1. The prayer made in this writ petition is to issue a writ of certiorari to quash the order No. 1348/RRO/94-3441 dated 1-11-1995 issued by the third respondent.
2. The petitioner states that he is a French citizen holding a French Passport bearing No. 395/89 issued at Pondicherry (French Consulate) on 12-5-89, renewed on 30-3-94 to be valid till 30-3-1999. He came to India in 1974 to involve himself in the Auroville project, the dream of Sri Aurobindo and the Mother who wanted to build an international community at Auroville based on the charter given by the Mother. Auroville aspires to be international township where men and women of ail countries should be able to live in peace and harmony above all creeds, all politics and nationalities. The purpose of Auroville is to realise human unity. It was inaugurated on 28-2-1968 in the presence and participation of 5,000 representatives from all over the world.
3. As on today almost 1000 people of at least 20 nationalities including Indians, French, Italian, Germans, Russian, British and Americans reside in Auroville, engaged in various activities including afforestation, development of alternative and low cost building technology, development of solar energy, meditation, yoga and other techniques for spiritual development. Auroville also emphasises alternative methods of community life where property cannot be owned, and each resident must contribute in work, kind or money to the community and in turn expect to be looked after by the community for its basic needs.
4. The importance of Auroville as an experiment for evolutionary growth has been recognised nationally and internationally. The Parliament of this country enacted the Auroville Foundation Act, 1980 (for short, the Act) with the avowed object of continuing and consolidating the activities of Auroville which had been recognised as contributing to the international understanding and promotion of peace. The United Nations Educational, Scientific and Cultural Organisation has recognised the importance of the international township of Auroville and is also represented on the International Advisory Council of Auroville.
5. The petitioner having come to India in 1974 has been here for the last 21 years punctuated only by trips abroad for the purpose of raising funds for maintenance of his family and the development of the land and his unit 'Auro Beach Craft' and visits to his family in France. He is a skilled Engineer, and for long he has been a devotee of Sri Aurobindo and the Mother, dedicating his life to the realisation of their term. In her vision of Auroville, the Mother spoke about the development of boating and flying, and it was to that calling that the petitioner went.
6. Since 1981, the petitioner has been involved with development of power pack for Motorised Hang Gliders and the development of Aerially propelled boat, called hydroplane, ideally suited for Indian backwaters and built entirely from indigenous materials. The petitioner remains the first and only manufacturer of hydroplane in India employing five persons and uses technology that does not involve payment of royalty since the design is entirely his, and the manufacture is only from locally made materials and components. Engaging in research and development of hydroplane was a part of Auroville project and he has donated part of the sale proceeds of all the machines to Auroville. These machines have been sold to Pondicherry Tourism Development Corporation. He docs not receive any maintenance from Auroville.
7. The petitioner has spent more than Rupees 19 lakhs, most of the money coming from the sale of his ancestral property in France on his venture and on developing land where he now stays. There is no concept of private ownership in Auroville and should anyone leave Auroville after developing the land, he or she is not entitled to sell the land or building or in any manner realise the cost of such development. All the properties belong the Auroville notwithstanding the fact of private purchase. The petitioner married Judith, a British national and they have three children born in Auroville, aged about 20, 18 and 16 respectively, and all of them study in India.
7A. The petitioner arrived at Madras on 14-8-1993 by Air from Paris, after a trip to his family in France. He obtained the status of a resident evidenced by a residential permit bearing R.C. No. 19475/PDV/94, dated 6-1-1994. He sought for extension of the validity of the permit which was extended till 11-5-1994. The petitioner made an application to the first respondent through Auroville on 7-4-1994, 30 days prior to the expiry of the permit as stipulated. Thereafter he did not receive any communication from any of the respondents. In June, 1995 he wanted to visit his father who was ailing in France, visited the office of the third respondent to know about his extension application. He learnt that if the petitioner leaves the country it may not be possible for him to return and that his application for extension was likely to be rejected.
8. The petitioner apprised the Working Committee about the same which is a Full Time Body set up under the Act. All the residents under the Act constitute Residents' Assembly having a statutory status to accommodate the aspirations and ideals of the residents and ensure participation in the governance of the township. The Working Committee represented to the members of the Governing Board asking them to intercede on petitioner's behalf. The residents assembly met on 19th June and passed a resolution appealing to the Prime Minister to reverse the decision of the first respondent. In July, 1995 the members of the Auroville community made representation to the officials of the first respondent who assured that positive action would be taken. However, to his surprise, on 1-11-1995 the petitioner was served a letter issued by the Regional Registration Officer, Ministry of Home Affairs, Pondicherry informing that his application for further extension of stay in India had been rejected by the Government of India, directing the petitioner to leave India within 15 days of receipt of that letter.
8-A. The said letter refers to a telex message of the Home Department dated 24-5-1995 and a letter from the Government of Tamil Nadu dated 30-5-1995. None of the letters referred to in the communication had been furnished to the petitioner, and no reasons were also furnished to the petitioner for the rejection of his application dated 7-4-1994 made for extension of stay in India. He was also not heard before his application was rejected. It is further stated that the petitioner is not aware of the reasons for rejection of his application for extension of stay. However, he apprehends that his application has been so rejected because of certain remarks made on his file by the eighth respondent, the erstwhile Secretary of the Auroville Foundation.
9. The petitioner's wife published a letter in Auroville News, a community newspaper, about the office order issued by the 8th respondent, pointing out how it would affect the framework of the relationship between the Auroville community and the Auroville Foundation. Enraged by this, the 8th respondent tried to pressurise the petitioner's wife to apologise. Since she refused to do so, the 8th respondent embarked upon a systematic campaign to harass the petitioner's family, On 2-7-1992 the eighth respondent inspected the petitioner's premises and on 3-7-1992 he addressed a letter to the petitioner and his wife insisting that there should be no flying without his permission from Auroville land, and holding the petitioner responsible for aerial photography. The Working Committee of Auroville on 22-7-1992 wrote to the eighth respondent pointing out that since the Auroville land was held by the foundation consisting of the residents assembly, the governing board, and the international advisory council, the Secretary was not authorised to issue such a letter to the petitioner especially in view of the fact that it was the Director General of Civil Aviation (D.G.C. A.) who was the competent authority to regulate the practice of Hang Gliding. It was also stated in the said letter that the petitioner did not take any aerial photograph. The eighth respondent did not give any reply. In any case the motorised Hang Glider developed engine failure and was dis-assembled on 5-1-1993.
10. The D.G.C.A. for the first time introduced regulations regarding licensing of motorised Hang Gliders. The petitioner left India on 7-3-1993 to take up a four month job as General Manager, Peschaud, Yemen, a French company specialising in transport logistics in the oil fields. On 17-3-1993 the Working Committee of Auroville received a letter from the eighth respondent hinting that the petitioner and his wife could be responsible for light air-craft flying over Pondicherry during night time. The Working Committee pointed out by writing to the eighth respondent that there was no facility for night flying at Sri Ma, and that the motorised Hang Gliders cannot be flown at night. It was also informed that the petitioner was not in the country. The petitioner came back to India on 14-8-1993 and left India again on 19-9-1993 and returned finally from Yemen on 8-11-1993.
11. During the petitioner's absence, on a few occasions, policemen and officers made enquiries about the Hang Gliders, visited the petitioner's family. The petitioner's wife was asked to answer a questionnaire which was superscribed with the comment, "A Clandestine aircraft has flown over the residential premises of Hon'ble Chief Minister of Tamil Nadu". The petitioner's wife informed the' police that her husband had left the country on 7-3-1993 and was not in the country during the alleged incident. In December, 1994 some police officials visited the petitioner and questioned him on his application for extension of stay, but no reference was made to the alleged flight over the- Chief Minister's residence. The eighth respondent had been transferred from the Auroville Foundation by the end of March, 1994. He had also raised few querries against the petitioner. The petitioner explained to the police that there was nothing wrong with him and stated in details that he had been a voluntary honorary worker in the Auroville right from 1974.
12. The Working Committee wrote a letter to the Secretary of the Auroville Foundation on 12-6-1995 pointing out that they had no objection to the members of the community going abroad to earn money to sustain the work in Auroville, as the community did not have adequate resources to support all the residents. The Committee also confirmed that the petitioner was not in the country from 7-3-1993 to 14-8-1993, and that he was in Yemen during that time. In spite of the bona fide efforts of the petitioner, on his application for extension, the petitioner was served with a letter from the third respondent dated 6-7-1995 informing him that his application for extension had been turned down and he was directed to leave the country within 15 days. 'Aggrieved by the same, a delegation consisting of several residents of Auroville met officials of the Home Ministry and urged them to reverse the decision. They were assured a positive action, but on 1-11-1995 the petitioner was served with the impugned letter from the third respondent. The efforts of the petitioner and the Working Committee to have personal hearing were without any success.
13. Under the circumstances, this writ petition is filed contending that the impugned order is illegal, arbitrary and is violative of the petitioner's fundamental rights under Arts. 14 and 21 of the Constitution of India; the impugned order is passed in violation of the principles of natural justice; and non-observations of the principles of natural justice has resulted in miscarriage of justice; the petitioner was not informed about the charges or the allegations against him and he had not been afforded any opportunity to rebut the undisclosed and uncommunicated charges; the impugned order is bad as it does not disclose any reasons for rejection, so also the application of mind, to the petitioner's application for extension of stay in India, and it is not a speaking order; under Sections 18 and 19 of the Act, the residents assembly is the body set up for the purpose of allowing admission or quashing the termination of persons in the register of residents and the opinion of the said body is valid and relevant and should not have been overlooked; an order of this kind to be valid, must necessarily harmonise the provisions of the Foreigners Act which is a general legislation with the provisions of the Act which in a special legislation; the third respondent is not competent to issue the impugned order; it is only the Central Government Which is empowered to pass orders on the application for extension of residence; the impugned order is obviously passed on a mala fide complaint made by the eighth respondent, that too without affording the petitioner a chance to disprove the fake allegations. On these grounds the petitioner has prayed for quashing the impugned order.
14. A counter-affidavit is filed on behalf of respondent No. 1 opposing the writ petition stating that the petitioner arrived in India on 31-1-1974 on the strength of a Tourist visa valid for two months. He again entered India in June, 1974 and remained till 6-4-1978. Thereafter he came to India on a number of occasions in 1980, 1981, 1987, 1989, 1990, 1991 and 1993 on the strength of tourist/entry visas. The petitioner last entered India on 8-11-1993 on tourist visa valid up to 11-5-1994. He made an application for five years' extension, but his request was not recommended by the Chief Immigration Officer, Madras, and Government of Tamil Nadu, because he had come to adverse notice during his stay in India. Enquiries made revealed that he was indulging in manufacture of hydroplane at a place located close to sensitive Kalpakkam Atomic Power Station, and found flying his micro-light, ultra-light aircraft without authority.
15. It was reported that he has scant respect for the laws of the land. Hence extension was refused, and on 24-5-1995 the State Government of Tamil Nadu was advised accordingly. The State Government asked the petitioner on 6-7-1995 to leave India within 15 days. However, the petitioner refused to acknowledge the quit India notice and instead a representation dated 18-6-1995 was made on his behalf from the members of the Auroville community. Pending consideration/decision on the said representation, the State Government was advised to keep the quit India notice in abeyance until further instructions. One more request dated 30-7-1995 from the Auroville Committee was also received saying that the petitioner was required to go to France immediately to see his ailing father and that necessary permission may be granted to him. The said request was favourably considered and the State Government was advised on 25-8-1995 to permit the, petitioner to go to France, but the petitioner did not leave the country, and has filed the present writ petition.
16. It is stated that the petitioner has violated the visa rules and has indulged, in activities of manufacture of hydroplanes at a place located near to sensitive Kalpakkam Atomic Power Station, was found flying his micro-light, ultra-light aircrafts without authority; the petitioner was granted extension up to 11-5-1994; further extension was refused as he came to adverse notice. It is stated that the representation received from the Auroville community on behalf of the petitioner was carefully considered by the Central Government. The proceedings being under the Foreigners' Act, there is no question of reading down the said provisions for any claim as sought in the writ petition.
17. The petitioner being a foreign national, he has no right to claim that he would continue to stay in India. Even his previous visits to India were only pursuant to the permission granted in this behalf from time to time. Even in a case where a person is asked to leave the country prematurely when his behaviour has come to the adverse notice of the Government, such a person cannot claim any right to stay. While so, when the petitioner has completed his stay pursuant to the permission granted, he cannot have any right to claim an extension of stay. The respondent also states that this Court may not go into the disputed questions of fact exercising jurisdiction under Art. 226 of the Constitution of India.
18. That no fundamental rights of the petitioner have been violated and particularly when the petitioner is admittedly a foreign national. The notice given to him to leave the country is according to law exercising powers under Section 3 of the Foreigners' Act, 1946 (for short the Act 1946). The Act, 1946 does not provide for disclosing the grounds for asking foreigners to leave India. When the petitioner was allowed to complete his period of stay in India, he cannot claim grant of further extension as a matter of, right. It is submitted that the orders relating to refusal of grant of extention of visa were negatived by the Central Government, and the third respondent communicated the orders of the Central Government to the petitioner. Under the circumstances this respondent has sought for dismissal of the writ petition.
19. The second respondent has filed a counter-affidavit stating that the Chief Immigration Officer has stated that the Foreigner returned to India on 8-11-1993 with a fresh visa issued by the Indian High Commission in Sanaa, Yemen on 12-7-1993. It is not understood as to how a Foreigner could get Indian visa on 12-7-1993 while he was still staying in India up to 19-9-1993. The Chief Immigration Officer has also stated that according to the note of the Secretary, Auroville Foundation, the petitioner has not been a regular resident of the Auroville but a businessman flying to Arab countries at regular intervals; that he was also found indulging in anti-social activities, and hence the Chief Immigration Officer did not recommend for extension in the interest of the national security. The report of the Chief Immigration Officer was forwarded to the Government of India, Ministry of Home Affairs on 10-2-1995. The Government of India, agreeing with the views of the Chief Immigration Officer, Madras, directed that the foreigner may not be granted any further extension of stay in India.
20. The Regional Registration Officer, Pondicherry, in his letter dated 6-7-1995 reported that he visited the residence of the petitioner on 6-7-1995, and served the leave India notice. Although the petitioner received the said notice, he refused to acknowledge the receipt of the same. The Government of India in the telex message dated 6-7-1995 directed the Chief Secretary, Government of Pondicherry to keep the leave India notice in abeyance until further orders. The Chief Immigration Officer, Madras, informed the State Government of Tamil Nadu about all the proceedings in this connection. The Deputy Inspector General of Police, C.I.D., Madras, in his report dated 9-8-1995 reported to the State Government that the petitioner is indulging in several activities which may, in the long run, become a security hazard. Hence he recommended that the petitioner should not be allowed to reside in India as an Auroville voluntary worker. The said letter was also forwarded to the Government of India by the State Government on 22-8-1995. The Government of India, Ministry of Home Affairs, agreeing with the views of the State authorities, decided not to allow any further extension of stay to the petitioner. The order was sent to the Chief Immigration Officer, Madras and the Regional Registration Officer, Pondicherry. Pursuant to the same, the Regional Registration Officer, Pondicherry issued the impugned order to the petitioner.
21. It is submitted that as per Section 3 of the Act, 1946, the Central Government is the authority to make provision for prohibiting, regulating or restricting the entries of the foreigners into India or their departure therefrom, or their presence or continued presence therein. The State Governments are engaged to discharge only the agency functions on behalf of the Government of India with respect to foreigners. In the instant case, the decision to ask the petitioner to leave India was taken by the Government of India and not by the State Government. The State Government has fully forwarded the reports of the Regional Registration Officer, Pondicherry and the Chief Immigration Officer, Madras, to the Government of India. The said reports were referred to the Deputy Inspector' General of Police, C.I.D., Madras, and his remarks were obtained and sent to Government of India, Home Ministry.
22. It is also submitted that the Act relates only to the acquisition and transfer of the undertakings of the Auroville and to vest such undertakings in a foundation established for the purpose, with a view to making long term arrangement for the better management and further development of Auroville in accordance with its original charter, and for matters connected therewith or incidental thereto. The Act does not relate to any security point, vis-a-vis a foreigner residing in Auroville. It does not contemplate anything relating to the grant of extension of stay in India to the foreigners residing in Auroville. Hence the writ petition being devoid of merits may be dismissed.
23. The third respondent also has filed a counter-affidavit emphatically denying the averments made in grounds (k) to (m) of the affidavit of the petitioner. In the impugned letter issued by him to the petitioner it is only stated that the petitioner's application for extension of stay in India had been rejected by the Government, and therefore, the petitioner was requested to leave India within 15 days on the receipt of the said intimation, and that he himself has not passed any orders rejecting the application for extension of stay made by the petitioner. In other respects he has sought to adopt the counter-affidavit filed on behalf of the first respondent.
24. Counter-affidavit is filed on behalf of respondents 4 and 5 giving the details of the Auroville Foundation, its bodies, objects and functions, and the provisions of the Act. Reading of the affidavit shows that the respondents 4 and 5 are supporting the petitioner, and they have prayed for allowing the writ petition. It is stated that the action of the eighth respondent and his report against the petitioner were all mala fide.
25. Counter-affidavit is also filed on behalf of respondents 6 and 7, praying for dismissal of the writ petition. It is submitted that the petitioner entered India on 31-1-1974 with a tourist visa. He came to Auroville in March, 1974. He satys in Auroville but goes out of India frequently, and stays abroad for substantial periods. The petitioner has not informed to the sixth respondent about his collection of funds outside India and bringing the same into India, and spent in Auroville. The petitioner's claim of spending Rupees 19,00,000/- cannot be correct and true. For the overseas citizens who are granted visa for specific purpose i.e., to serve in Auroville on voluntary basis, their visa conditions cannot be changed by any person after arriving in India.
26. The petitioner who is a French national, is an unmarried person. Mrs. Judith Robinson, a British National is the wife of Mr. Pieter Van Der Molen, a German National. She is living with her three children born through her husband aforementioned. The three children are holding British passports. It is stated that it appears when the eighth respondent visited Sri Ma premises the petitioner behaved in a very aggressive manner and even threatened to let loose four big dogs chained near the entrance of the premises. The use of micro-light air crafts without the authority of law especially over thickly populated towns and cities such as Pondicherry town and Madras city, and more particularly near Kalpakkam where Atomic Power Generation Plants are situated, is indeed undersirable and unexpected to be done by the residents of Auroville. It is also stated that the petitioner even misbehaved with the Secretary of the sixth respondent who has sworn to the affidavit filed on behalf of respondents 6 and 7.
27. The petitioner has filed a reply affidavit reiterating his stand in the writ petition giving some more particulars and denying such statements made in the counter-affidavits.
28. Two persons viz., one Roger Anger and one Lt. Gen. (retd.) Ashok Chatterjee, have filed affidavits claiming to be members of the Governing Board of the Aurpville Foundation, stating that they are not in agreement with the affidavit sworn to by Dr. De on behalf of respondents 6 and 7. They also state that Dr. De was not authorised by the Board to swear to the said affidavit and no decision was taken in the Governing Board in this regard.
29. One Dr. Ervin Laazio, Chairman of the Auroville International Advisory Council--seventh respondent, has filed an affidavit stating that he is not in agreement with the statement made in the counter-affidavit sworn to by Dr. De filed on behalf of respondents 6 and 7. He states that Dr. De was not authorised to swear to such an affidavit, and Council has not been consulted with respect to the counter.
30. Shri Sriram Panchu, learned counsel for the petitioner urged,
(i) that the impugned order was illegal, arbitrary and is one passed in violation of the Articles 14 and 21 of the Constitution of India;
(ii) that it was passed offending the principles of natural justice, and as a result of non-observation of the principles of natural justice the impugned order has resulted in mis-carriage of justice;
(iii) that the petitioner was not told about the charges or allegations made against him and no opportunity whatsoever was given to him to rebut the adverse charges or allegations;
(iv) that the impugned order is not a reasoned order and is the one passed without application of mind to the application made by the petitioner for extension of stay in India, and that it is not a speaking order;
(v) that under Sections 18 and 19 of the Act, it is the Residents Assembly, which is the body set up for the purpose of allowing admission, or terminating the names of persons in the register of residents, but the opinion of the said body has been overlooked in this case;
(vi) that the respondent No. 1 ought to have harmoniously considered the provisions of the Act, and the Act, 1946;
(vii) that the impugned order could be passed only by the Central Government, and the third respondent was not competent to issue such an order;
(viii) that having regard to the provisions of the Act which are unique, the petitioner has a right to accomplish the object on the spiritual lines and he has right under Art. 21 of the Constitution in this regard; and
(ix) that the impugned order is one passed on a mala fide complaint made by the 8th respondent, that too without affording the petitioner a chance or an opportunity to disprove the false allegations made against him.
The learned counsel for the petitioner cited few decisions in support of his contentions. I will refer to them during the course of this order.
31. Shri V. T. Gopalan, learned Senior Central Government Standing Counsel argued in support and justification of the impugned order, and submitted that the said order can be sustained having regard to the settled position of law in the matter of power of the first respondent to grant or refuse permission to a foreigner. He pointed out that the petitioner entered India on 31-1-1974 on the strength of a tourist visa valid for two months. He again entered India in June, 1974 and remained here till 6-4-1978. Thereafter he came to India on number of occasions between 1980 to 1993 on the strengh of tourist/entry visas. Lastly he entered India on 8-11-1993 with a tourist visa valid up to 11-5-1994. He made application seeking extension of stay in this country for a period of five years. Since he had come to adverse notice during his stay in India the Chief Immigration Officer, Madras and the Government of Tamil Nadu did not recommend his request for extension of stay. Enquiries made revealed that he was indulging in manufacture of hydroplane at a place close to the sensitive Kalpakkam Atomic Power Station and was found flying his micro-light, ultra-light aircraft without authority. Under the circum-stances the request of the petitioner for extension was refused and on 24-5-1995 the State Government of Tamil Nadu was advised accordingly. The petitioner refused to acknowledge the Quit India notice within 15 days. However, a representation dated 18-6-1995 was made by the members of Auroville community on behalf of the petitioner. Pending consideration of the said representation the State Government was asked to keep the said quit India notice in abeyance until further instructions. Finally the impugned order was passed.
32. The learned counsel further submitted that the proceedings were taken up, and the impugned order was passed; there is no question of reading down the provisions of the Act, 1946 as claimed by the petitioner in the writ petition; he being a foreign national, has no right to say or claim that he should continue in India, even in a case where the person is asked to leave the country before the expiry of the period of stay granted, noticing adverse behaviour, cannot claim any right to stay; after the expiry of the period for which permission to stay in India was granted to the petitioner, he cannot claim extension of stay as a matter of right, this Court exercising jurisdiction under Art. 226 may not consider the disputed questions of fact about the allegations made against the petitioner and the contention of the petitioner refuting them. He emphasised that the petitioner being a foreign national cannot claim violation of fundamental rights; the notice given to him to leave the country under Section 3 of the Act, 1946 need not disclose the grounds or reasons asking the petitioner to leave India. The power of the Central Government in this regard is absolute, and unlimited. He submitted that as can be seen from the records, the first respondent took adverse notice against the petitioner. In a matter like this whether extension of stay should or should not be granted to a foreigner is in the very nature of things, to be considered by the Central Government having regard to the various aspects including the security and safety of the country in the national interest. He submitted that even the right available to persons under Art. 21 of the Constitution cannot be extended to a case like this. Where a person enters the country without permission or remains in the country without permission after the expiry of the period of stay, such a person can be deported without anything more; in other words such persons cannot claim that there has been violation of principles of natural justice or that they should be given opportunity to have their say in the matter. The provisions of the Act, and the objects of it, have nothing to do relating to the subject of granting permission to a foreigner to stay in the country. The provisions of the Act, 1946 and the Act are both independent serving different purposes. Neither there is a conflict between the provisions of the two Acts nor there is need to harmonise the provisions of both the Acts.
He placed reliance on few decisions in support of his submissions.
33. Shri N. Jothi, learned Special Government Pleader, representing the respondent No. 2 -- the State Government, pointing out to the activities of the petitioner, submitted that all was not well with the petitioner as a foreigner staying in India the (sic) reveals that he was engaged in manufacture of hydroplane at a place close to Kalpakkam Atomic Power Station and he was found flying the micro-light and ultra-light aircraft without authority. The Deputy Inspector General of Police, C.I.D., Madras, on enquiry, made a report against the petitioner confirming the allegations made against him. Under the circumstances, no fault can be, found with the impugned order.
34. Mr. Vijay Narayan, learned counsel for respondents 4 and 5 in his argument fully supported the case of the petitioner and said that the petitioner is a desirable person who could very well fit in the Resident Assembly of Auroville. The Working Committee as well as the Residents Assembly of Auroville which are the competent bodies have stated that the allegations made against the petitioner were not correct, and as such the impugned order passed against the petitioner is arbitrary untenable.
35. Shri G. Masilamani, learned senior counsel representing the respondents 6 and 7 contended that whether the petitioner should be granted permission extending his stay in India is a matter which entirely rests with the Central Government; a decision of this nature is a political decision, and the interest of the country is paramount. In short, on the basis of the counter-affidavit filed a behalf of respondents 6 and 7, the learned counsel submitted that the impugned order could be sustained.
36. I have carefully considered the submissions made by the learned counsel for the parties. It is not disputed that the permission granted to the petitioner to stay in India has expired on 11-5-1994. His application for extension of stay is rejected. Under Section 3 of the Act, 1946, the Central Government has power to pass an order either granting or refusing permission to stay in India to a foreigner. The petitioner is a foreigner.
37. In order to appreciate the respective contentions of the learned counsel for the parties and their relative merits, in my opinion, it is appropriate to extract Section 3 of the Act, 1946 so far it is relevant for the present case.
"3. Powers to make orders. -- (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class of description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India, or their departure therefrom or their presence or continued presence therein.
(2) In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner-
(a) shall not enter India, or shall enter India, only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;
(b) shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;
(c) shall not remain in India or in any prescribed area therein;
(cc) shall if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;
(d) shall remove himself to, and remain in, such area in India as may be prescribed;
38. The Constitution Bench of the Supreme Court, in the case of "Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta", , has in clear terms stated about the nature of the power of the Central Government in regard to the order to be passed under Section 3 of the Act. Para graph 36 of the said judgment reads:--
"The Foreigners Act, confers the power to expel foreigners from India. It vests the Central Government with absolute and un fettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.
(Underlining is mine).
39. It is also stated in paragraph 38 of the said decision that Art. 19 of the Constitution does not apply to a foreigner. It is stated in paragraph 40 that;
"In the case of expulsion, no idea of punishment is involved, at any rate, in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases. But the right is not his. Under the Indian law, the matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port or place of departure ......."
40. In paragraph 34, it is stated thus :--
"Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right 'to move freely throughout the territory of India' and 'to reside and settle in any part of India subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by Art. 21 which is in the following terms :--
'No person shall be deprived of his life or personal liberty except according to procedure established by law'."
41. The Supreme Court in "Louis De Raedt v. Union of India" , dealing with a case of domicile of choice having
regard to Art. 5(c) of the Constitution of India, and as to availability of fundamental rights to foreigner, has taken the view that the fundamental right of the foreigner is confined to Art. 21 relating to life and liberty and does not extend to a foreigner the right to reside and settle in India as stated in Article 19(1)(e) of the Constitution, and referring to the case of "Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta" (supra), has held that the Executive Government has unrestricted right to expel a foreigner, and that there cannot be any hard and fast rule so far as the right to be heard is concerned. Paragraph 13 reads :--
"The next point taken on behalf of the petitioners, that the foreignerse also enjoy some fundamental rights under the Constitution of this country is also of not much help to them. The fundamental right of the foreigner is confined to Art. 21 for life and liberty and does not include the rights to reside and settle in this country, as mentioned in Art. 19(1)(e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, , that the power of the
Government in India to expel foreigners is absolute, and unlimited and there is no provision in the Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner. So far the 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 and it is 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."
42. In "Anwar v. State of Jammu and Kashmir", , as can be seen from paragraph 4 of the judgment, the Supreme Court has held that a foreigner not being a citizen, he was clearly not entitled to any fundamental right guaranteed by Art. 19 of the Constitution, and that the only rights the foreigner in that case could claim were those contained in Articles 20 to 22.
43. The Division Bench of this Court in "Ananda Bhavanani alias Swaniy Geethanando, Ananda Ashram, Pondicherry v. Union of India, 1991 Mad LW (Cri) 393, dealing with a plea of violations of the principles of natural justice and violation of human rights vis-a-vis order of deportation passed against a foreigner, referring to some decisions including the case of "Hans Muller of Nurenburg" of the Supreme Court aforementioned, has negatived the contention that the order of deportation passed without affording an opportunity to the person to make his say was in violation of the principles of natural justice. The two judgments viz. (i) "P. Mohammad Khan v. State of Andhra Pradesh," (1978-2) Andh WR (HC) 408 and (ii) "Tudor Gunasekhar Jayavardene y. Government of India, (1982) Mad LW (Cri) 175, relied on by the learned counsel for the petitioner herein, were referred to and distinguished by the Division Bench of this Court in the aforementioned decision. It is further held therein that the Act, 1946 is a piece of significant legislation, and a play of its own. Considering the policy behind and the object of the Act, there may be many exigencies which would impel quick and lightening action to be taken under the Act, failing which the very security of the nation may be jeopardised. Under the said Act, the Central Government is vested With the absolute and unfettered discretion; and a foreigner can be expelled without any formality beyond the making of the order.
44. Having regard to the legal position, it is clear that the petitioner being a foreigner has no fundamental right under Art. 19(1)(e) of the Constitution. The Act 1946 vests the Central Government with the absolute and unfettered discretion and unrestricted right to expel a foreigner. There is no dispute that the petitioner is a foreigner. Once the application of the petitioner seeking extension of his stay in the country is rejected, he shall have no right to claim to stay in this country, much less a fundamental right. Further the impugned order is not viatiated on the ground that either it is not a reasoned order or that it is one passed in violation of the principles of natural justice. As is clear from the aforementioned decisions, the petitioner being a foreigner, cannot claim that there was violation of the principles of natural justice in passing the impugned order.
45. It is not a case of deprivation of life or personal liberty of a person within the meaning of Art. 21 of the Constitution. The petitioner is not an accused and is not to be tried before any criminal Court. It may also be noticed that even in the absence of any such application for extention of stay, the Central Government was competent under the Act, 1946 to pass an order deporting the petitioner without affording any opportunity, and in that event the petitioner could not claim any violation of the principles of natural justice. The Central Government in regard to foreigners, either who enter the country without the necessary permission or authority, or remain in the country after the expiry of the period for which permission is granted, could straightway take necessary action, to deport such persons from the country without there being anything more.
46. The argument that the third respondent had no jurisdiction to pass the impugned order is untenable, inasmuch as the third respondent has only communicated and acted upon the order passed by the first respondent. Similar contention raised in the case of "Louis De Raedt v. Union of India, (supra) was rejected as is clear from the paragraph 14 of the said judgment, which, reads:--
"The last point that the impugned order (Annexure IV) was passed by the Superintendent of Police, who was not authorised to do so, is also devoid of any merit. The order was not passed by the Superintendent of Police, the decision was of the Central Government which was being executed by the Superintendent; as is clear from the order itself."
47. Having regard to the clear legal position emerging from the various decisions aforementioned, principally relying on the judgment of the Constitution Bench of the Supreme Court in the case of "Hans Muller of Nurenburg" aformentioned, in the view I have taken, I consider it unnecessary to refer to and deal with the other contentions raised on behalf of the petitioner and the decisions cited in support of such other contentions, except the one contention that the impugned order passed is inconsistent with the object and provisions of the Act.
48. The contention of the learned counsel for the petitioner that the impugned order should not have been passed inconsistent with the provisions of the Act, stating that the petitioner being a resident of Auroville and as such is a member of the Residents Assembly for the last several years; he is desirous to work consistent with the objects of the Act and wants to develop the spiritual side of his personality; the name of a member of the Resident Assembly can be removed or added in the register only under the Act by the competent authority, and as such the impugned order ought not have been passed contrary to the provisions of the Act; is unacceptable for the simple reason that the Act, 1946 is neither controlled by, nor subject to the provisions of the Act. Both the Acts operate in different areas for different purposes. I have no doubt whatsoever as regards the issue whether a Foreigner should be allowed to stay in India or not is a matter to be dealt with under the Act, 1946 by the competent authority i.e., the Central Government.
49. In the result, for the reasons stated above, I find no merit in the writ petition. Hence it is dismissed.
50. After the pronouncement of this order, learned counsel for the petitioner made a request to suspend this order for a period of two weeks, which is strongly objected to by the learned counsel for the 1st respondent, on the ground that the stay of the petitioner is already beyond the period for which permission was granted. However, having regard to the contentions raised and facts and circumstances of the case I think it appropriate to suspend the operation of this order for a period of one week. Ordered accordingly.
51. Petition dismissed.