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TMI Blog2009 (9) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... order has been served to the petitioner on August 20, 2009 at 17.00 hours. Statement made by learned Advocate for the petitioner is accepted. Taken on record. Copy of the order which is presented by learned Govt. Advocate is marked 'X' for identification and taken on record. 4. Resume of some relevant facts would suffice to appreciate the contentions and submissions on behalf of the parties. The petitioner is a British National, presently residing at House No. 46, Quitala, Aldona, Bardez Taluka, State of Goa. The petitioner states in his petition that he is married to an Indian National, Mrs. Ujjwala Balasaheb Raut and from the wedlock, they have a daughter Kum. Khasa, aged 3 years. After the marriage of the petitioner, according to the petitioner, on October 11, 2006, the petitioner was issued a PIO Card (Person of Indian Origin Card) bearing No. P 0320764. This card was issued to the petitioner, according to the contentions raised by the petitioner in para 3, by the Vice Consul, Consulate of India, New York, USA in terms of Notification No. 26011/4/98-F.I dated 19.8.02. According to the petitioner, this card has been issued by the Ministry of Home Affairs, Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On behalf of the petitioner, it has been argued that though the petitioner is a foreign national, he can still resort to Articles 14 and 21 of the Constitution of India. The petitioner is not an illegal immigrant. The petitioner's entry in the country (India) is valid. The petitioner is a PIO Card holder. Our attention is also drawn by the learned Advocate for the petitioner to Articles 15, 16, 19 and 21 of the Constitution. It is also submitted on behalf of the petitioner that the pleadings raised by the petitioner in para 19 of the petition have not been controverted in the reply affidavit filed on behalf of respondent No. 1. 7. In this petition, in view of the pleadings, material on record and submissions of the learned Counsel for the parties, we are called upon to determine as to whether a foreign national can seek enforcement of right under Articles 14, 19 and 21 of the Constitution of India and extent of such right ? 8. Advocate for the petitioner relied on a Judgment of the Hon'ble Supreme Court in the matter of Chairman, Railway Board and Ors. v. Chandrima Das (Mrs.) and Ors. reported in (2000) 2 SCC 465. Advocate for the petitioner refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The West German on receipt of the passport, made the following entry on it: 'Valid only for the return voyage to the Federal Republic of German until 8.1.55'. It was the grievance of the petitioner that this invalidated all the other visas and as according to this fresh entry, the passport ceased to be valid after 8.1.1955, as now has no passport. Then there is reference of some exchange of communication amongst West German Government to the West Bengal Government. A contention was raised that the West Bengal Government had no power to deport the petitioner and it was only with the Central Government. Since until 20th October, no fresh order was passed by the Central Government, the petitioner in that case applied to the High Court of Calcutta for a writ in the nature of habeas corpus under Section 491 of the Criminal Procedure Code. The High Court decided against the petitioner all the grounds raised and dismissed the petition on December 10, 1954. That is how the petition under Article 32 of the Constitution was before the Supreme Court. The Hon'ble Supreme Court in para 33 of the Judgment has considered the right of foreigners in India. The Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated that the foreigners also enjoy some fundamental rights under the Constitution of this country. However, in the facts of that case, the Court held that that was not of much help to them. The Court observed that a fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country. For this proposition, the statement of law laid down by the Constitution Bench in Hans Muller's case was referred to and followed. From another angle, this para 13 of the Judgment in the case of Louis De Raedt is material, significant and important in the case on hand. In this para 13, it has been observed by the Hon'ble Supreme Court that 'So far 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....' 13. The Judgment relied upon by the Advocate for the respondent No. 1 is in the case of Abdul Halim Mia v. The Sub-divisional Officer, Katwa and Ors. (supra), There the Court has considered Section 5 of Citizenship Act, 1955, read with Rule 7 of the Citizenship Rules, 1956. Factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have also considered paras 34 and 35 of the Judgment. In our view, there the Hon'ble Supreme Court was considering the facts obtaining in that case, a gang rape on a foreign national (Bangladeshi lady) and in that context word 'life' occurring in Article 21 was interpreted with a word person'. We are of the considered view that this Judgment of the Railway Board, in the facts and circumstances of the present case, does not help the petitioner herein. In the case on hand, life of the petitioner is not threatened. There is no apprehension to his life. There is no allegation of house arrest of the petitioner. There is no other allegation made by the petitioner against the respondents in relation to threat to the life of the petitioner. 15. The Judgment of the Supreme Court in that of Hasan Ali Raihany v. Union of India reported in (2006) 3 SCC 705, is also relied upon by the Advocate for the petitioner. We have gone through the Judgment in its entirety. Factually, the petitioner there had sought a writ of mandamus of quashing the order cancelling resident visa permit by order dated 7.10.05 and had also sought some prayers which are referred to by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country. Further, it has been held by the Hon'ble Supreme Court that as such Articles 19(1)(d) and (e) are unavailable to foreigners, because those rights are conferred only on the citizens. Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right. Rights under Articles 19(1)(d) and (e) are expressly withheld from foreigners. We have already considered availability of Article 21 pertaining to life and liberty, in relation to the pleadings, submissions and material on record in the foregoing paras of this Judgment. 17. The Notification pertaining to the PIO Card Scheme is on record (page 18). It is mentioned that this scheme may be called the scheme for issuance of Person of Indian Origin Card (PIO) Scheme, 2002. It has been further said under Clause 1(ii) that this Scheme of 2002 shall come into force with effect from 15.9.2002. 'Person of Indian Origin' is defined under Clause 2(b), as a foreign citizen (not being a citizen of Pakistan, Bangladesh and other countries as may be specified by the Central Government from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of the nation as a whole. Such public interest, in the changing time, needs to be taken into account by the Central Government. 18. Advocates for the Petitioner and the learned ASG have invited our attention to Section 7A of the Citizenship Act, 1955. In the facts and circumstances, we are not dealing with the case of registration of overseas citizens of India. However, Advocate for the petitioner points out Section 15-A i.e. Review. His submission is that a person aggrieved by any order made by the Central Government has been made available remedy of review under Section 15A of the Citizenship Act, 1955. In our opinion, we are not dealing with any order passed by the Central Government or the competent authority under the provisions of Citizenship Act, 1955. The learned ASG submitted that Section 3 of the Passport Act provides that no person shall deport or attempt to deport from India, unless he holds in this behalf a valid passport or travel documents. Section 23 of the Passport Act, 1967 is also pointed out to us. We have also considered the Passport (Entry into India) Act, 1920 and more specifically Section 6 i.e. Rule making powers of the Central Government. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackground fact that the allegations are made against Mrs. Ujjwala Raut who, according to the petitioner, married to him somewhere in 2004. The said Mrs. Ujjwala Raut, for the reasons best known to the petitioner, has not been joined in this writ petition. In other words, there is no opportunity to said person Mrs. Ujjwala Raut to controvert her alleged connivance with the respondents. On this background, it is not possible for us to countenance the submission made by the Advocate for the petitioner. 24. We have considered Article 73 of the Constitution, providing extent of executive power of the Union. From the scheme of Article 73, it appears that the executive power of the Union will extend over whole of the territory of India with respect to the matters enumerated in Lists I and III of the Seventh Schedule, however, subject to two explanations engrafted in the proviso to Clause (1) and in clause. 25. In our view, the petition deserves to be dismissed and, we, accordingly, dismiss the petition, however, without any order as to costs. Rule discharged. Learned Counsel appearing for the petitioner seeks suspension of this order for two weeks for enabling the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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