Harmeet Jawandha and Another Vs. Union of India and Another - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in a case like the present, where the petitioners and their parents are permanent residents of chandigarh, the mere fact that they have been sent away to study in a boarding school, within another jurisdiction, cannot render them as being persons 'ordinarily residing' in that other jurisdiction. provided that in exceptional and urgent cases the said officer may entertain an application for the issue of a passport or travel document from a person ordinarily residing in any other territory in india and may issue a passport or travel document to such person for a period not exceeding twelve months and transfer the application to the passport authority having jurisdiction in the territory wherein such person ordinarily resides;order1. the matter here concerns the issuance of a passport to the minor petitioners harmeet jowanda and jasmeet jowanda and it provides a classic illustration of a closed mind causing wholly unwarranted harassment and delay by the manner in which the authorities concerned have dealt with it.2. the petitioners harmeet jowanda and jasmeet jowanda as also their parents are permanent residents of chandigarh. it was as far back as july 22, 1988 that the petitioners applied to the regional passport officer, chandigarh, for the issuance of passports to them. their applications were forwarded by the regional passport officer, chandigarh to his counter part in bareilly, on the ground that they were residents of dehra dun. what presumably led the regional passport officer, chandigarh to assume so was the fact that they were studying in a boarding school at dehra dun, namely; welhem girls school, dehra dun.3. a reference to the relevant provisions of the passport act, 1967 and the rules framed thereunder would show that the jurisdiction of the regional passport officer to issue passports extends to applications made by persons ordinarily residing in the territories over which he has jurisdiction. in a case like the present, where the petitioners and their parents are permanent residents of chandigarh, the mere fact that they have been sent away to study in a boarding school, within another jurisdiction, cannot render them as being persons 'ordinarily residing' in that other jurisdiction. it would be pertinent to reproduce here the provisions of r. 3 of the passport rules. they read as under:--'passport authorities; (1) in addition to the central government, the officers specified in column (2) of schedule 1 shall, subject to the provisions of sub-rule (2), be the passport authorities for all purposes of the act and these rules. (2) an officer referred to in column (2) of schedule 1 shall, for the purpose of issue of a passport or travel document, exercise jurisdiction in respect of applications for such issue made by persons ordinarily residing in the territories specified in the corresponding entries column 3 of the said schedule; provided that in exceptional and urgent cases the said officer may entertain an application for the issue of a passport or travel document from a person ordinarily residing in any other territory in india and may issue a passport or travel document to such person for a period not exceeding twelve months and transfer the application to the passport authority having jurisdiction in the territory wherein such person ordinarily resides; provided further that no such transfer of application for passport under the preceding proviso shall be made if the applicant has migrated from the territory where he was originally resident with the intention of settling down in the territory within the jurisdiction of the passport authority which issued the passport under the preceding proviso.' nest to note is entry 4(a) of schedule 1 of the said rules, which is in these terms;'regional passportofficer, chandigarh (regional passport officer, chandigarh)the state of punjab (excludingthe districts of jullundur, kapurthala hoshiarpur, amritsar and gurdaspur). and thestates of haryana and h. p. and the union territory of chandigarh'.4. a plain reading of rule-3 and entry 4(a) of schedule-1 of the rules leaves no manner of doubt that in the present case, the regional passport officer, chandigarh had exclusive jurisdiction in the matter of issuance of passports to the petitioners as they were 'ordinarily residing' in chandigarh.5. it is indeed unfortunate that such a plain and clear provision of the act and rules was not understood, rather disregarded by the regional passport officer, chandigarh in transferring the case of the petitioners to bareilly, this cannot but invite adverse comment.6. the regional passport officer chandigarh is accordingly hereby directed to process and deal with the applications of the petitioners for passports at chandigarh and keeping in view the inordinate delay that has already taken place, it is further directed that passports be issued to them within a fortnight from today.7. the writ petition is accordingly hereby accepted and keeping in view the circumstances, as narrated, we also impose rs. 1500/-as costs upon the respondents.8. petition allowed.

Judgment:
ORDER

1. The matter here concerns the issuance of a passport to the minor petitioners Harmeet Jowanda and Jasmeet Jowanda and it provides a classic illustration of a closed mind causing wholly unwarranted harassment and delay by the manner in which the authorities concerned have dealt with it.

2. The petitioners Harmeet Jowanda and Jasmeet Jowanda as also their parents are permanent residents of Chandigarh. It was as far back as July 22, 1988 that the petitioners applied to the Regional Passport Officer, Chandigarh, for the issuance of passports to them. Their applications were forwarded by the Regional Passport Officer, Chandigarh to his counter part in Bareilly, on the ground that they were residents of Dehra Dun. What presumably led the Regional Passport Officer, Chandigarh to assume so was the fact that they were studying in a boarding school at Dehra Dun, namely; Welhem Girls School, Dehra Dun.

3. A reference to the relevant provisions of the Passport Act, 1967 and the rules framed thereunder would show that the jurisdiction of the Regional Passport Officer to issue passports extends to applications made by persons ordinarily residing in the territories over which he has jurisdiction. In a case like the present, where the petitioners and their parents are permanent residents of Chandigarh, the mere fact that they have been sent away to study in a boarding school, within another jurisdiction, cannot render them as being persons 'ordinarily residing' in that other jurisdiction. It would be pertinent to reproduce here the provisions of R. 3 of the Passport Rules. They read as under:--

'Passport Authorities; (1) in addition to the Central Government, the officers specified in column (2) of Schedule 1 shall, subject to the provisions of sub-rule (2), be the passport authorities for all purposes of the Act and these Rules.

(2) An officer referred to in column (2) of Schedule 1 shall, for the purpose of issue of a passport or travel document, exercise jurisdiction in respect of applications for such issue made by persons ordinarily residing in the territories specified in the corresponding entries column 3 of the said Schedule;

Provided that in exceptional and urgent cases the said officer may entertain an application for the issue of a passport or travel document from a person ordinarily residing in any other territory in India and may issue a passport or travel document to such person for a period not exceeding twelve months and transfer the application to the passport authority having jurisdiction in the territory wherein such person ordinarily resides;

Provided further that no such transfer of application for passport under the preceding proviso shall be made if the applicant has migrated from the territory where he was originally resident with the intention of settling down in the territory within the jurisdiction of the passport authority which issued the passport under the preceding proviso.'

Nest to note is entry 4(a) of Schedule 1 of the said Rules, which is in these terms;

'Regional PassportOfficer, Chandigarh (Regional Passport Officer, Chandigarh)

The State of Punjab (excludingthe districts of Jullundur, Kapurthala Hoshiarpur, Amritsar and Gurdaspur). and theStates of Haryana and H. P. and the Union Territory of Chandigarh'.

4. A plain reading of rule-3 and entry 4(a) of Schedule-1 of the Rules leaves no manner of doubt that in the present case, the Regional Passport Officer, Chandigarh had exclusive jurisdiction in the matter of issuance of passports to the petitioners as they were 'ordinarily residing' in Chandigarh.

5. It is indeed unfortunate that such a plain and clear provision of the Act and Rules was not understood, rather disregarded by the Regional Passport Officer, Chandigarh in transferring the case of the petitioners to Bareilly, This cannot but invite adverse comment.

6. The Regional Passport Officer Chandigarh is accordingly hereby directed to process and deal with the applications of the petitioners for passports at Chandigarh and keeping in view the inordinate delay that has already taken place, it is further directed that passports be issued to them within a fortnight from today.

7. The writ petition is accordingly hereby accepted and keeping in view the circumstances, as narrated, we also impose Rs. 1500/-as costs upon the respondents.

8. Petition allowed.