IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 242/2011 - Versus 1. Md. Anwar Ali, Son of Late Musabbir Ali, Resident of Village : Lankajan, PS & Mouza Hojai, District : Nagaon, Assam. 2. Mustt. Misma Khatoon, Wife of Md. Anwar Ali, Daughter of Munshi Abdul Jabbar, Resident of Dakhin Laskar Pathar, Police Station Lanka, District : Nagaon, Assam. 3. Shri Abdus Salam, Son of Md. Anwar Ali, Resident of Village Lankajan, Mouza & Police Station : Hojai, District : Nagaon, Assam. 4. Shri Abdul Kalam, Son of Md. Anwar Ali, Resident of Village Lankajan, Mouza & Police Station : Hojai, District : Nagaon, Assam..Petitioners 1. The State of Assam, represented by : The Secretary, The Home Department, Govt. of Assam, Dispur, Guwahati, Assam. 2. The Superintendent of Police (Border), District : Nagaon, Assam. 3. The Union of India, Represented by the Secretary, Ministry of Home Affairs, Govt. of India, Shastri Bhawan, New Delhi. Respondents. WP(C) 242/2011 Page 1 of 16
BEFORE THE HON BLE MR. JUSTICE B. K. SHARMA For the Petitioners : For the Respondents : Dr. B. Ahmed, Adv Ms. R. Chakraborty, Sr. GA. Mr. M. Bhagabati, CGC. Date of hearing : 25.03.2011 Date of Judgement : 21.04.2011. JUDGEMENT AND ORDER (CAV) This writ petition is directed against the judgement and order dated 17.6.2005 passed by the then Illegal Migrants (D) Tribunal, Hojai, Sankardev Nagar in case No. IMDT/H/683/91, declaring the 4 (four) petitioners to be illegal Bangladeshi migrants who entered into Assam after the cut off date, which is 25.03.1971. 2. In the writ petition, there is no explanation about the inordinate delay in filling the writ petition after about 6(six) years of the said judgement and order. This must be because of all round protection extended to such illegal migrants by the State Administration. Although, the petitioners were declared to be illegal migrants by the said judgement and order dated 17.6.2005, the State Administration did not take any action to deport them for the last six years. Not only that the proceeding before the Tribunal took long 20(twenty) years for the eventual declaration that the petitioners are illegal migrants. This is how the illegal WP(C) 242/2011 Page 2 of 16
migrants whose presence in the State in lakhs is an admitted position, are being detected, making a mockery of the entire system of detection and deportation of illegal migrants. 3. In the writ petition, although the petitioners have put to challenge the aforesaid judgement and order dated 17.6.2005 passed by the then IMDT, Hojai, Sankardev Nagar in case No. IMDT/H/683/91 but no ground has been urged in the writ petition as to why the same is liable to be interfered with. Only ground if the same can be said to be ground towards assailing the said order are in paragraphs 11 and 14 of the writ petition, which are reproduced below :- 11. That the petitioners Nos; 3 and 4 being the grandson and son of Indian Citizen and are not Bangladeshi National as alleged in the reference and declared by the IM(D)T, Hojai, Vide judgment dated 17.6.2005. The in vocation of the very IM(D)T Act against the petitioners is illegal for they being Indian Citizen and not illegal migrants as alleged in the reference and declared in the judgment. 14. That the Chairman and the Member of the Member, Illigal Migrants (Determination) Tribunal Hojai : Sankardev Nagar not satisfied with the reply posted the case for recording evidence. During hearing the petitioner duly proved that he is an Indian national and son of Indian citizen who have been in Assam. The learned Chairman and Member of the I.M(D) Tribunal, misinterpreted the entire evidence produced by the petitioners and in prejudging the case in a perverse manner hold that the petitioners are illegal migrants and had entered India WP(C) 242/2011 Page 3 of 16
after 25 th March 1971 from Bangladesh and the petitioners can not claim as Indian citizen and liable to be deported for being illegal migrants. Stand in the writ petition : 4. According to the petitioners, they are all citizens of India by birth. Be it stated here that the petitioners NO. 2, 3 & 4 are the wife and two sons of the petitioner No.1, who claims to be the son of late Musabbir Ali. It has been stated that the said father of the petitioner late Musabbir Ali was also an Indian citizen and was a permanent resident of village Lankajan under Police Station and Mouza Lanka in the then undivided district of Nagaon. According to the petitioners, the voter list of 1960 of Lumding constituency (Annexure-I) contained the name of the father of the petitioner at Sl. No. 195, a photocopy of which has been annexed to the writ petition. On perusal of the said voter list, it appears that under Sl. No. 195, name of one Masbir Son of Musan Mia appears and not that of Musabbir Ali. 5. In paragraph 3 of the writ petition, the petitioners have stated that the name of the father of the petitioner No. 1 Musabbir Ali continued to appear in the voter list of 1966, 1970, 1977 in respect of No. 93 Hojai Assembly constituency. It will be pertinent to mention here that the Annexure-I voter list of 1960 pertains to Lumding constituency but the other voter lists of 1966, 1970 and 1977, copies of which have been annexed to the writ petition as Annexure-2 (A, B, C) series are of Hojai Constituency. WP(C) 242/2011 Page 4 of 16
6. In 1966 voter list against Sl. No. 143, name of one Abdul Musbi Ali, Son of Fazal Ali appears, showing his age as 45 years. On the other hand in the voter list of 1960, the age of Masbir was recorded as 54 years. Thus, the person whom the petitioner No.1 claims to be his father, not only varied in name and also of his grand father, but with the efflux of time, his father instead of gaining in age became younger from 54 years to 45 years within 6 (six) years. 7. In 1970 voter list, against Sl. No. 109, name of Abdul Musba Ali aged 49 years son of Fazal Mia appears. In 1977 voter list, at Sl. No. 223, name of one Musabi Ali, aged 50 years, Son of Musal appears. Thus, the father of the petitioner No.1, who was 54 years of age in 1960 became 50 years of age after 17 years. In the normal circumstances, his age should have been increased by 17 years and adding this 17 years to 54 years in 1960, his father should have been 71 years of age. However, he became younger by 21 years of age. 8. The petitioners have also enclosed voter lists of 1975 and 1977 (photocopies) which have been annexed as Annexure 3A and 3B. In 1975 voter list, name of one Anwar aged 27 years son of Musbir appears and so also in 1977 voter list at Sl. No. 201. The petitioners have also enclosed photocopies of voter lists of 1966 and 1970 (Annexures 4A &B), so as to claim that the father of the petitioner No.2 Munshi Abdul Jabbar was an Indian citizen, by birth and his name appeared in the WP(C) 242/2011 Page 5 of 16
voter list. The petitioners have also enclosed Annexure- 5 document, so as to claim that said Mushi Abdul Jabbar had some land and that the said land came to the share of the petitioner No.2. Annexure-5 is the purported Jamabandi (photocopy) of Village- Laskar Pathar, Mouza- Lanka. 9. The petitioners have also enclosed photocopies of the voter lists of 1989 and 1997 (Annexures 6A and B ) so as to claim that the names of the petitioners No. 1 & 2 appeared in the said voter list. 10. Above are the documents on the basis of which the petitioners have asserted in the writ petition that they are Indian citizens, by birth. While doing so, there is however, no explanation as to why their purported father s name did not appear in any one of the voter lists after 1977. There is also no explanation as to why the names of the petitioners No.1 & 2 did not appear in any one of the voter list after 1997. Interestingly, their names were included in the voter list of 1997 at a time when the proceedings against them was initiated and pending before the then IMDT. Thus, in the State of Assam, any one can enter his name in the voter list, no matter he is an illegal Bangladeshi migrant. Stand before the Tribunal : 11. As against the aforesaid stand in the writ petition, the stand of the petitioners before the Tribunal as could be gathered from the written statement filed by them was that in the 1960 voter list, the name of the father WP(C) 242/2011 Page 6 of 16
of the petitioner No. 1 was included and that after his death, the petitioners shifted to Lankajan village. It was further stated that the names of the petitioners No. 1 & 2 were entered in the voter list. However, there was no indication as to in which one of the voter lists of which area, their names were included. As regards the petitioner No.2, it was stated that her father s name Munshi Abdul Jabbar was included in the voter list of 1966. Along with the written statement, the copy of the voter list of 1966 was enclosed showing the name of one Abdul Musbi Ali, aged 45 years S/o. Mazal Ali. The voter list of 1966 was also produced showing the name of one Munshi Abdul Jabbar. As in the writ petition, the voter list of 1977 containing the name of one Musabi Ali aged 50 years S/o. Musal was also produced. Likewise, the voter list of 1977 and 1989 were also produced. While in the voter list of 1977, name of one Anwar aged 27 years S/o. Musbir appears, but in the voter list of 1989, names of Anwar Ali and Misya Khatoon appeared. 12. Two other documents annexed to the written statement were the voter lists of 1966 depicting the name of one Munshi Abdul Jabbar and that of 1997 depicting the names of Anwar Ali and Misma Khatoon aged 46 and 42 years respectively. If the petitioner No.1 was aged 46 years in 1997, at the time of filling the writ petition on 4.1.2011, he would have been 60 years of age but in the affidavit that has been filed in support of the writ petition, he has disclosed his age as 51 years. WP(C) 242/2011 Page 7 of 16
Proceeding before the Tribunal : 13. In the proceeding before the Tribunal, the State examined the Investigating Officer while the petitioners examined the petitioner No.1. The I.O. was entrusted with the investigation of the case on 21.1.1989 on the basis of the First Information Report (Ext.1). Accordingly, he visited the locality and interrogated the petitioners. He also filled in the prescribed form No.1 (Ext.2) wherein Ext.2(i) is his signature. During enquiry, the petitioners could not produce any document in support of their claim of Indian citizenship, that too by birth. The I.O. also examined some local witnesses and recorded their statements. On the basis of such enquiry, the said witness submitted his report in the prescribed form No. II (Ext.3) wherein Ext. 3(i) is his signature and Ext. 3(ii) is the signature of SP(B), Nagaon. The said witness in his deposition proved the enquiry and the report. The petitioners did not cross examine him and thus his evidence went unrefuted. 14. The petitioner No.1 in his deposition stated about the documents annexed to the written statement. He also stated that he has landed property but no document could be produced to prove the same. In his cross examination, the petitioner No.1 stated that his name did not enter in the 1966, 1970 and 1971 voter lists and that his name was entered in the electoral roll of 1977. WP(C) 242/2011 Page 8 of 16
Analysis of the evidence by the Tribunal : 15. The Tribunal on the basis of the aforesaid evidence has come to the conclusion that the petitioners are illegal migrants who had entered into Assam after 25.3.1971. The Tribunal in its impugned judgement and order dated 17.6.2005 has discussed in detail the evidence on record. It has noticed that although the petitioner No.1 in his deposition claimed that his father died in the same village but he could not disclose the year of death of his father. The Tribunal also noticed that the name of the alleged father of the petitioner did not appear in the voter list of 1970 and 1971, although the claim of the petitioner No.1 was that his name appeared in the voter lists of 1966 and 1977. Thus, the Tribunal has rightly recorded his finding that if the claim of the petitioner No.1 that his father did not go out of the State is to be believed than his name ought to have appeared in the voter lists of 1970 and 1971. 16. The Tribunal has also noticed that the name of the petitioner No.1 appeared in the voter list of 1977 (Ext. C) when he was 27 years of age. His name again appeared along with his wife in the voter lists of 1989 and 1997. If that be so, the petitioner No.1 was aged about 20/21 years in the years 1970-71 and accordingly his name ought to have been there along his father in 1970 and 1971 voter lists. However, the same was not to be and his name was entered for the fist time in the electoral roll of 1977. WP(C) 242/2011 Page 9 of 16
17. As regards the purported inclusion of name of the father of the petitioner No.2 in the voter list of 1966, it has rightly been observed by the Tribunal that there is no evidence as to why after 1966, his name did not appear in any one of the voter list. Accordingly, the Tribunal upon a full length analysis of the entire evidence on record, rightly came to the conclusion that the reference made to the Tribunal was required to be answered in the affirmative and accordingly declared the petitioners to be illegal migrant from Bangladesh after the cut off date i.e. 25.3.1971. Arguments in the writ petition : 18. Dr. B. Ahmed, learned counsel for the petitioners referring to the documents annexed to the writ petition submitted that the petitioners are Indian citizens, by birth. He submitted that the variations in the name, age and residential address of the petitioners, which are discernible from the own documents produced by the petitioners, are required to ignored, inasmuch as, variations are known to all. On being asked that the writ court cannot re-appreciate the evidence, he submitted that the same is required to be done for ends of justice. 19. As against the aforesaid submission made by Dr. Ahmed, both Ms. R. Chakraborty, learned State Counsel and Mr. M. Bhagabati, learned CGC, supporting the impugned judgement and order, submitted that the evidences against the petitioners being over-whelming, WP(C) 242/2011 Page 10 of 16
the impugned judgement and order is required to be sustained. Analysis, conclusions and findings : 20. I have considered the submissions made by the learned counsel for the parties and the entire materials on record including the records of the Tribunal. 21. The petitioners have claimed that they are Indian citizens, by birth, however, they did not disclose as to where they were born. The only endeavour on their part is to place reliance on some photocopies of voter lists, so as to claim that the names included therein are their names. They have also claimed that the name of the father of the petitioner No.1 appeared in the aforementioned voter list. Although, it is not the task of the writ court to appreciate evidence but on the face of it, the documents annexed to the writ petition do not establish the Indian citizenship of the petitioners. 22. As noticed above, in the 1960 voter list, name of one Masbir aged 54 years son of Musan Mia appears, whom the petitioner No.1 claims to be his father. However, in the writ petition, he has described his father as Shri Musabbir Ali. In the 1966 voter list, name of one Abdul Musbi Ali aged 45 years son of Fazal Ali appears, whom also the petitioner No.1 claims to be his father. Thus, within a span of six years, the name of the father of the father of the petitioner No.1 got changed from Musbir to Musbi and his age got reduced from 54 to 45. Not only that, the name of the grand father of the petitioner No.1 also got changed WP(C) 242/2011 Page 11 of 16
from Musan Mia to Fazal Ali. As to how such variation could take place, there is no explanation in the writ petition. 23. In 1970 voter list, name of one Abdul Musba Ali aged 49 years son of Fazal Ali appears but in the voter list of 1977, name of one Musba Ali aged 50 years son of Musal appears. The petitioner No.1 claims that both persons are his father, who was 49 years of age in 1970 but became only 50 years of age after 7(seven) years i.e. in 1977. Not only that his grand father s name got changed from Fazal Ali to Musal during this period of 7(seven) years. 24. Appearance of name of the petitioners in 1977 voter list and thereafter, is of no consequence, inasmuch as, the cut off date is 25.3.1971. The petitioners have failed to produce any documents other than the aforementioned voter lists to prove their Indian citizenship, by birth. If the petitioners are Indian citizens, by birth, they could have easily disclosed the material particulars, which they miserably failed to do. Not only that they did not even state about their place of birth. 25. The petitioners have placed reliance on the Annexure-5 photocopy of the Jamabandi which was never produced before the Tribunal and thus this Court cannot take notice of the same. Mere containing the name of one Misma Khatoon can not go to show that the petitioner No.2 is an Indian citizen, by birth. If her WP(C) 242/2011 Page 12 of 16
name was included in the Jamabandi No. 68 and 69, it is not understood as to why her name did not appear in any one of the voter lists of that period of time. Her name came to be included only in the voter list of 1989 and 1997. The names Misya Khatooon and Misma Khatoon are said to be her name, although in the writ petition, she has disclosed her name as Mustt. Misma Khatoon. 26. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. 27. The Deputy Commissioner, Nagaon shall ensure immediate deletion of the names of the petitioners from the voter lists and simultaneously the Superintendent of Police (B), Nagaon shall also ensure immediate detention of the petitioners in the detention camp for their eventual deportation to Bangladesh. Let the writ petition be listed again on 23.05.2011 for furnishing of reports by the Deputy Commissioner and the Superintendent of Police (B), Nagaon towards implementation of the aforesaid directions. Registry shall send down the LCR immediately. Observation 28. Before parting with the case records, I am constrained to observe that in the instant case, it took long 20 years to declare the petitioners to be illegal Bangladeshi migrants. The particular investigation was carried out in 1989 and thereafter the reference was made to the Tribunal in 1991. As many as 76 dates were WP(C) 242/2011 Page 13 of 16
involved in the proceeding starting from 20.3.1991 to 17.6.2005. Most of the times, the petitioners were absent in the proceeding. In the year 1993, the order for exparte hearing was recalled upon appearance of the petitioners by filling application. Thereafter, the petitioners merrily kept on praying for time to file written statement and in between also merrily remained absent. If this is the manner and method in which such an important matter is dealt with by the Tribunal, the very purpose of establishing the Tribunal gets frustrated. During the long 20 years which the Tribunal took to declare the petitioners illegal Bangladeshi migrants, they cast their votes to elect peoples representative to the Legislative Assembly and Parliament. Not only that, they also got their names included in the 1997 voter list i.e. at a time when the proceeding was pending in the Tribunal. 29. Although, the impugned judgement and order dated 17.6.2005 was passed six years back but the District/Police administration did nothing to arrest the petitioners for their detention and deportation to Bangladesh, as if they do not have any duty in such matter. The instant case is only one such instances of indifferent attitude of the District /State administration in the matter of detection and deportation of foreign nationals. There are lakhs of such foreigners present in the State. Only a few cases come under reference to the Tribunal but even in those cases, if this is the approach of the administration, the dangerous consequence can well be imagined, the whole approach WP(C) 242/2011 Page 14 of 16
seems to be the endeavour to protect the interest of the illegal migrants rather than the indigenous people of Assam, no matter, if in the process the indigenous people of Assam became minority in their own State. Apart from slogans to serve political purpose nobody seems to be bothered about the dangerous situation persistently being faced by the State of Assam, from constant and unabated influx of Bangladeshi nationals. Directions 30. Direction is hereby issued to all the Deputy Commissioners and Superintendent of Police(B) to take prompt action for detention and deportation of Bangladeshi nationals illegally staying in Assam. Once a person is declared to be illegal Bangladeshi national, he should be immediately arrested and kept in detention camp and thereafter should be deported. Immediate steps should also be taken for deletion of his/her name from the voter list. Further, once a reference is made to the Tribunal, the Superintendent of Police(B) will have to ensure that the person concerned cannot do the act of vanishing. If need be, he/she should be kept in the detention camp with the facility of defending the reference. These measures are directed in view of the fact that in most of the cases, the Bangladeshi nationals have done the act of vanishing, after their writ petitions filed against the orders of the Tribunal have been dismissed. In almost all the cases, the explanation furnished by the SP(B) is that such Bangladeshi nationals are not traceable and that efforts are being made to nab them. It is also the experience of this Court that WP(C) 242/2011 Page 15 of 16
the names of such Bangladeshi nationals are also not deleted from the voter lists, unless specific direction is issued by this Court. The said two authorities and their delegatees will keep in mind their constitutional duties and obligations and that their failure to discharge the same, may entail appropriate action. 31. Let copies of this judgement and order be sent to all the Deputy Commissioner(s) / Superintendent of Police(S) and the Foreigners Tribunals of all the Districts. Another copy may also be sent to the Union of India in the Home Ministry. JUDGE Sukhamay WP(C) 242/2011 Page 16 of 16
MC 775/2011 in WP(C) 242/2011 BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA 21.4.2011. In terms of the order passed today in the main writ petition i.e. WP(C) 242/2011, the MC stands disposed of. JUDGE Sukhamay