Dismissed

P.Hyder Ali v. the Additional District Magistrate

Kerala HC23 Dec 2022WP(C)/36155/2022

Case brief

AI extract

What is this about?

Petitioner sought writ against cancellation of religious scholar's entry permit and forced eviction due to alleged fraud in stating purpose. Court found cancellation without hearing illegal but dismissed petition as permit holder failed to challenge his own expulsion.

What did the court decide?

Writ petition closed with observations that authorities must fill CEO vacancy and refrain from high-handed action.

P.Hyder Ali Vs the Additional District… — Constitutional and Fundamental Rights | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 23^RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 WP(C) NO. 36155 OF 2022

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PETITIONER/S:

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P.HYDER ALI AGED 66 YEARS PALLIPURA HOUSE, AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP., PIN - 682553 BY ADVS. P.K.IBRAHIM SREEJI K.B.

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RESPONDENT/S:

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1 THE ADDITIONAL DISTRICT MAGISTRATE KAVARATHY UNION TERRITORY OF LAKSHADWEEP. PIN - 682552 2 THE STATION HOUSE OFFICER IN CHARGE AGATTI POLICE STATION UNION TERRITORY OF LAKSHADWEEP-682 553. PIN - 682553 BY ADV Sajith Kumar V.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 23^rd day of December, 2022

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Petitioner is the Secretary of the Izzathul Islam Juma Masjid Committee, Agatti, Lakshadweep, which is in administration of a Juma Masjid and Madrasa attached to it. The Committee occasionally brings religious scholars from the mainland for leading the prayers in the Masjid and for imparting religious education to the children in the Madrassa. The entry of religious scholars to Lakshadweep is governed by Ext.P1 order dated 03.02.2015. As per the procedure prescribed in Ext.P1, the sponsor has to apply to the Additional District Magistrate and produce a letter issued by the Chief Executive Officer, Lakshadweep State Wakf Board, recommending the application. The post of Chief Executive Officer, Lakshadweep State Wakf Board is lying vacant

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after the retirement of the last incumbent. As a

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result, it is impossible to bring religious scholars to the islands, in accordance with the procedure prescribed in Ext.P1.

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The petitioner submitted an application for entry pass to K.M.Fasalul Haq, a renowned religious scholar from the mainland, to officiate as Imam and Teacher in the Madrasa vide application dated 12.07.2022. In the application, the petitioner had shown the purpose of visit as skilled/semi-skilled labourer, as it was impossible to obtain an entry pass showing the prupose of visit as Imam and teacher. Based on the application, K.M.Fasalul Haq was granted Ext.P4 entry permit, valid for the period 10.08.2022 to 04.01.2023. He arrived at Agatti Island on 14.08.2022 and got engaged in his activity as Imam and teacher. While so, on 08.11.2022, the police handed over a copy of the entry permit, containing an endorsement that the

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permit is cancelled as per the direction of the

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competent authority. On coming to know about Ext.P5, the petitioner addressed Ext.P6 letter to the second respondent stating that K.M. Fasalul

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Haq was being forced to leave Agatti without disclosing any reason, which is against the prescribed procedure and would tarnish the reputation of the permit holder. A similar letter

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was addressed to the first respondent also (Ext.P7). The writ petition was filed at a stage when the permit holder was being compelled to leave Agatti, without considering Exts.P6 and P7.

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Adv.P.K.Ibrahim, learned Counsel for the

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petitioner contended that, cancellation of Ext.P4 permit is in violation of the principles of the natural justice as also Articles 14, 19(1)(a), 21, 25 and 26 of the Constitution of India.

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Moreover, the entry permit was cancelled and K.M.Fasalul Haq forced to leave Agatti without

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following the procedure prescribed in the Laccadive Minicoy and Amindivi Islands (Restrictions on Entry and Residence) Rules, 1967 ('the Rules'). Specific reference is made to the proviso to Rule 9(1), as per which no order cancelling a permit under Rule 9(1) (b) and (c) shall be passed without giving the holder of the permit a reasonable opportunity to represent his case. Attention is also drawn to Rule 9(2) which mandates that, on cancellation of the permit, the competent authority should forward a copy of the order of cancellation, along with a brief statement of the reasons therefore, to the holder of the permit. It is contended that the permit holder was neither granted an opportunity of hearing before cancellation nor was a copy of the order of cancellation, along with statement of reasons forwarded to him. Instead, a copy of Ext.P5 with an endorsement that the permit is cancelled was handed over and the permit holder

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asked to leave immediately.

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Learned Counsel contended that, as per Rule 10(1), the permit holder has a right to prefer an appeal to the Administrator against cancellation of permit. Rule 11(1) provides the permit holder, the right to stay in the island till the appeal is filed and, if the appeal is filed within time, to continue his residence in the island till the appeal is decided. By forcing K.M.Fasalul Haq to leave the island, his right to continue in the island till the appeal is decided, is also taken away.

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Adv.Sajith Kumar V., learned Standing

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Counsel for Lakshadweep Administration contended that the writ petition is not maintainable as none of petitioner's fundamental rights are affected. The permit holder, who alone can claim to be aggrieved by cancellation of the permit has

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not chosen to challenge the cancellation. Moreover, the order being appealable, the

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petitioner ought to have exhausted the

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alternative remedy before rushing to this Court.

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On merits, it is contended that K.M.Fasalul Haq, a religious scholar, was brought to the island by misrepresenting that he is a skilled/semi-skilled labourer. The SHO/second respondent, on verification of the permit, found that the permit was obtained by fraud. Thereupon, K.M.Fasalul Haq was informed that his permit is illegal and he has no right to stay in the islands. However, before formal order canceling the permit could be issued, K.M.Fasalul Haq left the island fearing coercive action. The respondents did not force the permit holder to leave the island. On the contrary, the permit holder left Agatti before a detailed order cancelling the permit could be issued.

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In reply, Counsel for the petitioner

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contended that the rules does not contemplate cancellation of permit by making an endorsement

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on the permit itself. Therefore, even if any illegality in relation to the permit is found, the permit could have been cancelled only after affording an opportunity of hearing to the permit holder. It is submitted that K.M.Fasalul Haq was issued with a travel ticket at the intervention of the second respondent and it was at the second respondent's instance that the permit holder left the islands immediately. It is submitted that the petitioner had to bring the religious scholar, showing him to be a skilled/semi-skilled labourer since it was impossible to bring a religious scholar to the island in the absence of Chief Executive Officer for the State Wakf Board. It is submitted that this Court should direct the Lakshadweep Administrator should take emergent measures for filling up the post of Chief Executive Officer, Lakshadweep State Wakf Board.

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In order to answer the contention that the entry permit issued to K.M.Fasalul Haq was

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cancelled illegally, it is essential to read Rule

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9, 10 and 11 of the Rules extracted hereunder;

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“ Rule 9 – Cancellation of permits .

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(1) The competent authority may, cancel a permit if Cancellation

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(a) the holder thereof has been convinced of an offence under these rules, or

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(b) The holder thereof has, in the opinion of the competent authority, acted or conducted himself in a manner prejudicial to the interests of the general public or of any Schedule Tribe in the island or in a manner which is likely to disturb the peace and tranquility in the island,

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(c) Any material fact which by itself, would have afforded sufficient ground for refusal to issue the permit under these rules comes to light after the issue of the permit.

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Provided that no order shall be passed under clause (b) or clause (c) without giving the holder of the permit a reasonable opportunity to represent his case.

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(2) On cancellation of a permit under sub rule (1), the competent authority shall forward to the holder thereof of the order of cancellation, together with a brief a copy of

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statement of the reasons therefore.

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Rule 10 – Appeals

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10(1) Any person whose application under sub rule 5 or rule 6 Appeals if rejected under rule 7, or whose permit is cancelled under rule 9 may prefer an appeal to the Administrator

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(2) An appeal under sub-rule (1) shall be in the form of a memorandum signed by the appellant and shall be accompanied by a certified copy of the order appealed against.

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(3) No appeal shall be preferred under this rule, the expiry of thirty days from the date of receipt of the order appealed against

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(4) Where an appeal is preferred under this, rule, the Administrator shall, after making such inquiry as he may deem necessary and after giving the appellant a reasonable opportunity to represent his case, confirm, very or cancel the order appealed against.

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Rule 11- Stay in islands of a holder of a

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permit pending his appeal under Rule 10 .

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(1) Any person whose application for renewal of his permit Stay in under rule 6 has been rejected or whose application for replacement of his permit by a fresh permit under rule 5 read with the proviso to rule 6 has been rejected or whose permit has been

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cancelled, may continue to reside in any island in respect of which the permit (hereinafter referred to as the existing permit) so sought 10 to be renewed or replaced or so cancelled was endorsed.

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(a) Until the expiry of the period within which an appeal may be preferred under rule 10 against such rejection or cancellation;

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(b) If such appeal has been preferred within the said period, until the disposal of such appeal.

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(2) The holder of an existing permit who intends to avail himself of the revisions of sub rule (1) and continue to reside in any island in respect which such permit was endorsed shall:

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(a) Within seven days of the date of communication to him of the order rejecting his application for renewal or replacement by a fresh permit of his existing permit, or canceling his existing permit, present his existing permit to the nearest Registration Officer who shall record there on the holder's intention to reside in the islands under sub-rule (1) and,

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(b) If he prefers an appeal against such order under rule 10, present within seven days thereafter, his existing permit to the

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nearest Registration Officer who shall after satisfying himself that such appeal was preferred, make on such permit an entry to that effect.

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(3) The holder of an existing permit shall leave the islands:

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(a) If no appeal has been preferred by him against the order rejecting his application for renewal or replacement of such permit, or as the case may be, against the order canceling such permit upon the expiration of the period prescribed for such appeal, or

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(b) If such appeal has been referred but the order appealed against has been confirmed, within such period as may be specified on the order of confirmation.

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(4) Before leaving the islands in accordance with the provision of sub-rule(3), the holder of an existing permit shall surrender such permit to the nearest Registration Officer or to the Officer in charge of the nearest police station or to such other Officer as may be specified by the Administrator in this behalf and upon such surrender, such officer shall record on the permit the date and time of the departure of the holder from the islands and also issue a certificate to the person surrendering it in

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Form V.”

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A close scrutiny of Rule 9 shows that

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the competent authority can cancel a permit if any material fact, which by itself would have afforded sufficient ground for refusal to issue the permit, comes to light after issue of the permit. As per Rule 5, the application for issue of permit has to be submitted in Form 1. A perusal of Ext.P5 shows that the purpose of visit of K.M.Fasalul Haq was shown as skilled/semiskilled labour and he was issued with permit accordingly. Insofar as the purpose of visit of K.M.Fasalul Haq was to function as teacher and Imam, the permit was obtained by furnishing wrong information, which, by itself is sufficient to cancel the permit. Be that as it may, it is pertinent to note that, as per the proviso to Rule 9(1), no order cancelling a permit under Rule 9(1)(b) or 9(1)(c) can be passed without giving the holder of the permit a reasonable

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opportunity to represent his case. Even the respondents have no case that K.M.Fasalul Haq was heard before cancelling his permit. In that view of the matter, cancellation of the permit is illegal.

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As per Clause 11(2), the permit holder has the right to file appeal against cancellation of the permit and if the appeal is filed within seven days of communication of the order of cancellation, the permit holder should be allowed to continue residence in the islands till the appeal is decided. The respondents have no case that a copy of the order cancelling the permit was communicated to the permit holder. On the other hand, the contention is that the permit holder had left the island before the order could be communicated. In answer, the petitioner contends that the permit holder was forced to leave the island by the second respondent before he could file the appeal. In my opinion, the

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question as to whether the permit holder had left voluntarily or was forced to leave cannot be decided in a writ petition filed by the sponsor. If the permit holder is aggrieved by the cancellation of his permit and forceful eviction from the island, it is for him to assail the proceedings. The permit holder having failed to raise any such challenge, this Court will not be justified in deciding the legality of the proceedings in this writ petition. Needless to say, the respondents are bound to act in strict compliance of the rules and should refrain from resorting to high handed action, as was adopted in the case of K.M.Fasalul Haq. I also find merit in the submission that failure of the authorities to fill up the vacancy of Chief Executive Officer of the Lakshadweep State Wakf Board has made it impossible for the islanders to bring religious scholars and teachers to the island. This is an aspect which the respondents are bound to bring

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to the notice of the Lakshadweep Administration.

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The petitioner can also take up the issue with the administration. In such event, the Lakshadweep Administration shall do the needful without delay.

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In the result, the writ petition is closed, with the above observations.

Sd/-

V.G.ARUN JUDGE

Scl/

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APPENDIX OF WP(C) 36155/2022

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PETITIONER EXHI	BITS
Exhibit-P1	TRUE COPY OF THE ORDER DATED 03.02.2015 ISSUED BY THE DIRECTOR, GENERAL ADMINISTRATOR, AND PROTOCOL WITH THE PRIOR APPROVAL OF THE ADMINISTRATOR OF THE LAKSHADWEEP ADMINISTRATION
Exhibit-P2	TRUE COPY OF THE PRINT OUT OF THE COMMUNICATION RECEIVED FROM THE OFFICE OF THE 1ST RESPONDENT
Exhibit-P3	TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 13.07.2022 ISSUED BY THE VILLAGE (DWEEP) PANCHAYAT
Exhibit-P4	TRUE COPY OF THE ENTRY PERMIT DATED 10.08.2022 ISSUED BY THE 1ST RESPONDENT
Exhibit-P5	TRUE COPY OF THE PERMIT CANCELLATION ORDER ENDORSING IT IN THE ENTRY PERMIT OF MR. FASALUL HAQ
Exhibit-P6	TRUE COPY OF THE SAID REPRESENTATION DATED 08.11.2022 SUBMITTED BEFORE THE 2ND RESPONDENT
Exhibit-P7	TRUE COPY OF THE SAID PETITION DATED 08.11.2022 ADDRESSED TO THE 1ST RESPONDENT
Exhibit-P8	True copy of the said request F.No.01/07/2022-IIJMCA dated 26.06.2022 made to the Chairperson, Village Dweep Panchayath
Exhibit-P9	True copy of this communication F.No.2/1/2022-VDP (Agt) dated 02.08.2022
Exhibit-P10	TRUE COPY OF THE AFFIDAVIT SWORN TO BY MR.FASALUL HAQ ON 25.11.2022
Exhibit-P11	TRUE COPY OF THE REPLY DATED 07.12.2022 RECEIVED IN RTI

P.Hyder Ali v. the Additional District Magistrate

Case brief

What is this about?

What did the court decide?

P.Hyder Ali v. the Additional District Magistrate

Case brief

What is this about?

What did the court decide?

What the court decided

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