Gauhati High Court
Smt. Areni Lotha vs Union Of India (Uoi) And Ors. on 31 January, 2006
Equivalent citations: AIR2006GAU83, AIR 2006 GAUHATI 83, 2006 (4) AKAR (NOC) 459 (GAU), 2006 GAULT(SUPP) 345, (2009) 2 GAU LR 776
Author: A.H. Saikia
Bench: A.H. Saikia
ORDER A.H. Saikia, J.
1. Heard Mr. P. Pius Lotha, learned Counsel for the petitioner, Mr. K. Meruno, learned Assistant Solicitor General (ASG) for the Union of India as well as Mr. L. S. Jamir, learned Addl. Sr. Govt. Advocate for the State respondents.
2. On 8-11-05 when this writ petition was moved challenging the notice/order dated 23-6-05 issued by the respondent No, 3. Superintendent of Police, Dimapur, Nagaland by which the husband of the petitioner Mr. Khaled Hassan Matter Abdul Razak, was informed that Protected Area Permit (PAP), issued to him, was cancelled with a direction to report to the said officer to carry out the instruction of the Govt. to deport him ordering therein itself that if he was not in Dimapur presently, he was directed not to enter Dimapur, notice of motion was issued to the respondents making the same returnable within 2 (two) weeks and the learned Counsel appearing for all the official respondents accepted those notices.
3. On the prayer for consideration of passing an interim order staying the impugned notice dated 23-6-05 so made by the learned Counsel for the petitioner, this Court on 24-11-05, after hearing the learned Counsel for all the parties, directed the learned CGSC to obtain instruction in connection with the said prayer fixing the matter on 7-12-05 and till the returnable date, the operation of both the impugned notice dated 23-6-05 issued by the respondent No. 3 as well as the letter dated 17-8-05 issued by the Joint Secretary (F), Ministry of Home Affairs, Govt. of India (Annexure-X and IX respectively to the writ petition) was stayed.
4. When the matter was taken up on the returnable date i.e. 7-12-05, no instruction was placed before this Court as directed earlier and accordingly, Mr. K. Meruno, learned ASG prayed for further 2 (two) weeks' time in order to obtain necessary instruction which was granted by this Court fixing 25-1-06 and till then, the interim order passed earlier was allowed to continue.
5. However, on 25-1-06, the matter was not listed and ultimately, it is taken up today for consideration of admission of the case as well as the continuation of the interim order granted earlier.
6. Taking into account the controversy raised in this writ petition and as agreed to by the learned Counsel for the parties, this Court proposes to dispose of this matter today itself at the order stage.
7. The brief facts of the case of the petitioner herein are that her husband Shri Khaled Hassan Mattar Abdul Razak is, being a Jordanian National, holding Passport No. 616309 with a permission to reside at Dimapur and Kohima in the State of Nagaland. He married the petitioner on 15-1-88 at Dimapur and since then, both of them are leading a happy married life as husband and wife and this wedlock has gifted them 2 (two) children i.e. 2 sons. Initially, he was granted PAP for one year w.e.f. 8-6-89 which was extended from time to time and eventually, the last extension was granted on 17-5-05 for a period of 5 years up to 16-4-2010 and the same is evident from Annexure-VI annexed to the writ petition. It is pleaded in this writ petition that during the entire period of his stay, the activities of the petitioner's husband has been monitored by the intelligent agencies and the permission has granted to stay on the satisfaction of those authorities as her husband is neither involved in any anti-national activities nor has he any criminal record.
8. Suddenly, while the petitioner and her husband along with their children were living a happy life, to their great astonishment and shock, the impugned notice dated 23-6-05 (Annexure-X to the writ petition) was served upon her as her husband, at the relevant time, was out of Nagaland.
9. The said notice reads as under :-
GOVERNMENT OF NAGALAND OFFICE OF THE SUPERINTENDENT OF POLICE, DIMAPUR, NAGALAND No. DEF/DMR/CB-84/2005/2089, Dtd. Dimapur, the 23rd June, 2005 To Mr. Khaled Hassan Mattar Abdul Razak.
Sub : NOTICE It has been intimated by Special Secretary (Home), Nagaland that the Protected Area Permit issued to you for the period up to 16-4-2010 vide Govt. Order No. CON-16/ 90, dated 17th May, 2005 has been cancelled. You are, therefore, directed to report to the undersigned immediately to carry out the instructions of the Govt. to deport you. However, if you are not in Dimapur presently, you are hereby directed not to enter Dimapur in view of the cancellation of the Protected Area Permit issued to you as aforesaid. (BIDHU SHEKHAR) IPS Superintendent of Police, Dimapur, Nagaland.
10. Challenging the impugned notice Mr. Pius Lotha, learned Counsel for the petitioner has forcefully contended that once the authority having been satisfied, has granted the petitioner's husband the extension of his PAP till 16-4-2010 by order dated 17-5-05 under the signature of Under Secretary to the Govt. of Nagaland, Home Deptt. Political Branch, the same cannot be cancelled without giving any reasonable opportunity of hearing to him. It is submitted that if the present illegal order is permitted to be given effect to, the same would bring about immense suffering to the family of the petitioner who is an Indian citizen and especially the fate of the innocent minor children would be at peril. The learned Counsel has stated that it is the petitioner only who would suffer irreparable loss and injury if her husband is deported and as such she is the aggrieved party to file the writ petition.
11. In the instant case, according to him, the entire action has been taken up by the respondent No. 3 on the basis of the DO letter dated 17-8-05 written by the Joint Secretary, Ministry of Home Affairs, Govt. of India, wherein it was recited that having regard to serious intelligence inputs about his activities, it was decided to revoke the PAP and directed him to leave India, alleging further therein that the petitioner's husband was suspected to have link with the Kashmir militants.
12. The letter dated 17-8-05 reads as under :
D.O. No. 25022/85/05-F.V. 17th August, 2005 Dear Sir, This is regarding a reference from- Special Secretary (Home) DO letter No. CON-1890, dated August, 2005 requesting Central Government to review the decision to revoke PAP with respect to Mr. Khaled Hassan, a Jordanian national who is married to a Naga lady.
2. Before issuing order for revocation of his PAP and Leave India Notice, this Ministry duly considered his marital status, but having regard to serious intelligence inputs about his activities, it was decided to revoke the PAP and direct him to leave India. As per information available to this Ministry, besides indulging in real estate business under bogus names and evincing interest in procuring black ginger which is used for preparation of fake currency, Mr. Hassan is also suspected to have links with Kashmiri militants.
3. You would, therefore, appreciate that the aforesaid information justifies our decision to revoke his PAP and subsequent deportation order. I would, therefore, request you to kindly ensure his immediate departure, failing which we propose to issue a Look Out Circular for him.
Yours sincerely, (D. S. Mishra)
13. Mr. Lotha has further contended that when all such serious allegations were levelled against the petitioner's husband behind his back, at least a notice ought to have been served upon him to explain as to whether he was involved in those activities because for the last more than 17 years, he has been residing at Dimapur and during the entire period, the Govt. of Nagaland has actively been monitoring his activities and accordingly, he has not been found to be involved in any such anti-national activities. In support of his submission, the learned Counsel has relied upon the communication dated 11-8-05 issued by the Special Secretary to the Govt. of Nagaland addressed to the Deputy Secretary (Foreigners), Ministry of Home Affairs, Govt. of India (Annexure-VIII to the writ petition), wherein the Govt. of Nagaland categorically reported to the Govt. of India, Home Affairs that from the State sources and authorities, there was no adverse record or report against the petitioner's husband, Khaled Hassan Mattar Abdul Razak and accordingly, a request was made to review the standing decision and allow the RAP revalidation and extension for her husband. According to him, mere suspicion cannot be a ground to take away the right to life and personal liberty of a person without affording any reasonable opportunity of being-heard as guaranteed under Article 21 of the Constitution and as such, the impugned order itself is ex facie hit by principle of natural justice and the same is liable to be set aside and quashed.
14. Despite notice as mentioned above, no affidavit has been preferred on behalf of the respondents, both the Union of India as well as the State of Nagaland; nor has any application for vacation, alteration and/or cancellation of the interim order dated 24-11-05 has been forthcoming.
15. Mr. K. Meruno, learned ASG has urged that the decision of cancellation of PAP has been based on the serious intelligence inputs about his activities. The petitioner's husband was found to be involved indulging in the real estate business under bogus names and evincing interest in procuring black ginger which was used for preparation of fake currency. It has also been put on record, as per the DO letter dated 17-8-05, that Mr. Khaled Hassan is also suspected to have link with the Kashmiri militants. Those are, therefore, sufficient grounds requiring the cancellation of his PAP in the interest of national security and in view of the same, the Govt. of Nagaland has rightly been directed to take necessary steps for deportation of the petitioner's husband.
16. On the other hand, Mr. L. S. Jamir, the learned State counsel representing the State of Nagaland, has contended that the Govt. has to act as per the direction of the Govt. of India, Home Affairs, though as per their own intelligence report, they did not find any adverse record/report against the husband of the petitioner. However, since the Govt. of India is of the view that the petitioner's husband is involved in anti-national activities, Govt. of Nagaland is bound to follow the direction given by the Govt. of India in this context and accordingly, the impugned notice has been issued by the competent authority for deportation of the petitioner's husband.
17. At this stage, Mr. Lotha, the learned Counsel, has argued that when PAP dated 17-5-05 was issued by the Under Secretary to the Govt. of Nagaland, being the competent authority, the same has not yet cancelled by any such competent officer till date. Even the husband of the petitioner has not been informed in any matter whatsoever that his PAP which is valid up to 16-4-2010, was cancelled by the Govt. of Nagaland. His contention is that the entire action on the part of the respondents smacks arbitrariness, mala fide and motivated.
18. Having given my thoughtful consideration to the contentious submissions made by the rival parties and also on meticulous examination of the materials on record including the averments made in the present writ petition with all the Annexures appended thereto, it is found that the petitioner's husband, who is a foreign national, has been residing at Dimapur and Kohima in the State of Nagaland under valid permits i.e. PAP and RAP (Restricted Area Permit) since 1988 and the said PAP has even been extended to 16-4-2010. During this period, the petitioner's husband has never been found indulging in any such activities which is prejudicial to the interest of national security. Even the Govt. of Nagaland vide communication dated 11 -8-05, had informed the Govt. of India that there was no adverse record/report about the husband of the petitioner and accordingly, a request Has also been made for allowing revalidation of the PAP and for extension of stay of the petitioner's husband.
19. It is explicitly noticed that the impugned order has been passed on the basis of the Do letter, as already referred to above, without giving any opportunity of hearing to the petitioner's husband. When any allegation of such nature has been inflicted against any one like the petitioner's husband, at least he or she deserves a notice affording him/her an opportunity of hearing in the tune of the doctrine of Audi alteram partem before taking such serious steps the deportation from the country. In the instant, case, it is writ large that no such opportunity whatsoever was given to the petitioner's husband.
20. Article 21 of the Constitution of India guarantees right to life and liberty to any one whether he is a foreigner or a citizen. This right to life and liberty can be taken away only as per the procedure prescribed by law. It is settled in a plethora of cases decided by the Apex Court, particularly in a landmark judgment in Maneka Gandhi v. Union of India , that any action of refusal/denial of such right guaranteed under Article 21 of the Constitution shall always be subject to following of procedure established by law which includes affording a fair opportunity of being heard.
21. In the case at hand, it can be safely opined that before passing the Impugned order, an opportunity of hearing ought to have been given to the petitioner's husband. Since the opportunity was denied to him. this Impugned order cannot be permitted to continue and accordingly, the same stands quashed.
22. However, liberty is granted to both the Union of India and the State of Nagaland to seriously enquire into the matter and on proper verification and inspection, if It Is found that the petitioner's husband Is involved in any anti-national activities that are prejudicial to the interest of the nation affecting the security and integrity of the Union of India, necessary steps be taken. It is made clear that before taking any such action against the petitioner's husband, a reasonable opportunity of hearing be afforded to him.
22A. For the reasons, observations and discussions aforesaid, this petition stands allowed. No costs.