Bombay High Court
Rajinder Kaur Jaspal Singh Layal And 2 ... vs The Union Of India (Through Ministry Of ... on 15 December, 2023
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2023:BHC-OS:15152-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4917 OF 2022
1. Rajinder Kaur Jaspal Singh Layal,
Aged-47 years, Occ: Housewife
2. Kanwarpal Singh Jaspal singh Layal,
Aged-24 years, Occ: Service
3. Susmeet Singh Jaspal Singh Layal,
Aged- 17 years, Occ: Student
Minor and as such represented
Through his mother and natural
Guardian, the Petitioner No.1
Digitally
signed by
herein
ASHVINI
ASHVINI BAPPASAHEB
BAPPASAHEB KAKDE
KAKDE Date:
2023.12.21
19:06:06
All the above 3 having address at
+0530
Room No-339, Bldg. No.22, MNB
Colony, Sardar Nagar 4, Sion Koliwada,
Mumbai-400037, Maharashtra, India. ... Petitioner
Versus
1. The Union of India
(Through the Ministry of External Affairs
Regional Passport Officer, Mumbai.)
2. Regional Passport Officer
Regional Passport Office, Mumbai
Videsh Bhavan, Bandra Kurla Complex,
Plot No.C-45 G Block, Bandra (East)
Mumbai 400051
3. Gurvinder Chanan Singh Layal
Aged-46 years, Occ: Self-Employed
Having address at
Room No.-339, Bldg. No.22, MNB
Colony, Sardar Nagar 4, Sion Koliwada,
Mumbai-400037, Maharashtra, India ... Respondents
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-----
Ms. Bharti Sharma i/b. Mr. Rajesh D. Bindra for the Petitioners.
Mr. Y. R. Mishra a/w. Mr. D. A. Dube for Respondent Nos. 1 & 2-UOI.
Mr. Aniesh Jadhav a/w. Mr. Rushikesh Kekane for Respondent No.3.
-----
CORAM : A. S. CHANDURKAR &
FIRDOSH P. POONIWALLA, JJ.
DATE : 15TH DECEMBER 2023
Judgment (As per Firdosh P. Pooniwalla J.):-
1. Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
2. The Petitioners have filed the present Petition seeking quashing
and setting aside of two Orders dated 22 nd December 2020 and one Order
dated 23rd December 2020 issued by Respondent No.2 refusing to renew the
passports of the Petitioners. The Petitioners have also sought a Writ of
Mandamus ordering and directing Respondent No.2 to renew the passports
of the Petitioners. Petitioner No.1 is the mother of Petitioner Nos.2 and 3.
The Respondent No.3 is the brother-in-law of Petitioner No.1 and the uncle
of Petitioner Nos. 2 and 3.
3. Since the Petitioners' respective passports had expired, they had
applied for renewal of their passports. Respondent No.2, by two Orders
dated 22nd December 2020 in the case of Petitioner No.1 and Petitioner No.3
respectively, and by one Order dated 23rd December 2020 in the case of
Petitioner No.2, refused to renew the passports of the Petitioners. The reason
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given in all the said three Orders was the same, namely, that the address
given by the Petitioners in their Applications for renewal of passports was of
a room standing in the name of Respondent No.3, and as there was a
property dispute in respect of the said room, Respondent No.3 has raised an
objection to the Petitioners getting a passport showing the said address.
4. The Petitioners have challenged the aforesaid Orders of
Respondent No.2 on the ground that the right to issuance/renewal of a
passport is a fundamental right guaranteed to the Petitioners under Article
21 of the Constitution of India, and by refusing to renew the passports of the
Petitioners, Respondent No.2 had acted arbitrarily and beyond jurisdiction.
The Petitioners have submitted that renewal of their passports cannot be
refused on the said ground. The Petitioners have also submitted that
Respondent No.2 ignored the fact that earlier passports have been issued to
Petitioner Nos.2 and 3 at the very same address. In these circumstances, the
Petitioners have filed the present Writ Petition.
5. Before we deal with the merits of the case, we will deal with the
issue of maintainability of this Petition raised on behalf of Respondent No.3.
It is the case of Respondent No.3 that Section 11 of the Passports Act, 1967
("the Passports Act") provides for an Appeal against such an order of refusal
to renew a passport. In these circumstances, the Petitioners have an equally
efficacious alternate remedy and therefore this Writ Petition ought not to be
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entertained. In support of this submission, Respondent No.3 has relied upon
the judgment of the Hon'ble Supreme Court in M/s. Radha Krishan
Industries v/ State of Himachal Pradesh & Ors.1 and in particular to
paragraph 27 of the said judgment which reads as under:-
"27. The Principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs
can be exercised not only for the enforcement of fundamental
rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the High
Court is where an effective alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a)
the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b) there
has been a violation of the principles of natural justice; (c) the order
or proceedings are wholly without jurisdiction; or (d) the vires of a
legislation is challenged;
(iv) An alternate remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ petition should not be
entertained when an efficacious alternate remedy is provided by
law;
(v) When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or
liability, resort must be had to that particular statutory remedy
before invoking the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory remedies is a rule
of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition.
However, if the High Court is objectively of the view that the nature
of the controversy requires the exercise of its writ jurisdiction, such
a view would not readily be interfered with."
6. We are unable to accept the above mentioned submission of
Respondent No.3. A reading of paragraph 27 of the said judgement, on
1 AIR 2021 SC 2114
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which Respondent No.3 has placed reliance, clearly states that an alternate
remedy, by itself, does not divest the High Court of its power under Article
226 of the Constitution of India in an appropriate case, though ordinarily a
Writ Petition should not be entertained when an efficacious alternate remedy
is provided by law. Further, paragraph 27 of the said judgement also lists
certain exceptions to the rule of alternate remedy, one of which is that if a
Writ Petition has been filed for the enforcement of fundamental right
protected by Part-III of the Constitution of India. Another exception is that if
the order challenged is without jurisdiction.
7. In the present case, the Petitioners have challenged the refusal
by Respondent No.2 to renew their passports and have sought a Writ of
Mandamus ordering and directing Respondent No.2 to renew their passports.
Since the judgment of the Hon'ble Supreme Court in the case of Maneka
Gandhi Vs. Union of India2, it is well settled that the right to travel abroad is
a fundamental guaranteed right under Article 21 of the Constitution of India
and that the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14 of the
Constitution of India. It is also well settled that such a procedure must not be
arbitrary or fanciful or oppressive, as, otherwise, it would be no procedure at
all and the requirement of Article 21 would not be satisfied. Since the
2 (1978) 1 SCC 248
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Petitioners have filed the present Petition to enforce the fundamental right to
travel abroad, which is guaranteed to them under Article 21 of the
Constitution of India, and have challenged the said Orders refusing renewal
of passport to them as being without jurisdiction, the present Petition clearly
falls within the exceptions to the rule of alternate remedy as laid down by
the Hon'ble Supreme Court in the very judgment referred to by Respondent
No.3. For these reasons, in our view, this Petition is maintainable.
8. Coming to the merits of the present case, as held hereinabove, it
is settled law that the right to travel abroad is a fundamental right
guaranteed by Article 21 of the Constitution of India. Therefore, it is obvious
that no person can be deprived of this right except according to the
procedure established by law. The right to travel abroad is regulated by the
procedure established by the Passports Act and the Passports Rules, 1980
("the Passports Rules"). Section 6 of the Passports Act provides for the
grounds on which the Passports Authorities can refuse to issue or renew a
passport. Section 6 of the Passports Act reads 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 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,
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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 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;
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(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;
(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."
9. A reading of the grounds given in Section 6 of the Passports Act
clearly shows that the ground mentioned by Respondent No.3 in the
impugned orders dated 22nd December 2020 and 23rd December 2020 is not
found in Section 6 of the Passports Act. In these circumstances, in our view,
by refusing to renew the passports of the Petitioners on the ground
mentioned in the said Orders, Respondent No.2 has acted arbitrarily and
without jurisdiction.
10. Even otherwise, in our view, a person cannot be deprived of
his/her fundamental right to travel abroad on the ground that there is a
dispute in respect of the property which is mentioned in the address given by
the applicant for the purposes of including it in the passport. This is more so
if, like in the case of the Petitioners, the person actually resides at the said
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address, and, as in the case of Petitioner Nos.2 and 3, earlier passports have
also been issued containing the same address. For this reason also, we are of
the view that the ground mentioned by Respondent No.2 for refusing to
renew the passports of the Petitioners is totally arbitrary and is liable to be
quashed and set aside.
11. Further, Respondent No.2 will have to be directed to issue
passports to the Petitioners in accordance with the provisions of the Passports
Act and the Passports Rules without going into the merits of the objection as
raised by Respondent No.3.
12. In our view, the rights of Respondent No.3 to the property
mentioned in the said applications, i.e., Room No. 339, Building No.22, MNB
Colony, Sardar Nagar 4, Sion, Koliwada, Mumbai-400 037 ("the said
property") can be protected by clarifying that the reference to the said
property as the address of the Petitioners in the passports issued to the
Petitioners would not, by itself, confer on them any right in respect of the
said property and such inclusion would be without prejudice to the rights
and contentions of Respondent No.3 in other pending proceedings.
13. In the aforesaid circumstances, and for all the reasons given
hereinabove, we pass the following orders:-
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A. Respondent No.2 is directed to issue passports to
the Petitioners in accordance with the provisions of the
Passports Act and the Passports Rules, without going into
the merits of the objection as raised by Respondent No.3.
The same be done within a period of four weeks from
today.
B. Needless to state that indication of the Petitioners'
address in the passport would not, by itself, confer on
them any right in respect of the said property mentioned
therein, and such inclusion would be without prejudice to
the rights and contentions of Respondent No.3 in other
pending proceedings.
C. Rule is disposed of with aforesaid directions, with
no order as to costs.
(FIRDOSH P. POONIWALLA, J.) (A. S. CHANDURKAR, J.)
