MD. RAHIM ALI V. THE UNION OF INDIA and 4 ORS

WP(C)/4108/2016

AI Insights

The case involves two writ petitions filed by Md. Rahim Ali and Dukhu Miah @ Dukhi Ali challenging the notices issued to them by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri. The notices alleged that both petitioners had illegally entered India from Bangladesh on or after 25.03.1971 without valid documents and had been residing illegally in Assam. The petitioners contended that the notices did not contain the grounds of reference and were issued to the wrong persons. The court, after considering the submissions and relevant legal provisions, dismissed the petitions, holding that the notices were adequate and the proceedings could continue.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 724186 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 08-03-2018
• Assessment Year: misc
• Other Referred Cases: State of Assam Vs Moslem Mondal, Aysha Khatun vs Union of India
• Laws Referred To: Foreigners (Tribunals) Order, 1964, Foreigners Act, 1946
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S G I
• Assessee Lawyers: F U BORBHUIYA
• Keywords: Bangladesh; Foreigners tribunal; Illegal entry; Notice; Grounds of reference
• Section: 3(1)

Judgement Text

"Page No.# 1/12 GAHC010172072016 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 4108/2016 1:MD. RAHIM ALI S/O. LT. MUZAFAR ALI, VILL. PARERCHAR PART-II, P.S. ABHAYAPURI, DIST. BONGAIGAON ASSAM. VERSUS 1:THE UNION OF INDIA and 4 ORS REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001. 2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-781006. 3:THE DY. COMMISSIONER BONGAIGAON DIST. BONGAIGAON. 4:THE SUPDT. OF POLICE B BONGAIGAON ASSAM PIN-783380. 5:THE OFFICER-IN-CHARGE ABHAYAPURI POLICE STATION DIST. BONGAIGAON ASSAM PIN-783384 Advocate for the Petitioner : MR.F U BORBHUIYA Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/12 WP(C) 3805/2016 1:DUKHU MIAH @ DUKHI ALI S/O LT. EYASIN ALI @ IYASIN ALI VILL- DUMERGURI PART-III P.S. ABHAYAPURI DIST. BONGAIGAON ASSAM. VERSUS 1:THE UNION OF INDIA and 4 ORS REP. BY THE MINISTRY OF HOME AFFAAIRS NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI- 781006. 3:THE DEPUTY COMMISSIONER BONGIGAON DIST. BONGAIGAON 4:THE SUPERINTENDENT OF POLICE B BONGAIGAON ASSAM PIN - 783380. 5:THE OFFICER -IN-CHARGE ABHAYAPURI POLICE STATION DIST. BONGAIGAON ASSAM PIN - 783384. Advocate for the Petitioner : MR.F U BORBHUIYA Advocate for the Respondent : Page No.# 3/12 BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO ORDER Date : 08-03-2018 (Ujjal Bhuyan, J) Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. F. U. Barbhuiya, learned counsel for the petitioners in both the cases. We have also heard Mr. S. P. Choudhury, learned Govt. Advocate, Assam for the respondents. 2. Challenge made in both the writ petitions is to the notices issued to the petitioners by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) on the ground that the notices do not contain the grounds of reference. 3. At the outset, it would be apposite to briefly narrate the facts of the two cases so that the challenge is examined in the proper perspective. WP(C) No. 3805/2016:- 4. In this case, Tribunal issued notice dated 16.02.2016 to the petitioner, namely, Md. Dukhi Ali informing him that a reference was made by the Superintendent of Police (Border), Bongaigaon with the allegation that he had entered into India illegally from Bangladesh on or after 25.03.1971 without any document and since then he has been residing in Assam illegally. The reference was registered as Case No. BNGN/APR/FT 06/2016. Petitioner was called upon to submit written statement and also to adduce evidence. 5. On receipt of notice, petitioner submitted a petition before the Tribunal on 14.06.2016 stating that his name was Dukhu Miah and that his father’s name was Eyasin Ali but notice was wrongly issued to Md. Dukhi Ali, son of late Easir Ali. Therefore, prayer was made to discharge him from the proceeding as the reference was against another person. Page No.# 4/12 6. On 18.05.2016, Tribunal called for a report from the Superintendent of Police (Border), Bongaigaon regarding the actual and correct name of the petitioner and his father. Superintendent of Police (Border), Bongaigaon submitted his report to the Tribunal on 02.06.2016. As per the report, a thorough re-investigation was carried out whereafter it was confirmed that petitioner Dukhi Ali was also known as Dukhu Miah as that was his local name and that his father’s name was Easin Ali who was also known as Easir Ali. Therefore, it was concluded that Dukhu Miah and Dukhi Ali was one and the same person. 7. Faced with such report upon re-investigation, Tribunal fixed 13.06.2016 as the date for filing written statement and documents. 8. At this stage, petitioner again filed a petition before the Tribunal contending that the notice served upon him did not contain the grounds on which he was alleged to be a foreigner. It was further contended that a copy of the main grounds was required to be served upon the petitioner separately alongwith the notice. Therefore, prayer was made for furnishing a copy of main grounds and till such time to keep the reference proceeding in abeyance. 9. On 13.06.2016, Tribunal passed an order holding that in the notice itself the main ground of allegation/suspicion was mentioned that petitioner had illegally entered into India without any valid document from Bangladesh on or after 25.03.1971 and thereafter had been residing illegally in Assam. Therefore, it was held that the main ground was furnished to the petitioner in the notice itself. Consequently, the next date was fixed for submission of written statement and documents. 10. It was at that stage that petitioner Dukhu Miah @ Dukhi Ali filed the present writ petition, i.e., WP(C) No. 3805/2016. Notice in this case was issued on 23.06.2016 and an Page No.# 5/12 interim order was passed staying further proceedings in Case No. BNGN/APR/FT06/2016. WP(C) No. 4108/2016 11. Petitioner in this case is Md. Rahim Ali. This case has also followed a similar trajectory as in WP(C) No. 3805/2016. Notice in this case was issued to the petitioner by the Tribunal in connection with Case No. BNGN/APR/FT 2/27/2016 informing the petitioner that a reference was made against him by the Superintendent of Police (Border), Bongaigaon suspecting him to be a foreign national who had illegally entered into India without any document/valid proof from Bangladesh on or after 25.03.1971 and thereafter residing illegally in Assam. 12. On receipt of notice, petitioner filed a petition before the Tribunal contending that notice was served upon a wrong person. Name mentioned in the notice was Md. Abdul Rahim whereas petitioner’s name was Md. Rahim Ali. Therefore, it was prayed that petitioner should be discharged from the proceeding. 13. On 02.04.2016, Tribunal requested the Superintendent of Police (Border), Bongaigaon to cause re-investigation into the identity of the petitioner. Report was submitted on 16.06.2016. As per the report, Abdul Rahim was the colloquial name of Rahim Ali. Following a thorough re-investigation, it was held that Abdul Rahim and Rahim Ali was one and the same person. 14. On receipt of such report, Tribunal passed an order dated 16.06.2016 calling upon the petitioner to file written statement. 15. It was at that stage that petitioner again filed another petition before the Tribunal contending that a copy of the main grounds on the basis of which petitioner was alleged to be a foreigner was not served upon him. Therefore, the Tribunal was requested to furnish him Page No.# 6/12 a copy of the main grounds and till then to keep the proceedings in abeyance. 16. On 29.06.2016, Tribunal held that the notice served upon the petitioner itself contained the main grounds of suspicion against the petitioner. Therefore it was observed that petitioner was trying to delay the proceeding by filing one petition after the other, on different grounds without submitting his written statement. 05.07.2016 was fixed for filing written statement. 17. It was at that stage that petitioner approached this Court by filing the present writ petition i.e. WP(C) No. 4108/2016. This Court by order dated 23.08.2016 had issued notice and stayed further proceedings of Case No. BNGN/APR/FT-2/27/2016. 18. Submissions made by learned counsel for the parties have been considered. 19. Clause 3 (1) of the Foreigners (Tribunals) Order, 1964 reads as under:- “3. (1) The Tribunal shall serve on the person, to whom the question relates, a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in support of his case and after considering such evidence as may be produced and after hearing such persons as may desire to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of reference.” 20. In State of Assam Vs Moslem Mondal reported in 2013 (1) GLT 809, a Full Bench of this Court has held that a proceedee is entitled to a copy of the main grounds on which he or she is alleged to be a foreigner. 21. The issue raised by the petitioners was also raised in WP(C) No. 2613/2016 (Aysha Khatun vs Union of India), decided on 03.10.2016. This Court held as follows:- “Firstly, a notice is given to the noticee to make her aware of the proceeding registered against her, in this case, a proceeding under the Foreigners' Act, 1946. Page No.# 7/12 Though under Clause 3(1) of the Foreigners' (Tribunals) Order, 1964, it is mentioned that the show cause notice should be accompanied by a copy of the main grounds on which the allegation had been made, it is open to the Foreigners' Tribunal to endorse a remark or to mention in the show cause notice itself the reason for issuing the show cause notice. The use of the expression “copy of the main grounds” as appearing in Clause 3(1) should be understood to mean disclosure of the ground(s) in the show cause notice. As pointed out above, these grounds can be incorporated in the show cause notice itself as those need not be elaborate. After all, the objective of issuing notice is to inform the noticee before hand about registration of the proceeding. Reverting to the facts of the present case, it has already been noticed that in the show cause notice, it was mentioned that as per reference of the Superintendent of Police, Bongaigaon petitioner was suspected to be a foreigner having illegally entered into India/Assam from East Pakistan/Bangladesh whereafter the reference was registered. This itself is the ground for issuance of the show cause notice. Secondly, it is evident that no prejudice has been caused to the petitioner by alleged non-furnishing of a copy of the grounds. Petitioner had filed the written statement along with documents way back on 19.10.2013 taking the stand as indicated above. Almost three years thereafter the related petition was filed by the petitioner alleging non-furnishing of copy of grounds and seeking a copy of the same, which was rejected by the Tribunal. From the above, it is more than evident that petitioner was in no way prejudiced by non-furnishing of a separate copy of the grounds. If the petitioner is not prejudiced, which is to be demonstrated by way of pleadings which is absent in the present case, the Court would not intervene in a pending proceeding before the Tribunal in exercise of its writ jurisdiction under Article 226 of the Constitution of India. A mere procedural lapse would not give rise to any cause of action to a proceedee facing a proceeding before the Foreigners' Tribunal under the Foreigners' Act, 1946 to move the writ court at an interlocutory stage. The writ court would certainly apply the test of prejudice and if it finds that petitioner has not suffered any prejudice, no interference would be called for and certainly not at an interlocutory stage. Infact, not to speak of prejudice being caused to the petitioner, petitioner herself has stated in the writ petition that this was an idea introduced to her by her new counsel and as advised by him, she had raised this issue at this belated stage. Furthermore, question of framing a preliminary issue on this point does not arise as the Tribunal is not adjudicating a suit; it is a proceeding where opinion of the Tribunal is sought for following a summary proceeding. On a thorough consideration of the matter, we do not find any good reason to interfere with the pending proceeding at this stage. Writ petition is dismissed.” 22. Thus this Court held that though Clause 3 (1) of the Foreigners (Tribunals) Order, 1964 provides that a copy of the main grounds on which the allegation has been made is to be served upon the proceedee, it is open to a Foreigners Tribunal to endorse a remark or to mention in the show-cause notice itself the reasons or grounds for issuing the show-cause notice. The use of the expression “copy of the main grounds” as appearing in Page No.# 8/12 Clause 3(1) should be understood to mean disclosure of the grounds in the show-cause notice itself as the grounds need not be elaborate. It was observed that the objective of issuing notice to a proceedee is to inform him before hand about registration of a proceeding against him before the Foreigners Tribunal. In Aysha Khatun (supra) it was held that mentioning in the notice that the noticee was suspected to be a foreigner having illegally entered into India (Assam) from Pakistan or Bangladesh itself would be substantial compliance to the requirement of Clause 3 (1) of the Foreigners (Tribunals) Order, 1964. No prejudice was caused to the noticee thereby. It is not that notice of a Foreigners Tribunal is de hors any enquiry preceeding the making of reference. In such enquiry, the suspect is required to produce documentary proof of his Indian citizenship and only upon his failure to satisfy the enquiry officer, the reference is made. 23. In Aysha Khatun (supra) this Court also held that a Writ Court exercising jurisdiction under Article 226 of the Constitution of India would not interfere in a pending proceeding before the Foreigners Tribunal at an interlocutory stage. 24. At this stage, we may pose a question as to what is a notice or what do we mean by notice. In Aysha Khatun (supra) this Court has held that a notice is given to the noticee to make him/her aware of the proceeding registered against the noticee under the Foreigners Act, 1946 read with the Foreigners (Tribunal) Order, 1964. 25. According to the Black’s Law Dictionary, 6th Education, notice in its legal sense is information concerning a fact, actually communicated to a person by an authorized person, or actually derived by him from a proper source, and is regarded in law as \"actual\" when the person sought to be affected by it knows thereby of the existence of the particular fact in question. It is knowledge of facts which would naturally lead an honest and prudent person to make inquiry, and does not necessarily mean knowledge of all the facts. In another sense, “notice” means information, an advice or written warning, in more or less formal shape intended to apprise a person of some proceeding in which his interests are involved or Page No.# 9/12 informing him of some fact which it is his right to know and the duty of the notifying party to communicate. 26. The term “notice” has also received the attention of the Supreme Court. In Anandji Haridas and Company (P) Ltd. vs S.P. Kasture reported in AIR 1968 SC 565 wherein issuance of notice by the assessing officer under the Income Tax Act, 1922 was challenged on the ground that there were certain mistakes in the notice i.e., adequate time was not given as per rules. In that context Supreme Court observed that appellants were merely trying to take advantage of the mistakes that had crept into the notices and that they could not be permitted to do so. Supreme Court referred to the earlier decision of the Federal Court in Chatturam Vs CIT reported in (1947) 15 ITR 302 in which it was held that any irregularity in issuing a notice under Section 22 of the Income Tax Act, 1922 did not vitiate the proceeding. 27. In Commissioner of Sales Tax Vs Subhash & Co reported in (2003) 3 SCC 454 which was a matter regarding reassessment of the dealers for certain assessment periods under the MP General Sales Tax, 1958 on the ground that the notices as well as the orders of re-assessment and original assessment were not served upon the dealers. In this context, Supreme Court referred to various definition of the term “notice” given in various dictionaries as under:- “ 15. The term \"notice\" is originated from the Latin word \"notifia\" which means \"a being known\" or a knowing is wide enough in legal circle to include a plaint filed in a suit. \"Notice\" has been defined in various Judicial Dictionaries and Dictionaries as follows : The Judicial Dictionary, Words and Phrases Judicially Interpreted, 2nd Edition by F. Stroud (P.1299) Notice is a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred.\" Webster’s Universal College Dictionary, 1997 Edn., (P. 543) Information, warning or announcement of something impending; notification; to give notice of one's intentions; a written or printed statement conveying such information or warning; as for renting or employment, that the agreement will terminate on a specified date. \"She gave her employer two weeks' notice.\" Oxford Concise Dictionary : Page No.# 10/12 an intimation; intelligence, warning\" and has the meaning in the expression like \"give notice\", \"have notice\" or \"formal intimation of something or instruction to do something\" and has the expression like \"notice to quit\", \"till further notice\". Chamber’s 20th Century Dictionary, 1993 (P.1154) intimation; announcement; information; warning; a writing; placard, etc; conveying an intimation or warning; time allowed for preparation, etc.\" Chamber’s Dictionary vide Allied Chambers (India) Ltd., Reprint 1994, 1995 (P.1154) intimation; announcement; a formal announcement made by one of the parties to a contract of his or her intention to terminate that contract; information, especially about a future event; warning; a writing; placard, board, etc. conveying an intimation or warning; time allowed for preparation; cognizance; observation; heed; mention; a dramatic or artistic review; civility or respectful treatment; a notion, etc. Law Lexicon Dictionary-A Legal Dictionary of Legal Terms and Phrases Judicially Defined, 4th Edn. Vol.II, 1989 (P.226) A person is said to have notice' of a fact, when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The Law Lexicon Dictionary, 2nd Edn, 1997 (P.1322) (1) Intimation; a writing; placard, board, etc. conveying an intimation or warning (section 154, IPC and Article 61(2)(a), Constitution of India); (2) Knowledge or cognizance.(Section 56, Indian Evidence Act).” 28. After referring to the various dictionary definitions of the term notice, Supreme Court summarized as under:- “16. \"Notice\", in its legal sense, may be defined as information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states: Co. Lit 309 Tomlin's Law Dictionary 17. Notice is making something known, of what a man was or might be ignorant of before. And it produces diverse effects, for, by it, the party who gives the same shall have same benefit, which otherwise he should not have had; the party to whom the notice is given is made subject to some action or charge, that otherwise he had not been liable to; and his estate in danger of prejudice. 18. Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred.\" (Per Parke, B. Burgh v Legge) 19. The Dictionary gives some other definitions of \"Notice\" as: - The legal instrumentality by which knowledge is conveyed, or by which one is charged with knowledge. Page No.# 11/12 - The term \"notice\" in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact. - In its popular sense, \"notice\" is equivalent to information intelligence, or knowledge.” 29. Therefore, on a thorough consideration of the matter, we have no hesitation in our mind to hold that petitioners in both the cases had due notice of the nature of proceeding registered against them before the Tribunal and what were the main ground(s) on which the allegation was made because those were mentioned in the notices itself. Moreover, we also feel that both the petitioners are trying to confuse and delay the proceedings by taking up one untenable ground after the other which cannot be appreciated. 30. Consequently, we do not find any merit in the writ petitions which are accordingly dismissed. 31. Petitioners shall now appear before the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri in connection with Case No. BNGN/APR/FT06/2016 and Case No. BNGN/APR/FT- 27/2016 respectively alongwith their written statements on 24.04.2018 at 10:30 a.m. whereafter the Tribunal shall proceed with the two references in accordance with law and conclude the same within a period of 60 (sixty) days from the date of such appearance. No further interim application shall be entertained. 32. Needless to say, if there is any default on the part of the petitioners henceforth, Tribunal would be at liberty to pass such order(s) as may be deemed fit and proper. 33. Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case. 34. Writ petition is disposed of. Page No.# 12/12 35. Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful. 36. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC. JUDGE JUDGE Comparing Assistant "