Khalid Ahmed Ghilan Amran, S/O ... vs The State Of Rajasthan
2023 Latest Caselaw 1430 Raj/2

[2022/RJJP/002773]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                D.B. Special Appeal Writ No. 1127/2022
Khalid Ahmed Ghilan Amran, S/o Shri Ahmed Ghilan Amran, R/o
At Present 3/5, Nagar Nigam Colony, Amer Road, Jaipur.
                                                                          ----Appellant
                                       Versus
1.       The    State     Of       Rajasthan,        Through        Its   Addl.   Chief
         Secretary,       Department            Of     Higher        And     Technical
         Education, State Government Of Rajasthan, Secretariat,
         Jaipur.
2.       The Union Of India, Through Its Foreigner Regional
         Registration Officer, East Block-B, Level-Ii, Sec. 1, R.k.
         Puram, New Delhi 110066.
3.       The Foreigners Registration Office, Jaipur City, Through
         Its Zone Officer, Jalebi Chowk, Jda Market, Near City
         Palace, Jaipur-302002.
                                                                     ----Respondents


For Appellant(s)               :    Mr. S.P. Mathur with
                                    Mr. M.K. Dhakad
For Respondent(s)              :    Mr. R.D. Rastogi, Additional Solicitor
                                    General assisted by Mr. C.S. Sinha &
                                    Mr. Devesh Yadav


      HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL
  HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
                                    Judgment

RESERVED ON                                ::                       21/10/2022
PRONOUNCED ON                              ::                       03/02/2023


BY THE COURT (PER HON'BLE THE CHIEF JUSTICE):

1. The petitioner-appellant who is a foreign national has

preferred this intra-court appeal against the judgment and order

dated 18.10.2022 passed by the learned Single Judge dismissing

S.B. Civil Writ Petition No.17905/2019-Khalid Ahmed Ghilan

Amran Vs. The State of Rajasthan & Ors..

[2022/RJJP/002773] (2 of 9) [SAW-1127/2022]

2. The petitioner is a national of Yaman country. He got

admission in M.Tech (Upstream) Course in Petroleum Engineering

in the National Institute of Medical Sciences University, Jaipur (in

short, 'NIMS') in the year 2013. He passed out the said course in

the year 2016. Thereafter, he got himself registered in NIMS as a

research student for Ph.D. in Chemical Engineering in the year

2016 itself.

3. The petitioner-appellant learnt that the M.Tech.(Upstream)

Course in Petroleum Engineering and that of Ph.D. in Chemical

Engineering to which he took admission were not the approved

Courses as per the Schedule-II of the NIMS Act. In the above

situation, the petitioner-appellant wanted to switch over in some

other University for which NOC was not issued by the NIMS.

4. The petitioner-appellant, therefore, preferred S.B. Civil Writ

Petition No.6128/2019 before this Court for a direction upon the

NIMS to issue NOC to him for the change of institution.

5. Since the VISA of the petitioner was expiring on 11.04.2019

and no interim protection was granted to him in the writ petition,

the petitioner-appellant preferred D.B. Civil Special Appeal (Writ)

No.630/2019 which was disposed of vide order dated 12.04.2019

with the direction to the NIMS University to issue bona fide

certificate to the petitioner-appellant and the Foreigners Regional

Registration Officer (FRRO) was directed to extend the stay of the

petitioner-appellant in India for at least 10 days with the further

direction to the Union of India to take decision with regard to

issuance of VISA to the petitioner-appellant upon verification of

the necessary material.

[2022/RJJP/002773] (3 of 9) [SAW-1127/2022]

6. It appears that after the aforesaid D.B. order the FRRO

extended his VISA for one year from 12.04.2019 to 11.04.2020.

This extension was granted as the petitioner-appellant had

submitted that he has pursuing Ph.D. from Vivekanand Global

University, Jaipur for which an admission letter was issued to him

on 07.10.2019.

7. In view of the fact that necessary certificate was issued by

the NIMS and the petitioner-appellant had got admission in

another University, he withdrew his Writ Petition No.6128/2019.

8. Even though the research VISA granted to the petitioner-

appellant was up to 11.04.2020, the FRRO, Delhi vide order dated

03.09.2019 on the basis of some adverse report received,

canceled the said VISA granted to the petitioner-appellant on the

ground that he was not pursuing his research studies for which

purpose the VISA was granted and as such, was directed apply

online for exit permit. The information regarding the VISA

cancellation was communicated to the petitioner-appellant vide

letter dated 04.09.2019 with a request to apply online for exit

VISA. The above orders dated 03.09.2019 and 04.09.2019 were

challenged by the petitioner-appellant by filing the present writ

petition giving rise to this appeal.

9. The learned Single Judge by the impugned judgment and

order dated 18.10.2022 dismissed the writ petition holding that

the petitioner-appellant has no right to stay indefinitely in India.

He was granted VISA initially as a student and then for research

purposes. The student VISA in accordance with the VISA Manual

could not be beyond the period of 5-1/2 years and the research

[2022/RJJP/002773] (4 of 9) [SAW-1127/2022]

VISA beyond period of 3 years and as such, petitioner-appellant is

not entitled to overstay beyond the above periods. Moreover, since

he is not pursuing any research course or Ph.D as his admission

even to Vivekanand Global University, Jaipur had been cancelled,

he has no right to remain in the country.

10. The basic submission of the learned counsel for the

petitioner-appellant is that the petitioner-appellant had come to

India for studies and that he wanted to pursue Ph.D. in Chemical

Engineering, for which purpose he first took admission in NIMS

University and, thereafter, in Vivekanand Global University, Jaipur.

The admission was granted to him on 07.10.2019 and, therefore,

he is entitled to pursue his research work and for that purpose he

is entitled to three years VISA. The research VISA of the

petitioner-appellant was extended by FRRO from 12.04.2019 to

11.04.2020 and it could not have been cancelled unilaterally vide

the impugned order dated 03.09.2019 without any opportunity of

hearing to the petitioner-appellant.

11. In defence Mr. R.D. Rastogi, learned Additional Solicitor

General of India submits that the petitioner-appellant has no right

to remain in India on the expiry of his VISA when he is not

attending any research work. The Division Bench of this Court had

only permitted to grant 10 days more to him to stay in the country

on the expiry of the VISA on 11.04.2019. The purpose was to

allow the petitioner-appellant sufficient time to packup and

arrange for leaving the country as research VISA could not have

been extended for one year and the extension that has been

granted was on the false pretext that he is pursuing Ph.D. even

[2022/RJJP/002773] (5 of 9) [SAW-1127/2022]

though he had no admission and his admission if any, had already

been cancelled.

12. There is no dispute to the fact that the petitioner-appellant

was granted student VISA for pursuing the course in Petroleum

Engineering in the year 2013. The said student VISA could not

have been extended beyond the period of 5-1/2 years as

stipulated in the VISA Manual. Subsequently, the petitioner-

appellant was granted research VISA which expired on

11.04.2019. On the directions of the Court, petitioner-appellant

was allowed to overstay 10 days and the FRRO was directed to

take decision for extension of research VISA. Consequently, the

FRRO extended the research VISA of the petitioner-appellant from

12.04.2019 to 11.04.2020 which has been cancelled by the

impugned order dated 03/04.09.2019. The research VISA was

granted to the petitioner-appellant on 16.06.2016 and as per the

VISA Manual could not remain in force beyond a period of three

years i.e. 15.06.2019.

13. In the above circumstances, the extension of the research

VISA from 12.04.2019 to 11.04.2020 was patently in

contravention of the Rules. It was obtained by concealing that the

period of research VISA was expiring on 22.04.2019 and by

misleading that the petitioner-appellant has obtained admission in

Ph.D. in Vivekanand Global University, Jaipur, whereas on the date

of extension of the research VISA he was not having any

admission.

14. Vivekanand Global University, Jaipur had informed the FRRO,

Jaipur that the petitioner-appellant was provisionally admitted in

[2022/RJJP/002773] (6 of 9) [SAW-1127/2022]

the Ph.D. course on his statement that he had a valid VISA till

11.04.2020. However, his VISA was cancelled on 03.09.2019,

which fact was concealed in obtaining admission on 07.10.2019.

Accordingly, his admission to the Ph.D. course was also cancelled

on 25.11.2019 by the Vivekanand Global University, Jaipur. In

other words, the petitioner-appellant got himself enrolled for the

Ph.D. course in Vivekanand Global University, Jaipur on

07.10.2019 on the basis of the incorrect information that his VISA

is valid till 11.04.2020 though his VISA stood cancelled on

03/04.09.2019. Moreover, the aforesaid admission also stood

cancelled on 25.11.2019 and as such, since then petitioner-

appellant is not a student of any course in any institution. The

VISA granted to him was for the purpose of study first as a

student and then as a researcher. Therefore, he cannot be

permitted to stay in India without pursuing any course of

study/research.

15. The Larger Bench of the Supreme Court in the case of Hans

Muller of Nurenburg Vs. Superintendent, Presidency Jail,

Calcutta & Ors.: AIR 1955 SC 367, in determining whether

there is any law in India vesting the executive Government with

power to expel a foreigner from this land as opposed to

extraditing him, held that Foreigners Act, 1946 confers the power

to expel foreigners from India. It vests the Central Government

with absolute and unfettered discretion in this regard. There is no

provision fettering the said discretion in the Constitution and

unrestricted right to expel foreigner.

[2022/RJJP/002773] (7 of 9) [SAW-1127/2022]

16. In Louis De Raedt Vs. Union of India, reported in

(1991) 3 SCC 554, it has again been reiterated that the

Government has unrestricted right to expel a foreigner and that

opportunity of hearing in such matters is not a hard and fast rule

and where opportunity of hearing would not result in the change

of opinion, non affording of opportunity of hearing could not vitiate

the order.

17. It is trite to mention that opportunity of hearing is not an

empty formality or a ritual to be performed and if despite notice or

opportunity of hearing the outcome is clear and is not likely to

change, it would not affect the decision.

18. In the case at hand, the petitioner-appellant had not only

overstayed the prescribed limit of the student and the research

VISA, but is also not undergoing any studies, much less as a

researcher in Ph.D. He first obtained the admission to Ph.D.

clandestinely and secondly, the admission stood cancelled.

Therefore, in the above circumstances cancellation of his research

VISA and the direction to apply for exit VISA cannot be faulted

with.

19. As on date the research VISA granted to the petitioner-

appellant for the period 12.04.2019 to 11.04.2020 has also come

to an end. It has not been extended and the petitioner-appellant

is overstaying in the country without any permission/license.

Therefore, his stay after 11.04.2020 is patently illegal. The

granting of the impugned orders would not serve any purpose at

this juncture.

[2022/RJJP/002773] (8 of 9) [SAW-1127/2022]

20. Before parting we would be failing in our duty if we do not

mention certain case law as cited from the side of the petitioner-

appellant for which we have no hesitation to say that they are of

no avail.

21. The petitioner-appellant cited Issac Isanga Musumba &

Ors. Vs. State of Maharashtra & Ors, reported in (2014) 15

SCC 357, to contend that the word 'person' used in Article 21 is

wide enough to cover foreign nationals as well.

22. There are no two opinions on the said aspect, but nothing

turns out on its basis in the present case.

23. The other authority cited is that of State of Bihar & Ors.

Vs. Subhash Singh, AIR 1997 SCC 1390, which provides for

judicial review of administration again as essential part of Rule of

Law.

24. Again there is no quarrel on the above aspect. The Writ

Court has not refused to exercise the power of judicial review in

the instant case.

25. The decision in the case of I.J.Rao Asstt. Collector of

Customs & Ors. Vs. Bibhuti Bhushan Bagh & Anr, reported

in (1989) 3 SCC 202, which lays down that where right of a

person was adversely affected by an order passed by the

authorities, he is entitled to pre-decisional notice or even to post-

decisional hearing, depending upon the facts of the case, is also of

no avail in view of the fact that the right of hearing cannot be

permitted to be exercised in a vacuum and where the result

despite hearing would be the same, as taken before providing

opportunity.

[2022/RJJP/002773] (9 of 9) [SAW-1127/2022]

26. The facts of the case speaks for itself and as such, the

petitioner-appellant who has no legal right to overstay, is liable to

deported forthwith.

27. In the aforesaid facts and circumstances, we are of the

opinion that the learned Single Judge has not erred in dismissing

the writ petition.

28. The appeal is devoid of merit and is accordingly dismissed.

(MANINDRA MOHAN SHRIVASTAVA),J (PANKAJ MITHAL),CJ

N.K. GANDHI/LAKSHYA SHARMA /12

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