Himachal Pradesh High Court
M. Alexander vs Union Of India And Others on 17 May, 2017
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.319 of 2017 alongwith COPC No.96 of 2017 Date of Decision : May 17, 2017 .
CWP No.319/2017 M. Alexander ....Petitioner.
versus
Union of India and others ...Respondents.
COPC No.96/2017
M. Alexander ...Petitioner.
Versus
Sanjeev Gandhi ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes. For the Petitioner : Mr. Abhimanyu Rathor, Advocate, in the Writ Petition as also COPC.
For the Respondents : Mr. Shrawan Dogra, Advocate General, with Mr. Anoop Rattan, Mr. Varun Chandel, Additional Advocates General and Mr. J.K. Verma, Deputy Advocate General, for the respondents-State in Writ Petition as also respondent in COPC.
Mr. Ashok Sharma, Assistant Advocate General, with Ms Sukarma, Advocate.
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Sanjay Karol, Acting Chief Justice The moot question, which arises for consideration, is as to whether the petitioner, who is a .
foreign national, with rejection of his application for extension of visa, and service of notice of exist, has any right to continue to stay in India, for pursuing litigation and taking care of an allegedly ailing citizen of India, of whom, he claims to be the adoptive father. Further, as to At r the whether this Court has jurisdiction to authorize such stay.
2. threshold, we may record petitioner's application dated 17.1.2017, for extension of that visa, stands denied (rejected) by the Ministry of Home Affairs, Government of India, New Delhi and pursuant thereto, Superintendent of Police-cum-Foreigners Registration Officer, has now issued a fresh notice dated 16.5.2017, in the following terms:
"I am directed to inform you vide Ministry of Home Affairs referral reply received on 16-05- 2017, you Alexander Masovianus, USA national, holder of passport no.710945816 dated 09.03.2007 valid upto 08.03.2017, bearing X-Visa valid up to 31-12-2016 (multiple entry) presently residing Rock view cottage, Bhagsu Road, P.O. Mcleodgang Tehsil Dharamshala, Kangra, HP (.) As 03 exit notices dated: 04-01-2017, 12-01-2017 & 14-02-2017 have already been served upon you, but you always taken undue advantage of liberal procedure of this country to prolong stay in ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...3...
India and causing inconvenience and harassment to Government official and civilians (.) Your request for X-Visa extension rejected by MHA and Exit Permitted to you (.) In view of above, as on date your Visa stands expired and your stay in India, henceforth, will be treated illegal (.) .
Therefore, you are directed to arrange your flight ticket by tomorrow and exit India to your native country within twelve hours, otherwise strict legal action will be initiated against you for contravening provisions of "The Foreigner Act, 1946"."
3. We are informed by the learned Advocate General that petitioner has yet not complied with the same and that the toauthorities have consequential actions, so stipulated under the law.
4.
r taken On 28.2.2017, petitioner filed the instant Writ all Petition, praying that:
"i) Issue a writ of mandamus directing Respondent Authorities to correct the clerical error currently subsisting in the existing validity of the last renewal period of the latest X Visa, wherein the period of extension duly paid for was two (2) years as opposed to the erroneous extension period of 1 year 8 months actually given, in accordance with the procedure established by law;
ii) Issue a writ of mandamus directing Respondent Authorities to duly provide Petitioner renewed annual extension of X Visa in accordance with the procedure established by law, as the overall validity of the X visa continues to subsist to the year 2020, and as justified by the performance of their public duly without bias, prejudice or Mala fide against Petitioner keeping in mind the sacred ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...4...
mandate incumbent upon Respondent Authorities as public servants to the citizens and non-citizens alike, as enshrined in the Constitution of India;
.
iii) Issue a writ of certoriari directing the quashing of the three Leave India Notices arbitrarily issued to Petitioner, as stated hereinbefore."
5. On his asking, on 1.3.2017, this Court passed the following interim order:
".................CMP No.1068 of 2017
Notice in the above terms. Objections be filed within two weeks. In the meantime and subject to the objections, the respondents are restrained from harassing the petitioner with a further direction that the petitioner be not pushed back.
.............."
which, however on 12.5.2017, was vacated in the following terms:
"Mr.Ashok Sharma, learned Assistant Solicitor General of India, states that in view of response filed by respondents No.2 and 3 no response is required to be filed on behalf of respondent No.1.
Rejoinder to the reply filed on behalf of the respondents, if any, be filed within three days.
Having heard learned counsel for the parties, at length, prima facie, we are in agreement with the submissions made by learned Advocate General that our interim ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...5...
order dated 1st March, 2017, needs to be vacated.
We are of the considered view that serious allegations against the petitioner for having violated the domestic law stands .
levelled by individuals as also the State. Even statutory Rules have not been complied with. Prima facie, we find no documentary evidence authorizing the petitioner's stay in India beyond 31st December, 2016. Whether with mere deposit of visa extension fee, petitioner is automatically entitled to stay in India, beyond the period of authorization, is what we are called upon to decide by the petitioner. However, prima facie, we are of the view that considering the notices dated 4.1.2017 (Annexure P-7) and 12.1.2017 (Annexure P-8), so issued by the Superintendent of Police Cum- Foreigners Registration Officer, District Kangra at Dharamshala, pursuant to order rejecting the petitioner's request for extension of visa, so passed by Ministry of Home Affairs, petitioner's plea is totally untenable in law. His request of validation of his visa upto 24.4.2017 (Annexure P-6) was not only belated but not pursued any further. In any event, even such date stands expired. As such, we forthwith vacate our interim order dated 1st March, 2017, reserving liberty to the respondents-State to take all appropriate actions, in accordance with law.
List on 17th May, 2017."
6. We firstly proceed to examine the relevant statutory provisions, i.e. The Foreigners Act, 1946 (hereinafter referred to as Act); The Foreigners Order, 1948 (Order 1948); Registration of Foreigners Act, 1939 (The Registration Act); and the Registration of Foreigners Rules, 1992 (referred to as Registration Rules).
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7. Section 2(a) of the Act defines a "foreigner" to mean a person who is not a citizen of India.
8. Sub-section (1) of Section 3 empowers the .
Central Government to make provision for prohibiting, regulating or restricting entry or departure of foreigners into or from India. Sub-section (2) of the said Section, enables passing of orders providing that a foreigner shall not enter India or shall enter India only by such time or such route or place, subject to observance of such conditions on arrival, as may be prescribed. By virtue of clause (c) of the said sub-section, Central Government is empowered to order that the foreigner shall not remain in India. The amount for incurring expense for the maintenance till the time of his removal is to be defrayed from the resources at the disposal. By virtue of clause
(e), the authority may impose conditions, which may be prescribed or satisfied, including requiring a foreigner to reside in a particular place; impose restrictions on his movement.
9. Clause (g) of sub-section (2) of Section 3 specifically empowers the Central Government to make ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...7...
provision for arrest, detention or confinement of a foreigner.
10. The burden of proving as to whether a person .
is or not a foreigner, by virtue of Section 9, is upon such person.
11. Power of delegation is provided under Section 12 and Section 11 empowers the delegatee, to exercise the same, also authorizing any Police Officer to take steps and use such force, as may, in his opinion, be reasonably necessary for securing compliance of any order or direction given under or pursuant to the provisions of the Act or preventing or rectifying any breach thereof. Sub-section (3) of Section 11 confers power, deeming in nature, upon any person acting in exercise thereof, a right of access to any land or other property whatsoever.
12. Section 14 specifically provides that whosoever remains in any area in India, for a period exceeding than so prescribed in the visa, shall be punished with a term which may extend to five years and also pay fine. In fact, Section 13 specifically provides that in the event of failure to comply with the directions ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...8...
contained in the order, the offence shall be deemed to have been committed.
13. The Registration Act empowers the Central .
Government to frame Rules, requiring any foreigner, entering India, to report his presence to the prescribed authority. The Rules framed thereunder also mandate the foreigners to register themselves with the Police Officer by submitting forms and furnishing proof of residence etc.
14.
r to In Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665, the apex Court, while dealing with the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), itself clarified that fundamental right of a foreigner is confined only to the extent of applicability of Article 21 of the Constitution of India, specifically for life and liberty, and not conferring any right to live and stay in India, as enshrined under Article 19(1)(e) of the Constitution, which right is conferred only upon a citizen of India.
15. Further, principles of law with regard to (a) right (s) of a foreign national, (b) duty of the State to expel an alien, and (c) what would be due process of law ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...9...
in dealing with an alien, stands elaborately discussed and principles enunciated in the said report, which, with profit, we extract as under:
.
"74. We consider it necessary here to briefly notice the law regarding deportation of aliens as there appears to be some misconception about it and it has been argued with some vehemence that aliens also possess several rights and the procedure for their identification and deportation should be detailed and elaborate in order to ensure fairness to them.
75. In Introduction to International Law by j. G. Starke (1st Indian reprint 1994) in chapter 12 (page 348) , the law on the points has been stated thus: -
r "Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign government. The courts of great Britain and the United States have laid it down that the right to exclude aliens at will is an incident of territorial sovereignty.
Unless bound by an international treaty to the contrary, States are not subject to a duty under international law to admit aliens or any duty thereunder not to expel them.
Nor does international law impose any duty as to the period of stay of an admitted alien."
Like the power to refuse admission this is regarded as an incident of the State's territorial sovereignty. International law does not prohibit the expulsion en masse of aliens (page 351). Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State party to the Covenant may be expelled only pursuant to a decision reached by law, and except where compelling reasons of national security otherwise ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...10...
require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, .
namely, with valid passport, visa etc. and not to those who have entered illegally or unlawfully. Similar view has been expressed in oppenheim's International Law (Ninth Edn. 1992 - in paragraphs 400, 401 and 413). The author has said that the reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy, competent to exclude aliens from the whole or any part of its territory. In paragraph 413 it is said that the right of states to expel aliens is generally recognized. It matters not whether the alien is only on a temporary visit, or has settled down for professional business or any other purposes on its territory, having established his domicile there. A belligerent may consider it convenient to expel all hostile nationals residing or temporarily staying within its territory; although such a measure may be very harsh on individual aliens, it is generally accepted that such expulsion is justifiable. Having regard to Article 13 of the international Covenant on Civil and Political Rights, 1966, an alien lawfully in a state's territory may be expelled only in pursuance of a decision reached in accordance with law.
76. In Rex v. Bottrill, 1947 1 KB 41, it was said that the king under the Constitution of United Kingdom is under no obligation to admit into the country or to retain there when admitted, any alien. Every alien in the United Kingdom is there only because his presence has been licensed by the King. It follows that at common law the King can at will withdraw his license and cause the Executive to expel the alien, whether enemy or friend. For holding so reliance was placed on Attorney-General for Canada v. Cain, 1906 AC 542, where Lord Atkinson said: -
"One of the rights possessed by the Supreme power in every State is the right to ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...11...
refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the state, at pleasure, even a friendly alien, especially if it considers his presence in the state opposed to its peace, .
order, and good government, or to its social or material interests."
In Chae Chan Ping v. United States, 130 US 581, the United State Supreme Court held:
"The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers r of Government are delegated in trust to the United states, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract."
This principle was reiterated in Fong Yue ting v.
United States, 149 US 698, where the court ruled:
-
"The Government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation. The exercise of this right may be subjected, doubtless, to certain forms by the domestic laws of each country; but the right exists none the less, universally recognized and put in force.::: Downloaded on - 19/05/2017 23:59:57 :::HCHP
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*********** The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country .
by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application."
77. In Nishimura Ekiu v. United States, 142 US 651, it was adjudged that, although Congress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might entrust the final determination of those facts to an executive officer, and that, if it did so, his order was due process of law and no other tribunal, unless expressly authorized by law to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its sufficiency. Thus according to United States Supreme Court the determination of rights of an alien even by Executive will be in compliance of due process of law.
78. In Louis De Raedt v. Union of India, (1991) 3 SCC 554, the two foreign nationals engaged in missionary work had come to India in 1937 and 1948 respectively with proper documents like passport and visa etc. and were continuously living here but by the order dated 8th July, 1987 their prayer for further extension of the period of stay was rejected and they were asked to leave ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...13...
the country by 31st July, 1987. They then challenged the order by filing a writ petition. This Court held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the constitution fettering its discretion and the executive .
government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, 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.
79. In State of Arunachal Pradesh v. Khudi Ram Chakma, 1994 Supp(1) SCC 615, following Louis De Raedt (supra), it was held that the fundamental right of a foreigner is confined to article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19 (1) (e) , which is applicable only to the citizens of the country. After referring to some well- known and authoritative books on International Law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under International Law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in political activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the interest of national security or public order. Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life. Thus, the Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and they are liable to be deported." (Emphasis supplied).
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16. Having noticed the law, we now proceed to apply the principles to the attending facts.
17. A reading of the record reveals that petitioner, .
who is a citizen of United States of America, in the year 2009, came to India, on a tourist visa, which was valid upto 26.4.2010. On 15.4. 2010, he got himself registered with the Office of Foreigners Registration Officer, Shimla.
Thereafter, he came to Dharamshala and on 25.10.2011, got himself registered in the Office of Foreigners Registration Officer, Dharamshala. Since then he has continued to stay in and around Dharamshala, including McLeodganj.
18. It is a matter of record that petitioner's visa came to be extended only till the year 2015, when a decision was taken by the Ministry of Home Affairs, calling upon him to leave India. Such decision dated 9.3.2015 was duly acted upon by the delegatee, the authorized Officer, i.e. the Superintendent of Police, who called upon the petitioner to leave India. The notice was not acted upon in view of the authority acceding to the petitioner's request of extending visa, which was so done ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...15...
upto 31.12.2016. Such order dated 24.4.2015 (Annexure P-4), stipulated as under:
"Special Endorsement:
.
HIS TOURIST VISA WAS CONVERTED INTO XVISA BY MHA VIDE MHA ID NO.1326/F-2-10. FURTHER EXTENSION WILL BE GIVEN ON PRESENTATION OF VALID MEDICAL DOCUMETNS OF THE PATIENT HE IS TAKING CARE."
19. Record reveals, for there is no other document, even prima facie, suggesting anything to the contrary, that till 28.12.2016, petitioner did not submit any record or agitate the issue of the period of extension being short, when vide his written request (Annexure P-
6), he requested the authorities to correct the "clerical error", which had crept in the passing of the order, for his visa ought to have been extended upto 24.4.2017 and not 31.12.2016, for the only reason that "fee" stood deposited by him for a period of "two years".
20. Presumably, even though no decision thereupon was taken by the authorities, yet petitioner continued to stay in India even beyond 31.12.2016.
Consequently, notices dated 4.1.2017 (Annexure P-7) & 12.1.2017 (Annexure P-8) came to be issued by the authorized Officer, i.e. the Superintendent of Police-cum-
Foreigners Registration Officer, District Kangra at ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...16...
Dharamshala, asking him to arrange for his ticket and leave India (within five days from the last notice), failing which proceedings under the Act would be initiated.
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21. Petitioner responded to the same, by way of reply dated 16.1.2017 (Annexure P-10), requesting for extension of his visa for the reason that (i) his presence was required to take care of his ailing adopted son (undisclosed person), and (ii) he had to pursue (a) a case pending before this Court, (b) participate investigation in relation to FIR No.4/2015, 55/2015 & 93/2014, registered at different Police Stations of District in the Kangra, Himachal Pradesh.
22. Also, on 16.2.2017 (Annexure P-12), he made a request to allow him to continue to reside in India on "humanitarian grounds".
23. At this juncture, one may only observe that even though response to the petition came to be filed by the State on 23.3.2017, despite opportunities being afforded on 23.3.2017, 27.4.2017 and 12.5.2017 and the matter being heard-in-part on 11.5.2017, no rejoinder was filed and only on 11.5.2017, an affidavit, stating that petitioner had developed an "unbreakable bond" of "filial ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...17...
and parental piety" with Mr. Virraj Sorhvi, an Indian National, of whom he had become "de facto guardian"
and an "adoptive parent", which fact came to be .
acknowledged even by the Ministry of Home Affairs, in allowing him to remain in India for last 12 years, as such, he may be permitted to continue to reside in India. Also, his current type 'X' visa was valid upto 24.4.2020, a right accruing with mere deposit of visa fee. A thumb marked
24.
r to affidavit, allegedly sworn by the mother of Mr. Virraj Sorhvi is also placed on record.
From the response so filed by the State, it is quite apparent that after his visit to Dharamshala, petitioner changed his residence thrice, intimation whereof was never furnished to the Office of the Foreigners Registration Officer, thus violating the provisions of the Registration Act and Rules framed thereunder.
25. Allegedly, petitioner has been abusing his liberty, for ever since his arrival in Dharamshala, there are complaints of his causing disturbance and annoyance to the local public. He did not pay rent to the landlords, whose premises he had been occupying. On the ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...18...
contrary, for vacating the rented accommodation, he had been extorting money. Well these are allegations and complaints and counter complaints came to be lodged, .
both against and by the petitioner. Further, not only did he fail to disclose in detail, the identity of Mr. Virraj Sorhvi, but also did not furnish particulars of the nature of current ailment or produce any medical record subsequent to the year 2008.
26. Emphatically, it is pointed out that petitioner had chosen to reside, rather continuously, at McLeodganj, and that too, within a radius of one kilometer from the personal residence of His Holiness the Dalai Lama. We find, the Superintendent of Police, District Kangra, on an affidavit, to have expressed his reservation about the petitioner's presence in the area, also for the reason that there are vital military establishments in the area. The Officer is categorical that petitioner's act and conduct has rendered his presence, physical in nature, at McLeodganj, to be undesirable. His chequered history of litigation is an apprehension in that regard.
27. Quite apparently, petitioner failed to disclose the places of his residence. No doubt, he was stationed ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...19...
at McLeodganj, but then continued to change his residence, particulars whereof never came to be disclosed. Police complaints stand registered against the .
petitioner for non-payment of rent and causing nuisance to the house owners.
28. Mr. Virraj Sorhvi is the biological son of one Sona Devi, daughter of Shri Nandram, widow of late Shri Ganga Ram Nagar, resident of village Sorha, Tehsil r to Islamnagar, District Badaun, Uttar Pradesh, which fact is evident from a photocopy of an affidavit, annexed by the petitioner with his affidavit dated 9.5.2017. Now significantly, neither from this affidavit nor from any other document, it can be inferred that after 2008, this person had received any medical treatment either at Dharamshala or anywhere else in the State of Himachal Pradesh. Why would a person, a resident of Uttar Pradesh, who met with a motor vehicle accident at Kurukshetra (Haryana), choose to reside at McLeodganj (Himachal Pradesh), remains undisclosed. He is certainly not under any medical care or advice at McLeodganj. It is also not that there is none else in his family to look after him. Be that as it may, fact of the matter being that ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...20...
today petitioner has no right to stay. His visa stood expired and lastly on 16.5.2017 he has been asked to leave India.
.
29. When confronted with the aforesaid fact situation, in order to establish his right of continuing to stay any further in India, learned counsel invited our attention to the following decisions rendered by the apex Court in: Mohd. Khalil Chisti v. State of Rajasthan, (2013) 2 SCC 563; Jet Ply Wood (P) Ltd. and another v. Madhukar Nowlakha and others, (2006) 3 SCC 699; O. Konavalov v.
Commander, Coast Guard Region and others, (2006) 4 SCC 620; and Sarbananda Sonowal (supra).
30. We are afraid, this Court has no authority or jurisdiction to confer any such right upon the petitioner.
In an equitable jurisdiction, this Court is to adjudicate and decide such of those rights of all living beings, emanating from international treaties, Constitution or Statutes. The law enunciated in Sarbananda Sonowal (supra) is clear.
Only a citizen of this country, and other authorized person, has a right to stay in India. And certainly petitioner cannot be said to be a person so authorized ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...21...
under the provisions of either Municipal Laws or International Covenants.
31. Applying the statutory provisions to the .
attending facts and circumstances, the only conclusion which one can arrive at is that petitioner's presence in India, subsequent to the expiry of his visa and the period so prescribed in the notice, is not lawful. Visa, which stood expired on 31.12.2016 (Annexure P-4), never came to be extended, for there is nothing on record that any valid medical documents of the patient of which the petitioner was taking care of, ever came to be presented to the relevant authorities. It is not a case of clerical error, as is so projected by the petitioner. The order is specific.
32. Law does not provide for automatic renewal of visa, much less with the deposit of fee. In the instant case, fee deposited is by way of a challan, for which no prior authorization or sanction was obtained. Even with regard to deposit of fee, as is so evident from the affidavit of the Superintendent of Police, one finds that petitioner did not pay the fee, in terms of the prescribed schedule. There would be a shortfall of approximately ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...22...
120 dollars for each year, i.e. from the year 2011 to 2016. Whether it would be so or not is otherwise immaterial.
.
33. Be that as it may, what weighed with the Court in the passing of interim order dated 1.3.2017, was the pendency of petitioner's application (Annexure P-6) and now with the rejection of the same, petitioner has no right to continue to remain on the soil of this nation beyond 31.12.2016.
Assuming that his grievance, so agitated in terms of Annexure P-6, was genuine, what is unexplainable is as to why he waited to agitate his grievance till 28.12.2016, for after all the alleged clerical error took place on 24.4.2015, the date on which visa came to be extended (Annexure P-4).
34. Assuming hypothetically that the authority had committed an error, in any case, we are well past 24.4.2017, the period for which petitioner had himself sought extension, in terms of such request.
35. Firmly, we are of the view that Officers of the State showed restraint in not exercising their powers, statutory in nature, so stipulated under Sections 11 and 14 of the Act. Enough opportunity was afforded and ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...23...
indulgence shown to the petitioner for leaving the country by affording reasonable time.
36. There is no Rule which prescribes automatic .
extension of visa. Thus petitioner's prayer (ii) cannot be allowed.
37. We may only observe that allegations of bias, prejudice and malafide are absolutely vague and unspecific, with regard to time, manner, place and person. To the contrary, we rather find the authorities to have acted with due caution and always exercised restraint.
38. Law does not authorize a foreigner, so defined under the Act, to remain on the soil of this country any moment longer than the period so authorized, in accordance with law, be it for whatever purpose.
39. Undoubtedly, law postulates the respondents-
authorities to take action, which, in our considered view, in right earnestness, stands taken in asking the petitioner to leave the country. Thus, the impending action cannot be said to be perverse, illegal or arbitrary.
40. O. Konavalov (supra) only reiterates some of the principles enunciated in Sarbananda Sonowal (supra).
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We do not find the decision rendered in Jet Ply Wood (supra), to be applicable at all.
41. Similarly reliance upon Mohd. Khalil Chisti .
(supra), is of no assistance for, as is evident from Para-6 of the report, the decision is rendered in the peculiar facts and circumstances, not to be treated as a binding precedent.
42. By way of this petition, Court is neither called upon nor is required to monitor the investigation. It is for the authorities to consider, in whatsoever capacity (complainant or an accused) presence of petitioner would be secured, either during the course of investigation of criminal complaint(s) or trial, if any. This Court does not form or express any opinion with regard thereto.
43. Further, Virraj Sorhvi is not a minor.
Petitioner, for whatever reason may have unbreakable bond, be it "filial" or for "parental piety" or otherwise, with the said person, but then the welfare State has mechanism of taking care of its citizens, even those who are living either in pecuniary or destitution. Noticeably, for whatever reason, petitioner has also not chosen to ::: Downloaded on - 19/05/2017 23:59:57 :::HCHP ...25...
take him to his native country. We clarify that we have not gone into the antecedents of Virraj Sorhvi.
44. Neither does the Constitution nor the statute .
confers any right upon a foreigner to endlessly remain on the soil of this country, save and except under the procedure established by law, for pursuing any litigation or conferring any love or affection on an Indian national.
45. We also do not find the acts of the respondents-officials to be contumacious in any manner.
46. As such, in view of the aforesaid, we find no merit in the Writ Petition, which is accordingly dismissed.
In view of the dismissal of the Writ Petition, to put quietus to the matter, we also dispose of the Contempt Petition. Pending application(s), if any, also stand disposed of.
Copy dasti.
( Sanjay Karol ),
Acting Chief Justice
( Sandeep Sharma ),
May 17, 2017(sd) Judge.
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