Sugam Travel Corporation vs Union of India and Another

Vipin Sanghi, J.—The petitioner has preferred the present writ petition to assail the order dated 10.08.2010 passed by the Protector General of Emigrants/ Registering Authority-respondent No. 2. The petitioner also assails the appellate order dated 10.08.2010 passed by the Secretary, Ministry of Overseas Indian Affairs, Government of India, whereby the petitioner''s appeal u/s 23 of the Emigration Act, 1983 has been dismissed. By the first/ original order, the respondent No.2 has disposed of the show-cause notice issued to the petitioner, and in exercise of powers conferred by Section 14(1) of the Emigration Act, 1983, the Registration Certificate of the petitioner under the said Act has been cancelled. Though the respondent No. 2 also issued a notice to the petitioner requiring him to show-cause as to why bank guarantee furnished by him should not be forfeited, the respondent No.2 has not forfeited the said bank guarantee till date. The case of the petitioner is that the petitioner obtained registration under the Emigration Act on 05.10.1989 for the purpose of carrying on the business of recruitment of workers for overseas employment. In the year 1992, the petitioner shifted his office and made an application for renewal of the Registration Certificate. The petitioner''s registration lapsed due to its not being renewed within time, in October 2004.

In the year 2007, the petitioner made a fresh application for registration. Along with the fresh application, the petitioner submitted a valuation report dated 15.03.2007. In this valuation report, the petitioner disclosed the area of the premises to be used for the said business as follows:

AREA OF PREMISES WITH CABIN

Gen. Office :

9�-0� x 12�-5� = 111�-9�

Ex. Cabin :

9�-0� x 11�-9� = 105�-9�

Rec. Area :

12�-6� x 12�-0� = 150�-0� (AVE)

Total Documented Area :

565�-0� Sft.

I may note that there was a typographical error in relation to the area which was mentioned as 565 square feet. There is no dispute between the parties that the area was actually 366 square feet. The petitioner was issued a fresh Registration Certificate on 25.04.2007.

It appears that an inspection was conducted of the office premises of the petitioner and it was found that carpentry work was going on in the reception area admeasuring 150 square feet. The petitioner was issued a show-cause notice on 13.04.2010, on account of the aforesaid carpentry work being carried on in the reception area. The petitioner sent his reply on 10.05.2010 stating that the carpentry work was being carried on in respect of the building wherein his office premises was located.

The petitioner was issued a show-cause notice on 13.04.2010 proposing cancellation of the registration. The said show-cause notice alleged that the minimum space required for office premises of recruitment agents, as stipulated by the Ministry, was 250 square metres. It is not disputed that the respondents intended to mention the figure of 250 square feet, and not square metres. It was alleged that 150 square feet area was not available for carrying on the business as carpentry work was going on in that area, and the remaining area fell short of 250 square feet. It was also alleged that the petitioner was guilty of mis-declaration inasmuch, as, he had declared the area of his office premises as 366 square feet, however, the area was short by 150 square feet which was being used for carpentry work. Since the Registration Certificate was alleged to have been obtained by misrepresentation or suppression of material fact, it was proposed to cancel the certificate.

The petitioner gave his reply on 10.05.2010, wherein it was stated that in January 2009, the building, wherein the petitioner''s premises was located, was granted additional FSI. Consequently, all the tenants residing from first floor and above were granted a grace of one room in addition to the area of the existing flats. Resultantly, the construction/development process had commenced. The petitioner also stated that a section of dominating members of the society insisted upon using his premises for carpentry and other work for the entire building. The petitioner being physically weak and not maintaining good health, could not resist the said coercion exercised upon him. He stated that his office premises was restricted to 216 square feet and that during the relevant period, the minimum area required for running an office premises by recruitment agency was 200 square feet to 250 square feet, which the petitioner met.

The Protector General of Emigrants/ Registering Authority passed the impugned order on 06/ 10.08.2010. This order has been passed primarily on the premise that the minimum space required for office premises of recruitment agents "as per the prevailing criteria at that time was 250 square metres". I may once again observe that the mention of square metres is incorrect, and the respondents also intended to mention square feet.

The petitioner preferred an appeal before the Appellate Authority, i.e., the Secretary, Ministry of Overseas Indian Affairs, Government of India u/s 23 of the Emigration Act, 1983. This appeal has been rejected by the Appellate Authority by placing reliance on Rule 10(xv)(a) of the Emigration Rules, which states that the holder of a Certificate of Registration shall maintain the office premises of not less than 50 square metres built up area. The Appellate Authority has noted that 50 square metres would translate to about 450 square feet, whereas the petitioner had about 216 square feet area available with him. Consequently, it was held that the petitioner did not meet the area requirement and was, therefore, not entitled to obtain the registration under the Emigration Act.

The submission of learned counsel for the petitioner, firstly, is that there is no basis for the Registering Authority''s observation that the minimum space required for office premises by recruitment agents, as per the prevailing criteria at the relevant time, i.e., in the year 2007, was 250 square feet. He submits that the minimum area required by the recruitment agents was 200 square feet, and since the petitioner had an area of 216 square feet, even after excluding the area of the reception (which was being used for carpentry work of other occupants of the building), the petitioner had sufficient area to carry on his business.

On the last date, after some hearing the matter was adjourned for today to enable the respondents to take instructions in this regard and to bring to the Court any specific rule or order stipulating the minimum area required for carrying on the work of recruitment agency at the relevant time as 250 square feet. Learned counsel for the respondents today submits, on instructions, that there is no such order.

From the aforesaid, it is clear that the impugned order dated 06/ 10.08.2010 has been passed on an incorrect premise. Since the petitioner, in any event, had an area of 216 square feet available with him, even after excluding the reception area of 150 square feet (which was being used for carpentry work), the paucity of area could not have been taken as a reason for cancellation of the petitioner''s registration. The impugned order dated 06/ 10.08.2010 passed by respondent No.2, therefore, cannot be sustained and is liable to be set aside.

The submission of learned counsel for the respondents is that the petitioner was guilty of having obtained the certificate by misrepresentation or suppression of a material fact. He submits that the petitioner misrepresented that he had an area of 366 square feet available with him, including the reception area of 150 square feet, whereas he was having an area of 216 square feet.

I do not find any merit in this submission of learned counsel for the respondents. Admittedly, when the petitioner had made the application disclosing an area of 366 square feet, the said area was found to be available with the petitioner, and it is only on that basis that the Registration Certificate was granted to the petitioner in the year 2007. It appears that much later, i.e., only in the year 2009, the area of the premises of the petitioner got reduced by 150 square feet on account of carpentry work being undertaken in the reception area. Therefore, when the petitioner made the application for registration, there was no misrepresentation or suppression of any material fact by him. The invocation of Section 14(1)(e) is, therefore, misplaced in the facts of this case.

Learned counsel for the petitioner points out that the appellate order proceeds on a wrong premise inasmuch, as, it places reliance on Rule 10(xv)(a) of the Emigration Rules. He points that this rule had been introduced by an amendment to the rules carried out on 09.07.2009 vide GSR 511 E. Therefore, the said amended rule had no application to the petitioner''s case, as the petitioner had obtained the registration in the year 2007. Learned counsel for the petitioner submits that the said amended rule did not have retrospective effect. In support of this submission, he has placed before this Court a circular/communication issued by the Ministry of Overseas Indian Affairs, Office of Protector General of Emigrants on 29.07.2009, wherein it has been stated that "the facilities to be maintained by the RA''s under Rule 10(xv)(a) will apply at the time of renewal in respect of those who have been issued the RC or the EC before 09.07.2009".

In the present case, since the petitioner''s registration was granted in the year 2007, i.e., before 09.07.2009, the amended Rule 10(xv)(a) could have been made applicable to the petitioner''s case, only when the petitioner''s registration would have became due for renewal. The petitioner''s initial registration was valid for a period of 5 years. Therefore, had the registration of the petitioner not been cancelled, it would have come up for renewal on 25.04.2012, and the petitioner would have had to make an application for renewal three months prior to 25.04.2012. It is at that stage of renewal in the year 2012, that Rule 10(xv)(a) could have been made applicable to the petitioner''s case. It is, therefore, clear that the invocation of Rule 10(xv)(a) in the petitioner''s case was misplaced, as the said Rule was framed only in the year 2009, and was not applicable to the petitioner''s case in 2007; and, would not have been applicable to the petitioner''s case till 25.04.2012, had the petitioner''s registration subsisted.

Since the requirement of space under the amended rule is 450 square feet, and the petitioner''s area is only 216 square feet, the petitioner cannot obtain renewal of the registration on the basis of the existing premises. In that sense, the issue raised by the petitioner became academic, as the registration, in any event, would have lapsed on 25.04.2012, and for the period thereafter, the petitioner would be governed by Rule 10(xv)(a) of the Emigration Rules. However, learned counsel for the petitioner has submitted that the effect of cancellation of the registration are felt even thereafter, as a person whose registration has been cancelled is debarred from applying for fresh registration for a period of two years, and while filling the form for fresh registration, the applicant is required to disclose if his earlier registration has been cancelled. It is for this reason that the Court has proceeded to decide the present petition on merits.

From the aforesaid, it is clear that the cancellation of the petitioner''s registration by the Protector General of Emigrants/ Registering Authority was wholly unjustified and illegal. The rejection of his appeal is equally unjustified and illegal. Both these orders proceed on wrong assumption with regard to the area that the petitioner was required to maintain for carrying on his business. Accordingly, the impugned orders are set aside and it is declared that the petitioner''s registration was wrongly cancelled. The petition stands disposed of. The parties are left to bear their own costs.