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2018 DIGILAW 468 (GAU)

Azad Ali v. Union of India

2018-03-19

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT & ORDER : UJJAL BHUYAN, J. 1. Heard Mr. M.I. Hussain, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, F.T. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 09.04.2003 passed by the Illegal Migrants Determination Tribunal, Jorhat in J.D.T. Case No. 184/2000 (State-Vs-Md. Azad Ali) declaring the petitioner to be an illegal migrant under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) . 3. Learned counsel for the petitioner submits that no notice was served upon the petitioner and therefore petitioner had no knowledge about such proceeding registered against him, including the order dated 09.04.2003 4. On going through the order sheet, we find that on 22.01.2003 notice was issued to the petitioner but on 19.02.2003 notice was returned un-served. Notice was re-issued to the petitioner. On the next date i.e. on 24.03.2003, IMD Tribunal, Jorhat perused the service report of the process server and thereafter held that no useful purpose would be served by directing re-issuance of notice to the petitioner. So summon was issued to the Enquiry Officer and his evidence was recorded following which order dated 09.04.2003 was passed declaring the petitioner an illegal migrant. 5. Be it stated that U/s 3 (1) (C) of the IMDT Act an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after the 25.03.1971. 6. Mr. A. Kalita, learned Special Counsel fairly submits that the order sheet annexed to the writ petition does not disclose service of notice on the petitioner. We appreciate the fair stand taken by learned Special Counsel. 7. On going through the order dated 09.04.2003 we find that IMDT, Jorhat had perused the service report where after, it was observed that no useful purpose would be served by ordering reissuance of notice. What were the contents of the service report were not mentioned but it is evident that service of notice was not effected. If that be so, order dated 09.04.2003 would be untenable in law. In view of above, we set aside the order dated 09.04.2003. 8. What were the contents of the service report were not mentioned but it is evident that service of notice was not effected. If that be so, order dated 09.04.2003 would be untenable in law. In view of above, we set aside the order dated 09.04.2003. 8. Now that Tribunals constituted under the IMD T Act have been abolished, we direct the record of J.D.T Case No. 184/2000 be placed before the Foreigners Tribunal, Jorhat where after, the reference shall be re-registered by the Foreigners Tribunal, Jorhat under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. 9. Petitioner shall now appear before the Foreigners Tribunal, Jorhat along with his written statement on 19.04.2018 at 10.30 a.m where after, the Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from the date of appearance. 10. Needless to say, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order as may be deemed fit and proper. Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case. Writ petition stands disposed of. Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful. A copy of this order may be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.