theone which is dictated by policy and expediency whereas a quasi-judicialauthority is required to act according to the rules.

20. The opinion/order of the Tribunal, or the order passed by theCRegistering Authority based upon the opinion of the Foreigners Tribunal,as the case may be, can be challenged by way of writ proceedings.Thus, it would be incorrect to hold that the opinion of the ForeignersTribunal and/or the consequential order passed by the RegisteringAuthority would not operate as res judicata. Both the opinion of theDTribunal and the Order of the Registering Authority result in determinationof rights/status under the statute and by an authority after a contest onthe merits which would necessarily operate as a bar to subsequentproceedings before the same authority for re-determination of the sameissue/question. This court in Shrimati Ujjambai vs. State of UttarPradesh & Anr.[4]has held that the principles of res judicata equallyEapply to quasi-judicial bodies. Whenever a judicial or quasi-judicial Tribunalgives a finding on law or fact, its findings cannot be impeached collaterallyor in a second round and are binding until reversed in appeal or by wayof writ proceedings. The characteristic attribute of a judicial act ordecision is that it binds, whether right or wrong. Thus, any error, eitherFof fact or law, committed by such bodies cannot be controverted otherwiseby way of an appeal or a writ unless the erroneous determination relatesto the jurisdictional matter of that body. In Dr. J.J. Merchant & Ors.vs. Shrinath Chaturvedi[5], when the learned counsel had pleaded thatthe National Consumer Disputes Redressal Commission cannot examine complicated questions of facts which require examination and cross-Gexamination of experts including doctors and that the procedure followedfor determination of consumer disputes being summary in nature is notsuitable for determination of complicated questions, this court rejectedthese contentions and held that under the Consumer Protection Act,4 AIR 1962 SC 1621H5 (2002) 6 SCC 635

1986, for a summary trial, an exhaustive procedure conforming to theprinciples of natural justice is provided. Merely because the trial issummary in nature cannot be a ground to reject it as unjust or unfair.Further, it was held in Rajesh Kumar & Ors. vs. DY. CIT & Ors.[6] thatwhen civil or evil consequences ensue by reason of an act done by thestatutory authority, principles of natural justice must be followed. TheAct and power of judicial review vested with the constitutional courtsprovide sufficient safeguards, in the present context.

21. When we apply general principles of res-judicata, thecontention of the appellants that the person concerned should be permittedto double-dip and be entitled to a second round of litigation before theForeigners Tribunal notwithstanding the earlier opinion expressed by theForeigners Tribunal is far-fetched, and completely unacceptable. Theplea is fallacious and has no merit. This contention therefore must berejected and fails.

22. As stated above, a person aggrieved by the opinion/order ofthe Tribunal can challenge the findings/opinion expressed by way of awrit petition wherein the High Court would be entitled to examine theissue with reference to the evidence and material in the exercise of itspower of judicial review premised on the principle of “error in the decision-making process”, etc. This serves as a necessary check to correct andrectify 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 heldas is now being undertaken. In the absence of joint decisions, conflict ispossible as the principle of res judicata would not apply to separateproceedings even if against two closely related but different persons, aseach case has to be strictly decided on the facts and evidence on record.Secondly, there is a possibility that some/one of the near family membersmay have migrated to India prior to midnight of March 24, 1977 and,therefore, fall in a different category. Any such conflict, however, wouldnot compel us to take a different view, in terms of the clear statutoryprovisions. In a given case, the person aggrieved would have liberty toinvoke writ jurisdiction, or if necessary, review jurisdiction before theHigh Court or this Court to ensure that no injustice is done. Any order AB

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Apassed in case of close family members, subsequent to adjudication orderdetermining the citizenship status of a person, would necessarily be amaterial evidence which can be duly taken note of and considered whiledeciding a writ petition or a review application.

24. In view of the aforesaid findings, it has to be held thatBparagraph 8 of the Schedule to the 2003 Rules which gives a right toappeal before the Tribunal under the 1964 Order would apply only ifand, in those cases, where the Tribunal constituted under the 1964 Orderhas not already adjudicated upon and decided the issue as to whetherthe person is an Indian National or a foreigner. In other words, wherethe issue and question of nationality has already been determined underCthe 1964 Order, an appeal would not be maintainable under paragraph 8of the Schedule to the 2003 Rules. The determination would be final andbinding on the Registering Authority under the Schedule and the LocalRegistrar. Paragraph 8 does not envisage and provide for a second roundof litigation before the same authority i.e. the Foreigners TribunalDconstituted under the 1964 Order on and after preparation of the finallist. Provisions of paragraph 8 of the Schedule to the 2003 Rules willapply when there has not been an earlier adjudication and decision bythe Foreigners Tribunal.

25. Alternative submission that this court should create an appellateEforum has not been pressed in the written submissions and arguments.We would not give any such direction and entrench upon the field oflegislation reserved for legislature. This is not a case of an unoccupiedlegislation nor would facts justify the Court to exercise powers as in thecases of vacuum and when there is a complete absence of active law toprovide for effective enforcement of basic human rights [See P.FRamachandra Rao vs. State of Karnataka[7]and Pravasi BhalaiSangathan vs. Union of India[8]].