High Court
Case Details
WA 176/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR JUSTICE A.K. GOSWAMI
Decision
This appeal arises out of the order dated 28th June, 2012 passed by the learned Single Judge in WP(C) No.3610/2013, dismissing the writ petition in limine on th e ground of delay in approaching the writ court challenging the order dated 14th February, 2005 passed by the Tribunal constituted under the Illegal Migrants (D etermination by Tribunal) Act, 1983 (in short the 1983 Act). Based on the reference made under Section 8(1) of the 1983 Act ( Ref. No. 9228/98) by the Superintendent of Police, Barpeta, case No.2653/2003 wa s registered before the Tribunal, against the present appellant. On receipt of the notice the appellant initially entered appeara nce and filed an application on 8.4.2004 praying for another date for filing the written statement. The appellant, however, thereafter did not appear and conte st the proceeding and hence, the said proceeding proceeded ex-parte against her. The Tribunal during the course of the hearing recorded the statement of Local V erification Officer (LVO) and thereafter, declared the appellant to be an illega l migrant, drawing presumption that she is an illegal migrant as she did not con test the proceeding and failed to prove that she is an Indian national. Being aggrieved, the appellant preferred the Appeal No.11/2005 b efore the Appellate Tribunal at Guwahati, constituted under the said Act, during pendency of which 1983 Act had been declared unconstitutional being ultra-vires the Constitution by the Apex Court in Sarbananda Sonowal and ors. Vs Union of India reported in (2005) 5 SCC 665. The appeal proceeding before the appellate T ribunal, in view of the said judgment passed by the Apex Court, stands abated. The appellant, thereafter, in the year 2013, filed the aforesaid writ proceeding challenging the aforesaid order dated 14.2.2005 passed by the T ribunal stating inter-alia that on 5th June, 2013 when the Sub-Inspector of Poli ce (B) Barpeta Road Police Station visited the residence of the appellant for ta king her into custody for deportation, she made an enquiry and came to know tha t the appeal preferred by her stands abated because of the aforesaid judgment pa ssed by the Apex Court and consequently, she has filed the writ petition causing delay of 8 years from the date when the Tribunal passed the order declaring the appellant as illegal migrant within the meaning of 1983 Act. The learned Single Judge by the judgment and order dated 28.6.20 13 dismissed the writ petition on the ground of delay without, however, consider ing the averments made in paragraphs 8 and 9 of the writ petition, which has bee n noticed above. Hence the present appeal. We have heard Mr. Sheikh, learned counsel for the appellant, Mr. Bhagabati, learned CGC, appearing for the Union of India as well as Mr. Handiqu e, learned State counsel appearing for the State respondents. Mr. Shiekh, learned counsel for the appellant submits that the l earned Single Judge ought not to have dismissed the writ petition in limine on t he ground of delay in approaching the writ court, without considering the averme nts made in paragraphs 8 and 9 of the writ petition, whereby the appellant had e xplained the delay in not approaching the writ court immediately after passing t he order dated 14.2.2005 by the Tribunal. The learned counsel also submits that it is apparent from the order dated 14.2.2005 passed by the Tribunal that the a ppellant has been declared as illegal migrant only on the ground that the LVO ha s suspected the appellant to be an illegal migrant and as the appellant did not appear after initial appearance before the Tribunal. The learned counsel, there fore, submits that the order passed by the learned Single Judge as well as by th e Tribunal may be set aside and the proceeding may be remitted to the Foreigners Tribunal for deciding the same afresh and in accordance with law, so as to dete rmine the question as to whether the appellant is a foreigner within the meaning of Foreigners Act. The learned Central Govt. counsel as well as the learned State c ounsel appearing for the respondents on the other hand, supporting the judgment and order passed by the learned Single Judge, submits that the writ petition fil ed by the appellant has rightly been dismissed, on the ground of delay since the appellant has filed the writ petition challenging the order dated 14.2.2005, in the year 2013. It has also been submitted that it is apparent from the order d ated 14.2.2005 passed by the Tribunal that though the appellant once appeared be fore the Tribunal seeking time to file written statement she, however, at the su bsequent stage didn’t appear and contest the proceeding and hence no illegality has been committed by the Tribunal in declaring the appellant as illegal migrant within the meaning of the 1983 Act. We have considered the submissions advanced by the learned couns el for the parties and also perused the order dated 14.2.2005 passed by the Trib unal as well as the judgment and order dated 28.6.2013 passed by the learned Sin gle Judge in WP(C) No. 3610/2013. It appears from the pleadings in paragraphs 8 and 9 of the writ petition that though the writ petitioner has given the reasons for delay in appr oaching the writ court, the same, however, has not been considered by the learne d Single Judge while dismissing the writ petition in limine on the ground of del ay. It also appears from the order dated 14.2.2005 that the Tribunal has declar ed the appellant to be an illegal migrant only on the ground that the LVO suspec ted the appellant to be an illegal migrant and the appellant didn’t produce any proof that she is an Indian national, though under the provisions of the aforesa id act, the burden lies on the State to prove that the noticee is an illegal mig rant, which position, however, has been changed because of the judgment passed b y the Apex Court in Sarbananda Sonowal (supra). In view of the above, the order dated 28.6.2013 passed by the le arned Single Judge as well as the order dated 14.2.2005 passed by the Tribunal a re set aside. The proceeding is remitted to the Foreigners Tribunal, No. 1 Barp eta, for deciding as to whether the appellant is a foreigner within the meaning of Foreigners Act. The tribunal shall register the said proceeding as foreigner s’ case against the present appellant, who shall appear before the Foreigners Tr ibunal I, Barpeta on 23.10.2013 for taking necessary order. The respondents sha ll also appear before the Foreigners Tribunal on the said date fixed. The Forei gners Tribunal shall proceed to decide the said proceeding within a period of 2 months from the date of appearance of the parties, as fixed by this court. The Tribunal shall, while deciding the proceeding, bear in mind the Full Bench decision of this Court in State of Assam & ors. Vs. Moslem Mondol & ors reported in 2013 (1) GLT 809, wherein it has been held that the burden li es on the proceedee, in the instant case, on the appellant, to prove that she is an Indian national. The appeal is accordingly allowed to the extent indicated above. No cost.