Jharkhand High Court
Danyaal Danish vs The State Of Jharkhand & Others on 20 September, 2024
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 ARUN KUMAR RAI
-------
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. Kapil Sibbal, Sr. Advocate
: 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
: Mr. Niraj Kumar, 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. 21/Dated 20 September, 2024
1. This writ petition has been filed by way of pro bono
publico wherein the issue of infiltration and illegal
immigrants has been raised consequence of which is
change in the demography due to decrease in the Tribal
population in the region.
2. The brief facts of the case as per the pleading made
in the writ petition [W.P.(PIL) No.6547 of 2022] which need
to be referred herein, read hereunder as :-
It is the case of the petitioner that the Sauria
Paharia is a primitive tribe of Jharkhand, which mainly
resides in the Santhal Pargana region of Sahebganj, Pakur,
Godda, Dumka and Jamtara districts. Apart from this,
some populations of this tribe are in Ranchi, W.
Singhbhum and Dhanbad districts also. The northern part
of Damin-e-Koh (Santhan) of Santhal Pargana, whose
overarching violence is covered with the lap of the palace of
Rajmahal, is the main focus of this tribe. The Soria Paharia
tribe residing in the lap of the Rajmahal hills is considered
as Adiniwasi of this area.
3. It is the further case of the petitioner that certain
Tribals whose numbers are limited and they are the
aboriginals of the districts of Sahebganj, Pakur, Godda,
Dumka, Jamtara and Deoghar but their population is
decreasing because of the forceful conversion initiated by
Bangladeshi Muslims and they are tactfully allowing the
population of the Tribals to leave the area where they are
dominant.
4. The Pahadiya tribes are decreasing day by day
because of the reasons that they are either forcefully
converted to Islam by Bangladeshi Muslims and
encouraging some ladies to contest election suppressing
their identity and they are no more tribal Hindus and not
eligible to contest election on the reserved seats.
5. As per the information received under Right To
Information Act there is alarming decrease in the
population of the tribal and this is happening because of
the conversions going on from tribal Hindu to Islam and the
State Government is not at all serious about stopping
infiltration.
6. The number of Madarsa is also increasing and these
Madarsa are increasing because of the fact that the
Bangladeshi Muslims are infiltrating and running these
Madarsa and after staying in those Madarsa they goes out
and mix up with the people of Jharkhand which is causing
enormous damage to tribal population. The state of
Jharkhand has the knowledge that the number of
Madarsas are increasing day by day and is place for so
many illegal acts but the State Government is silent.
7. It is the further case of the petitioner that ultimately
the locals are suffering because of the law and order where
they are settled and the district authority is not throwing
them out of country. It is also expected that Union Home
Ministry has to survey the area and find out the infiltration
of the Muslim population and in case they are found illegal
they should throw them out from the districts so that the
local people may leave peacefully.
8. The conversion is an alarming problem of district of
Sahebganj, Pakur, Godda, Dumka and Jamtara so it
requires to be looked into by the district authorities so that
the Tribal may not be demographically vanish.
9. The instant case has been taken up by the Coordinate
Bench on 17.05.2023 wherein the Coordinate Bench, on
being satisfied with the credentials of the writ petitioner,
has issued notice.
10. The learned counsel for the State and the Union of
India have accepted the notice and, as such, the Court has
opined that no need to issue formal notice to them.
11. The Coordinate Bench had passed an order
directing them to file counter affidavit within four weeks,
rejoinder, if any, within two weeks' thereafter. The matter
was directed to be posted on 19.07.2023, 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. "
12. The matter was listed on 19.07.2023, but no
counter affidavit since was filed and, as such, five weeks'
further time was allowed to the respondents to file counter
affidavit.
13. The matter was again heard on 22.11.2023 by the
Coordinate Bench and in course of hearing, learned
counsel for both the parties agreed 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. The
matter was adjourned for the purpose of seeking
instruction. For ready reference, the said order is being
referred herein :-
"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."
14. Thereafter the matter was heard on 09.04.2024 and
on that date the argument was advanced about the issue of
applicability of the Citizenship Amendment Act (CAA). The
Court has deferred the matter to seek instruction with
respect to the same.
15. Again the matter was heard on 13.05.2024 wherein
the learned counsel appearing for the State has submitted
as per the direction passed by the Coordinate 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.
16. Time was sought for to bring the aforesaid fact on
record by way of an affidavit. Accordingly, this Court
deferred the matter for filing the affidavit to that effect.
17. The Court has also opined on the basis of the
submission made on behalf of learned counsel for the State
of Jharkhand that considering the implication of the issue
the High Level Committee is required to be constituted at
the Central Level and, as such, the Central Government
has also been directed to file affidavit as to what they are
proposing to deal with the said issue. For ready reference,
the order dated 13.05.2024 is being referred as under :-
"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."
18. The matter, thereafter, was taken up on
03.07.2024. The Court has heard the learned counsel for
the parties.
19. Mr. Prashant Pallav, learned Deputy Solicitor
General of India has submitted by placing a document
issued under the signature of the Director (Foreigners)
addressed to the Principal Secretary (Home), Government of
Jharkhand, Ranchi dated 19.06.2024 wherein reference to
Article 258(1) of the Constitution of India has been made to
show 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. A
copy of the same has been served upon the learned counsel
for the State.
20. The Deputy Solicitor General of India has submitted
that since the issue is having the national impact due to
change in the demography of the districts, hence, he has
sought for time to seek appropriate instructions from the
competent authority of the Ministry of Home Affairs as to
what remedial measures for identification, deportation and
the preventive measures are required to be taken at the end
of the Central Government.
21. This Court has passed an order 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.
22. This Court has directed the Central Government to
file affidavit taking appropriate decision that how such
situation will be dealt with in tandem with the State
Government.
23. The Deputy Commissioners of the six districts, i.e.,
Godda, Jamtara, Pakur, Dumka, Sahibganj and Deoghar,
since are in the helms of affairs as majority of infiltrators
have been reported in these districts, hence, this Court has
passed order upon the Deputy Commissioners of aforesaid
districts to file affidavit 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.
24. The Superintendent of Police of the abovementioned
districts have also been directed to file affidavits that what
steps they have taken in collaboration with the Deputy
Commissioners of the said districts.
25. The Chief Secretary of the State has been directed
to personally monitor the said issue, 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."
26. 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 relevant paragraphs of 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."
27. One application has been filed to intervene wherein
it has been stated based upon the national census, the
percentage of Tribal population in the Santhal Pargana
region has decreased drastically from 44.67% in the year
1951 to 28.11% the year 2011.
28. It has been submitted that due to infiltration, illegal
immigratioin etc., the demographic set up of Jharkhand in
particular Santhal Pargana Region is changing rapidly and
now the situation in the bordering area of State of
Jharkhand is alarming and if it would not be checked and a
concrete steps would not be taken by the Government, the
situation would be out of control.
29. The further submission was made that if the
population of the schedule tribe will be decreasing in
Santhal Pargana region, as would be evident from the
aforesaid chart, then the entire interest of the State of
Jharkhand in particular the tribal community, would be
jeopardised, as such the question would be that for what
purpose the tenancy law i.e., Santhal Pargana Tenancy Act,
1949 has been enacted and further what will happen to the
reservation policy which is being extended to the schedule
tribe community. For ready reference, the relevant
paragraphs 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.
23. It has further been submitted due to infiltration,
illegal immigratioin etc., the demographic set up of
Jharkhand in particular Santhal Pargana Region is
changing rapidly and now the situation in the bordering
area of State of Jharkhand is alarming and if it would
not be checked and a concrete steps would not be taken
by the Government, the situation would be out of
control.
24. On the basis of said document, issue has been
raised that if the population of the schedule tribe will be
decreasing in Santhal Pargana region, as would be
evident from the aforesaid chart, then the entire interest
of the State of Jharkhand in particular the tribal
community, would be jeopardised, as such the question
would be that for what purpose the tenancy law i.e.,
Santhal Pargana Tenancy Act, 1949 has been enacted
and further what will happen to the reservation policy
which is being extended to the schedule tribe
community."
30. On the basis of consideration of the affidavits filed
on behalf of the Deputy Commissioners, State of
Jharkhand, this Court has made an observation that if that
be the situation, the matter appears to be very serious, in
addition to the issue of illegal immigrants, as it is a
question of extinguishment of Tribal community from the
State for which the State of Jharkhand was created to
protect their interest as also for securing their rights, the
tenancy laws were enacted in the State of Jharkhand, i.e.,
the Santhal Pargana Tenancy Act, 1949 in the Santhal
Pargana area and Chota Nagpur Tenancy Act, 1908 in the
Chotanagpur region.
31. This Court has also made an observation regarding
the implication of the Santhal Pargana Tenancy Act, 1949
in the Santhal Pargana area which has been enacted to
protect the interest of the Tribal population.
32. The learned counsel for the parties, both the State
and the Centre, had shown their keen concern and that is
the reason they have made a suggestion at the time of
hearing of the case on 08.08.2024 to implead the Director
General, Border Security Force, New Delhi, the Director
General, Unique Identification Authority of India, the
Election Commission of India through the Chief Election
Commission, the Director General, Intelligence Bureau,
New Delhi and the National Investigation Agency through
the Director, New Delhi as party and the same has been
taken note in paragraph 28 of the said order and
accordingly, all the functionaries have been impleaded as
party, the relevant paragraph of the said order is being
quoted herein:-
"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 Commission.
(iv) The Director General, Intelligence Bureau, New
Delhi.
(v) The National Investigation Agency through the
Director, New Delhi."
33. The affidavit which has been filed on behalf of the
Deputy Commissioners have been considered by this Court
on 22.08.2024 wherein complete denial of the issue of
infiltration of has been pleaded, save and except the two
identified cases of infiltration in the district of Sahebganj.
34. This Court needs to refer herein by making
reference of the order dated 03.07.2024 that while directing
the Deputy Commissioners of Godda, Jamtara, Pakur,
Dumka, Sahibganj and Deoghar districts, the specific
direction was passed to file specific affidavit by identifying
the infiltrators, if any, but while conducting the
identification work, the necessary enquiry is to be there,
i.e., 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, at the
risk of repetition, paragraph 11 of the said order is again
quoted herein :-
"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."
35. The Central Government has filed an affidavit
wherein the issue of infiltration has been admitted along
with the data, for ready reference, the relevant paragraphs
of the said affidavits are being quoted herein :-
35. It is submitted that Santhal Pargana division
comprises of six districts viz. Jamtara, Deoghar,
Pakur, Godda, Dumka and Sahibganj. The infiltration
is assessed to have taken place through Sahibganj and
Pakur districts mainly, which are contiguous to West
Bengal. It has been reported that there has been
increase in number of Madrassas in this region during
past few years.
It is submitted that the data submitted by the
petitioners, has been got verified from the Office of
Registrar General of India (RGI). From the data it can
be inferred that
(a) The share of population of scheduled tribes in
Santhal Pargana in the year 1951 was 44.67% which
became 28.11% in 2011. However, quantum of
decrease in tribal population due to outward
migration, low child birth rate among tribal conversion
to Christianity and other reasons needs also to be
assessed.
(b) Total population of Sahebganj district was 4,14,277
in 1961, out of which population of Muslim
community was 82,483 i.e. 20% of total population. In
2011 the total population of Sahebganj is 11,50,567
whereas population of Muslim community is 3,98,243
which is 34.61% of the total population.
(c) In the District of Pakur in the year 1961, the total
population was 3,47,012 out of that 76428 i.e 22.02%
was the population of Muslim Community. In the year
2011, the population of Muslim community was
3,22,963 which is 35.86% of the total population.
(d) After independence, till the year 2011, the share of
population of Hindu community as proportion of the
total population decreased by 4.28 percent at the
national level, but in Santhal Pargana of Jharkhand,
the proportion decreased by 22.42 percent. The share
of population of scheduled tribes decreased from 44.67
to 28.11 percent of the total population. At the
national level, the Christian population growth rate
was 231 percent while in Santhal Pargana it was more
6748 percent. The share of population of Muslim
community increased by 4.31 percent at the national
level, the number in Santhal Parganas increased by
13.3 percent.
(e) Total population of Santhal Pargana in the year
1951 was 23,22,092, of which Hindus were 20,98,492
(90.37 percent), Muslims 2,19,240 (9.43 percent) and
Christians 4,289 (0.18 percent). Of the total
population, tribal people were 10,37,167 (44.67
percent). In the 2011 census, the total population of
Santhal Pargana was 69,69,097 of which Hindus were
47,35,723 (67.95 percent), Muslims 15,84,285 (22.73
percent), Christians 2,93,718 (4.21 percent). Of the
total population in 2011, tribal people were 19,59,133
(28.11. percent).
(f) In Census 2011, there are 5857 Muslim tribes
registered in Santhal Pargana."
36. The State Government, thereafter, has filed an
affidavit sworn through the Department of Home wherein
the issue has been raised that the issue of infiltration is to
be taken care of by putting restriction to the infiltrators
who are coming from different neibhbouring States, i.e.,
West Bengal and other States, for ready reference, the
statement made in said paragraph, are being referred
herein:-
"8. That it is humbly stated that on 12.09.2024, it was
also submitted by the Learned Advocate General and
Chief Secretary, Government 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."
37. It is, thus, evident that the affidavits which have
been filed by the Deputy Commissioners of Godda,
Jamtara, Pakur, Dumka and Deoghar districts, the
complete denial of the issue of infiltration has been pleaded
but the State has accepted the issue of infiltration by
stating that the infiltrators are getting entry from the
neighbouring States and, as such, for the purpose of
remedial measure a consultation with the Central
Government is required.
38. This Court, in such a stand taken by the Deputy
Commissioners of Godda, Jamtara, Pakur, Dumka and
Deoghar districts in their affidavits, where there complete
denial but the moment the Department of Home, State of
Jharkhand has admitted the aforesaid fact of infiltration
but they have been said to enter into the territory of the
State of Jharkhand from the neighbouring States which is
the admission on the part of the State and that is the
reason view has been expressed to have a consultation with
the Central Government otherwise the State of Jharkhand
would have come with the specific plea that there is no
infiltration as has been taken by the Deputy
Commissioners of aforesaid five districts in their affidavits.
39. So far as the affidavits filed on behalf of the Deputy
Commissioners are concerned, that itself is being falsified
once the State of Jharkhand has admitted the issue of
infiltration in these six districts.
40. The further admission of the State is evident from
the stand taken on behalf of the State of Jharkhand where
the State of Jharkhand has agreed for constitution of a
Committee and no denial affidavit has been filed otherwise
there was no occasion for the State of Jharkhand to give its
consent to have a joint committee with the Central
Government which has been taken note by the Coordinate
Bench of this Court in the order dated 22.11.2023, as
quoted and referred hereinabove.
41. This Court, in view of such fact and in order to
come to a conclusive decision, has expressed its view to
have a Fact Finding Committee and, therefore, it was
proposed to have a committee.
42. Such view was expressed by taking note of the order
dated 22.11.2023 in which the State has agreed for a joint
committee for the aforesaid purpose, as has been taken
note in the order dated 13.05.2024.
43. The issue, therefore, herein which is having bearing
in the State of Jharkhand, particularly, the decrease in the
population of the Tribal community. It cannot be disputed
that the State of Jharkhand has been created by virtue of
the Central Legislation given effect to with effect from
15.11.2000 only on the basis of the fact that the majority of
the population of Jharkhand is Tribal.
44. It needs to refer herein the Santhal Pargana
Tenancy Act, 1949 which is applicable since the year 1872,
however, with the modification the amended Act has come
in the year 1949 which is only for the purpose to protect
the interest of the Tribal population of the Santhal Pargana
region wherein only six districts are falling. The said fact
will be evident from the very object of the said Act.
45. It is further relevant to refer herein that there is
embargo in transfer of the land from the raiyat to outsider
who are not the local residents of that area of the Santhal
Pargana region, as would be evident from the statutory
provision contained under Section 20 of the Santhal
Pargana Tenancy Act, 1949 which is being referred
hereunder as :-
"20. Transfer of raiyat's rights - (1) No transfer by a raiyat
of his right in his holding or any portion thereof, by sale, gift,
mortgage, will, lease or any other contract or agreement,
express or implied, shall be valid unless the right to transfer
has been recorded in the record-of-rights, and then only to
the extent to which such right is so recorded:
Provided that a lease of raiyati land in any sub-
division for the purpose of the establishment or continuance
of an excise shop thereon may be validly granted or renewed
by a raiyat for a period not exceeding one year, with the
previous written permission of the Deputy Commissioner:
Provided further that where gifts by a recorded
Santhal raiyat to a sister and daughter are permissible under
the Santal Law, such a raiyat may with the previous written
permission of the Deputy Commissioner, validly make such a
gift:
Provided also that an aboriginal raiyat may, with the
previous written permission of the deputy Commissioner,
make a grant in respect of his lands not exceeding one half of
the area of his holding to his widowed mother or to his wife
for her maintenance after his death.
(2) Notwithstanding anything to the contrary
contained in the record-of-rights, no right of an aboriginal
raiyat in his holding or any portion thereof which is
transferable shall be transferred in any manner to anyone
but a bona fide cultivating aboriginal raiyat of the pargana or
taluk or tappa in which the holding is situated:
Provided that nothing in this sub-section shall apply
to a transfer made by an aboriginal raiyat of his right in his
holding or portion thereof in favour of his gardi jamai or ghar
jamai:
Provided further that a raiyat who is a member of
aboriginal tribes or aboriginal castes may, with the previous
sanction of the Deputy Commissioner and a raiyat, who is
not a member of the aboriginal tribes or aboriginal castes
may without such previous sanction, enter into a simple
mortgage in respect of his holding or a portion thereof with
any Scheduled Bank within the meaning of the Reserve Bank
of India Act, 1934, or a society or bank registered or deemed
to be registered under the Bihar and Orissa Co-operative
Societies Act, 1935(Bihar and Orissa Act VI of 1935) or a
financial institution or with a Company or a Corporation
owned by or in which not less than fifty one percent of share
capital is held by the State Government, or the Central
Government, or partly by the Central Government and which
has been set up with a view to provide agricultural credit to
cultivators.
(3) No transfer in contravention of sub--section (1) or (2)
shall be registered, or shall be in any way recognised as valid
by any Court, whether in exercise of civil, criminal or revenue
jurisdiction.
(4) No decree or order shall be passed by any Court or officer
for the sale of the right of a raiyat in his holding or any
portion thereof, nor shall any such right be sold in execution
of any decree or order, unless the right of the raiyat to
transfer has been recorded in the record-of-rights or provided
in this Act and then only to the extent to which such right is
so recorded or provided:
Provided that a holding or a portion thereof an
occupancy raiyat may be sold in accordance with the
procedure laid down in Bihar and Orissa Public Demands
Recover Act, 1914 (B and O. Act 4 of 1914) for the realisation
of loans taken from any scheduled bank within the meaning
of the Reserve Bank of India Act, 1934, or a society or bank
registered or deemed to be registered under the Bihar and
Orissa Co-operative Societies Act, 1935 (Bihar and Orissa
Act VI of 1935) or financial institution, or a company or a
corporation owned by or in which not less than fifty-one
percent of share capital is held by the State Government or
the Centre government or partly by the State Government
and partly by the Central government and which has been
set up with a view to provide agricultural credit to
cultivators, but if the holding or portion thereof belongs to a
raiyat who is member of aboriginal tribes or aboriginal
castes, it shall not be sold to any person who is not a
member of the aboriginal tribes or aboriginal castes.
(5) If at any time it comes to the notice of the Deputy
Commissioner that a transfer of land belonging to a raiyat
who is a member of the Scheduled Tribes as specified in Part
III of the Schedule to the Constitution (Scheduled Tribes)
Order, 1950, has taken place in contravention of sub-section
(1) or (2) or by any fraudulent method including decrees
obtained in suits by fraud or collusion', he may, after giving
reasonable opportunity to the transferees, who is proposed to
be evicted, to show cause and after making necessary
enquiry in the matter evict the transferee from such land
without payment of compensation and restore it to the
transferor or his heir, or in the case the transferor or heir is
not available or is not willing to agree to such restoration, re-
settle it with another raiyat belonging to the Scheduled
Tribes according to the village custom for the disposal of an
abandoned holding:
Provided that if the transferee has within 30 years
from the date of transfer, constructed any building or
structure on such holding or portion thereof, the Deputy
Commissioner, shall, if the transferor is not willing to pay the
value of the same, order the transferee to remove the same
within a period of six months from the date of the order, or
within such extended time not exceeding two years from the
date of the order as the Deputy Commissioner may allow,
failing which the Deputy Commissioner may get such
building or structure removed:
Provided further that where the Deputy Commissioner
is satisfied that the transferee has constructed a substantial
structure or building on such holding or portion thereof
before coming into force of the Bihar Scheduled Areas
Regulation, 1969, he may, notwithstanding any other
provisions of the Act, validate such a transfer where the
transferee either, makes available to the transferor an
alternative holding or portion thereof, as the case may be, of
the equivalent value in the vicinity or pays adequate
compensation to be determined by the Deputy Commissioner
for rehabilitation of the transferor:
Provided also that if after an enquiry the Deputy
Commissioner is satisfied that the transferee has acquired a
title by adverse possession and that the transferred land
should be restored or re-settled, he shall require the
transferor or his heir or another raiyat, as the case may be to
deposit with the Deputy Commissioner such sum of money
as may be determined by the Deputy Commissioner having
regard to the amount for which the land was transferred or
the market value of the land, as the case may be, and the
amount of any compensation for improvements effected to
land which the Deputy, Commissioner may deem fair and
equitable.
46. The concern of this Court in expressing its view to
have a Fact Finding Committee for the purpose of
identifying the infiltrators for taking remedial measures
said to be curative in nature so that the interest of the
Tribal people of that region be safeguarded, otherwise, the
result would be that the Tribal population in the entire area
will extinguish.
47. The question which came in the mind of this Court
after going through the statutory provision as contained
under the Santhal Pargana Tenancy Act, 1949 that when
there is embargo in transfer of the lands of raiyats and the
raiyat has been defined as the local residents of that region,
then where is the question of decrease in the population of
the Tribal and even if the population is decreasing if at all,
it is very serious issue and the same is be dealt with
strictly.
48. This Court also needs to refer herein the judgment
passed by Hon'ble Apex Court wherein the infiltration has
been considered to be foreign aggression, the relevant
paragraph of the judgment rendered in the case of
Sarbananda Sonowal V. Union of India and Anr.
[(2005) 5 SCC 665], is being quoted herein :-
"63. This being the situation there can be no manner
of doubt that the State of Assam is facing "external
aggression and internal disturbance" on account of
large-scale illegal migration of Bangladeshi nationals.
It, therefore, becomes the duty of the Union of India to
take all measures for protection of the State of Assam
from such external aggression and internal
disturbance as enjoined in Article 355 of the
Constitution. Having regard to this constitutional
mandate, the question arises whether the Union of
India has taken any measures for that purpose."
49. This Court, after going through the affidavits filed
by the State, the Centre and the intervention application as
also the earlier orders passed with the consent of the State
for constitution of a committee, is of the view that in the
present scenario two issues are there -
first, as per the affidavit filed on behalf of the State
which speaks about taking preventive measures.
while the pleading made in the writ petition and the
affidavit filed on behalf of the Central Government with
suggestion to constitute a Committee for the purpose of
identification of the persons who are said to be infiltrators,
to take curative measures.
50. As such, the issues are to be taken into
consideration in both ways, i.e., first the curative measures
and second is preventive measures.
51. Learned Advocate General, appearing for the State,
has submitted to have a consultation with respect to the
issue of infiltrators who are being allowed to enter into the
region from the different neighbouring States. But the
denial has been made on behalf of the State of Jharkhand
to have the committee for the purpose of taking curative
measures.
52. The Central Government has filed affidavit wherein
it has been stated that a Committee is required to be
constituted after a joint meeting of the Chief Secretary of
the State of Jharkhand and the Secretary, Ministry of Home
Affairs, for ready reference, the relevant paragraph of the
affidavit is being referred herein:-
"5. That it is most humbly submitted that in order to
tackle with the problem of infiltration in the State of
Jharkhand and in pursuance of the order of this
Hon'ble court, the Answering Respondent propose that
the Home Secretary, Government of India and the
Chief Secretary, Government of Jharkhand may have a
joint meeting by 30th September to decide on the
members to be nominated to the Fact Finding
Committee to trace the infiltrators. The purpose of the
Fact Finding Committee will be to decide on the
modalities to identify the illegal infiltrators in the
bordering Districts of State of Jharkhand i.e., Deoghar,
Godda, Sahebganj, Pakur, Dumka and Jamtara and
arrange for deportation of such illegal migrants. The
composition of this committee will be decided in the
proposed meeting between Union Home Secretary and
Chief Secretary Jharkhand."
53. The State, however, has consented for constituting a
Committee as would appear from the order dated
22.11.2023, as quoted and referred hereinabove, but now
retracting back from such submission.
54. This Court, after considering the affidavits filed on
behalf of both the State and the Centre, as referred
hereinabove, is of the view that the Chief Secretary of the
State of Jharkhand and the Secretary, Ministry of Home
Affairs, in their meeting, are required to consider regarding
the curative measures as also the preventive measures.
55. So far as the curative measure is concerned, the
Court has considered the pleadings made on behalf of the
State of Jharkhand as well as the Union of India to factum
of infiltration happening and that it is the reason and cause
of shift or decline in demography of Tribal population of the
State of Jharkhand.
56. In order to further satisfy and to reach to a
conclusion of infiltration and that being the cause of shift
in demography, it is found to be necessary that an
independent Fact Finding Committee should be
constituted.
57. The purpose of this Committee is to provide the
reasons of infiltration as it is happening on the ground and
its effect on the population.
58. This is the first step in the direction of curative
measures that could be undertaken in all sensibilities in
order to understand the magnitude of problem that we are
facing.
59. So far as the preventive measures are concerned,
the State of Jharkhand has indicated that infiltration is at
least one of the root problems, that the State of Jharkhand
is suffering.
60. The decline in demography of the Tribal population
as per the State of Jharkhand is attributed to the
infiltration cause, but they have expressed that they are not
in a position to prevent it, as the infiltration population is
flowing from the neighbouring States, which are also States
having international border.
61. It is in this view that they have expressed a desire to
have a meeting with the Secretary, Ministry of Home Affairs
in order to take preventive steps to put a stop in the influx
of infiltration in the State of Jharkhand.
62. It is in view of the above, that the Court is satisfied
and has reached to the conclusion that there is no denial
that the problem of decline in demography of the Tribal
population is currently affecting the population matrix of
the State of Jharkhand.
63. The present satisfaction is being expressed on the
basis of the latest affidavit dated 17.09.2024 filed by the
State of Jharkhand, which is also corroborated with the
statements much by Union of India in their affidavits.
64. The Court, however, thinks it proper that since the
matter relates to the field, it will be apposite to first have a
proper empirical enquiry/research to be made by a reliable
fact finding body so that the Court may have a chance to
see the original facts and figures, before making up its
mind and passing orders to cure the situation.
65. It is in this light, we feel it necessary to direct upon
the State of Jharkhand through its Chief Secretary and
Union of India through the Secretary, Ministry of Home
Affairs to have a combined sitting and finalise the members
of the committee, agendas before it and other formalities.
66. It may be pointed out that they have expressed their
willingness to sit together.
67. It is also expected that in the same meeting or
thereafter, as scheduled, the preventive measures to halt
infiltration, as could be gathered from the affidavit of the
State may be discussed.
68. It is expected that before the next date of hearing,
the first meeting between the parties should take place in
which the names of the experts constituting a Fact Finding
Committee shall be finalized.
69. Let the affidavits be filed on behalf of the Central
and the State intimating about the constitution of the
Committee on or before the 30.09.2024.
70. List these matters on 01.10.2024 as the first case.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
Birendra/
