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2018 Supreme(Gau) 1441
IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, Ajit Borthakur, JJ.
Anowar Ali and Ors. - Appellants
Vs.
State of Assam and Ors. - Respondents
WA No. 109 of 2017
Decided On : 04-05-2018
Advocate Appeared:
For the Appellants : A.K. Purkayastha
For the Respondents: U.K. Nair
Headnote:
Constitution of India , 1950 – Articles 222, 226, 14 ,21 and 355 - Illegal Migrants Determination by Tribunals) Rules, 1983 & 1984 - Section 3(1)(c) and 8(1) - Foreigners Tribunals Order, 1964 - Immigrants (Expulsion from Assam) Act, 1950 - Section 9 - Immigrants Expulsion from Assam Act, 1950 - Foreigners Act, 1946 - Section 9 - Challenged legality - Declaring appellants to be illegal - Appellants have joined together and have filed present appeal and Appellant are husband and wife whereas appellant Nos. 3 and 4 are their sons and In this appeal they have challenged legality and correctness of order passed by Single Judge dismissing writ petition WP filed by appellants and matter before Chief Justice for consideration of question as to whether orders passed by Tribunals constituted under IMDT Act till scrapping of said Act would cease to exist in view of decision in by a larger Bench and said question was referred to a Full Bench and By judgment and order a Full Bench of this Court answered reference by holding that orders already passed by Tribunals constituted under IMDT Act would not cease to exist with striking down of IMDT Act Supreme Court as unconstitutional – Held, Appellate Bench should not disturb same unless a conclusion is reached that finding of Single Bench is perverse and upon a thorough consideration of entire materials on record Court do not find any error or infirmity in order of Single Judge and Full Bench decision in earlier decision of Division Bench and consequential order of Tribunal would be of no legal consequence and To that extent Single Judge was fully justified in dismissing second writ petition WP vide impugned order Single Judge held as under As per aforesaid findings of Full Bench cases already decided by Tribunals constituted under IM(D)T Act does not require to be decided afresh by Foreigners Tribunals - It has been held that orders passed by IM(D)T can only be challenged by way of a writ petition which is to be decided on its merit and As noted above declaration made against petitioners by then IM(D)T was assailed in a writ petition being WP which was dismissed by judgment and in continuation - Appeal dismissed
Ujjal Bhuyan, J.
1. This appeal was heard on 09.04.2018 and today is fixed for delivery of order. We have heard Mr. A.K. Purkayastha, learned counsel for the appellants and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT).
2. Four appellants have joined together and have filed the present appeal. Appellant Nos. 1 and 2 are husband and wife whereas appellant Nos. 3 and 4 are their sons.
3. In this appeal they have challenged the legality and correctness of the order dated 25.05.2015 passed by the learned Single Judge dismissing the writ petition WP(C) No. 1043/2013 filed by the appellants.
4. A brief narration of facts would be in order.
5. A reference was made under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) by the then Superintendent of Police (Border), Nagaon with the allegation that appellants were illegal migrants as defined under the said Act.
6. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. This reference was registered as Case No. IMDT/H/683/1991 before the Illegal Migrants (D) Tribunal, Hojai, Sankardev Nagar. The reference was duly contested by the appellants.
7. After hearing the matter, Illegal Migrants (D) Tribunal, Hojai vide the order dated 17.06.2005 answered the reference in the affirmative i.e., in favour of the State by declaring the appellants to be illegal migrants from Bangladesh who had entered into India (Assam) after 25.03.1971.
8. Appellants did not challenge the aforesaid order dated 17.06.2005 before the appellate Tribunal as provided under the IMDT Act.
9. In the meanwhile, IMDT Act and the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules) framed thereunder were declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665.
10. Six years after their declaration as illegal migrants, appellants approached this court by filing a writ petition which was registered as WP(C) No. 242/2011 assailing the legality and correctness of the order dated 17.06.2005 passed by the Illegal Migrants (D) Tribunal, Hojai. Learned Single Judge after elaborately examining the entire matter and re-appreciating the evidence on record, did not find any ground in the writ petition to warrant interference with the order dated 17.06.2005 and accordingly vide judgment and order dated 21.04.2011, dismissed the writ petition.
11. Against the aforesaid judgment and order dated 21.04.2011 appellants preferred Writ Appeal No. 148/2011. By order dated 15.09.2011, Writ Appeal No. 148/2011 was disposed of. A Division Bench of this Court took note of the decision of the Supreme Court in Sarbananda Sonowal (supra) and observed that in a number of cases, proceedings were remitted to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964. Accordingly, vide order dated 15.09.2011, the matter was remitted to the Foreigners Tribunal at Sankardev Nagar, Hojai.
12. On remand, Foreigners Tribunal, Hojai, Sankardev Nagar took up the matter but appellants were not present. A petition was filed on their behalf by their counsel. Finding the petition to be not satisfactory, Tribunal rejected the same vide order dated 19.10.2011.
13. This led to filing of the related writ petition for setting aside the order dated 19.10.2011 and for releasing the appellants from detention. The said writ petition was registered as WP(C) No. 1043/2013.
14. Learned Single Judge passed an order dated 05.03.2013 for placing the matter before Hon'ble the Chief Justice for consideration of the question as to whether orders passed by the Tribunals constituted under the IMDT Act till scrapping of the said Act would cease to exist in view of the decision in Sarbananda Sonowal (supra), by a larger Bench. Thereafter, the said question was referred to a Full Bench. By the judgment and order dated 13.06.2014 a Full Bench of this C
