PIL 23/2010 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE A.K. GOSWAMI Amitava Roy, J The petitioner introducing himself to be a genuine social activi st hereby seeks to invoke the extraordinary writ jurisdiction of this Court esse ntially for streamlining the procedure of detection and deportation of Foreigner s from the State of Assam. 02. We have heard Mr. M.U. Mahmud, learned counsel for the petitione r, Ms. B. Goyel, learned State Counsel for Respondent No.1 to 30 and Mr. M. Bhag awati, learned Central Government Standing Counsel for Union of India. 03. The petitioner, in addition to his assertion of being a public-s pirited individual has stated that he is a Lecturer in the department of Arabic, Rajib Gandhi College, Lengtisinga in the district of Bongaigaon, Assam. While narrating his perceived pitiable condition of the backward minority people in th e State, he has emphasized in particular on the foreigner issue to be a compound ing factor thereof. He has referred to reports amongst others of Dr. Gopal Sing h Committee set up in the year 1984 to study the socio-economic conditions of th e backward classes and also of the High Power Committee constituted by the Gover nment of India in March, 2005 to collect authentic information on social, econom ic and educational status of Muslims. He has referred to this later report in p articular to underline the increasing difficulties and hostile treatment faced b y the members of this religious community in the State in all spheres of their c ontemporary existence including public employments. While expressing his strong reservation on the media hype, in particular allegedly maliciously propagating the rise in the percentage of Bangaladeshi Muslims in Assam as foreigners, the p etitioner has sought to refute the same on the basis of figures provided by him. Apart from imputing conspiracy of some communal and anti minority forces stude nt organisations etc. with the help of local media and consequential propaganda that 2 to 3 lakhs of muslims in East Bangal origin have become voters, though th ey are foreigners, the petitioner has sought to maintain that the percentage of Muslim population in Assam has not increased but fallen during 1952 to 1971. Ac cording to him, members of such community, who mainly are riverine dwellers of t he river Brahmaputra and its tributaries are time and again victims of the ravag es of annual floods seasonal and unseasonal. He has also alleged that this helpl ess people for whom the Government has no permanent policy of rehabilitation, ha ve also become targets and victims of police and other communal forces, when req uired to migrate to towns and cities under compulsion for livelihood. The petiti oner has alleged that the police readily brand them as Bangladeshi, as they are not possessed of land documents and their children are denied admission in acade mic institutions and employments in public offices. Referring to the Citizenshi p Act, 1955 (as amended), the Rules framed thereunder, Foreigners Act, 1946, For eigners (Tribunal) Order 1964 and the Representation of People Act,1950, the pet itioner has asserted that due to casual yet predetermined comprehensions of the authorities concerned, not only the voters’ list in which the names of the eligi ble members of the community involved are enlisted suffer from serious anomalies with regard to their names, age etc. thus rendering the entries intentionally d oubtful with the some oblique motive, Form - II under the Rules for initiating a reference against a person as Foreigner under the Foreigners’ Act, 1946 and Fo reigners’ (Tribunal) Order, 1964, is prepared without house-to-house verificatio n. Not only the Form does not contain a column for the signature of the person alleged to be a Foreigner, no opportunity of any kind is made available to him o r her at that stage. The person concerned as such on receiving a notice from th e Foreigners’ Tribunal is unaware of the reason for the initiation of a proceedi ng against him or her. According to the petitioner, many a time orders of imme diate deportation are made by the Foreigners’ Tribunal after detection of the pe rson to be a foreigner. According to him many a time such cases are not dispo sed of even up to 4-5 years. The petitioner has stated that many a times a pe rson wearing burquas (scarfs) caps, lungees and having beard and talking in Beng ali are suspected to be Bangladeshi national due to continuous, motivated and ma licious propagandas let loose by some individuals, organisation and media affirm ing the same as true to his information derived from records. The petitioner ha s asserted that many times merely on suspicion the administrative authorities detain persons and put them behind the bar and the Foreigners’ Tribunals also de claring them as foreigners require them to be deported forthwith. Contending tha t though in many cases the names of Muslim persons being very common in a vill age, several individuals with the same name are the inhabitants thereof, as the enumerators do not conduct a house-to-house survey and the process is undertaken on surmises and conjectures, anomalies in their names and age in the voters lis t creep in which are eventually doubted by the Tribunals and the Courts. The pe titioner has thus asserted that affidavits in such cases filed by the persons de claring themselves to be citizens on the basis of the facts cited by them ought to be accepted in endorsement of the contents thereof. 04. The petitioner has also averred on the basis of the information received from records that the inquiry report on the basis of which proceedings are initiated under the Foreigners’ Act, 1946 and Foreigners’ (Tribunal) Order, 1964, are prepared by the officials concerned mainly by sitting in their office s and are not signed in presence of the witnesses or the proceedee. He has thu s urged that Form-II ought to be directed to contain a column to mark the signat ure of the person concerned and is proposed to be proceeded against. The signat ures of at least two local witnesses must also be made compulsory according to h im. In the above pleaded backdrop the petitioner has in the instant proceeding prayed for the following reliefs- i. To direct the Respondent/Authorities who are engaged for preparation of census report and voters’ list, that they must go to the house of every family a fter informing the Gaonbura or Ward member of each village or ward, as the case may be, ahead of some days of their visit to such place, and to prepare the Cens us report or voters’ list by sitting in that house and record their names with c orrect spelling and with correct age taking the help of local educated persons, if necessary; ii. To direct the learned Tribunals/Courts all over Assam that the documents like voters list of 30 years old, if produced from proper custody, should be ac cepted in view of S - 90 of Civil Procedure Code and due to anomalies in manes a nd ages, if affidavits are sworn to that effect and duly exhibited in terms of I ndian Evidence Act, the same should be admitted without showing unacceptable rea sons. iii. To direct the Respondents/officials/Local verification officers to print the FORM No. - II, i.e. the Inquiry Report printing a column, within 30 days, w here, the Signature of the person concerned, whose case is referred to Tribunal for determination of nationality must be taken in presence of at least 2 local r espectable witnesses. iv. To direct the Respondent/Authorities to accept the School Certificates, land documents, Certificates issued by Gaonbura, Ward member Panchayat President etc. as valid documents for the purpose of proving Indian Citizenship, and the persons having those documents, their cases may not be referred to the learned T ribunal for determination of his/her nationality to save these persons from humi liation, physical, mental and financial harassments. v. To direct the respondents to form Panchayat level Committee for identify ing foreigners with the help of civil administration, where the representatives of all political parties and leading citizens should be included compulsorily so that foreigners can not escape and at the same time innocents are not harassed in the name of foreigners by referring their cases to Tribunals for determinatio n of their nationalities for no foundation. vi. To direct the Respondents to start criminal proceedings against the per sons, organizations and medias, who are in the name of foreigners, propagate fal se and malicious News for vested interest being influenced with political purpos e without any foundation, creating emotions, sentiments and unrest in the societ y under appropriate Sections of Indian Penal Code and punish them, accordingly a s early as possible for lasting peace and tranquillity in the society. vii. To direct the Respondents not to detain any person merely on suspicion w ithout verifying his residential status from the place, where he/she claims to b e his/her residence through concerned Gaonbura, Ward Commissioner, Panchayat or police stations. viii. To direct the ld. Tribunals dealing with foreigner matters also to respe ct the legislative mandate incorporated in Section 3 of the Citizenship Act, 195 6 as amended up to date, at the time of deciding foreigners cases and do not pas s any order/orders exceeding their powers available under reference, i.e. asking the Govt. to deport such persons, forthwith, as once a person is declared as fo reigner, law will take its own course automatically. ix. To pass any order/orders as Your Lordship may deem fit and proper, consi dering the facts and circumstances, in its entirety, for approproaite protection of the Indian Citzen from unnecessary harassments, in future, in the interest o f justice. 05. Mr. Mahmud has insistently reiterated the above to contend that an appropriate writ and/or order ought to be issued to grant the reliefs in furt herance of a genuine public cause. While pleading that the petitioner is not ag ainst the detection and deportation of confirmed foreigners identified in strict compliance of the provisions of law applicable, the learned counsel has maintai ned that the members of the community referred to in the petition are the helple ss victims of concerted and collective propaganda, bias and malice in violation of their fundamental, constitutional and other legal rights. 06. Ms. Goyel, in reply has argued that the averments made in the wr it petition being vague and in general terms it is impracticable for the State r espondents to effectively deal with the essential facets thereof. She however, o n instructions has categorically denied the allegation of violations, bias and h ostile discrimination against the members of the Muslim community. Referring to the judgment and order dated 01.02.2010 rendered in Writ Appeal No.238/2008,( Mo slem Mondol & Ors. Appellants vs. Union of India and Ors. Respondents, 2010 (2) GLT 1), the learned State counsel has urged that meanwhile, an application has been filed by the State respondents seeking a review thereof and that the same i s pending. She has further submitted that issues with regard to Form No.II unde r Rule 7 and 8 of the Rules framed under the I.M.D.T. Act, 1983 are subjudic e in WP(C) No.1775/2009 and that the instant proceeding being bereft of the esse ntial attributes of a Public Interest Litigation, it ought to be rejected in lim ine. 07. Mr. Bhagawati on behalf of the Union of India while adopting the pleas advanced on behalf of the State respondents has submitted that this petit ion is even otherwise not maintainable in law, in absence of the Election Commis sion of India as a party respondent. According to him, having regard to the imp utations pertaining to the process of preparation of the voters list, it is a ne cessary party and that in absence thereof, the petition is liable to be rejected summarily. 08. The pleadings available projecting the petitioner’s assertions a s a whole as well as the rival arguments have received our due consideration. T he pleaded averments noticeably trace the events relatable to the members of a p articular religious community with special emphasis on their claimed deplorable and helpless state of inhabitancy in the state of Assam. Visibly, though the de gree and extent of their presence in various segments of contemporary relevance have been numerically calibrated to demonstrate against the perceived impression of their abnormal increase in growth and to dismiss thereby the authenticity of alleged propagandas against them to be foreigners being of erstwhile East Benga l the averments apparently are omnibus in nature, and lacking in essential and s ingular facts and particulars to provide a tangible basis for attestation thereo f. The averments exude broad accusations of conspiracy of some communal and ant i minority forces, student organizations etc. with the help of local media for s uch propaganda with mala fide intention. The alleged differential treatment to t he members of the community has been sought to be linked up with this perspectiv e to contend harassment and intimidation in the name of proceedings before the F oreigners Tribunal under the Foreigners’ Act, 1946 and Foreigners (Tribunal) Ord er 1964. The averment to the effect that the administrative authorities many ti mes detain person on suspicion and the Foreigners Tribunals also declare them as foreigners or Bangladeshi without disclosing the grounds therefor and deport th em forthwith is as referred to hereinabove, sworn as true to the petitioner’s in formation derived from the records. Not only, this statement is vividly in gene ral terms, not a solitary instance has been cited in support thereof. The averme nt that the inquiry report of the officials on the basis of which a proceeding b efore the Foreigners’ Tribunal is initiated is not signed in presence of the pro ceedee or local witnesses but mainly by sitting in their offices rendering the s ame (inquiry report) doubtful, has also been sworn to be true to his information from the records which he believes to be true. In absence of any particular in stance or instances such all encompassing statements do not even prima facie est ablish the imputation for the purpose of setting in motion a proceeding of the k ind in hand. 09. The petitioner’s grievance qua Form No.II about absence of any c olumn for the signature of the proceedee being relatable to a statutory document and moreover as a similar issue is subjudice in WP(C) No.1775/2009, we are not inclined to entertain the same in the instant proceeding in the face of alternat ive remedy in law available. The petitioner, significantly has not challenged t he constitutionality of any of the enactments referred to in the writ petition. Mr. Mahmud has not highlighted as well the absence of legal provisions or admin istrative procedure or guidelines in this regard. 10. Imputations have been levelled against the authorities or the of ficials entrusted to undertake the enumeration work for the purpose of preparing the voters list as well as inquiry report on which a proceeding for detection a nd deportation of a person as a foreigner under the Foreigners’ Act, 1946 and Fo reigners(Tribunal)Order, 1964 is initiated. In absence of any specific instance to substantiate these allegations it would be wholly presumptive to affirmative ly respond to the same. The stand of the respondents that for want of better fa cts and particulars it would be impracticable for them to offer their response t o the allegations except denying the same generally cannot be discarded as frivo lous. The Form No.II provided with writ petition though does not contain any co lumn for the signature of the proceedee, the same is otherwise comprehensive inc orporating various clauses with regard to his/her name and all other essential p articulars for his/her identification as well as for ascertaining his/her date a nd place of birth, length of residence, employment, land holdings etc. This For m No.II specifically in Clause 21 provides for furnishing the names and address of the persons from whom the information in respect of the proceedee have been o btained. The requirements in clause 23,24 and 25, in particular demonstrate the essentiality of application of mind by the authorities mentioned therein in suc ceeding stages. In the face of these imperatives it would be too broad a proposi tion to accept the petitioner’s cavil that the alleged anomalies in the process of preparation of the voters list and the inquiry report referred to hereinabove are in perpetration of the ill will and hostile orientation of such public func tionaries against a particular section of a community. The petitioner’s apprehe nsion and reservations against the manner in which the proceedings before the Fo reigners’ Tribunal are conducted also appears to be unfounded in the face of the authoritative decision of a Division Bench of this Court in Moslem Mondol & Ors (Supra) on all relevant aspects qua burden and standard of proof U/s.9 of the F oreigners’ Act, 1946. 11. In State of Uttaranchal vs. Balwant Singh Choubal (2010) 3 SCC 4 02, the Apex Court while dilating on various aspects of Public Interest Litigati on has enunciated that the Courts should be prima facie satisfied regarding the correctness of contents of the petition before entertaining such litigation. Th eir Lordships also observed that it was the bounden duty of the Court to ensure that an issue once settled by an authoritative judgment should not be reopened u nless there are extra ordinary reasons for doing so. The pleadings offered in t he instant case when judged by these precepts do not warrant initiation of a Pub lic Interest Litigation. 12. On a totality of the considerations as hereinabove, we are, ther efore, of the unhesitant opinion that the instant petition does not merit consid eration in the present form having regard to the reliefs prayed for. It is thus dismissed. In the facts and circumstances however there would be no order as to the costs.