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2021 DIGILAW 976 (BOM)

Salvador Leslie De Souza v. Passport Officer

2021-07-05

M.S.JAWALKAR, M.S.SONAK

body2021
JUDGMENT M S Sonak, J. - Heard Mr. Arjun Naik, learned Counsel for the petitioner and Mr. Mahesh Amonkar, learned Central Government Standing Counsel for the respondents. 2. Rule. Rule is made returnable forthwith at the request of and with the consent of the learned Counsel for the parties. 3. The petitioner in this case was issued a passport on 28.12.2011. It was to remain valid upto 27.12.2021. The date of birth of the petitioner was indicated as 05.09.1955 on the said passport. 4. The petitioner, sometime in the year 2020, applied for change of his date of birth on the said passport by relying upon the birth certificate which had indicated his date of birth as 05.09.1960. 5. The respondents, vide communication dated 22.12.2020 rejected the petitioner's application for change of date of birth on the ground that such application was made beyond the prescribed period of 5 years. As if this was not sufficient, the respondents proceeded to cancel the petitioner's existing passport, by making endorsement on the same which reads as follows: 'PASSPORT CANCELLED, VISA IF ANY REMAINS VALID.' 6. Mr. Arjun Naik, the learned Counsel for the petitioner submits that in terms of the Compendium of Instructions/Guidelines issued by the respondents themselves, there is a provision for correction of date of birth in the passport, particularly where, clerical or technical mistakes have taken place. He relies on the decision of this Court in Remediana Fernandes v/s. Passport Officer, (2016) 4 ALLMR 761 in support of his contention. Mr. Naik submits that the rejection of the petitioner's application is, therefore, improper and it is only appropriate that the respondents be directed to correct the petitioner's date of birth on the passport or in any case to reconsider the petitioner's application for correction of date of birth. 7. Mr. Arjun Naik, learned Counsel further submits that the order cancelling the petitioner's passport is expressly in violation of principles of natural justice and fair play. He submits that no opportunity of hearing was granted to the petitioner and even reasons have not been communicated to the petitioner. 8. Mr. Amonkar, learned Standing Counsel for the respondents submits that the petitioner has alternate remedy by way of appeal to question the cancellation of the passport or for that matter the rejection of the petitioner's application for change of date of birth. 8. Mr. Amonkar, learned Standing Counsel for the respondents submits that the petitioner has alternate remedy by way of appeal to question the cancellation of the passport or for that matter the rejection of the petitioner's application for change of date of birth. He submits that the passport authorities have sufficient power to cancel the passport if it is found that material particulars were suppressed or there was misrepresentation of material particulars. He submits that despite opportunities the petitioner was unable to produce documents based on which the passport issued on 28.12.2011 had indicated the petitioner's date of birth as 05.09.1955. For all these reasons, Mr. Amonkar submits that this petition may be dismissed. 9. The rival contentions now fall for our determination. 10. In terms of Section 10 of the Passports Act, 1967, no doubt the passport authorities have powers to impound or even cancel the passport. However, such powers have to be exercised, consistent with the principles of natural justice and fair play. In this case, there is nothing on record to indicate that the petitioner was informed the possible reasons for which the cancellation was being considered and, therefore, granted an opportunity to meet with such reasons. Even the reasons were not furnish to the petitioner. On this short ground, the orders of cancellation are required to be set aside and are hereby set aside. 11. Since, this is a case of violation of principles of natural justice, the petitioner is not relegated to avail the alternate remedy of appeal which is otherwise available in such matters. 12. Though, the order of cancellation is set aside, this will not preclude the passport authorities from issuing appropriate show cause notice to the petitioner informing him of the tentative reasons for cancellation. Such show cause notice can thereafter be disposed of based upon the response of the petitioner and, if required, after hearing the petitioner. 13. In the peculiar facts of this case, we feel that the passport authorities should also reconsider the petitioner's application for change in the date of birth. This is because the impugned communcation makes no reference to the contentions advanced of the petitioner. We, however, make it clear that the petitioner's application will have to be considered on its own merits and in accordance with law. Nothing in this order is intended to make any determination on merits or maintainability of such application. This is because the impugned communcation makes no reference to the contentions advanced of the petitioner. We, however, make it clear that the petitioner's application will have to be considered on its own merits and in accordance with law. Nothing in this order is intended to make any determination on merits or maintainability of such application. All contentions of all parties are expressly left open. 14. The Rule in this petition is made absolute to the aforesaid extent. The impugned order of the cancellation of the petitioner's passport is set aside and directions are issued to reconsider the petitioner's application for correction of his date of birth. Such application will have to be disposed of as expeditiously as possible and in any case within a period of 3 months from the date the petitioner files authenticated copy of this Order before the concerned Passport Officer. 15. All concerned to act based on the authenticated copy of this order.