Madras High Court
Nedumaran Palaniappan vs Union Of India on 7 January, 2025
W.P.No.12136 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.12.2024
PRONOUNCED ON : 07.01.2025
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.P.No.12136 of 2024
and
W.M.P.Nos.13236 and 22838 of 2024
Nedumaran Palaniappan ... Petitioner
vs.
1.Union of India
Rep. by the Secretary to Government
Ministry of External Affairs,
New Delhi – 110 001
2.The Regional Passport Officer,
Chennai Royala Towers,
No.2 and 3, IV Floor,
Old No. 785, New No. 158,
Anna Salai, Chennai - 600002 ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, after calling for the
concerned records from the 2nd Respondent, quash the order of the 2nd
Respondent dated 15.02.2024 bearing Letter Ref. No. PRJ/317075873/24 as
illegal, arbitrary and contrary to law and consequently direct the
Respondents to reissue the passport to the Petitioner for another 10 years on
1/16
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W.P.No.12136 of 2024
the basis of the Application submitted by the Petitioner to the 2nd
Respondent bearing file no. MA3075297518923 dated 25.04.2023 within
the time frame stipulated by this Court.
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.K.S.Jeyaganesan
Senior Panel Counsel
ORDER
The Writ Petition is filed challenging the order passed by the 2nd
respondent in Letter Ref.No.PRJ/317075873/24, dated 15.02.2024 rejecting
the application of the petitioner for reissue/renewal of the passport.
2. According to the petitioner, he is the President of World Tamil
Confederation and former Member of the Tamil Nadu Legislative Assembly.
The petitioner initially obtained a passport in the year 1981 and the same
was renewed from time to time during the years 1991, 2002 and 2012. His
passport got expired on 08.10.2022 and hence, he submitted an application
for renewal of the same. The 2nd respondent sought for certain clarifications
from the petitioner regarding adverse police report. Inspite of the reply by
the petitioner, there was a delay in renewing the passport and hence, the
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petitioner was constrained to file a writ petition before this Court in
W.P.No.28448 of 2023 seeking a direction to the respondents therein to
renew the passport of the petitioner within the time stipulated by this Court.
3. Initially, the 2nd respondent herein filed a counter affidavit
opposing the prayer on the ground that a criminal investigation was pending
against the petitioner. Subsequently, an additional counter affidavit was filed
by the 2nd respondent herein stating that the 2nd respondent was entitled to
reject the application of the petitioner under Section 6(2)(b) and (c) of the
Passports Act, 1967.
4. During the hearing of the said writ petition, the 2nd respondent
informed this Court that he had written to the Commissioner of Police
seeking a discreet enquiry into the activities of the petitioner and also sent a
communication to the Ministry of External Affairs at New Delhi soliciting
their views in this regard.
5. This Court after recording the said submissions made by the 2nd
respondent, proceeded to dispose of the writ petition by directing the 2nd
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respondent herein to put the petitioner on notice regarding findings of
enquiry, afford him with reasonable opportunity and pass final orders on
merits.
6. Thereafter, Show Cause Notices were issued to the petitioner on
08.12.2023 and 05.01.2024. The petitioner submitted his explanation on
12.01.2024 and 05.02.2024. Thereafter, the impugned rejection order was
passed by the 2nd respondent by relying on the police enquiry report, after
detailed enquiry. Aggrieved by the same, the petitioner has come before this
Court by way of this writ petition.
7. Mr.Balan Haridas, learned counsel appearing for the petitioner
submitted that though in earlier order passed by this Court in W.P.No.28448
of 2023, dated 24.11.2023, this Court directed the respondents to put the
petitioner on notice regarding adverse police enquiry report. The same has
not been furnished to the petitioner. However, in the impugned order the
adverse police report had been relied on by the 2nd respondent and therefore,
the impugned order is vitiated by violation of natural justice principles. The
learned counsel further submitted that pendency of a criminal case against
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the petitioner under investigation is not a ground for rejection of the renewal
of passport. He further submitted that though the 2nd respondent rejected his
passport application on the ground that issuance of passport to the petitioner
would be detrimental to the security of the India and it will affect the
friendly relationship of India with Foreign Country. In the impugned order,
the 2nd respondent has not assigned any reason as to how he came to the
conclusion that the departure of petitioner from India would prejudicially
affect the security of the Country.
8. Per contra, Mr.K.S.Jeyaganesan, learned Senior Panel Counsel
appearing for the respondents by drawing the attention of this Court to
Section 6(2)(b) and (c) of Passports Act, 1967, submitted that if Passport
Officer is of the opinion that the departure of the applicant from India is
likely to be detrimental to the security of India or his presence out of India is
likely to prejudicially affect the friendly relationship of India with any
Country, he can reject the application. The learned Senior Panel Counsel
further submitted that the petitioner in his interview to Media dated
14.02.2023, which was published in newspapers claimed that the Leader of
Banned Organisation of Liberation Tigers of Tamil Eelam (LTTE) was alive
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and he would be back soon. It is also stated that the petitioner called upon
the people of Tamil Eelam and Tamilians all over the world to extend their
support to the Leader of Banned Organisation. Therefore, the respondents
apprehended that rendering passport services to him could adversely affect
the security of India and cause prejudice to the friendly relationship of India
with neighbouring Country Sri Lanka. The learned counsel further submitted
that even though this fact was specifically mentioned in the show cause
notice, the petitioner has not submitted any explanation regarding his
interview. The learned counsel also submitted that against the impugned
order, the petitioner has got an alternative remedy of filing an appeal before
the Appellate Authority namely Joint Secretary (PSP) and Chief Passport
Officer, Ministry of External Affairs, New Delhi and the present writ
petition, which has been filed without availing an alternative remedy of
appeal is not maintainable.
9. By way of reply, the learned counsel appearing for the petitioner
submitted that the petitioner was issued with passport in the year 1981 and
the same has been periodically renewed thrice in the years 1991, 2002 and
2012, inspite of petitioner's explicit stand on support for the cause of Tamil
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Eelam. During the earlier occasions, the passport of the petitioner had been
renewed regularly without any objection and therefore, the rejection of the
petitioner's passport by impugned order is not sustainable in law. The
learned counsel further submitted that the respondents filed counter affidavit
expressing their opinion on the merits of the case and the Appellate
Authority is only a Subordinate Official of 1st respondent, in such case, filing
an appeal before the Subordinate of 1st respondent who filed counter
affidavit can only be a formality and the same cannot be treated as
expeditious one. In support of his contention, the learned counsel relied on
the judgment of the Apex Court in Maneka Gandhi vs. Union of India
reported in (1978) 1 SCC 248.
10. The submissions made by the learned counsel appearing for the
petitioner and respondents would make it clear that when there was delay on
the part of the 2nd respondent in processing the passport renewal application
submitted by the petitioner, a writ petition was filed before this Court and
the delay was explained by the 2nd respondent by referring to the pending
police enquiry. After recording the same, this Court issued a positive
direction to the 2nd respondent, which reads as follows:-
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“10.This has caused apprehensions in the mind of the
respondents and, in fact, vide communication dated
31.10.2023, R1 has written to the Commissioner of Police
seeking a discreet enquiry into the activities of the petitioner,
such that, a decision may be taken on whether the Passport
may be re-issued. R1 has also circulated e-mail dated
30.10.2023 forwarded to the Ministry of External Affairs at
New Delhi soliciting their views in this regard.
11. At this juncture, learned counsel for the petitioner
refers to the celebrated judgment in the case of Mahinder Singh
Gill and another v. The Chief Election Commissioner, New
Delhi and others in [1978 (SC) AIR 851] to state that the show
cause notice must not be supplemented by reasons not set out in
the notice itself. However, in this case, no decision has been
taken by the authorities and it is open to them to probe the
matter to the extent they think necessary, though putting the
petitioner to notice in regard to the findings of their enquiry,
for rebuttal.”
11. Therefore, it is clear in the earlier order, this Court directed the
2nd respondent herein to furnish the findings of enquiry to the petitioner and
afford him with reasonable opportunity of rebuttal.
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12. A perusal of the show cause notice issued to the petitioner
subsequent to the order passed by this Court in W.P.No.28448 of 2023
would indicate that though the police enquiry report was referred to, the
copy of the same was not furnished to the petitioner. Infact, the petitioner in
his explanation submitted before the 2nd respondent dated 12.01.2024 by
referring to the order passed by this Court dated 24.11.2023 raised an
objection that the police enquiry report had not been furnished to the
petitioner. The relevant portion of petitioner's explanation reads as follows:-
“7. Now, your letter dated December 8, 2023, mentions
that the Police in its report has not recommended the issuance
of passport facilities to me on the grounds of national security.
The Hon'ble Madras High Court in its order dated 24.11.2023
has observed in para 11 that the Petitioner should be notified
regarding the findings of the police enquiry so that he can
make his rebuttal. However, a copy of the said report has not
been provided to me to explain further in this regard.”
13. Even in the present writ petition, a specific ground has been
raised by the petitioner that non-furnishing of police enquiry report would
result in violation of natural justice principle and hence, the impugned order
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is liable to be set aside.
14. In the counter affidavit, the respondents have not stated anything
regarding the furnishing of police enquiry report to the petitioner. However,
the police enquiry report dated 16.11.2023 is included in the typed-set of
papers filed by the respondents on 04.06.2024. Therefore, it is clear that
before passing the impugned order, the 2nd respondent has not furnished the
police enquiry report to the petitioner and afforded him an opportunity of
rebuttal. The failure of the 2nd respondent in furnishing the police enquiry
report to the petitioner is a clear violation of direction issued by this Court
earlier in W.P.No.28448 of 2023. Therefore, I find there is a force in the
argument made by the learned counsel appearing for the petitioner that the
non-furnishing of police report by the 2nd respondent results in violation of
natural justice principle. The non-furnishing of police report is not only a
violation of natural justice principle and also a violation of earlier direction
issued by this Court. Therefore, the impugned order passed by the 2nd
respondent is liable to be set aside.
15. A perusal of the impugned order would suggest that the request
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of the petitioner for renewal of passport was rejected mainly on relying the
police enquiry report. However, the same has not been furnished to the
petitioner. Further, in the impugned order absolutely there is no discussion
or reasoning as to how the 2nd respondent came to the conclusion that the
departure of the petitioner from India would adversely affect the security of
the Country. Merely because, the police authorities have not recommended
for issue of passport to the petitioner, the 2nd respondent simply rejected the
request without considering police report objectively. Therefore, this Court
is inclined to set aside the impugned order passed by the 2nd respondent in
Letter Ref.No.PRJ/317075873/24, dated 15.02.2024 and the matter is
remanded back to the file of 2nd respondent with a direction to have a fresh
look at the request of the petitioner for renewal of the passport, after
furnishing him an opportunity of rebuttal as directed by this Court earlier.
16. The writ petition was also opposed by the respondents on the
ground that an appeal remedy is available to the petitioner and the same has
not been availed.
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17. The learned counsel appearing for the petitioner by referring to
the counter affidavit filed by respondents, submitted that averment in the
counter affidavit on the merits of the matter would make filing of appeal
before the Subordinate Official of 1st respondent as a mere formality and the
same cannot be treated as expeditious remedy. A close scrutiny of the
counter affidavit filed by the respondents would suggest that the affidavit
was sworn by Assistant Passport Officer at Regional Passport Office,
Chennai, who is under the control of the 2nd respondent. Though it is stated
that he was authorised to file counter affidavit on behalf of the respondents,
it is clear that the counter affidavit has not been filed by the 1st respondent.
Against the impugned order, an appeal remedy is available to the petitioner
before the Joint Secretary (PSP) and Chief Passport Officer, Ministry of
External Affairs, New Delhi, who is not a party to this writ petition.
18. As mentioned earlier, the 1st respondent has not filed any counter
affidavit, though the counter affidavit sworn by an Officer in the 2nd
respondent office, mentions the same was filed on behalf of 1st respondent.
Therefore, it cannot be said that the Appellate Authority has already made
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up his mind and hence, filing an appeal will be a mere formality. In any
event, this Court has already come to the conclusion that the impugned order
passed by the 2nd respondent is vitiated by violation of natural justice
principles, in his failure to furnish the copy of the police report to the
petitioner and therefore, this Court feels it would be appropriate to set aside
the impugned order and send the matter back to the file of 2nd respondent for
fresh consideration, after affording the petitioner with an opportunity to offer
his comments with regard to the adverse police report. Therefore, the
objection on the ground of availability of alternative remedy need not be
gone into.
19. As mentioned earlier, the police enquiry report dated 16.11.2023
is included in the typed-set of papers filed by the respondents dated
04.06.2024. Therefore, there is no necessity to issue a direction to the 2nd
respondent to furnish the same to the petitioner again.
20. Therefore, impugned order is set aside and the matter is
remanded back to the file of 2nd respondent. The petitioner is directed to
submit his explanation regarding the adverse findings in the police report
before the 2nd respondent, within a period of two weeks from the date of
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receipt of copy of this order. The 2nd respondent shall consider the same and
pass final orders on its own merits and in accordance with law, within a
further period of three weeks from the date of receipt of explanation by the
petitioner.
21. With these directions, the Writ Petition stands allowed. No costs.
Consequently, the connected writ miscellaneous petitions are closed.
07.01.2025
Index :Yes / No
Speaking order :Yes / No
Neutral Citation :Yes / No
dm
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To
1.The Secretary to Government
Union of India
Ministry of External Affairs,
New Delhi – 110 001.
2.The Regional Passport Officer,
Chennai Royala Towers,
No.2 and 3, IV Floor,
Old No. 785, New No. 158,
Anna Salai, Chennai – 600002.
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S.SOUNTHAR, J.
dm
Pre-delivery order made in
07.01.2025
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