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2022 (4) TMI 1455 - HC - Indian LawsValidity of Look Out Circular (LOC) issued by the Bureau of Immigration, Ministry of Home Affairs, Govt. of India (respondent No.3) - restraint from travelling abroad - Section 13(2) of the SARFAESI Act, 2002 - right to travel abroad as enshrined in Art.21 of the Constitution of India - HELD THAT - Such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure - Even in 2019, in Satish Chandra Verma 2019 (4) TMI 1765 - SUPREME COURT , the Supreme Court set aside the order of the High Court which affirmed the decision of the Central Administrative Tribunal refusing permission to a member of the Indian Police Service from travelling abroad by rejecting his interim application in a pending case before the Tribunal. It held that the appellant had a fundamental right to travel abroad and that right cannot be infringed on the ground that vigilance clearance has not been given. The non-supply of a copy of the LOC to the subject of the LOC at the time the subject is stopped at the airport for travel abroad, non-supply of reasons for issuing LOC , and absence of a post decisional hearing to the subject of the LOC, is not just, fair and reasonable procedure. It is violative of Art.21 of the Constitution of India - When there is admittedly not even an FIR registered against the petitioner, and there is no question of her being accused of any non-cognizable offence, no LOC could have been issued by respondent No.3 to detain the petitioner. At best, the respondent No.3 could have only given information to respondent No.2 about the arrival/departure of the subject according to the OM dt. 22.02.2021. No exceptional case or any adverse effect on the economic interest of India has been made out either in the original request dt. 28.12.2021 made by respondent No.2 to respondent No.3 or in the reply/affidavits and recourse could not have been taken for a coercive process like issuance of LOC - the quantum of the alleged default by the borrower by itself cannot be the basis for seeking issuance of an extreme process like an LOC for restricting the personal liberty of the petitioner to travel outside the country without something more. The OM itself does not draw any line about the quantum of default by a borrower to a financial institution which would be considered detrimental to the sovereignty or integrity of India or to the economic interest of India and a quantum of default which would not fall in the said category. There has been non-application of mind by respondent No.3 while issuing LOC dt. 28.12.2021 against the petitioner, and mechanically it appears to have been issued without there being any material to show that the petitioner would fall in the category of a person against whom an LOC is permitted to be issued by the guidelines framed in that regard by respondent No.1 - The LOC dt. 28.12.2021 issued by respondents No.1, 3 4 against the petitioner at the instance of respondent No.2 is set aside. Petition allowed.
Issues Involved:
1. Legality of Look Out Circular (LOC) issued against the petitioner. 2. Right to travel abroad under Article 21 of the Constitution of India. 3. Procedural safeguards in the issuance of LOC. 4. Justification for issuance of LOC against the petitioner. 5. Compensation for loss of reputation and financial loss due to the LOC. Detailed Analysis: Legality of Look Out Circular (LOC) issued against the petitioner: The petitioner challenged the LOC issued by the Bureau of Immigration at the instance of the Bank of India, which prevented her from traveling abroad. The LOC was issued due to the petitioner being a guarantor for a loan defaulted by respondent No.5. The court found that the LOC was issued without following fair, just, and reasonable procedures, violating Article 21 of the Constitution. The LOC was not communicated to the petitioner, nor was she given a post-decisional hearing, which is required by law. Right to travel abroad under Article 21 of the Constitution of India: The court reiterated that the right to travel abroad is enshrined in Article 21, as established in Satwant Singh Sawhney vs. D.Ramarathnam and Maneka Gandhi vs. Union of India. Any deprivation of this right must follow a fair, reasonable, and just procedure. The court held that the respondents failed to follow such a procedure, making the issuance of the LOC arbitrary and illegal. Procedural safeguards in the issuance of LOC: The court emphasized the need for procedural safeguards, including the communication of the LOC and reasons for its issuance to the affected person. The court noted that the Office Memoranda governing LOCs lacked provisions for these safeguards, making the procedure followed by the respondents unjust and unreasonable. The court directed that these safeguards be read into the Office Memoranda to ensure compliance with principles of natural justice. Justification for issuance of LOC against the petitioner: The court examined whether the issuance of the LOC was justified based on the facts and circumstances. It found that the petitioner was not an accused in any criminal case, and there was no FIR registered against her. The court held that the mere quantum of the loan default could not justify the issuance of an LOC. The court also noted that the respondent No.2 bank's apprehension of the petitioner fleeing the country was based on suspicion, not proof, and was insufficient to warrant an LOC. Compensation for loss of reputation and financial loss due to the LOC: The court acknowledged that the petitioner suffered a loss of reputation and financial loss due to being prevented from boarding her flight. The court awarded costs of Rs.1 lakh to be paid by the respondent No.2 bank to the petitioner as compensation. Relief Granted: 1. The LOC dated 28.12.2021 issued against the petitioner was set aside. 2. The respondent No.2 bank was directed to pay Rs.1 lakh to the petitioner as compensation within four weeks. 3. Respondents No.1 to 4 were directed to expunge any remarks/endorsements/entries related to the LOC from the petitioner’s records/passport within one week and permit her to travel abroad. 4. The court directed that copies of the LOC and reasons for its issuance must be served to the affected person as soon as possible, and a post-decisional hearing must be provided. These requirements were to be read into the Office Memoranda concerning LOCs. Conclusion: The court allowed the writ petition, declaring the LOC issued against the petitioner as arbitrary, illegal, and violative of Articles 14 and 21 of the Constitution of India. The court provided comprehensive relief to the petitioner, ensuring her right to travel abroad and compensating her for the losses incurred.
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