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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, G.S. PATEL, JJ.
Joshua Sadagursky — Appellant
Versus
Union Of India Through Secretary, Ministry Of Home Affairs — Respondent
Writ Petition No. 1665 of 2019
Decided on : 09-09-2019
Right to Information Act - Section 24 - Constitution of India - Article 226 of- Illegal and arbitrary – Claim of compensation - Respondent is the Union of India through the Ministry of Home Affairs. The 2nd respondent is the Bureau of Immigration through the Immigration Officer, Chhatrapati Shivaji Maharaj International Airport ("CSMIA"), Mumbai, Maharashtra and the 3rd respondent is the Foreign Registration Regional Office, Mumbai - We have heard Dr Saraf for Sadagursky and Mr Singh for the respondents. We have carefully considered the material on record. There is an Affidavit in Reply dated 3rd June 2019 from pages 88 to 94 fled by one Vivekanand Shankar Rasam, the Immigration Officer, Bureau of Immigration, CSMI Airport, Mumbai. There is also an Affidavit in Rejoinder said to have been affirmed in the United States on 3rd August 2019. Although there was some controversy initially about the correctness of the affirmation of the Writ Petition and the Affidavit in Support as also the Affidavit in Rejoinder, we will let that pass and proceed to the merits of the matter – Held, This leaves the decision of a Division Bench of the Delhi High Court in Mohd Javed v Union of India, 2019 SCCOnLine(Del) 8741. That judgment, authored by Anuj J Bhambhani J is an elaborate discussion of the law on the subject. It was also rendered in extremely peculiar circumstances. One Mohammad Javed, an Indian Citizen, married Nausheen Naaz, a Pakistani national, in 2005 according to Islamic Sharia Conventions. A nikahnama was issued in evidence of the marriage. The couple settled in India, where Mohammad Javed lived. They had two sons from the marriage, about 11 and 6 years of age at the time of the decision. Both children having been born in India, they were Indian citizens. Nausheen herself was on what is called a LTV or Long Term Visa. There is a discussion of Nausheens being in and out of India, but it seems that without any reason, she was directed on 7th February 2019 to leave India within 15 days although she was legitimately resident India on a perfectly valid LTV. While the entire discussion on law is instructive, we find that the Division Bench was made privy to certain confdential information tendered to it in two sealed covers (noted in paragraph 16). The Division Bench considered these with due care and circumspection, but found that they furnish no reasons warranting Nausheens abrupt and peremptory ejectment from India contrary to the terms of her Long Term Visa. This is not true of Sadagurskys case at all - For some reason that we are unable to understand, Sadagursky seems to be oblivious to the fact that at the time of the impugned notice he was not legally in India at all. He had not crossed the immigration borders. Although he had a visa, as we have noted, this did not give him unrestricted right to enter India. The civil authorities at the Airport always had the right to refuse him entry. The impugned refusal, as we have found from the record itself, one that Sadagursky has been very careful to elide in his petition, tells a very different story from the one that Sadagursky would wish to project – petition dismissed
JUDGMENT :
G.S. Patel, J.
Rule. Respondents waive service. By consent, rule made returnable forthwith and taken up for hearing and final disposal.
2. The petitioner ("Sadagursky") is a US national and is a citizen of that country. He has fled this petition invoking our jurisdiction under Article 226 of the Constitution of India. He seeks high prerogative remedies; specifically, the issue of a writ of mandamus to restrain the respondents from obstructing or preventing Sadagursky's entry into India; and a writ of certiorari to quash and set aside a notice dated 21st May 2018 issued to him by the respondents. Alternatively, Sadagursky seeks that he be issued a show-cause notice, and the opportunity of a hearing and of fling a written representation contesting his expulsion from India. There are other, relatively minor prayers: that the respondents be directed to furnish complete reasons for his expulsion from India, and that he be reimbursed an amount of US$ 2,000 for his expenses for his return fight to the United States.
3. The 1st respondent is the Union of India through the Ministry of Home Affairs. The 2nd respondent is the Bureau of Immigration through the Immigration Officer, Chhatrapati Shivaji Maharaj International Airport ("CSMIA"), Mumbai, Maharashtra and the 3rd respondent is the Foreign Registration Regional Office, Mumbai.
4. We have heard Dr Saraf for Sadagursky and Mr Singh for the respondents. We have carefully considered the material on record. There is an Affidavit in Reply dated 3rd June 2019 from pages 88 to 94 fled by one Vivekanand Shankar Rasam, the Immigration Officer, Bureau of Immigration, CSMI Airport, Mumbai. There is also an Affidavit in Rejoinder said to have been affirmed in the United States on 3rd August 2019. Although there was some controversy initially about the correctness of the affirmation of the Writ Petition and the Affidavit in Support as also the Affidavit in Rejoinder, we will let that pass and proceed to the merits of the matter.
5. The facts lie in a narrow compass, but, regrettably, the petition is less than candid in the case it presents. Sadagursky, an American citizen, says he is 'a former employee' of a US-based non-profit organization called 'Global Citizen Year'. This was founded in 2008 in the United States. This organization apparently works in four countries, including India. It provides fellowship programmes to the university-bound students coming to India from overseas. This organization partners in India with an Indian non-governmental organization called Teach for India. It conducts its activities from Hyderabad and Pune.
6. The petition directly says Sadagursky was issued a valid US passport on 13th December 2016 valid for 10 years until 12th December 2026. While the petition then immediately proceeds to the events of 2017, we believe it is essential, even at this early stage in the factual narrative, to refer to prior events set out in the Affidavit in Reply but wholly omitted in the petition. The petition gives the distinct impression - simply by not disclosing these prior events - that Sadagursky had a valid one year business visa dated 19th April 2017 and that there was nothing that passed before that date. This is incorrect. In fact Sadagursky frst visited India some time in early-September 2012, a good five years earlier. He stayed for 148 days. This was on a tourist visa. He returned later in 2013 around 5th June and stayed on a student visa until 22nd December 2013 for a total of 201 days. In the aggregate for the 2012-2013, he stayed for 349 days, but, during his second stint in India on the student visa, he overstayed by 62 days. Sadagursky returned to India in 2014 twice: from 5th January 2014 to 24th May 2014, a total of 140 days, and from 5th June 2014 to 5th August 2014, a total 62 days, making in all 202 days. This was on a tourist visa.
7. Again in 2015, he had two visits to India, though of shorter duration from 16th August 2015 to 14th September 2015 (30 days
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