Sugam Travel Corporation vs Union Of India & Anr
2012 Latest Caselaw 3498 Del

41.

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    Date of Decision: 25.05.2012


%      W.P.(C) 3105/2011


       SUGAM TRAVEL CORPORATION               ..... Petitioner
                     Through: Mr. Rakesh Bhugra & Mr. Ehtasham
                              Ahmad, Advocates.

                    versus

       UNION OF INDIA & ANR                           .....Respondents
                       Through:     Mr. Ruchir Mishra, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

1. The petitioner has preferred the present writ petition to assail

the order dated 10.08.2010 passed by the Protector General of

Emigrants/ Registering Authority-respondent No. 2. The petitioner also

assails the appellate order dated 10.08.2010 passed by the Secretary,

Ministry of Overseas Indian Affairs, Government of India, whereby the

petitioner's appeal under Section 23 of the Emigration Act, 1983 has

been dismissed. By the first/ original order, the respondent No.2 has

disposed of the show-cause notice issued to the petitioner, and in

W.P.(C) 3105/2011

exercise of powers conferred by Section 14(1) of the Emigration Act,

1983, the Registration Certificate of the petitioner under the said Act

has been cancelled. Though the respondent No. 2 also issued a notice

to the petitioner requiring him to show-cause as to why bank

guarantee furnished by him should not be forfeited, the respondent

No.2 has not forfeited the said bank guarantee till date.

2. The case of the petitioner is that the petitioner obtained

registration under the Emigration Act on 05.10.1989 for the purpose of

carrying on the business of recruitment of workers for overseas

employment. In the year 1992, the petitioner shifted his office and

made an application for renewal of the Registration Certificate. The

petitioner's registration lapsed due to its not being renewed within

time, in October 2004.

3. In the year 2007, the petitioner made a fresh application for

registration. Along with the fresh application, the petitioner submitted

a valuation report dated 15.03.2007. In this valuation report, the

petitioner disclosed the area of the premises to be used for the said

business as follows:

       "AREA OF PREMISES WITH        CABIN
       Gen. Office                   :  9'-0" x 12'-5" = 111'-9"
       Ex. Cabin                     :  9'-0" x 11'-9" = 105'-9"
       Rec. Area                     :  12'-6" x 12'-0" = 150'-0" (AVE)
       Total Documented Area         :  565'-0" Sft."




W.P.(C) 3105/2011

4. I may note that there was a typographical error in relation to the

area which was mentioned as 565 square feet. There is no dispute

between the parties that the area was actually 366 square feet. The

petitioner was issued a fresh Registration Certificate on 25.04.2007.

5. It appears that an inspection was conducted of the office

premises of the petitioner and it was found that carpentry work was

going on in the reception area admeasuring 150 square feet. The

petitioner was issued a show-cause notice on 13.04.2010, on account

of the aforesaid carpentry work being carried on in the reception area.

The petitioner sent his reply on 10.05.2010 stating that the carpentry

work was being carried on in respect of the building wherein his office

premises was located.

6. The petitioner was issued a show-cause notice on 13.04.2010

proposing cancellation of the registration. The said show-cause notice

alleged that the minimum space required for office premises of

recruitment agents, as stipulated by the Ministry, was 250 square

metres. It is not disputed that the respondents intended to mention

the figure of 250 square feet, and not square metres. It was alleged

that 150 square feet area was not available for carrying on the

business as carpentry work was going on in that area, and the

remaining area fell short of 250 square feet. It was also alleged that

the petitioner was guilty of mis-declaration inasmuch, as, he had

W.P.(C) 3105/2011

declared the area of his office premises as 366 square feet, however,

the area was short by 150 square feet which was being used for

carpentry work. Since the Registration Certificate was alleged to have

been obtained by misrepresentation or suppression of material fact, it

was proposed to cancel the certificate.

7. The petitioner gave his reply on 10.05.2010, wherein it was

stated that in January 2009, the building, wherein the petitioner's

premises was located, was granted additional FSI. Consequently, all

the tenants residing from first floor and above were granted a grace of

one room in addition to the area of the existing flats. Resultantly, the

construction/development process had commenced. The petitioner

also stated that a section of dominating members of the society

insisted upon using his premises for carpentry and other work for the

entire building. The petitioner being physically weak and not

maintaining good health, could not resist the said coercion exercised

upon him. He stated that his office premises was restricted to 216

square feet and that during the relevant period, the minimum area

required for running an office premises by recruitment agency was 200

square feet to 250 square feet, which the petitioner met.

8. The Protector General of Emigrants/ Registering Authority passed

the impugned order on 06/ 10.08.2010. This order has been passed

primarily on the premise that the minimum space required for office

W.P.(C) 3105/2011

premises of recruitment agents "as per the prevailing criteria at that

time was 250 square metres". I may once again observe that the

mention of square metres is incorrect, and the respondents also

intended to mention square feet.

9. The petitioner preferred an appeal before the Appellate

Authority, i.e., the Secretary, Ministry of Overseas Indian Affairs,

Government of India under Section 23 of the Emigration Act, 1983.

This appeal has been rejected by the Appellate Authority by placing

reliance on Rule 10(xv)(a) of the Emigration Rules, which states that

the holder of a Certificate of Registration shall maintain the office

premises of not less than 50 square metres built up area. The

Appellate Authority has noted that 50 square metres would translate to

about 450 square feet, whereas the petitioner had about 216 square

feet area available with him. Consequently, it was held that the

petitioner did not meet the area requirement and was, therefore, not

entitled to obtain the registration under the Emigration Act.

10. The submission of learned counsel for the petitioner, firstly, is

that there is no basis for the Registering Authority's observation that

the minimum space required for office premises by recruitment agents,

as per the prevailing criteria at the relevant time, i.e., in the year 2007,

was 250 square feet. He submits that the minimum area required by

the recruitment agents was 200 square feet, and since the petitioner

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had an area of 216 square feet, even after excluding the area of the

reception (which was being used for carpentry work of other occupants

of the building), the petitioner had sufficient area to carry on his

business.

11. On the last date, after some hearing the matter was adjourned

for today to enable the respondents to take instructions in this regard

and to bring to the Court any specific rule or order stipulating the

minimum area required for carrying on the work of recruitment agency

at the relevant time as 250 square feet. Learned counsel for the

respondents today submits, on instructions, that there is no such

order.

12. From the aforesaid, it is clear that the impugned order dated 06/

10.08.2010 has been passed on an incorrect premise. Since the

petitioner, in any event, had an area of 216 square feet available with

him, even after excluding the reception area of 150 square feet (which

was being used for carpentry work), the paucity of area could not have

been taken as a reason for cancellation of the petitioner's registration.

The impugned order dated 06/ 10.08.2010 passed by respondent No.2,

therefore, cannot be sustained and is liable to be set aside.

13. The submission of learned counsel for the respondents is that the

petitioner was guilty of having obtained the certificate by

misrepresentation or suppression of a material fact. He submits that

W.P.(C) 3105/2011

the petitioner misrepresented that he had an area of 366 square feet

available with him, including the reception area of 150 square feet,

whereas he was having an area of 216 square feet.

14. I do not find any merit in this submission of learned counsel for

the respondents. Admittedly, when the petitioner had made the

application disclosing an area of 366 square feet, the said area was

found to be available with the petitioner, and it is only on that basis

that the Registration Certificate was granted to the petitioner in the

year 2007. It appears that much later, i.e., only in the year 2009, the

area of the premises of the petitioner got reduced by 150 square feet

on account of carpentry work being undertaken in the reception area.

Therefore, when the petitioner made the application for registration,

there was no misrepresentation or suppression of any material fact by

him. The invocation of Section 14(1)(e) is, therefore, misplaced in the

facts of this case.

15. Learned counsel for the petitioner points out that the appellate

order proceeds on a wrong premise inasmuch, as, it places reliance on

Rule 10(xv)(a) of the Emigration Rules. He points that this rule had

been introduced by an amendment to the rules carried out on

09.07.2009 vide GSR 511 E. Therefore, the said amended rule had no

application to the petitioner's case, as the petitioner had obtained the

registration in the year 2007. Learned counsel for the petitioner

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submits that the said amended rule did not have retrospective effect.

In support of this submission, he has placed before this Court a

circular/communication issued by the Ministry of Overseas Indian

Affairs, Office of Protector General of Emigrants on 29.07.2009,

wherein it has been stated that "the facilities to be maintained by the

RA's under Rule 10(xv)(a) will apply at the time of renewal in respect

of those who have been issued the RC or the EC before 09.07.2009".

16. In the present case, since the petitioner's registration was

granted in the year 2007, i.e., before 09.07.2009, the amended Rule

10(xv)(a) could have been made applicable to the petitioner's case,

only when the petitioner's registration would have became due for

renewal. The petitioner's initial registration was valid for a period of 5

years. Therefore, had the registration of the petitioner not been

cancelled, it would have come up for renewal on 25.04.2012, and the

petitioner would have had to make an application for renewal three

months prior to 25.04.2012. It is at that stage of renewal in the year

2012, that Rule 10(xv)(a) could have been made applicable to the

petitioner's case. It is, therefore, clear that the invocation of Rule

10(xv)(a) in the petitioner's case was misplaced, as the said Rule was

framed only in the year 2009, and was not applicable to the

petitioner's case in 2007; and, would not have been applicable to the

petitioner's case till 25.04.2012, had the petitioner's registration

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subsisted.

17. Since the requirement of space under the amended rule is 450

square feet, and the petitioner's area is only 216 square feet, the

petitioner cannot obtain renewal of the registration on the basis of the

existing premises. In that sense, the issue raised by the petitioner

became academic, as the registration, in any event, would have lapsed

on 25.04.2012, and for the period thereafter, the petitioner would be

governed by Rule 10(xv)(a) of the Emigration Rules. However, learned

counsel for the petitioner has submitted that the effect of cancellation

of the registration are felt even thereafter, as a person whose

registration has been cancelled is debarred from applying for fresh

registration for a period of two years, and while filling the form for

fresh registration, the applicant is required to disclose if his earlier

registration has been cancelled. It is for this reason that the Court has

proceeded to decide the present petition on merits.

18. From the aforesaid, it is clear that the cancellation of the

petitioner's registration by the Protector General of Emigrants/

Registering Authority was wholly unjustified and illegal. The rejection

of his appeal is equally unjustified and illegal. Both these orders

proceed on wrong assumption with regard to the area that the

petitioner was required to maintain for carrying on his business.

Accordingly, the impugned orders are set aside and it is declared that

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the petitioner's registration was wrongly cancelled.

19. The petition stands disposed of. The parties are left to bear their

own costs.

VIPIN SANGHI, J

MAY 25, 2012 'BSR'

W.P.(C) 3105/2011