Partly allowed

David Karim Andrew Nisbet, v. Foreigners Regional

Madras HC1 Aug 2011WP/16807/2011

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a 'Leave India' notice. The court acknowledged the petitioner's employment and lease agreement but held the petitioner could make a representation for belated registration with a penalty. The petitioner was granted liberty to stay in Chennai until the respondent passes orders on the representation.

What did the court decide?

Petitioner granted liberty to approach respondent with a representation for condonation of delay and penalty payment; respondent directed to consider representation within two weeks; petitioner to lea

David Karim Andrew Nisbet, Vs… — Constitutional and Fundamental Rights | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 1-8-2011

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CORAM

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THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR

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WRIT PETITION No.16807 of 2011 M.P.Nos.1, 2 of 2011

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David Karim Andrew Nisbet

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... Petitioner

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Foreigners Regional Registration Officer, Bureau of Immigration, (MHA) Government of India, Shastri Bhavan Annexe, Chennai – 600 006. ... Respondent

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Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus calling for the records from the respondent relating to his impugned order passed in No.40/GF(CA)/LIN/2011, dated 14.7.2011 relating to Leave India Notice, relating to the petitioner holding British National Passport No.706719654, quash the same and further enable the petitioner to register before the respondent for staying in India.

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For Petitioner : Mr.N.Chandrasekar For Respondent : Mr.K.Mohanamurali

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For Respondent

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By consent of all parties, the writ petition is taken up for final disposal.

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This writ petition is filed to quash the notice of the respondent dated 14.7.2011 directing the petitioner to Leave India, who is holding British National Passport No.706719654 to enable the petitioner to register his name before the respondent for his stay in India.

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The brief facts necessary for disposal of the writ petition

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https://hcservices.ecourts.gov.in/hcservices/

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are as follows:

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(a) According to the petitioner, he is a British National, holding British National Passport No.706719654. The petitioner claims that he is a Hair Educator, Hair Stylist and an Art Director by profession and has studied at Toni & Guy, a prestigious School for Hair Styles. He is doing the profession of training Hair Stylist to Toni & Guy standards throughout the world.

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(b) The petitioner was earlier offered employment by M/s.K-Black Fashions Pvt. Ltd., Mumbai, from 19.2.2010 to 18.2.2011 and he arrived in India again on 7.3.2010 and was employed as a Trainer in M/s. K- Black Fashions Pvt. Ltd and he left India on 15.8.2010.

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(c) For staying in India, the petitioner should register his name with the Immigration Authorities within 14 days of his arrival in India. Petitioner's erstwhile employers have taken care of his stay in India during his earlier stay in India. Petitioner stayed between 7.3.2010 and 15.8.2010 at 28A Ajay Apartments, S.V.Road, Santacruz West, Mumbai and there was no bad antecedence during that period of his stay in India.

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(d) The said Toni & Guy, U.K., entered into an agreement with Pauls System Technologies (Pvt) Ltd., to open a franchise at Chennai and they requested the petitioner to train their Hair Stylists in India by giving training to the Hair Stylists in their franchise outlet at Shop No.130, Whites Road, Royapettah, Chennai–600014. Petitioner entered into a contract of employment with Pauls Systems Technologies, Chennai on 1.5.2011, as per which the petitioner has to serve as an Art Director and In-saloon Trainer or in such other capacity of an equivalent status as the company shall reasonably require for a period of one year from 1.5.2011.

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(e) The petitioner landed at Mumbai on 3.5.2011 and arrived at Chennai by a domestic flight. One of the condition for petitioner's stay at Chennai is, he should register with the respondent on his arrival within 14 days. After his arrival at Chennai, petitioner was residing with one Lazarus Daniel Lenin Paul in his apartment at Flat No.7A, Skylark Apartments, Rutland Gate 5^th street, Nungambakkam, Chennai-600006 and tried to find a residential accommodation. However, he could not find any suitable place immediately.

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(f) It is the contention of the petitioner that he contacted the respondent to register his name as per the conditions of registration immediately on arrival and he was informed that unless a rental agreement entered into with the landlord in the building in which the petitioner intend to stay, registration cannot be made as per the rules and regulations.

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(g) It is the further case of the petitioner that he was in search of a residential apartment and he could find an apartment only on 6.7.2011, and that he entered into lease agreement with a landlady viz., K.Padma for a period of 11 months in respect of the the building at D.No.85-89 F1 Baba Flats, Aspiran Garden 2^nd Street, Kilpauk,

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Chennai-600010. Thereafter petitioner contacted the respondent on 13.7.2011 and showed the rental agreement and he was directed to come on the next day.

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(h) It is contended by the petitioner that on 14.7.2011 the petitioner sent a communication enclosing a copy of the rental agreement. However no acknowledgment was issued even though the letter was received. On 14.7.2011, the respondents issued the impugned notice stating that the petitioner should leave India within seven days. The said notice is challenged in this writ petition on the ground that the Leave India notice was passed without noting the provision to stay without registration beyond 14 days by paying penalty in India currency equivalent to Rs.1395/- in case of late registration if the Civil Authority is satisfied. Without reference to the said provision the impugned order has been passed. The petitioner could not register without rental agreement as he faced difficulty in getting rental accommodation immediately and therefore this writ petition was filed to quash the order and for direction to register the petitioner's stay in India.

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The respondent filed a counter affidavit stating that Leave India Notice was issued as the petitioner has violated the Indian Visa Rules by not registering his name with the Foreigners Regional Registration Office, Bureau of Immigration within 14 days of his arrival in India. The Foreigners Act, 1946 and Foreigners Rules, 1939 contemplate compulsory registration with the Civil authorities with Foreigners Regional Registration Officer within 14 days on arrival, if a Foreigner is having a visa valid for more than 180 days. It is denied in the counter affidavit that the petitioner approached the respondent. During a check it was found that the petitioner is working without a valid residential permit. It is further stated in the counter affidavit that late registration can be condoned on payment of US$ 30 (Rs.1,470/-) only if the Civil Authority satisfies with the reasons for the delay in registration.

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Taking note of the difficulties faced by the petitioner, this Court on 20.7.2011 granted interim stay till 25.7.2011 and the same was subsequently extended till 1.8.2011. The petitioner is now residing at Chennai, India.

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Heard the learned counsel for the petitioner as well as respondent.

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The issue in this writ petition is whether the impugned order is justified when the petitioner has secured a residential apartment on rental basis and an agreement was entered into with the landlady on 6.7.2011 and when a representation was sent to the respondent on 14.7.2011, the date on which the impugned order was passed.

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petitioner regarding his stay at Chennai. The claim of the petitioner that he is given employment for a period of one year from 1.5.2011 by an order of appointment given by the Managing Director of Toni & Guy Private Limited is not disputed by the respondent. The petitioner may have violated the provisions regarding the registration within 14 days of his arrival in India. However, he having expressed his difficulties in getting the residential apartment on rental basis and agreement of lease having been entered into as early as on 6.7.2011, 7 days prior to passing the impugned order, the bona fides of the petitioner cannot be doubted.

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There is a provision for belated registration by condoning the delay on payment of US$ 30 (Rs.1,470/-) and the same is admitted in para 7 of the counter affidavit. In the letter dated 14.7.2011 the petitioner has not prayed for condoning the delay and discretion is also vested with the Civil Authority. Therefore the respondent is right in passing the order.

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However, taking note of the fact of the employment of petitioner in the said company as well as the rental agreement entered into between the landlady on 6.7.2011 and as the petitioner was allowed to stay in India till date, the petitioner is granted liberty to make a representation with all details including the request for condoning the delay with an undertaking to pay the penalty within two days from the date of receipt of copy of this order. If any such representation is submitted, the respondent is directed to consider the same and pass appropriate orders on merits, within a period of two weeks from the date of receipt of copy of representation from the petitioner. If for any reason the registration is not possible, the petitioner has to leave India. Till orders are passed by the respondent, the petitioner may be allowed to stay at Chennai.

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The writ petition is disposed of accordingly. No costs. Connected miscellaneous petitions are closed.

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The Foreigners Regional Registration Officer, Bureau of Immigration, (MHA) Government of India, Shastri Bhavan Annexe, Chennai – 600 006.

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+1cc to Mr.N.Chandrasekar, Advocate Sr 46712 +1cc to Mr.K.Mohanamurali, Advocate Sr 46642

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KM(CO) km/1.8.

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W.P.No.16807 of 2011

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https://hcservices.ecourts.gov.in/hcservices/

David Karim Andrew Nisbet, v. Foreigners Regional

Case brief

What is this about?

What did the court decide?

David Karim Andrew Nisbet, v. Foreigners Regional

Case brief

What is this about?

What did the court decide?

What the court decided

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