Fakrul Alam Choudhury vs State Of Tripura

Heard Mr. D. Biswas, learned counsel appearing for the petitioner as well as Mr. H. Deb, learned Asst. S.G. appearing for the respondents assisted by Mr. Satya Deb Yadav, Law Officer Grade-III posted in FTR Head Quarter, BSF, Salbagan.

The petitioners have urged this court for directing the respondents to allow the petitioners access the route to their houses outside the Indo-Bangladesh(IBB) border fencing and inside the fencing for their livelihood. The houses of the petitioner fell outside or ahead of the IBB fencing but within the border. As they are now locked up within that land outside or ahead of the IBB fencing, they are not having their basic amenities and daily needs for their livelihood and the contingent of the Border Security Force (BSF) under the command of the respondent No.4, the Commandant, 166th Battalion Border Security Force, North Tripura are not allowing them and their families comprising with the minor children to access the main land crossing the fencing for their livelihood. For identification of the area, the petitioners have stated that the area is close to the IBB fencing near Pillar No.1823/33 S at Bakbaki-Bishnupur Gram Panchayat under the operational coverage of 166th Bn. BSF, Panisagar. In this backdrop, the petitioners have urged this court for directing the respondents allow them access from their house outside the fencing or in the middle of the fencing and the border for their livelihood.

By the order dated 11.06.2020, the respondents were asked to place their response in respect of the averments in the form of a comprehensive instruction so that on such instruction, the entire writ petition can be disposed. Accordingly, Mr. H. Deb, learned Asst. S.G. has produced the written instruction which appears to be sufficiently comprehensive in nature. In the said instruction, the following has been asserted by the respondents :

"2. Prior to COVID-19 pandemic, all the inhabitants residing ahead of fence were allowed to enter/exit through the temporary fencing gate placed in between the Indo-Bangladesh Border Fence in gap (Gap Index Number 584) near Boundary Pillar No.1823/33-S at village Bakbaki under Bishnupur Gram panchayat, Distt-North Tripura (Tripura)."

But after the nation-wise lockdown the directions were issued for strict enforcement of Law to prevent the spread of infection. In the first week of April, Higher Headquarters has issued directions to fight the pandemic of Corona Virus. It was directed to take effective measures for prevention of spread of Corona Virus in the manner as under :

"a) No movement is to be allowed through the fence gates for agricultural activities till further orders.

b) The residents staying in villages located ahead of the fence will also not be allowed to enter the hinterland through the fence gates except medical emergency.

c) If any essential services are required to be provided to such citizens staying ahead of fence, then the local administration will cater to their needs."

The respondents have categorically held that the BSF is under instruction for allowing farmers to cultivate fields ahead of fence in presence of the incident Commander appointed by the District Administration. In compliance to such order, farmers having land near Bakbaki village were also allowed to access through the temporary fencing gate (Gap Index Number 584) near Boundary pillar No.1823/33-S for cultivation of their land.

According to the respondents, the rations are being provided and distributed to those villagers, the account of whom has been given in the instruction. Amongst those villagers, the petitioners are having the land inside and outside the fence. But according to the respondents, no person working in the government or the essential services is residing ahead of the fence in village Bakbaki. As one village called Batoli the Bangladesh is in close vicinity of village Bakbaki (India) there remains chances of smuggling and spread of COVID-19 pandemic from across the border.

Taking overall consideration of COVID-19 situation, the respondents have suggested in their comprehensive instruction as follows :

"8. In the overall interest of the Nation and to prevent of spread of Corona Virus, it is recommended that restricted movement through fence should continue under the supervision of Incident commanders appointed by District Administration. Following comprehensive instructions are submitted for consideration of Hon'ble Court.

(i) BSF is ready to extend assistance to the residence ahead of fence in Medical emergencies, with due precaution of COVID-19.

(ii) Residents have been provided Ration by District Administration, same may be continued till the situation gets normal.

(iii) Most of the inhabitants of Village Bakbaki have land between International Boundary and Border fence (Ref. para 7, table contains details of land). They have been working in their fields even before lockdown and they also have some agricultural land in the hinterland. They may be allowed to cultivate the land in hinterland only with restriction that they may not access neighbouring village or town in view of COVID-19.

iv) Only a few inhabitants of Village Bakbaki, move to hinterland for earning livelihood by daily wages may be restricted as they may spread of COVID-19 by contact from Bangladesh National residing in nearby Village Batoli (Bangladesh) as above inhabitants have close relation there and records indicate the number of COVID-19 cases have been increasing in Bangladesh since March, 2020."

In the instructions, the respondents have provided some statistics how the pandemic had spread in the adjoining village of Bangladesh. Finally, in the comprehensive instruction, it has been noted that the restricted movement under the supervision of the incident Commander has been allowed them to move in to the hinterland. Not only for the situation emerged the matter is related to security and safety of International Border, but in the wake of COVID-19 pandemic situation, the policy direction cannot be relaxed.

Mr. H. Deb, learned Asst. S.G. appearing for the respondents has, on instructions as noted above, submitted that the BSF cannot take any independent decision in the matter of opening of the gates or the temporary gates by waiving the restrictive orders issued by the competent authority of the Central Government for combating pandemic situation. For that reason, the incident Commander District Administration is assisted by the BSF for restrictive movement to the hinterland. But according to the respondents, the situation has not yet turned to be conducive for allowing the liberal movement through the border fencing gates.

Mr. D. Biswas, learned counsel appearing for the petitioner has however reacted strongly stating that even though, the instruction shows that some restricted movement is permitted for cultivation, they are not actually happening, on the contrary by BSF and the District Administration in the name of the border management has imposed blanket prohibition. Mr. Biswas, learned counsel has urged that the petitioners may be allowed some movements, even if, it is restricted so that they can collect their daily provisions and also can continue their agricultural activities. For that purpose, the petitioners have submitted that they will not go beyond the international border for any purpose and what the respondents are apprehensive of is that they would mix with their relative across the border and eventually get infected and when they would return to the main land, they would potent carrier of the said deadly virus. Such apprehension is without any foundation.

Having appreciated the instructions as placed before this court by the respondents, this court is of the view that the District Administration shall take the full responsibility of providing rations to the petitioners until the situation turned normal. The limited movement as reflected in the instruction shall not be further restricted. The petitioners or the persons having land ahead of the border fencing or in the hinterland be permitted to carry out the agricultural activities and for that purpose, the District Administration shall depute the incident Commander to guide the BSF who are engaged in managing those gates. Only under the supervision of the incident commander, the villagers including the petitioners may have access and carry out the agricultural activities within the time as would be provided by the incident Commander but they will under no circumstances mix with the persons from across the border. If it is found that anyone of the petitioners from that village has breached that restriction, their movement may further be restricted by the incident Commander. The Border Security Force and the District Administration will hold a meeting for considering more liberal movement for allowing the villagers living on those lands and such decision be taken within a period of three days from the date when the petitioners shall furnish a copy of this order to the District Magistrate and Collector, North Tripura, Dharmanagar.

With this observation and directions, this writ petition stands disposed of.

There shall be no order as to costs.

A copy of this order be furnished to Mr. H. Deb, learned Asst. S.G. for doing the needful for compliance.