Kerala High Court
Unknown vs By Advs.Smt.S.Sindhu on 8 December, 2015
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940
WA.No. 437 of 2016 IN WPC. 14641/2015
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AGAINST THE JUDGMENT IN WP(C) 14641/2015 of HIGH COURT OF KERALA
DATED 08-12-2015
APPELLANT(S)/PETITIONER
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ISLAND AVIATION SERVICES LIMITED
NATIONAL CARRIER MALDIVES, TRIVANDRUM INTERNATIONAL
AIRPORT, TRIVANDRUM, REP.BY THE STATION MANAGER,
MR.STANLEY PAULUS, RESIDING AT SHALOM, A11, TENNIS CLUB ENCLAVE,
KOWDIAR, JAWAHAR NAGAR, TRIVANDRUM-695 003.
BY ADVS.SMT.S.SINDHU
SRI.S.SHARAN
RESPONDENT(S)/RESPONDENTS:
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1. UNION OF INDIA
REP.BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF
HOME AFFAIRS, FOREIGNERS DIVISION (IMMIGRATION SECTION)
NDCC-II BUILDING, JAI SINGH ROAD, NEW DELHI - 110 001.
2. FOREIGNERS REGIONAL REGISTRATION OFFICER
BUREAU OF IMMIGRATION (MHA), VAZHUTHACADU,
TRIVANDRUM - 695 001.
3. JOINT SECRETARY
MINISTRY OF HOME AFFAIRS, FOREIGNERS DIVISION (IMMIGRATION SECTION),
NDCC-II BUILDING, JAI SINGH ROAD, NEW DELHI -110 001.
BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2018 ALONG WITH W.A.NOS.740
AND 1494 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
HRISHIKESH ROY, Ag.C.J.
&
C.T. RAVIKUMAR, J.
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W.A.Nos.437, 740 & 1494 of 2016
==========================
Dated this the 13th day of June, 2018
JUDGMENT
Hrishikesh Roy, Ag.C.J. The appellants in W.A.Nos.437 and 740 of 2016 are represented by Smt. S.Sindhu. The appellants in W.A.No.1494 of 2016 are represented by the learned Assistant Solicitor General. It may be noted that both the counsels are representing the contesting parties in all the three appeals.
2. The challenge in the writ petitions is to the Ext.P6 series orders, whereby the Island Aviation Services Limited was penalised under Section 3 of the Immigration (Carriers' Liability) Act, 2000, for bringing in passengers of Maldivian origin, without the required Visas. The primary authority of the Foreigners Regional Registration Officer-cum-Civil Authority, Trivandrum noted that the Maldivian national was brought in by the airline on 2.6.2014 by Flight No.Q2 W.A.Nos.437, 740 & 1494/2016 2 700 into India, through the Trivandrum International Airport, without valid Indian Visa.
3. The case projected by the Aviation Company on the other hand is that the passenger had possessed the student Visa and his previous entry and stay in India was based on this particular Visa. Accordingly, it was argued that the counting of the 90 days stay in India will apply only for entry for tourist purpose and the previous stay with the student Visa, should not be taken into account.
4. The primary authority, however, concluded that the Aviation Company infringed the immigration rules by bringing passengers without proper documents and the same may compromise the security of the nation. The familiarity of the operating airline with the immigration rules of the country was also noted by the authority, as well as the information given to all the airlines, under the letter of 5.5.2014, for strict compliance of the immigration requirements.
5. Having noted that foreign nationals were brought in without Visa, the statutory penalty of Rs.1,00,000/- under Section 3 of the Immigration (Carriers' Liability) Act was imposed and this order W.A.Nos.437, 740 & 1494/2016 3 came to be challenged before the appellate authority.
6. By the Ext.P8 series orders, all the appeals were rejected and the Maldivian Airlines was directed to pay penalty of Rs.1,00,000/- for each passenger. The aggrieved Aviation Company then filed separate writ petitions to challenge the penalty order and under the analogous judgment dated 8.12.2015, the learned Single Judge reduced the penalty from Rs.1,00,000/- to Rs.30,000/-, for all the four passengers.
7. Assailing the reduction of penalty, the learned counsel submits that the only penalty to be imposed on the carrier is Rs.1,00,000/- and the law does not make any distinction between first time or multiple offenders. Accordingly, it is argued that the reduction of the penalty from the statutorily stipulated amount, was unmerited.
8. On the other hand, the learned counsel for the Aviation Company submits that since the earlier stay of the concerned passenger was on a student sticker Visa, the re-entry for such passenger to India, without Visa requirement should be allowed.
9. In the above context, we may refer to the Ext.P14 Visa W.A.Nos.437, 740 & 1494/2016 4 requirement stipulated by the Bureau of Immigration which states as hereunder:-
b