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2014 DIGILAW 828 (RAJ)

Alam Khan v. The Union of India

2014-04-02

P.K.LOHRA

body2014
JUDGMENT 1. - The petitioner a resident of Pithorai, Police Station Khuhari, District Jaisalmer has preferred this writ petition seeking direction against the second respondent to issue passport in his name. 2. The brief facts, giving rise to this writ petition, are that the petitioner submitted an application on 18th November, 2008 in the office of second respondent for issuance of passport. The application was allotted file No.A067201 and Key No. 6506420108. Before submission of the application form, the verification certificate was issued by the Station House Officer, Police Station Khuhari on 05.11.2008 with the remark that the petitioner is bearing good moral character and reputation. It is further clarified in the verification certificate that the petitioner has not incurred any disqualification for issuance of passport in terms of Section 6(2) of the Passport Act, 1967 (for short, 'the Act of 1967'). The petitioner has specifically pleaded in the writ petition that after submission of the requisite application and the verification certificate, no further action was taken by the second respondent. When the application submitted by the petitioner in year 2008 was not processed, the petitioner served a notice for demand of justice through his counsel on 23rd January, 2012 requesting the second respondent to issue passport within a fortnight. The petitioner claimed passport in his name for undertaking pilgrimage in the form of Haj Yatra, for which passport was necessary. It is, inter alia, averred in the writ petition that the second respondent is under obligation to issue passport by adhering the procedure laid down under Section 5(2) of the Act of 1967 and if there is any impediment in doing so, it can very well resort to sub-section (3) of Section 5 of the Act of 1967 for rejection of application. Attributing inordinate delay on the part of the second respondent, the petitioner has categorized their action as arbitrary and unreasonable and dehors the provisions of the Act of 1967. 3. After issuance of show-cause notice, the respondent respondent has submitted its reply. In the form of preliminary objections, the respondent has averred that the petitioner is guilty of concealing material fact, and therefore, he is liable to be non-suited solely on account of his conduct. 3. After issuance of show-cause notice, the respondent respondent has submitted its reply. In the form of preliminary objections, the respondent has averred that the petitioner is guilty of concealing material fact, and therefore, he is liable to be non-suited solely on account of his conduct. Alleging that there is no question of invasion of any of the legal rights much less fundamental rights of the petitioner the respondent has pleaded that the petitioner is not entitled to invoke extraordinary jurisdiction of this Court. A specific objection was raised in the return that the passport has not been issued to the petitioner due to negative police verification report submitted by the Superintendent of Police, Jaisalmer. The petitioner's credentials were also questioned by the second respondent by stating in the reply that on earlier occasions, he applied for passport in the years 1992, 1997 and 2000 respectively and in every application, he has changed his date of birth with intent to mislead the passport authorities. The inconsistency in the date of birth was highlighted with full emphasis. The requisite negative police verification reports received by the respondent were also placed on record. Taking a jibe at the conduct of the petitioner for concealing material information about the previous applications for issuance of passport in 1992, 1997 and 2000, the respondent has prayed for rejection of the petition for concealment of material informations. While referring to the communication dated 12th May, 2010 from Superintendent of Police, Jaisalmer, the respondent has averred in the return that the Superintendent of Police has opined that the petitioner was previously involved in smuggling activities and also convicted for the offence under Excise Act, therefore, it is not desirable to issue passport to him. 4. The third respondent, in its brief reply, has not contradicted the factual aspect of the matter. The third respondent has essentially maintained its stand that writ is not maintainable against it. In the return filed on behalf of third respondent, no endeavour was made to doubt the character and antecedents of the petitioner for issuance of passport and on this issue, the reply is absolutely silent. 5. Learned counsel for the petitioner has argued that on the basis of reply and other materials available on record, there is no legal impediment for issuance of passport to the petitioner in terms of Section 5(2)(a) of the Act of 1967. 5. Learned counsel for the petitioner has argued that on the basis of reply and other materials available on record, there is no legal impediment for issuance of passport to the petitioner in terms of Section 5(2)(a) of the Act of 1967. With this submission, the learned counsel has urged that the action of the second respondent in not processing the application of the petitioner is arbitrary and unreasonable. Learned counsel has also taken shelter of Articles 14 and 21 of the Constitution of India by submitting that the action of the respondent is in gross violation of the fundamental rights of the petitioner. Mr. Shah, learned counsel for the petitioner, in support of his contention has placed reliance on a decision rendered by this Court on 7th February, 2014 in SBCW No.210/2012 - Haji Menu v. Union of India & Ors. The Court has held as under:- At the outset, it may be observed that granting of passport to an individual is governed by the statutory provisions contained under the Act of 1967 and the requisite criterion and grounds for issuance and refusal of passport are to confirm the provisions contained therein. Section 5 of the Act of 1967 deals with the procedure for furnishing of the application for issuance of passport. Under sub-section (3) of Section 5 of the Act of 1967 the Passport Authority is empowered to pass an order for refusal to issue the passport or travel document after recording in writing a brief statement of its reasons. 6. While examining the purport of sub-section (2) of Section 6 of the Act of 1967, the Court held as under:- If the present case is examined threadbare in the light of materials available on record and sub-section (2) of Section 6 of the Act of 1967 quoted supra, then it will ipso facto reveal that the grounds for withholding the application of the petitioner for issuance of passport or refusal to issue passport to him are not at all convincing. There is apparently no reason for the second respondent to sit tight over the matter or to decline issuance of passport to the petitioner on the strength of available materials. The so called blameworthy character and other antecedents of the petitioner are also not forthcoming from the materials which are available on record. There is apparently no reason for the second respondent to sit tight over the matter or to decline issuance of passport to the petitioner on the strength of available materials. The so called blameworthy character and other antecedents of the petitioner are also not forthcoming from the materials which are available on record. The communications in the form of Annex.R/2/2 and R dated on which the second respondent has placed heavy reliance, are not worth any sort of credence so as to make out a case within the exceptions carved out under sub-section (2) of Section 6 of the Act of 1967 for refusal of a passport or travel document to the petitioner for visiting any foreign country. One more significant fact is that the so called history-sheet against the petitioner has already been closed by a verdict of this Court and that has obviously vanished the said ground for being treated as an impediment for issuance of passport. From a bare perusal of Annex.R/2/2 the last conviction of the petitioner relates to the year 1996 i.e. on 9th April 1996 and since then more than one and half decades have elapsed and for last more than ten years no criminal case is pending against him. In this view of the matter, the petitioner has not incurred any disqualification for issuance of passport within the four corners of subsection (2) of Section 6 of the Act of 1967. 7. In the penultimate paragraph, the Court has finally concluded as under:- Thus, in totality, in my considered opinion, the action of the respondents is per-se arbitrary, unreasonable and colourable exercise of powers and by not processing the application of the petitioner for passport, the second respondent has acted contrary to the provisions of the Act of 1967. 8. On the other hand, Mr. Rajat Arora on behalf of Mr. Sanjeet Purohit has argued that looking to the conduct of the petitioner, he is not entitled for issuance of passport. Mr. Arora has further contended that there is apparent discrepancy in the date of birth of the petitioner and in his applications submitted for issuance of passport from time to time, therefore, it is not a fit case wherein any indulgence can be granted to the petitioner. Mr. Mr. Arora has further contended that there is apparent discrepancy in the date of birth of the petitioner and in his applications submitted for issuance of passport from time to time, therefore, it is not a fit case wherein any indulgence can be granted to the petitioner. Mr. Arora has also placed heavy reliance on the communication dated 12th May, 2013 from the Superintendent of Police, Jaisalmer, wherein the Superintendent of Police has opined that character of the petitioner is under serious cloud and on the strength of that communication, Mr. Arora has urged that the petitioner is not entitled for issuance of passport. 9. Mr. Anil Bissa, learned counsel for the third respondent, has also adopted the arguments of Mr. Arora. 10. Heard learned counsel for the parties and perused the materials available on record. 11. Upon perusal of the materials available on record, there remains no quarrel that the petitioner has not incurred any disqualification within the four corners of subsection (2) of Section 6 of the Act of 1967 for refusal of passport. Even from the recitals of the letter (Annex.R/2/5) dated 12th May, 2010, which refers to the conviction of the petitioner under Section 54 of the Excise Act in 2005, wherein a fine of Rs. 500/- was imposed nothing turned out. The conviction is age old and by this time almost seven years have passed. Moreover, the said conviction cannot be an impediment for issuance of passport to the petitioner as per clause (e) of sub-section (2) of Section 6 of the Act of 1967. There is nothing on record to show that any of the activities of the petitioner are prejudicial to the sovereignty and integrity of India and presence of the petitioner in any other such country is likely to be detrimental to the security of India. In these circumstances, in my considered opinion, the second respondent is not justified for keeping the application of the petitioner pending and there is apparently no ground for denial of the passport to him. 12. The contention of the learned counsel for the second respondent that there is serious discrepancy about the date of birth of the petitioner requires cognizance and it is, therefore, desirable that the petitioner should furnish requisite document showing his date of birth. 12. The contention of the learned counsel for the second respondent that there is serious discrepancy about the date of birth of the petitioner requires cognizance and it is, therefore, desirable that the petitioner should furnish requisite document showing his date of birth. Looking to the admitted fact that the petitioner is an illiterate, he can furnish the proof about his actual date of birth in the form of birth certificate after obtaining the same in accordance with law. It is expected that the second respondent shall not insist the petitioner for producing declaratory decree of civil court, in this behalf. 13. The Upshot of the above discussion is that the present writ petition is allowed. The second respondent is directed to consider the application of the petitioner for grant of passport on the basis of materials made available by Rajasthan Police and the character verification certificate issued by SHO, Police Station Khuhari subject to the production of birth certificate by him. The consideration of the application of the petitioner for issuance of passport is required to be made by second respondent strictly in terms of sub-section (2) of Section 6 of the Act of 1967 with full objectivity uninfluenced by the facts and circumstances, which are not relevant and germane to the matter. The second respondent is further directed to take steps as expeditiously as possible and to decide the application of the petitioner within a month from the date of the production of birth certificate by him. No order as to costs.Petition Allowed. *******