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2014 Supreme(Gau) 428
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
B.P. KATAKEY, A.K. GOSWAMI and UJJAL BHUYAN, JJ.
MD. ANOWAR ALI & 3 ORS
VS
THE STATE OF ASSAM & 2 ORS
WRIT PETITION (CIVIL) NO. 1043 OF 2013
Decided on: 13.6.2014
For the petitioners:Mr. A.K.Purkayastha, Advocate.
For Respondent Nos. 1 & 3:Mr. A.C.Buragohain, Addl. Advocate General, Assam.
For Respondent No. 2:Mr. M.Bhagawati, Advocate. Central Government Counsel.
Headnote:
Constitution of India, 1950 – Article 226 – Illegal Migrants (Determination by Tribunals) Act, 1983 – Sections 8, 9 – Declaration of Illegal Migrants – Whether the orders passed by the IMDT ceased to exist after declaration of Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional by the Apex Court in Sarbananda Sonowal vs. Union of India, reported in AIR 2005 SC 2920? – Whether such proceedings, which had already been decided by the IMDT prior to such declaration, have to be decided by the Foreigners Tribunal afresh– Held, Court answer the reference by holding that the orders already passed by the Tribunals constituted under the IMDT Act do not cease to exist with the striking down of the IMDT Act by the Apex Court as unconstitutional. – Consequently, it does not necessarily follow that all cases already decided by the Tribunals constituted under the IMDT Act prior to such declaration have to be decided afresh by the Foreigners Tribunal. – Orders passed by the Tribunals constituted under the IMDT Act can be assailed by way of a writ petition and each writ petition has to be considered on its own merits in accordance with principles governing exercise of powers under Article 226 of the Constitution of India. – If on consideration of the materials on record, the writ Court finds that the matter requires to be remanded for a fresh consideration, in that event, case will be remanded to the Foreigners Tribunal for disposal in accordance with law, i.e. the Act of 1946 and Order of 1964. – In the event of dismissal of the writ petition filed by a person who was declared to be an illegal migrant, in absence of any further challenge, he will be liable to be deported. – Further, the State will not be denuded of its power to proceed under the provisions of the Act of 1946 and Order of 1964 and to make a reference to the Foreigners Tribunal for adjudication in respect of a person whose writ petition, challenging the finding of the Tribunals constituted under the IMDT Act that he was an illegal migrant, is allowed by setting aside the order of the Tribunal. –Petition Allowed
A.K.Goswami, J:
Heard Mr.A.K.Purkayastha, learned counsel for the petitioner. Also heard Mr.A.C.Buragohain, learned Additional Advocate General, Assam, appearing for the respondents No.1 and 3 as well as Mr. M. Bhagawati, learned Central Government Counsel, appearing for the respondent No.2.
2. The writ petition has been placed before the Full Bench consequent upon an order passed by the Hon’ble the Chief Justice following an order dated 5.3.2013 passed by a learned Single Judge of this court. The question which requires answer by the Full Bench is:-
Whether the orders passed by the IMDT ceased to exist after declaration of Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional by the Apex Court in Sarbananda Sonowal vs. Union of India, reported in AIR 2005 SC 2920? In other words, whether such proceedings, which had already been decided by the IMDT prior to such declaration, have to be decided by the Foreigners Tribunal afresh?
3. At the outset, it will be relevant, nay necessary, to briefly indicate the factual matrix leading to filing of the present writ petition by the four writ petitioners who are all members of the same family. Petitioner No.1 is the husband of the petitioner No.2 and father of petitioner Nos. 3 and 4.
4. A reference was made under section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983, for short, IMDT Act, to the Illegal Migrants (D) Tribunal, Hojai, Sankardev Nagar, for a decision as to whether the petitioner No.1 along with his family members are illegal migrants who entered into India after 25.3.1971. The reference was contested by filing written statement. The State had examined one witness. On behalf of the petitioners also, petitioner No.1 examined himself and submitted some documents. Upon consideration of materials on record, the Tribunal answered the reference in the affirmative holding the petitioners to be illegal migrants, within the meaning of IMDT Act, who are liable to be deported from India vide judgment and order dated 17.6.2005.
5. Before the narration is completed by adverting to what transpired subsequent to the rendering of the aforesaid judgment and order dated 17.6.2005, we need to pause here and mention briefly at this stage a very significant development that had taken place, which is the bed-rock of the reference that has been placed before the Full Bench. The Apex Court by a judgment and order dated 12.7.2005 in the case of Sarbananda Sonowal vs Union of India and another, reported in (2005) 5 SCC 665 = AIR 2005 SC 2920, declared the provisions of IMDT Act and the Illegal Migrants (Determination by Tribunals) Rules, 1984, for short, IMDT Rules to be ultra vires the Constitution and struck them down. Some other directions were also given, which will be considered at a more appropriate place.
6. We pick up the thread of the narration of events from the judgment of the Tribunal dated 17.6.2005. The petitioners, after more than five years, challenged the said judgment and order dated 17.6.2005 by filing a writ petition under Article 226 of the Constitution of India before this Court which was registered as WP(C) No.242/2011. By a judgment and order dated 21.4.2011, a learned Single Judge of this Court dismissed the writ petition and issued certain directions including directions to ensure immediate deletion of the names of the petitioners from the voters list and to ensure immediate detention of the petitioners in detention camp for their eventual deportation to Bangladesh. Having noticed that the proceeding spanned over almost 14 years from 20.3.1991 to 17.6.2005 covering 76 sittings, the learned Single Judge lamented that if such a serious issue is to be decided in such a manner, the very purpose of establishing the Tribunals will get frustrated.
7. The petitioners put to challenge the said order dated 21.4.2011 by filing an appeal registered as Writ Appeal No.148/2011. During hearing of the said writ appeal, in view of
