Dismissed

Surendra Das @ Surendra Kumar Das and 4 Ors. v. Union of India and 5 Ors.

Gauhati HC2 Apr 2018WP(C)/1882/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash an order declaring petitioners as illegal migrants. The court held that the petition was barred by laches due to a delay of nearly 25 years and found no error in the impugned order.

What did the court decide?

Writ petition dismissed; registry to send down LCR and inform concerned officials.

Surendra Das @ Surendra Kumar Das and 4 Ors… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010055892018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1882/2018

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1:SURENDRA DAS @ SURENDRA KUMAR DAS AND 4 ORS. S/O- LATE SURESH DAS, R/O- KALIABASTI (HATIGHULI) UNDER P.SSADIYA, DIST- TINSUKIA, ASSAM

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2: HORENDRA DAS @ HORENDRA KUMAR DAS S/O- LATE SURESH DAS R/O- KALIABASTI (HATIGHULI) UNDER P.S- SADIYA DIST- TINSUKIA ASSAM

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3: NIYATI DAS @ NIYATI RANI DAS W/O- LATE SACHINDRA DAS @ SACHINDRA KUMAR DAS R/O- KALIABASTI (HATIGHULI) UNDER P.S- SADIYA DIST- TINSUKIA ASSAM

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4: SAJAL DAS S/O- SACHINDRA DAS R/O- KALIABASTI (HATIGHULI) UNDER P.S- SADIYA DIST- TINSUKIA ASSAM

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5: SANJAY DAS S/O- SACHINDRA DAS R/O- KALIABASTI (HATIGHULI) UNDER P.S- SADIYA DIST- TINSUKIA ASSA

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VERSUS

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1:UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS (CENTRAL SECRETARIAT) P.O- NEW DELHI, PIN- 110001

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM

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HOME DEPTT ASSAM SACHIVALAYA DISPUR P.O- GUWAHATI PIN- 781006 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 110001 4:THE OFFICE OF THE STATE COORDINATOR OF NRC ASSAM 1ST FLOOR ACHYUT PLAZA G S ROAD BHANGAGARH GUWAHATI- 781005 DIST- KAMRUP(M) ASSAM 5:THE DEPUTY COMMISSIONER TINSUKIA DISTRICT ASSAM PIN- 786125 6:THE SUPERINTENDENT OF POLICE(B) TINSUKIA DISTRICT ASSAM PIN- 78612

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Advocate for the Petitioner : MR. A R SHOME

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 02-04-2018

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(Ujjal Bhuyan, J.)

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Heard Mr. A R Shome, learned counsel for the petitioners and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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2 . By filing this petition under Article 226 of the Constitution of India, petitioners seek

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quashing of order dated 15-06-1993 passed by the Illegal Migrants (Determination) Tribunal, Dibrugarh in Case No. DDT 268/1988 (State-Vs-Sashindra Das and others) declaring the petitioners to be illegal migrants.

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3 . Five petitioners have joined together and have instituted the present common proceeding assailing the legality and correctness of the aforesaid order dated 15-06-1993.

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4 . A perusal of the order dated 15-06-1993 would go to show that reference was made by the Superintendent of Police (Border), Tinsukia under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioners to be illegal migrants. 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.

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5 . At this stage it may be mentioned that the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules) framed under the IMDT Act provided for constitution of screening committee to screen the proposals for reference. Only after clearance by the screening committee could the concerned Superintendent of Police make the reference. It may also be mentioned that unlike under Section 9 of the Foreigners Act, 1946, under the IMDT Act burden was on the complainant or the State to prove that the suspect was an illegal migrant.

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6 . Provisions of the IMDT Act and the IMDT Rules were thoroughly examined by the Supreme Court in Sarbananda Sonowal –Vs- Union of India, (2005) 5 SCC 665 where the constitutionality of the IMDT Act and the IMDT Rules were questioned. While declaring the IMDT Act and the IMDT Rules unconstitutional, Supreme Court observed that the provisions of the IMDT Act and the IMDT Rules were purposely so enacted or made as to give shelter or protection to illegal migrants who came to Assam from Bangladesh on or after 2503-1971 rather than to identify and deport them. It was far more easier to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person was an illegal migrant on account of extremely difficult, cumbersome and time-consuming procedure laid down in the IMDT Act and the IMDT Rules.

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7 . Keeping the above in mind, we have examined the impugned order dated 15-06-1993.

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We find that two witnesses deposed on behalf the State. The first witness was Enquiry Officer Shri Kamal Kakoty. In his deposition, he stated that he was made the enquiry officer on the basis of an order of the Superintendent of Police. He had visited the place of stay of the petitioners and recorded the statement of Shri Sachindra Das. On conclusion of his enquiry he had submitted his enquiry report suspecting the petitioners as illegal migrants. He further stated that petitioners had admitted before him that they came from village Chandipur in the district of Sylhet for their safety and they started living at Kaliabasti, Dhola. Petitioners could not say the date and year of their entry into Assam.

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8 . Witness No.2 Shri Ajit Sonowal supported the case of the State and stated that he had seen the petitioners i.e. Sachindra and his family members at his locality since 1980 and he knew them as Bangladeshis.

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9 . The testimony of the two State witnesses remained un-rebutted as they were not cross-examined.

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10 . On behalf of the proceedees, Shri Harendra Das deposed before the IMDT Tribunal. He stated that he alongwith his mother, two brothers Sachindra and Surendra and one sister Sandhya Rani came from East Pakistan and they had been residing at Kaliabasti since last 24/25 years. He also stated that his brother Surendra Das was accompanied by his wife Sunati. From East Pakistan, they came straight to Kaliabasti. However IMDT Tribunal declined to accept such assertion of the proceedees and held that while the State could prove its case, proceedees failed to discharge their burden. Therefore, IMDT Tribunal answered the reference in favour of the State vide the order dated 15-06-1993.

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11 . On thorough consideration of the matter, we do not find any error or infirmity in the impugned order to warrant interference. Impugned order cannot be said to be vitiated by perversity to justify interference.

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12 . Having said that, we also find that the impugned order was passed on 15-06-1993 whereas the instant writ petition was filed on 21-03-2018, almost 25 years thereafter. Explanation given by the petitioners to justify the inordinate delay that only in the month of September, 2017 they came to know about the impugned order is neither acceptable nor believable. Notice was duly served upon the proceedees and they were represented before

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the IMDT Tribunal. Admittedly, there is clear delay and laches on the part of the petitioners which would disentitle them to any relief from the Court. Notwithstanding the same, we have examined the impugned order on merit. In such circumstances, we do not find any good ground to entertain the writ petition, that too at this distant point of time, both on merit as well as on the ground of delay and laches.

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13 . Consequently, writ petition is dismissed.

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14 . Registry to send down the LCR forthwith and inform the concerned Deputy Commissioner, Superintendent of Police (Border) and the Foreigners Tribunal for taking necessary follow up steps.

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15 . Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Surendra Das @ Surendra Kumar Das and 4 Ors. v. Union of India and 5 Ors.

Case brief

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Surendra Das @ Surendra Kumar Das and 4 Ors. v. Union of India and 5 Ors.

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