1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1455 OF 2009 Hillel Shapira .. Petitioner Vs. 1. Shri Ravindra Sengaonkar, Deputy Commissioner of Police and Foreigner’s Registration Officer, Special Branch, Pune City and ors. .. Respondents Mr. Mahesh Jethmalani, Senior Advocate with Mr. S.V. Kotwal i/by Mr. M.S. Mohite for petitioner. Mr. D.P. Adsule, APP for respondent Nos.1 to 3. Mr. D.J. Khambata, Addl. Solicitor General with Mr. D.N. Salvi for respondent nos.4 to 6. CORAM: B.H.MARLAPALLE & R.Y. GANOO, JJ. Reserved On : November 09, 2009. Pronounced On : November 21, 2009. ORDER (Per B.H. Marlapalle,J.). 1. Heard Mr. Mahesh Jethmalani, the learned Senior Counsel with Mr. M.S. Mohite for the petitioner. 2 2. Rule. Mr. Adsule, the learned APP, waives service for respondent nos. 1 to 3. Mr. Salvi waives service for respondent nos.4 to 6. Affidavit-in-reply has been filed by all the respondents. By consent of the parties, petition has been heard finally for its disposal at the admission stage. 3. The petitioner is a citizen of Israel and he claims to have entered India in the year 1996-97 on a business Visa and since then he has been residing and doing business in India. He claims that he obtained all necessary permissions from the Reserve Bank of India, the Ministry of Industry and Ministry of Commerce and accordingly has set up a Company by name M/s. Dakini Health Foods Pvt. Ltd. at Pune. His business Visa was extended from time to time and the last extension was valid till 12/6/2006. He, therefore, made an application for extension of Visa for five years on 2/5/2006. However, no decision was communicated to him till 12/6/2006 and thereafter and he thus continued his stay in India without any extension. However, on 29/4/2009 he was orally informed by the respondent no.1 that his application for extension of Visa was rejected and on 30/4/2009 he received a letter dated 29/4/2009 issued by the respondent no.1 directing him to leave India by 30/4/2009. By another order dated 3/6/2009, the petitioner was directed to be detained till his departure to Israel and he has filed this petition on or about 8/6/2009 praying for directions, (a) to decide his application dated 2/5/2006 as well as his application dated 19/5/2009 only after giving him a personal hearing; 3 (b) to forthwith return his passport bearing No. 10631746; (c) to quash and set aside the order dated 29/4/2009 and the order dated 3/6/2009 passed by the respondent no.1; (d) to permit him to stay in India till his application for extension of Visa is decided or reviewed on such terms and conditions as this court may deem fit. 4. When the petition was heard by this court on 1/7/2009, the learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of Hasan Ali Raihany vs. Union of India and ors. [AIR 2006 SC 1714] contending that even if the petitioner’s application for extension of Visa has been decided, he must be given an opportunity to submit his representation against his proposed expulsion. This court directed respondent nos.1 and 5 to file detailed affidavits explaining the delay caused in deciding the petitioner’s application and the correct procedure which is required to be followed in deportation cases, despite the fact that Shri Bhanupratap Shankarrao Barge, Senior Inspector of Police, presently attached to Foreigners Registration Office, Special Branch, Pune City had filed an affidavit-in-reply on 15/6/2009. In the said affidavit, it was pointed out that the petitioner had entered India on 20/6/2005 on a Visa issued by the Indian Embassy at Bangkok and it was valid from 13/6/2005 to 12/6/2006. The petitioner had registered himself with the Foreigners Registration Office at Pune on 4/7/2005 under Registration No. 774 of 2005 by 4 showing the Visa granted to him by the Indian Embassy at Bangkok. His application dated 2/5/2006 for renewal of Visa was received on 11/5/2006 by respondent no.1 and while processing the said application, it was noticed that the original Visa issued by the Indian Embassy was either forged or some interpolation had been made in the said Visa thereby altering the letter “T” to “B”. The office of respondent no.1 was, therefore, not clear whether the petitioner was granted a Tourist Visa or a Business Visa and hence a letter was sent to the Indian Embassy at Bangkok on fax thereby seeking information with respect to the type of Visa issued in favour of the petitioner. No reply was received. On 25/8/2006 respondent no.1 addressed a letter to the Deputy Secretary, Home Department, Government of Maharashtra, thereby forwarding the case of the petitioner and certain queries were raised by the State Government and in turn it had forwarded the petitioner’s papers to the Ministry of Home Affairs, Foreigners Division, Government of India by its letter dated 31/10/2007. Certain queries were raised by the Union Home Ministry and they were replied to. On completion of the entire process, the Ministry of Home Affairs by its letter dated 9/4/2009 informed the State Government that the petitioner’s request for grant of extension of stay in India was declined and the State Government was requested to grant the petitioner exit permission by 30/4/2009. On 20/4/2009, the Home Department, Government of Maharashtra informed the office of respondent no.1 the decision of the Government of India and the said letter was received on 25/4/2009. On 26th and 27th April, 2009, the petitioner was not available on his given residential address at Pune and in response to a message kept on the same address, he went to the said office on 28/4/2009 when he was informed about the decision of the Government of India on his application for extension of Visa. 5 He was also told that he had to leave the country by 30/4/2009. However, the petitioner submitted a letter on 29/4/2009 requesting to grant 60 days time to leave India and at the same time he refused to accept the communication regarding rejection of his Visa extension. But on the next day i.e. 30/4/2009 he again went to the office of respondent no.1 and received the said communication. His application dated 29/4/2009 was forwarded to all the concerned authorities of the State Government as well as the Government of India and on 28/5/2009 the Ministry for Home Affairs, Government of India sent a fax to respondent no.1 thereby directing to deport the petitioner / foreigner immediately and to send the compliance report. As the petitioner did not obey the order passed by the Government of India and failed to leave India, an order was issued on 3/6/2009 imposing restrictions on the petitioner as there was every likelihood that he may go underground and/or indulge in undesirable activities, detrimental to the national security. On 9/6/2009 the petitioner addressed a letter to the office of respondent no.1 and informed that he was making preparations to leave the country by 29/6/2009. 5. When this petition came up for further hearing on 10/9/2009 for the first time it was directed that the petitioner be not deported for a period of two weeks and his movements be also not confined within the Cities of Pune and Mumbai till further orders from this court. The said order has been continued from time to time, as a result of which no further coercive action was taken against the petitioner by the respondent no.1. Shri Ravindra Sengaonkar, Deputy Commissioner of Police and Foreigners Registration Officer at Pune has filed affidavit-in-reply and explained the procedure for either grant of Visa or extension of Visa under the Registration of Foreigners Rules, 6 1992 and the Foreigners Order, 1948. The petitioner has filed additional affidavits/rejoinders. Shri Rajvardhan, presently working as the Foreigners Regional Registration Officer at Mumbai has also filed affidavit-in-reply on 18/8/2009 and Shri Ashim Khurana, Joint Secretary, Ministry of Home Affairs, New Delhi has filed affidavit-in-reply on behalf of respondent no.5 and along with same he has brought on record the notings in the file processing the petitioner’s application for extension of Visa. The said notings indicate the reasons for declining the petitioner’s request for extension of Visa and the said reasons are, (a) his income tax returns for the last three years showed his gross total income at less than Rs.1 lac per annum; (b) he was not earning enough to sustain a decent livelihood in a foreign country and (c) the income reported to be earned by him, as per his income tax returns, has not been even minimum taxable income to justify his continued stay in India on business Visa. To this affidavit- in-reply filed by Shri Khurana, the petitioner has filed rejoinder and alleged that affidavit filed by Shri Khurana was not authorized by the Secretary, Home Affairs, Government of India. He also claimed that his Senior Counsel had met the Hon’ble Home Minister on 22/9/2009 who had assured that he would get a decision before the hearing. 6. Mr. Jethmalani, the learned Senior Counsel, after going into the reasons for rejecting the petitioner’s application for extension of business Visa, limited his arguments only on the point that, (a) the petitioner ought to be given an opportunity of submitting a representation against the said rejection and (b) for deciding the said representation, the petitioner must be heard by the Competent Authority. These 7 arguments are mainly based on the decision of the Supreme Court in Hasan Ali Raihany’s case (Supra). Mr. Khambata, the learned Addl. Solicitor General, on the other hand, submitted that once the application for extension of business Visa has been rejected, there is no provision or necessity or legal requirement to allow the petitioner to submit a representation and hear him on the same. In this regard, Mr.Khambata relied upon the following decisions:- (a) Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta and ors. [AIR 1955 SC 367]. (b) Louis De Raedt vs. Union of India [AIR 1991 SC 1886]. (c) State of Arunachal Pradesh vs. Khudiram Chakma [AIR 1994 SC 1461]. 7. In the case of Hans Muller (Supra), the Supreme Court held that the Foreigners Act confers the power to expel foreigners from India and 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 the case of Louis De Raedt (Supra), it was held that the fundamental right of the foreigners is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country. In Khudiram Chakma’s case, the Supreme Court referred to Louis De Raedt’ case (Supra) and reiterated that Articles 19(1)(d) and (e) are unavailable to foreigners because those rights are conferred only on the citizens and, 8 therefore, the machinery of Article 14 cannot be invoked to obtain that fundamental right. It further held that the rights under Article 19(1)(d) and (e) are expressly withheld to the foreigners. 8. We are, therefore, required to consider the only issue as to whether the petitioner is required to be allowed to submit a representation and further he is required to be heard on the same before he is deported from this country. As noted earlier, these rights are claimed by the petitioner only on the basis of the decision in the case of Hasan Ali Raihany (Supra). It would be appropriate to reproduce the following paragraphs of the said decision so as to appreciate the facts therein:- “2. The case of the petitioner is that he was born in India to parents who were Iranian citizens. He was educated in India and thereafter intended to stay in India. He applied for grant of Indian passport on 15/7/2003 in response whereto he was required to comply with certain formalities. It appears that on the night intervening 7-10-2005 / 8-10-2005 the petitioner was deported to Tehran. His grievance is that he was never informed as to why such action was taken against him. Be that as it may, he applied again to the Indian Embassy in Tehran to grant him entry visa enabling him to enter this country so that he could settle his pending matters in this country. According to the petitioner, he has been doing business in this country and, therefore, his sudden deportation has created complications for him, and it became absolutely necessary 9 for him to come to India to settle those matters. A single entry permit was issued to the petitioner by the Indian Embassy in Iran which was valid for the period from 8/11/2005 to 8/2/2006. On that basis, the petitioner has re-entered this country. 3. The petitioner states that he is being summoned to Kurla police station every day and is being unnecessarily harassed. His suspicion is that he may again be deported in the same manner as was done on the last occasion without intimating him the reasons why he was sought to be deported and without giving him an opportunity of being heard. 4. We may observe that earlier, a residential permit was issued to the petitioner which has been extended from time to time and which stood extended till 3/12/2007. However, while deporting him, the authorities cancelled the residential permit.” 9. From the above facts in Hasan Ali Raihany’s case, it is clear that, (a) he was born in India to parents who were Iranian citizens; (b) he was educated in India and thereafter intended to stay in India, (c) he had applied for grant of Indian passport on 15/7/2003 and in response whereto he was required to comply with certain formalities; (d) on the night intervening 7-10-2005 and 8-10-2005 he was deported to Tehran and he was not informed as to why such action was taken against him, (e) the residential 10 permit was issued to him which was extended from time to time and which stood extended till 3/12/2007, however, while deporting him, the authorities cancelled the residential permit and (f) a single entry permit was issued to him by the Indian Embassy at Iran which was valid for the period from 8/11/2005 to 8/2/2006 and on that basis he had re-entered the Indian territories. These facts are not applicable to the petitioner’s case in as much as he is an Israeli national, his business Visa was extended from time to time and his last request for extension was rejected and with reasons. The petitioner has not made any application for grant of Indian citizenship and he was not born in India. The petitioner entered this country on a business Visa and his request for extension of the same has been turned down. The reasons for rejection of Visa, as noted hereinabove, cannot be a subject matter of judicial review. The observations made by the Supreme Court in the case o f Hasan Ali Raihany so as to give an opportunity of submitting a representation and deciding the same after hearing by the Competent Authority are required to be read in the facts of that case and cannot be made applicable in the petitioner’s case. As per the policy for issuance of business Visa, the foreigner, who is doing petty trading is not entitled to grant business Visa. It was contended before us by the petitioner that he was not a petty trader and he is one of the Directors of a Private Limited Company. We do not have any record before us to know the business turnover of the said Company, but the fact remains that the petitioner’s income tax return for a continuous period of three years showed his gross income of less than Rs.1 lack per annum and, therefore, he had not paid any income tax. It was also noted that he had obtained business Visa from 11 countries other than his own country i.e. Israel. For example, the business Visa obtained from Hongkong was valid till 12/6/2006 and the business Visa obtained from Holland was valid till 13/3/2007 as has been stated in the affidavit-in-reply filed on behalf of the respondent no.5. Once the petitioner’s application for extension of business Visa has been rejected, the inevitable result is that he has to leave this country and he does not have any vested right for extension of business Visa. His contentions that even after rejection of his Visa, he must be given an opportunity to submit a representation to the Competent Authority and the said authority must hear him before passing any further order, are unsustainable. No foreigner whose request for Visa or for renewal of the same has been rejected is contemplated to be given such a right either under the Foreigners Act, 1946, the Foreigners Order, 1948 and the Registration of Foreigners Rules, 1992. We have also noted that M/s. Dakini Health Foods Pvt. Ltd. does have other directors to run it. 10, In the premises, this petition fails and the same is hereby dismissed. Rule is discharged. Ad-interim order passed earlier stands vacated. (R.Y. GANOO, J.) (B.H. MARLAPALLE,J.)