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Judgment
(Pranjal Das, J)transcription The writ petitioner, namely Haidar Ali, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India to assail the judgment and opinion dated 20-12-2018, passed by the learned Member, Foreigners Tribunal, Jorhat in FT Case No. 428 of 2005 (corresponding to S.P’s Inquiry No. 428 of 2005).
We have heard Shri. S. Alim, learned counsel for the petitioner. We have also heard Shri. G. Sharma, learned Standing Counsel, NRC for the respondent No. 6, Shri. A. I Ali, learned Standing counsel, ECI for the respondent No. 5, Shri. P. Sharma, learned State Counsel for the respondent No. 4; Ms. A. Verma, learned Standing counsel, Home Department & FT for the respondent No. 2, 3 & 7 and Shri. S. Chanda, learned CGC for the respondent No. 1.
By the said impugned opinion, the petitioner, as proceedee, has been declared to be a foreigner who had illegally come into India and Assam from the specified territory after 25-03-1971. Consequential steps were also directed. Accordingly, the instant writ petition.
The petitioner, as proceedee, was subjected to an earlier round of litigation, whereby an ex-parte opinion was passed dated 03-03-2008 in the FT case and being aggrieved by the same, the petitioner preferred the writ petition before this Court, which was registered and numbered as WP(C) No. 782 of 2017. The said writ petition was disposed of by this Court vide order dated 14-02-2017, whereby the ex-parte order dated 03-03-2008 was set aside. This court, in that order, also directed the petitioner, as proceedee, to appear before the Tribunal on 15-03-2017, along with his written statement.
It was also observed by this Court, in the order dated 14-02-2017, that if there is any default on the part of the petitioner to appear on 15-03-2017 or any subsequent date(s), the Tribunal would be at liberty to pass appropriate order in accordance with law.
In terms of the said order passed by this Court, a petition was filed on behalf of the proceedee on 15-03-2017, seeking another date and the matter was fixed on 06-04-2017. However, it is revealed that from 06-04-2017 till 02-10-2018, no orders were passed by the Tribunal and subsequently, a fresh notice was issued to him, giving him a last opportunity to file his written statement on 25-10-2018. Subsequently, on the same date, i.e., 25-10-2018, the notice sent to the proceeding returned un-served. Thereupon, a specially prescribed notice was issued upon him, which was stated to be received by the proceedee personally from the Office of the Tribunal and the same was witnessed by the learned counsel for the proceedee. The matter was fixed on 13-12-2018. But again, the proceedee failed to appear and also failed to file his written statement.
In the said facts and circumstances, the Tribunal barred the filing of written statement by the proceedee anymore and fixed the case for passing of ex-parte order on 20-12-2018. Accordingly, the impugned order dated 20-12-2018 was passed by the Tribunal, declaring the petitioner as proceedee to be a foreigner of the post-1971 stream, as already stated above. In the impugned opinion, the learned Tribunal has referred to the provisions of section 9 of the Foreigners Act 1946, wherein the burden is upon the proceedee to prove that he is a citizen of India and not a foreigner. In view of the continued absence and failure of the proceedee to prosecute the matter, the learned Tribunal came to the view that the proceedee has failed to discharge the burden under section 9 of the Foreigner Act 1946 and accordingly, rendered the opinion against him, as mentioned earlier.
Shri. Alim, learned counsel for the petitioner submits that the earlier order was also ex-parte, and the petitioner in the second proceeding also did not get an opportunity to prosecute his case and that the petitioner as proceedee should be given an opportunity to place his materials before the Tribunal to show that he is not a foreign national. To that extent, the learned counsel prays for remanding the matter back to the Tribunal.
Ms. Verma, the learned counsel for respondent No. 2 & 6, being the Home Department of the Government of Assam and the NRC authority — submits that the petitioner does not deserve to be given any more opportunity, as he has been completely lax in pursuing the matter in both the rounds of litigation. It is submitted that even in the writ petition, there have been several adjournments. It is submitted that the petitioner is merely delaying the matter.
Mr. A.I.Ali, the learned CGC for the respondent No.1, supporting the submissions of Ms. Verma, the learned counsel, further contends that the petitioner has been completely lax in pursuing the proceedings.
We have perused the materials and considered the rival submissions. From the perusal of the impugned opinion and the records, we find that the order passed in the writ petition in the first round of litigation clearly directed the petitioner to appear on 15-03-2017 and file his written statement on the same day. The same was not complied with by the petitioner and a petition was filed on his behalf seeking another day, which, however, was allowed by the Tribunal. Even thereafter, the petitioner failed to appear. Subsequently, as mentioned above, a notice was personally served upon him and date fixed for written statement. But again, he neither filed a written statement nor appeared.
Upon perusing the materials, we find that the Tribunal has given enough opportunity to the petitioner to prosecute his matter before it, even granting more flexibility than what was originally provided in the order passed by the Tribunal. Even then, the petitioner failed to pursue the proceedings, resulting in the ex-parte opinion again.
Before proceeding further, we may refer to the legal maxim, Vigilantibus non dormientibus jura subveniunt which means that law assists those who are vigilant and not those who would like to sleep on their rights. This principle is stated to be at the heart of equitable jurisprudence.
In the case of Moon Mills Limited -versus- M.R Meher, reported in AIR 1967 SC 1450, the Hon’ble Apex Court referred to the equitable principle embodied in the jurisprudence pertaining to Article 226. The para-9 may be reproduced herein below:
“9.It was, therefore, contended that the appellant itself had agreed with respondent 2 to pay bonus for 1953, 1954, 1955 and 1956 according to the terms of the bonus agreement. It was also pointed out that the appellant had not pressed its objection with regard to jurisdiction before the labour court or the industrial court. But it appears that the decision of this Court in Prakash Cotton Mills case 1962 (1) LLJ 108 ] (vide supra) was given on February 16, 1961 after the decision of K. K. Desai, J., on July 1, 1960 and before the decision of the Letters Patent Bench on February 6, 1962. In the circumstances of this case, we do not consider that there is such acquiescence on the part of the appellant as to disentitle it to a grant of writ under Art. 226 of the Constitution. It is true that the issue of a writ certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstance, cause prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sri Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell and John Kemp [Law Reports 5 P.C., 221 at 239] as follows :
“Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." (emphasis added)
Similarly, the Hon’ble Supreme Court, in the case of Karnataka Power Co-operation Ltd. -versus- K. Thangappan, reported in (2006) 4 SCC 322, delved into this aspect. The relevant para-6, 7, 8 & 9 may be reproduced herein below:
“6.Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.
7.What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:
“Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.”
8.It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9.It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” (emphasis added)
In Chennai Metropolitan Water Supply & Sewerage Board -versus- T.T Murali Babu, reported in (2014) 4 SCC 108, the Hon’ble Apex Court reiterated and reaffirmed the principle that delay and laches reduces the efficacy of equitable remedies. The relevant para-16 may be reproduced herein below:
“16.Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.” (emphasis added)
Further, in the case of Ramjas Foundation & Others –versus- Union of India & Others, reported in 1993 Supp (2) SCC 20, the Hon’ble referred to the equitable jurisdiction of the Court under Article 226 of the Constitution. The relevant extract of para-7 may be reproduced herein below:
“7.…………………………………………………………………
………………………………………
lt is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Art. 226 of the Constitution is required to come with clean hands and should not conceal the material facts…………………………………………………”
In the facts and circumstances of this case discussed above, and keeping in mind the equitable principles, enunciated in the laws laid down by the Apex Court — we come to the considered opinion that there is no merit in the instant writ petition and considering the long elapse of time for which mostly the petitioner is responsible — there would be no justification to remand the matter for further proceedings, in a third round of litigation.
Accordingly, the instant writ petition stands dismissed.
Return the original TCR to the Tribunal.