Cherchi Domenico Ferdinando vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 139 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner has filed this writ petition for quashing of the order TPM/No. 18032/99/2002-F-II dated 27.8.2003, issued by the Ministry of Home Affairs, Govt. of India and letter/Order No. 7006/SB dated 8.9.2003, issued by the Office of Superintendent of Police-cum-Foreigners Registration Officer (Annexure P-5 to the writ petition). By the said order, based on the telegraphic message, received from the Ministry of Home Affairs, the extension granted to the petitioner to stay in India up to 21.12.2003, was curtailed and the petitioner was sent to the Italian Embassy under the Police Escort for deportation. Petitioner further seeks a direction to the respondents to permit him to stay in India and restrain them from taking any steps to deport him prematurely or till he is legally entitled to stay in India.

2. Notice in the writ petition was issued on 22.9.2003 and as an interim measure, it was directed that petitioner be not deported from India. Pleadings have been completed. The records of the respondent, including the Intelligence Bureau, Ministry of Home Affairs Reports, were produced for perusal of the Court. This was done in view of the plea taken in the counter affidavit that petitioner was suspected to be involved in the trade of Charas along with Geeta, whom he is stated to have married.

3. The facts, in brief, leading to the filing of the present writ petition may be noted:

(i) Petitioner, an Italian national entered India on a tourist visa of six months on 26.7.2001, valid up to 25.1.2002 and was registered with Foreign Registration Office at Pune. Petitioner sought further extension on the ground of his marriage to an Indian National, Geeta, a widow with two children, on 16.7.2002, which was registered on 22.7.2002. A certificate of marriage has been produced before the Authorities. Petitioner was granted three months' extension on 24.7.2002. Reports were sought from the Superintendent of Police, Kullu, who confirmed the marriage of the petitioner to Geeta and, accordingly, he was granted extension up to 31.12.2003.

(ii) Respondent averred in the counter affidavit that the field inquiries conducted by them in Himachal Pradesh, Kullu, revealed that petitioner Ms. Geeta, though living as married couple, were suspected to be involved in charas business, as the standard of life was not commensurate with their ostensible means of earnings. Respondents averred that the motive behind the marriage with Geeta was to facilitate the stay in the country and to carry out illegal activities. Respondents have urged that petitioner had misrepresented facts, relating to his stay in Pune, by claiming that he had stayed in room No. 24 and worked as Cook in Hotel Krishna, Sasson, Pune. On verification and inquiries from Hotel, this was not found to be true.

4. I have heard Mr. Vikas Pahwa, Counsel for the petitioner, in support of the petition. Mr. Pahwa assails the deportation order, as being a non-speaking one and not disclosing any reason. He submits that admittedly, no case has been registered against the petitioner nor he is accused of any offence. Petitioner is a peace living person, who has married an Indian widow with two children and is living with them in Kullu. Petitioner has not indulged in any unlawful activity. Respondent, therefore, cannot on the basis of mere suspicion or hearseay pass an order of deportation.

He next submits that assuming but not admitting, the information given by the petitioner of staying at Hotel Krishna, Room No. 24 and working as a Cook therein was not correct, the same cannot be made the basis of the order of deportation. This is because petitioner's whereabouts for the last two years are well known. The impugned order of deportation would lead to the complete disruption of marital and family life of the petitioner. Learned Counsel further assails the order, as being violative of Articles 21 and 19 of the Constitution of India.

5. The right guaranteed to any person tinder Article 21 of the Constitution of India does not include within its ambit as far as a foreigner is concerned to reside and settle in the country. In Louis De Raedt v. Union of India and Ors. reported at , the Court held as under:

"The fundamental right of the foreigner is confined to under Article 21 for life and liberty and does not include the right to reside and settle in India, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. The Executive Government has unrestricted right to expel a foreigner. So far the right to be heard is concerned, 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."

6. The Division Bench of this Court in Criminal Writ Petition No. 1107/98 while relying on Louis De Raedt v. Union of India (supra) and Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors. reported at observed as under:

"It is well settled that an alien cannot have a right of permanent abode in India. In Louis De Raedt v. Union of India and Ors. (supra), it was held that the fundamental right of the foreigner is confined to Article 21 and does not include the right to reside and settle in this country. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors. (supra), the Supreme Court held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion."

7. From the legal principles enunciated in the above judgments, it would be seen that the petitioner being a foreigner does not have any enforceable legal rights to have a permanent abode in India and settle here. With a view to satisfy the judicial conscience regarding the inquiry done by the respondents, records of the case, including the reports of the Intelligence Bureau were called for and perused. The record shows that it was not as if on a cursory inquiry the opinion to deport the petitioner was formed. Rather in the instant case respondents, during the pendency of inquiry had been granting extension of stay to the petitioner specially after his marriage.

8. As a result of the inquiries made it was found that the petitioner who had arrived on a tourist visa and made a declaration of staying at Hotel Krishna, Sasson, Pune and working as a Cook was found to be wrong. Neither the factum of stay nor his employment there could be substantiated.

9. The purported marriage of the petitioner with a widow having two children and who was a vegetable seller on 16.7.2002 when the permit for stay was expiring on 24.7.2002, raised a doubt about the same i.e. whether it was a marriage of convenience or otherwise. There is also material on record in terms of intelligence reports whereby the petitioner and his purported wife Geeta were found to be living beyond their ostensible and known means of earning. There is also material on record to show the widespread trafficking in drugs in Valley by foreign tourists in conjunction with local inhabitants. The cultivation of Cannabis Sativa is prevalent in the District and remote areas. In view of the foregoing discussion, it could not be said that there was no material on record for respondents to have formed the opinion to deport the petitioner, especially in the absence of any legal right of the petitioner to reside and settle in India.

10. I find that the view taken by the respondents is plausible view and no case is made out for interference in the exercise of writ jurisdiction by this Court.

Writ petition is dismissed.