High Court · 2012

[2] By the present writ petition, the petitioner is challenging the order dated 5.11.2003 passed by the Illegal Migrants (Determination) Tribunal at Nalbari in IM(D)T Case No.2163/1998 and Police Case No.1222/1998 whereby the p etitioner was declared to be an illegal migrant and the subsequently expulsion o rder passed pursuant to the aforesaid direction. [3] The main contention of the petitioner is that after the aforesai d decision of the Illegal Migrants (Determination) Tribunal at Nalbari, he prefe rred an appeal before the Illegal Migrants (D) Appellate Tribunal, Uzan Bazar, Guwahati which was registered as Misc.Case No.38 of 2004. In the aforesaid Misc. Case, by an order dated 24.9.2004 passed by the Appellate Tribunal, the judgment and order dated 5.11.2003 passed by the Illegal Migrants (Determination) Tribun al at Nalbari was stayed. However, during the pendency of the aforesaid proceedi ng before the Appellate Tribunal, the Supreme Court in Sarbananda Sonowal vs. Un ion of India & anr. reported in (2005) 5 SCC 665 declared the Illegal Migrants (Determination by Tribunals) Act, 1983 as ultra vires of the Constitution and ac cordingly it struck down the Act. As a result, the Tribunals and the Appellate T ribunals constituted under the aforesaid Act also ceased to function and in thei r place, as per the Supreme Court direction, the Passport(Entry into India) Act , 1920, the Foreigners Act, 1946, the Immigrants (Expulsion from Assam) Act, 195 0 and the Passport Act, 1967 came to apply in the State of Assam. [4] It was further directed by the Supreme Court that all cases pen ding before the Tribunals under the Illegal Migrants (Determination) Tribunal Ac t, 1983 would stand transferred to the Tribunals constituted under the Foreign ers (Tribunal) Order, 1964 and shall be decided in the manner provided in the Foreigners Act and the Rules framed thereu nder and the procedure under the Foreigners (Tribunal) Order, 1964. [5] The petitioner states that in view of the above decision of the Supreme Court rendered in the case of Sarbananda Sonowal (supra), the entire pro ceedings which were pending before the Tribunal including the case of the petit ioner in Misc.Case No.38 of 2004 ought to have been transferred to the Tribunal s constituted under the Foreigners (Tribunal) Order, 1964. However, authorities rather than transferring the aforesaid pending matter to the Tribunals constitut ed under the Foreigners (Tribunal) Order, 1964, acted upon the order dated 5.11. 2003 passed by the Illegal Migrants (Determination) Tribunal at Nalbari in IM(D) T Case No.2163/1998 and placed the petitioner under detention on 10.5.2011 and s ent him to the detention camp at Goalpara. The contention of the petitioner is that he cannot be detained b [6] y invoking the order dated 5.11.2003 passed by the Foreigners Tribunal which was constituted under Illegal Migrants (Determination by Tribunals) Act, 1983 inas much as the aforesaid Act was declared ultra vires by the Supreme Court as state d above and also in view of the fact that the said order dated 5.11.2003 was alr eady stayed by the Appellate Tribunal on 24.9.2004. [7] Also heard Mr. J.M.Choudhury, learned Asstt. Solicitor General o f India appearing for the respondent No.1, Union of India and Mr. J.U.Laskar, l earned counsel appearing for the State respondents No.2, 3 and 4. [8] Learned counsel appearing for the respondents also fairly admit ted that in view of the decision rendered by the Supreme Court in Sarbananda Son owal (supra), any proceeding which was undertaken under the Illegal Migrants (Determination by Tribunals) Act, 1983 cannot be acte d upon or enforced and if the petitioner had been actually detained under the or der passed by the Foreigners Tribunal constituted under the aforesaid Act, the s ame also is not tenable. I have considered the materials on record and having heard the c [9] ounsels for the petitioner as well as the respondents, this Court is of the view that if the detention of the petitioner is based on the order dated

5.11.2003 passed by the Illegal Migrants (Determination) Tribunal at Nalbari in IM(D)T Case No.2163/1998, the same is not sustainable. It also goes without sayi ng that unless appropriate proceeding is initiated against the petitioner under the Foreigners (Tribunal) Order, 1964 and appropriate order passed by the compet ent authority under the aforesaid Order, the petitioner cannot be declared to be an illegal immigrant and placed under detention or deported. Considering the ab ove position, this petition may be disposed of with the following directions:- 1) The proceeding which was initiated against the petitioner before the Illegal Migrants (Determination) Tribunal at Nalbari, which was pending bef ore the Appellate Tribunal constituted under the Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand immediately transferred to the Tribunal con stituted under the Foreigners (Tribunal) Order, 1964 in terms of the decision of the Supreme Court in Sarbananda Sonowal (supra). (2) If the petitioner had been detained in terms of the order passed by the Tribunal vide order dated 5.11.2003 under the IM(D)T Case No.2163/1998, the petitioner cannot be continued to be detained under the aforesaid order in t he said proceedings. Accordingly, the petitioner is entitled to be set at liberty unl ess he is wanted in any other cases. (3) However, considering the fact that there is a deemed proceeding against the petitioner as the earlier proceedings against the petitioner regardi ng the issue of being a foreigner shall be deemed to have been transferred befor e the competent Tribunal constituted under the Foreigners(Tribunal) Order, 1964, the petitioner shall be set at liberty on bail subject to the satisfaction of the Superintendent of Police (Border), Kamrup (Rural), who may impose such appro priate conditions as he may deem fit and proper under the circumstances. [10] [11] p (Rural), Ulubari, Guwahati, immediately for necessary action. Accordingly, the present writ petition is allowed. LC records are to be sent back to the Foreigners Tribunal, Kamru