Jharkhand High Court
Danyaal Danish vs The State Of Jharkhand & Others on 17 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No.6547 of 2022
-----
Danyaal Danish ... ... Petitioner
Versus
The State of Jharkhand & Others ... ... Respondents
With
W.P.(PIL) No.4213 of 2018
-----
Soma Oraon ... ... Petitioner
Versus
The State of Jharkhand & Others ... ... Respondents
-------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-------
For the Petitioner : Mr. Rajeev Kumar, Advocate
: Ms. Niteshwari Kumari, Advocate
[WP(PIL) No.6547/2022]
: Mr. Rajendra Krishna, Advocate
: Mr. Rohit R. Sinha, Advocate
[WP(PIL) No.4213/2018]
For the State : Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, AC to AG
For the UOI : Mr. Tushar Mehta, Solicitor General of
India
: Mr. Anil Kumar, Addl. S.G.I.
: Ms. Chandana Kumari, AC to ASGI
: Mr. Prashant Pallav, D.S.G.I.
: Ms. Shivani Jaluka, AC to DSGI
For the ECI : Mr. Rajiv Sinha, Advocate
: Mrs. Richa Sanchita, Advocate
For the NIA : Mr. Amit Kr. Das, Advocate
: Mr. Saurav Kumar, Advocate
: Mr. Shivam Utkarsh Sahay, Advocate
------
th
Order No. 20/Dated 17 September, 2024
1. One affidavit has been filed on behalf of the State of
Jharkhand which has been sought to be accepted.
2. It has been submitted that copy of the same has
been served upon the learned counsel for the petitioner as
well as the other contesting respondents.
3. Considering the aforesaid submission, the same is
taken on record.
4. The present petition has been filed by way of pro
bono publico.
5. The matter when was taken up on 17.05.2023 by
the Coordinate Bench, notices were issued upon the State
of Jharkhand and the Union of India.
6. The notices have been accepted on behalf of the
State and the Union of India.
7. On that date, the Coordinate Bench had passed an
order to file counter affidavit within four weeks and
rejoinder, if any, be filed within two weeks thereafter, for
ready reference, the order dated 17.05.2023 is being
referred herein :-
"05 /Dated: 17.05.2023
Perused a supplementary affidavit filed by the
learned counsel for the petitioner, who has satisfied his
credentials.
Let notice be issued.
Since learned counsel for the State and Union of
India have already accepted notice and advance copy of
the brief, no need to issue formal notice to them.
Let, counter-affidavit be filed within four weeks.
Rejoinder, if any, be filed within two weeks
thereafter.
List this case on 19.07.2023. "
8. On 19.07.2023, again the time was granted to file
counter affidavit.
9. The Coordinate Bench has further passed an order
on 22.11.2023 that if a team consisting of the officers of the
Central Government and the State Government should be
formed for inspection of the situation at the ground level in
the five Districts i.e. Godda, Jamtara, Pakur, Dumka and
Sahibganj regarding infiltration of illegal immigrants. The
matter was adjourned for the purpose of taking appropriate
instruction in this regard, for ready reference the order
dated 22.11.2023 is being quoted hereunder as :-
"08/ Dated: 22.11.2023
Hearing is taken up.
In course of hearing, learned counsel for both the
parties agree that they should instruct, if a team
consisting of the officers of the Central Government and
the State Government should be formed for inspection
of the situation at the ground level in the five Districts
i.e. Godda, Jamtara, Pakur, Dumka and Sahibganj
regarding infiltration of illegal immigrants.
Let learned counsel take appropriate instruction
in this regard and apprise this Court on the next date.
Put up this case on 13.12.2023."
10. The matter was thereafter taken up on 13.05.2024
and the following order was passed :-
"Order No.12/ Dated: 13.05.2024
1. Reference made to the orders dated 22.11.2023 and
09.04.2024.
2. Mr. Piyush Chitresh, learned AC to Advocate General
has submitted that as per the direction passed by the
co-ordinate Bench of this Court vide order dated
22.11.2023, the State is ready to constitute a committee
so that the said committee may work in tandem with
the Central Government to deal with the issue.
3. However, time has been sought for bringing the said
fact on record by way of affidavit.
4. Let such affidavit be filed on behalf of the State of
Jharkhand.
5. It requires to refer herein by taking into consideration
the implication of the issue that at the Central level,
high-level committee is also required to be constituted.
6. Let an affidavit be also filed on behalf of the
concerned Ministry of the Central Government, showing
its view, as to what they are proposing to deal with the
said issue.
7. Let this case be listed on 24.06.2024."
11. The matter, thereafter, was taken up on 03.07.2024
and this Court, after taking note of the impact of the
infiltration wherein it has been noted that the issue cannot
be said to be restricted to a particular State or a particular
district, rather, if there will be infiltration in any of the
districts of any State across the country, it will ultimately
change the entire demography of the nation. As such, this
Court has directed the Central Government as also the
Deputy Commissioners of the six districts, i.e., Godda,
Jamtara, Pakur, Dumka, Sahibganj and Deoghar, to file
affidavit with further direction upon the Chief Secretary to
personally monitor the issue.
12. The Court has also passed order directing the
Deputy Commissioners of the six districts, i.e., Godda,
Jamtara, Pakur, Dumka, Sahibganj and Deoghar, to file
separate affidavits by giving details of the infiltrators after
going through their Aadhar Cards, Voter Cards and by
comparing with the Record of Rights to establish their
residency in the area which falls under the Santhal
Pargana region which is to be dealt with under the
provisions of Santhal Pargana Tenancy Act, 1949, for ready
reference, the order dated 03.07.2024 is being quoted
hereunder as :-
"14/Dated: 3rd July, 2024
1. Mr. Rajeev Kumar, learned counsel appearing on
behalf of the petitioner has submitted by highlighting
the issue showing its seriousness that in the six
districts of the State of Jharkhand there are wide scale
infiltration of the foreigners who are mainly coming
from the Bangladesh i.e., in the districts of Godda,
Jamtara, Pakur, Dumka, Sahibganj and Deoghar.
2. The co-ordinate Bench of this Court has passed an
order on 22.11.2023 for constituting a team consisting
of the officers of the Central Government and the State
Government for inspection of the situation at the
ground level in these districts regarding infiltration of
illegal immigrants.
3. Today, Mr. Prashant Pallav, learned Deputy Solicitor
General of India as also Mr. Piyush Chitresh, learned
A.C. to learned Advocate General has placed a
document by way of communication under the
signature of Director (Foreigners) addressed to the
Principal Secretary (Home), Government of Jharkhand,
Ranchi dated 19.06.2024 by making reference to Article
258(1) of the Constitution of India that the State
Government is fully competent to enquire into the
matter and take appropriate action for deportation of
illegal immigrants as per extant norm.
4. The said letter has also been communicated to the
State Government which has also been produced by Mr.
Piyush Chitresh, learned AC to learned Advocate
General appearing on behalf of the State of Jharkhand.
5. Mr. Prashant Pallav, learned Deputy Solicitor General
of India has, however, submitted that since the issue is
having the national impact due to change in the
demography of the districts, hence, he will seek
appropriate instructions from the competent authority
of the Ministry of Home Affairs that what remedial
measures for identification, deportation and the
preventive measures are required to be taken at the end
of the Central Government.
6. This Court is of the view that said instruction is
required, reason being that the issue cannot be said to
be restricted to a particular State or a particular
district, rather, if there will be infiltration in any of the
districts of any State across the country, it will
ultimately change the entire demography of the nation.
The issue of nation is there regarding the change in
demography if such infiltration will not be prevented or
the illegal infiltrators will not be deported then it will
adversely affect the entire demography of the nation.
7. This Court, in view thereof, is of the view that
whatever has been communicated in the
communication dated 19.06.2024 that appears to be
shifting of the accountability without taking into
consideration the overall impact of the infiltration.
8. Let an affidavit be filed by the competent authority of
the Central Government, i.e., of the Ministry of Home
Affairs, by taking appropriate decision that how such
situation will be dealt with in tandem with the State
Government.
9. Mr. Rajeev Kumar, learned counsel for the petitioner
has submitted that day by day the number of the
infiltrators are increasing and as such, it cannot be said
that the district administration is having no power to
prevent or to identify or to take measures for their
deportation.
10. This Court is of the view that the Deputy
Commissioner of one or the other districts are since in
the helm of affairs, hence, it is their bounden duty to
look into the situation as immediate controlling officer
of one or the other districts.
11. Let separate affidavits be filed by the Deputy
Commissioner of the districts of Godda, Jamtara,
Pakur, Dumka, Sahibganj and Deoghar by giving details
of the infiltrators after going through their Aadhar
Cards, Voter Cards and by comparing with the Record
of Rights to establish their residency in the area which
falls under the Santhal Pargana region which is to be
dealt with under the provisions of Santhal Pargana
Tenancy Act, 1949.
12. The Superintendent of Police of the abovementioned
districts are also required to file affidavits that what
steps they have taken in collaboration with the Deputy
Commissioners of the said districts.
13. Let immediate steps be taken in addition to the
identification and deportation by way of preventive
measures so that there must not be any further
infiltration in the area.
14. The Chief Secretary of the State is directed to
personally monitor the issue.
15. At the moment, this Court is not directing the Chief
Secretary to file an affidavit, rather, the same will be
directed, if situation so warrants, after perusing the
action which is to be taken as per the direction as above
and if it is found that there is slackness on the part of
the district administration, i.e., Deputy Commissioner
or the Superintendent of Police of the concerned
districts, then an affidavit from the Chief Secretary will
be called upon.
16. Let this matter be listed on 18th of July, 2024."
13. The affidavits have been filed on behalf of the State
but not by the Deputy Commissioners, rather, the
authorities subordinate to them and, as such, the said
affidavits have been rejected, as would appear from the
order dated 18.07.2024, for ready reference the order dated
18.07.2024 is being quoted as under :-
"Order No.15/Dated:18th July 2024
Since the affidavit has been filed subordinate in
rank to the Deputy Commissioner which is contrary to
the direction passed by this Court dated 03.07.2024.
2. This Court rejects the said affidavit and directs to
file the same as per the direction earlier passed by this
Court vide order dated 03.07.2024."
14. The matter was again taken up on 08.08.2024 and
this Court has taken note of the judgment rendered by
Hon'ble Apex Court in the case of Sarbananda Sonowal
V. Union of India and Anr. [(2005) 5 SCC 665] followed
in the case of Assam Sanmilita Mahasangha and Ors. V.
Union of India and Ors. [(2015) 3 SCC 1] wherein the
Hon'ble Apex Court has been pleased to consider the illegal
immigrants to be the external aggression within the
meaning of Article 355 of the Constitution of India.
15. No further affidavit was filed on behalf of the Deputy
Commissioners, as directed, as also no affidavit has been
filed on behalf of the Central Government.
16. However, it has been pointed out in one intervention
application showing the decrease in the population of
Scheduled Tribe community residing in that area shown to
be decreased drastically from 44.67% as was in the year
1951 to 28.11% as in the year 2011.
17. It has further been taken note based upon the said
intervention application that the Muslim population in the
said region has increased manifold i.e., from 9.44% of total
population in the year 1951 to that of 22.73% in the year
2011, and if this trends goes on, then days are not far
away, the tribal community in the region will become
extinct one. However, the percentage of population of others
has changed marginally by 3.3% for the said period in that
region, for ready reference, the relevant paragraph of the
order dated 08.08.2024 is being quoted hereunder as :-
"22. Referring to the tabular chart and pi-chart,
submission has been made that as per national census,
the percentage of tribal population in Santhal Pargana
Region has decreased drastically from 44.67% in the
year 1951 to 28.11% in the year 2011 whereas, on the
other hand, the Muslim population in the said region
has increased manifold i.e., from 9.44% of total
population in the year 1951 to that of 22.73 % in the
year 2011, and if this trends goes on, then days are not
far away, the tribal community in the region will become
extinct one. However, the percentage of population of
others has changed marginally by 3.3% for the said
period in that region."
18. While this Court was considering the issue, learned
counsel appearing for the parties have made a suggestion
to the Court for impleadment of some of the functionaries
as party respondent to the proceeding, as would appear
from paragraph 28 thereof. Accordingly, notice have been
issued to all the newly impleaded respondents. The relevant
paragraph of the said order is being referred as under :-
"28. Upon this, the learned counsel for the parties i.e.,
learned counsel for the petitioner, learned D.S.G.I,
appearing for the Central Government and Mr. Rajiv
Ranjan, learned Advocate General appearing for the
State Government are fair enough to submit that some
functionaries are required to be impleaded as party
respondent, i.e.,
(i) The Director General, Border Security Force, New
Delhi.
(ii) The Director General, Unique Identification
Authority of India.
(iii) The Election Commission of India through the
Chief Election Commissioner.
(iv) The Director General, Intelligence Bureau, New
Delhi.
(v) National Investigation Agency through the
Director, New Delhi."
19. The Deputy Commissioners of six districts, i.e.,
Godda, Jamtara, Pakur, Dumka, Sahibganj and Deoghar,
have filed affidavits and all the Deputy Commissioners,
except the district Sahebganj, have disputed the
infiltrators/illegal immigrants in their respective districts,
for ready reference, the affidavits filed on behalf of the
Deputy Commissioners, wherein the fact about infiltration
has been disputed, are being quoted hereunder as :-
Deputy Commissioner, Pakur
"6. That it is stated and submitted that the D.C., Pakur
has enquired into the matter by asking all the
concerning C.Os. within Pakur District and S.P., Pakur
to submit any report(s)/ complaint(s) of any illegal
immigrant(s) since last two years but till date, neither
there is any data available nor any cases) lodged nor
any information received in respect of the illegal
immigrants within the Pakur District as reported by all
the concerning C.Os. within Pakur District and S.P.,
Pakur even though the the D.C., Pakur has issued
helpline numbers- (1) 06435 222064/1950 & (2)
9262216191 vide Gyapank No.- 601 dated 16.08.2024
which has also been published in local newspaper for
circulation and the said helpline numbers are
operational 24*7 for collecting information regarding
illegal immigrants from the residents within the Pakur
District and in this respect a separate register has been
kept to be maintained by entering the name, address
and mobile number of the complainant as well as
details of the complaint and for this purpose, the In-
charge Officer, General Section, Pakur has been
appointed as Nodal Officer who will be responsible to
hand over the details of the such complaints) to the
Sub-Divisional Officer, Pakur for enquiry."
Deputy Commissioner, Deoghar
"9. That it is stated and submitted that there is no
existence of Bangladeshi Citizen in the territory of
Deoghar District as per report of the Superintendent of
Police, Deoghar contained in Annexure B of this counter
affidavit as such direction contained in paragraph 37,
38 and 39 of the order/direction dated 08/08/2024 has
no application in the District territory of Deoghar.
However, the answering respondent is keeping strict
vigil over the matter round O'clock through the Police
Department to nip in bud the action of any infiltration
from any angle."
Deputy Commissioner, Dumka
"6. That in compliance of the direction of the Deputy
Commissioner, Dumka, all Circle Officers have got the
matter verified and found that there is no any
information regarding illegal Bangladeshi infiltrators
has ever been received in their offices.
7. That the Sub-Divisional Officer, Dumka Submit the
report vide Letter No. 725 dated 14.08.2024 and the
Superintendent of Police, Dumka Submit the report vide
Letter No. 4025 dated 14.08.2024 have also reported
that no any information regarding illegal Bangladeshi
infiltrators has been received in their area"
Deputy Commissioner, Godda
"8. That it is stated and submitted that in reply to the
aforesaid letter the Superintendent of Police, Godda vide
his letter No. 622/legal cell dated 17.08.2024 and
Incharge Deputy Superintendent of Police, special
branch, Godda vide Letter no -724 Dated 17.08.2024
Submitted their respective report to the Deputy
Commissioner, Godda in which it is very much relevant
to state here that there is no existence of the
Bangladeshies citizen in the territory of Godda District
as reported."
Deputy Commissioner, Jamtara
"9. That it is stated and submitted that as per the report
submitted by the Superintendent of Police, Jamtara and
all the block field officers i.e. Block Development
Officers and the Circle Officers, as mentioned in the
previous paras, it is humbly submitted that no such
case of infiltration of Bangladeshi person in Jamtara
district have been found so far."
20. For the district of Sahebganj, the stand has been
taken at paragraph-8 of the affidavit filed by Deputy
Commissioner, Sahebganj that two cases regarding illegal
Bangladeshi infiltrators within two years have been
received.
21. The Central Government has filed an affidavit
wherein the stand has been taken that the issue of
infiltration is wide in these six districts.
22. This Court, on consideration of the rival stand
taken by the State and the Centre, has sought for a
proposal of names for constituting a fact finding committee
in such a disputed stand having been taken both by the
State and the Centre, so that appropriate order, if the issue
of infiltration is correct, may be passed to deal with the
issue in the light of the judgment passed by Hon'ble Apex
Court rendered in the case of Sarbananda Sonowal V.
Union of India and Anr. (Supra) followed in the case of
Assam Sanmilita Mahasangha and Ors. V. Union of
India and Ors. (Supra).
23. The matter when was taken up, no suggestion was
put forth both on behalf of the Centre and the State on that
date and, as such, while hearing the matter on 12.09.2024,
again the suggestion has been sought for from the State
and the Centre. The relevant paragraph as taken note in
the said order is paragraph-15, for ready reference
paragraph-15 of the said order is being quoted and referred
hereunder as :-
"15. This Court, while interacting with the learned
Solicitor General of India and the learned Advocate
General of the State on the last date of hearing, had
sought for suggestion of the proposed names for the
purpose of constitution of a Committee. But, no such
suggestion has come forward."
24. Today, one affidavit has been filed on behalf of the
State wherein it has been stated at paragraph - 8 that while
the matter was being heard on 12.09.2024, it was
submitted by the learned Advocate General and the Chief
Secretary, Government of Jharkhand that the issue in the
present Public Interest Litigation being inter-State issue
where alleged infiltrators from the Bangladesh enter the
Sovereign territory of India, first in the State of West Bengal
and other States and only thereafter enters the State of
Jharkhand therefore an effective coordination among
different states on the one hand and Union of India on the
other are required for enforcement of Central Laws and
further, there is also requirement of prior consultation with
the Ministry of Home Affairs before State of Jharkhand
takes further stand on the matter, for ready reference
paragraph-8 and 9 of the aforesaid affidavit are being
quoted hereunder as :-
"8. That it is humbly stated that on 12.09.2024, it
was also submitted by the Learned Advocate General
and Chief Secretary, Government present of
Jharkhand in the present matter that issue in
present PIL being an Inter State issue where alleged
infiltrators from the Bangladesh enter the Sovereign
territory of India, first in the State of West Bengal and
other States and only thereafter enters the State of
Jharkhand therefore an effective coordination among
different states on the one hand and Union of India
on the other are required for enforcement of Central
Laws.
9. That it was also submitted before the Hon'ble
Court that there is also requirement of prior
consultation with the Ministry of Home Affairs before
State of Jharkhand takes further stand on the
matter.
25. The Court when has posed a pinpointed question to
learned Advocate General that whether the statements
which have been made at paragraphs 8 and 9 have ever
been said either by the Chief Secretary of the State or by
the learned Advocate General.
26. It has been submitted by learned Advocate General
that no reference of infiltrators coming from the State of
West Bengal and other States have been submitted on
12.09.2024 or no reference was made for prior consultation
with the Ministry of Home Affairs before State of Jharkhand
takes further stand in the matter, rather, submission only
was made that prior to taking stand on the proposal to
constitute a fact finding committee, a meeting with the
Central Government is required.
27. The learned Advocate General, in view thereof, has
submitted that whatever has been stated at paragraph 8
and 9, the same may be deleted and be read as stated
above.
28. Accordingly, the statement made at paragraphs 8
and 9 of the affidavit stand deleted.
29. This Court, after going through the stand taken by
the State in the affidavit as also by considering the stand
taken by the Deputy Commissioners in the affidavits filed
on their behalf, particularly the Deputy Commissioner of
six districts, i.e., Godda, Jamtara, Pakur, Dumka,
Sahibganj and Deoghar, wherein the complete denial of the
issue of infiltration has been stated. However, the Deputy
Commissioner, Sahebganj has found the issue of
infiltration only with respect to two cases.
30. The Central Government in its affidavit, has come
out with the stand that the infiltrators are there and they
need to be identified for taking further remedial measures.
31. It is evident from the affidavits filed on behalf of the
Deputy Commissioners of six districts as also the affidavit
filed today by the Home Department of the State, the
contradictory stand has been taken.
32. While on the other hand, the Deputy
Commissioners of the five districts have completely denied
the issue of infiltration as also the decreasing trend in the
Tribal population in the Santhal Pargana region. However,
two identified cases has been reported in the district of
Sahebganj, as per the affidavit filed on behalf of Deputy
Commissioner, Sahebganj.
33. On behalf of the Home Department, an issue has
been raised that the alleged infiltrators from Bangladesh
enter the sovereign territory of India first in the State of
West Bengal and other States and only thereafter enter the
State of Jharkhand and, as such, a consultation is required
to be there with the Central Government.
34. It is, thus, evident from the pleading made on behalf
of the State of Jharkhand and the officers heading the
districts, i.e., the Deputy Commissioners of five districts,
except Deputy Commissioner of Sahebganj, who has stated
that two identified cases of illegal immigration have been
reported, are in conflict with each other but still the State
wants a consultation with the Central Government on the
issue.
35. The issue of such consultation with the Central
Government will be deliberated upon on the next date of
hearing.
36. The issue of the present Public Interest Litigation is
the conversion of the Tribals and reduction in the Tribals
and to protect their interest as also for securing their right,
the tenancy law was enacted in the State of Jharkhand i.e.,
the Santhal Pargana Tenancy Act, 1949 in the Santhal
Pargana area and Chotanagpur Tenancy Act, 1908 in the
Chotanagpur region.
37. Even though the Tenancy Law is operative but the
Tribal population is decreasing for that this Court has
expressed its view to constitute a fact finding committee.
Such view has been expressed by the Court in order to pass
appropriate order with respect to the issue as has been
agitated in the present Public Interest Litigation.
38. This Court, in such a conflicting stand, as per the
affidavits filed on behalf of both the stakeholders, i.e., the
State and the Centre, will not be in a position to deal with
the issue for the purpose of coming to a conclusive finding.
39. The aspect of the infiltration can also not be
overlooked if infiltration is there leading to reduction of
Tribal population as because for securing their rights the
State of Jharkhand has been created by virtue of the
enactment of the Bihar Reorganization Act, 2000 and also
by taking into consideration the law laid down by Hon'ble
Apex Court in the case of Sarbananda Sonowal V. Union
of India and Anr. (Supra).
40. The Court since has expressed its view and, as
such, has sought for proposal both from the State and the
Centre to propose the names so that they be the members
of the fact finding committee for the purpose of passing
further necessary order, but the State has not proposed
any name.
41. Learned Solicitor General, appearing for the Central
Government, has submitted that for the purpose of
constituting the fact finding committee, the Chief Secretary
of the State and the Secretary of the Home Affairs may sit
together to decide about the members of the Committee to
look into the issue of infiltration leading to decreasing rate
of the Tribal population in the Santhal Pargana region
causing change in the demography in that area, for taking
further remedial measure.
42. Mr. Tushar Mehta, learned Solicitor General of
India, however, has not filed any affidavit to that effect,
rather, he has made oral submission and, as such, this
Court is of the view that let the same be brought on record
by way of an affidavit.
43. Learned Solicitor General of India has submitted
that the due affidavit will be filed by 19.09.2024.
44. The further deliberation on the aforesaid will be on
the next date of hearing.
45. Accordingly and as prayed for on behalf of Central
Government, let these matters be posted on 20.09.2024
within top five cases.
(Sujit Narayan Prasad, A.C.J.)
(Sanjay Kumar Dwivedi, J.)
Birendra/
