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2001 DIGILAW 517 (KAR)

ICICI LTD. v. PASSPORT OFFICER

2001-07-06

D.V.SHYLENDRA KUMAR

body2001
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS is an unusual writ petition filed by a Public Limited Company which is also a financial institution lending money to various institutions and individuals. ( 2 ) IT appears, the petitioner institution had advanced certain amounts in favour of a Limited Company, the repayment of which had been guaranteed by respondents 2, 3 and 4. The borrower and the said respondents having defaulted in the repayment, had instituted proceedings for recovery of the same by filing O. A. 787/98 before the Debt Recovery Tribunal, Bangalore. ( 3 ) THE respondents having failed to appear before the Tribunal, the original application filed by the petitioner institution (O. A. No. 787/98) appears to have been allowed and the Debt Recovery Tribunal is in the process of issuing Recovery Certificate in respect of respondents 2, 3 and 4. ( 4 ) THE learned Counsel for the petitioner Sri. Muneer Ahmed submits that the respondents 2 to 4 who owe large sums of money, are likely to go out of the Country to escape their liabilities and to avoid the same and even during the process of issuing recovery certificates against them by the Tribunal, if they should be allowed to go out of the Country, the petitioners interest would be adversely affected and that the petitioners may not be able to recover the amount and further that the petitioner being a public limited company, public interest will also be affected. ( 5 ) IT is the case of the petitioner that the petitioner , coming to know that R2 to R4 are likely to flee from the Country, had put on notice the first respondent Passport Officer pointing out the provisions of Section 10 (3) (h) of the Passports Act, 1967 (hereinafter called as 'the Act' for short), and had called upon the Passport Officer to impound the passports or travel documents or R 2 to R4 for the time being so that the petitioner may obtain recovery certificates from the Tribunal and proceed further in accordance with law. ( 6 ) THE learned Counsel for the petitioner submits that inspite of the Passport Officer being issued with such notice and request having been made calling upon the Passport Officer to so impound the passports of R. 2 to R4, no action has been taken by the Passport Officer in this regard and unless such action is taken immediately, public interest is likely to be affected and the petitioner institution will be put to great peril and difficulty in the matter of realising the amounts due to it. ( 7 ) IN this regard, the learned Counsel brought to the notice of the Court Section 10 (3) (h) of the Act on which reliance has been placed, which reads as under :-" (H) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest of the holder of the passport or travel document has been issued by a Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such Court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. " ( 8 ) RESPONDENTS 2 to 4 have filed written objections pointing out that the petition is not maintainable , that the allegations made against these respondents in the writ petition are not correct and are not admitted and that the situation does not come within the scope or ambit of provisions of Section 10 (3) (h) of the Act. Sri, Amar Kumar, learned counsel appearing on behalf of these respondents submitted that the situation contemplated under Section 10 (3) (h) of the Act, particularly in the light of a person against whom the Court has issued summonss or warrant which has remained unexecuted, in respect of whom the Passport Officer may impound travel documents preventing such person's departure from the Country as are persons against whom criminal proceedings are pending and not persons who are before the Court in a civil proceeding. It is accordingly submitted that the petitioner is not entitled to either maintain the writ petition or claim any relief in such a writ petition and prays for dismissal of the writ petition. It is accordingly submitted that the petitioner is not entitled to either maintain the writ petition or claim any relief in such a writ petition and prays for dismissal of the writ petition. ( 9 ) SRI. N. Devadas, learned Additional Central Government Stading Counsel also submitted that the provisions of Section 10 (3) (h) of the Act are not attracted to the situation of the present nature, that it is open to the petititioner to work out its remedy open to it under any other provision of law inasmuch as Section 10 (3) (h) of the Act is not a provision enabling a person like the petitioner to seek relief before the Passport Officer for preventing the departure of passport holder by impounding the same on the premise that departure of the persons from the Country is likely to affect the petitioners financial interest. ( 10 ) A reading of the provisions of Section 10 (3) (h) indicates that a person against whom warrant or summons for appearance has been issued or a warrant for the arrest has been issued will be a person in respect of whom the Passport Officer, on being satisfied of the issuance of such warrant or summons, may pass an order impounding the passport or travel document. It is clear from the context in which the words "warrant" or "summons" are used in Section 10 (3) (h) , that such "warrant" or "summons" is one issued for personal appearance of the person concerned and not if the appearance is necessarily by the person himself or where the appearance could be caused through an authorised representative. It is not disputed by the learned Counsel for the petitioner that the notice issued by the Debt Recovery Tribunal for the presence of or for appearance of the respondents in a proceeding before the Tribunal, gives the option for such respondents to appear either in person or through an authorised representative. A notice of this nature cannot be construed as a "summons" or "warrant" spoken of under Section 10 (3) (h) of the Act. Accordingly I am of the view that in a situation of the present nature, the provision of Section 10 (3) (h) of the Act is not attracted. A notice of this nature cannot be construed as a "summons" or "warrant" spoken of under Section 10 (3) (h) of the Act. Accordingly I am of the view that in a situation of the present nature, the provision of Section 10 (3) (h) of the Act is not attracted. ( 11 ) THIS apart, the provision of Section 10 (3) (h) is not an enabling provision in favour of any person, giving a right in favour of any person to invoke the same for compelling the Passport Officer to act at the instance of such aggrieved person. The provision is one devised in the larger public interest and for protecting public interest. It cannot be called in aid for setting civil disputes by aggrieved persons. At any rate, this provision does not give any right in favour of persons who have civil claims against such other person whose passport is sought to be impounded invoking the provision under Section 10 (3) (h) of the Act. ( 12 ) THE Apex Court has ruled that the right of a citizen to hold a passport which enables one to go abroad is part of one's fundamental right under Art. 21 of the Constitution of India. Provisions of sub-section (3) of Section 10 of the Act place restrictions on the right of a citizen to hold a passport. Therefore, unless such restrictions are fully authorised by law and are also strictly in conformity with such authorisation, the action is rendered illegal being violative of Art. 21 of the Constitution of India. While understanding and interpreting a restrictive provision like Section 10 (3) (h) of the Act, care should be taken to ensure its scope is not unduly enlarged which will lead to the very provision being rendered unconstitutional. While interpreting a provision of this nature, it cannot be understood as a provision giving rise to a right in favour of aggrieved persons like the petitioner who can complain of inaction on the part of an authority and seek for issue of a writ of mandamus from this Court as if it was a right of the petitioner. While interpreting a provision of this nature, it cannot be understood as a provision giving rise to a right in favour of aggrieved persons like the petitioner who can complain of inaction on the part of an authority and seek for issue of a writ of mandamus from this Court as if it was a right of the petitioner. On the other hand, accepting the submission on behalf of the petitioner will amount to conferring a right in favour fo persons like petitioner to affect or curtail the rights of citizens under Art. 21 of the Constitution of India by a public authority at their behest. No such right in favour of private persons can be read into the provisions of Section 10 (3) (h) of the Act as already indicated. Accordingly the submissions of the learned Counsel on behalf of the petitioner are not accepted. ( 13 ) IN this view of the matter, the petition is misconceived. There is neither any legal right in favour of the petitioner nor corresponding obligation on the passport Officer to consider the notice or representation made by the petitioner. Accordingly this petition is rejected without issue of rule. No costs. ( 14 ) HOWEVER, it is made clear that it is open to the petitioner to avail of any other remedy or seek such other course in law for realisation of their dues. Petition rejected. --- *** --- .