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Judgment
(Pranjal Das, J) Heard Mr. S. K. Ghosh, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing counsel, F.T. and Border matters; Mr. A. I. Ali, learned Standing counsel, ECI and Mr. I. Borthakur, learned CGC and Ms. R. B. Bora, learned Junior Government Advocate.
Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner, Md. Sahidul Rahman @ Sahidul Haque, has assailed the judgment and opinion dated 23.10.2019 passed by the learned Member of the Foreigners' Tribunal, Kamrup (M), No. 2, Guwahati, in the FT Case No. 355/2018, whereby the petitioner, as proceedee, was declared to be a foreign national who had illegally entered India, after 24.03.1971.
The facts in brief are that a reference was made by the Senior Superintendent of Police (B), Guwahati, against Md. Sahidul Rahman @ Sahidul Haque, son of Fajrul Sheikh, suspecting him to be a foreigner who had illegally come from Bangladesh and the opinion of the Foreigners Tribunal was sought for. Thereupon, FT Case No. 355/2018, as mentioned above was registered and notice was issued to the petitioner as proceedee, whereupon, on 05.08.2019, he appeared and filed a written statement, claiming that he was an Indian citizen and denied that he was a foreigner who had illegally come from Bangladesh after the cut-off date.
During the proceedings, the petitioner, as proceedee, adduced evidence of 2 (two) witnesses, being himself as DW-1 and his projected father, Fajrul Sheikh as DW-2. As part of his evidence, the petitioner, as proceedee, exhibited as many as 19 (nineteen) documents. However, the Tribunal could not be persuaded by the petitioner through his evidence and documents to return an opinion in his favour. And the Tribunal answered the reference against the petitioner, holding him to be a foreigner post the cut-off date.
Mr. Ghosh, learned counsel for the petitioner, submits that Md. Sahidul Rahman and Sahidul Haque are one and the same person and that the judgment of the Tribunal is perverse. It is submitted that no FT case is pending against other family members. It is submitted that the particulars of the birth certificate, adduced in evidence by the petitioner, have matched with that of the voters list. It is submitted that there is no information in the reference that he had migrated from the specified territory. It is further contended that when the father of the petitioner has not been doubted, then how can his son be declared as a foreigner, and that the fact that the petitioner is the son of the said Fajrul Sheikh is not disputed. It is submitted that a residency certificate has also been issued by the panchayat and the concerned person from the panchayat had also appeared as witness.
On the other hand, Mr. J. Payeng, learned counsel for respondent Nos. 2 and 4, submits that in all the voters lists, the projected father of the petitioner is mentioned as Fajrul Sheikh and there is discrepancy in the birth certificate. It is further submitted that the projected father and grandfather are not together in any document and that from 1989 voters list onwards, there has been a different set of people. It is submitted that there is no linkage evidence between the projected father and grandfather of the petitioner.
Referring to relevant case laws, the learned counsel submits that the certificate issued by the panchayat is valid only with regard to shifting of married women. In support of his contentions, the learned counsel for respondent Nos. 2 and 4 relies on the following decision:-
Rupajan Begum Vs. Union of India and Ors reported in (2018) 1 SSC 579.
We have perused the pleadings of the writ petition, the written statement, the evidence on affidavit adduced from the side of the petitioner, the exhibited documents and other relevant materials. We have considered the submissions of the learned counsels on both the sides and perused the decisions cited at the Bar.
In the written statement, the petitioner as proceedee claimed that he was a citizen of India by birth, having been born on 20.03.1992, at village Debottar Hasdaha Part-V within the jurisdiction of Golakganj Police Station of district Dhubri. And that in this connection, the Registrar of Birth & Death, Golakganj P.H.C, issued a birth certificate vide Registration No. 1085, dated 31.07.1992. However, it is stated in the written statement that in the birth certificate, the name of the petitioner's father was recorded mistakenly as Fajlur Rahman instead of Fajrul Sheikh.
In this context, the petitioner in the written statement has pleaded that the actual and correct name of the petitioner's father is Fajrul Sheikh and therefore Fajrul Sheikh and the aforementioned Fajlur Rahman are one and the same person and father of the petitioner. The petitioner denied in the written statement that he is a foreign national. He also stated that in the notice sent by the Tribunal, in the proceeding, his name was reflected as Sahidul Rahman @ Bhutta but his actual and correct name is Sahidul Haque. It is also stated that in the notice, the petitioner's father's name was reflected as Fajrul Rahman but actual and correct name is Fajrul Sheikh. The petitioner further pleaded in the written statement - that even his parents, grandparents and other members of the family are citizens of India.
He stated the name of the father of his great-grandfather as Turu Sheikh, name of his great-grandfather as Kado Sheikh, name of his great-grandmother as Sendur Bibi and his grandfather being Josen Ali. He further stated that his grandmother's name was Joribhan Bibi, grandfather's brother's name is Husen Ali and the name of his father is Fajrul Sheikh @ Fajlur Rahman and his mother is Sahida Bibi. He stated about the siblings of his father being 8 (eight) in number and he also stated about his own siblings being 8 (eight) in number.
The petitioner stated in the written statement that the name of his great-grandfather, great-grandmother, grandfather and grandmother were enlisted in the voters list of 1966 with regard to No. 34 Gauripur LAC. The petitioner also filed an additional written statement reiterating that he is a citizen of India by birth. Regarding voters list, he stated that in the voters list of 1989 with regard to the said LAC, the name of his father and ancestors were enlisted and that in 2015 of the said LAC, his name was also reflected along with that of his father and mother. However, it is stated that his father's name was again wrongly reflected as Fazar Sheikh instead of Fajrul Sheikh.
In his evidence on affidavit as DW-1, the petitioner stated some of the statements as referred to above from the written statement. DW-1 deposed that he is a citizen of India by birth, having been born on 20.03.1996 at village Debottar Hasdaha Part-V within the jurisdiction of Golakganj Police Station of District Dhubri and that he was issued a birth certificate vide Registration No. 1085 dated 31.07.1992. However, his father's name was mistakenly written as Fajlur Rahman instead of Fajrul Sheikh and that petitioner's father's correct name is Fajrul Sheikh. DW1 denied the allegations of being a foreign national stating that in the notice his name is reflected as Sahidul Rahman @ Bhutta but his correct name is Sahidul Haque. Similarly, his father's name was reflected as Fajrul Rahman instead of the correct name of Fajrul Sheikh. DW1 stated about his grandparents, parents and other family members being citizens of India. DW-1 deposed about the names of his great-grandfather and father of great-grandfather and great-grandmother as already mentioned above from the written statement.
In his testimony also, DW-1 deposed about his siblings. DW-1 also deposed about the voters list of 1966 of Gouripur LAC wherein the names of his great-grandfather, great-grandmother, grandfather and grandmother were stated to be enlisted. He also stated about the enlisting of the names of his great-grandparents and grandmother in the voters list of 1970 of the same LAC. DW-1 in para 8 of the evidence affidavit stated that in the voters list of 1977 of Gouripur LAC, the names of his grandfather, grandmother, brother of his grandfather were recorded. Similarly, in the voters list of 1989 of Gouripur LAC the names of his father and uncles were recorded. Similarly, DW1 testified about the names of his father and mother being recorded in the voters list of 1997, 2005, 2010 with regard to No. 34 Gouripur LAC and their address was given as Debottar Hasdaha Part-V within the jurisdiction of Golakganj Police Station of district Dhubri.
DW1 stated about his name figuring along with his parents in the voters list of 2015 of the same constituency, but it is stated that his father's name was wrongly reflected as Fazar Sheikh instead of Fajrul Sheikh. With regard to the voters list of 2019, DW-1 testified about the names of his parents, sister, himself and his wife being recorded. However, in the voters list of 2019 also, father's name was recorded as Fajrul Rahman. In para 15, DW1 stated that the Election Commission issued a voters ID card in the name of his father as Fajrul Sheikh. He exhibited the same as Exhibit-K. It may be mentioned herein that the voters lists mentioned above were exhibited by the petitioner as Exhibit-B,C,D,E,F,G,H,I,J. The birth certificate has been exhibited as Exhibit A. DW1 also deposed that the ECI issued voters ID in the name of his mother as Sahida Bibi, wife of Fajrul Sheikh. He was also given a voter ID card as Sahidul Haque, son of Fajrul Sheikh. He said that PAN card was also issued in his name as Sahidul Haque, son of Fajrul Sheikh. He exhibited his voter ID card and PAN card as Exhibit L and M respectively.
As part of his testimony, DW-1 also exhibited a certificate issued by the Secretary and President of Dhedhepi Gaon Panchayat. The certificate was issued in the name of Sahidul Haque, son of Fajrul Sheikh, inhabitant of village Debottar Hasdaha P art-V, Golakganj, Dhubri. DW-1 also exhibited the certificate issued by the Secretary of Dhedhepi Gaon Panchayat, in the name of his father as Fajrul Sheikh. He deposed that his grandparents have landed property in that village and so also his father. He deposed that they also have landed property and in 1972, his grandfather and his grandfather's brother purchased land. And the said deed was exhibited at Exhibit-P.
Perhaps in the absence of the government Pleader, questions were put by the Tribunal to DW-1, regarding his evidence on affidavit. Answering those questions, DW-1 stated that his name is Sahidul Haque and father's name is Fajrul Sheikh; mother is Sahida Bibi and paternal grandparents are Joshen Ali and Jori. He stated about his wife Sofia Bibi, his siblings and also the siblings of his father. DW-1 reiterated in such questions by Tribunal that he and his family reside in village Debottar Hasdaha Part-V under Golakganj PS, Dhubri. And that he was born in that village and cast vote there for the first time in the year 2016. He stated that apart from his case, no other proceeding is pending against his family members regarding citizenship status. He stated about exhibiting 19 documents.
The petitioner's projected father, Fajrul Sheikh has adduced evidence on his behalf as DW-2 on affidavit. In the affidavit he has mentioned his name as Fajrul Sheikh @ Fajlur Rahman @ Fazar Sheikh, son of Joshen Ali, a resident village Debottar Hasdaha Part-V under Golakganj PS, Dhubri. DW2 stated that he is also a citizen of India and residing in village Debottar Hasdaha Part-V under Golakganj PS, Dhubri and father of the petitioner, Sahidul Haque. He stated that the petitioner was born on 20.03.1992 at Debottar Hasdaha Part-V and brought up there.
DW-2 also testified about the birth certificate dated 31.07.1992 and also stated like DW-1 that his name was wrongly written there as Fajlur Rahman instead of Fajrul Sheikh. Like DW-1, DW-2 also stated about the correct name of his son being Sahidul Haque though it is mentioned as Sahidul Rahman in the notice and about his name also wrongly written as Fajrul Rahman in the notice instead of Fajrul Sheikh. DW2 also stated about his ancestors on the lines stated by DW-1. He has deposed on identical lines regarding the enlisting of his ancestors in the voter lists of 1966, 1970, 1977. He stated about his name and that of his brothers being reflected in the voters' list of 1989 which has already been executed by DW1.
He has stated about enlisting the name of himself and his wife in the voter lists of 1997, 2005, 2010 and 2015. With regard to 2015 voters list, DW-2 has deposed that the name of the petitioner also was reflected, with regard to the aforementioned village Debottar Hasdaha Part-V under Golakganj PS, Dhubri. He has also stated about his name being wrongly reflected as Fajrul Sheikh in the voters list of 2015. Regarding the list of 2019, he has stated on identical lines as DW-1. The voter ID card mentioned by DW-1 with regard to his projected father is also testified to by DW-2 and that ID card was issued in his name as Fajrul Sheikh, son of Josen Ali. The said document has been exhibited already by DW1. DW2 also stated about the voter ID card in the name of his wife and the petitioner. He stated that in his son's voter's ID, his name is mentioned as Sahidul Haque, son of Fajrul Sheikh of village Debottar Hasdaha Part-V under Golakganj PS, Dhubri.
He has stated about the PAN card on identical lines as DW-1. He has also stated about the certificates issued by the panchayat which have already been narrated above. DW-2 has also stated about their landed property in the village and about his father and uncle purchasing land in that area in 1972 itself, the relevant document of which has already been exhibited. In question put by the Tribunal, DW2 stated that his name is Fajrul Sheikh and the petitioner, Sahidul Rahman is his son. He stated about his residence in the same village where he was born and also cast his vote.
The Secretary of Dhepdhepi Gaon Panchayat, had adduced evidence as DW-3. He was examined in chief orally before the Tribunal in which he stated that his name is Haran Ch. Karmakar and he is the Secretary of Dhepdhepi Gaon Panchayat. He stated about Exhibit N and identified his signature there on. He also identified the signature of the President of Dhepdhepi Gaon Panchayat, B. Das, stating that he is known to him. He further stated that the full name of the President is Binota Mala Das. DW3 stated that Sahidul Hoque, son of Fajrul Sheikh of the Debottar Hasdaha Part-V under Golakganj PS, Dhubri, filed an application before the President for a residency certificate which was issued after verification of the voters list. In this context, he testified that in the voters list of 2018, with regard to Dhepdhepi Gaon Panchayat electoral roll the names of Sahidul Hoque and Fajrul Sheikh are recorded.
In questions by the Tribunal, DW3 stated that he had brought the counter folio of the Residency certificate issued in favour of the petitioner, and that it was issued from Book No. 5, at Sl. No. 460 dated 24.04.2019. And that he, as Secretary, and the said B. B. Das, as President, put their signatures. Thus, apart from examining himself and his projected father, the petitioner side adduced evidence of Dhepdhepi Gaon Panchayat Secretary as DW3. Apart from 3 (three) witnesses, the petitioner, as proceedee, before the Tribunal exhibited 19 (nineteen) documents as referred to earlier.
From the materials narrated above, we find that the petitioner claims to be a citizen of India by birth. Not only that, the petitioner's contention is that his father, grandfather and other ancestors are also from India. In this respect, one of the main documents relied upon by the petitioner in support of his claim of citizenship by birth is Exhibit A (birth certificate). Apart from this, in his written statement as well as in his evidence also, the petitioner has stated about being born in India in 1992. His father, who has adduced evidence as DW2, has also testified about the citizen having been born in the concerned village in the district of Dhubri, Assam, India.
It is well settled by several decisions of this Court that the burden under section 9 of the Foreigners Act 1946 has to be discharged by the proceedee by adducing cogent evidence, including essentially documentary evidence. Therefore, Exhibit A is the document adduced by the petitioner before the learned Tribunal in support of his contention of citizenship by birth. In this respect, upon perusing the impugned judgment and opinion passed by the learned Tribunal, we have not found discussion as to why the birth certificate (Exhibit A) adduced in evidence has been discarded.
Now, going back to the said document, Exhibit A, we find that it is mentioned there in that Sahidul Haque was born in village Debottar Hasdaha Part-V within the jurisdiction of Golakganj Police Station of district Dhubri on 20-03-1992. His father's name has been mentioned as Fajlur Rahman. It may be mentioned herein that the reference was made in the name of Sahidul Rahman, son of Fajrul Sheikh. Though the petitioner has stated in his written statement as well as in his evidence that his father's name has been wrongly mentioned as Fajlur Rahman in the birth certificate, but no materials have been have been adduced as to any steps taken by the family of the petitioner to correct the same in the birth certificate. Even in the evidence, it has been stated that the name has been wrongly mentioned as Fajlur Rahman instead of Fajrul Sheikh. Therefore, the question is whether it can be automatically assumed that the name of the petitioner's father mentioned in the birth certificate as Fajlur Rahman is the same person as Fajrul Sheikh, who is the projected father of the petitioner.
The petitioner has has exhibited several voters' lists starting from the year 1966. In the voters' list of 1966 (Exhibit B), Kado Sk mentioned against Serial No. 491 is stated to be his great-grandfather; Joshan Ali Sk mentioned at Serial No. 493 is stated to be his grandfather. It may be mentioned herein that the said Joshan Ali Sk has been indicated as a son of Kado. In the voters list of 1970 (Exhibit C), Joshan Ali Sk has been indicated as son of Kado and so also in voters list of 1977 pertaining to No. 24 Gauripur LAC.
The name of the petitioner's projected father, Fazurul Sk, appears for the first time in the voters list of 1989 (Exhibit E). Fazurul Sk is indicated as the son of Josan. In the voters' list of 1997, Fojrul Sk is indicated as the son of Joshen Ali. In the voters list of 2005, Fojrul Sk is indicated as son of Joshan Ali. The same is the case in the voters list of 2010.
In the written statement and his evidence as DW-1, the petitioner has mentioned the correct name of his father as Fajrul Sheikh. In his own evidence also, the petitioner's projected father adducing evidence as DW2 has mentioned his correct name to be Fajrul Sheikh. In the voters ID exhibited during the proceeding, the name of the petitioner's father is mentioned in the voters ID as Fajrul Sheikh.
In the background of such names, when we go back to the birth certificate, it is found that though the petitioner's name is mentioned as Sahidul Haque, but his father's name therein is mentioned as Fajlur Rahman. In other words, in the birth certificate produced in evidence by the petitioner before the Tribunal, the first name of the petitioner's father is mentioned as Fajlur instead of Fajrul.
As the learned Tribunal has not discussed the crucial document by way of birth certificate exhibited as Exhibit A, the limits of certiorari jurisdiction would come in the way of this court in re-appreciating that piece of documentary evidence, like a court exercising first appellate jurisdiction.
In this regard, a reference may be made to the following decisions and the relevant paragraphs gainfully reproduced herein below:-
T.C. Basappa v. T. Nagappa reported in (1954) 1 SCC 905;
“7.One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin, L.J. thus summed up the law on this point in R. v. Electricity Commissioners, ex p London Electricity Joint Committee Co. (1920) Ltd. [R. v. Electricity Commissioners, ex p London Electricity Joint Committee Co. (1920) Ltd., (1924) 1 KB 171 at p. 205 (CA)] : (KB p. 205)
“… Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”
8.The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [ Per Lord Cairns in Walsall's Overseers v. London & North Western Railway Co., (1878) LR 4 AC 30 at p. 39 (HL)].(emphasis added)”
South Indian Bank Ltd. v. Naveen Mathew Philip reported in (2023) 17 SCC 311;
“13.A writ of certiorari is to be issued over a decision when the court finds that the process does not conform to the law or statute. In other words, courts are not expected to substitute themselves with the decision-making authority while finding fault with the process along with the reasons assigned. Such a writ is not expected to be issued to remedy all violations. When a tribunal is constituted, it is expected to go into the issues of fact and law, including a statutory violation. A question as to whether such a violation would be over a mandatory prescription as against a discretionary one is primarily within the domain of the Tribunal. So also, the issue governing waiver, acquiescence, and estoppel. We wish to place reliance on the decision of this Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque [Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1954) 2 SCC 881 : (1955) 1 SCR 1104] : (SCC pp. 898-900, paras 24-27).
“24.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. Ltd. v. Commercial Employees' Assn. [Parry & Co. Ltd. v. Commercial Employees' Assn., (1952) 1 SCC 449] , G. Veerappa Pillai v. Raman & Raman Ltd. [G. Veerappa Pillai v. Raman & Raman Ltd., (1952) 1 SCC 334] , Ebrahim Aboobakar v. Custodian of Evacuee Property [Ebrahim Aboobakar v. Custodian of Evacuee Property, (1952) 1 SCC 798] and quite recently in T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa, (1954) 1 SCC 905] . On these authorities, the following propositions may be taken as established:
24.1.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.
24.2.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.
24.3.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 of 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 rehear the case on the evidence, and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute.
25.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 R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw [R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw, (1951) 1 KB 711] , 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. Walsall Overseers v. London & North Western Rly. Co. [Walsall Overseers v. London & North Western Rly. Co., (1878) LR 4 AC 30 (HL)] and R. v. Nat Bell Liquors Ltd. [R. v. Nat Bell Liquors Ltd., (1922) 2 AC 28] were quoted in support of this view. In Walsall Overseers v. London & North Western Rly. Co. [Walsall Overseers v. London & North Western Rly. Co., (1878) LR 4 AC 30 (HL)] Lord Cairns, L.C. observed as follows : (Walsall Overseers case [Walsall Overseers v. London & North Western Rly. Co., (1878) LR 4 AC 30 (HL)] , AC p. 39)
‘… if there was upon the face of the order of the court of quarter sessions anything which showed 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 R. v. Nat Bell Liquors Ltd. [R. v. Nat Bell Liquors Ltd., (1922) 2 AC 28] Lord Sumner said : (AC p. 156)
‘… 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.’
26.The decision in R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw [R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw, (1951) 1 KB 711] was taken in appeal, and was affirmed by the Court of Appeal in R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw [R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw, (1952) 1 KB 338 (CA)]. 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 of the record. Denning, L.J. who stated the power in broad and general terms observed : (KB p. 351)
‘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. : (R. case [R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw, (1952) 1 KB 338 (CA)] , KB p. 357)
‘It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up 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.’
27.In G. Veerappa Pillai v. Raman & Raman Ltd. [G. Veerappa Pillai v. Raman & Raman Ltd., (1952) 1 SCC 334] , it was observed by this Court that under Article 226 the writ should be issued : (SCC p. 341, para 26)
‘26. … 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.…’
In T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa, (1954) 1 SCC 905] the law was thus stated : (SCC p. 915, para 11)
‘11. … 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.’ (emphasis in original)”
Another aspect of the matter needs to be referred to. Section 3 of the Citizenship Act, 1955 lays down the criteria for citizenship by birth. Thus, as per Section 3(1)(a), all persons born on or after 26.01.1950 and before 01.07.1987 would be automatically citizens of India by birth. In terms of section 3(1) (b), those born on or after 01.07.1987, but before commencement of the Citizenship (Amendment) Act 2003 will be citizens of India, but either of the parents of such a person have to be a citizen of India at the time of birth. Finally, under section 3(1)(c), those born on or after the commencement of the Citizenship (Amendment) Act, 2003, such a person would be citizen of India when both parents are Indian citizens or one parent is Indian citizen and the other is not an illegal migrant at the time of his birth.
As the petitioner claims to have been born in the year 1992, he might be governed by the provisions of section 3(1)(b). Thus, such a person would be required to show that he was born before the Citizenship (Amendment) Act 2003, and on or after 01.07.1987 and one of his parents was an Indian citizen at the time of his birth.
In the facts and circumstances of this case, we are of the considered opinion that keeping in mind the limitations of certiorari jurisdiction, the matter has to be remanded back to the learned Tribunal for a fresh decision, after appreciating the documentary evidence (Birth Certificate – Exhibit A) in the context of the applicable provisions of the Citizenship Act, 1955 pertaining to citizenship by birth, read with the provisions of Section 6A of the Act, applicable to the State of Assam.
In such view of the matter, the impugned judgment and opinion dated judgment and opinion dated 23-10-2019 passed by the learned Member of the Foreigners' Tribunal, Kamrup (M), No. 2, Guwahati, in the FT Case No. 355/2018 is set aside. The matter is thereby remanded back to the learned Tribunal for a fresh decision on the lines indicated above.
In the context of the nature of decision passed in this writ petition, it is directed that till a fresh adjudication is made by the learned Tribunal, the petitioner shall not be subjected to any coercive action by way of detention and deportation in connection with the instant reference proceeding. To that extent, the interim order dated 15.05.2020, stands modified.
The instant writ petition stands disposed of on the aforesaid terms.
Return the original case records to the learned Tribunal.