Rajasthan High Court

Simran Raj @ Salma Nat W/O Yugavel ... vs Union Of India on 6 September, 2022

Bench: Ashok Kumar Gaur

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 20055/2019

    Simran Raj @ Salma Nat W/o Yugavel Gunasekaran, Aged About
    27 Years, R/o Nandlalpura, Post Mahalan, Mahalan, Jaipur,
    Rajasthan-303007
                                                                       ----Petitioner
                                       Versus
    1.     Union Of India, Through Secretary Ministry Of External
           Affairs, Government Of India, New Delhi.
    2.     The Regional Passport Officer, (Jaipur), J-14, Jhalana
           Institutional Area, Jhalana Doongri, Jaipur-(Raj.), 302051
                                                                    ----Respondents

For Petitioner(s) : Mr. Kamlakar Sharma, Senior Advocate assisted by Mr. Madhusudan Rajpurohit, Adv. & Ms. Prabuddha Sharma, Adv.

For Respondent(s) : Ms. Manjeet Kaur, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

Reportable:-

06/09/2022

The present petitioner filed this writ petition initially with a

prayer of seeking a direction against the respondents to issue

passport to her on the basis of Birth Certificate showing her date

of birth as 26.08.1992.

The writ petition was amended by the petitioner and therein

following prayers have been made:-

               "A) By an appropriate                writ,     order    or
               direction    quash        and       set      aside     the
               impugned            communication                    dated
               26/05/2020 and impugned orders dated
               18/06/2020 and 15/06/2020 and or;


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B) By an appropriate writ order or direction direct the respondents to issue passport to the petitioner on the basis of the Birth Certificate bearing No. 08110005440041000003/2018 dated 26/08/1992 forthwith, without any further delay."

The brief facts pleaded in the writ petition are that the

petitioner hails from a rural background and erroneously her date

of birth was recorded as 26.08.1989 instead of 26.08.1992 in her

birth certificate which was issued on 18.12.2009 by Gram

Panchayat Sawai Jaisinghpura, Tehsil-Phagi, District-Jaipur (Raj.).

The petitioner has pleaded that she was married on

02.07.2014 and in her marriage certificate issued on 11.08.2016,

her correct date of birth was mentioned as 26.08.1992.

The petitioner has pleaded that she obtained a birth

certificate issued under the Registration of Birth and Death Act,

1969 (hereinafter referred to as 'the Act of 1969') read with the

Registration of Births and Deaths Rules, 2000 (hereinafter referred

to as 'the Rules of 2000'), wherein her correct date of birth was

mentioned as 26.08.1992 and said certificate was issued on

05.02.2018.

The petitioner has pleaded that she was issued passport

No.H9657895 on 03.05.2010 and same was valid upto 02.05.2020

and said passport showed date of birth of the petitioner as

26.08.1989.

The petitioner has pleaded that her passport was cancelled

by the respondents on account of discrepancies in the age

mentioned between the birth certificate and the marriage

(3 of 20) [CW-20055/2019]

certificate. The petitioner got her passport renewed in the year

2017 w.e.f. 31.08.2017 and same was valid upto 30.08.2027.

The petitioner has pleaded that she addressed her grievance

to the respondents via email and she was informed to get one of

the birth certificate cancelled and as such, her issue of correction

of date of birth in passport, was to be examined accordingly.

The petitioner has pleaded that in pursuance of email sent by

respondents, she filed S.B. Civil Writ Petition No.23266/2018

before this Court, raising a grievance of non-adjudication of her

representation, seeking cancellation of one of the birth certificate

out of two.

The petitioner has pleaded that this Court on 15.03.2019,

disposed of the writ petition with a direction to the Gram

Panchayat to consider and decide the representation of the

petitioner in accordance with law within a period of three months.

The petitioner has pleaded that in pursuance of the order

dated 15.03.2019, passed by this Court, the earlier birth

certificate of the petitioner dated 18.12.2009, was cancelled and

26.08.1992 was found to be correct date of birth.

The petitioner has pleaded that after cancellation of earlier

birth certificate, she approached the respondents, however, no

action was taken by the respondents.

The petitioner has pleaded that she also obtained

information under Right to Information Act about status of her

application and she was informed that no action was taken on it.

The petitioner has pleaded that during pendency of the writ

petition, the respondent No.2, issued impugned communication

dated 26.05.2020 through email, wherein it was informed that

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application for issuance of fresh passport has been stopped for the

reason "refuse to issue the passport or travel document or, as the

case may be, refuse to make on the passport or travel document

any endorsement."

The petitioner was further directed to submit a fresh

application with correct details and also submit an explanation

regarding alleged suppression of facts in the passport application

for initiation action under Section 5(2)(c) and Section 12(1)(b) of

the Passport Act, 1967 (hereinafter referred to as 'the Act of

1967').

The petitioner has pleaded that the petitioner after receipt of

impugned communication dated 26.05.2020, submitted a detailed

reply on 16.06.2020 before expiry of 21 days, as was mentioned

in the communication dated 26.05.2020.

The petitioner has pleaded that she received impugned

orders dated 15.06.2020 & 18.06.2020 on 24.06.2020, wherein

she was communicated that it was not possible to process her

application further and reasons for rejection of the application

were mentioned in order dated 15.06.2020.

The respondents have filed reply to the amended writ

petition.

The respondents have pleaded that the petitioner at first

instance obtained passport in the year 2010 on the basis of birth

certificate showing her date of birth as 26.08.1989 and

subsequently she renewed her passport in the year 2017 which

was valid upto 30.07.2017 and even while applying for renewal of

the passport, the petitioner disclosed her date of birth as was

entered in her earlier passport.

(5 of 20) [CW-20055/2019]

The respondents have pleaded that if there was any

discrepancy which crept initially in the year 2010, the petitioner

could have got the error rectified by submitting proper application

for correction in her date of birth and despite the fact that her

renewed passport was valid upto 30.08.2027, she submitted

another application for grant of passport in the year 2018

supported with a new birth certificate issued on 05.02.2018.

The respondents have pleaded that the petitioner at first

instance, submitted a birth certificate dated 15.12.2009, issued by

Registrar (Birth and Death), Directorate of Economics and

Statistics, Gram Panchayat Sawaijaipura, Panchayat Samiti Phagi,

District Jaipur while the second birth certificate dated 05.02.2018

was issued by Directorate of Economics and Statistics,

Government of Rajasthan, Jaipur and the said certificate was

issued on the basis of record available with the Local Body i.e.

Gram Panchayat Sawaijaisinghpura, Phagi, District Jaipur and as

such, the petitioner has procured the subsequent certificate

without following due process of law and further record of Gram

Panchayat was never compared before issuing subsequent date of

birth certificate and as such, the document i.e. the date of birth

certificate issued subsequently, is a fraudulent document.

The respondents have pleaded that the second birth

certificate issued on 05.02.2018 is subsequent to the date of

registration of marriage and as such, either same was issued on

the basis of some other fraudulent document or the marriage

certificate was also fraudulently obtained.

The respondents have pleaded that application for passport

and travel document are dealt with as per provisions of Section 5

(6 of 20) [CW-20055/2019]

of the Act of 1967 and Section 6 of the Act of 1967 provides for

refusal of passport and travel document.

The respondents have also pleaded that Section 10 of the Act

of 1967, empowers the Passport Authority to vary, impound and

cancel a passport.

The respondents have pleaded that provisions of Section 11

of the Act of 1967 provides for filing appeal against impugned

order challenged by the petitioner and as such, she has not

availed statutory remedy.

The respondents have also placed reliance on

Instructions/Guidelines issued by Ministry of External Affairs and

as such, Guideline 6 of the Chapter 3 deals specifically with the

change in date of birth and petitioner is not held entitled for

change of date of birth.

The respondents have pleaded that they received a report

from Principal of Government School, Sawaijaisinghpura and as

such, application of the petitioner for issuing passport was

rejected after giving suitable opportunity to explain by issuing a

show cause notice.

The respondents have pleaded that they had communicated

a show cause notice vide email dated 28.05.2020 and

communication clearly shows that the petitioner was required to

contact the respondent-Authorities within 21 days and no such

stipulation of filing of reply within 21 days of the notice was there

and in fact petitioner was required to file reply to the show cause

notice within 7 days.

(7 of 20) [CW-20055/2019]

The respondents have pleaded that second birth certificate

dated 05.02.2018 is a fraudulent document and as such, no

indulgence may be granted by this Court.

Learned Senior Counsel-Mr. Kamlakar Sharma appearing for

the petitioner has made following submissions:-

(1) The impugned communication dated 26.05.2020,

rejected the passport application of the petitioner and the order

was pre-determined as the petitioner was asked to file a fresh

application and such communication is contrary to principle of

natural justice.

(2) The impugned decisions dated 15.06.2020 &

18.06.2020, incorrectly records that the petitioner did not submit

any reply, while petitioner had filed reply before expiry of 21 days.

(3) The petitioner had submitted the reply within 21 days

in pursuance of communication dated 25.06.2020 and decision to

reject application of the petitioner was taken on 15.06.2020 even

before expiry of notice period. Accordingly, these orders are illegal

and contrary to the principle of natural justice. The impugned

orders dated 15.06.2020 and 18.06.2020 are passed without

application of mind and the only reason assigned in the impugned

order that the respondents have gone through the record and in

the facts and circumstances, considered the application to be

rejected, such reasoning is prima facie arbitrary and issued

without application of mind.

(4) The application of the passport of the petitioner could

only be rejected only on the ground mentioned in Section 6 of the

Act of 1967 and not on other grounds. Learned Senior Counsel

submitted that the respondents have not found any of the grounds

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mentioned in Section 6 to be violated by the petitioner and as

such, the impugned orders are contrary to the mandatory

provisions contained in Sections 5 and 6 of the Act of 1967.

(5) The birth certificate showing the correct date of birth of

the petitioner since was issued by the Competent Authority in

accordance with law as per provisions contained in the Act of 1969

and the Rules of 2000, the Passport Authorities had no jurisdiction

and power to question the validity of such certificate and the

presumption has to be drawn that the certificate is a valid

certificate for the purpose of date of birth of the petitioner.

(6) The petitioner has not been found guilty of violation of

any condition of passport or visa and as such, on assumptions and

presumptions, the respondents cannot doubt that the petitioner

has furnished false information or she has committed any illegality

in obtaining her correct date of birth certificate and as such, in

absence of any violation of any provision of the Act of 1967, the

impugned action of the respondents is not legally sustainable.

Learned counsel-Ms. Manjeet Kaur appearing for the

respondents has made following submissions:-

(1) The petitioner has filed fraudulent document before the

Passport Authorities and as such, the Authorities have rightly

passed the orders, rejecting the application of the petitioner for

issuance of passport.

(2) The Authorities were within their domain to collect

information from different sources about correct date of birth of

the petitioner and if after getting information from the relevant

sources i.e. School, etc. the date of birth of the petitioner is not

(9 of 20) [CW-20055/2019]

correctly shown, then the Authorities have right to reject the

application of the petitioner for issuance of passport.

(3) The petitioner after issuance of initial passport and later

on at the time of renewal also, nowhere, produced any document

to show that her date of birth was not 26.08.1989 but same was

26.08.1992 and as such, by procuring false birth certificate, no

right is created in favour of the petitioner to get a passport

showing date of birth as on 26.08.1992.

(4) The Authorities had sent show cause notice to the

petitioner by speed post and her reply was sought within 7 days

and since she failed to file reply to the show cause notice issued to

her, no violation of principle of natural justice has taken place.

(5) If the petitioner has requisite document in her favour

showing her correct date of birth, she is always at liberty to apply

afresh for issuance of passport and the Authorities will proceed to

consider such application in accordance with law and further

instructions issued by the Ministry of External Affairs from time to

time.

Learned Senior Counsel-Mr. Kamlakar Sharma has placed

reliance on the following judgments:-

1. CIDCO Vs. Vasudha Gorakhnath Mandevlekar (Civil

Appeal No.3615/2006), decided by the Apex Court on

15.05.2009.

2. Iswarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij

Company Ltd. & Ors., (2014) 6 SCC 434.

3. Sunita Sawhney & UOI & Ors. [W.P. (C) 10839/2015],

decided by the Delhi High Court on 03.12.2015.

4. Haji Manu Vs. UOI & Ors., 2014 (2) RLW 929 (Raj.)

(10 of 20) [CW-20055/2019]

5. Haran Chandra Halder Vs. The UOI & Ors. (2014) 4

CHN (CAL) 62.

6. Ms. Shilpi Vs. UOI & Ors. (S.B. Civil Writ Petition

No.6598/2014), decided by this Court on 10.08.2016.

7. Regional Passport Officer Vs. Kokilaben & Ors. (S.B.

Cr. Misc. Petition No.1761/2006, decided by the Gujrat High

Court on 05.12.2008.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court is firstly required to see the legality of

communication dated 26.05.2020, by which the respondents

refused to issue passport or travel document to the petitioner.

This Court finds that in the email dated 26.05.2020 sent by

the Passport Officer, to the husband of the petitioner, it was

informed that the processing of the application was stopped and

she was to give a suitable explanation and required to furnish a

fresh application with correct details. The said email was also

communicated regarding circumstances under which the petitioner

is said to have suppressed material information in passport

application and why action was not to be taken to reject the

application dated 19.06.2018 under Section 5(2)(c) of the Act of

1967 and why penal action under Section 12(1)(b) of the Act of

1967 was not to be initiated. The said email also specifically asked

the petitioner to contact within 21 days at the Regional Passport

Office, Jaipur.

This Court finds that the respondents have filed a show

cause notice with additional affidavit under Section 5(2)(c) of the

(11 of 20) [CW-20055/2019]

Act of 1967 dated 26.05.2020, wherein the petitioner was called

upon to provide suitable explanation within 7 days.

This Court finds that the respondents while sending the mail

on 26.05.2020, are asking the petitioner to contact the

respondents within 21 days and on the same day, show cause

notice is also said to be issued, whereby explanation is called

within 7 days from her.

This Court finds that the petitioner had filed her reply on

16.06.2020 i.e. within 21 days from the receipt of email dated

26.05.2020. This Court is at a loss to comprehend as on one

hand, the email sent to the petitioner is asking her to contact

within 21 days and on the other hand, the show cause notice

dated 26.05.2020, is seeking explanation of the petitioner within 7

days.

This Court further finds that the petitioner has specifically

pleaded that the alleged show cause notice dated 26.05.2020,

filed by the respondents with additional affidavit, was never

supplied to her and even otherwise the document does not bear

any signature or seal of the Regional Passport Officer, who is said

to have issued the said notice to the petitioner. The petitioner also

alleges that the respondent cannot issue two documents i.e.

26.05.2020 with the same Reference No.SCN/316024218/20

having variance in contents. This Court finds that the notice dated

26.05.2020 if was asking the petitioner to give the explanation

within 7 days, then the respondents have acted in arbitrary

manner and as such, it shows their pre-determination to reject the

application of the petitioner of passport and accordingly the

communication dated 26.05.2020 is not found in accordance with

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law. The respondents on one hand communicated in email that

they have refused to issue passport and in show cause notice they

seek reply in 7 days. This Act is self contradictory.

This Court is now required to consider validity of the order

dated 15.06.2020 and as such, the Authorities in exercise of

power conferred under Section 5(2)(c) of the Act of 1967, have

rejected the passport facilities to the petitioner. This Court, deems

it proper to extract the relevant Sections 5 & 6 of the Act of 1967,

hereunder:-

"5. Applications for passports, travel documents, etc., and orders thereon.-

(1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents. Explanation.- In this section, "named foreign country"

means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.

(1A) An application for the issue of-

(i) a passport under this Act for visiting a named foreign country; or

(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or

(13 of 20) [CW-20055/2019]

travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed. (1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.

(2) On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,-

(a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or

(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or

(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.

(3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief

(14 of 20) [CW-20055/2019]

statement of its reasons for making such order and furnish to that person 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 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 to furnish such copy.

6.    Refusal        of      passports,               travel
      documents. etc.
(1)   Subject to the        other provisions of this

Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: -

(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India:

(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;

(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country,

(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.

(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for

(15 of 20) [CW-20055/2019]

visiting any foreign country under clause

(a) that the applicant is not a citizen of India.,

(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India.,

(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;

(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;

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(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;

(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest."

This Court on a bare perusal of sub-Section (2)(c) of Section

5 finds that the Passport Authority has power to refuse to issue

passport or a travel document then it has to record in writing and

brief statement or reasons for making a such order.

The bare perusal of the impugned order only makes a

reference that the school certificate which was submitted by the

petitioner at the time of issuance of first passport was sent to the

concerned Authority to confirm its genuineness and correct date of

birth, as per school record but the School Transfer Certificate

Issuing Authority, confirmed the date of birth of the applicant-

petitioner as 26.08.1989, as per school record.

This Court finds that the Passport Authority can refuse to

issue a passport under Clause (c) of sub-section (2) of Section 5

on various grounds as enumerated in sub-section (2) of Section 6

from grounds (a) to (i).

The perusal of the said Section does not bring the case of the

petitioner in any of the contingencies, where passport of the

petitioner can be refused.

This Court finds that the Passport Authority has erroneously

usurped power of the Authority, who is competent to issue the

(17 of 20) [CW-20055/2019]

birth certificate under the provisions contained under the Act of

1969 and the Rules of 2000.

This Court finds that the Passport Authorities are not

expected to make their own independent enquiry, if there is a

dispute or differences with regard to the date of birth, place of

birth or name entered in the passport, especially when such

entries are made on the basis of records, produced by the

passport holder.

This Court further finds that if there is any mistake on the

record already produced, based on which, entries were already

made, then it is for the party, who seeks correction to produce the

documents after carrying out necessary correction by the

concerned Statutory Authorities, Judicial Magistrate or the Civil

Court, as the case may be. The Passport Authorities are always

within their competence to direct the parties to produce relevant

documents either from the Authorities functioning under the Births

& Deaths Registration Act or from the Judicial Magistrate or from

the Civil Court, as the case may be. On production of corrected

documents, the Passport Authorities are required immediately to

carry out necessary correction in the passport.

This Court, considering the above scope of power of Passport

Authorities, finds in the present facts of the case, that if petitioner

has been issued a birth certificate by the Authorities, showing her

date of birth as 26.08.1992 and her previous birth certificate has

been cancelled by the Competent Authority, then in such

circumstances, the Passport Authorities could not have assumed

the power of treating the birth certificate of the petitioner as

having obtained by any fraudulent means.

(18 of 20) [CW-20055/2019]

This Court finds that the petitioner, who was having two birth

certificates at one point of time, had approached this Court for

directing the Authorities to cancel the earlier certificate of date of

birth of the petitioner, and finally same remains no more in

existence and only the subsequent certificate of date of birth can

be said to be a valid document, existing in favour of the petitioner

and as such, she is required to be considered for showing her

corrected date of birth in different documents including the

passport document.

The submissions of learned counsel for the respondents that

the petitioner was given show cause notice and she failed to file

reply is liable to be rejected in view of earlier findings recorded by

this Court.

The submission of learned counsel for the respondents that

the petitioner has obtained second birth certificate in fraudulent

manner and she never informed the Authorities even at the time

of renewal of the passport in the year 2017, suffice it to say by

this Court that if date of birth of the petitioner has correctly been

shown by issuing a subsequent certificate of date of birth, she was

within her right to reflect correct date of birth in her passport and

accordingly she had made applications for issuance of passport

before the Authorities as the earlier passport was cancelled by the

respondents.

The submission of learned counsel for the respondents that

the Passport Issuing Authority has adequate information from the

School Authorities about correct date of birth of the petitioner to

be 26.08.1989 and petitioner having supplied and suppressed

material information, could not have been issued the passport,

(19 of 20) [CW-20055/2019]

suffice it to say by this Court that the information so gathered

from the School Authorities about date of birth of the petitioner,

was not to have much relevance after the first certificate of date

of birth of the petitioner was cancelled by the Competent Authority

under the provisions of the Act of 1969 and the Rules of 2000.

The scope of enquiry by the Passport Authorities has also

been considered by the Gujrat High Court in the case of Regional

Passport Officer Vs. Kokilaben & Ors. (supra). The relevant

portion of the judgment is quoted as hereunder:-

"12. We are therefore, clearly of the view that Passport Authorities are not expected to make their own independent enquiry when there is a dispute or difference with regard to the date of birth, place of birth or name entered in the Passport, especially when entries were once made on the basis of records produced by the Passport holder. If there is any mistake on the record already produced, based on which entries were already made, then it is for the party who seeks correction to produce documents after carrying out necessary correction by the concerned statutory authorities, Judicial Magistrate or the Civil Court, as the case may be. Passport Authorities are always competent to direct the parties to produce relevant documents either from the authorities functioning under the Births and Deaths Register or from the Judicial Magistrate or from the Civil Court, as the case may be.

On production of corrected documents, Passport Authorities will immediately carry out necessary correction in the Passport."

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                                         Accordingly,    this      Court        finds       that    the   impugned

communication dated 26.05.2020 and orders dated 15.06.2020 &

18.06.2020 are not legally sustainable and same are hereby

quashed and set-aside.

This Court further directs the petitioner to make fresh

application to the Regional Passport Officer, Jaipur along with all

supportive documents, including the certificate of date of birth of

the petitioner, showing her to be born on 26.08.1992 and the

respondent-Authorities shall consider the documents so submitted

by the petitioner and will decide the application of the petitioner,

preferably within a period of six weeks from the date of its receipt.