CASE NO.: Writ Petition (crl.) 17 of 2006 PETITIONER: Hasan Ali Raihany RESPONDENT: U.O.I and Ors. DATE OF JUDGMENT: 09/03/2006 BENCH: B.P. Singh & Altamas Kabir JUDGMENT:
JUDGMENT
ORDER
B.P. Singh, J.
In W.P. (Crl.) No. 17/2006:
In this Writ Petition, the petitioner prays for issuance of a writ of
mandamus quashing the order cancelling the Residence Visa Permit by order
dated 7th October, 2005. He has also prayed for directions to the
respondent to produce the papers relating to grant of Indian citizenship to
him by naturalisation. He further prays that this Court may issue a writ of
certiorari quashing and setting aside the oral direction or order of
deportation passed by the respondents and allow the petitioner to enter the
Indian territory.
The case of the petitioner is that he was born in India to parents who were
Iranian citizens. He was educated in India and thereafter intended to stay
in India. He applied for grant of Indian passport on 15th July, 2003 in
response whereto he was required to comply with certain formalities. It
appears that on the night intervening 7th/8th October, 2005, the petitioner
was deported to Tehran. His grievance is that he was never informed as to
why such action was taken against him. Be that as it may, he applied again
to the Indian Embassy in Tehran to grant him entry visa enabling him to
enter this country so that he could settle his pending matters in this
country. According to the petitioner, he has been doing business in this
country and, therefore, his sudden deportation has created complications
for him, and it became absolutely necessary for him to come to India to
settle those matters. A Single Entry Permit was issued to the petitioner by
the Indian Embassy in Iran which was valid for the period from 8th
November, 2005 to 8th February, 2006. On that basis, the petitioner has re-
entered this country.
The petitioner states that he is being summoned to the Kurla Police Station
every day and is being unnecessarily harassed. His suspicion is that he may
again be deported in the same manner as was done on the last occasion
without intimating him the reasons why he is sought to be deported and
without giving him an opportunity of being heard.
We may observe that earlier, a Residential Permit was issued to the
petitioner which has been extended from time to time and which stood
extended till 3rd December, 2007. However, while deporting him, the
authorities cancelled the Residential Permit.
Thus, the factual position as of today is that the petitioner has entered
this country on the basis of a Single Entry Visa validity issued to him by
the Indian Embassy at Tehran. It is also stated that the fact that the
petitioner had been deported from this country was mentioned in the
application for grant of Entry Visa and that nothing was concealed.
The question that arises for consideration is whether the authorities
intend to deport him again and if so, whether they are obliged to disclose
to the petitioner the reasons for his proposed deportation.
Learned counsel for the petitioner has relied upon a decision of this Court
reported in National Human Rights Commission v. State of Arunachal Pradesh
and Anr., [1996] 1 SCC 742 and particularly to the principles laid down in
paragraph 19 thereof and submitted that the petitioner cannot be thrown out
of this country having regard to the fact that he was born in this country
and lived here for many years and his application for grant of Indian
citizenship is still pending. It is not as if he has entered the territory
of India stealthily with any ulterior objective and, therefore, it is only
proper, even though he is not an Indian citizen, that he should atleast be
informed of the reasons why he is sought to be deported, and his
representation if any in this regard considered. The learned Additional
Solicitor General has fairly brought to our notice the principles laid down
by this Court in Sarbananda Sonowal v. Union of India and Anr., [2005] 5
SCC 665. This Court in para 75 of the report has observed as follows:
“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. (p. 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
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.”
Having regard to the facts and circumstances of the case, particularly,
having regard to the fact that the petitioner has entered this country
legally upon the Single Entry Permit issued to him, it is only fair that
the competent authority must inform him the reasons for his deportation. If
such a decision is taken, the petitioner must be given an opportunity to
submit his representation against his proposed expulsion. The competent
authority may thereafter consider his representation and pass appropriate
order. As observed by this Court, this procedure may be departed from for
compelling reasons of national security etc. In the instant case, we have
not so far noticed any fact which may provide a compelling reason for the
State not to observe this procedure.
We, therefore, dispose of this writ petition with the directions to the
competent authority, who we are told is the Deputy Commissioner of Police
and FRRO, Mumbai, to communicate to the petitioner the reasons why he is
sought to be deported from this country. The reasons disclosed must be
sufficient to enable the petitioner to make an effective representation, if
he wishes to do so. The petitioner shall be given two weeks’ time to make a
representation which shall be considered by the competent authority as soon
as possible. Any order passed shall be communicated to the petitioner
forthwith.
We further direct that the petitioner shall continue to report at the Kurla
Police Station every day. It is stated by learned counsel appearing on his
behalf that the present residential address of the petitioner is the
following:
Hasan Ali Raihany,
Deeraj Apartments,
`C’ Wing, Flat No. 303,
Shastri Nagar,
Santacruz (West),
Mumbai.
If there is any change of address, the petitioner will inform the Kurla
Police Station of the said change. He shall continue to report to the
Police Station till such time as the competent authority passes appropriate
order as directed.
In case an adverse order is passed against the petitioner, it shall not be
given effect for a period of seven days from the date of service of that
order on the petitioner so that he may seek appropriate legal remedy, if so
advised.
The writ petition is disposed of accordingly.
Crl. M.P. No. 2098/2006 in and S.L.P. (Crl.) No……/2006:
Permission to file S.L.P. is granted.
In view of the disposal of Writ Petition (Crl.) No. 17/2006, the special
leave petition has become infructuous and the same is dismissed as such.
