Bombay High Court
Nataliya Yesaulenko vs Union Of India And Anr on 28 January, 2020
Author: R.I. Chagla
Bench: S.C. Dharmadhikari, R.I. Chagla
901.OSWP3054.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3054 OF 2019
Nataliya Yesaulenko ... Petitioner
Vs
1 Union of India & Anr. ... Respondents
Ms. Nataliya Yesaulenko - the Petitioner present in person.
Mr. Sandesh Patil with Mr. D.P. Singh for the Respondent.
Mr. Bhupesh Bawankar, DICO/AFRRO present.
Mr. Ravindra Katkar, PI, present.
Mr. Sambhaji Sable, PI, present.
CORAM : S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
TUESDAY, 28TH JANUARY, 2020 P.C. :
1 By this petition under Article 226 of the Constitution of India, the petitioner Ms. Nataliya Yesaulenko, a Ukrainean citizen, is seeking the following reliefs :
(a) Issue a writ in the nature of Mandamus or any other appropriate writ, direction or order thereby directing the Respondent No.1 to consider grant of 5 year visa for which petitioner is duly qualified.SRP 1/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc
(b) To direct an enquiry or investigation into the illegal, wrongful and malafide conduct of the officials FRRO and to ascertain and fix the responsibility and liability and punish the wrongdoers found guilty;
(c) To grant compensation or unliquidated damages to the Petitioners in a sum as deemed fit in the facts and circumstances of the case to be paid by Respondents jointly and severally;
(d) Award exemplary costs to the Petitioner for mental agony, irreversible hardship, severe trauma suffered, harassment, loss of dignity, pain and suffering and psycho disorder;
(e) To direct the Respondents to consider immediately the application of Petitioner and grant long term visa for this court matter as even though the petitioner is lawfully entitled to OCI card as per due entitlement of petitioner, she has now chosen to abstain from procuring the same after going through this arduous ordeal which has left a bitter taste in her mouth w.r.t. the Nation being the Republic of India.
(f) Any other/further relief this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may also be passed in favour of the Petitioner, in the interest of justice.
(g) To direct FRRO to pay Compensation of INR 1Crore for SRP 2/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc racism, intentional refusal to give documents as per her legal status of wife of Indian citizen, for unlawful interfering in her private life, unlawfully charged visa fees, inhuman treatment, humiliation of dignity and honor and deprivation her right for adequate standard of living as per Article 21 of Indian Constitution and Articles 1,2,3,5,7,8,12,16(3),23(3),25 of UDHR.
(h) To direct the FRRO to return unlawfully charges visa fees from period of Sep. 2014 for unjust enrichment of Govt. coffers with total disregard to circumstances of the Petitioner who could very well and easily be granted 5 years visa extension instead of mere 3 mos. repeatedly to extract more fees (as per Rules) in the circumstances of her case.
(i) For stringent action against concerned public servants namely Deepak Patre, Sumesh Nayar, Supriya Patel from FRRO for misguiding, neglect of duties, abuse of power, foru sing lawful power with intent to cause moral injury, for intentional disobedience of Hindu Marriage Act, Constitution of India, UNHR.
(j) To direct a Government to amend Acts applicable to foreigners in predicament of Petitioner.
(k) This Hon'ble Court be pleased to declare the Declaration Form for Spouse & the practice that is being currently followed as most unconstitutional and revoke the requirement of the same with immediate effect & direct the BHA. MEA to issue guidelines immediately worldwide to all SRP 3/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc Indian Commissions, diplomatic missions, consulate & Embassies to take due note thereof & implement the same accordingly.
(l) That this Hon'ble Court be pleased to declare Section clause (f) of newly amended citizenship Act as unconstitutional, void and not in consonance with Universal Declaration of Human Rights that Republic of India is bound to follow."
2 After this petition was argued for sometime we, by consent of both sides and without a reasoned order, dispose it off with the following directions :
(a) The petitioner has stated in the petition that on 11 th June, 2019, she applied for her visa extension. On her application some demands were made, including an additional overstay penalty fees of Rs.5,000/-. The application is kept pending and the apprehension of the petitioner is that it being not granted, she may be treated as illegally and unlawfully residing in India.
(b) We direct that the application made on 11 th June, 2019, having not been disposed of till date, on deposit of the compulsory visa fees of Rs.6,120 (or the fees prevailing today), SRP 4/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc but without the additional overstay penalty fees, the petitioner shall not be deported or any coercive action taken against her till 30th June, 2020. The application of 11th June, 2019 stands disposed of in these terms.
(c) Within this period, the petitioner shall make an application for issuance of a visa of five (5) years and that application shall be considered on its own merits and in accordance with law.
(d) The petitioner must make the application in terms of clause (c) above before 30th March, 2020 and if she does not make this application, then all legal consequences shall follow.
(e) If the petitioner makes this application before 30 th March, 2020, the same shall be dealt with and disposed of in accordance with law before 30th June, 2020, and the decision thereon be communicated to the petitioner.
(f) The petitioner shall render necessary cooperation and assistance to the authorities so as to enable them to comply with SRP 5/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc the order and direction issued today.
(g) Needless to clarify that if the petitioner does not make the application in terms of the aforesaid order and direction, the petitioner will not be able to continue her stay in India beyond 30th June, 2020, unless otherwise permissible in law. If she makes the application, but it is rejected, then, all consequences in law shall follow.
(f) In view of the consent of parties, we clarify that we have disposed of the writ petition without examining the merits of the rival contentions and assigning elaborate and detailed reasons.
(g) The aforesaid has been done purely at the request of the parties and to enable the petitioner, appearing in person, to assert her rights and to seek protection in terms of Articles 14 and 21 of the Constitution of India, both of which do not employ and use the word "citizen" but "person".
3 The writ petition is disposed of with the above SRP 6/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::
901.OSWP3054.19.doc directions. There will be no order as to costs.
4 This order is passed in the presence of the officers from the Foreigners Registration Regional Office and officials of the Department of Home of the Central Government.
5 We clarify that this order is passed in the peculiar facts and circumstances of the case and based on the agreement of both sides.. It shall not be treated as a precedent in cases of like nature.
R.I. CHAGLA, J. S.C. DHARMADHIKARI, J. SRP 7/7 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 11/06/2020 23:22:22 :::