Jagdishbhai Khodabhai Chavda vs Union Of India
2023 Latest Caselaw 43 Guj

     C/SCA/6931/2022                              JUDGMENT DATED: 03/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6931 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       JAGDISHBHAI KHODABHAI CHAVDA
                                   Versus
                               UNION OF INDIA
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Appearance:
MR N P CHAUDHARY(3980) for the Petitioner(s) No. 1
KSHITIJ M AMIN(7572) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 03/01/2023

                             ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kshitij Amin

learned advocate waives service of notice of Rule

on behalf of the respondents.

C/SCA/6931/2022 JUDGMENT DATED: 03/01/2023

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the prayer is made to

quash and set aside the communication dated

05.03.2022, by which, the respondents in

reference to the application for a passport made

by the petitioner has noticed shortcomings that

the petitioner has not furnished Court order

(decree) for adoption.

4. Facts in brief would indicate that the petitioner,

son of Shankarbhai Mahadevbhai Chavda and

Babuben Shankarbhai Chavda as per Hindu

Rights and Rituals after executing an adoption

deed dated 10.11.2001. Based on this adoption

deed, the name of the petitioner in the ration

C/SCA/6931/2022 JUDGMENT DATED: 03/01/2023

card, PAN card, election card and the Aadhar

Card was changed inasmuch as the name of his

father was shown as 'Khodabhai' instead of

'Shankarbhai'. Mr.Chaudhary would rely on a

decision of this Court in Special Civil Application

No.8192 of 2011 dated 20.09.2011.

5. Having heard the learned advocates for the

respective parties, it is evident from the

pleadings made in the petition that of the ration

card, PAN card, election card and the Aadhar

Card indicates that the father's name is shown as

'Khodabhai'.

6. Considering this and in light of the decision

referred to herein above particularly in light of

paras 9 to 13 which reads as under:

"9. As is seen from sub-section (2) of Section 5 of the Passports Act, the Passport Authority is vested with power to make an

C/SCA/6931/2022 JUDGMENT DATED: 03/01/2023

inquiry, upon receipt of an application, if it is considered necessary. As per Clause (c) of sub-section (2), after making the inquiry, the Passport Authority can refuse to issue a Passport or travel document, by making an order in writing. This is the extent of the power vested in the Passport Authority, while dealing with an application for issuance or renewal of a Passport. The power of conducting an inquiry under sub- section (2) of Section 5 of the Passports Act cannot be stretched so far as to mean that it would include the power to pronounce upon the legality, or otherwise, of an adoption. That power can only be exercised by a Court of competent jurisdiction in a case where such adoption is under challenge, and that too after following the proper procedure, hearing the parties and considering the evidence produced by them. Admittedly the Regional Passport Officer is not the competent authority to adjudicate upon the legality, or otherwise, of an adoption, while dealing with an application for renewal of a Passport, whatever may be impression regarding the provisions of law gathered by him. In this view of the matter, the respondent has exceeded the jurisdiction vested in him by virtue of Section 5(2) of the Passports Act. As the impugned order is without jurisdiction, the same is bad in law and the challenge to it can be entertained by this Court in writ jurisdiction.

10. In this regard, it would also be relevant to notice the provisions of Section 16 of the

C/SCA/6931/2022 JUDGMENT DATED: 03/01/2023

Adoptions and Maintenance Act, which are as follows:

"16. Presumption as to registered documents relating to adoption.- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."

11. The said provision of law makes it clear that a legal presumption is attached to any registered document pertaining to an adoption, and it shall be presumed that such adoption has been made in compliance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 "unless and until" it is disproved. The adoption of the petitioner has been effected by a Registered Deed. It is not the case of the respondent that the adoption of the petitioner has been disproved, therefore, the presumption envisaged by Section 16 will come into play and it is not open to the said respondent to pronounce upon the legality, or otherwise, of the adoption of the petitioner, which has not been disproved by a competent court of law.

12. The learned advocate for the petitioner has brought to the notice of the Court, the judgment in Amruta Vijay Vora v. Union

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of India, 2003(3) GLR 2625, wherein this Court has held that:

"6. Even otherwise also, as per Sec.16 of Hindu Adoptions & Maintenance Act, 1956 (hereinafter referred to as "the Act") when any adoption deed is registered there shall be a presumption for documents relating to the adoption and the presumption shall be that the adoption has been made in compliance with the provisions of Act unless and until it is disproved. Such presumption can be made applicable not only in Court proceedings, but such presumption in view of Sec.16 can also reasonably be made applicable even at the time when the authority has to consider the matter for issuance of passport because the passport authority while considering the matter for issuance of passport is also acting as a quasi-judicial authority."

This judgment fortifies the view of this Court, noted hereinabove.

13. For the aforestated reasons, the petition is partly-allowed. The impugned order dated 29-03-2011 passed by the respondent is quashed and set aside. The matter is remitted to the said respondent for fresh consideration and decision, in accordance with law. Rule is made absolute, accordingly. No order as to costs. Direct service is permitted."

7. In view of the above, the petition is allowed. The

C/SCA/6931/2022 JUDGMENT DATED: 03/01/2023

respondents are directed to consider the

application of the petitioner for issuance of the

passport considering the name of the petitioner's

father as 'Khodabhai' without insisting for a

decree for adoption. Direct service is permitted.

(BIREN VAISHNAV, J) ANKIT SHAH