Madras High Court
K.Arulinbathevar Alias Ayya vs The State Of Tamilnadu Rep. By on 13 July, 2017
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.07.2017
CORAM
THE HON'BLE MR.JUSTICE P.N.PRAKASH
W.P.(MD) No.24132 of 2016
K.Arulinbathevar alias Ayya ... Petitioner
-vs-
1. The State of Tamilnadu Rep. by
Joint Secretary to Government,
Public (SC) Department,
Secretariat, Chennai.
2. Director Collector,
Trichirappalli, Trichy District.
3. The Superintendent of Police,
Q-Branch CID., Chennai.
4. The Inspector of Police,
Q-Branch CID.,
Kanyakumari District at Nagercoil.
5. The Inspector of Police,
Q-Branch CID.,
Coimbatore. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
G.O.SRIII/942-2/2016 dated 11.08.2016 and quash the same and allow the
petitioner to reside along with his wife and children at Coimbatore refugees
Camp and pass such further or other orders as this Hon'ble Court may deem fit
and proper in the nature and circumstances of the petition.
!For Petitioner : Mr.S.Titus
^For Respondents : Mr.T.S.Mohammed Mohideen,
Addl. Govt. Pleader
Reserved on
Pronounced on
29.06.2017
13.07.2017
:ORDER
This petition has been filed, seeking to call for the records of G.O.SRIII/942-2/2016 dated 11.08.2016 and quash the same and allow the petitioner to reside along with his wife and children at Coimbatore refugees Camp.
2. According to the petitioner, he is a Srilankan Tamil refugee and has come to India with his family sometime in the year 2009, because of the ethnic violence in Sri Lanka. The petitioner and his family were provided accommodation in the Srilankan Refugee Camp at Malayandipattinam, Kottapattu, Coimbatore. While so, the petitioner was arrested by the Q-Branch Police on 28.06.2016 in connection with a case in Crime No.1 of 2016 for offences under Sections 120-B, 370 and 420 IPC and Section 12(1)(a) of the Passports Act, 1967, Section 14(b) and (c) of the Foreigners Act, 1946 r/w Para 5 of Foreigners Order 1948 and Section 14-C of the Foreigners Act, 1946 and was remanded to judicial custody by the Judicial Magistrate, Eraniel and was lodged in the Sub Jail, Nagercoil.
3. The allegation in Crime No.1 of 2016 is that this petitioner and others had collected money from various Srilankan refugees on the promise of taking them by sea to Australia and settling them there. On reading of the FIR in Crime No.1 of 2016, it is seen that the complainant is one Rajesh, who is also a Srilankan refugee and he has alleged that the petitioner and others had collected around Rs.1,50,000/- from several families and taken them by boat upto Kanyakumari Coast and after relieving of their monies brought them back saying that Police had got scent of the operation and that the voyage will be thwarted. Eleven accused in Crime No.1 of 2016 filed bail application in Crl.O.P.(MD) Nos.16667 and 17085 of 2016 before this Court and they were granted bail on the following conditions:
?4. Considering the facts and circumstances of the case, this Court would direct release on bail on their executing surety bonds. The petitioners shall be required to stay at Special Camp at Trichy pending committal in P.R.C.No.48 of 2016 on the file of Judicial Magistrate, Eraniel and conclusion of trial.
5. Interim bail already granted is made absolute.?
4. Following this order, the Sessions Court, Kanniyakumari District at Nagercoil granted bail to the petitioner in Crl.M.P.No.3049 of 2016 on 05.10.2016 with the following conditions:
?In the result, the petitioner is ordered to be enlarged on bail on his executing surety bonds and on condition that the petitioner shall stay at Special Camp, Trichy pending committal in PRC No.48/2016 on the file of Judicial Magistrate, Eraniel and conclusion of trial.?
5. In view of the above, the Government of Tamil Nadu passed the impugned order dated 11.08.2016, under which the petitioner was directed to be lodged in the Special Camp for Sri Lankan immigrants / refugees at Trichy, challenging which, this writ petition has been filed.
6. Heard Mr.S.Titus, learned counsel for the petitioner and the learned Additional Government Pleader appearing for the State.
7. Learned counsel for the petitioner submitted that the impugned order has been passed by the State Government in exercise of the power under Section 3(2)(e) of the Foreigners Act, 1946 (in short ?the Act, 1946); that under the said provision, it is only the Central Government, which has the power and not the State Government; that before passing an order under Section 3(2)(3) of the Act, 1946, the petitioner must be heard; that he has been granted bail by the Court and therefore, he cannot be detained in the Special Camp, as that would amount to restricting his right to free movement and thereby violative of Article 21 of the Constitution of India; that he must be permitted to live with his family in the Coimbatore Refugee Camp like any other free person; that the Special Camp at Trichy was constituted by G.O.(2D) No.274 dated 26.07.2011 only to accommodate LTTE Cadres and its Supporters and therefore, the petitioner, who is neither a member of LTTE nor its supporter, cannot be lodged therein. Learned counsel for the petitioner placed strong reliance on the following judgments:
i) State of U.P. vs. Kamal Kishore Saini, reported in (1998) 1 SCC 287;
ii) Sophia Gulam Mohd. Bham vs. State of Maharashtra and Others, reported in (1999) 6 SCC 593;
iii) Nazir Ahmed Gujar vs. State of J&K and another, reported in (2005) 12 SCC 501
8. Per contra, the Joint Secretary to Government, Public (Strictly Confidential) Department has filed a counter affidavit dated 01.02.2017 justifying the impugned order and contending that the confinement of the petitioner in the said Camp cannot be construed as detention in prison, because the petitioner and his inmates therein are given far more privileges like payment of dole, etc.
9. This Court gave its anxious consideration to the rival submissions.
10. It is beyond cavil that a refugee in India is essentially a Foreigner and therefore, the provisions of the Foreigners Act, 1946 will apply to the petitioner. The issue relating to the power of the State Government to pass orders under Section 3(2)(e) of the Act, 1946 is no more res integra in view of the authoritative pronouncement of the Hon'ble Division Bench of this Court in Kalavathy etc. vs. State of Tamil Nadu etc., reported in 1995-2-L.W.(Crl.) 690(2), wherein the Division Bench has held as follows:
?15.......If that be so, under Section 3(2)(e) of the Act, the State Government does have the power, to require foreign nationals, not only to reside in a particular place, as a special refugee camp, but also have power to impose restrictions, on their movements. Power, to pass orders under Section 3(2)(e) of the Act, indisputably has been delegated by the Central Government to the State Government. We are unable to agree, that the foreigners involved in these writ petitions, have been arrested and detained or confined. Only certain limited restrictions have been made in their movements and place of residence. A special refugee camp cannot be termed as an internment camp. If that be so, the argument that the impugned orders must be deemed to have been made under Section 3(2)(g) of the Act cannot survive. Similarly, the protection sought under Article 22(4) of the Constitution also, cannot exist, since the said Article deals with protection against arrest and detention in certain cases.
11. The law laid down in Kalavathy's case was subsequently approved by a Full Bench of this Court in Sree Latha vs. Secretary to Government and others, reported in (2007) 2 MLJ (Crl) 1320.The various judgments relied upon by the learned counsel for the petitioner relate to Preventive Detention Laws and do not relate to the subject at hand and therefore, it may not be necessary for this Court to discuss those judgments.
12. As regards the contention of the learned counsel for the petitioner that the petitioner was not heard before the impugned order was passed, this Court is of the view that there is no necessity for hearing the petitioner, because the order passed under Section 3(2)(e) of the Act, 1946 is not a detention order stricto senso, but it is only an order lodging a Foreigner in a Special Camp for certain reasons. This issue has also been dealt with by the Division Bench in Kalavathy's case, the relevant portion of which is as follows:
?19. Recently, the Supreme Court had occasion to consider the fundamental right of a foreigner to life and liberty under Art.21 of the Constitution. In respect of the right to be heard, the Apex Court stated, that there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. In the said case Louis De Raedt v. Union of India (AIR 1991 S.C. 1886) after quoting its earlier view in Hans Muller of Murenburq v. Superintendent, Presidency Jail, Calcutta (AIR 1955 S.C.367) stated, that the power of the Government in India to expel foreigners was absolute and unlimited and there was no provision in the Constitution fettering this discretion. Regarding the right to be heard it was held that there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case. The Supreme Court further observed, that it was not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do, in the absence of a notice. We have already stated, that reasonable restriction imposed on certain foreigners (Sri Lankan nationals) was in the interests of the security of the State and further those persons have been furnished with an opportunity to obtain permission of the concerned Collector, before they could seek to go out of the special refugee camps.?
13. In this case, the petitioner was permitted to live with his family in the Refugee Camp at Coimbatore. The petitioner was involved in a criminal offence; that an FIR was registered against him as stated above and that he was released on bail. While granting bail to the petitioner, the Court has specifically stated that he should be lodged in a Special Camp and therefore, it became imperative for the State Government to pass the impugned order for lodging him in the Special Camp at Trichy. The contention of the learned counsel for the petitioner that the Special Camp in Trichy was established to house the LTTE cadres and sympathisers and therefore, the petitioner cannot be lodged there, cannot be countenanced. It is true that the said camp was established to house the LTTE cadres and sympathisers. It is common knowledge that LTTE operations have almost come to an end and therefore, it cannot be said that the space in the Special Camp in Trichy cannot be used for housing other foreigners who are involved in offences in this country.
This can be best explained by a simple analogy. A building may be constructed by the Government for housing the District Munsif Court in a particular place. Subsequently, when a Combined Court Complex is built, the District Munsif Court will be shifted from the building which was constructed to house the said Court, to the Combined Court Complex. In such an event, can't the said building which was constructed for housing the Distric Munsif Court be used for housing the Consumer Court or any other Tribunal? Can it be said that since the building was built for housing District Munsif Court, it cannot be used for any other purpose? So too, though the Special Camp at Trichy was initially established for housing LTTE cadres and sympathisers, after the end of the ethnic conflict in Sri Lanka, there is a marked decline in the activities of the LTTE in Tamil Nadu. Therefore, it is perfectly legitimate for the State to house other foreigners in the Special Camp at Trichy. At the risk of repetition, the Special Camp at Trichy, though located near the Central prison, Trichy, is not a prison. In fact, the State Government pays Rs.100/- per head per day vide G.O. Ms.No.491, Public (SC) Department dated 06.05.2015, to the inmates including the petitioner herein. The family members are permitted to meet the inmates freely during day hours. Therefore, the petitioner, having been involved in an offence here, cannot claim as a matter of right to be lodged in the Coimbatore Refugee camp.
14. In the result, this petition is devoid of merits and the same is accordingly dismissed. No costs.
To:
1. The Joint Secretary to Government, State of Tamilnadu, Public (SC) Department, Secretariat, Chennai.
2. The Director Collector, Trichirappalli, Trichy District.
3. The Superintendent of Police, Q-Branch CID., Chennai.
4. The Inspector of Police, Q-Branch CID., Kanyakumari District at Nagercoil.
5. The Inspector of Police, Q-Branch CID., Coimbatore.
.