Ujjal Bhuyan, J.

1. Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. BU Laskar, learned counsel for the petitioners and Mr. J Payeng, learned Special Counsel, Foreigners' Tribunal (FT). Initially WP (C) No. 6280 of 2016 was filed by two petitioners, namely, Tuta Mia @ Md. Tota Mia and Abdul Samad @ Abdus Samad @ Md. Samad Uddin assailing the legality and correctness of the common order dated 05.08.2016 passed by the Foreigners' Tribunal, Dima Hasao at Haflong in FT Case Nos. 10 and 23 of 2015. Md. Tota Mia was the procedee in FT Case No. 10/2015 whereas Md. Samad Uddin was the procedee in FT Case No. 23/2015. Md. Samad Uddin is the son of Md. Tota Mia. Both the references were heard together and were disposed of vide the common order dated 05.08.2016 answering the reference in favour of the State by declaring the two procedees to be foreigners who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

2. When WP (C) No. 6280 of 2016 was moved on 06.10.2016, this Court ordered that the said writ petition would be confined to petitioner No. 1 i.e. Tuta Mia @ Md. Tota Mia giving liberty to petitioner No. 2, i.e. Md. Samad Uddin to file a separate writ petition relatable to his reference.

3. Thereafter, Md. Samad Uddin filed WP (C) No. 7088 of 2016.

4. On 04.05.2018, Mr. HRA Choudhury, learned senior counsel for the petitioners submitted that Md. Tota Mia had expired on 10.11.2016. This was mentioned in the additional affidavit filed on behalf of the petitioners wherein a death certificate has been annexed.

5. This Court has already held that there is no question of abatement of a reference on the death of a procedee. The materials on record on the basis of which the procedee was suspected to be a foreigner remains on record. In such circumstances, it has been held that it would be the duty of the referral authority i.e. the Superintendent of Police (Border) to make reference in respect of the other family members of the deceased procedee because if a person is suspected to be a foreigner, it would be quite natural to suspect the other family members drawing lineage from the side of the father to be foreigners. In so far the two writ petitioners are concerned, Md. Tota Mia was already declared to be a foreigner by the Tribunal vide order dated 05.08.2016 which order remains undisturbed till date.

6. In so far Md. Samad Uddin is concerned, we find from the record that initially reference was made by the Superintendent of Police (Border), Karbi Anglong under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner Samad Uddin to be an illegal migrant i.e. a foreigner who had unauthorizedly entered into India after 25.03.1971. The reference was registered on 15.06.2002. It is most distressing to note that during pendency of the reference before the Illegal Migrants (Determination) Tribunal, Diphu, only summons were issued date after date; sometimes the reference used to be adjourned for non-availability of members. It continued this way till 27.02.2006.

7. IMDT Act was declared unconstitutional by the Supreme Court in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 with the further direction that the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. As a result, the related reference was transferred by the Illegal Migrants (Determination) Tribunal, Diphu to the Foreigners' Tribunal, Diphu on 25.04.2006. But shockingly the case record was received by the Foreigners' Tribunal only on 09.12.2009 i.e., after more than 3½ years. This speaks volumes about the way the Tribunals, be it the Tribunals under the IMDT Act or the Tribunals under the Foreigners' Act, 1946 functioned during that period. But this is not all. As we move ahead, in the order sheet we find that cer