Aditya Khanna vs The Regional Passport ...
2008 Latest Caselaw 2296 Del

              IN THE HIGH COURT OF DELHI

           Writ Petition (Civil) No. 9519/2007

                        Date of decision: December 19, 2008

         Aditya Khanna                         ... Petitioner
                through: Mr. Uday Lalit, Sr. Adv. with
                         Mr. Atul Nanda, Advocate

                             VERSUS

         The Regional Passport Officer/Passport Authority
                                             ....Respondents

through: Mr. P.P. Malhotra, Sr. Adv. with Mr. Sanjay Katyal, Advocate

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J

1. This writ petition has been filed by Aditya Khanna assailing

the action of the respondents in revoking his passport bearing

no. F 4812183 without issuance of a notice to show cause and

grant of an opportunity to represent against the proposed action.

The action is assailed also on the ground of malafide and that no

order has been communicated to him till date.

2. Certain public allegations into the administration and

management of the United Nation Oil for Food Programme in

Iraq were made. As a result, the United Nations Security

Council appointed an independent high level inquiry headed by

Mr. Paul Volcker, a former chairman of the United States

Federal Reserve to look into the administration and management

of the programme in Iraq. On 27th October, 2005 the Volcker

Committee submitted its fifth and final substantiative report

setting out the manner in which Iraq had manipulated the

programme to dispense contracts on the basis of political

preference and to derive illicit payments from companies that

obtained oil and humanitarian aid contracts. It appears that the

Volcker Committee report contained a reference to transactions

involving one Shri Andleeb Sehgal and his company Masefield

AG, Switzerland. The report was accompanied with a set of

eight comprehensive tables identifying contractors under the

programme and actors of significance to the programme

transactions (including non-contractual beneficiaries of Iraqi oil

allocations) and parties that financed the oil transactions.

The Government of India was concerned with allegations

set out in table 3 and 5 of the report which contained details of

payments made in contract nos. M/09/54 and M/10/57 and the

beneficiaries thereof referred to an Indian political party and a

senior member thereof.

3. Mr. P.P. Malhotra, learned Additional Solicitor General

contends that these allegations were treated by the government

as being of extremely serious concern and consequently, by a

notification dated 11th November, 2005 of the Ministry of

Finance, Department of Revenue, of the Government of India, it

was resolved to set up a single member inquiry under the

provisions of the Commissions of Inquiry Act, 1952 whereby

Justice R.S. Pathak, former Chief Justice of India and former

Judge of the International Court of Justice was appointed as the

authority to go into the root of the matter.

4. In addition, investigations were initiated by the Directorate

of Enforcement-respondent no.3 herein in November, 2005 into

allegations of violations of the provisions of the Foreign

Exchange Management Act, 1999 (FEMA for short) arising out

of these transactions. The learned Additional Solicitor General

has submitted that the investigations which were being

conducted by the respondents were of an extremely serious

nature and the charges which were being examined involved

only matters of public importance.

5. The respondent no. 3 Directorate of Enforcement has

submitted before this court that during the course of

investigations, there was sufficient material indicating the

involvement of the petitioner in the financial transactions arising

out of the said two oil contracts and therefore it became

necessary to examine the petitioner vis-a -vis his role in the

allocation of oil by the Iraqi authorities to M/s Hamdaan

Exports/Sh. Andaleeb Sehgal under the two contracts; payment

of surcharge to an Iraqi designated account and sharing of

commission earned out of execution of the above between the

petitioner and other beneficiaries.

For this reason, summons were issued under Section 37 (3)

of FEMA read with Section 131 of the Income Tax Act, requiring

the petitioner to appear before the directorate on 25th

November, 2005 and to produce his passport as well as the

details of his bank account in India and abroad.

6. As the petitioner failed to appear and also did not produce

the required document or their copies or information, on 29th

November, 2005, an alert for his appearance was issued. The

respondents submit that summons failed to persuade the

petitioner to appear on 19th , 20th December, 2005 and 21st

February, 2006. For the first time, the petitioner's advocate,

Sh. B.N. Goswami, submitted a letter dated 20th February, 2006

requesting that the petitioner be allowed to appear on 27th/28th

February, 2006. According to Mr. Malhotra, learned ASG, in

view of this non-cooperation by the petitioner and in order to

ensure and seek presence of the petitioner, the respondent no. 3

is stated to have made a request to the Ministry of Home Affairs

on 27th February, 2006 that in case the petitioner comes to India,

information of his arrival be immediately given to the respondent

no. 3 before he leaves the airport. A 'Look Out Circular' was

issued against the petitioner on 27th February, 2006.

7. The further submission is that despite appearance on 28th

February , 2006 before the directorate of the respondent no. 3,

the petitioner failed to submit his passport for verification of his

travel particulars and status and also failed to come clean with

facts available with him; gave vague replies and there was

sufficient apprehension that he would flee the country

jeopardising the investigation. For this reason, a request was

made by the Directorate of Enforcement on 28th February, 2006

to the Ministry of External Affairs (MEA) to revoke/impound the

passport of the petitioner in public interest. The passport of

the petitioner was revoked by the Ministry of External Affairs on

3rd March, 2006.

8. As a result of this communication, it appears that on the 3rd

March, 2006, the regional passport officer addressed a circular

bearing reference no. RPO/DEL/REV/151/06 to all passport

issuing and checkpost authorities in India and abroad; the

Director, Intelligence Bureau' Ministry of Home Affairs, New

Delhi; the Deputy Commissioner of Police, Special Branch, CID,

New Delhi and the Ministry of External Affairs (P.V.I.), Patiala

House, New Delhi informing authorities that it had been decided

to revoke the petitioner's passport under Section 10(3)(c) of the

Passport Act setting out particulars of the petitioner and his

passport in this communication. So far as the decision to revoke

the passport was concerned, reference was made to a file no. :

Y/007052/05.

9. It is an admitted position that no copy of these

communications or orders with regard to the petitioner were

sent or even informed to him.

10. The petitioner is stated to have appeared before the

directorate of enforcement on the 1st, 2nd, 3rd and 6th March, 2006

when his further statements were recorded. However, the

respondents submit that his conduct was of a non-cooperative

nature; he failed to comply with directions to furnish the

requisite information and documents necessary for the purposes

of the investigation. This resulted in delays making it necessary

to verify the answers given by the petitioner as well as his

passport details.

11. On the other hand, Mr. Uday Lalit learned senior counsel

submits that the petitioner fully co-operated with the enquiry

and that ignorant of these official communications or orders, the

petitioner bonafide went to the United Kingdom on 19th March,

2006 openly flying out from the Indira Gandhi International

Airport through normal required channels. The petitioner

remained uninformed of the orders with regard to revocation of

his passport even when he returned to India on 24th April, 2006.

On his return his passport was seized at the airport itself. The

seizure memo dated 24th April, 2006 issued by the Indian

Immigration Controller at the airport shows that the passenger

alongwith the passport was handed over to the enforcement

directorate officials for further action.

12. The petitioner relies on a letter dated 19th December, 2005

addressed by him to Shri S.K. Panda, Special Director & the

Assistant Director of the Enforcement Director giving reasons

why he could not visit India till mid-January. My attention is

drawn to the enclosures to this letter which include a notarized

photocopy of his passport duly enclosed by the Indian High

Commission and details of the countries visited by him along

with the dates of the visit and duration of his stay.

13. The petitioner relies on a yet another letter dated 11th

January, 2006 which was issued by his counsel Shri B.N.

Goswami, Advocate to the Director of the Directorate of

Enforcement stating that from a news report on the NDTV, it

had been learnt that the team led by the enforcement

directorate was in London, UK where the petitioner was located.

The petitioner's counsel had informed the enforcement

directorate that no one had contacted Aditya Khanna in London

on behalf of the enforcement agency and had given his contact

phone numbers and address in London. Information was sought

on behalf of the petitioner as to the contact number of the

enforcement directorate team in London so that the petitioner

could contact them for a meeting.

14. The respondents do not dispute receipt of the letter. The

same has however not been placed on record nor is there any

explanation of the same by the respondents.

15. Mr. Uday Lalit, learned senior counsel has painstakingly

pointed out that the petitioner has appeared before the

respondent on the several dates for which he had received

notice and that his bona fide is manifested from the letters dated

11th January, 2006 and 27/28th February, 2006 addressed on his

behalf by his counsel to the officials of the Directorate of

Enforcement volunteering appearance and expressing an

intention to join the investigation even in London. It was pointed

out that the petitioner had extensive business interests in the

United Kingdom and in case of any doubt, the investigating

agency could have examined every issue threadbare in London

itself.

It is urged that admittedly the petitioner attended the

office of the Directorate of Enforcement on 28th of February,

2006 as well as the 1st, 2nd, 3rd and 6th March, 2006. The

enforcement directorate has recorded the petitioner's statement

again on 25th, 26th and 28th April, 2006 as well as on 18th May,

2006. It is only because of the petitioner's willing participation

in the inquiry, the respondents were able to crystallize the

matter during the investigation and upon completion thereof,

issued a show cause notice dated 2nd September, 2006 under the

provisions of Foreign Exchange Management Act (FEMA

hereafter).

The show cause notice contains a reference to all the

statements of the petitioner. This notice has been issued to

eight other noticees apart from the petitioner.

16. The petitioner has placed his reply dated 1st December,

2006 to this notice. It is contended that after a consideration of

the same, the respondents have taken a decision dated 6th

December, 2006 that adjudication proceedings as contemplated

under rule 4 of the Foreign Exchange Management

(Adjudication Proceedings) Rules, 2000 should be held against

the petitioner which are admittedly pending.

17. Mr. Lalit, learned senior counsel has urged at great length

that in the notice dated 2nd September, 2006 the role attributed

to other persons named was much more serious than the role

attributed to the petitioner. The submission is that the

respondent has not even suspended, let alone impounded or

revoked the passport of any other person implicated by the

Volcker Commission or the Pathak Commission or to whom the

notice to show cause has been issued.

It is also pointed out by learned senior counsel, that under

the Foreign Exchange Management Act, 1999, only a penalty is

in fiscal terms subject to a maximum thereof has been fixed as

three times of the amount of the violation is prescribed.

18. In order to establish his bonafide and cooperation with the

respondents, it is submitted that only after investigations stood

completed and the respondents had referred the matter to

adjudication, on the 29th December, 2006 the petitioner made a

request for return of his passport to the Directorate of

Enforcement.

19. A reply dated 3rd January, 2007 was given by Sh. S.K.

Panda, the Special Director of the Directorate of Enforcement to

this application informing the petitioner that his passport stood

taken over by the Central Bureau of Investigation, CGO

Complex, New Delhi vide a seizure memo dated 18th December,

2006 in the case no. RC AC-2-2005 A 0002 and that the

petitioner may contact the Central Bureau of Investigation for

its return.

A grievance is vehemently made by the petitioner that even

at this stage, he was not informed about the request for

revocation made in the Director's letter dated 28th February,

2006 or the order dated 3rd March, 2006 passed thereon.

20. The petitioner states that though he was not a party to the

proceedings before the CBI, he made an application before the

Special Judge, CBI, Patiala House, New Delhi in FIR NO. RC.

AC/2/2005 A/0002 dated 6th June, 2005 seeking return of his

passport as he has urgent need to travel abroad for two weeks to

attend to his business which was suffering on account of the

petitioner being unable to travel for eight months as his passport

had been seized. Personal details and contact numbers were

stated and an undertaking was given in this application that in

case he is required urgently, even during such two weeks period,

he would return in person upon 72 hours notice and present

himself before the respondent.

21. The reply filed by the CBI opposing the application still did

not disclose to either the court or the petitioner that his passport

stood revoked.

22. It is only with a subsequent affidavit dated 5th February,

2007, that copy of a letter dated 23rd January, 2007 issued by Sh.

S.K. Panda, Special Director of the Directorate of Enforcement

to Shri D.C. Jain, DIG of the CBI was enclosed wherein it was

stated that the passport issued to the petitioner stood revoked.

The CBI had also enclosed a copy of the letter of request dated

28th February, 2006 addressed by the Enforcement Directorate;

the circular dated 3rd of March, 2006 and the letter dated 23rd of

January, 2007 from the Enforcement Directorate to the CBI.

The petitioner submits that for the first time he learnt that

the respondents had revoked his passport from a copy of the

letter filed before the court with the second affidavit filed by the

CBI.

23. The present writ petition has been filed thereafter assailing

the revocation of the petitioner's passport. The primary ground

of challenge of the petitioner is that the impugned action is in

violation of the principles of natural justice; the action is mala

fide and arbitrary and amounts to infringement of petitioner's

right under Articles 19 & 21 of the Constitution.

It has been urged at great length that the petitioner was

not served with the notice to show cause nor granted an

opportunity of hearing. In this regard, reliance has been placed

on the pronouncements of the Apex Court reported at Baldev

Singh Vs. State of H.P., (1987) 2 SCC 510, at page 515,

State of Haryana Vs. Ram Kishan, (1988) 3 SCC 416, at

page 420 - Para 8 and Maneka Gandhi Vs. Union of India,

(1978) 1 SCC 248:

24. I have heard learned senior counsel at length. On

examination of the statutory scheme, I find that sub-Section

10(3) of the Passport Act, 1967 enables the passport authority if

it deems it necessary to impound, revoke the passport in the

interests of the sovereignty and integrity of India, the security of

India, friendly relations of India with any foreign country, or in

the interests of the general public. Sub-section (e) and (f) also

empowers the passport authority to make such order if

proceedings in respect of an offence alleged to have been

committed by the holder of the passport or travel document are

pending before a criminal court in India or if it is brought to the

notice of the passport authority that a warrant or summons for

the appearance, or a warrant for the arrest, of the holder of the

passport or travel document has been issued by a court under

any law for the time being in force or if an order prohibiting the

departure from India of the holder of the passport or other travel

document has been made by any such court and the passport

authority is satisfied that a warrant or summons has been so

issued or an order has been so made.

25. The expressions 'impound' and 'revoke' are not defined

under the Passport Act, 1967. Learned senior counsels on both

sides have placed reliance on the meaning given to these two

expressions in several dictionaries which deserve to be noticed.

The Black's Law Dictionary (6th edition defines these expressions as follows

Impound. To seize and take into the custody of the law or of a court.

Revocation: The withdrawl or recall of some power, authority, or thing granted, or a destroying or making void of some will, deed, or offer that had been valid until revoked.

In Stroud's Judicial Dictionary, they are given the following meaning :

Impound:

1. To 'impound or otherwise secure'

2. A document is impounded when it is ordered by a court to be kept in the custody of its officer.

REVOCATION :

(1) " ' Revocation ' is the calling back of a thing granted"

(Cowel: Jacob)

Wharton's Law Lexicon has also given a similar meaning which reads thus :

Impound: to place a suspected document in the custody of law, when it is produced at a trial.

Revocation : the undoing of a thing granted, or a destroying or making void of some deed that had existence until the act of revocation made it void. It may be either general, or all acts and things done before, or special to revoke a particular thing.

Jowitt's Dictionary Of English Law defines these expressions thus :

Impound : to place a suspected document in the custody of law, when it is produced at a trial. As to custody of documents impounded by the Court.

Revocation : {Lat.REvocare, to recall}, the undoing of a thing granted, or a destroying or making void of some deed that had existence until the act of revocation made it void. It may be either general, or all acts and things done before, or special to revoke a particular thing.

These expressions in the Passport Act, 1967 would

therefore derive the meaning from the above.

26. It is evident that as a result of impounding, the passport

does not cease to exist. Only its possession and custody changes

hand and it is placed in the hands of the authorities stipulated

under the statute. So far as revocation is concerned, its effect is

as if the document had not been granted or issued and it is

rendered nonest.

Nature of Right

27. In the instant case, the petitioner has contended that his

main place of business is in the United Kingdom and that as a

result of the passport having been revoked, the petitioner has

been prevented for a period of over two years from travelling

abroad as well as carrying on his business. The first question

which therefore arises is what would be the nature of the right

of a person as the petitioner to travel abroad. This issue is

certainly not res integra. The Constitution Bench in the

judgment reported at AIR 1967 SC 1836 : (1967) 3 SCR 525 :

MANU/SC/0040/1967 Satwant Singh Sahni vs. D.

Ramarathnam, Asstt. Passport Officer & Ors. answered this

question and held by majority that the expression personal

liberty 'in Article 21 of the Constitution of India includes the

right to travel abroad. Consequently, no person can be deprived

of such a right except according to a procedure established by

law.

It is noteworthy that the Passport Act, 1967 was enacted by

the parliament in order to comply with this decision t

o prescribe a procedure whereby a citizen maybe granted a

passport in terms of the statutory provisions and, if granted, be

revoked or impounded by such a procedure.

28. The right to travel abroad being a fundamental right and

part of the personal liberty of the citizen has been reiterated in

several later pronouncements of the Supreme Court as well

including those reported at (2003) 4 SCC 399 (para 43)

People's Union for Civil Liberties vs. UOI; (1994) 3 SCC

394 Prathinam vs. UOI & Anr. (para 20); AIR 1978 SC 597

: (1978) 1 SCC 248 Maneka Gandhi vs. UOI (para 3);

Kharak Singh vs State of U.P. & Ors.;

MANU/SC/0085/1962; (1993) 1 SCC 645 (para 30) J.P.

Unnikrishnan vs. State of Andhra Pradesh

29. Before the Apex Court in the pronouncement reported at

(1978) 1 SCC 248 Maneka Gandhi Vs. Union of India. a

challenge had been laid to an order impounding the petitioner's

passport. In para 45 (at page 322 of SCC), the Apex Court also

pointed out that refusal or impounding a passport interferes with

a basic human right recognised in Article 13 of the Universal

Declaration of Human Rights.

30. The Passport Act, 1967 empowers the authorities named

therein to curtail such rights. The issue raised in this case is as

to whether compliance with the principles of natural justice

would be an essential element of the procedure established

under the Passport Act, 1967 for revocation of the passport.

31. In Maneka Gandhi's case, the court also held that the

procedure prescribed by law has to be fair, just and reasonable,

not fanciful, oppressive or arbitrary. A procedure which curtails

or takes away the personal liberty guaranteed under Article 21

has to be construed and considered in the context, primarily, of

the purpose which the act is intended to achieve and situations

involving urgency, which those who are charged with the duty of

administering the act, may be called upon to deal with.

A second pertinent issue which such a procedure has to

comply with is that even the fullest compliance with the

requirements of article 21 would not suffice inasmuch as, the

law which prescribes a fair and reasonable procedure for

curtailing or taking away rights guaranteed by article 21, has

still to meet the challenge under other provisions of the

constitution as under article 14 and 19. Therefore law which

prescribes a procedure for depriving the person of personal

liberty under article 21 may also breach or take away

fundamental rights under article 19 or other fundamental rights

and would be required to satisfy those considerations as well.

32. In para 81A at page 644 of the AIR report, the Apex Court

clearly held that the right to go abroad is not a guaranteed right

under any clause of article 19(1) and that section 10(3)(c) which

authorises imposition of restrictions on the right to go abroad by

impounding of a passport cannot be held to be void as offending

article 19(1)(a) or (g) as its direct and inevitable impact is on the

right to go abroad and not on the right of free speech and

expression or the right to carry on trade, business, profession or

calling. It was explained that this however does not mean that

an order under section 10(3)(1) of the Passport Act, 1967 may

not violate article 19(1)(a) or (g). This is for the reason that

though the statutory provision which empowered the authority

to take action is constitutionally valid, action taken under it may

offend a fundamental right. The Apex Court pointed out

instances of a pilot with an international flying licence or an

evangelist who had made it a mission of his life to preach his

faith to people all over the world and for that purpose set up

institutions in different countries. Other instances cited were of

those of a musician wanting to go abroad to sing, a dancer to

dance, a visiting professor to teach and a scholar to participate

in a conference or seminar. If in these cases, the passport was

denied or impounded, it would then directly interfere with the

right to carry on profession or restrict freedom of speech and

expression so as to contravene article 19(1)(a) or 19(1)(g).

In such a case, refusal or impounding of the passport would

be invalid unless it is justified under article 19(2) or article 19(6)

as the case may be.

33. The Apex Court observed that the first three

categories/circumstances prescribed under Section 10(3)(c) of

the Passport Act which permit a passport authority to pass

orders in this behalf are for the interests of sovereignty and

integrity of India; security of India; friendly relations of India

with any foreign country or in the interest of the general public.

These reasons are the same as those prescribed under article

19(a). The expression 'interests of general public' is a wide

expression covering within its sweep all kinds of interests of the

general public including interest of sovereignty and integrity of

India, security of India and friendly relations of India with

foreign countries. An order made under section 10(3)(c) which

confirms with the terms of these provisions would be in the

interest of the general public, and even if it restricts the freedom

to carry on a profession, it would be protected by article 19(6).

However, if an order made under section 10(3)(c) restricts

freedom of speech and expression, it would not be enough that it

is made in the interest of the general public. It would satisfy the

requirement of article 19(2) if it is made in the interest of

sovereignty and integrity of India or in the interests of the

security of India or in the interests of friendly relations of India

with any foreign country. It was observed that if the order made

under section 10(3)(c) restricts freedom of speech and

expression, it must be made not in the interests of the general

public in a wider sense, but in the interests of public order,

decency or morality, apart from the other three categories

noticed above. If the order cannot be shown to have been made

in the interest of public order, decency or morality, it would not

only contravene article 19(1)(a), but would also be outside the

authority conferred by section 10(3)(c).

The order passed in the instant case and the submissions of

the respondents have to be tested on these principles.

Applicability of principles of natural justice

34. The primary ground of challenge to the respondents action

rests on the assertion that the same is void & illegal on grounds

of violation of principles of natural justice, by the respondents.

In Maneka Gandhi vs. UOI (supra) the Supreme Court

defined natural justice as 'a facet of fair play' and defined it as

'quintessence of the process of justice, inspired and guided by

fair play in action'; while in, another situation it can be described

as a 'distillate of due process of law'.

It is trite that natural justice constitutes the following three

ingredients which are required to be adhered to in any action

having civil consequences to the person effected.

(i) 'Nemo debet esse judex propria causa', that is that no one

would be a Judge in his own case

(ii) 'audi alteram partem' i.e. no decision shall be given against

a party without affording him a reasonable hearing.

(iii) Application of mind and scrutiny of the record; passing of a

speaking order which reflects application of mind to the

contentions on points of submission raised before the authority

i.e. Quasi Judicial enquiry must be held in good faith, within bias

and not arbitrarily or unreasonably.

35. In a recent judgment dated 20th October, 2008 of the Apex

Court in Civil Appeal Nos. 1438, 1439, 1442, 1443 and

1444/2004 entitled Nagarjuna Construction Co. Ltd. vs.

Govt. of Andhra Pradesh & Ors., the Apex Court succinctly

summed up the essence of natural justice when it observed

thus:-

"33. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving liguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

34. The expression "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.

35. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and

unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works 1963 (143) ER 414, the principle was thus stated :

Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat.

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond."

Thus, natural justice as understood in its common parlance

stands for fundamental equality and fairness which has to be

adopted in any action and its soul is fair play in action.

36. The historic decision of the Apex Court in AIR 1970 SC

150 : MANU/SC/427/1969 A.K. Kraipak & Ors. Vs. Union of

India held that the purpose of the rules of natural justice is to

secure justice, put negatively, to prevent miscarriage of justice.

They, therefore, supplement and not supplant the law.

37. In 1967 II LLJ 266 (SC) State of Orissa vs. Dr. Ms.

Binapani Dei, it was held that even an administrative order

which involves civil consequences must be made consistent with

the rules of natural justice.

38. It is well settled that the principles of natural justice apply

to domestic administrative tribunals as well as authorities who

are discharging quasi judicial functions. Natural justice is called

in aid of legal justice. In that event, it relieves legal justice from

unnecessary technicality and logical prevarication and also

supplies the omission of a formulated law (Ref : Tapashgan

Chooudhary in 'Penumbra of natural justice' ; 1999 II LLJ 126

(P&H) : MANU:PH:0168:1998 Ram Niwas Bansal vs. State bank

of Patiala)

39. It is equally well settled that there are no rigid rules as to

when the principles of natural justice are to apply, nor any

absolute proposition as to their scope and extent, can be laid

down.

The Apex Court analysed the requirement of flexibility in

the application of principles of natural justice in AIR 2003 SC

1659 : JT 2003 (5) SC 509 : 2003 (9) SCC 731 State of

Maharashtra & Anr. vs. Jalgaon Municipal Council & Ors.,

and observed thus:-

"32. The caution of associating rules of natural justice with the flavour of flexibilities would not permit the Courts applying different standards of procedural justice in different cases depending on the whims or personal phiolosphy of the decision maker. The basic principles remain the same; they are to be

moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. That is flexibility. Some of the relevant factors which enter the judicial process of thinking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are: (i) the nature of the subject-matter, and (ii) exceptional situations. Such exceptionality may be spelled out by (i) need to take urgent action for safeguarding public health or safety or public interest, (ii) the absence of legitimate exceptions, (iii) by refusal of remedies in discretion, (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure, (v) express legislation. There is also a situation, which Prof. Wade & Forsyth terms as "dubious doctrine" that right to a fair hearing may stand excluded where the Court forms an opinion that a hearing would make no difference. Utter caution is needed before bringing the last exceptional into play. (Administrative Law, ibid, at pp. 543-544)."

40. Fairness in administrative action has been enunciated as

an absolute rule without exception. This would be more so when

a finality is attached to the action which is taken or the

punishment imposed. Higher would be the degree then to which

the requirement to do substantial justice is required. From the

principles laid down by the Supreme Court of India, it is

apparent that the principles of natural justice would be required

to be read into every proceeding wherein rights of a person are

affected.

41. So far as exercise of power under Section 10(3) of the

Passport Act, 1967 is concerned, in AIR 1978 SC 597 : (1978)

SCC 248 Maneka Gandhi Vs. Union of India, the court had

considered the entire law on the subject and (in para 62 of the

AIR page 628) clearly held that the power conferred on the

passport authority to impound a passport is a quasi judicial

power and the rules of natural justice would in the

circumstances be applicable in the exercise of the power of

impounding a passport because it seriously interfered with the

constitutional rights of the holder and entails civil

consequences.

42. On the other hand Mr. P.P. Malhotra, learned ASG has

urged that after the pronouncement of the Apex Court in

Maneka Gandhi (supra), the legislature has effected a statutory

amendment to the Passports Act, 1967 and despite the judicial

pronouncement has not provided for a hearing before passing an

order for revocation of the passport. Mr. Malhotra, learned

ASG contends that in view thereof, the principles of natural

justice cannot be read into the statutory provisions, so far as

passing of an order for revocation of the passport is concerned.

43. Such a submission that principles of natural justice cannot

be read into the statutory provisions if not expressly statutorily

prescribed has been considered by the Apex Court in a host of

binding judicial precedents which would guide adjudication on

this issue, which is the main plank of the respondents'

arguments.

I find that in AIR 1981 SC 818 Swadeshi Cotton Mills

vs. UOI, the court was called upon to consider exclusion of a

hearing in section 18AA of Industries (Development &

Regulation) Act, 1951 by necessary implication in the statutory

provision. In this behalf the court had observed thus :-

"Section 18-AA, does not expressly in unmistakable and unequivocal terms exclude the application of the audi alteram partem rule at the pre-decisional stage. The phrase "that immediate action is necessary" in Section 18-AA

(a) does not exclude absolutely, by inevitable implication, the application of this cardinal canon of fair play in all cases where Sec. 18-AA(1)(a) may be invoked. Section 18-F has also not the effect of excluding the rules of natural justice relating to prior hearing."

"...In short, this rule of fairplay must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The Court must take every effort to salvage this cardinal rule to the maximum extent possible, with situational modification. But the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

44. In (1987) 2 SCC 510 Baldev Singh Vs. H.P., the Apex

Court had occasion to consider the proposition that natural

justice required an opportunity of being heard before the

administrative decision to constitute the notified area was taken.

So far as exclusion of the applicability of the principles is

concerned, the Apex Court placed reliance on its earlier decision

reported at (1985) 3 SCC 697 where the validity of the action

taken under section 417-A of the Orissa Municipal Act in

constituting a notified area was explained and held thus:-

"It is a fact that the Orissa Act provides in clear terms a right of hearing whereas Section 256 of the Himachal Act makes no such provision but

the settled position in law is that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, the rules of natural justice would apply. xxxx We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way."

45. Again, in a judgment reported at (1988) 3 SCC 416

entitled State of Haryana Vs. Ram Kishan, the Apex Court

had held thus:-

"8. Considered in this light, the Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. Reference may be made to the observations of this Court in Baldev Singh and Ors. v. State of Himachal Pradesh and Ors., that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, such rules would apply."

46. In Dr. Rash Lal Yadav vs. State of Bihar, (1994) 5 SCC

267 : 1994 AIR SCW 3329, it was held that in the absence of

contrary indication in the statute, procedural fairness is an

implied mandatory requirement to protect arbitrary action

where statute confers wide power coupled with wide discretion

on the authority. In this behalf, in para 6 of the judgment, the

apex court held thus :-

"Drastic substantive laws can be suffered only if

they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws, Courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case........

xxx What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, Courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences."

47. The following observations of the Full Bench of the Punjab

& Haryana High Court in the pronouncement reported at 1972-

74 PLR 127 (FB) Hamek Singh & Anr. vs. State of Punjab

& Ors. also throw valuable light on the issue:-

".....that even if the statute and the rules framed thereunder are silent on the point, it appears to us to be necessary for satisfying the principles of natural justice, without which it is impossible to maintain the rule of law, to give an adequate opportunity to a transfree to safeguard his interest in proceedings which can possibly culminate in a decision prejudicially affecting him and his property rights."

48. The doctrine of 'useless formality' urged as an exception to

the compliance of the principles of natural justice has also been

considered. The principle that in addition to breach of natural

justice, de facto prejudice must also be proved has been

developed in several cases. (Ref: (2000) 7 SCC 527 Alligarh

Muslim University Vs. Mansoor Ali Khan;

MANU/SC/0334/1983 K.L. Tripathi Vs. State Bank of India;

MANU/SC/0690/1996 Rajender Singh Vs. State of M.P.

49. Exclusion of the audi alteram partem rule has been held

permissible only where nothing unfair can be inferred by not

affording an opportunity to present and meet a case. This rule

cannot also be applied to defeat the ends of justice or to make

the law "lifeless" absurd, stultifying and self defeating or plainly

contrary to the common sense of the situation 'and this rule may

be jettisoned only in very exceptional circumstances where

compulsive necessity so demands. (Ref: Union of India & Anr.

Vs. W.N. Chadha AIR 1993 SC 1082)

50. The House of Lords in Wiseman vs. Boreman (1967) 3

All ER 1045 had submitted that the inquiry which an authority

must always raise is that fairness in action demands that an

opportunity to be heard should be given to the person affected.

51. In Mohinder Singh Gill v. Chief Election

Commissioner AIR 1978 SC 851, the Apex Court had placed

natural justice on the highest pedestal when it observed that :-

"Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendry days of Adam and of Kautilya's Arthasastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these depths for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.

Law cannot be divorced from life and so it is that the life of the law is not logic but experience. If, by the experimental test, importing the right to be heard will paralyse the process, law will exclude it. It had been said that no army can be commanded by a debating society, but it is also true that the House of Commons did debate, during the days of debacle and disaster, agony and crisis of the Second World War, the life-and- death aspects of the supreme command by the then British Prime Minister to the distress of all our friends and to the delight of all our foes' - too historic to be lost on Jurisprudence. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity. Such is the sensible perspective we should adopt if ad hoc or

haphazard solutions should be eschewed."

52. The rule therefore is that application of the principles of

natural justice can be excluded only by specific statutory

expression of the negative intention of the legislature or the

statutory scheme reflects such an exclusion. Application of the

principles of natural justice including the audi alteram partem

maxim do not stand excluded by inevitable or irresistible

implication. These principles can be excluded also in absolutely

exceptional circumstances when compulsive necessity so

demands or immediate action is imperative. The requirement of

hearing has been held to be indispensable at the initial stage and

is extended to the appellate stage so as to ensure proper

application of the principles of natural justice. So far as

observance of natural justice is concerned, in Mohinder Singh

Gill's case (supra), the Apex Court observed that inasmuch as

this principle is so integral to good governance, the onus is on

him who urges exclusion to make out why. Violation of the

principles of natural justice by any action is recognised as a

violation of the rights of the citizen under Article 14 of the

Constitution of India.

53. By virtue of the amendment of 2002, there is no change to

sub-section (3) of Section 10 of the Passport Act, 1967. The

statute which was being considered by the Apex Court in

Maneka Gandhi's case (supra), did not provide for an emergency

situation where immediate steps were required to be taken with

regard to the passport of an individual. Because of absence of a

power to take emergency actions under the Passport Act, 1967

in an emergency situation, the authorities were taking recourse

to "look out circulars" which had no sanctity in law.

54. This statutory vacuum was provided for by the

incorporation of Section 10-A into the Passport Act, 1967 which

was inserted as Section 2 of the Act No.17 of 2002 w.e.f. 23rd

October, 2001 empowering the Central Government or a

designated officer to immediately suspend the passport or travel

document of a person against whom an order is likely to be

passed under Clause (c) of sub-section 3 of section 10. The

same requires to be considered in extenso and reads thus :

"10A. Suspension of passports or travel documents in

certain cases

(1) Without prejudice to the generality of the provisions contained in section 10, if the Central Government or any designated officer is satisfied that the passport or travel document is likely to be impounded or caused to be impounded or revoked under clause (c) of sub- section (3) of section 10 and it is necessary in the public interest so to do, it or he may,--

(a) by order, suspend, with immediate effect, any passport or travel document;

(b) pass such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks:

Provided that the Central Government or the designated officer may, if it or he considers appropriate, extend, by order and for reasons to be recorded in writing, the said period of four weeks till the proceedings relating to variation, impounding or revocation of passport or travel

document under section 10 are concluded:

Provided further that every holder of the passport or travel document, in respect of whom an order under clause (a) or clause (b) of this sub-section had been passed, shall be given an opportunity of being heard within a period of not later than eight weeks reckoned from the date of passing of such order and thereupon the Central Government may, if necessary, by order in writing, modify or revoke the order passed under this sub-section.

(2) The designated officer shall immediately communicate the orders passed under sub-

section (1), to the concerned authority at an airport or any other point of embarkation or immigration, and to the passport authority. (3) Every authority referred to in sub-section (2) shall, immediately on receipt of the order passed under sub-section (1), give effect to such order."

55. By statutory prescription, the power to suspend the

passport pending further proceedings for revocation or

impounding thereof was conferred on the authorities in statutory

recognition of the requirement for immediate action that is to

say the exceptional circumstance or impulsive necessity which

may render imperative action necessary if the designated officer

is satisfied that the passport is likely to be impounded or

revoked under Section 10(3)(c) and it is necessary to do so in

public interest.

56. It is well settled that where an action under a statute

entails civil consequences, then even if an opportunity of being

heard may not be explicitly set out in the applicable legal

provisions, the adherence to the principles of natural justice has

to be read into such a statute. For this reason the legislature

has enacted sub-section 1(a) and (b) of Section 10A empowering

the designated authority to suspend any passport or travel

document or pass any order rendering any passport invalid.

57. The two provisos to sub-section 1 of Section 10-A, however,

specifically mandate that every holder of the passport in respect

of whom an order of suspension of the passport has been passed

under Section 10-A or Clause b of sub-section 1 of Section 10,

shall be given an opportunity of being heard, within a period of

not later than eight weeks reckoned from the date of passing of

such an order. Upon such hearing, the Central Government is

empowered, if necessary, by an order in writing to modify or

revoke the order under this section.

58. It is noteworthy that an important safeguard has been

statutorily provided. The duration of the order of suspension is

statutorily restricted to a period not exceeding four weeks. In

case of extension being required, the proviso to sub-section 10-A

enables the Central Government or the designated officer to

extend by an order, for reasons to be recorded in writing, the

period till proceedings relating to the variation, impounding or

revocation of passport under Section 10, are concluded.

59. The legislature has therefore prescripted the only

eventuality when the respondents can proceed to take action

without prior adherence to principles of natural justice. In view

of the principles laid down by the Apex Court and in a catena of

judgments of various High Courts, the contention that merely

because the legislature had not prescripted requirement of a

hearing prior to the passing of an order under section 10(3), the

same stands excluded is therefore contrary to the well settled

principles of law and is hereby rejected. As a consequence it is

held that the respondents were bound to comply with the

principles of natural justice before passing the impugned order.

Order rendered invalid on grounds of failure to state

reasons

60. The petitioner has further contended that if the

communication dated 3rd March, 2006 was in the nature of an

order under Section 10(3)(c), then the same does not indicate as

to the details and particular of the authority who had 'decided'

the matter. No communication of this order under Section 10(9)

of the Passport Act, 1967 has been effected. According to the

statutory provisions, the order must disclose clearly the reasons

for the revocation of the passport which it does not.

61. It has been argued at length that the non-communication of

the order, ground and reasons thereof, impacts the petitioner's

right to file an appeal under Section 11 of the Act and that there

was no public interest in passing the order for revocation of the

petitioner's passport.

62. The petitioner has also assailed the order dated 3rd March,

2006 for the reason that the same suffers from non-application

of mind. In this behalf, reference is made to the contents of the

communication dated 28th February, 2006 which reflect a pre-

discussion between the Directorate of Enforcement who issued

the letter and the Foreign Secretary. The submission is that in

case the reason and decision is of the Directorate of

Enforcement, the same tantamounts to abdication of the powers

of the respondent no. 3 to this authority and hence the same is

not sustainable. Mr. Uday Lalit, learned senior counsel

appearing for the petitioner has contended that the order dated

3rd March, 2006 is rendered completely illegal for failure to

effect bare statutory compliance.

63. The respondents however submits that the CBI furnished

the reasons for the order of revocation to the petitioner when it

filed a reply on 3rd January, 2007 to the petitioner's application

seeking release of the passport. In any case, it is urged that the

Ministry of External Affairs has given the reasons for its order

in the counter affidavit in these proceedings and the petitioner

cannot contend that he is not aware of the reasons for the order

of revocation.

64. Placing reliance on the pronouncement of the Apex Court

in Charanjit Kaur vs. UOI, AIR 1987 SC 1057, it has been

further urged that so long as reasons existed on the file, the

court cannot go into the same.

65. Coming to the submissions of the learned Additional

Solicitor General to the effect that the reasons exist in the files

or the attempt to support the order by reasons in the counter

affidavits of other respondents is concerned, the legal principles

are well settled. In the judgment reported as back as on AIR

1952 SC 16(18), the Commissioner of Police vs. Gordhan

Das Bhanji, the Apex Court held that "public orders, publicly

made, in exercise of a statutory authority cannot be construed in

the light of explanations subsequently given by the officer

making the order of what he meant, or of what was in his mind,

or what he intended to do. Public orders made by public

authorities are meant to have public effect and are intended to

affect the actings and conduct of those to whom they are

addressed and must be construed objectively with reference to

the language used in the order itself." It was further held,

"Public authorities cannot play fast and loose with the powers

vested in them, and persons to whose detriment orders are made

are entitled to know with what exactness and precision they are

expected to do or forbear from doing and exactly what authority

is making the order."

66. So far as reliance on the reasons given in affidavits filed in

court proceedings are concerned, in AIR 1978 SC 851

Mohinder Singh Gill vs. Chief Election Commissioner &

Ors., it was observed that when a statutory functionary makes

an order based on certain grounds, its validity must be judged by

the reasons so mentioned and cannot be supplemented by fresh

reasons in the shape of an affidavit or otherwise. Otherwise, an

order bad in the beginning, may, by the time it comes to court on

account of a challenge, get validated by additional grounds later

brought out.

67. These principles have been reiterated in later

pronouncements of the Apex Court reported at AIR 1981 SC

136 S.L. Kapoor vs. Jagmohan & Ors. and AIR 1993 SC

1197 State Bank of India & Ors. vs. D.C. Aggarwal & Anr.

68. It is noteworthy, that so far as the instant writ petition is

concerned, this court is required to examine an order for

revocation of the petitioner's passport only. It needs no

elaboration that an order has to be tested against material

which was there before the authority when it passed the order.

Material cannot be gathered after the passing of the order to

support the same which is placed in the counter affidavits of

other respondents.

69. Mr. Uday Lalit, learned senior counsel appearing for the

petitioner has drawn my attention to this communication dated

28th February, 2006 from the Directorate of Enforcement

addressed to the Joint Secretary (CPV), that is the Council for

Passport and Visas of the Ministry of External Affairs, who has

set out the reasons as to why the petitioner 's passport should be

impounded/revoked, it reads thus :-

"It may be mentioned that the passport of Shri Aditya Khanna is a vital document for the purposes of investigation by the Directorate. Moreover, if he travels abroad, his visits would delay investigation. Further, if he goes abroad, he may tamper with evidence which will jeopardise the investigation which is at a crucial stage."

The letter also records that this issue has already been

discussed by the author of the communication with the Foreign

Secretary. A copy of this communication is also marked to the

Foreign Secretary.

70. It is noteworthy, that the letter dated 28th February, 2006

addressed by the Directorate of Enforcement to the Foreign

Secretary enclosed the aforenoticed communication and a

request that the passport of the petitioner be immediately

revoked/cancelled for the three reasons which were delay in

investigation; tampering with evidence; and jeopardising

investigation if the petitioner travelled abroad.

71. The stand of the respondents to the effect that the reasons

existed on the file is also not borne out from the record. The file

of the Ministry of External Affairs commences from a noting

dated 2nd March, 2006 referring to a letter dated 28th February,

2006 received from the Directorate of Enforcement requesting

for impounding/revocation of the passport of the petitioner. It

was noted that as the passport was not in the custody of the

Enforcement Directorate and neither was it produced by the

petitioner as per the summon of the Directorate, the RPO Delhi

be instructed to revoke his passport under the Passport Act. On

this noting, the SO(PV-I) recorded that in view of the importance

of the case, the passport may be revoked 'W/O issuing SCN in

the public interest on 2nd March, 2006'. This noting was

endorsed by the Under Secretary who directed the "RPO" to

send the revocation order by 11 a.m. on the same day. The

passport was revoked by the RPO, New Delhi on 3 rd March,

2006. The noting of the RPO is obviously not available on the

record of the Ministry of External Affairs.

72. The averments made by the Central Bureau of Investigation

with regard to revelations during the course of investigation are

not the material which was there before the competent authority

when it passed the impugned order.

73. As a result of the above, the submission on behalf of the

respondents that the reasons exist on the file is found to be

contrary to the respondents record. The contention that the

grounds on which the order is based are to be found in the

affidavits of the other respondents and hence validate the order

is contrary to law.

74. The other limb of the submission is based on failure to

furnish copy of the order or the reasons to the petitioner. Sub-

section 5 of Section 10 mandates that the authority impounding

or revoking the passport or travel document shall record in

writing a brief statement of the reasons for making such an

order. The statutory provisions require the passport authority to

furnish to the holder of the passport, or travel document on

demand, a copy of the same unless in any case, the passport

authority is of the opinion that it will not be in the interest of the

sovereignty and integrity of India, the security of India, friendly

relation of India with any foreign country or be in the interest of

general public to furnish such a copy.

Mr. Malhotra, learned ASG has submitted that for the

reason that there was no demand by the petitioner for the order,

the action of the respondent cannot be faulted.

75. There is no prescribed format for such a demand. Every

representation of the petitioner makes a complaint in this behalf.

Despite the filing of the writ petition and a prolonged grievance

having been addressed by the petitioner with regard to non-

supply of the order, the respondents have opted not to supply

the order or the reasons to the petitioner.

76. It has been submitted by the passport authority which

passed the order of revocation in its reply to the petition, that

since the revocation was in public interest, there was no need to

communicate the order.

77. A statutory appeal is provided under Section 11 of the

order passed under Section 10. Such a statutory right can be

meaningfully utilized only if reasons and grounds of the order

are available to a party. Even otherwise, the authority has to

apply its mind and record its satisfaction with regard to the

existence of the statutory grounds prescribed for revocation of

the passport and also has to show that mind was applied to

the request for issuance of the copy of the order and that

the same was being denied only in the exceptional

circumstances provided in sub-section 5 of section 10.

78. It is important to note, that sub-section 9 of Section 10

requires the holder of a passport which has been revoked, to

surrender the same, if the same has not already been

impounded, to the authority by whom it has been revoked.

No person can comply with the mandate of section 10(9)

unless a copy of the order is furnished to him. A copy of order is

thus statutorily required to be served on a person whose

passport is revoked. Only the reasons thereof may be withheld

only if the circumstances set out in sub-section (5) of Section 10

are satisfied.

In the given circumstances noticed hereinabove, there is no

record of the satisfaction of the conditions of sub-section (5) of

Section 10 by any competent authority. The inevitable

consequence is that the petitioner has been unjustifiably denied

the copy of the order.

Availability of an alternate remedy

79. It has been urged at great length, that the present writ

petition deserves to be dismissed on the ground that the

petitioner has available to him an alternative remedy by way of a

statutory appeal under Section 11 of the Passports Act, 1967.

The submission is that such an appeal provides an adequate

mechanism to address all issues raised by the petitioner.

80. The petitioner has pointed out that in the instant case, the

issue was taken at the level of or in any case at the instance of

the Joint Secretary and the Foreign Secretary of the Ministry of

External Affairs as is manifested from the letter dated 28th

February, 2006 and order dated 3rd of March, 2006.

The appeal has been provided under Section 11 and Rule

10(c) of the Passports Rules 1980 whereunder the Chief

Passport Officer, who is subordinate to both these authorities, is

the Appellate Authority. There is substance in the argument

that he would reasonably not be in a position to apply

independent mind if an appeal against their order(s) was placed

before him.

81. The principles with regard to this objection were

authoritatively laid down by the Apex Court in (2003) 2 SCC

107 : MANU/SC/1199/2002 Harbanslal Sahnia & Anr. vs.

Indian Oil Corpn. Ltd. & Ors. The Apex Court had laid down

the applicable principles thus :-

"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternate remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged. (Ref : Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors.

(1998) 8 SCC 11.)

Having regard to the grounds on which the challenge has

been laid by the petitioner before this court and in the given

facts, certainly, it cannot be held that the remedy of the

statutory appeal would be an efficacious remedy to the

petitioner and cannot be a bar to the present proceedings.

82. In this case, I find that the proviso to sub-section 11 of the

Passport Act, 1967 provides that no appeal under the Passport

Act, 1967 would lie where the order in question has been passed

by the Central Government itself. The order at the instance of

the Secretary/Joint Secretary of the Ministry of External Affairs

has been urged to be really an order of the Central Government.

No appeal would lie in these circumstances. Judicial review in

any event has to lie before the court by way of appropriate

proceedings under Article 226 of the Constitution of India.

83. This objection must fail on yet another count. The

respondents have refused to furnish the copy of order upon the

petitioner. Absent such copy, certainly the petitioner cannot

adopt such remedy, even if available.

84. So far as the argument that the order is beyond the pale of

judicial scrutiny is concerned, this submission was squarely

answered by the Apex Court in Maneka Gandhi's case (supra)

wherein the court has held that an order of impounding a

passport may be legally permissible. However the impact

thereof being on fundamental rights of the citizen, the same has

to withstand the test of judicial scrutiny especially where

allegations of malafide, arbitrariness and illegality are made. In

Para 86 at page 648 of the AIR, it was held that an order made

by the Passport Authority impounding a passport is subject to

judicial review on the ground that order is malafide, or that the

reasons for making the order are extraneous or they have no

relevance to the interests of the general public. The submission

on behalf of the respondents that the order cannot be subjected

to judicial scrutiny is therefore to be noted only for the purpose

of rejection.

Offer of post-decisional hearing to validate action

85. Mr. P.P. Malhotra, learned ASG has urged at length that if

the view of the respondents is that the revocation of the passport

is necessary in public interest and exercise of discretion of the

Government to do so cannot be subjected to judicial scrutiny. It

is further submitted, that when a passport is not surrendered to

the custody of law, then it has to be revoked and that the

purpose of the whole exercise would have stood frustrated if

hearing was to be given. It has further been submitted that the

request of the Central Bureau of Investigation requesting

continuation of the revocation is pending and a fresh order can

be passed. Placing reliance on the observations of the Apex

Court in para 220 at page 401 of the SCC report of the judgment

in Maneka Gandhi (supra), it has been urged that bare suspicion

is enough to take action in the instant case.

86. It is urged that in the facts and circumstances of the

instant case, the passport authority had the absolute discretion

to impound or cause to be impounded or revoke the petitioner's

passport' under Section 10(3)(c). The respondents have urged

that there is no challenge to the authority or the power of the

respondents to make the order for revocation of the passport.

87. Mr. P.P. Malhotra, learned ASG has urged that a decision

was taken by the respondents to treat the petitioner's

representation dated 16th of August, 2007 as an appeal and to

hear the petitioner and thereby, to give a post decisional hearing

to the petitioner. Instead of participating in such hearing, the

petitioner filed CM No. 1430/2008 in the instant writ petition

and the proceedings contemplated by the respondent no. 2 were

stayed by an interim order passed herein.

Placing reliance on the pronouncement in Maneka Gandhi's

case, it is urged that the respondents have the option to give a

post decisional hearing to the petitioner. The further submission

is that the orders were passed in emergency circumstances and

that the Supreme Court in the landmark pronouncement in

Maneka Gandhi's case has held that post-decisional hearing

satisfies compliance with both the legal requirements as well as

principles of natural justice. The same having been offered, the

action of the respondents in revoking the petitioner's passport

cannot be invalidated only on the ground of denial of prior

hearing. Reliance is also placed on (2005) 7 SCC 764 Ajit

Kumar Nag vs. General Manger, Indian Oil Corporation in

support of this submission.

88. The legislature has also specifically incorporated a

provision for taking immediate action to suspend by way of

section 10(A) and in a case of grave urgency to, thereafter grant

a post decisional hearing pending consideration of the orders for

revocation or impounding, based on the emergency of the

situation.

Such post decisional hearing has not been statutorily

prescribed when a decision to impound or revoke the passport is

envisaged.

89. In Maneka Gandhi's case (supra), the court was

considering an order impounding a passport and it was held that

compliance with the audi alteram partem rule was mandatory. It

was only in the facts of the case that the post decisional hearing

was accepted as permissible. Revocation of a passport has

consequences which are more drastic than impounding of the

passport. The principles laid down by the Apex Court so far as

impounding are concerned, would certainly apply to revocation

of the passport.

90. In MANU/SC/0083/1986: AIR 1987 SC 71 Institute of

Chartered Accountants of India Vs. L.K. Ratna & Ors., it

was laid down that a post-decisional hearing cannot be an

effective substitute for a pre-decisional hearing and if an

opportunity of hearing is not given before a decision is taken at

the initial stage, it would result in serious prejudice inasmuch as

if such an opportunity is provided at the appellate stage, the

person is deprived of his right to appeal.

91. In this regard, the Apex Court in pronouncement reported

at (1987) 4 SCC 431 K.I. Shephard Vs. Union of India in

para 16, held thus:-

"16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."

92. This very issue had arisen before the Apex Court in (1989)

1 SCC 764 H.L. Trehan Vs. Union of India. The court in this

behalf had observed thus:-

"12. It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post- decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at

such a post-decisional opportunity."

93. In AIR 2008 Bom 158 Satish Nambiar Vs. Union of

India, it was held that since the circumstances of the case are of

such grave nature that, in the opinion of the authority, it is likely to

jeopardize the security and sovereignty of the country, and affect

adversely the relationship with other countries. For this reason,

the revocation of the petitioner's registration card and permanent

visa without granting him a pre-decisional hearing was upheld.

94. Where the legislative scheme of provisions of a statute

suggests that the intent of the legislature is to take an emergent

action, in that event and subject to fulfilment of ingredients of

the provisions, an order could be passed without affording a pre-

decisional hearing and an expeditious post-decisional hearing

may amount to substantial compliance with the basic law. (Ref:

MANU/DE/0624/2005 International Cargo Service Vs.

Union of India through Secretary, Ministry of Finance etc.)

95. In the instant case, the revocation has been effected in

order to prevent the petitioner from travelling and from

tampering with documents and hampering with the investigation

as was noticed in the communication dated 28th February, 2006.

It has not been contended that such purpose could not have

been achieved by appropriate proceedings under Section 10-A

pending the finalization or taking a decision under Section

10(1)(c) of the Act.

96. It has been specifically contended on behalf of the

petitioner that he had returned specifically to India on April,

2006 for the purposes of meeting the officers of the Directorate

of Enforcement and making further submission before them as

may be required. It has been submitted on his behalf that he

had specifically informed them about the details as well as the

date of his arrival including the exact flight number and airlines.

Such information is stated to have been given much in advance.

There has been no denial to this submission.

97. So far as tendering of his passport is concerned, the

petitioner has submitted that it could not be done physically for

the reason that he did not have the passport physically with him

as it had gone to the visa authority for the purposes of meeting

certain visa requirements. It has been submitted that in order to

further assist the investigation, the petitioner had forwarded a

photocopy of all the pages of his passport duly endorsed by the

Indian High Commission under the covering letter dated 19th

December, 2005 to the Directorate of Enforcement. It has also

been pointed out that apart from the petitioner's statement, the

petitioner had sent details in a letter dated 4th April, 2006 with

extensive enclosures including bank documents, bank

prescription details of financial entries etc. This is manifested

from the show cause notice filed by the Directorate of

Enforcement manifesting the statement made on behalf of the

petitioner.

98. The petitioner has contended that he is not an accused in

any criminal proceedings. The allegations made in the Volcker

inquiry report are pending adjudication and, therefore, are yet to

be decided by process of law and adjudication. The petitioner

has objected to the applicability of the Foreign Exchange

Management Act, 1999 on the ground that under Section 8 of

this statute, the same would apply only to a person resident in

India whereas the petitioner is a non-resident Indian.

99. The petitioner has placed several communications including

the letters dated 9th March, 2007, 10th April, 2007, 17th April, 2007,

11th July, 2007, 16th August, 2007 and an undated letter addressed

to various authorities in the Ministry of External Affairs, ranging

from the Joint Secretary, Secretary to the Ministry of State for

External Affairs, requesting that the matter be looked into on

urgent basis and that the order/circular revoking his passport be

cancelled. The petitioner had pointed out that he was in the

hospitality and restaurant business in the United Kingdom having

international acclaim. On account of his absence for over 14

months, the petitioner's reputation has been irreparably damaged

apart from the monetary loss he was suffering. It was specifically

pointed out that no proceedings of any kind were pending against

the petitioner or his business in India.

100. I find that the petitioner had also undertaken to be

available as and when required by the respondent to do so in

respect of any question or clarifications. It may be noted that in

the communications addressed in March, 2007, the petitioner

had even requested that the order revoking his passport be

cancelled or withdrawn or his passport be reinstated as a valid

document. The petitioner had requested the respondent that the

same could still be continued to be held by the CBI if deemed

necessary even after its restoration as a valid document. These

requests evoked no response at all.

101. The representations which were addressed by the

petitioner had been made without the copy of the impugned

order which is essential to raise a meaningful challenge. The

petitioner had complained that he had not been given a copy of

order therein.

102. The petitioner filed the present writ petition on 17th

December, 2007 praying for issuance of an appropriate writ

reversing/annulling/cancelling the order of revocation including

the circular dated 3rd March, 2006 issued by the Regional

Passport Office/Passport Authority/Ministry of External Affairs

and a writ of mandamus directing the Central Bureau of

Investigation to release the passport of the petitioner from its

custody. Notice in this writ petition was issued by an order

passed on 19th December, 2007. The respondents failed to file

their reply within the period stipulated by the court. Instead, a

communication dated 15th January, 2008 was addressed to the

petitioner, received by him on 21st January, 2008, addressed by

the Ministry of External Affairs, respondent no.2 informing the

petitioner that it was treating a representation dated 16th

August, 2007 of the petitioner as an appeal under the provisions

of Section 11 of the Passport Act, 1967. The petitioner was

required to present himself for a personal hearing on 29th

January, 2008 before the Joint Secretary, CPB, Ministry of

External Affairs.

103. Contending that this action of the respondent was itself a

mala fide action, to subvert the pending proceedings before this

court and a mala fide attempt to legitimize their illegal action,

the petitioner filed application registered as CM No.1430/2007

before this court, praying for stay of the effect and operation of

the notice dated 15th January, 2008.

104. This application came up for hearing on 29th January, 2008

when it was directed that till the next date of hearing, the

appeal/proceedings contemplated by the respondent no.2 in

terms of its communication of 15th January, 2008 shall stand

stayed. This order has continued to bind the parties till date.

105. The respondents have thus proposed to treat as an appeal,

the representation of the petitioner, where he has complained

against the revocation in violation of the audi alteram partem

rule and made a grievance that he has not received a copy of the

order. This representation was made on 6th August, 2006, six

months after the revocation. The order to grant a hearing was

made almost two years (twenty two months) after the

revocation. The same is beyond the period permissible for the

post-decisional hearing even under section 10A(1b).

106. The allegations surfaced in the year 2005 and revocation of

the passport has been effected only on 3rd March, 2006. The

petitioner on the other hand has acceded to the jurisdiction of

the respondents voluntarily when his counsel wrote the letters

on 19th December, 2005 and 11th January, 2006 to the

Directorate of Enforcement in the United Kingdom itself. The

respondents have set out the several dates on which the

petitioner has appeared before them.

107. The respondents do not make any allegation let alone place

any material that the petitioner has tried to abscond or leave

from the country after knowledge of the pendency of the

proceedings before the Directorate of Enforcement. The case

registered by the Central Bureau of Investigation implicated the

petitioner's father also. Even this agency has stated that the

noticees have appeared when required.

108. A reading of the judgment in para 62 of Maneka Gandhi's

case shows that it was conceded by the learned Attorney

General on behalf of the Union of India that the audi alteram

partem rule is a highly effective rule devised by the courts to

enable a statutory authority to arrive at a just decision and it is

calculative to act as a healthy check on abuse or misuse of

power and hence its reach should not be narrowed and its

applicability circumscribed. The learned Attorney General had

in fact urged a narrow contention based on the facts of the case

and sought to place exercise of the power in the case within the

exceptions to the applicability of the rule. In this behalf, para

62 of the AIR report deserves to be considered in extenso and

reads thus:-

"62. Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely, nemo debt esse judex propria cause : no one shall be a judge in his own cause, and audi alteram partem : no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act-as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should re-trace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was a very limited contention, namely that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. xxx xxx The Passport Authority may proceed to impound the passport without giving any prior

opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to' be incorporated in the Passports- Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article."

109. From the above, the Supreme Court clearly held that it is

only if the provisions of natural justice would be read into the

provisions of Section 10 of the Passport Act, 1967 that the same

would be a fair and just procedure and would not suffer from the

vice of arbitrariness and unreasonableness. It is evident that it

is only so far as the exercise of power to impound a passport in

the given facts was concerned that the Apex court held that the

applicability of the audi altreram partem rule before the making

order was required to be excluded. Even in such eventuality it

was clearly held that the reasons for the order are to be supplied

at the earliest to enable the person concerned to make a

representation and to plead for setting side the action of

impounding his passport. The provision of giving an immediate

opportunity to the person concerned can or should be read by

implication into the Passport Act, 1967 and only then would the

procedure prescribed by the Act for impounding a passport be

right, fair and just; that then it would not suffer from the vice of

arbitrariness and unreasonableness and would be a procedure

which was in confirmity with the requirement of Article 21 of the

Constitution.

110. In view of the issues raised before this court, so far as the

applicability and extent of the principles of audi alteram partem

are concerned, in Maneka Gandhi's case (supra), the Apex Court

was clearly of the view that the principles of audi alteram would

have application even where no positive words are used in the

statute. The Supreme Court had observed thus :-

"Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram, which mandates that no one shall be condemned unheard is part of the rules of natural justice.

Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be : does fairness in action demand that an

opportunity to be heard should be given to the person affected ?

The law must now be taken to be well settled that even in an administrative proceedings, which involves civil consequences, the doctrine of natural justice must be held applicable."

111. In para 225 of Maneka Gandhi case (Supra), the court held

as follows:

"So also the right to be heard cannot be presumed when in the circumstances of the case, there is paramount need for secrecy or when a decision will have to be taken in emergency or when promptness of action is called for where delay would "defeat the very purpose or where it is expected that the person affected would take an obstructive attitude. To a limited extent it may be necessary to revoke or to impound a passport without notice if there is real apprehension that the holder of the passport may leave the country if he becomes aware of any intention on the part of the passport authority or the Government to revoke or impound the passport. But that by itself would not justify denial of an opportunity to the holder of the passport to state his case before a final order is passed. It cannot be disputed that the legislature has not by express provision excluded the right to be heard. When the passport authority takes action under Section 10(5) he is required to record in writing a brief statement of resons and furnish a copy to the holder of the passport on demand unless he for sufficient reasons considers it not desirable to furnish a copy. An order thus passed is subject to an appeal where an appellate authority is required to give a reasonable opportunity to the holder of the passport to put forward his case. When an appeal has to be disposed of after given for a specified period, the revocation or impounding during the without hearing the aggrieved person. Further when a passport is given for a specified period the revocation or impounding during the period

when the passport is valid can only be done for some valid reason. There is a difference between an authority revoking or modifying an order already passed in favour of a person and initially refusing to grant a license. In Purtabpur Co. Vs. Cane Commissioner, Bihar MANU/SC/0016/1968, the Supreme Court held that "it would not be proper to equate an order revoking of modifying a licence with a decision not to grant a licence". In Schmidt Vs. Secretary of State, Home Affairs (1969) 2 Ch. 149, Lord Denning observed that "if his permit (alien) is revoked before the time limit expires he ought, I think, to be given an opportunity of making representation; for he would have a legitimate expectation of being allowed to stay for the permitted time. Lord Denning extended the application of the rule of audi altreram partem even in the case of a foreign alien who had no right to enter the country. When a permit was granted and was subsequently sought to be revoked, it has to be treated differently from that of refusing permission at the first instance. As in the present case the passport which has been granted is sought to be impounded the normal presumption is that the action will not be taken without giving an opportunity to the holder of the passport. Section 10(3) in enumerating the several grounds on which the passport authority may impound a passport has used the words like `if the authority is satisfied', "the authority deems it necessary to do so." The Privy Council in Duravappah v. Fernando (1967) 2 A.C. 337 after referring to an earlier decision in Sugathadasa v. Jayasinghe (1958) 59 N.L.R. 457 disagreed with the decision holding "As a general rule that words such as `where it appears to ... or `if it appears to the satisfaction of ... or `if the ... considers it expedient that ....' or 'if the ... is satisfied that ....`standing by themselves without other words or circumstances of disqualification, exclude a duty to act judicially." , The Privy Council in disagreeing with this approach observed that these various formulae are introductory of the matter to be

considered and are given little guidance upon the question of audi alteram partem ......."

112. Mr. Atul Nanda, learned counsel representing the

petitioner has placed an observation of Justice P.N. Bhagwati in

a foreword to a second edition of "Administrative Law" by Dr.

I.P. Massey. On such reading of the pronouncement of the Apex

Court, Justice Bhagwati has written thus:

".......Sometimes an attempt is made by lawyers appearing on behalf of the government to contend that even where prior hearing is not given, the exercise of the power does not become bad and it can be cured by post-decisional hearing. But this is a gross misunderstanding of the decision of the Supreme Court in Gill's case and Maneka Gandhi's case, because it is clear law that if prior hearing is required to be given as part of the rule of natural justice, failure to give it would indubitably invalidate the exercise of the power and it cannot be saved by post-decisional hearing."

113. There is therefore substance in the contention of Mr. Uday

Lalit, learned senior counsel for the petitioner that the Apex

Court has not laid down as a proposition of law, that a post-

decisional hearing if given, would satisfy the requirement of law.

The statutory scheme as noticed above, prescribes to the

contrary.

114. The action of revocation of a passport is final and much

more drastic than an action of only impounding of the passport.

There is nothing in the statute or its scheme which shows any

intention to exclude applicability of the principles of natural

justice or permit a post decisional hearing .

115. So far as urgency is concerned, in Swadeshi Cotton Mills

vs UOI AIR 1981 SC 818, the court construed the expression

'immediate action' which would guide adjudication in the instant

case. The court held that:-

"(iv) 'Immediacy' does not exclude a duty to act fairly, because, even an emergent situation can co-exist with the canons of natural justice. The only effect of urgency on the application of the principle of fair-hearing would be that the width, form and duration of the hearing would be tailored to the situation and reduced to the reasonable minimum so that it does not delay and defeat the purpose of the contemplated action.

(v) where the civil consequences of the administrative action - as in the instant case - are grave and its effect is highly prejudicial to the rights and interests of the person affected and there is nothing in the language and scheme of the statute which unequivocally excludes a fair pre-decisinal hearing, and the post-decisional, hearing provided therein is not a real remedial hearing equitable to a full right of appeal, the Court should be loath to infer a legislative intent to exclude even a minimal fair hearing at the pre- decisional stage merely on ground of urgency."

116. The law and the principles laid down by the Apex Court,

therefore, would bind adjudication in the instant case. Even in

Maneka Gandhi, the Apex Court has unequivocally declared that

as soon as the order impounding the passport is made, the

reasons for impounding are required to be supplied and

opportunity of hearing, remedial in aim is to be given. Certainly

a post-decisional hearing after almost twenty two months of the

passing of order revoking the passport without supplying copy of

the reasons or order, even if permissible, which I have held is

not, does not satisfy the requirements laid down by the Apex Court.

117. Now the legislature has envisaged an emergency situation

and has empowered the authorities to suspend a passport in the

case of an emergency subject to a post-decisional hearing within

the prescribed time limit.

Nothing precluded or, prohibitted the respondents from

taking action to suspend the petitioner's passport, if the action

was so emergent and comply with the legislative mandate. The

issuance of the letter dated 15th January, 2008 almost two years

after the passing of the order of revocation, is only an attempt to

give a facade of legality to the orders which stood passed against

the petitioner. In absence of statutory authority, certainly the

offer of the post-decisional hearing in the instant case cannot

validate the respondents' order or actions.

118. In this background, the respondents have failed to make

such grave urgency which could justify passing of an order

without adherence to the bare minimal of hearing mandated by

the binding principles of natural justice. In the given facts there

was no warrant or justification for passing of the order of

revocation without grant of the same.

It therefore has to be held that there could be no exclusion

from compliance with the principles of natural justice in the

instant case.

Challenge on grounds of mala fide

119. The petitioner rests his challenge on a strong plea that the

action of the respondent against him is mala fide. It is urged

that the respondent no.2 has passed the impugned order on 3 rd

March, 2006 in unwarranted haste, without application of

independent mind or adherence to the principles of natural

justice based on the communication of the special director of the

Directorate of Enforcement addressed communications to the

Foreign Secretary or the Joint Secretary in the Ministry of

External Affairs on 28th February, 2006,

So far as the gravity of the allegations against the

petitioner were of a grave nature are concerned, it is urged that

there is no exemption to the statutory compliance merely

because the allegations are serious.

120. On the other hand, the respondent's contend that the

petitioner is an agent dealing with and involved in illegal

transactions of arms and the Central Bureau of Investigation has

requested continuation of the revocation. Mr. Malhotra, learned

ASG contends that prayer 'b' in the writ petition seeks a

mandamus to the Central Bureau of Investigation to release the

passport and in view of the disclosures in the investigation, such

an order ought not to be made.

121. The communication dated 3rd March, 2006 issued by the

Regional Passport Officer does not disclose the reasons for the

extreme step of revocation of the petitioner's passport. It is left

to implication and presumption that the order has been issued

on the same grounds as are stated in the communication dated

28th February, 2006 placed before this court.

122. Apart from the petitioner, the respondents were

investigating the roles of several people into the allegations

including that of his father Shri Vipin Khanna and one Shri

Andleeb Sehgal. A look out circular was issued against Shri

Andleeb Saigal and his passport as well as that of Shri Vipin

Khanna, father of the petitioner were seized. Both these

persons had sought legal redressal against the action of the

respondent in seizing their passports.

123. My attention has been drawn to proceedings in W.P.(C) No.

3005/2007 which is stated to have been filed by Shri Andaleeb

Sehgal with regard to the Look Out Circular issued against him.

On the statement made by Mr. P.P. Malhotra, learned Additional

Solicitor General, on 5th of July, 2007, this writ petition was

disposed of on the submission by Mr. Malhotra that on the

completion of the three months period, the Look Out Circular

would have outlived its utility and, therefore, would be

withdrawn. Insofar as the passport is concerned, the same shall

be returned to the court of ACMM, Delhi and would be subject

to any orders that may be passed by that court. The order

records that Mr. Malhotra makes these submissions on the basis

of instructions received from Mr. S.K. Panda, Special Director,

Directorate of Enforcement who was also present in the court.

124. The petitioner has also relied upon the proceedings before

the Apex Court in IA No. 6 & 7 in W.P.(C) No. 386/2006 filed by

the petitioner's father Shri Vipin Khanna against the Union of

India and Anr. before the Apex Court. In the hearing held on the

24th of August, 2007 learned Addl. Solicitor General, appearing

for the respondent C.B.I., submitted that the petitioner therein

was a suspect and it is for the purpose of investigation the

passport was withheld by the C.B.I. Despite such submission the

Apex Court directed the C.B.I. to surrender the passport before

the Special Court, C.B.I., Patiala House, New Delhi within five

days from this date and on such surrender, the petitioner shall

be at liberty to make an appropriate application before the court

and the Court will decide the application in accordance with law.

From the above, it is apparent that the court did not

permit CBI to retain the passport.

125. It is pointed out, that the passports of Shri Andaleeb

Sehgal and Shri Vipin Khanna had been seized in London during

the course of investigation by the Central Bureau of

Investigation and it was for this reason that the special court has

been directed to pass orders.

126. The petitioner has placed a copy of the letter being F No.

TI/HQ/305/205 (Court), PT III/Vol.II dated 15th December, 2006

before this court addressed by Mr. S.K. Pandey to Shri Jagat

Singh and Shri Mohammad Asad Khan, two other persons whose

roles were under investigation in same enquiries informing them

that the "retention period of their passport has expired today;

that as the passport is no more required by the Directorate, you

are requested to collect the same from the Directorate after

fixing date and time" at the telephone number which was stated

in the letter. It has been urged that this letter was written to

persons similarly placed as the petitioner on the very date when

the retention period was expiring.

127. Mr. Uday Lalit, learned senior counsel has urged that the

revocation of the petitioner's passport has been effected and

enforced illegally which action would amount to the use of

statutory powers for an unauthorised purpose, amounting to

malice in law and malice in fact. Reliance is placed on the

pronouncement of the Apex Court in (1979) 2 SCC 491 S.R.

Venkataraman Vs. Union of India. The Apex Court had

authoritatively held that malice in its legal sense means malice

such as may be assumed from the doing of a wrongful act

intentionally but without just cause or excuse, or for want of

reasonable or probable cause. It was observed that if a

discretionary power has been exercised for an unauthorised

purpose, it is generally immaterial whether its repository was

acting in good faith or in bad faith.

128. It is trite that an action carried out a mala fide would stand

vitiated and void and in this regard, in (1980) 2 SCC 471 (at

page 474) State of Punjab Vs. Gurdial Singh, the Apex Court

has held that the action is bad where the true object is to reach

an end different from the one for which the power is entrusted,

goaded by extraneous considerations, good or bad, but

irrelevant to the entrustment. When the custodian of power is

influenced in its exercise by considerations outside those for

promotion of which the power is vested the court calls it a

colourable exercise and is undeceived by illusion.

129. The petitioner has placed reliance on the pronouncement of

the Apex Court in (1995) 5 SCC 302 Anirudhsinhji

Karansinhji Jadeja Vs. State of Gujarat in para 11 at page

307 to contend that the instant case is a clear case of exercise of

power on the basis of external discretion. It has been pointed

out that the discretion is exercised under the direction or in

compliance with a higher authority's instructions and

consequently, it is a case of failure to exercise discretion

altogether.

130. In answer to these arguments on behalf of the petitioner,

the only assertion on behalf of the respondent was that the

notification dated 11th May, 2005 appointing the inquiry

commission noted that the matter was of public importance and

therefore the impugned action was justified. Such an

observation in this notification certainly, cannot satisfy the

requirements of Section 10 of the Passport Act. The whole

object, nature and content of the notification dated 11th May,

2005 and those of the order of revocation dated 3rd March, 2006

are different. The notification dated 11th May, 2005 notices that

the matter was of public importance as allegations pertain to a

high functionary and a political party. Section 10 (3) mandates

that the order has to be made in the interest of general public.

131. There is force in the submission of learned senior counsel

for the petitioner that the order dated 3rd of March, 2006 must

reflect independent application of mind by the person passing

the order to stand on its own.

132. Mr. P.P. Malhotra, learned ASG has opposed these

arguments of the petitioner on the sole ground that every

secretary of the Government of India would not be opposed to

the petitioner and that the officers in the Government were

honest to discuss matter with each other which would not vitiate

the decision making of one officer.

133. Mr. P.P. Malhotra, learned Additional Solicitor General has

urged that despite the revocation of the passport and issuance

of the LOC, the petitioner persisted with his non-cooperation and

did not appear before the authorities on the 9th or 17th April,

2006. It is further urged at length that the petitioner was

obstructing the investigation being conducted for the reason

that he had submitted a written objection to the Attorney

General of Jersey, Channel Island for their action of giving

assistance to the investigation being conducted in India.

134. Reliance is placed on the counter affidavit filed by the

Central Bureau of Investigation through Sh. Tanmaya Behera, its

additional SP submitting that on 6th June, 2005 a regular case

no. RC AC 2 2005 A 0002 was registered by the Central Bureau

of Investigation on the basis of information/reference received

from the Ministry of Defence vide letters dated 22nd April, 2005

and 30th April, 2005 against unknown public servants of the

Ministry of Defence of the Government of India; M/s Denel (Ptv.)

Limited, South Africa; M/s Varas Associates, Isle of Man, United

Kingdom and others under various provisions of the Prevention

of Corruption Act, 1988 and the Indian Penal Code.

135. The position which emerges therefore is that the

Directorate of Enforcement has handed over the passport of the

petitioner to the Central Burearu of Investigation pursuant to a

request made by it. The Central Bureau of investigation in its

counter affidavit has given details of its investigation and in para

14 and 15 of its counter affidavit has stated that efforts are on to

collect information/documents and time is being taken to receive

responses to the letterogatories to different countries. The

submission is that during the pendency of hte investigation, the

presence of Sh. Aditya Khanna is required in India to prvent

unavoidable dealy in completion of the investigation of the case

and from preventing him from tampering with the evidence

located abroad. It is further submitted that if the passport is

released/issued afresh to him, there is likelihood of his not

returning to India and for this reason CBI has addressed a letter

dated 19th December, 2007 to continue with the revocation order

dated 3rd March, 2006.

136. The CBI is not holding the passport as a document seized

during the course of any search/seizure or proceedings against

the petitioner.

137. My attention is drawn to the pronouncement of this court

reported at 129 (2006) DLT 470 Jamal Ajmal Saidi vs. UOI

& Ors. The petitioner in this writ petition was a consultant for

various multinational companies whose business required him to

frequently travel abroad. Notice was issued to him pursuant to

the media reports about the Volcker report. This petitioner had

assailed the respondent's action in illegally retaining his

passport without any formal order. The court reiterated the

principle that every decision or action of the state, in relation to

a citizen's rights must be traced to, or be relatable to legal

provisions; they must bear a "legal pedigree" (Ref: State of U.P.

vs. Maharaja Dharmende Prasad Singh MANU/SC/0563/1989;

Bishan Das vs. State of Punjab MANU/SC/0348/1961. The

respondents action was thus held to be violative of the law.

138. The petitioner has also placed reliance on the

pronouncement of this court reported at 80 (1999) DLT 19

Hazral Iman Vs. UOI in support of the submission that if

orders are passed either on no evidence or evidence which is

irrelevant or does not exist, the court would act in favour of the

petitioner in exercise of its power of judicial review.

139. In AIR 1998 Andhra Pradesh 232 Hassan Ali Vs. The

Regional Passport Officer, the court scrutinised the records of

the respondent and observed that the record did not disclose

that any decision to impound the passport was recorded in the

file. It was observed that the respondent had dealt with the

matter in a casual fashion and the record did not disclose any

proceedings except the requests made by the police department

to impound the passport of the petitioner and held that the

respondent could not have taken steps for impounding the

passport without issuing notice to the petitioner and without

affording him of an opportunity of submitting his explanation

and hearing. The action could not have been taken on the basis

of some information furnished by the police alone. The method

and procedure adopted by the respondent was held to be illegal

and arbitrary and action in declaring that the petitioner's

passport was impounded was nonest in law.

140. In AIR 1991 SC 101 : 1991 Supp. (1) SCC 600 : JT

1990 (3) SCC 725 DTC Vs. DTC Mazdoor Congress &

Others, so far as exercise of power under Section 10 of the

Passport Act was concerned, the court had observed that :-

"159. The orders under Section 10(3) must be based upon some material even if the material concerns in some cases of reasonable suspicion arising from certain credible assertions made by reliable individual. In an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against such a step which could be reversed after an opportunity is given to the holder of the passport to show why the step was unnecessary.

160. It is well settled that even if there is no specific provision in a statute or rules made thereunder for showing cause action action proposed to be taken against an individual, which affects the right of that individual the duty to give

reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or demaging action.

161. An order impounding a passport must be made quasi-judicially. This was not done in the present case. It cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner. The petitioner had no opportunity of showing that the ground for impounding it given in this Court either does not exist or has no bearing on public interest or that the public interest can be better served in some other manner. The order should be quashed and the respondent should be directed to give an opportunity to the petitioner to show cause against any proposed action on such grounds as may be available.

162. Even executive authorities when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice."

141. The allegations made against the petitioner in the affidavit

filed by the Central Bureau of Investigation is that the Ministry

of Defence had made payments to said M/s Denel of South Africa

which paid agency commission to M/s Varas Associates. After

credit to the account of M/s Varas, the entire funds were

transferred to accounts of certain companies, some of which are

suspected to be in some way or the other linked with Aditya

Khanna and Vipin Khanna, his father. The CBI has however

stated that Sh. Vipin Khanna and Sh. Aditya Khanna have been

summoned on 26th Oct, 2006, 25th January, 6th February, 13th

February, 15th February, 19th February, 26th February, 2007 and

14th January, 2008 and have participated in the investigation.

The contention is that their answers were evasive.

142. It has been submitted that one Sh. Vipin Khanna and his

family member including his son Aditya Khanna - petitioner

herein, emerged as prime suspects in the case and hence

searches were conducted at various premises owned by them. It

was required to ensure the presence of both Sh. Vipin Khanna

and his son Sh. Aditya Khanna and a notice under section 91

CrPC was issued to Sh. S.K. Panda, Spl.Director, Directorate of

Enforcement for handing over the passport of Sh. Vipin Khanna

and Sh. Aditya Khanna. The admitted position is that in

response to such notices, the Enforcement Directorate handed

over the passport of Sh. Aditya Khanna but withheld the

passport of Sh. Vipin Khanna on the ground that he had moved

the Supreme Court of India against the Enforcement Directorate

for releasing the passport.

The CBI does not dispute that the Supreme Court of India

has passed orders in favour of Sh. Vipin Khanna so far as his

prayer for directions to release his passport are concerned.

Nothing has been placed before this court to persuade me to

take a different view.

143. I find that there is not a single allegation in the affidavit

filed by the Central Bureau of Investigation that they have

required the appearance of the petitioner and he has not

appeared before it.

144. In a case reported at 147 (2008) DLT 397 :

MANU/SC/7020/2008 Suresh Nanda vs. Central Bureau of

Investigation, the CBI had seized the appellant's passport in a

search and seizure pursuant to an FIR registered by the police.

The appellant was seeking release of his passport to travel

abroad.

The court had held that the action of the respondent in

retaining the passport of the petitioner was illegal. The

observations of the court which throw valuable light and would

guide the result of the above discussion deserve to be

considered in extenso and read thus :-

"15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. States that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a "passport" is provided for in Section 10(3) of the Passport Act. The Passport Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg,133). This principle is expressed in the maxim "Generalia specialibus non derogant", Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. Though it can impound any other document or thing."

After so holding, the court directed the respondent to hand

over the passport to the appellant within one week of the

passing of the judgment.

145. There is no submission even that the petitioner is

implicated or arraigned as an accused person in the criminal

case by the Central Bureau of Investigation.

The allegations surfaced in the year 2005 in the affidavit

filed as late as on 31st January, 2008 before the registration of

the case in 2005, it is submitted that the petitioner's role is still

only at the stage of investigation by the CBI.

146. Having held that compliance with principles of natural

justice would be essential before passing of an order of

revocation of the passport as in the instant case, the question

then arises as to what would be the effect of such of an order

passed in violation thereof. It has been repeatedly held that an

order which infringes a fundamental freedom and is passed in

violation of audi alteram partem rule is a nullity. When a court

holds such order as invalid or sets aside such order, this would

operate from nativity i.e. the impugned order was never valid.

(Ref : AIR 1974 SC 1471 Nawabkhan Abbaskhan vs. State

of Gujarat; (1967) 2 SCR 625 at 629 and 630) State of

Orissa vs. Dr. (Miss.) Binapani Dei & Ors.

147. The order revoking the passport of the petitioner in the

instant case in violation of these principles, is thus null, void and

nonest.

It is an admitted position that the competent authority has

not considered the request of the Central Bureau of

Investigation for making the order of revocation. The

Directorate of Enforcement has merely handed over the

petitioner's passport to the CBI pursuant to the notice dated 5 th

December, 2006 issued under Section 91 of the Code of Criminal

Procedure.

148. The Central Bureau of Investigation has no authority to

detain the passport in view of the principles laid down by the

Apex Court in Suresh Nanda vs. CBI (supra). Passports of

persons whose conduct was also being enquired into on similar

allegations have been directed to be released.

149. As a result of the foregoing discussion, the circular/order

dated 3rd March, 2006 passed by the respondents is hereby set

aside and quashed. The Central Bureau of

Investigation/respondent no. 4 herein is directed to release the

passport to the petitioner within three weeks from today.

150. It is made clear that this judgment shall not preclude the

designated authority under Section 10 of the Passport Act, 1967

from making an appropriate order in accordance with law on a

request made by any authority or pending with it.

The writ petition is allowed in the above terms.

(GITA MITTAL) JUDGE December 19, 2008 kr/aa