Oral Judgment: (Dharmadhikari, J.)
1] This petition was amended and placed before us and, therefore, in terms of the earlier orders and directions, we have heard it finally.
2] Hence, Rule. Respondents waive service. By consent rule made returnable forthwith.
3] By this petition under Article 226 of the Constitution of India, the petitioner is challenging the order passed by the Deputy Commissioner of Police and Foreign Registration Officer (FRO for short). By that order dated 2nd February 2013/ 21st-24th December 2012, the petitioner has been informed that his application made to the competent authority for conversion of his âXâ visa into âBusiness Visaâ is rejected.
4] In the petition, the petitioner has stated that he received his visa (extended upto 31st October 2011 on 21st March 2011 and immediately thereafter on the next day i.e. 22nd March 2011, he had to leave for Iran in order to get married. The petitioner states that he returned to India after about one month on 22nd April 2011.
5] The petitioner further states that as the petitioner belongs to a family which is in the business of running restaurants, he was desirous of continuing the family business. Therefore, the father of the petitioner acquired a restaurant and thereafter named it as âMaha Naaz Restaurantâ in Pune. A Shops and Establishments Licence was obtained in the joint name of the petitioner and his mother in respect of the said restaurant in the year 2009. Thereafter, as the mother of the petitioner developed knee injury in both legs it was very difficult for her to move around, therefore, the shops and Establishments License was continued only in the name of the petitioner later in the same year i.e. 2009. The petitioner states that he also has a trade license in respect of the aforementioned Cafe Maha Naaz. However, the petitioner states that in the first week of October, 2011 he was given to understand that in order to carry on business in India, he is required to have a business Visa. The petitioner states that as he was having an âXâ Visa, he promptly made an application dated 10th October 2011 to the respondent No.2 for conversion of said Visa to Business Visa.
6] It is the case of the petitioner that there are certain Iranian citizens who had âXâ visa like him but having been conducting business in the City of Pune, their visa was converted into business visa. These details are given in para 6 of the petition.
7] The petitioner had received âLEAVE INDIA NOTICEâ dated 28th November 2011 from the then competent authority but the same was challenged before this Court by way of writ petition being Writ Petition No.3658 of 2011.
8] On that petition, an order came to be passed by this Court in the following terms-
âLearned A.P.P. on instructions states that the appropriate authority i.e. Foreigners Registration Officer (FRO) and Deputy Commissioner of Police, Special Branch, Pune City is inclined to withdraw the impugned order dated 28th November, 2011 and after giving opportunity to the petitioner as required under law, proceed to pass fresh order on the application dated 10th October 2011. Accordingly, we keep all questions raised by the petitioner open, to be considered by the Appropriate Authority.
â2. In view of the above, petitioner submits that nothing survives in this petition. The same is allowed to be withdrawn with liberty to pursue remedy against the proposed order to be passed by the Appropriate Authority, if the same is adverse to the petitioner.â
9] This order of this Court was produced by the petitioner before the Foreigners Registration Office, Pune but the petitioner was served with another Leave India Notice dated 26th January 2012. According to him, he was compelled to challenge the same by filing Writ Petition No.1316 of 2012 in this Court and in which an order came to be passed which is as under:-
âHeard Mr.Chitnis, learned Sr. Counsel appearing on behalf of the petitioner, Mr.Pol, learned Public Prosecutor for the State and Mr.Dalvi, learned counsel appearing on behalf of respondent no.5.
2. By this petition which is filed under Article 226 of the Constitution of India, the petitioner is challenging the legality, propriety and correctness of the order dated 26th January 2012 passed by the Dy. Commissioner of Police, Special Branch and FRO, Pune whereby the Dy. Commissioner of Police was pleased to direct the petitioner to leave India within 7 days from the receipt of the said notice. The brief facts are as under:
3. The petitioner is an Iranian National. However, he is brought up in Pune. He is situated in Pune and has passed his Bachelor of Engineering exam in the year 2007 from the University of Pune. According to the petitioner, he was issued a residence visa pursuant to which he has been residing in India and has applied for extension of that visa from time to time and it was extended upto 31st October 2011. According to the petitioner, he has made an application for converting his residence visa with business visa by filing an application dated 10th October 2011 which was received by the office of respondent no.2 and the acknowledgment to that effect was given on 18th October 2011. It is submitted that initially he had filed a petition in this court being Writ Petition no.3658/11after the order was passed on 28th November 2011 by which he was asked to leave India before 3rd December 2011. Learned APP who appeared on behalf of the FRO made a submission that the said respondent was inclined to withdraw the impugned order dated 28th November 2011. All contentions were kept open.
4. Mr.Chitnis, learned Sr. Counsel appearing on behalf of the petitioner submitted that pursuant to the directions given by this court, he appeared before the concerned authority on 5th January 2012. He was informed that the respondent no.4 would read his application and would try to understand the case of the petitioner. According to the petitioner on the next day when he appeared before respondent no.4 on 6th January 2012, he took him to respondent no.2 who was angry on him because the petitioner had filed the petition in this court and he further threatened him that he would not grant extension. According to the petitioner, though hearing was given to the petitioner, inspite of a specific order being passed by this court, since no order was passed, the present petition was filed by the petitioner seeking further directions from this court. According to the petitioner, thereafter on 26th January 2012,, the impugned order was passed directing the petitioner to leave India.
5. Being aggrieved by the said order, the petitioner is challenging the said order in this petition. Mr.Chitnis, learned Sr. Counsel further submitted that though in the earlier order which was passed by this court dated 5th December 2011, a specific direction was given to respondent no.2 to pass fresh orders on his application dated 10th October 2011. Without giving a hearing to him, the impugned order has been passed. Secondly, it is submitted that previously the stand of the respondent in the affidavit in reply is that no application dated 10th October 2011 was received by the respondents though a specific reference of this application has been made in the order dated 5th December 2011 in Writ Petition No. 3658 of 2011. It is submitted that there was no occasion for the respondents to pass the impugned order since there is no question of violation of Rule No.14B of the Foreigners Act 1946. It was submitted that the direction given by this Court in its order dated 5th December 2011 was not complied with. On the other hand, Shri Pol, Learned Public Prosecutor for the State submitted that the office had never received application dated 10th October 2011 that there is an acknowledgment in respect of an application which was received on 18th October 2011. He further submitted that respondent no.2 will give a personal hearing to the petitioner on an application dated 18th October 2011 and decide it on merits and in accordance with law.
6. In our view, prima facie it does appear that in spite of directions given by this court on 5th December 2011, no hearing is given to the petitioner and the order was communicated on 21st January 2012. The said order therefore is patently illegal and contrary to directions given by this court. Secondly, so far as the factual aspect regarding the application dated 10th October 2011 is concerned, since it is disputed question of fact, we do not propose to make an enquiry in respect of that matter and in our view, it would be appropriate if the petitioner is permitted either to tender a fresh copy of the application dated 10th October 2011 or he is permitted to file a fresh application to respondent no.2 which would be deemed to be an application dated 10th October 2011. This application may be filed within two weeks from today. Upon such application being filed, the respondent no.2 shall give a personal hearing to the petitioner and then decide the application afresh on merits and in accordance with law.
7. Since it has come on record that there was personal spat between the petitioner and concerned Officer, which fact though has been vehemently denied by the learned Public Prosecutor, the fact remains that an averment has been made to that effect by the petitioner. In the peculiar facts and circumstances of the case, therefore we are of the view that in the event any adverse order is passed against the petitioner, the same shall not be implemented for a period of two weeks. With these directions, writ petitions is accordingly allowed and impugned order is quashed and set aside.
8. We would like to observe that though we do not wish to make an issue about non compliance of the order passed by this court by the concerned authority, we expect that atleast in future, whenever directions are given by this court, the concerned Officer should not take it as a personal affront and should not hold any grudge against the petitioner or any citizen merely because he has approached this court for the enforcement of his constitutional and statutory right. We expect that all the Officers act and comply with the spirit of law and not the letter of law.â
10] Petitioner, therefore, having been given opportunity by this Court to tender a fresh application, filed a fresh application dated 5th March 2012 on the subject of conversion of âXâ Visa to business. His grievance is that the application for a conversion was not dealt with on the footing that he sought to convert the âXâ visa to Business Visa. He was served with another LEAVE INDIA notice dated 22nd March 2012.
11] The contents of that LEAVE INDIA notice have been reproduced at para 16 of the petition and, thereafter, what is alleged is that the petitioner rushed to this Court and has filed the instant petition seeking to quash and set aside the said LEAVE INDIA notice.
12] The petition was placed before the Division Bench of this Court on 3rd April 2012 and this Court granted the interim reliefs in terms of prayer clause (b) of the petition, thereby staying the effect of LEAVE INDIA notice.
13] Thereafter, what transpired is that a direction was issued to file an affidavit in reply and from the record it appears that the affidavit was not filed till about December 2012. Eventually, a reply affidavit came to be filed on 14th January 2013 and on 31st January 2013, this Court after hearing both sides passed the following order:-
â1. The learned Counsel appearing for the second, fourth and fifth respondents states that the communication onn page 88 of the Writ Petition No.260 of 2012 was forwarded to the FRO, Pune City for effecting service of the same to the petitioner. The communication dated 21st December 2012 on pages 89 and 90 of the Writ Petition No.260 of 2012 records that the application made by the applicant for conversion of this âXâ visa into âBâ visa has been rejected on the ground of violation of the Visa Rules. The learned counsel appearing for the second, fourth and fifth respondents has also handed over a copy of the communication dated 24th December 2012 issued by the Deputy Commissioner of Police and FFRO, Special Branch II, C.I.D. Mumbai addressed to the FRO Pune City. The learned Counsel further states that there is no other specific order passed which can be served on the petitioner. We accept the statement.
2. The learned Senior Counsel appearing for the petitioner seeks leave to amend the petition. Amendment to be carried out within a period of two weeks from today.
3. Both the Writ petitions will have to be heard together.
4. Place both the petitions for admission on 14th February 2013.
5. The ad-interim relief granted in Criminal Writ Petition No.1316 of 2012 will continue to operate till the next date.â
14] Thereafter, the detailed order referred to by this Court was made available pursuant to which the petition came to be amended.
15] On amendment, the petitioner introduced in the petition the developments, whereunder, he pointed out as to how the order passed is bad in law and how the petitioner could not have been denied the conversion. The grounds have been elaborated before us by learned Senior Counsel, Mr.Chitnis, appearing for petitioner. He submits that there is an enactment called âPassport (Entry into India) Act, 1920.â (for short Act of 1920). Mr.Chitnis submits that the definition of the term âPassportâ and âEntryâ as appearing in this Statute and the power to make rules thereunder would enable the petitioner to urge and for us to hold that on fulfillment of the conditions prescribed in this Act and the Rules, a person who possesses the passport is entitled to enter India and reside therein. He submits that this Act enables removal of the Passport holder or any person only by the Central Government, if he contravenes any rules made under section 3 of the Act of 1920.
16] Mr.Chitnis has then invited our attention to the rules and he submits that the Rule 3 requires possession of valid passport and conforming to the conditions prescribed in Rule 5. Rule 5 sets out the conditions of valid passport. Therefore, the rules themselves contemplate that the passport shall have been issued or renewed by or on behalf of Government in the Country of which the person to whom it relates is a national and shall be within the period of its validity. Once this condition is complied with, then, a proper Indian Diplomat, Consular or Passport Authority or such authority as may be authorised in this behalf by the Central Government puts an endorsement by way of Visa for India and which would be in one or other of the kinds mentioned in Rule 5(iv) of the Passport (Entry into India) Rules, 1950. (for short 1950 Rules).
17] In such circumstances, the order under challenge could not have been passed. There is nothing in law which would enable the authorities to reject the request as made by the petitioner. Mr.Chitnis has criticised the order on the footing that the Registry of Home Affairs deems that petitioner's case is not covered under the Cut-off date viz., 31st December 1984 and, therefore, he will not be eligible for conversion of his âXâ Visa into Business one.
18] Mr.Chitnis submits that once the petitioner arrived in India on 6th August 1993 on entry visa with his mother, who is also holding entry visa, then, authorities were very well aware that the cut-off date prescribed by them of 31st December 1984 can never be applied to him. In any event, the prescription of the cut-off date is arbitrary, unfair, unreasonable and violative of the mandate of Article 14 and 21 of the Constitution of India.
19] The petitioner has, according to Mr.Chitnis, entered India legally and, therefore, his request to convert the visa from âXâ to Business could not have been rejected. He has been running the restaurant business at Pune. The petitioner has obtained all the licenses and in these circumstances, the impugned order is clearly untenable and should be set aside.
20] Mr.Chitnis has relied upon the Rules and equally the judgement of the Supreme Court in the case of Hasan Ali Raihany Vs. Union of India and Ors., reported in (2006) 3 S.C.C. 705.
21] Mr.Chitnis has laid special emphasis on the observations of the Supreme Court and the obligation to assign reasons. He, therefore, submits that the impugned orders should be quashed and set aside.
22] On the other hand, learned Counsel appearing for respondents would submit that the case must be viewed in a proper perspective. The petitioner has no fundamental right to reside and settle in India as he is not an Indian Citizen. The petitioner has entered India on a passport and in terms of Act of 1920. However, the petitioner should be well aware and is rather well aware of the fact that the requirement of obtaining visa has to be complied with by him. That he has complied with such requirement is admitted by him. Once that requirement is absolute in its application to parties like the petitioner, then, he cannot violate the visa terms and conditions. The petitioner was informed very clearly even when he sought extension of his X visa that there is a requirement to endorse on his passport the relevant stipulation. However, the stipulation and endorsement in the case of the petitioner is specific namely that employment/business/ study is not permitted on X visa. The petitioner continued on that basis and thus could not have undertaken any business activities. However, upon enquiry being made, it was revealed that he was running a business activity and particularly hotel business. His name appeared in the Shops and Establishment Licence. Therefore, the Visa Rules were violated by him and hence a LEAVE INDIA NOTICE was issued to him. Thus, a passport will make him eligible to enter into India and to reside in India till the same is valid in the country of origin. He was well aware of the requirement of obtaining a Visa. That he applied and obtained a specific category of visa. In such circumstances, when repeatedly his application has been rejected and no conversion can be permitted in terms of the guidelines, rules and the regulations, then, in the garb of making applications, the petitioner cannot perpetuate his illegal stay in India. The petition, therefore, be dismissed.
23] Reliance has been placed on a judgment delivered by a Division Bench of this court in the case of Reza Abdul latif Saboonchi and Anr. Vs. State of Maharashtra and Ors., (Criminal Writ Petition No.2098 of 2012 decided on 14th September 2012).
24] With the assistance of the learned Counsel appearing for parties, we have perused the petitions and all annexures thereto. We have also perused the relevant decisions brought to our notice. What the petitioner sought in this case was a conversion of his visa from X category to business (B) category.
25] In his application to the Foreign Registration Office, what he stated is that he has a passport bearing No.D-14821317. He is an Iranian national and registered as such with the FRO. The Registration certificate Number is 150/01. He has done his schooling from Maharashtra English School from 1986. He passed his 10th standard in the year 1996-97. He did his Junior College and Engineering Studies from Pune. He was residing with his parents at Pune. His father is also an Iranian National and holding a passport. He has been staying in India for last 53 years. He owns a business called Cafe Naaz Corner, which is closed since 2008. He is now retired. His mother is also a passport holder and co-owner of Cafe Mahanaaz. The petitioner wanted to continue his family business by running a restaurant. He, therefore, prayed that having resided for almost 24 years, his Visa categorisation be changed from X to B. He fairly stated that his X visa is valid till 31st October 2011. Upon such application what may have transpired is that the orders passed or a LEAVE INDIA Notice or the LEAVE INDIA NOTICE issued earlier stood withdrawn. However, the fact remains that the petitioner has been through out informed that without obtaining valid permission, he has been carrying on business and this is not permitted when the visa is of X category. The petitioner persisted and made the application, even after this Court's order, on identical lines. He has been informed that his application has been rejected.
26] The rejection is on the following grounds:-
âThe guidelines issued by this Ministry vide circular No.25022/23/08-F.I dated 29.12.10 provide conversion of Visa status from X to B of old Iranian registries subject to the following conditions:-
(I) The cut off date for such conversion would be 3.12.1984;
(II) This is one time relaxation and applicable only to old Iranian registries i.e. upto the cut off 31.12.1984 so that they can continue their business in the country on an appropriate visa. No such case will be entertained in future irrespective of nationality.
(III) This conversion will be subject to the condition that their business is in existence and that they are following all legal requirements and nothing adverse is reported against them. In case they close down their business, the B Visa would be converted back to âXâ visa provided they still remain married to the Indian spouse. In case they close down their business and are no longer married to an Indian their visa residential permits would be cancelled and they should be asked to leave the country.
(IV) Decision to conversion of X visa into B Visas would be taken by the FRROs/UTs concerned after examining each case on merits and after ascertaining character antecedents and verification of each case by IB and State Police.
2] In view of the fact that the case of Mr.Mohammad Hassan Jafari Naeimi, Iranian national is not covered under the cut off date 31.12.1984, he is not eligible for conversion of his âXâ visa into âBusinessâ Visa. Mr.Mohammad Hassan Jafari Naeimi is also reported to have been running a restaurant business under the name and style of âMahanaaz Restaurantâ at Pune while on âXâ visa in contravention of the condition stipulated on his visas. Also he is reported to have come into adverse notice of the security agencies due to indulgence in undesirable activities in Pune City.
3} In view of the above, it has not been possible for the competent authority to accede to the request of Mr.Mohammad Hassan Jafari Naeimi for conversion of his âXâ Visa into âBusinessâ Visa. His application is therefore, rejected.â
27] We do not find any legal infirmity in the impugned order much less of such nature as could be termed as an error of law, apparent on the face of record. We do not find any perversity either. The petitioner was clearly informed that as per the guidelines issued by the Ministry by Circular dated 29th December 2010, providing for conversion of X category visa to B category of old Iranian registrees in India that the cut off date for such conversion would be 3rd December 1984. That is a one time relaxation and applicable to only old Iranian Registrees and upto the cut off date so that they can continue their business. No application will be entertained in future irrespective of nationalities.
28] Conversion is also not as a matter of right but the applicants must follow all legal requirements and nothing adverse should be reported against them. Once they close down the business, the B-visa would be converted back to X-visa, provided they still remain married to Indian spouse. In case the business is closed down and the person is no longer married to an Indian spouse, then, visa residential permit would also stand cancelled.
29] The petitioner's case does not fall within this category and the cut-off date admittedly. It is his case that he did his schooling in India in 1986. The affidavit filed indicates as to how the petitioner's name came to be entered in the shops and establishment licence. The petitioner could not have adopted such a course unless he is permitted to convert the category of his Visa and in terms of the guidelines. We have carefully perused the guidelines also and which contain same conditions as are reproduced in the impugned order.
30] Once we find that Mr.Chitnis's argument do not note the fundamental distinction between the permission to enter India and continue to reside or stay in India, which could only be upon issuance of visa, then, every such person like the petitioner will have to abide by the visa conditions. The entry into India and stay therein are two different concepts. Once the entry is permitted but on the strength of the entry, which is conditional upon issuance of passport from the Country to which the person or applicant belongs, then, after the initial entry, the stay in India is subject to the issuance of Visa. Once the Visa terms and conditions and as stipulated have to be abided by all such persons like petitioners, then, to urge that LEAVE INDIA NOTICE is bad in law will not be proper.
31] We have also perused the visa manual and the relevant chapters thereof. The business visa is granted to a foreigner vide Chapter V Para 53 of the said Manual and this for the purpose enumerated in clause I to XII. The conditions for grant of business visa have also been stipulated therein. These are the requirements which have to be complied with and what Chapter XVIII thereof provides for is grant of five years multiple entry visa to a foreigner of Indian origin. Thereafter, what has been relied upon and to our mind rightly is a similar controversy which was dealt with by the Division Bench of this Court in Criminal Writ Petition No.2098 of 2012 (supra). This Court noted the arguments and framed two points arising therefrom for consideration in para 8, which read thus:-
â(i) Whether the restriction on the movement of the petitioners, imposed by the competent authority, in exercise of powers under Para 11(2) of the Foreigners Orders 1948 can be said to be just and proper?
(ii) Whether the Visa restriction imposed, qua the petitioners as well as their children is just and proper?â
32] Thereafter, from para 10 onwards, the Division Bench made the following pertinent observations:-
10) Considering the admitted position that the nationality of the Petitioners is Iranian, they cannot be heard to claim the rights guaranteed to a citizen of India. The concomitant is that they being foreigners, have been allowed to enter and stay in India on a valid passport and Visa, subject to the governing restrictions. The fact that, the Petitioners were born, brought up, educated, married and are well settled in Mumbai, would not create any higher right in their favour nor it is open to them to ask for any relief which is contrary to the Visa restrictions, which is the basis of allowing their entry in India. (See (2002) 4 SCC 346, para 15, Bhanwaroo Khan and Others vs. Union of India and Ors.)
11) No doubt the Petitioners claim that when they were minor, their parents obtained Iranian passports. However, after they attained majority, they chose to continue with the same dispensation and renewed their passports and Visas from time to time on that basis until now. Indeed, the Petitioner No. 1 has now become Senior Citizen and Petitioner No. 2 has almost reached the age of 54 years. The Petitioners assert that they have already moved application for registration of Overseas Citizens of India within the meaning of Section 7(A) of the Citizenship Act, 1955. In that sense, the Petitioners have not claimed that they are citizens of India or have acquired citizenship of India, as the case may be. At best, they have taken their claim for registration of Overseas Citizens of India. Whether they succeed in that claim or not will be decided in the said proceedings.
12) Suffice it to observe that in the present proceedings, the controversy will have to be answered on the basis of the present status of the Petitioners and not on any assumption. The present status of the Petitioners is that of foreigners. No more and no less. They may have born, brought up, educated and married as well as settled in Mumbai, but their stay in India as of now is only in the capacity of foreigners, being Iranian Nationals. Admittedly, they are allowed to stay in India because of the renewed Iranian passports and Visas, from time to time. They cannot be heard to say that they have acquired any higher right than what would spring from the said Passport and Visa documents. It is noticed that the Visa endorsement on the passport unmistakably mentions ânot valid for employment/ business, no work or recourse to public fund'sâ. The date of expiry of the Visa is up to 19th November, 2012. The fact that the Petitioners have interest in landed properties or are associated with institutions or Private Family Trust will be of no avail to the Petitioners, much less to challenge the Visa restrictions.
13) The Apex Court, in the case of Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta and Ors., AIR 1955 SC 367, had occasion to examine the question regarding the status and rights of foreigners in India. The Apex Court held that the Constitution confers no corresponding right such as under Article 19 of the Constitution of India conferred on the citizens of India which includes right to move throughout the territory of India, on the foreigners. The right guaranteed to the foreigners is to protection to life and liberty in accordance with laws of the land. Further, the Foreigners Act, 1946 confers power on the Competent Authority to expel foreigner from India which is absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains. Even in the case of Loues Raedt vs. Union of India and Ors., (1991)3 SCC 554 this statement of law has been reiterated. The Division Bench of the Delhi High Court, in the case of Levi Onyemarankeya Anyanwu vs. Union of India and Anr., ILR (2004) II DELHI 16, relying on the abovesaid decision, has negatived the similar argument of a foreigner.
14) The learned A.S.G. had invited our attention to the provisions in the Visa Manual which is a compendium of matters governing categories of Visa and type of restrictions. The conversion of `X' visa into Employment Visa can be permitted only with the prior approval of the Ministry of Home Affairs. It also predicates that the employment/business is not permitted on Entry `X' Visa. There is nothing to indicate that the petitioners have applied for approval of the Ministry of Home Affairs for conversion of `X' Visa into employment/business Visa. The foreigner of Indian origin, his/her spouse and children staying in India on a long term Visa eligible for a five year multientry Visa, can apply to the Ministry of Home Affairs for extension of stay, which can be considered by the said Authority. In no circumstances, the foreigner can engage in business or employment or any activity which is not in accordance with the type of Visa held by him/her. The grant of entry Visa (`X') for a period of five years at a time with multiple entry facility, subject to usual checks, to a foreigner of Indian origin, who wishes to come to India for visiting relatives, holidays, etc. with prior approval of the Ministry of Home Affairs. The entry visa (`X') is primarily for visiting relatives, holidays, etc. and not for employment/business.
15) A priori, there is no legal basis to countenance the grievance of Petitioners that Visa restrictions are excessive, as is contended. Para 10 of the Foreigners Order, 1948 stipulates restrictions on employment qua the foreigners. The Visa restriction is in consonance with the said restrictions. Even if the Petitioners were to succeed in getting registration of Overseas Citizenship of India, the situation would be no different. Inasmuch as, an Overseas Citizen of India can enjoy restricted rights. The rights which are enjoyed by the Overseas Citizens of India are by virtue of Section 7(B) of the Citizenship Act, 1955. This provision opens with non obstante clause. The persons covered by the said provision are conferred with such rights other than the rights specified under Subsection (2), as the Central Government may, by notification in official Gazette, specified in this behalf. That includes restriction on employment in public services and posts in connection with the affairs of the Union or of any State etc. It is not necessary to elaborate on this aspect, except to observe that the Visa restriction imposed on the Petitioners as foreigners and noted in the passport, by no stretch of imagination, can be said to be excessive. That restriction has the backing of law. Accordingly, there is no merit in the challenge to the Visa restriction noted on the passports of the Petitioners.
16) That takes us to the challenge to the movement restriction order passed by the Competent Authority dated 7th June, 2012. It is noticed that the petitioners are foreigners. It is indisputable that the Competent Authority has ample power to impose restriction on movements by virtue of Para 11(2) of the Foreigners Order, 1948. This legal position is no more res integra. The Apex Court in the case of Hans Muller of Nurenburg (supra) as also in the case of Louis De Raedi (supra), has unmistakably held that Foreigners Act bestows absolute power with the Central Government and there is unfettered discretion vested in the Authority. The circumstances pressed into service by the petitioners that they were born, brought up, educated, married and are well settled in Mumbai, will be of no avail, as they continue to be foreigners, permitted to stay in India on conditions specified in the Visa restriction and including the provisions of Foreigners Act. It would be useful to advert to the exposition of the Single Judge of this Court in the case of Bawalkhan Zelanikhan v. B.C.Shah reported in AIR 1960 Bom. 27, which has dealt with similar challenge.
17) To get over this position, the argument of the petitioners is twofold. Firstly, that the impugned order and the restrictions have been imposed without affording opportunity of being heard to the petitioners and more so, no reason has been recorded while dealing with the issues raised by the petitioners in the representation dated 8th May, 2012. More over, the petitioners have already applied for registration of Overseas Citizens of India.
18) Taking the last point first, we have already noted that the impugned restrictions appearing in the Visa or the movement restrictions imposed by the Competent Authority will have to be tested on the basis of the present status of the petitioners. As and when the petitioners succeed in getting registration of Overseas Citizens of India, the question, whether such movement restriction can be imposed or otherwise, can be considered in appropriate proceedings.
19) As regards the grievance of no hearing afforded to the petitioners, that has been justly refuted by the learned A.S.G. relying on the decision of the Division Bench of our High Court in the case of Satish Nambiar v. Union of India reported in 2007 (5) Bom.C.R. 247. Indeed, in that case, the Court was considering the provisions of the Citizenship Act. However, the underlying principle would answer the argument under consideration. The Court held that it is a general principle of law that satisfaction of the authority of such proceedings has to be subjective satisfaction and would be open to a narrow judicial review. Administrative action can be questioned on the ground of illegality, irrationality and procedural impropriety of a superior and has prejudicial consequences, as stated by the Supreme Court in the case of Indian Railway Construction Co. v. Ajay Kumar â (2003) 3 SCC 579. In the present case, no rule or regulation has been brought to our notice, which makes it mandatory for the Authority to grant pre-decisional hearing. The Court noted that the provisions of Citizenship Act,