ORDER

Date : 12-12-2018 Heard Mr. AI Uddin, learned counsel for the petitioner; Mr. AI Ali, learned counsel for Election Commission of India; Ms. A Verma, learned Standing Counsel, State Coordinator, NRC and Ms. D Das Barman, learned Government Advocate, Assam.

By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to remove the tag of doubtful i.e., ‘D’ voter against his name from the voters list in respect of 91 Hojai Legislative Assembly Constituency and further seeks a direction to transfer IMDT Appeal Case No.2/2005, which was pending before the IMDT Appellate Tribunal, Guwahati, to the jurisdictional Foreigners Tribunal at Hojai, Sankardev Nagar for a fresh decision.

From the documents placed on record as well as from the averments made in the writ petition, it is seen that on a reference made by the State under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioner was an illegal migrant as defined under the said Act, Case No. IMDT/H/394/99(D) (State Vs. Bhanu Kanta Mondal) was registered before the Illegal Migrants (Determination) Tribunal, Hojai, Sankardev Nagar (IMDT Tribunal). By the order dated 18.09.2004, the reference was answered by the IMDT Tribunal by declaring the petitioner to be an illegal migrant.

It may be mentioned that under Section 3 (1) (c) of the IMDT Act, an illegal migrant was defined as a foreigner who had illegally entered into or unauthorizedly stayed back in India after 25.03.1971.

Against the aforesaid order dated 18.09.2004, petitioner preferred appeal before the Illegal Migrants (Determination) Appellate Tribunal, Guwahati i.e., IMDT Appellate Tribunal. It is stated that the appeal was registered as IMDT Appeal Case No.2/2005.

Constitutional validity of the IMDT Act and the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules) framed thereunder were questioned before the Supreme Court. In Sarbananda Sonowal Vs. Union of India, reported in (2005) 5 SCC 665, Supreme Court declared the IMDT Act and the IMDT Rules to be unconstitutional. While allowing the writ petition, Supreme Court declared that Tribunals and the Appellate Tribunal constituted under the IMDT Act would cease to function and that all cases pending before the Tribunals under the IMDT Act would stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and thereafter decided in the manner provided under the Foreigners Act, 1946 and the procedure laid down under the Foreigners (Tribunals) Order, 1964. It was further ordered that all appeals pending before the Appellate Tribunal would be deemed to have abated. The directions of the Supreme Court are contained in paragraphs 83 and 84 of the said volume, which is extracted hereunder: -

“ 83. To sum up our conclusions, the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 are ultra vires the Constitution and are 12accordingly struck down. The Illegal Migrants (Determination by Tribunals) Rules, 1984 are also ultra vires and are struck down. As a result, the Tribunals and the Appellate Tribunals constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall cease to function. The Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 1950 and the Passport Act, 1967 shall apply to the State of Assam. All cases pending before the Tribunals under the Illegal Migrants (Determination by Tribunal) Act, 1983 shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals)

Order, 1964 and shall be decided in the manner provided in the Foreigners Act, the Rules made thereunder and the procedure prescribed under the Foreigners (Tribunals) Order, 1964. In view of the finding that the competent authority and the Screening Committee had no authority or jurisdiction to reject any proceedings initiated against any alleged illeg