Hesham Badawy Mehmoud Pushkarna vs Union Of India (Uoi) And Ors.
1998 Latest Caselaw 852 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner, a foreign national who on 15.8.1998 was deported out of country has tiled this petition on 24.8.1998 supported on the affidavit of his wife Amani Ibrahim, another foreign national. Direction is sought in the writ petition to quash the order dated 10.8.1998 passed by the Foreigners Regional Registration Officer placing certain restrictions on the petitioner's movement; quit notice dated 12.8.1998 requiring the petitioner to leave India latest by 15.8.1998. Consequent directions are sought against the respondents to bring the petitioner to India and allow him to resume and complete his studies.

2. The admitted facts are that the petitioner an Egyptian National arrived in India on 12.9.1989 on a student visa and got himself registered with the Foreigner Registration Officer. His stay had been extended from time to time. Lastly, on 16.1.1998 his stay was regularised till 31.8.1999, when he was granted Research Visa.

3. The petitioner's case is that after having completed his Master Degree in Political Science from Jamia Millia Islamia University at New Delhi, he enrolled himself for Ph.D. Research Course in University of Rajasthan. The topic of his research is "India's Security Problems at the end of the Cold War". The petitioner was married in the year 1994 to a Sudanese National and his wife is an M.B.B.S. doctor having completed her course from Lady Harding Medical College. The petitioner also has three years' old son from the marriage. They have been residing in New Delhi till 10.8.1998. By virtue of order (annexure-P.7) restrictions were placed on his movement and he was directed not to move out of Sewa Sadan, Lampur, Delhi from 10.8.1998 to 24.8.1998 as there was likelihood of his going under ground and indulging in undesirable activities. Intimation was given by the petitioner to his wife from Lampur, who got writ petition filed in this Court. On 17.8.1998 the writ petition was taken up in which notice was issued to the respondents for 19.8.1998, when statement was made on behalf of the respondent that the petitioner had already been deported on 15.8.1998, pursuant to the order (annexure-P.11) dated 12.8.1998. It is alleged that the impugned orders are bad in law being violative of Articles 21 and 22 of the Constitution of India. The petitioner was illegally deported out of country without affording any opportunity of being heard. The petitioner is a peace living person and had been pursuing Research Work diligently. Only in connection with his research work recently he went to Kashmir and had meetings with leaders of All Party Hurriyat Conference and also interviewed Home Minister of Kashmir in that regard. Neither he was apprised of any charges against him nor any reason was assigned for being deported out of country.

4. The writ petition is opposed by the respondents on the affidavit of Shri Dharmendra Kumar, Foreigners Regional Registration Officer, Hans Bhawan, New Delhi on the ground that though the petitioner was granted Research Visa till 31.8.1999, it came to the notice of the respondents that the petitioner, who initially had arrived in India on Student Visa continued to prolong his stay on the pretext of undergoing one or the other educational course. He took up job of an Interpreter and Journalist in the U.A.E. Embassy, New Delhi at a handsome salary from 1996 to 1997. He also worked as correspondent in World Television Net Work, Jan path, New Delhi during the same period. Thereafter he took up the job of a journalist in A.T.B., Jor

Bagh, New Delhi. He also left for Jakarta (Indonesia) in May, 1998 and returned after a couple of weeks on an assignment for A.T.V. The petitioner was living in a rented accommodation at 15, Satya Niketan, (Diplomatic Area) New Delhi by paying a large amount as rent per month and maintained a good standard of living, which a student would generally not be able to afford. The petitioner was found to be violating visa rules by taking up different jobs, while staying here on a student visa and later a research visa.

5. The reply further states that the Ministry of Home Affairs on 28.7.1998 passed deportation orders against the petitioner to deport him and to ensure that he did not become untraceable and also to intimate his date of departure. Pursuant to the said deportation order, it is stated in the reply that a call notice dated 4.8.1998 was issued to the petitioner requiring him to attend the FRRO Office on 5.8.1998 at 2.00 p.m. However, this call notice could not be served upon the petitioner because of his non-availability. He could be served only on 8.8.1998. The petitioner came to the office of the respondent on 10.8.1998 and was explained the reasons and circumstances of calling him in the office i.e. regarding his stay in India on student visa/research visa and also that since he has violated the visa rules by taking up the jobs while staying on student visa. The Ministry of Home Affairs has passed the deportation orders against the aforesaid violation. The petitioner was asked to render his explanation, if any. The petitioner made statement in writing on 10.8.1998 admitting that he had taken up the jobs to earn his livelihood.

6. In view of the fact that the petitioner did not deny circumstances against him, the movements of the petitioner were restricted by detaining him at Lampur, Delhi by order dated 10.8.1998. It was done in order to implement the deportation orders passed by the Ministry of Home Affairs on 28.7.1998 against him. He was also served upon 'Leave India Notice' dated 12.8.1998 with directions to leave India latest by 15.8.1998. Copy of the same was also duly received by the petitioner on 12.8.1998 itself at Lampur. The reply also states that when the petitioner was served with copy of the restriction order dated 10.8.1998, it was made clear to him that the restrictions being imposed on his movements are pursuant to the Ministry of Home Affair's order to deport him to his country of origin. The petitioner was also allowed opportunity to contact his relatives and his Embassy at Delhi. Several telephonic calls were made by him from the office of the respondent to contact his relations and from telephone No.7282228, which is installed at the detention centre. On the restriction order dated 10.8.1998, copy of which was forwarded to the Superintendent, Sewa Sadan, Lampur, it was endorsed to ensure that all facilities including medical, toilet, food and other basic amenities/facilities permissible under the laws are provided to the detainee. As such no interference is called for in the impugned orders.

7. We heard learned counsel for the parties and have been taken through the entire record.

8. Learned counsel for the petitioner has placed reliance on the decision of the Calcutta High Court in B.A. Shervashidze v. Government of West Bengal and Anr., and also contended that due opportunity was not afforded. The petitioner was not apprised of any violation of Visa Rules. The petitioner was diligently and peacefully pursuing his studies. He was illegally deported out of country. As such direction must be issued to recall him so as to enable him to complete his studies. For our perusal, learned counsel for the respondent, made available the original record.

9. The record reveals that the petitioner was asked to appear in the office of Foreigners Regional Registration Officer by virtue of notice dated 4.8.1998, which was served on him on 8.8.1998. In response, the petitioner did appear before the Foreigners Regional Registration Officer. We have also gone through the statement, which the petitioner gave in writing on 10.8.1998 admitting having taken up jobs at different occasions, despite his being apprised by Ministry of Home Affairs that he was not supposed to take up a job. The affidavit of the respondents suggests that when the petitioner appeared before the authority, he was apprised of the material, which was found against him and also of the fact that he had violated Visa Rules in as much as on the strength of Research Visa he could not have taken up job. The fact that the petitioner had taken up job and interviewed leaders of All Party Hurriyat Conference is also not denied in the petition. As such on the ratio of the decision of this Court in Criminal Writ No.405/98 in Mohammad Sediq v. Union of India and others decided on 21.8.1998, it cannot be said that principles of natural justice were not complied with before passing of the impugned orders.

10. Foreigners Act confers power on the Central government to expel foreigners from India. This power with the Central Government is absolute and unfettered. There is no provision in the Constitution fettering the discretion of the Central Government.

11. In Louis De Raedt v. Union of India and Ors., , it was held that the Fundamental rights of a foreigner are confined to Article 21 for life and liberty and do not include the right to reside and settle in this country. The Constitution Bench in Central Bank of India Ltd. v. Ram Narain 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 Art. 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."

12. In Anwar v. The State of J & K., and Nand Lal Bajaj v. State of Punjab, this position was reasserted.

13. As there has been no violation of the principles of natural justice in the instant case, there is no question of quashing of the impugned orders. Restrictions were rightly placed on the basis of the impugned order and the same were to prevent the petitioner

from going underground. It is not the case of the petitioner that while at Lampur he could not have made any contacts or met anybody so as to be not in a position to comply with the requirements of quit notice (annexure-P.11) dated 12.8.1998, which is evident from the fact that the petitioner was able to contact his wife and was in a position to file writ petition in this Court. As such ratio of the decision in B.A. Shre vashidze's case (supra) cannot be made applicable. In that case it was held that a foreigner when a vested and detained in jail under para 7 of the Foreigners Order, 1939 where after an order was passed under Section 3 of the Foreigners Act, 1946 directing him to leave within a period of one month, the order of deportation passed subsequently must be held to supersede the earlier order of detention and as the foreigner continued to remain under detention, he was never released and given an opportunity to comply with the order of deportation, detention becomes illegal. Therefore, he would be liable to be released forthwith in order to give him the opportunity to comply with the order of deportation. After the respondents passed the order, after affording reasonable opportunity to the petitioner of being heard, calling upon him to leave India, no right can be said to be vested in the petitioner thereafter to claim continuance of studies. Otherwise, it would amount to permitting the petitioner to continuing staying in this country and pursuing study will amount to enforcing in his favour rights granted under Article 19 of the Constitution of India, which is not a right available to a foreigner. The only right available to a foreigner is the protection of life and liberty in accordance with the laws of the land conferred by Article 21 of the Constitution. As such, in our view directions prayed for cannot be issued.

14. Consequently, the writ petition is liable to be dismissed, which is hereby dismissed.