PIL 19/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.P.KATAKEY Ranjan Gogoi, J The writ petitioner is an Association registered under the Socie ties Registration Act, 1860 having its registered office at Silchar within the S tate of Assam. The petitioner Association claims to represent the non-Mizo/ non- tribal traders of Assam having business in Mizoram, particularly, in the distric ts of Aizawl and Lunglei. Most of the members of the petitioner Association, it is claimed, are permanent residents of the three districts in the Barak Valley o f the State of Assam i.e. Cachar, Karimganj and Hailakandi. In the present writ application, the petitioner Association seeks to challenge the constitutional va lidity of the Eastern Bengal Frontier Regulation, 1873, hereinafter referred to as the Inner Line Regulation. The guidelines for the enforcement of the said Inn er Line Regulation framed by the State of Mizoram in exercise of powers conferre d by Section 2 of the aforesaid Regulation and published on 1.9.2006 has also be en challenged in the present writ application. 2. The Inner Line Regulation had been initially introduced by the t hen Secretary of State for India in the eastern most frontier areas of the provi nce of Bengal, of which Assam had then been a part. It was made applicable to th e districts of Kamrup, Darrang, Nagaon, Sivasagar, Lakhimpur and subsequently ex tended to other areas of the then province of Assam which today comprises the St ates of Nagaland, Arunachal Pradesh and Mizoram. Specifically the Regulation was extended to the then Lusai Hills district of the State of Assam (presently the State of Mizoram) on and from 28.8.1930. The detailed objects for introduction o f the aforesaid Regulation to the areas in question need not detain the Court, s ave and except that such introduction was designed to protect the tribal people inhabiting the areas in question from increasing social and economic exploitatio n and prevent the prospect of incessant invasion into their independent domain. The said Regulation, it must be noticed, was adapted under the Government of Ind ia Act, 1935 and, thereafter, under the Adaptation of Laws Order, 1950. The said Regulation was again adapted under the North-Eastern Areas (Re-organization) Ac t, 1971 and has continued to hold the field in the absence of any decision of th e State Legislature of Mizoram either to repeal or amend the enactment. 3. To give effect to the provisions of the Regulation and for due e nforcement thereof , the Government of Mizoram from time to time, has framed gui delines in exercise of the powers conferred by Section 2 of the Regulation. In s o far as the present case is concerned, the guidelines published by the Notifica tion dated 1.9.2006 which are presently holding the field and under challenge in the present writ petition, will be required to be noticed. In view of the issue s that have arisen in the present writ petition, the relevant provisions of the guidelines with a brief analysis of the same may be set out below: 1. Authorities for issue of Inner Line Pass (hereinafter referred to as ILP) : (1) Regular ILP :- The Deputy Commissioner of Aizawl District, Lunglei District, Kolasib District, Mamit District, Serchhip District, Champai District, Lawngtla i District and Saiha District or any other concerned subordinate officer authori zed by them on their behalf shall be competent to issue regular ILP for a period not exceeding 6(six) months, subject to the availability of a sponsor who is a bonafide indigenous resident. (2) Temporary ILP :- The Resident Commissioner, Government of Mizoram at New Del hi, the Liaison Officer, Silchar, Shillong, Guwahati, Kolkata, the Deputy Superi ntendent of Police in-charge of Airport Security at Lengpui, Officer-in-charge o f Kanhmun Police Station, Administrative Officer, Bairabi and Sub Divisional Of ficer (C), Ngopa are authorized to ssue Temporary ILP in Form E for a period not exceeding 159fifteen0 days, to bonafide visitors/ tourists or business represen tatives with intimation to the concerned Deputy Commissioner. (2)(a) The Officers, authorized to ssue temporary ILPs, should also ensure that the temporary ILPs are issued only on Government working days i.e. no temporary ILPs will be issued on Saturdays, Sundays and Government Holidays. (3) Renewal or extension of ILP :- The Deputy Commisisoner of Aizawl District, K olasib District, Mamit District, Serchhip District, Champai District, Lunglei Di strict, Lawngtlai District and Saiha District or any other concerned subordinate officer authorized by them on their behalf may on application renew or extend t he validity of the ILP of the holder residing in their respective districts for not more than two times. Renewal of ILP shall be subject to the good conduct of the ILP holder that he/she is not involved in any criminal activity. (3)(a) & & & & & & & & & & & & & & & & & & & & (3)(b) & & & & & & & & & & & & & & & & & & &.. 2. Categories of Persons to be exempted (1) In partial modification of the Notification No. PLA.393/70-Pt/I dt. 7.9.1970 which prohibits all person other then officers on Government duty and indigenou s inhabitants of the then Mizo District (now the State of Mizoram), from crossin g the Inner Line, it is prescribed that in addition to the persons exempted unde r the said notification, members of the Security Forces and the families of such non-indigenous and regular or permanent Government servants, and employees of t he Government Undertakings and Corporations shall also remain exempted: Provided that the expression ’family’ shall have the same meaning as ass igned to it under the FR & SR or the CCS Pension Rules; Provided further that a retired government employee settled in Mizoram b y virtue of his or her marriage to an indigenous tribal of Mizoram, and Governme nt Advocates as well as the advocates on Defence Panels of Government shall also remain exempted from requiring to have an ILP. (2) Entry of foreigners into Mizoram is regulated under the provisions of Foreig ners (Protected Areas) Order,1958 made under the provision of Foreigners Act, 19 46 and the Passport (Entry into India) Rules, 1950. (3) The system of issuing Identity Cards with photographs may be adopted for reg ular Government servants for easy identification at the check gates. Although th e Government servants on duty visiting Mizoram and staying temporarily are not r equired to carry Inner Line Pass but due to ignorance about their identity, the men posted in the check gate may refuse their entry. Identity Cards will be usef ul in such situations. In the absence of Identity Card, Government servant shoul d carry a movement order or even an Inner Line Pass to avoid any risk of being r efused entry due to ignorance of his order identity. (4) Students of Educational Institutions of the State possessing genuine Identit y Cards issued by the Institutions shall be exempted from requiring to have ILP during the period of their studies. The Heads of the Institutions may clearly st ate the year/period of study in the Identity Cards. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & &.. 5. Verification of Character and Antecedents. (1) A simple yet effective system of verifying the character and antecedents of the intending visitors or tourists may be adopted by the Pass issuing authoritie s so that the procedure is not made too cumbersome for the administrative machin ery and also for the intending visitors or tourists in normal cases. While in do ubtful cases, it may become necessary to go deeper by even referring to the home districts of the intending visitors or tourists. In normal cases, it should be enough to verify from the applicant himself by the Pass issuing authority. The p ass-issuing authority, however, has the right to grant the pass or reject the ap plication without assigning any reason. (2) The influx of Bangladeshi nationals into the districts of Karimganj, Hailaka ndi and Cachar of Assam has to be taken into consideration while issuing ILPs to persons claiming to be from these districts. The ILP issuing authorities should insist on the production of EPI Card of relevant extract of Electoral Roll coun tersigned by concerned ERO or genuine reliable document to prove the bonafide id entity as Indian citizen of the applicant from applicants above the age of 18 ye ars and residential or birth certificate or bonafide document from applicants be low 18 years. This is required to ensure that only bonafide Indian citizens of t hese districts avail the ILP and that the security of the State is not jeopardiz ed. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 8. Passes for non-indigenous businessmen/ traders holding Trade Licenses. There are a few non-indigenous persons who are running shops/businesses by virtu e of Trade Licenses, either Permanent or Temporary, granted to them by the erstw hile Mizo District Council and the Autonomous District Councils (Lai, Chakma and Lakher). Special arrangements have to be made for them, and regular ILP may be issued to them in the following manner :- (1) Permanent Trade License holders :- Inner Line Passes with validity exceeding 1(one) year but not exceeding 3(three) years, renewable by 1(one) year at a time may be issued to persons who are in possession of Permanent Trade License issued by the erstwhile Mizo Distri ct Council and the Autonomous District Councils (Lai, Chakma and Lakher) and to the members of their family. Such Permanent Trade License holders are also allow ed to sponsor non-indigenous employees numbering nor more than 39three0 for the purpose of carrying their business as manager, attendant etc. (2) Temporary Trade License holders :- Inner Line Passes with validity exceeding 1(one) but not exceeding 3(thr ee) years, renewable by 1(one) year at a time may be issued to persons, who are in possession of Temporary Trade License issued by the erstwhile Mizo District C ouncil and the Autonomous District Councils (Lai, Chakma and Lakher) and to the members of their family subject to prior approval of the Government. 9. Passes for non-indigenous employees of the Private or Public Sector Companies , Corporations and Firms :- There are Private or Public Sector Companies, Corporations and Firms who se services are required for execution of work contract in the State. If such Co mpanies, Corporations and Firms require ILP for registration under Mizoram Value Added Tax Act, 2005 and the Rules made thereunder, the Government shall have th e right to issue Inner Line Passes of 2(two) years validity to one representativ e (CEO/ Managing Director/ Manager etc.) of the companies/ firms to enable them to register under MVAT Act, 2005. Other non-indigenous employees my be issued Re gular ILP by the Deputy Commissioner upon sponsorship by the Government Depart ment under which the Companies, Corporations and Firms are executing work contra ct. In case of casual traders or dealers whose services are required for exe cution of Development Projects and Schemes inside the State of Mizoram, the Gove rnment shall have the right to issue ILP with validity of 2 years on case to cas e basis to make them eligible for registration under MVAT Act, 2005. 10. Passes for non-indigenous proprietors of non-CSD canteens (unit canteens) of Central Forces, State Police :- The Central Forces like BRTF, BSF, Assam Rifles etc stationed in various places in the State have non-CSD canteens(unit canteens) run by non-indigenous persons. Similarly, the State Police have canteens in several places like Battal ion Headquarters, District Headquarters, Police Stations etc. The Government sha ll have the right to issue ILP with 2(two) years validity to the non-indigenous proprietors of these canteens subject to certain conditions as may be laid down for this purpose. Such proprietors once issued ILP with 2(two) years validity ar e allowed to sponsor non-indigenous employees numbering not more than 3(three) f or the purpose of carrying their business as manager, attendant etc. 11. Issue of Provisional Inner Line Pass to import Labourers in bulk. A large number of Inner Line Passes are often issued to labourers of Bor der Roads Task Force, Public Works Department, Public Health Engineering , Power and Electricity Department and their Contractors, Environment and Forest Depart ment and to its Mahaldars/ Contractors, Government Undertakings and Corporations . Such labourers can be the clandestine source of infiltration of a large number of anti-social and anti-national elements or spread of various communicable dis eases. Therefore, special care has to be taken to screen them and regulate it pr operly. A too rigid system of screening would lead to non-availability of skille d/ semi-skilled/ unskilled labourers for development works. Therefore, a simple yet effective system of verifying their characters and antecedents will have to be adopted. The following procedure maybe followed:- (1) The Deputy Commissioner of Aizawl District, Lunglei District, Kolasib Di strict, Mamit District, Serchhip District, Champai District, Lawngtlai District and Saiha District or any Officer authorized by them may issue provisional pass es for labourers with validity of 15(fifteen) days, on the recommendation of the Chief Engineer, Pushpak, Engineer-in-Chief, Public Works Department and the Zon al Chief Engineers below him, as the case may be. Before submission of such reco mmendation to the Deputy Commissioner, Aizawl the sponsoring Departments/ author ities shall obtain ’No Objection Certificate’ from the Labour & Employment Depar tment. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 4. A reading of the provisions of the guidelines quoted above would go to show that under Clause 1(1) Regular Inner Line Pass (hereinafter referred to as ’ILP’) can be granted for a period not exceeding six months subject to a sponsorship being made by a bonafide indigenous resident of Mizoram. Temporary I LPs can be granted for a period not exceeding fifteen days to the bonafide vis itors/tourists or businessmen. Under Clause 1(3) of the Regulation renewal or ex tension of ILPs granted can be made, but not more than two times. Under Clause 2 of the Regulation, the members of the Security Fo rces and their families; non-indigenous persons who are regular or permanent Gov ernment servants and employees of Government Undertakings and Corporations are e xempted from the requirement of obtaining an ILP. Students undergoing studies in educational institutions in the State of Mizoram are also exempted for the peri od of their study subject to such period being clearly mentioned in their identi ty cards. Under Clause 8, non-indigenous persons who are running their bus iness by virtue of Trade Licenses, permanent or temporary, granted by the erstwh ile Mizo District Council and the Autonomous District Councils of Lai, Chakma an d Lakher form a special class for whom regular ILPs are to be granted. In case o f Permanent Trade License Holders, ILPs are to be granted for any period between one to three years, renewable by one year at a time. The members of the family of such Permanent Trade License Holders are also entitled to regular ILPs for th e periods noted above. Besides, such Permanent Trade License Holders are also al lowed to sponsor non-indigenous employees, not exceeding three in number, for th e purpose of carrying on their business. In so far as the Temporary Trade Licens e Holders are concerned, regular ILPs are to be issued for a similar period as i n the case of Permanent Trade License Holders along with their families subject to prior approval of the Government. However, such Temporary Trade License Holde rs are not allowed to sponsor any non-indigenous employee for the purpose of the ir business. Clauses 9, 10 and 11 of the Regulation quoted above deal with gr ant of ILPs to employees of the private or public sector companies, Corporations or Firms executing works in Mizoram; permits for non-indigenous proprietors of non-CSD canteens of Central Forces and ILPs for import of labourers in bulk for execution of works in Mizoram. The aforesaid provisions of the Regulation being self contained and the same not being very relevant for the purpose of the prese nt case, for the sake of brevity, a detailed consideration of the said provision s is not being attempted in the present order. 5. The pleaded case of the petitioner Association is broadly to the following effect : It is stated that all the members of the petitioner Association were holding valid ILPs at one point of time or the other. Such ILPs have not be renewed, which action was sought to be justified by the authorities of the Stat e of Mizoram by relying on the provisions of Clause 1(3) of the Regulation. Acco rding to the petitioner, the applications for fresh ILPs by the members of the p etitioner Association have been answered by the State by contending that fresh ILPs cannot be granted in view of a Court order passed in a proceeding register ed as Civil Suit No. 19/2000 in the Court of the learned Civil Judge, Aizawl. Ac cording to the petitioner, enquiries have revealed that there is no such case in the file of the learned Civil Judge, as contended. According to the writ petiti oner, the consequence of the stand taken by the State of Mizoram is that, in the absence of any renewal or grant of fresh ILPs, there is a legal bar on the entr y or stay of the members of the petitioner Association in Mizoram. The petitioner Association in the writ petition filed has also a lleged that almost all its members have subsisting business interests in Mizoram for generations particularly, in the districts of Aizawl and Lunglei ations. T rade Licenses had been granted to the members of the petitioner Association and, in some cases, to their predecessors under the provisions of the erstwhile Lusa i Hills District (Trading by Non-Tribals) Rules, 1964. According to the petition er Association, in the year 1975, a new law i.e. Mizoram (Trading by Non-Tribals Regulation) Act, 1974 was framed which came into force with effect from 7.5.197 7. The aforesaid Act was to remain in force for a period of ten years and has la psed in the meantime. While the Act was in operation, under Section 14 thereof, an order dated 7.5.1977 was issued by the Governor of the then Union Territory o f Mizoram to the effect that all non-tribals who had been the residents of the U nion Territory for the last ten years or more stand exempted from the requiremen t of obtaining Trade License under the provisions of the aforesaid Act. It is th e case of the petitioner Association that the members of the Association accordi ngly submitted their existing Trade Licenses to the authorities against valid re ceipts. However, till date neither any formal exemption order has been issued to any of the members of the petitioner Association, nor any Trade License has bee n renewed or fresh license has been issued. In such circumstances, the members o f the petitioner Association are constrained to carry on their business without any Trade License and in an environment of utter uncertainty or apprehension. It is contended by the petitioner that the Act of 1975 having ceased to have any e ffect after expiry of ten years from the date of its coming into force, the Gove rnment has not been issuing any Trade License to the members of the petitioner A ssociation. It is the further case of the petitioner that under the provisio ns of the Mizoram Value Added Tax Act, 2005 as well as under the provisions of t he erstwhile Mizoram Sales Tax Act, 1989, registration as a dealer under the pro visions of the Act is contingent on the applicant possessing a valid ILP. As no ILP is being issued or the existing ILPs are not being renewed, the members of t he petitioner Association cannot be registered under the Act to legitimately car ry on their business. In such a situation, according to the petitioner, various unscrupulous tribal bodies have been taking the law into their own hands and hav e been threatening and intimidating the non-tribal traders including the members of the petitioner Association, to leave Mizoram and refrain from doing any busi ness. The petitioner further complains of the failure of the law enforcing agenc y to take timely and appropriate remedial measures to protect the rights and int erests of the members of the petitioner Association. The aforesaid circumstances having given rise to a situation where the members of the petitioner Associatio n, who are non-Mizo/non-tribal/non-indigenous residents, have been totally prohi bited from carrying on their business, the provisons of the Inner Line Regulatio n and the guidelines dated 1.9.2006 framed thereunder as well as the impugned ac tions of the respondent State have been challenged as ultra vires the provisions of Article 19(i)(e) & (g) of the Constitution, not being saved by the provision s contained in Article 19 (5) and (6) of the Constitution. The infringement of t he rights guaranteed by Article 19(i)(e) & (g) of the Constitution, according to the petitioner Association being virtually in respect of all non-Mizo/non-triba l traders and businessmen having business interest in Mizoram or intending to ca rry on such business, the present writ petition has been filed as a Public Inter est Litigation on the basis that the issues raised concern violation of the fund amental rights of a class of determinate citizens, the number of which is fairly large. In the writ petition filed, averments have been made to the effect that the names and particulars of the members of the petitioner Association on whose behalf this writ petition has been filed have not been incorporated in the docum ents enclosed to the writ petition in order to prevent unnecessary harassment or intimidation to such members and furthermore that in the event such particulars are required, the petitioner Association will submit the same to the Court at a later stage. 6. The respondent State has filed an affidavit in the case wherein it has been contended that the present writ petition should not be admitted as a Public Interest Litigation, inasmuch as, the petitioner Association claims to r epresent persons whose individual rights are alleged to have been violated by th e provisions of the impugned Regulation/ guidelines and the actions taken on tha t basis by the State. Furthermore, it is contended that the petitioner Associati on has not submitted to the Court the list of its members along with the relevan t papers and particulars of the members who were granted ILPs or Trade Licenses. No particulars of the submission of the Trade Licenses to the authorities of th e State against valid receipts, as claimed, have also been disclosed by the peti tioner along with other relevant facts. It is the contention of the respondent S tate that in the absence of the aforesaid particulars, this writ petition cannot be construed to be a bonafide attempt at espousing the cause or causes of the c itizens on whose behalf it is professed to be filed. The respondent State has, t herefore, prayed that this writ petition should be dismissed at the threshold wi thout