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HIGH COURT OF DELHI
LPA 1036/2024 & CM APPL. 60676/2024
RANDA CHEHAB .....Appellant
Through: Mr. Anand Duggal and Mr. Inderjot Kaur, Advocates.
Through: Mr. Shoumendu Mukherji, Senior Panel Counsel alongwith Ms. Megha Sharma, Mr. Arya Jha, Advocates and Mr. Ankur Yadav, G.P. for UOI.
Date of Decision: 16th October, 2024
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
1. Present appeal has been filed under Clause 10 of the Letters Patent Act, 1866 assailing the order dated 5th September, 2024 passed by the learned Single Judge in W.P.(C) 12401/2024 titled “Randa Chehab vs. Union of India Through Secretary & Ors”, whereby the learned Single Judge has dismissed the writ petition on the grounds that the appellant was found to be involved in public fund collection while visiting India, on her business visa which is not permissible and the appellant being an American citizen, can be refused entry in India by the Central Government, while exercising their power under section 3(2)(c) of the Foreigners Act, 1946.
2. Mr. Anand Duggal, learned counsel appearing for the appellant, at the outset, states that the appellant is a professional yoga teacher holding Master’s Degree in Global Health from North Western University, USA and also that she is a licensed Physician Assistant in Montana, USA. He further states that the appellant had obtained a tourist visa valid from 31st March, 2017 to 30th March, 2027. Subsequently, she had also obtained a business visa which was valid from 20th June, 2019 to 19th June, 2024.
3. Learned counsel for the appellant states that when the appellant came to India on a valid visa, she was deported by Bureau of Immigration from Trivandrum Airport, Kerala on 28th November, 2022. Aggrieved by the said deportation, the appellant filed a writ petition before this Court being W.P.(C) No. 1250/2023, challenging her deportation. He states that vide order dated 18th December, 2023, this Court declined to exercise jurisdiction under Article 226 of the Constitution of India, 1950. The said writ petition was dismissed on the status report filed by the Bureau of Immigration, blacklisting the appellant at the behest of Foreigners Regional Registration Office, Trivandrum, on 11th August, 2020 on the allegations that she was involved in public fund collection while visiting on a business visa which is impermissible.
4. He states that the appellant filed an appeal being LPA No. 105/2024 which was disposed of vide order dated 8th February, 2024 by granting liberty to the appellant to submit a detailed representation. The appellant submitted a representation dated 27th February, 2024, which was not disposed of by the respondents. He states that the appellant filed an application being C.M.APPL No. 31052/2024 in LPA No. 105/2024 seeking direction to the respondents to dispose of the representation and recall of the order dated 8th February, 2024 as the respondents failed to comply with the directions of this Court to respond to the representation filed by the appellant, expeditiously. This Court vide order dated 22nd May, 2024 directed the respondents to decide the representation within six (6) weeks. In compliance thereof, the respondents disposed of the said representation vide Office Memorandum dated 2nd July, 2024, whereby the respondents maintained the order of blacklisting the appellant.
5. He states that the appellant challenged the Office Memorandum dated 2nd July, 2024 vide the underlying writ petition. He states that the learned Single Judge dismissed the underlying writ petition, by heavily relying on the previous order dated 18th December, 2023, passed in WP.(C) No. 1250/2023 without giving due consideration to the new facts presented in the Office Memorandum dated 2nd July, 2024. Hence, he states that the appellant has filed the present appeal.
6. Mr. Anand Duggal, learned counsel appearing for the appellant states that the appellant has not violated the terms of the business visa granted to her. He states that the appellant was moved by the plight of the people who suffered during the Cyclone Amphan which had greatly impacted the State of West Bengal. He states that the appellant is a public spirited person and has been involved in charitable activities. He states that the public funds were collected by the appellant only after August, 2020 when the appellant was already in USA. He states that the appellant did not raise any funds between May, 2020 and 7th August, 2020 when she was residing in India on a business visa. He states that the respondents have not placed any evidence on record to demonstrate that the appellant had raised or collected any funds during the period from May, 2020 to 7th August, 2020. He further states that whatever funds were collected by the appellant, while she was residing in USA, were used for charitable purposes in India. He states that having regard to the fact that there is no tangible evidence placed on record by the respondents regarding raising of funds by the appellant during her stay in India on business visa, there is no legality in blacklisting the appellant. He prays that in view of the aforesaid facts, the appeal be allowed and the order of blacklisting dated 11th August, 2020 alongwith the impugned Office Memorandum dated 2nd July, 2024 be quashed and set aside. He also states that the appellant collected funds for charitable purposes and therefore cannot be said to be unlawful.
7. Learned Counsel for the appellant relies upon the judgement of the Supreme Court in Hasan Ali Raihany vs. Union of India, (2006) 3 SCC
705.
8. Per contra, learned counsel for the respondents states that the appellant had raised public funds during her period of stay in India on a business visa, on and from the month of May, 2020. He states that the terms of the business visa did not permit the appellant to raise/ collect funds while spending time in India on such visa. He states that the moment the appellant violated the said condition, she was liable to be blacklisted in accordance with the terms of the business visa and the rules in that regard. He states that the appellant being an American citizen, was expected to strictly follow the terms and conditions of the business visa granted to her. He also states that it was the responsibility of the appellant to show that she had not collected/ raised funds during her stay in India at the relevant period. He states that in the absence of any cogent evidence, the respondents were constrained to take action in accordance with law which entailed blacklisting the appellant. He prays that the present appeal be dismissed.
9. This Court has heard the arguments of the learned counsel for the parties and perused the records.
10. It is an admitted case that the appellant is a foreign national being a citizen of USA. The government of India, while granting business visa to foreign nationals has formulated “General Policy Guidelines relating to India Visa”, which are guidelines governing the grant of business visa. It is also clear that the respondent is conferred the power to make provisions either generally or for all foreigners prohibiting, regulating or restricting the entry of foreigners into India or their departure from India by virtue of section 3 of the Foreigners Act, 1946.
11. The learned Single Judge in the judgement dated 18th December, 2023 passed in W.P.(C) 1250/2023 had in para 17, noted the purposes for which business visa is granted to foreign nationals. It would be apposite to reproduce para 17 hereunder:-
(v) Foreign nationals who are partners in the business and/or functioning as Directors of the company.
(vi) Foreign nationals coming to India for consultations regarding exhibitions or for participation in exhibitions, trade fairs, business fairs etc.
(vii) Foreign buyers who come to transact business with suppliers/ potential suppliers at locations in India, to evaluate or monitor quality, give specifications, place orders, negotiate further supplies etc., relating to goods or services procured from India.
(viii) Foreign experts/specialists on a visit of short duration in connection with an ongoing project with the objective of monitoring the progress of the work, conducting meetings with Indian customers and/or to provide technical guidance.
(ix) Foreign nationals coming to India for pre-sales or post-sales activity not amounting to actual execution of any construct or project.
(x) Foreign trainees of multinational companies/corporate houses coming for in-house training in the regional hubs of the concerned company located in India.
(xi) Foreign students sponsored by AIESEC for internship on project based work in companies/industries.
(xii) Foreign nationals coming as tour conductors and travel agents and/or conducting business tours of foreigners or business relating to it, etc.”
12. It is manifest from the above that foreign nationals are precluded from activities involving raising or collecting funds while visiting India on a business visa. Though, learned counsel for the appellant had tried to impress upon this Court that the appellant had not violated any such condition particularly between the months of May, 2020 and August, 2020, yet we find at page 217 of the paper book (the status report filed by the respondents), an extract of the statement of the petitioner contained in para 14 of W.P.(C) No. 1250/2023, evidencing the admission of the appellant of having raised funds for the victims of the cyclone. The said statement/ averment is extracted hereunder:-
“III. It is admitted by the Petitioner in the writ petition at Para 14 that: “That in May 2020, the petitioner rendered her pro-bono services associated with the NGO “NISHTA” during the period when India had taken a big hit during the time of cyclone Amphan. The Petitioner collaborated and raised funds for the victims of the cyclone with Water Life India - A social enterprise…”
13. Having regard to the aforesaid averment, which has not been denied by the appellant, we do not find any substance in the aforesaid argument. That apart, the aforesaid statement would lend credence to the prima facie view that the appellant has raised funds during the relevant period and the onus to disprove the same, would shift upon the appellant. Moreover, the appellant has not filed her statement of account for the period between May 2020 and 7th August, 2020 to substantiate her contention that she had not received any funds during the relevant period while she was in India on a business visa. The onus to establish this aspect was on the appellant since she alone could have produced documentary evidence to prove her innocence. In absentia, this Court cannot believe the mere oral arguments in that context. Thus, for want of documentary proof too, this Court finds the version of the appellant untenable. Learned counsel for the appellant had drawn attention of this Court to a page no. 356 of the paper book, purported to be an email indicating deposit of funds only in the month of December, 2020 to submit that the funds came only in that month and not during the relevant period. This appears to be a self serving statement of the appellant. The only way of dispelling the doubt of collection of funds, was by placing on record the Statement of Account of the appellant before the authorities. That having not been done, this argument would not hold any water.
14. The reliance of the appellant on the judgement Hasan Ali Raihany (supra), is completely misplaced. The appellant has placed only one page of the said judgement which is a head-note edited by the journal and not the observation of the Court. Thus, this Court cannot consider any such truncated portion of a judgement and apply it to the facts of the case.
15. To the argument that the impugned Office Memorandum dated 2nd July, 2024 is bereft of reasons, this Court finds that the learned Single Judge had infact examined the issue afresh keeping in consideration the observations of the Co-ordinate Bench in the order dated 18th December, 2023 in W.P.(C) No. 1250/2023. Therefore, the question of any violation of principles of natural justice has sufficiently been taken care of in the impugned judgement. In any case the appeal is devoid of merits as analysed by this Court in the preceding paragraphs.
16. Thus, being devoid of any merits, the appeal alongwith pending applications is disposed of with no order as to costs. MANMOHAN, CJ TUSHAR RAO GEDELA, J OCTOBER 16, 2024