High Court
Case Details
WA 216/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE A.K. GOSWAMI JUDGMENT & ORDER (Oral) Katakey, J. This appeal is directed against the judgment and order dated 22nd July, 2013 pas sed by the learned single Judge in WP(C) No.1592/2012, whereby and whereunder th e writ petition filed by the present appellant challenging the order dated 28th February, 2005 passed by the IM(D)T, Barpeta, constituted under the provisions o f the Illegal Migrants (Determination by Tribunals) Act, 1983 (in short, (cid:28)1983 A ct (cid:29)) was put to challenge. [2] Pursuant to the reference made under Section 8(1) of the 1983 Ac t (Reference Case No.4356/1998), Case No.2533/2003(B) has been registered by the Tribunal at Barpeta, to answer the reference whether the present appellant is a n illegal migrant within the meaning of the 1983 Act.
Legal Reasoning
[3] The appellant herein having receipt of the notice, entered appea rance on 21st July, 2003 and though filed an application praying for time to fil e written statement, no such written statement, however, has been filed subseque ntly. On 21st July, 2003, the case was fixed on 19th January, 2004 and since th e record was not put up on that date and was put up only on 19th June, 2004, the Tribunal directed issuance of a fresh notice on the appellant fixing 3rd August , 2004 for his appearance. Such notice was also served on the appellant, who, ho wever, did not contest the said proceeding. The Tribunal, thereafter, recorded the statement of the Local Verification Officer (LVO), who has proved his report . The Tribunal upon consideration of the evidence adduced by the LVO, vide orde r dated 28th February, 2005, declared the appellant as illegal migrant, on the g round that the appellant did not contest the proceeding despite notice and the L VO has suspected the appellant to be an illegal migrant, though the burden, unde r the 1983 Act, lies on the State to prove that the noticee is an illegal migran t. The said position, however, has subsequently been changed, because of the ju dgment passed by the Apex Court in Sarbananda Sonowal(I) -Vs- Union of India & A nr. reported in (2005) 5 SCC 655, whereby and whereunder the 1983 Act has been d eclared as unconstitutional and accordingly struck down.
Decision
[4] The appellant, thereafter, after lapse of about 7(seven) years, has filed a writ petition challenging the order dated 28th February, 2005, passe d by the Tribunal giving some explanation as to the delay in approaching the wri t Court. The writ petition has been filed because the Tribunal constituted unde r the provisions of the 1983 Act ceased to exist, in view of the judgment passed by the Apex Court in Sarbananda Sonowal (supra). The learned single Judge vide judgment and order dated 22nd July [5] , 2013 dismissed the writ petition on the ground of delay and also for suppressi on of fact that the petitioner even after receipt of the second notice from the Tribunal did not contest the proceeding. Hence, the present appeal. [6] We have heard Mr. M.U. Mahmud, learned counsel for the appellant , Mr. M. Bhagabati, learned Central Government counsel appearing for the respond ent No.1 and Mr. J. Handique, learned State counsel appearing for the respondent No.2 and 3. [7] Mr. Mahmud, learned counsel for the appellant submits that since the appellant could reasonably explain the delay in not filing the writ petitio n challenging the order dated 28th February, 2005, the learned single Judge ough t not to have dismissed the writ petition on the ground of delay. It has also b een submitted that on the face of the order dated 28th February, 2005 passed by the Tribunal, the same is not legal and valid, as the appellant has been declare d as illegal migrant based on the presumption and on the suspicion of the LVO. T he learned counsel submits that in view of the above, the order passed by the le arned single Judge as well as by the Tribunal need to be set aside and the matte r may be remitted to the Foreigners Tribunal for deciding the question as to whe ther the appellant is a foreigner within the meaning of Foreigners Act. [8] Per contra, Mr. Bhagabati, learned Central Government counsel as well as Mr. Handique, learned State counsel appearing for the respondent Nos1 t o 3 submit that the explanation given by the appellant in the writ petition in n ot filing the writ petition for a long period of time, i.e. for 7(seven) years, being not reasonable, the learned single Judge has rightly dismissed the writ pe tition filed. It has also been submitted that the learned single Judge has also rightly observed that the writ petition deserves to be dismissed on the ground of suppression of fact relating to issuance and service of second notice by the trial Court. [9] We have considered the submissions advanced by the learned couns el appearing for the parties and also perused the materials available on records of Case No.2533/2003(B) decided by the Tribunal, apart from the records of the writ proceeding. [10] It appears that the appellant has given certain explanation rela ting to the delay caused in filing the writ petition. It also appears from the impugned order dated 28th February, 2005 that the Tribunal has declared the appe llant as illegal migrant based on the suspicion of the LVO and also on the groun d that despite the notice issued twice, the appellant did not contest the said p roceeding, though under the provisions of the 1983 Act, the burden heavily lies on the State to prove that the noticee is an illegal migrant. [11] In view of the above, the order dated 22nd July, 2013 passed by the learned single Judge in WP(C) No.1592/2012 as well as the order dated 28th F ebruary, 2005 passed by the by the Tribunal in Case No.2533/2003(B) are set asid e. The matter is remitted to the Foreigners Tribunal-I, Barpeta for registering the proceeding as Foreigners Case and for deciding the question as to whether t he appellant is a foreigner within the meaning of the Foreigners Act, having reg ard to the law laid down by a full Bench of this Court in State of Assam & Ors. -Vs- Moslem Mondal & Ors. reported in 2013 (1) GLT (FB) 809. The appellant as w ell as the respondents shall appear before the Foreigners Tribunal-I, Barpeta th rough the learned counsel on 31st October, 2013. The said proceeding shall be d ecided within a period of 45(forty-five) days from the date of appearance of the parties. It is needless to mention that the burden lies on the appellant to pr ove that he is not a foreigner but an Indian national. [12] Registry is directed to send down the records to the Foreigners Tribunal-I, Barpeta forthwith so as to reach the Registry of the Tribunal on or before 30th October, 2013. [13] bove. The writ appeal is accordingly allowed to the extent indicated a [14] e to be in detention. Till the said proceeding is decided, the appellant shall continu