MAHADEV HALDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) IN a reference made by the State Government under Section 8 of the Illegal Migrants (Determination by Tribunal) Act, 1983, the Tribunal constituted under the act has entertained the reference and registered a case No. DDT 1442/2001 and the petitioner/appellant - Mahadev Haldar was issued a notice. The petitioner was declared as illegal migrant by order dated 16.3.2002. Aggrieved by the said order the petitioner/appellant preferred an appeal to the Appellate Tribunal. The Appellate Tribunal dismissed the appeal. Against the order of the Appellate Tribunal a writ petition (WP C No. 6988/2002) was preferred before this Court and the learned Single Judge by order dated 12.11.2002 dismissed the writ petition. Hence the present appeal.

(2.) IN the appeal preferred by the petitioner it is contended by the petitioner/appellant that he was not given appropriate opportunity to defend himself and the proceedings taken up by the Tribunal are contrary to well established norms and legal procedure to be adopted while determining the question raised before it. It appears from the record that the petitioner/appellant was served with a notice issued by the Tribunal and date was fixed for 18.12.2001 for service report. On 18.12.2001 the Chairman was on leave and therefore the matter was adjourned to 28.1.2002. On 28.1.2002 petitioner/appellant submitted his written statement, which was kept on record and the matter was listed for 21.2.2002. On 21.2.2002 both the parties entered appearance before the Tribunal and the case was fixed for 16.3.2002 for State evidence with a direction to the State to take further steps. On 16.3.2002 when the matter was taken up the petitioner remained absent. The Tribunal examined one witness produced by the prosecution and passed order declaring the petitioner/appellant as illegal migrant who came to India after 25th March 1971. It appears from the order that there is no specific discussion on the evidence led by the prosecution and the Tribunal has only from the evidence of State witness stated - 'we are of the view that the O.P. Mahadev Haldar is an illegal migrant who came to India after 25th March 1971.' We find gross procedural irregularity in the proceeding taken up by the Tribunal inasmuch as the petitioner has not been given any opportunity to produce his evidence in defence. It is clear from the order dated 21.2.2002 that the matter was fixed on 16.3.2002 for evidence of the State only. The case was not fixed for evidence of the defence, thus at best the Tribunal could have proceeded ex -parte against the petitioner/ appellant and examine the prosecution witness that what has been done in the present case, the Tribunal should have stopped at that. It could not have proceeded to decide the matter without affording any opportunity to the defence to lead its evidence. It is not a case where the date was fixed for evidence of both parties, nor the appellant was given any notice that he would be required to lead evidence on that date. When the appellant has filed his written statement before the Tribunal raising certain defence he is entitled to lead evidence on his defence. When the matter was not listed for evidence of defence the case could not have been closed, neither the final order could have been passed on that day. For the aforesaid reason we hold that the appellant was not given opportunity to defend himself and thus the order passed by the Tribunal on 16.3.2002 could not stand and is hereby set aside. Consequently the orders passed by the appellant Tribunal as well the learned Single Judge are also set aside.