Bombay High Court
Rihen Harshad Mehta vs Union Of India ( Through Ministry Of Home ... on 9 December, 2021
Author: Madhav J. Jamdar
Bench: G.S. Patel, Madhav J. Jamdar
Digitally signed 920 ASWP 4356-2021GROUP.DOC
by HEMANT
HEMANT CHANDERSEN
CHANDERSEN SHIV
SHIV Date: 2021.12.10
17:21:09 +0530
hcs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4356 OF 2021
Rihen Harshad Mehta ...Petitioner
Versus
Union of India and Ors. ...Respondents
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 719 OF 2020
Viraj Chetan Shah ...Petitioner
Versus
Union of India and Ors. ...Respondents
WITH
WRIT PETITION (L) NO. 10149 OF 2021
Viraj Chetan Shah ...Petitioner
Versus
Union of India and Ors. ...Respondents
WITH
WRIT PETITION NO. 1762 OF 2021
AND
INTERIM APPLICATION NO 532 OF 2021
Keshav Ashok Punj ...Petitioner
Versus
Bureau of Immigration and Ors. ...Respondents
Page 1 of 11
9th December 2021
920 ASWP 4356-2021GROUP.DOC
WITH
WRIT PETITION NO. 51 OF 2020
Dr Shrikant Bhasi ...Petitioner
Versus
Bureau of Immigration and Ors. ...Respondents
WITH
WRIT PETITION NO. 837 OF 2020
Gaurav Tayal ...Petitioner
Versus
Bureau of Immigration and Ors. ...Respondents
WITH
WRIT PETITION NO. 162 OF 2020
Jubin K Thakkar ...Petitioner
Versus
Union of India and Ors. ...Respondents
WITH
WRIT PETITION NO. 140 OF 2021
Attaluri Venkateshwara Prasad and Anr ...Petitioner
Versus
Bureau of Immigration and Ors. ...Respondents
WITH
WRIT PETITION NO. 195 OF 2021
Anil Bhanwarlal Mehta ...Petitioner
Versus
Bureau of Immigration and Ors. ...Respondents
Page 2 of 11
9th December 2021
920 ASWP 4356-2021GROUP.DOC
WITH
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2200 OF 2021
Anil M Howale ...Petitioner
Versus
Union of India and Ors. ...Respondents
WITH
WRIT PETITION NO. 262 OF 2020
Anil M Howale ...Petitioner
Versus
The Reserve Bank of India & Ors. ...Respondents
WITH
WRIT PETITION NO. 3338 OF 2020
Vaibhav D Kulkarni ...Petitioner
Versus
The Reserve Bank of India & Ors. ...Respondents
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2624 OF 2021
AND
INTERIM APPLICATION (L) NO. 26878 OF 2021
Punit Agarwal ...Petitioner
Versus
Bank of Baroda & Ors. ...Respondents
WITH
Page 3 of 11
9th December 2021
920 ASWP 4356-2021GROUP.DOC
WRIT PETITION NO. 2843 OF 2021
AND
INTERIM APPLICATION (L) NO 6665 OF 2020
AND
INTERIM APPLICATION (L) NO 1029 OF 2020
AND
INTERIM APPLICATION NO 2944 OF 2021
IN
WRIT PETITION NO. 2843 OF 2021
Punit Agarwal ...Petitioner
Versus
Reserve Bank of India and Ors. ...Respondents
WITH
WRIT PETITION (L) NO. 13683 OF 2020
Sarafaraz A Nizamuddin Siddique ...Petitioner
Versus
Union of India & Ors. ...Respondents
WITH
WRIT PETITION (L) NO. 26378 OF 2021
Mamta Kishore Apparao and Anr ...Petitioner
Versus
Bank of Baroda & Ors. ...Respondents
WITH
WRIT PETITION (L) NO. 3338 OF 2021
Karan Baheti and Anr. ...Petitioners
Page 4 of 11
9th December 2021
920 ASWP 4356-2021GROUP.DOC
Versus
Union of India & Ors. ...Respondents
Mr Anil Singh, Addl. Solicitor General with Mr Rui Rodrigues, Mr
Sandesh Pati, Mr Aditya Thakkar, Mr Y S Bharti, Mr D P
Singh for Union of India in Serial Nos 902, 920, 931, 936, 937,
940
Mr Karl Tamboly, for the Petitioners in Writ Petition No 4356 of
2021.
Dr Birendra Saraf, Senior Advocate, for the Petitioners in Writ
Petition No 719 of 2020 and Writ Petition (L) No 10149 of 2021.
Appearances of Advocates for all other Petitioners and Respondents
are shown in the separate orders made today in Sr Nos 920, 921,
923, 924, 925, 926, 929, 930, 931, 932, 933, 934, 935 and 936 and
may be read as included here.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 9th December 2021 PC:-
1. The entire group of matters is tagged. In all of them, a common question arises about the issuance of what are called "lookout circulars" or LOCs issued by the Government of India, Bureau of Immigration, Ministry of Home Affairs.
2. These LOCs are issued pursuant to a series of circulars or office memoranda. There appear to be eight such circulars/OMs.
Page 5 of 119th December 2021 920 ASWP 4356-2021GROUP.DOC The first of these is 27th October 2010. The very first circular issued guidelines regarding the issuance of LOCs in respect of Indian citizens and foreigners.
3. A LOC entitles the immigration authorities at any port of departure to prevent a person from travelling outside India.
4. These circulars/OMs were amended periodically. One of those amendments, in 2018, introduced a new cause, reason or justification for the issuance of LOCs. This was stated to be "economic interest of India", i.e. that a person can be restrained from travelling if the departure of such a person is detrimental to the economic interest of India. The amendment of 4th October 2018 then introduces one more clause which says that the Chairman, State Bank of India/ Managing Director and Chief Executive Officers of all other public sector banks may also request the Immigration Authorities to issue lookout circulars.
5. The common complaint in every single one of these Petitions is that because an individual or a corporate entity is indebted to some public sector bank, LOCs have been issued resulting in a restraint against the persons/petitioners from travelling overseas. These persons are said to be indebted to such banks or to be connected to the corporate debtors. In some cases, there are civil proceedings. In other cases, there are recovery proceedings before some specialised Tribunal. In others, there are some criminal complaints proceedings. We do not believe that there is single case in the group before us where any of the persons restrained can be Page 6 of 11 9th December 2021 920 ASWP 4356-2021GROUP.DOC said to be "absconding" or a fugitive from justice i.e., evading arrest or a warrant.
6. In some Petitions, the challenge is only to the LOCs. . In at least two Petitions, the challenge is broader. These Petitions, at Serial No. 920 (after amendment) and 921, assail the vires of the office memoranda. These Petitioners question the very power to issue any such office memoranda. The submission is that an office memorandum or circular, by whatever name called, that curtails fundamental rights, and, specifically, the fundamental right under Article 21, cannot be issued by an executive order under Article 73 of the Constitution of India. Any such curtailment must be by statute or Constitutional amendment. There is no third option, is the submission.
7. A second level challenge in these (and perhaps other) Petitions is that the words "economic interest of India" cannot be equated to "financial interests" of any bank. Thus, it is submitted, even if it is held that the office memoranda can be validly issued in law, nonetheless a lookout circular can only be issued if it is contrary to the economic interest of the Nation. The financial concerns of any bank, whether public sector or otherwise, is not equitable to the "economic interests of India".
8. A final point argued to show that the office memoranda are manifestly arbitrary is that there is no cogent, coherent or tenable reason to include only public sector banks in the 2018 Amendment. Indeed, this defeats the purpose because it simply cannot be, or so Page 7 of 11 9th December 2021 920 ASWP 4356-2021GROUP.DOC the argument goes, that only the financial interest of a public sector bank (and not a Scheduled Bank) is in the 'economic interest of India', even assuming that any bank's financial interest can be equated with the economic interests of the nation.
9. Mr Singh, learned ASG, refutes all these formulations. He submits that it is primarily for each of the banks to justify its action in requesting a LOC. The fact that a particular public sector bank may have been wrong in making that request does not and will not invalidate the office memorandum itself. At best, he submits, that particular LOC may be quashed or set aside, but the wrongness or incorrectness of a particular request by a particular public sector bank is not a reason to invalidate the office memorandum itself nor to question the power to issue such office memorandum. He also submits that it is a mistaken assumption that the office memoranda are only to serve the interests of the bank or even limited to economic interest of the country. The OMs are, he submits, much wider in scope and address concerns regarding security, sovereignty, terrorism and other national interest of the country, with not one of which are a single one of the petitioners concerned. It is not only a public sector bank that can request a LOC. Therefore, he submits even if the expression "economic interest of the country" is to receive a narrow and restricted interpretation, and the inclusion of public sector banks is held to be bad in law for whatever reason, this should not result in all office memoranda being held to be unconstitutional or invalid. Indeed, he submits that even the 2018 amendments are valid because the funds of Public Sector banks are all public funds. Mr Singh has a two-fold submission even at this stage. The first is, of course, that all the office memoranda from Page 8 of 11 9th December 2021 920 ASWP 4356-2021GROUP.DOC 27th October 2010 have the full authority of law and are constitutionally permissible. Article 21 of the Constitution has a qualification built into it. The deprivation of life or personal liberty cannot be except according to procedure established by law. The OMs are precisely such a procedure established by law. They do not constitute or entail a blanket infringement on fundamental rights. Each of the memoranda are, he submits, narrowly tailored to operate within well-defined circumstances and parameters. It is not as if every citizen's right to travel is infringed merely by the existence of these office memoranda. Second, from the beginning i.e. 27th October 2010, the office memoranda have been issued for a defined public and national purposes. It is essential for the orderly governance of the country that such power exists in the special circumstances clearly defined in the office memoranda. It cannot be in the interest of the public or nation, he says, that the power to safeguard the interest of the nation is compromised in this fashion. Finally, he submits that each of the office memoranda has inbuilt checks and balances and adequate safeguards. No LOC can be issued just for the asking.
10. Further, he submits, the entire background is set out in the very first lookout circular of 27th October 2010. It shows that the Government was mindful of certain observations of the Delhi High Court, paid due regard to that judgment and then issued the first office memoranda in accordance with the judgment delivered on 26th July 2010. Once it is seen that the genesis of the OMs is a judicial pronouncement, then no question arises of challenging the vires or questioning the source of power. If viewed from this angle, he submits, no question would arise of invalidating the office Page 9 of 11 9th December 2021 920 ASWP 4356-2021GROUP.DOC memoranda or questioning the power of the Government to issue this.
11. There may be additional points to be considered at the final hearing. Since at least one Petition contains a facial and complete challenge to the office memoranda of even 27th October 2010, we propose to hear all concerned in these matters. We have taken the liberty of outlining the rival contentions at a broad level so that all Advocates may focus their submissions more precisely.
12. Stand over to 4th February 2022 at 2.30 pm. On that date, we will take up the vires challenge first. We propose to hear one of the lead Petitions that contains the most comprehensive challenge. We will hear the Petitioners first, followed by the learned ASG and then the representatives of the banks in individual cases. We are expressing no views at this stage.
13. The Union Government may, if it desires, file an Affidavit in Reply by 24th January 2022. The Union Government is free to file an Affidavit in Reply only in one of the lead petitions which has a broader challenge. We will take that affidavit as read in all matters, if necessary. This is an allowance to save the Union Government and the office of the Learned ASG the trouble of filing affidavits in each and every petition. No Rejoinders are permitted to the Union Government's Affidavit/s.
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14. All concerned will act on production of a digitally signed copy of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
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