[1].IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER
Haji Menu versus Union of India & ORS.S.B.CIVIL WRIT PETITION NO.210/2012 Writ Petition under Article 226 of the Constitution of India.
Date of Order: February 7, 2014.
PRESENT HON'BLE Mr.JUSTICE P.K.LOHRA, J.
Mr.K.K.Shah, for the petitioner.
Mr.Mohit Vyas for Mr.Sanjeet Purohit for respondent No.2.
None present for respondent No.3.
*** BY THE COURT: Petitioner Haji Menu, resident of Jaisalmer, has preferred this writ petition seeking directions against the respondents for issuance of passport without any further delay.
The apposite facts for the purpose of this writ petition are that the petitioner applied for issuance of passport under the Passports Act, 1967 (for short, ‘Act of 1967’) and the requisite application form No.186362 was submitted on 5th May 2006.
Acknowledging the receipt of [2].the form of the petitioner, respondent No.2 assigned the same, File Reference No.A046267-2006 dated 7th of June 2006.
On receipt of the application form of the petitioner, the second respondent made endeavor for verifying character and other antecedents of the petitioner in accordance with law and requisite information in this behalf was divulged to respondent No.3 & 4 respectively.
The petitioner has categorically averred in the petition that in normal couRs.application for issuance of passport is processed and finalized within six months but in his case when nothing was heard for more than a year, he sought requisite information from the website of the passport authority on 3rd of April 2007.
As per information available on website, the status of the application of the petitioner was shown with the remark that police report is awaited.
Immediately thereupon, as per the version of the petitioner, he submitted a representation on 3rd of April 2007.
The petitioner has also placed on record letter dated 16th of February 2006 showing the report submitted by the third respondent regarding character verification for issuance of passport, which was addressed to the fourth respondent.
In the report, it is indicated that in all nine cases have been registered against the petitioner from 1980 to 1995 with [3].a clear stipulation that since last ten years the petitioner is not involved in any case.
It is also clarified in the report that old cases have already been decided and no case is pending.
In adherence of the report dated 16th February 2006 vide Annex.
‘G’ dated 20th February 2006, the fourth respondent issued a character certificate with the remark that petitioner has good moral character and reputation and provisions of Section 6(2) of the Act of 1987 are not attracted in his case.
In his concluding remark, the fourth respondent has further made recommendation for issuance of passport to the petitioner.
However, according to the petitioner, despite receipt of the requisite character verification from respondents No.3 & 4, no steps were taken by the second respondent for issuance of passport to him.
The petitioner being aggrieved from the inaction on the part of the second respondent approached this Court by way of preferring a writ petition bearing S.B.Civil Writ Petition No.5961/2011.
The said writ petition was rejected by the Court on the technical ground that before invoking jurisdiction of the Court the petitioner has not served a notice for demand of justice or representation to the concerned authorities.
While deciding the writ petition by order dated 13th of July 2011, this Court granted liberty to [4].the petitioner to approach this Court again if after decision of the representation of the petitioner any grievance survives.
As per petitioner, after passing of the order by this Court on 13th of July 2011 a representation was submitted by him on 27th of July 2011 which was duly served on the second respondent but nothing turned out on the said representation.
Ventilating his grievances against the total apathy of the respondents, the petitioner has averred in the petition that after waiting for three months when his representation was not acknowledged in spite of completing all formalities he was left with no option but to approach this Court by way of this petition.
In support of his prayer, the petitioner has stated in the writ petition that in terms of Section 6(2) of the Act of 1967 there is no impediment in issuance of passport to him.
While referring to Section 5(2) of the Act of 1967, the petitioner has further submitted that if the authority was not satisfied it was well within its right to refuse his request to issue the passport under sub-section (3) of Section 5 of the Act of 1967.
According to the petitioner, the competent authority has not adhered to the said procedure by passing any order.
For his afflictions, the petitioner has also taken shelter of Article 21 of the [5].Constitution of India.
At the threshold, when the matter came up before this Court on 2nd of February 2012, the Court was pleased to pass following order: “Issue notice as to why this petition for writ be not accepted as prayed for.
Notice be given ‘dasti’ to the learned counsel for the petitioner to effect service upon the respondents.
Rule issued is made returnable on 27.2.2012.”
.
In response to show cause notice, separate replies were submitted on behalf of respondent No.2 and 3 respectively.
In the reply on behalf of respondent No.2, besides touching the merits of the case, certain preliminary objections were also raised including the objection that the petition is based on false and misconceived averments.
The respondent No.2 has also castigated the petitioner for concealing material facts from the Court.
Alleging that there is no infraction of any of the legal or fundamental rights of the petitioner, it is submitted in the reply that invocation of writ jurisdiction is wholly uncalled for.
[6].Defending its action, the respondent No.2 has also submitted that there is no question of arbitrary or malafide action, or inaction on its part which warrants issuance of mandamus in the matter.
Along with the reply, a letter dated 2nd February 2007 of the Superintendent of Police, CID (Security).Jaipur addressed to the third respondent was enclosed containing the recitals that in the interest of Nation issuance of passport to the petitioner is not desirable.
With the reply of the second respondent, letter Annex.
R/2/2 dated 28th February 2007 is also enclosed, which was a communication from third respondent to second respondent indicating the reasons for non-issuance of passport to the petitioner.
Yet another communication from Superintendent of Police CID (Security).Jaipur dated 14th July 2010 addressed to the third respondent was also enclosed containing the recitals that in the National interest passport is not required to be issued to the petitioner.
The third respondent, in the reply has also contested the claim of the petitioner for issuance of passport by questioning his character and other antecedents.
As per [7].the third respondent, petitioner is a history-sheeter of Police Station Sam, District Jaisalmer.
On other aspects, the third respondent has submitted a general reply without any specific objection.
Learned counsel for the petitioner, Mr.K.K.Shah, has strenuously urged that on the basis of averments contained in the reply of the respondents and other materials placed 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.
Mr.Shah, therefore, has submitted that the action of the respondent is arbitrary, unreasonable and in gross violation of the provisions of the Act of 1967.
Mr.Shah would contend that right to go abroad is a fundamental right imbibed in right of liberty within the meaning of Article 21, and therefore, denial of passport to the petitioner without any justifiable reason has violated the fundamental rights of the petitioner enshrined under Article 14 & 21 of the Constitution of India.
Mr.Shah, while refuting the allegations that petitioner is history-sheeter, has argued that the said history-sheet has already been closed by this Court.
Mr.Shah, in this connection invited attention towards order dated 1st March 2013 passed by this Court [8].in S.B.Criminal Misc.
Petition No.1956/2012.
A coordinate Bench of this Court, while accepting the Criminal Misc.
Petition of the petitioner, passed following order: “Thus, the petition of Haji Menu deserves acceptance which is hereby accepted.
The respondents are hereby directed to close the History Sheet which has wrongly been opened against the petitioner.”
.
Mr.Shah has also placed heavy reliance on a decision of this Court in S.B.Civil Writ Petition No.7205/12 – Sothe Khan alias Sodhe Khan versus Union of India & Ors., decided on 2nd of July 2013.
While deciding the said petition, the coordinate Bench issued following directions: “In view of the recommendation made by the SP, CID (Security).Jaipur I deem it appropriate to dispose of this petition for writ by directing the Regional Passport Authority, Jaipur to consider the application of the petitioner for grant of passport afresh by taking into consideration the material made available by the Rajasthan Police.
Such consideration is required to be made on or before 01.9.2013.”
.
E-Converso, Mr.Mohit Vyas for Mr.Sanjeet Purohit, learned counsel for second respondent, has urged that in view of Annex.
R/2/1 to R/2/3 the character and other [9].antecedents of the petitioner are under serious cloud and therefore the second respondent has rightly decided not to issue passport of the petitioner.
Mr.Vyas has vehemently argued that in view of recitals contained in all these documents, issuance of passport to the petitioner is not in National interest and therefore no direction can be issued in exercise of extraordinary jurisdiction of this Court.
Mr.Vyas has also submitted that apparently in the instant case there is no question of invasion of any of the legal rights much less fundamental rights of the petitioner and therefore mandamus cannot be issued.
I have heard learned counsel for the parties and perused the materials available on record.
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-sec.(3) of Section 5 of the Act of 1967 the Passport Authority is empowered to pass an order for [10].refusal to issue the passport or travel document after recording in writing a brief statement of its reasons.
Section 6 of the Act of 1967 empowers the Passport Authority to pass an order for refusal of passport/travel documents etc.Sub-section (2) of Section 6 of the Act of 1967 envisage the contingencies for refusal of issuance of passport or travel document for visiting any country to the incumbent applicant.
For ready reference, the complete text of Section 6 with emphasis on sub-section (2) of Section 6 of the Act of 1967 is reproduced as under: 6.
Refusal of passports, travel documents.
etc.- (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: - (a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India: (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country, (d) that in the opinion of the Central Government the presence of the applicant in [11].such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: - (a) that the applicant is not a citizen of India., (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India., (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two yeaRs.(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; [12].(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
(emphasis supplied) 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.
The communications in the form of Annex.R/2/2 and R/2/3 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-sec.(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 [13].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 sub- section (2) of Section 6 of the Act of 1967.
The above referred Sections 5 & 6 of the Act of 1967 contain the complete procedure for dealing with an application for issuance of passport, travel documents etc and plausible grounds for refusal of passport, travel documents etc.Thus, the passport authority is statutorily bound to process the application for issuance of passport and thereafter to take a decision either in affirmative or in negative in the backdrop of facts of an individual case.
Considering these aspects, the contention of the learned counsel for the second respondent, that mandamus cannot be issued, deserves judicial scrutiny.
[14].Mandamus is defined as: “The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.
Its purpose is to supply defects of justice; and accordingly, it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right.”
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Keeping in view the exhaustive definition of mandamus, there remains no quarrel that where a statute imposes a duty, the performance or non-performance of which is not a matter of discretion, a mandamus will be granted, ordering that to be done which the statute requires to be done.
Therefore, an order for mandamus will lie to compel public officials or a public body to perform in public duty which they have failed to perform.
Admittedly, passport authority is a public authority which has failed to perform its statutory duty in dealing with the application of the petitioner for issuance of passport, the contention of the second respondent, that mandamus cannot be issued in the instant case, falls flat and the same is hereby overruled.
[15].One more issue which has cropped up and needs to be addressed in the instant case is the so called reason for not processing the application of the petitioner for issuance of passport.
While it is true that passport authority's anxiety to preserve and protect sovereignty and integrity of the Nation and ill-effects of issuance of passport on the friendly relations of India with any foreign country cannot be underplayed, but while doing so passport authority's over-zealous act cannot be appreciated and encouraged at the cost of rights of an individual in a democratic country where rule of law is prevailing.
Any act or omission by the authority, which have the effect of jettisoning the rights of a citizen dehors the law, cannot be sustained.
Hon’ble Apex Court, in its Constitution Bench judgment in case of MRS.Maneka Gandhi versus Union of India & Anr.
[(1978) 1 SCC248 had examined the issue as to whether right to go abroad is a fundamental right included in “personal liberty”.
within the meaning of Article 21 and while opining in affirmative has held as under in Para 25 of the verdict: [16].25.
There is also another consideration which leads to the same conclusion.
The right to go abroad is, as held in Satwant Singh Sawhney's case, included in ‘personal liberty' within the meaning of Article 21 and is thus a fundamental right protected by that Article.
When the State issues a passport and grants endorsement for one country, but refuses for another, the person concerned can certainly go out of India but he is prevented from going to the country for which the endorsement is refused and his right to go to that country is taken away.
This cannot be done by the State under Article 21 unless there is a law authorising the State to do so and the action is taken in accordance with the procedure prescribed by such law.
The right to, go abroad, and in particular to a specified country, is clearly right to personal liberty exercisable outs de India and yet it has been held in Satwant Singh Sawhney's case to be a fundamental right protected by Article 21.
This clearly shows that there is no underlying principle in the Constitution which limits the fundamental rights in their operation to the territory of India.
If a fundamental right under Article 21 can be exercisable outside India, why can freedom of speech and expression conferred under Article 19(1) (a) be not so exercisable?.
The judgment of the coordinate Bench, on which the learned counsel for the petitioner has placed reliance, also applies to the facts and circumstances of the instant case more particularly in the light of recitals contained in the verification certificate Annex.4 issued by the Sub Divisional Magistrate, Jaisalmer.
[17].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.
The net result of the above discussion is that the present petition succeeds and the same is accordingly allowed and the respondent No.2 is directed to consider the application of the petitioner for grant of passport on the basis of materials made available by the Rajasthan Police and the character verification certificate issued by the Sub Divisional Magistrate, Jaisalmer.
The consideration of the application of the petitioner for issuance of passport is required to be made by the second respondent strictly in terms of sub-sec.(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 application of the petitioner on or before 31st of March 2014.
No order as to costs.
(P.K.LOHRA).J.
[18].arora/