HALIM KHAN Vs. UNION OF INDIA
LAWS(GAU)-2018-4-69
HIGH COURT OF GAUHATI
Decided on April 04,2018

Halim Khan Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

UJJAL BHUYAN - (1.) This case was heard on 06.03.2018, and today is fixed for delivery of order.
(2.) Heard Mr. BP Sinha counsel for the petitioner and Mr. J Kalita, learned Special Counsel, Foreigners Tribunal (FT). By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 14.09.2016, passed by the Foreigners Tribunal No.1, Dhubri in Case No.2338/D/2010 (Union of India Vs. Halim Khan), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. This Court by order dated 24.01.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. Record discloses that Election Commission of India had ordered intensive revision of electoral roll of Dhubri Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. In this connection, a house to house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the petitioner was included in the draft electoral roll published on 24.07.1997, Electoral Registration Officer for the said constituency expressed doubts about the citizenship of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Thereafter the matter was forwarded to the Superintendent of Police (Border), Dhubri, who after completing the necessary formalities, made a reference to the Illegal Migrants (Determination) Tribunal, Dhubri under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), suspecting the petitioner to be an illegal migrant. Be it stated that under Section 3 (1) (c) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. The reference was registered as IMDT Case No. 21500/D/2004. It is distressing to note that since the registration of the aforesaid reference, no steps were taken by the IMDT Tribunal, Dhubri till 28.07.2005. At this stage, it may be mentioned that IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, reported in (2005) 5 SCC 665 with the further direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Foreigners Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Even then, there was no progress at all in the reference from 28.07.2005 to 27.04.2011. It appears that after long six years, the reference was assigned to the Foreigners Tribunal No.1, Dhubri, where it was re-registered as FT Case No.2338/D/2010. Here also, on the point of service of notice, despite occasional appearance by the petitioner once in a while, Tribunal continued to issue notices after notices till 11.11.2015 i.e., for more than 4 years whereafter, finally petitioner entered appearance with adjournment petition to file written statement. Thereafter, petitioner again started seeking adjournments, which were readily granted by the Tribunal. Finally, the written statement was filed on 08.03.2016.
(3.) The above sequence of events is a poor reflection in the way the Tribunal had conducted the reference. Even if we overlook the complete standstill before the IMDT Tribunal, for the Foreigners Tribunal to take more than five years to accept written statement by a proceedee who was suspected to be an illegal migrant by the State speaks volumes about the efficiency of the Tribunal. Had the petitioner not filed written statement, Tribunal might have continued to grant adjournments ad infinitum. It is time that the Foreigners Tribunals should take up the references in all seriousness so that references can be disposed of expeditiously having regard to the mandate of the Foreigners (Tribunals) Order, 1964. Once notice is served upon a proceedee, there is no necessity for issuing fresh notice to a proceedee by the same Tribunal for the subsequent default of the proceedee.;


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