Mr. R.M. Tufail vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 964 Del

JUDGMENT

S. Mukerjee, J.

1. The petitioner a practicing advocate of this Court had filed a writ petition Crl.W.P. No. 266/2000 on 18.4.2000 seeking a Writ of Mandamus directing the respondents to quash LOC status of the petitioner, and to allow him to attend the then on-going 56th Session of the UN Commission on Human Rights in Geneva, Switzerland, and further praying that the respondents be directed to pay the damages for the physical and mental harassment and humiliation caused to him by the conduct of the respondent's officials.

2. In brief the factual background is that on 9.4.2000 the petitioner though having a valid ticket and passport for attending the Conference being the 56th Session of UN Commission on Human Rights Scheduled to be held in Geneva between 20th March to 28th April, 2000, was stopped from Boarding the KLM Flight to Geneva from IGI Airport, New Delhi and he was informed that he was being so restrained on account of the LOC status.

3. The petitioner in this background filed Criminal Writ Petition NO. 226/2000 challenging his categorisation by way of LOC status, which writ petition was disposed of on 17.5.2002 by a Division Bench of this Court after taking note of the fact that the writ petition had become infructuous on account of the maximum time period applicable to such administrative orders regarding LOC status, having lapsed.

4. During pendency of the said other writ petition, the Regional Passport Officer issued a show cause notice dated 25.5.2000 calling upon the petitioner why his passport should not be impounded under Section 10(3) of the Passport Act, 1967. Petitioner thereupon filed second Criminal Writ Petition bearing No. 473/2000 praying therein a direction to recall the said show cause notice.

5. The said second Criminal Writ Petition No. 473/2000 was withdrawn by the petitioner on account of what the petitioner submits, was his desire to approach the Passport Authority by filing reply.

6. Respondent issued another show cause notice dated 31.10.2001 whereby the petitioner was again asked to show cause as to why his passport not be impounded or revoked under Section 10(3)(c) of Passport Act.

7. Petitioner has now preferred this third in the series of writ petitions on 15.4.2002 after filing a reply and after writing a letter dated 15.1.2002 requesting for the fate of his passport, and upon being informed on 4.2.2002 that the matter was still under consideration of the Government. Prayer made in the petition is to issue direction to recall notice dated 31.10.2001 by which it is proposed to impound the passport.

8. It is the admitted position of both parties that till date no decision has been taken on the show cause notice dated 31.10.2001. The grievance of the petitioner is that the show cause notice dated 31.10.2001, is simply an amorphous mass of references to various Court pleadings in the form of counter affidavit dated 12.7.2000, additional affidavit dated 9.10.2000 and yet another additional affidavit dated 13.9.2000, contents of all three of which have been treated to be a part of show cause notice, and gist of the allegations made therein is stated as constituting the basis of the action proposed in the show cause notice.

9. It is not disputed by Shri P.N. Lekhi, learned Senior counsel for the petitioner that there does exist jurisdiction in the Authorities concerned to issue the show cause notice. However, that course of action according to him has to be based on the record and not by referential incorporation of various affidavits filed in a case then pending being Criminal Writ No. 226/2000.

10. The supplementary submission being advanced by said leaned Senior Counsel, is that Criminal Writ Petition No. 226/2000 having being decided in favor of the petitioner on 17.5.2002, thereupon it would follow according to him, that all those contents have been rejected by the Court and as such it amounts to the consequential rendering of the show cause notice itself to be of no relevance at all.

11. We have heard Shri P.N. Lekhi, learned Senior counsel for the petitioner and Shri Harish Salve, Solicitor General appearing on behalf of the respondents at some length. Having considered the matter in the totality of facets argued before us by both parties, we do not find any good ground warranting interference under Article 226 of the Constitution of India, and we indicate our reasons for the same hereinbelow all the while being conscious of the most crucial aspect that the final decision on the show cause notice has yet to be taken by the Competent Authority, and therefore, while considering the submissions and contentions of the parties in relation to the challenge at show cause stage, one of our main concerns has to be that no prejudice should arise or result in relation to the final decision by the Competent Authority for which we propose to issue certain directions in the concluding portion of this judgment.

12. Learned Senior Counsel for the petitioner has rightly and fairly conveyed that he is not objecting to the jurisdiction to issue show cause notice dated 31.10.2001. Even if such a challenge was attempted, the same would have been clearly misconceived.

13. The only two contentions seriously pressed by learned Senior counsel for the petitioner, are regarding the incorporation by reference of various counter affidavits and additional affidavits as a part of the show cause notice dated 31.10.2001, as well as the effect of the final decision of that writ petition Criminal Writ Petition No. 226/2000 which petitioner contends has gone in his favor.

14. The other aspect is regarding the overall delay or dragging of the feet by the Authorities in taking a final decision on a matter involving petitioner's passport and right to travel abroad which according to the petitioner are his valuable fundamental rights, and that too on the basis of amorphous material incorporated from the pleadings of a concluded case.

15. While it is desirable that a show cause notice should be a self-contained document spelling out the case to be met, however in our view there can be no inherent infirmity in a show cause notice referring to and incorporating certain contents from accompanying documents, viz. counter affidavits/additional affidavit as in the present case or any other type of referred document. So long as the petitioner has received the complete text of the counter and additional affidavits, there would be no illegality or infirmity in the contents thereof being sought to be treated as a part of the show cause and/or the gist of the allegations made in those counter/additional affidavits, to be constituting the basis of the actions proposed against the petitioner.

16. We have gone through the counter affidavit dated 12.7.2000. In our view amongst other contents, the following averments made in the said counter affidavit could very well constitute the basis of initiation of action by way of show cause notice under Section 10(3) of the Passport Act, which reads:-

3. "It is submitted that the expatriate 'Kashmiri secessionist leaders based in and operating from different countries including Pakistan, USA and UK, have been getting the Hurriyat leaders and other representatives sponsored for various conferences outside India by different organisations active in various countries, and such opportunities are used by All Party Huriyat Conference for carrying out anti-India campaign. The petitioner was sponsored by one of such organisation, namely International Islamic Federation of Student Organisation (IIFSO), which is a representative body of Muslim Student Organisations."

"4. In the instant case, the petitioner and others were going to attend the Human Rights Conference in Geneva as representatives of the All Party Hurriyat Conference. All Party Hurriyat Conference has been highlighting the alleged 'forceable and fraudulent occupation' of Jammu & Kashmir by India and also distorting the present scenario in J & K by mis-representing facts of alleged human rights violations to influence the Governments in different countries and the world opinion to further their aim of achieving the right of self-determination. The petitioner had himself indulged in an anti-India campaign in 1966 when he went abroad for an HR Conference".

17. Similarly, in relation to the additional affidavits dated 9.10.2000 and 13.9.2000 (of which date there are two affidavits one claiming privilege and the other sought to be incorporated as a part of the show cause notice), some of the contents are extracted below for convenience of reference, which reads:-

"That the State of Jammu & Kashmir is an integral part of India both in terms of the Constitution of India as well as Constitution of Jammu & Kashmir, the Constitution of J&K, was framed by the Constituent Assembly elected by the People of J&K.

That All Party Hurriyat Conference (APHC) or the Kul Jammat Hurriyat Conference (KJHC) is a conglomerate of around 35 various political, social, separatist, professional and trade union groups. The ISI and other pro-Pakistan elements were mainly behind the formation of this outfit.

That the main objective of APHC was to bring all political and social organisations in the Valley on to a common platform with the intention of working for the 'Liberation of Kashmir from India' -- leaving the issue of its association with Pakistant or Independence, to be decided by the people at a later date. The other aims and objectives of the APHC were as under:-

(a) Make India accept the status of Kashmir as a disputed territory, and include Pakistan and Kashmir as important parties in seeking a solution to the problem.

(b) project before the International Community the so called on-going 'freedom movement' in Kashmir andd thereby internationalise the issue.

It is respectfully submitted that in order to achieve its objectives, it has tried everything possible by way of preaching the so called right of self-determination, issuance of hartal Calls etc to disrupt the Parliamentary and Assembly Elections in J&K, calling upon the people as well as the employees to desist from participation in democratic process etc. The Government have taken all possible steps to control andcurb such activities as per law, including detention of some of the top APHC leaders. The intelligence reports seemed to suggest that the support base of APHC was diminishing and also the internal differences had surfaced within APHC. Thus no action was considered appropriate by way of a ban under the Unlawful Activities (Prevention) Act 1967. The imposition of the ban is resorted to only when it lads to positive results. Sometimes, it is advisable to deal with such problem administratively rather than by imposing a ban as aforesaid.

That APHC have also tried and are trying to internationalise the Kashmir issue by making attempts to go abroad for participating in various Conferences like, the UN General Assembly, UN Human Rights Conference, Organisation of Islamic Countries, Commonwealth Heads of governments Conference etc., with a view to raise the Kashmir issue, in a distorted manner specifically the question of self determination, Human Rights etc. The propaganda of these organisations is invariably in a manner inconsistent with the sovereignty of India.

That it has been the endeavor of the Government to ensure that APHC leaders and other related individuals are not be allowed to go abroad particularly when they would have an opportunity to internationalise the Kashmir issue, since their basic objective is to present India as having forcibly fraudulently occupied Jammu & Kashmir.

It is respectfully submitted that Government remains steadfast in it resolve to defeat Pakistan's state sponsored cross border terrorism in J&K [and elsewhere in India], and in this context, Government continues to take all necessary measures/steps which are required to preserve the security and territorial integrity of the Country. It is the declared policy of the Government of India not to permit third party intervention, of whatever nature, in India-Pakistan bilateral affairs.

It is respectfully submitted that the government has acted bonafide in doing so. In 1988 when the Government did not have an apprehension of the petitioner participating in any such activity, the Petitioner was not stopped from visiting UK. The very fact that he has been visiting foreign countries in the past, despite coming to the notice of the Government for his involvement in anti-India propaganda, proves that Government is not acting in a haste and actions are taken by due application of mind and only when they are strictly necessary. He was stopped on 9.4.2000 because he was not going there as an Individual, but as a representative of APHC for promoting their cause."

18. In view of the above averments which are specific averments which do require an explanation from the petitioner specifically denying the factual basis and/or the inferences either in their totality or in relation to any part which is being disputed by the petitioner.

19. We therefore find no merit in the submission of the learned Senior Counsel for the petitioner that the show cause notice is amorphous or vague.

20. As regards the related submissions made on the point of Criminal Writ No. 226/2000 having been decided, we note that in the said order finally disposing of the criminal writ petition, there is no adjudication or decision in regard the merits of the contentions of the rival parties. The said petition was disposed of only on short ground that it had become infructuous on the lapsing of the time period prescribed for validity of administrative directions regarding LOC status.

21. In this connection it may be noted that by virtue of The Passport (Amendment) Second Ordinance 2001 Act, LOCs which had been issued earlier, would continue to operate as a deemed order under Section 10A(1) of the Act for a period of three months from the date of Ordinance viz. 23.10.2001 which period having got over on 23.1.2002, the Division Bench before whom Criminal Writ No. 226/2000 came up on 17.5.2002 felt that the writ petition had become infructuous with the lapsing of the LOC direction, and thereupon the said writ petition was disposed of as infructuous. In our view such an order can never have the effect of rendering nugatory the contents of the counter affidavit and the two additional affidavits which had been filed in that case by the respondent, and which are sought to be incorporated as a part of the show cause notice, as constituting the basis of the proposed action against the petitioner.

22. As regards the grievance of the petitioner regarding the long time taken and delay in taking a final decision on the impugned show cause notice issued in relation to the petitioner, we are certainly impressed with one aspect of this submission viz. that in such matters which involve valuable rights of the petitioner such right to passport and to travel abroad or the right to participate in International Conference, a duty would certainly stand cast upon the authorities to take a decision within a reasonable time.

23. In this case, even leaving aside the aspect of the earlier show cause notice/order being recalled, at least from October 2001 till date, much more than sufficient time has been allowed to lapse.

24. It would have been appropriate, rather incumbent as a duty, for the respondents to have decided the matter with due expedition. Shri Salve, learned Solicitor General has taken us through the various responses filed by the petitioner and also emphasised the aspect that in such an important matter, the Government could not have taken an ex parte or expedited decision in the face of the evasive stand adopted by the petitioner, who has not come out with the clear cut explanation in relation to the specific averments which stood incorporated into reference into the impugned show cause notice.

25. According to him the Government was extending opportunity repeatedly to the petitioner lest the petitioner have any grievance on the technical aspect of denial of due opportunity. We are conscious that there would be cases where the petitioners would try to push the authorities into a situation where there is a technical flaw left in the orders to be passed presumably for improving their chances in the event of challenge being necessary before the Courts. However, the competent authorities of the respondents, who are vested with the powers under the Passport Act have to be vigilant and have to consider themselves duty bound to decide all such matters expeditiously. In fact in relation to matters concerning passport etc. even telegraphic intimations or speed post communications could be sent at short intervals of one week or less to ensure that a final decision gets taken expeditiously and preferably within a period of one month and so of the issuance of show cause notice.

26. Be that as it may, we are not inclined to issue the directions prayed for but considering the facts & circumstances of the case at this stage we consider it appropriate to issue certain directions to ensure that the matter is atleast now heard and final decision taken at the earliest. Accordingly, while declining the prayer made by the petitioner for quashing the show cause notice dated 31.10.2001, we dispose of this petition with the direction that the petitioner will get one last and further opportunity to submit any and all of his explanations/comments to the show cause notice dated 31.10.2001 including the contents adopted by reference, some of which have been extracted by us hereinabove in out judgment. For this purpose if the petitioner requires any inspection or documents/record etc. (and which can be granted to him and which is not of privilege nature), the same would be provided within a period of 15 days thereafter. Thereafter, the petitioner will be conveyed a date of personal hearing. He will not be entitled to more than one further adjournment for the said purpose. After the hearing is completed, the competent authority will take a final decision in the matter and convey it to the petitioner within a period of three weeks thereafter. The competent authority in the respondent - Department is directed to take a final decision on the show cause notice dated 31.10.2001 in terms of the directions issued by us hereinabove, but uninfluenced by any observations which we have made reflecting upon or concerning the merits of the matter.

27. Writ petition stands disposed of but with no order as to costs.