Kerala High Court
Shirley George vs Union Of India on 10 October, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940
WP(C).No. 32000 of 2018
PETITIONER/S:
SHIRLEY GEORGE
AGED 51 YEARS
D/O K.M. GEORGE, KADUTHATTU HOUSE, KANGAZHA,
KOTTAYAM, KERALA 686 541
BY ADVS.
SRI.K.SHAJ
SRI.ARUN CHAND
SRI.C.IJLAL
SRI.RENJIT GEORGE
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF EXTERNAL
AFFAIRS, SOUTH BLOCK, CANINET SECRETARIAT, RAISINA
HILL, NEW DELHI 110 011
2 THE PASSPORT OFFICER,
REGIONAL PASSPORT OFFICE,
PASSPORT OFFICE BUILDING, PANAMPALLY NAGAR,
ERNAKULAM-682036.
3 PASSPORT SEVA KENDRA,
4-SQUARE PLAZA, M.C.ROAD,
OPP.MAHADEVA TEMPLE, NAGAMBADAM, KOTTAYAM-686001.
4 AAMIR SUHAIL,
KADCO HOLDINGS,
NEAR MASJID JUNCTION, KANGAZHA, KOTTAYAM-686541.
BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
CGC. SRI. JAISHANKER V. NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 32000 of 2018 2
JUDGMENT
The petitioner, initially an Indian citizen, acquired Australian citizenship in 2006 . As she frequents India often, in July 2008 she also secured an Overseas Citizen of India Card (OCI Card). On 06.01.2016, the petitioner had her Australian Passport renewed, and by then she crossed 50 years,too. So she wanted to have the OCI Card reissued by the Indian Passport Authority. For want of time, she entrusted the paper work to a travel agent, on her visit to India.
2. But the travel agent was ignorant about how to get the petitioner's OCI Card reissued; so, mistakenly, he applied for a fresh Indian Passport. On verifying the petitioner's documents, the 2nd respondent authority seized the petitioner's Australian Passport. Indeed, the petitioner's applying for the Indian Passport while she holds an Australian Passport is impermissible--even an offence. Under these circumstances, the petitioner has filed this writ petition. Pending this writ petition, the petitioner has also received the show cause notice (not produced here) from the 2nd respondent. WP(C).No. 32000 of 2018 3
3. In the above factual backdrop, the petitioner's counsel submits that the petitioner, a woman, is an employee in Australia. She had her Australian Passport renewed recently. And with the OCI Card, she enjoys almost all the benefits an Indian citizen enjoys. So there was no occasion for the petitioner to apply for a fresh Indian Passport. Nor has she anything to gain from that attempt. He repeatedly stresses that only for want of time has the petitioner entrusted to the travel agent the task of getting OCI reissued. And that inexperience, ignorant travel agent burgled the issue.
4. To elaborate, the learned counsel submits that as the procedure of getting the OCI reissued is not often taken recourse to. So, out of ignorance, the travel agent has mistakenly applied for a fresh Indian Passport for the petitioner.
5. In response, the learned Central Government Counsel submits that the petitioner has already received a show-cause notice from the 2nd respondent. She can as well put forward her defence and invite an order from that authority. According to him, anyone trying to get an Indian Passport while holding the passport of another WP(C).No. 32000 of 2018 4 Country is an offence under Section 12(1A)(a) of the Passport Act, 1967.
6. In reply, the petitioner's counsel submits that the petitioner must leave the Country on 16.10.2018 lest she should lose her employment. He also submits that the petitioner herself, first, tried to access the Ministry's Website to get the OCI card reissued. But it has not provided her any access. Only under those compelling circumstances had she, next, entrusted the task to the travel agent. And the travel agent, in turn, applied for the passport--mistakenly though.
7. To elaborate, the learned counsel has also submitted that the 2nd respondent has come to know about the lapse based only on the documents the petitioner's travel agent has attached. Had the petitioner got any ulterior motive, she would not have submitted even the OCI Card, which disables her from getting a passport.
8. Heard the learned counsel for the petitioner and the learned Central Government Counsel for the respondents.
9. Indeed, the petitioner is an Australian Citizen, holding an OCI Card issued by the Ministry of Home WP(C).No. 32000 of 2018 5 Affairs. The Brochure containing Guidelines for Overseas Citizen of India Cardholders mandates the procedure for having the OCI Card reissued. Paragraph 9 of those guidelines deals with 'important instructions.' The first instruction reads:-
"The Overseas Citizen of India Card holder registration is required to be got re-issued each time a new passport is issued up to the age of 20 years and once after completing 50 years of age in view of biological changes in the face of the applicant. For this purpose, please long on to http://passport.gov.in/oci.
10. From the above extract, I gather that each time a new passport is issued (with age restriction) or once the passport holder completes 50 years, she must have the OCI Card reissued. This requirement vis-à-vis a new passport applies until the applicant attains 20 years age. Here, this condition may not apply. On the other hand, the passport holder completing 50 years, the reissuance is a must because of the applicant's facial changes. So the petitioner, who has recently crossed 50 years, has applied for reissuance of the OCI Card.
11. Though technically treated, the petitioner's applying, even through a travel agent, for a new passport is an offence, for she already holds another country's WP(C).No. 32000 of 2018 6 passport. But the circumstances, as set out in the writ petition and as pleaded by the petitioner's counsel, exonerate the petitioner's lapses, if any. Practically viewed, there is nothing the petitioner gains from securing an Indian passport, besides having an OCI Card. They both are incompatible; one excludes the other. More particularly, the petitioner works and lives in Australia, which country's passport she already holds.
12. This Court was initially inclined to let the petitioner reply to the 2nd respondent's show cause notice and then invite an order. But the petitioner's counsel pleads that unless she secures the Australian Passport and goes back to Australia by 16.10.2018, she is likely to lose her employment.
13. Under these circumstances, taking a lenient view, more particularly to save the petitioner's carrier, I dispose of the writ petition, holding that the 2 nd respondent will receive the petitioner's explanation and pass orders. If the 2nd respondent is not inclined to condone the petitioner's lapse, he may continue the further proceedings. But, pending those proceedings, he will deliver the passport provisionally to the petitioner WP(C).No. 32000 of 2018 7 on her undertaking to come back and face the enquiry whenever the 2nd respondent notifies her. In that event, if necessary, the 2nd respondent may require the petitioner to provide security to ensure her return.
14. That said, I also clarify that by merely indicating the alternatives, I have neither suggested the course of action the 2nd respondent should take nor curtailed his discretion. The 2nd respondent, therefore, will take a decision, keeping in view the totality of circumstances. Let the entire exercise be completed by 14.10.2018.
With the above directions, I dispose of the writ petition. No order on costs.
Sd/-
DAMA SESHADRI NAIDU JUDGE Hmh WP(C).No. 32000 of 2018 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A PHOTOCOPY OF ONE OF THE OLD PASSPORTS OF THE PETITIONER HAVING NO.B067797 ISSUED ON 30.6.1986 BY THE REGIONAL PASSPORT OFFICE, NEW DELHI.
EXHIBIT P2 A PHOTOCOPY OF THE AADHAR CARD OF THE PETITIONER HAVING NO.956220065266.
EXHIBIT P3 A PHOTOCOPY OF THE AUSTRALIA ENTRY VISA OF THE PETITIONER.
EXHIBIT P4 A PHOTOCOPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER AS AN OVERSEAS CITIZEN OF INDIA.
EXHIBIT P5 A PHOTOCOPY OF THE AUSTRALIAN PASSPORT HAVING NO.PA5972883 OF THE PETITIONER. EXHIBIT P6 A PHOTOCOPY OF THE ONE YEAR VISA HAVING NO.VJ6980479 TAKEN BY THE PETITIONER. EXHIBIT P7 A PHOTOCOPY OF THE PASSPORT APPLICATION FORM SUBMITTED BY THE FOURTH RESPONDENT ON BEHALF OF THE PETITIONER.
RESPONDENT'S EXHIBITS : NIL //True copy// PA to Judge