Mohammad Sediq vs Union Of India (Uoi) And Ors.
1998 Latest Caselaw 678 Del

JUDGMENT

Devinder Gupta, J.

1. On 12.5.1998 the petitioner filed this petition. Besides praying for (a) quashing of the order dated 5.5.1998 (annexure-P.1) passed by the Foreigner's Regional Registration Officer asking the petitioner to leave India on or before 15.5.1998 and not to enter thereafter; and (b) declaring Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act, 1946 as ultra vires of the Constitution; the petitioner has prayed for other reliefs, which read:-

"(a)quash the order No. 1942/For (S.O.V.) dated 5.5.98 passed by respondent No.2 asking the petitioner to leave India on or before 15.5.98 and not to enter India thereafter, as the same is contrary to law.

(b)permit the petitioner to continue to stay in India, as he is not able to return to Afghanistan in the prevailing circumstances;

(c)quash clause (c) of sub-section (2) of Section 3 of the Foreigners Act, 1946 (Act XXXI of 1946) as ultra vires and unconstitutional because the same is violative of the principles of natural justice and hence, illegal;

(d)issue a writ of mandamus, or a writ, order or direction in the nature of mandamus, directing respondent No. 1 to exempt the petitioner and such other refugees as a class or description of foreigners from the application of the Foreigners Act, 1946 (Act XXXI of 1946), as provided under clause (b) of sub- section (1.) of section 3A of the said Act."

2. After show cause notice the respondents put in appearance, filed their reply on the affidavit of 'Shri Dharmendra Kumar, Foreigner's Regional Registration Officer, Hans Bhawan, New Delhi, to which the petitioner filed rejoinder. Record was also made available for our perusal. We heard learned counsel for the parties at length at the admission stage itself.

3. In brief the petitioner's case is that he is an Afgan National by birth and left Afghanistan, with other refugees, in 1980 and came to India in 1981. He went to Tezpur (Assam) with some other refugees and started working there to earn his livelihood. He married an Indian National of Assam. There are three children of this marriage. In between the petitioner went to Afghanistan during the year 1986, when his father informed that conditions were not so congenial, therefore, in 1987 he left Afghanistan again. On arrival the petitioner approached United Nations High Commissioner for Refugees, New Delhi. On the basis of available information, a certificate dated 23.3.1987 was issued certifying that the petitioner is a refugee. It was valid for one year. The same has been renewed thereafter regularly. Last renewal was done on 27.2.1998, which is valid upto 26.2.1999.

4. The petitioner further alleged that in January, 1998, he was asked by respondent No.2 to report in his office because of certain complaint received against him. In connection with the enquiry in the said complaint, the petitioner had been appearing before respondent No.2. As there was nothing against the petitioner, he obtained renewal of his permit under which he is now permitted to stay in India till 26.2.1999.

5. It is alleged that on 19.4.1998 he received a notice, which required him to visit the office of respondent No.2 on 20.4.1998 along with documents including renewal permit. In response to the notice he visited the office of respondent No.2. Documents were produced and were scrutinised. The petitioner was asked to submit photo copies thereof, which he provided. Abruptly on 6.5.1998 the impugned order dated 5.5.1998 was received. The petitioner states that he has been working in a Khari Baoli shop in Old Delhi and is a law abiding person. There is no danger from him. The impugned order has been passed in violation of principles of natural justice.

6. The petitioner has sought the aid of Articles 14 and 21 of the Constitution of India saying that as 'a person' he is entitled to invoke the provisions of the Constitution. He cannot be discriminated against. The impugned order is arbitrary and has been passed without complying with the principles of natural justice. The petitioner had sought temporary refuge in India due to fear to his life and personal liberty. Office of United Nations High Commissioner for Refugees had issued refugee certificate, which is valid till 1999. The petitioner was not served with any show cause notice that why he should leave the country. He was not given a chance to be heard or that whether he was or was not willing to go to Afghanistan voluntarily.

7. It is the petitioner's case that discretion under Section 3(2)(c) of the Act vested with the authority is unguided. Absence of any provision of affording fair opportunity of being heard renders the impugned provision of the Act and the impugned order as bad. The petitioner as a person is entitled to a fair procedure, which includes right of hearing. There is no rule or regulation framed under Section 3 of the Act and no procedure has been prescribed. The discretion vested is without any guideline. The order passed in exercise of those powers conferred under Section 3(2)(c) of the Act is bad in law and the provision of law is violated and is liable to be declared void. In support of the case set up by the petitioner, learned counsel for the petitioner relied upon number of decisions.

8. Learned counsel for the respondent besides making available the original record reiterated the stand taken in reply and urged that the impugned order was passed after serving notice on the petitioner. The petitioner has no right to stay in India, being a foreigner. Government of India had taken a policy decision to permit the holders of refugee certificates to stay in India, but for a limited period. Such a holder of refugee certificate cannot claim, as a matter of right to continue to live in India, if such stay is considered undesirable and dangerous to the security of India. There were adverse reports against the petitioner. The same were duly investigated by various Investigating Agencies. Of late these inquiries revealed that the petitioner was indulging in activities, which are undesirable and prejudicial to the security of the country.

9. The petition is still at admission stage. As such we need not elaborately go into the questions, which are sought to be raised by learned counsel for the petitioner about the legality and validity of the provisions of Section 3(2)(c) of the Act, suffice it to say that the Constitution Bench in Hans Mullter of Nurenburg v. Superintendent Presidency Jail, and others Calcutta, has upheld the constitutional validity of Section 3(2)(c) of the Act.

10. In so far as rights of persons other than citizens are concerned, there is no manner of doubt that we are a country governed by the rule of law. Our constitution confers certain rights on every human being and certain other rights on the citizens alone. Every person, whether he is a citizen or not, is entitled to equality before the law and equal protection of the laws. As such, no person can be deprived of his life or personal liberty except according to the procedure established by law. In Hans Muller's case (supra) it was held that Article 21 guarantees the protection of personal liberty to citizen and foreigner's alike that no person can be deprived of his personal liberty except according to the procedure established by law.

11. As a matter of fact the concept of liberty stood widened when the Supreme Court in Maneka Gandhi v. Union of India and Anr., , while construing Article Article 21 of the Constitution of India added new dimensions to various features and concepts of liberty, as enshrined in Article 21. The principle of reasonableness was held to be an essential element of equality emphasizing that the procedure contemplated by Article 21 must answer to the test of reasonableness, in order to be in confirmity with Article 14.

12. In Menaka Gandhi's case (Supra), the expression "procedure" established by law, in the context of deprivation of life and liberty in Article 21 was explained and interpreted. The interpretation so put, has been treated as enlargement of the right conferred by Article 21 of the Constitution of India. Limited to the procedure, the Court observed that the procedure must be reasonable and fair. It must not be arbitrary or capricious. In case, procedure was arbitrary, it would violate Article 14 since Article 14 is not consistent with any arbitrary power. This position in law was reasserted in Nand Lal Bajaj v. State of Punjab, .

13. The question, as such, would be that whether or not the action of the respondent in passing the impugned order is arbitrary. Sub section (1) of Section 3 of the Foreigners Act authorises the Central Government to make provision, either generally or with respect to all the foreigners, for prohibiting or regulating or restricting their entry into

14. India or their departure there from or their presence or continued presence therein. Clause (c) of Sub-section (2) of Section 2 says that in particular and without prejudice to the generality, such an order may provide that the foreigner shall not remain in India or in any prescribed area therein. A foreigner has no right to stay in India without an express permission. In Hans Mullers' case (supra) the Supreme Court held that the Act confers the power to expel Foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains. In Louis De Raedt v. Union of India and Ors., , it was held that the Fundamental rights of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country. The Constitution Bench in Hans Muller's case (supra) had also turned down right of Foreigners' to move freely in India saying: -

"Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right "to move freely throughout the territory of India" and "to reside and settle in any part of India" subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by Article 21 which is in the following terms:

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

15. In Anwar v. The State of J & K., , this position was reasserted. Permission in the case of the petitioner to stay was granted on the basis of refugee certificate issued by the United Nations High Commissioner for Refugees, which was renewed from time to time. On expiry of the permit, obviously there will be no authorisation and thereafter the petitioner will have no right to stay and cannot make any grievance whatsoever. It is only when such a period of authorisation is sought to be curtailed by asking the petitioner to leave the country that the question for following a reasonable procedure might arise and not in those cases where there is no authorisation in operation.

16. As per the stand taken by the respondent, in the case of such of the refugees for whom there is a valid authorisation in operation, permitting them to stay for a limited period, when their activities are considered to be prejudicial to the interests of the State that they could be asked to leave the country. This obviously cannot be done without following a reasonable procedure, which must provide a reasonable opportunity of being heard. The extent of the opportunity to be allowed of course will depend upon the facts and circumstances of each case.

17. The rule of audi alteram partem is not cast in a rigid mould. There are numerous judicial decisions, which lay down that this rule may suffer situational modifications. The core of rule is that the person affected must have a reasonable opportunity of being heard and the hearing must be genuine one. What opportunity may be regarded as reasonable would necessarily depend upon the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing, which is very brief and minimal. The rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations, which may arise [See Maneka Gandhi's case (supra)].

18. In Louis De Raedt's case (supra) on the question of the extent of the right of hearing in such like cases to Foreigners who have the fundamental right confined to Article 21 of the Constitution of India for life and liberty and not to reside and settle in this country it was held that there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case.

19. The petitioner's grievance is that residential permit was renewed on 2.3.1998 permitting him to stay in India till 26.2.1999, his stay could not have been curtailed without affording a reasonable and fair opportunity of being heard, in case the respondents wanted to curtail the said period and thereby require the petitioner to leave the country. The petitioner's grievance is also that he was not served with any details or particulars of the alleged activity with which, it is stated that he was involved or that what activities were found or considered to be prejudicial to the interests of the State.

20. Needless to add that the petitioner has alleged that in connection with a complaint received against his activities, an inquiry was commenced in the month of January, 1998 whereafter he was called and had been appearing before respondent No.2. Whereafter notice dated 17.4.1998 was served upon him, which was duly received by him through his wife on 19.4.1998. He was asked to attend the office of respondent No.2 with his original passport, visa and other relevant documents. Pursuant to the said notice, the petitioner did appear before respondent No.2.

21. The petitioner was associated with the inquiry, when he was asked to appear in the Office of respondent No.2. The petitioner has admitted that in connection with the complaint, he was inquired into. The petitioner was also aware about the nature of the complaint. The inquiry against the petitioner was in progress. It had not culminated when United Nations High Commissioner for Refugees renewed the permit for one year more. On expiry of the inquiry the petitioner was served with the notice. He was heard on 20.4.1998. In the light of these facts, we are of the view that in such a case where a person has no claim or right to stay in India, requirement of law will be deemed to have been met if the person is shown to have been apprised orally about the nature of complaint and his "explanation is sought orally and duly considered before forming an opinion that his activities are undesirable and prejudicial to the security of the State. In such like situation it is not expected to afford a full-fledged hearing or to state in the notice the particulars or the nature of the activities or the information available against the person concerned. There is no requirement of law that such a person, in such like circumstances be supplied with copies of the sensitive documents or the information. However, such information or documents must be shown to be available on the record at the relevant time. Disclosure of such information otherwise would be prejudicial to the security of the State and might otherwise frustrate the very purpose of inquiry. Only the Competent Authority has to form an opinion and

has to satisfy itself, on the basis of the material about the undesirability of the activities and that such activities are prejudicial to the security of the State.

22. It is on the basis of the material on record that respondent No.2 formed an opinion that the petitioner's activities were prejudicial to the interests of the State. The satisfaction that whether such activities with which the petitioner was indulging are undesirable and prejudicial to the security of India has to be of the concerned authority for which respondent No.2 is entitled to take a decision on the basis of the material on record. We are satisfied that such a decision was taken by respondent No.2 because of the material available on record that the petitioner was indulging in activities, which were undesirable and prejudicial to the security of India and was also found to be involved in hawala transactions. We are satisfied that sufficient material is available on record of the respondents, which would have enabled respondent No.2 to come to the conclusion that the petitioner's presence in the country was prejudicial to the security of the State.

23. Thus from the material on record, we are of the view that due and fair opportunity, as was reasonable in the facts and circumstances of the case was afforded to the petitioner. His attention was drawn to the complaint. He understood the nature and import thereof. The petitioner was not entitled to any further hearing.

24. In view of the above, we do not find it a fit case for granting the reliefs prayed for and for that reason, we need not go into the other questions raised.

25. Dismissed. Interim order vacated.