JOY MOHAN MALLIK Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner No. 1 and 2 are the husband and wife and petitioner No. 3 is their daughter. All the aforementioned petitioners were declared to be "illegal migrants" within the meaning of Section 3(c) (i) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (hereinafter referred as the Act) upon a reference under Sec. 8(1) of the saidi Act by the court of illegal Migrants (Determination) Tribunals, Lakhimpur vide order dated 4.7.88. The aforesaid adjudication was made by the said tribunal ex parte. Before the tribunal the respondents examined PW1 J Dolley, the Enquiry Officer who stated to have recorded the statement of the petitioner No. 2 and also further recorded that she could not produce any document regarding her citizenship. The judgment and order does not indicate as to whether his enquiry report was even proved before the tribunal. The Tribunal, however, passed an ex parte order holding these three petitioners as illegal migrants and reference was answered accordingly. The petitioners preferred appeal before the Appellate Tribunal and the Appellate Tribunal did not enter into the merits and dismissed the appeal at the threshold on the ground of limitation vide order dated 11.10.99. As per the order of the Appellate Tribunal an application U/s 5 of the Limitation Act was made before the Appellate Tribunal for condonation of delay wherein it was indicated that no notice or information was provided to the appellants during the pendency of the case in the lower Tribunal and order was passed ex parte and that the appellants were aware about the order only on 9.5.99 when the police visited their house for deportation. From the statement of the learned Tribunal it further transpires that copy of the judgment of the lower Tribunal was ready for delivery on 10.5.99 and the appellants took delivery of the copy of the judgment on 14.5.99 and presented the appeal on 23.6.99. That, appeal was to be tiled within 30 days from the date of receipt of the copy of the judgment. The appellants received the copy of the judgment on 14.5.99. The appellants did not file the appeal within 30 days from the date of obtaining the copy. Therefore, it was time barred. Before the tribunal the learned counsel for the appellants submitted that on account of wrong advice about the period of limitation the appeal was not preferred within 30 days. The Appellate Tribunal referring to the condonation petition did not find any averment to that extent in the application for condonation of delay. The Tribunal accordingly held that in the absence of any such averment in the application for condonation of delay it cannot be said that the appellants were diligent in filing the appeal or that any ground has been made out for condonation of delay. The appeal was accordingly dismissed. Hence the writ petition.

(2.) In the writ petition the petitioner stated that his father Late Adhar Biswas was a permanent resident of Village Bejibari of Laluk Mouza in the district of Lakhimpur. He was enrolled as a voter of Naobaicha Legislative Assembly Constituency No. 112 for the year 1965 and in the electoral roll his number was at SI. 42 against House No. 17. A true copy of the voters list is annexed with the writ petition. The petitioners also annexed a certificate of the Gaonburah of Village Nizlaluk certifying that petitioner No. 2 was married to one Jaimohan Mallik, a permanent resident of village Bejibari, Laluk in the year 1966 and is a permanent resident of that locality. In addition the testimony of Headmaster of Bejibari Primary School dated 20.1.68 is also annexed stating thereunder that petitioner No. 2 Smti Bichitra Kumari Biswas was a student of the Bejibari Primary School and she had completed her study in the school on 31.12.1967. Referring to the aforesaid facts Mr. PK Goswami, learned counsel for the petitioner submitted that prima facie these three petitioners cannot be said to be illegal migrants. At any rate the petitioner could make out that they are not illegal migrants warranting expulsion from India as illegal migrants. The learned counsel submitted that justice was denied to the petitioners by the First Tribunal by not affording reasonable opportunity to submit representation with regard to the averments made in the reference and defend their case lawfully. The first Tribunal, contended the learned counsel, passed his order in a most mechanical fashion throwing to the winds the rule of principle of natural justice. The learned counsel further submitted that the finding of the learned first Tribunal cannot otherwise also be sustained on the materials on record and if an opportunity is provjded to the petitioners as per law the petitioners would be able to vindicate their rights. The learned counsel assailed the impugned order of the learned Appellate Tribunal as arbitrary, capricious that suffers from the vice of mechanical exercise of power. The learned counsel submitted that the Act in question armed the Tribunal to admit an appeal after the expiry of the period of limitation under sub-sec. (9) of Section 15. The power conferred with the tribunal is a power to render justice and at any rate to avoid injustice. The learned counsel submitted that proviso to sub- sec. (9) of Sec. 15 no doubt was a matter within the area of discretion of the Tribunal but that discretion is to be exercised meaningfully, justly and reasonably.

(3.) Mrs. N. Devi Sarma, learned Central Govt. Standing Counsel seriously opposed the petition and submitted that both the Tribunals acted lawfully and within its competence and, therefore, question of interference by this court under Article 226 of the Constitution does not arise. The learned Standing Counsel submitted that it was the appellant who defaulted to appear before the first Tribunal despite notices were issued. Since the petitioners failed to avail the opportunity provided to it they cannot now come around and allege that there was denial of opportunity. In the case in hand opportunity was given and petitioners failed to avail the opportunity submitted Mrs. N. Devi Sarma. Referring to the order of the learned Appellate Tribunal the learned counsel submitted that statute has provided a period of limitation and if the appeal is not presented within time prescribed then the question of entertaining the appeal does not arise unless the party that appeals succeed in satisfying the court for not preferring the appeal within the period, by sufficient cause. The learned counsel submitted that there was no sufficient cause and accordingly the learned Tribunal rightly dismissed the appeal as time barred. Lastly the learned Central Govt. Standing Counsel submitted that the learned Appellate Tribunal exercised the discretion which cannot be said to be arbitrary and in the circumslances question of exercising jurisdiction by this court by way of a writ petition does not arise.