Alireza Hekmatnia vs State of Karnataka another

Ashok B. Hinchigeri, J. - The petitioner, who is a citizen of Islamic Republic of Iran, was admitted to the B.D.S. Course at Vakkaligara Sangha Dental College and Hospital, Bengaluru in 2002. He has filed this petition seeking a direction to the respondent No. 2 to extend his student visa till the completion of his studies at Bengaluru. He has also sought a direction to the respondent No. 2 to return his original documents.

Sri. Shivakumar, the learned counsel for the petitioner submits that the petitioner''s student visa period has expired in 2015 and that his application for the extension of the visa period has remained unconsidered. He submits that the petitioner has sought the extension of visa even before the visa period got expired. He submits that the petitioner''s conduct is absolutely blemishless and flawless. The petitioner has not done anything warranting the rejection of his request for the extension of visa.

He submits that the Rajiv Gandhi University of Health Sciences (''RGUHS'' for short) has issued the hall ticket and permitted the petitioner to appear for the fourth year of B.D.S. Course. He submits that the petitioner has booked his tickets to fly back to Iran on 20th instant. He requests that a direction be issued to the respondent No.2 to either to extend the visa period or to grant the exit visa. He submits that he is making this request on humanitarian ground.

Sri. Krishna S. Dixit, the learned Assistant Solicitor General appearing for the respondent No. 2 submits that the petitioner has not disclosed in the writ petition as to why he has not completed his B.D.S. Course even after taking 14 years, though the B.D.S. Course as such is only for 4� to 5 years. He complains of suppression of material facts by the petitioner. He submits that the petitioner took 4 years to complete first year, 3 years to complete second year and equal number of years (3) to complete his third year. He submits that the petitioner has been doing his fourth year for the last 4� years. Furnishing these particulars, he submits that the petitioner is lacking in the bona fides.

He submits that the respondent No. 2 extended the petitioner''s visa on five occasions to enable him to complete his B.D.S. Course.

He submits that as the petitioner is a foreigner and has over-stayed after the expiry of the visa period, has become an offender in the eyes of law. He submits that under Section 14 of the Foreigners Act, 1946, the petitioner is liable to be imprisoned for five years. Such a foreigner does not have the locus standi to invoke the extraordinary jurisdiction of this Court. He submits that the petitioner does not have the legal right, much less a fundamental right to remain in the Indian soil after the expiry of the visa period. Granting or extending the visa falls within the sovereign domain of the State. The conducting of the diplomatic affairs is not justiciable. He also brings to my notice the Foreigners (Report to Police) Order, 2001. Clause 2 of the said order reads as follows:

"2. Information to Police about a foreigner in certain circumstances - Where any person, who has reason to believe that a foreigner has entered India without valid document(s) or is staying in the country beyond the authorised period of stay, accommodates such foreigner in a premises, occupied, owned or controlled by him, for whatever purpose, it shall be the duty of such person to inform the nearest police station, within 24 hours, about the presence of such foreigner."

He also read out the following portions from the Starke''s International Law, Eleventh Edition, International Student Edition published by Oxford Publication, page 314, wherein it is said that a State is fully entitled to exclude all aliens at will.

"2............

Most States claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign Government. The courts of Great Britain and the United States have laid it down that the right to exclude aliens at will is an incident of territorial sovereignty. Unless bound by an international treaty to the contrary, States are not subject to a duty under international law to admit aliens or any duty thereunder not to expel them. Nor does international law impose any duty as to the period of stay of an admitted alien."

He submits that the respondent No. 2 has taken only the original Bona fide Certificate issued by the College and the photostat copies of his passport and visa.

The submissions of the learned counsel have received my thoughtful consideration. It is trite that normally and ordinarily no direction can be issued to the Union of India either to grant the visa or to extend the visa period, as the matter falls within its sovereign domain. On the ground that the petitioner''s application for the renewal of visa period has remained unconsidered, no direction can be given to the respondents to dispose of the pending application. It may also be possible to contend that not passing the order extending the visa itself is tantamount to the implied rejection of the application for extension of visa.

I do not see any extraordinary circumstances in this case warranting the issuance of the direction for the extension of visa period. No cogent explanation is forthcoming as to why the petitioner has not completed 5 years'' B.D.S. Course, even when he has taken 14 years. I take judicial notice of the outer limit of 8 years for completing 5 years'' B.D.S. Just because the RGUHS has granted the permission to the petitioner to appear for the fourth year examination in the 14th year of the petitioner''s studies of B.D.S. Course, the petitioner cannot claim extension of visa period as a matter of right.

As far as the petitioner''s request for the issuance of exit visa is concerned, what can be said is that it is not even the subject-matter of this petition. Suffice to observe that it is open to the petitioner to make the appropriate application for the grant of exit visa, if he has already not made one. It is for the respondent No. 2 to consider the same in accordance with law and following the precedents in similar cases.

As far as launching the prosecution against the petitioner for over-staying in the country is concerned, it is again for the concerned authorities to take a call on the same considering the petitioner''s conduct and the background and antecedents facts of his case. There is no reason as to why the authorities he drop of the hat.

This petition is accordingly disposed of. No order as to costs.