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2012 DIGILAW 1232 (MAD)

M. Kamaraj v. Chief Immigration Officer

2012-03-07

VINOD K.SHARMA

body2012
Judgment :- 1. Petitioner has approached this court, with a prayer for issuance of writ, in the nature of certiorari, to quash the order dated 30.03.2011, passed by the Bureau of Immigration, declining the request of the petitioner for issuance of No Objection Certificate to travel abroad and to issue immigration clearance for travelling to Srilanka. The impugned order reads as under: No 4/FRRO/2010(PS)-687 Bureau of Immigration (MHA) Government of India Chennai-600 006 To ShriM.Kamaraj S/o Munirathinam No.40, Uppukara Street Walajapet Vellore-632513 Sir, Please refer to your representations dated 26.01.2010 and 18.05.2010 requesting for issuance of clearance certificate enables you to travel abroad 2. Available documents pertaining to your request have been scrutinized carefully and sympathetically and the following are observed: 3. When an Indian National obtains citizenship of another country, it is mandatory to renounce his Indian citizenship as well as to surrender his Indian passport with the passport authority. On 09.09.2005 you produced a Srilankan passport number No3204837 issued at Colombo/issued on 22.08.2005 valid upto 22.02.2010. Possession of Srilankan passport categorically proves your Srilankan citizenship, which makes you ineligible for an Indian passport. Simultaneously, you were holding an Indian passport numbered F0771346 issued on 29.10.2004 valid upto 09.01.2008. 4. Further, you have furnished contradictory information on place of birth while applying for passports numbered F0771346 and H4780639. For the first passport you mentioned your place of birth as walajapet, Tamilnadu while for the second one that as Laxapana Estate, Srilanka. It is evident that you have fabricated records to obtain the Indian passports. 5. In this backdrop, your claim to be an Indian citizen is not proved beyond doubt, we regret to inform you that your request for issuance of no objection certificate to travel abroad could not acceded to. 2. The petitioner submits, that the parents of the petitioner were born in India, therefore are Indian citizens by birth. The parents of the petitioner had migrated to Srilanka for livelihood and settled there. Petitioner was born at Srilanka, and thus became citizen of Srilanka by birth. 3. The submission of the petitioner is that though the petitioner was citizen of Srilanka, but his parents continued to be citizen of India. After few years of stay at Srilanka they migrated back to India. 4. The petitioner was in business of exporting fancy and textile items to Srilanka and was married to an Indian lady in the year 1986. The submission of the petitioner is that though the petitioner was citizen of Srilanka, but his parents continued to be citizen of India. After few years of stay at Srilanka they migrated back to India. 4. The petitioner was in business of exporting fancy and textile items to Srilanka and was married to an Indian lady in the year 1986. 5. The petitioner was repatriated to India under (Srimavo-Shastri India Srilanka agreement 1964-1974 Repatriates) The petitioner was issued a Indian Passport No.Y115681 by the Consular Agent, Assistant High Commission of India, Kandy, Srilanka. The petitioner was also granted Indian Visa which is being used by him for travelling to India and Srilanka. 6. The petitioner till date has been issued passport by periodical renewal. The petitioner also owns a shop at Walajapet Police Station, Vellore in the State of Tamilnadu, though sold now. 7. It is also the submission of the petitioner, that he continued to travel to and fro India to Srilanka for business purpose. All of a sudden his P.P.No.F0771346 was high handedly seized by immigration officer at Chennai Airport and sent to the passport officer for enquiry. 8. The petitioner, was not allowed to travel to Srilanka, therefore his right to free movement is restricted in violation of Article 21 of the Constitution. 9. On enquiry, the District Crime Records Bureau and Foreigners Registration Office, Vellore vide order dated 11.1.2010, certified that there is no adverse remarks against the petitioner as per the records maintained at the Walajapet Police Station, Vellore. 10. Petitioner therefore applied for the new passport on 01.10.2009, on request a new passport No.H4780639 was issued to the petitioner by the Regional Passport Authority, Chennai. 11. The petitioner wants to travel on the new passport to Srilanka BUT on the apprehension that the respondents may seize his new passport also, he made a request for issuance of No Objection Certificate to the 2nd respondent for immigration clearance for travelling to Srilanka. 12. The respondents have failed to pass any order on his representation. 13. The petitioner therefore is constrained to file a writ, in the nature of mandamus, to direct the 2nd respondent to give No Objection Certificate as also immigration clearance by considering the representation filed by the petitioner. 14. 12. The respondents have failed to pass any order on his representation. 13. The petitioner therefore is constrained to file a writ, in the nature of mandamus, to direct the 2nd respondent to give No Objection Certificate as also immigration clearance by considering the representation filed by the petitioner. 14. The writ petition, was disposed of by this court, by directing the 2nd respondent to dispose of the representation within a period of three weeks. The order of this court was not complied with, which had forced the petitioner to file contempt petition. It was after the notice by this court in the contempt proceedings, that the impugned order was passed. 15. Learned counsel for the petitioner challenged the order to be arbitrary being based on no material. It is also the contention of the learned counsel for the petitioner, that the averments made in the orders are totally incorrect. The petitioner does not hold any Srilankan passport and is holding the Indian passport only. 16. The petitioner also claims that he, being a citizen of India, is entitled to have an Indian passport with right to travel abroad, as there is no criminal case pending against the petitioner. 17. The writ petition is opposed by the respondents on the ground that the petitioner is in possession of three passports, which is not permissible in law. It was on this account that earlier passport of the petitioner was taken in custody. It is the stand of the respondent that the petitioner is not entitled to second passport, as his earlier passport is valid, though impounded. 18. In support of the counter, no documents are placed on record by the respondent, to justify the impugned order. The direction of this court, to produce the file showing the proceeding against petitioner is also not complied with. 19. Learned A.S.G admits that the impugned order was passed only on the basis of the computer generated information and no further proceedings were conducted nor any notice was issued to the petitioner, before rejecting his request, for NOC and immigration clearance. 20. In view of the stand taken by the learned Additional Solicitor General, the impugned order cannot be sustained, as it denies the right of the petitioner to free movement being citizen of India. 21. 20. In view of the stand taken by the learned Additional Solicitor General, the impugned order cannot be sustained, as it denies the right of the petitioner to free movement being citizen of India. 21. Though, under the passport Act, Government has the right to impound a passport if there is any material against the holder of passport or in case he is guilty of some crime, etc but such an order which affects the right of free movement cannot be passed without complying with the principle of natural justice by giving opportunity to the person concerned, to rebut the discriminatory material if any available against him. 22. Consequently, this writ petition is allowed. The impugned order is set aside. The case is remitted back to the respondents, to reconsider the case of the petitioner for grant of immigration clearance in accordance with law. It is made clear that in case the request of the petitioner is rejected, then in that case respondent is directed to pass detailed speaking order, after giving opportunity of hearing to the petitioner. 23. The needful be done within one month of the certified copy of this order. No costs.