IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WP(C) No. 242/2011 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 - Versus – 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 : Dr. B. Ahmed, Adv For the Respondents : 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 25th 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.