State Consumer Disputes Redressal Commission
The Regional Passport Office vs Rashpal Singh on 4 October, 2023
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.601 of 2022
Date of Institution: 08.07.2022
Reserved on : 12.09.2023
Decided on : 04.10.2023
The Regional Passport Office, SCO No.42-51, Pocket-1, Near Bus
Stand Jalandhar-144001 through its Regional Passport Officer
.....Appellant/opposite party
Versus
Rashpal Singh son of Sh. Sain Dass, resident of village Chawa, PO
Pul Tibri, Tehsil and District Gurdaspur-143 521
.....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against
order dated 28.04.2022 passed by District
Consumer Commission, Gurdaspur
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member.
Ms. Kiran Sibal, Member.
Present:-
For the appellant : Sh. Indresh Goel, Advocate For respondent : Sh. Bhavesh Aggarwal, Advocate KIRAN SIBAL, MEMBER:-
This appeal has been preferred by the appellant against order dated 28.04.2022 passed by District Consumer Disputes Redressal Commission, Gurdaspur (in short, "the District Commission"), whereby the complaint filed by appellant/complainant First Appeal No.601 of 2022 2 against respondent/opposite party (in short 'OP') was party allowed as under:-
"In the light of the all above, we partly allow the present complaint and thus order the OP office to pay the complainant Rs.1,20,000/- on account of the Air-Ticket Loss @ 6% PA from the date of its purchase till actual realization and another Rs.50,000/- as lump-sum compensation for the remaining financial loss as well as for his having suffered other hardships etc., besides Rs.5,000/- as cost of litigation; all, payable within 45 days of receipt of the copy of these orders."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts, as averred in the complaint, are that complainant was holder of Indian Passport bearing No.L-1088614 issued by the OP. The son of the complainant, who is permanently residing in Canada, booked two tickets of Rs.1,20,000/- each for the complainant and his wife to visit Canada on Tourist Visa. The complainant along with his wife had to go to Canada on 06.03.2019 and to return back on 12.04.2019. Accordingly, the complainant along with his wife reached at Indira Gandhi International Airport, New Delhi, on the scheduled date and time but the Airport Authority did not allow the complainant to travel to Canada. The complainant approached the concerned official of the Airport Authority and put the query with regard to the said refusal. But he did not give any satisfactory reply rather impounded the Passport of the complainant, vide seizure Memo Dated 05.03.2019, and sent the same to the OP First Appeal No.601 of 2022 3 without assigning specific reason. The complainant was compelled to send his wife alone to Canada, who is a household lady and never travelled alone even in India. Thereafter, the complainant visited the OP office at Jalandhar time and again but of no use. However, on 25.03.2019, the complainant received his passport with Enquiry Slip sent by the OP through ordinary post at his residential address. On inquiry, the officials of the OP disclosed that due to some incomplete on-line updation with regard to the passport of the complainant, the airport authority did not allow him to travel and further told that all the formalities/updations are completed. The complainant alleged that due to sheer negligence of the OP office with regard to non-updating the requisite information on its online system, he and his wife suffered great mental agony, pain and harassment at the hands of the OP. Hence, the complainant filed the consumer complaint before the District Commission and sought directions against the OP to pay Rs.1,70,000/- which includes Air Ticket charges, hotel fair, taxi charges along with interest @ 9% PA and further to pay Rs.3,00,000/- as compensation for harassment, pain and mental agony and Rs.20,000/- as cost of litigation.
4. The complaint was contested by the OP, who filed reply and raised certain preliminary objections, inter alia, that the complaint was not maintainable; the complainant was neither consumer under the Consumer Protection Act, nor the OP was a service provider and the function was required to be exercised under First Appeal No.601 of 2022 4 the provisions of Passport Act, which was a sovereign function; the issue of passport was not fall under a consumer dispute and under Section 16 of the Act, no suit, prosecution or other legal proceedings would lie against government or any officer or authority or anything which was in good faith done or intended to be done under the Act. The OP further stated that passport No.L-1088614 came to be issued on 02.08.2013 on post police verification report. Subsequently, on receipt of adverse report from the police authorities on 26.09.2013, the passport office was constrained to impound the said passport on account of suppression of material information of Registration of FIR No.34/95 against the complainant as well as non reply of letter dated 11.10.2013 issued by the OP to the complainant. Thereafter, on receipt of clearance report from the police authorities on 29.10.2013, the passport was released immediately. After denying the other averments made in the complaint, the OP prayed for dismissal of the complaint.
5. The parties led there evidence in respect of their respective contentions before the District Commission. The District Commission, after going through the record and hearing learned counsel on their behalf, partly allowed the complaint of the complainant, vide impugned order as above. Aggrieved with the same the present appeal has been preferred by the appellant/OP.
6. We have heard the learned counsel for the parties and have also carefully gone through the record of the case. First Appeal No.601 of 2022 5
7. The learned counsel for the appellant/OP has vehemently contended that the impugned order passed by the District Commission is highly erroneous being a totally non-speaking order in terms of being silent on the most important issue of maintainability and having required jurisdiction to entertain the complaint. The Learned counsel further contended that issuance of a passport being a sovereign function and passport not being a commodity and only a valid permission for citizen to enter another nation respectfully, does not fall under the ambit of the Consumer Protection Act, 2019 being not a service. This view has been time and again upheld in a number of judgments passed by this Commission as well as other courts. In support of his contention the learned counsel has relied upon the following judgments:-
i) Passport Officer Vs. Avtar Singh, in FA No.856 of 2012 decided by this Commission on 08.10.2015.
ii) S. Vijyakumar Vs. Regional Passport Officer, Revision Petition No.3322 of 2009, decided by Hon'ble National Commission on 10.04.2015.
iii) Passport Officer Vs. Ajay Bansal, Revision Petition No.3785 of 2013, decided by Hon'ble National Commission on 13.03.2015.
The learned counsel has further submitted that the passport office is discharging its sovereign functions and small error if any cannot be taken to the doors of the courts. It was also the duty of the complainant, the embassy officials, who have granted visa, and the travel agency, which had issued the ticket, to fully check and satisfy themselves about the validity and authenticity of the passport before proceeding further, which apparently has either not been done in the First Appeal No.601 of 2022 6 present case or had taken it in a casual manner. Further, alleging no deficiency in service on the part of the appellant/OP the learned counsel prayed for acceptance of the present appeal by setting aside the impugned order.
8. On the other hand, the learned counsel for the respondent/complainant has contended that there is no perversity and illegality in the impugned order and the District Commission has rightly allowed the complaint in favour of the respondent/complainant. A bare perusal of the contents of the reply filed by the appellant/OP, clearly elucidate that after receipt of the clear police report on 29.10.2013, the complainant/respondent was to release his passport immediately. But due to the deficiency in service and negligence on the part of the appellant, the same has not been updated in their system, whereby, the respondent/complainant was restrained from traveling to Canda. The respondent/complainant falls under the definition of 'Consumer' and the appellant/OP falls under the definition of 'Service Provider' under the Act. In support of his contentions, the learned counsel relied upon the judgment of Hon'ble National Commission in the case of "Passport Officer Vs. Richa Bhandari", passed on 16.03.2016 in Revision Petition No.120 of 2015 and Judgment of Chandigarh State Consumer Commission in the case of "Regional Passport Officer Vs. Gurpiara Dass Aggarwal and others", in FA No.35 of 2022 First Appeal No.601 of 2022 7 decided on 19.07.2022 and prayed for dismissal of the present appeal.
9. We have given our thoughtful consideration to the rival contentions raised by the learned counsel for the parties.
10. Admittedly the respondent/complainant was holding a passport bearing No.L-1088614 (Ex.C-7) issued by the OP on 02.08.2013 valid till 01.08.2023. It is also an admitted fact that when the complainant reached at Indira Gandhi International Airport, New Delhi, on 05.03.2019 for the purpose of his visit to Canada on tourist Visa, the Airport Authority did not allow him to travel and seized his passport, vide seizure Memo dated 05.03.2019, Ex. C-2, on the ground of "DRKS Status 'Impounded". The respondent/complainant alleged that due to sheer negligence of the OP office with regard to non-updating the requisite information on its online system, he had suffered great mental agony, pain and harassment at the hands of the OP. Hence, he filed the consumer complaint before the District Commission, which has been partly allowed in his favour, vide impugned order as above.
11. The grievance of the appellant/OP is that the impugned order passed by the District Commission is highly erroneous, illegal, without jurisdiction and against the settled law as the issuance of a passport being a sovereign function and not being a commodity and as only a valid permission for citizen to enter another nation First Appeal No.601 of 2022 8 respectfully, it does not fall under the ambit of the Consumer Protection Act, 2019 being not a service.
12. The foremost legal question to be determined in this appeal is, whether a person, who applies for a passport and to whom a passport is ordered to be issued, is a Consumer as defined in Consumer Protection Act? And also whether non-updation of requisite information on its system by the appellant/OP amounts to deficiency in service or negligence on its part or not?
13. No doubt, the issuance of the passport or making any correction in it by the Central Government or by any authority empowered under the Passport Act is a sovereign act, which has to be performed by the authorities according to the prescribed rules. Every passport application passes through prescribed internal security procedures as well as the same is investigated through security agencies, such as police and CID etc. The Passport Act also provides for refusal/impounding/revocation and appeal procedures under Sections 6, 10 and 11 of the said Act. But the larger bench of the Hon'ble National Commission in the case titled as "Passport Officer Vs. Richa Bhandari", in RP No.120 of 2015 decided on 16.03.2016(Supra) has addressed to the following issues:-
Whether a person, who applies for a passport and to whom a passport is ordered to be issued, is a Consumer as defined in Consumer Protection Act;First Appeal No.601 of 2022 9
Whether the delay in preparation and issue of passport, after the Passport Officer has decided to issue passport to the applicant, or any other deficiency thereafter constitutes defect or deficiency in the services as defined in Section 2(1)(f) and 2(1)(g) respectively of the Consumer Protection Act;
Whether any defect in the document of passport issued to a person would constitute defect or deficiency as defined in Section 2(1)(f) and 2(1)(g) respectively of the Consumer Protection Act.
It is held as follows :
(1) A person, who applies for a passport and to whom a passport is ordered to be issued, is a consumer as defined in the Consumer Protection Act. We make it clear that he will be a consumer only in respect of the activities which the Passport Office or the agency to which such activities are outsourced, undertakes, after the decision of the Passport Officer to issue a passport to the applicant;
(2) An unjustified delay in preparation, issue, dispatch and delivery of the passport, occurring after the Passport Officer has decided to issue passport to the applicant or any other defect or deficiency in the activities post the decision of the passport officer to issue a passport to the applicant, would constitute defect or deficiency in the service as defined in Section 2(1)(f) and 2(1)(g) respectively of the Consumer Protection Act and a consumer complaint, seeking compensation for such a defect or deficiency is maintainable;
(3) any defect or deficiency in the document of passport issued to a person would constitute defect or deficiency as defined in Section 2(1)(f) and 2(1)(g) respectively of First Appeal No.601 of 2022 10 the Consumer Protection Act and a consumer complaint, seeking compensation for such a defect or deficiency is maintainable.
14. In the case in hand, the stand of the respondent/ complainant is that he has been holding a passport issued by the appellant/OP on 02.08.2013 valid till 01.08.2023, but due to some incomplete on-line updation on the part of appellant/OP with regard to his passport, the airport authority did not allow him to travel to Canada and seized his passport. On the other hand, the case of the appellant/OP is that the passport in question was issued on 02.08.2013 on post police verification report, but subsequently, on receipt of adverse report from the police authorities on 26.09.2013, the passport office was constrained to impound the said passport on account of suppression of material information of Registration of FIR No.34/95 against the complainant as well as non reply of letter dated 11.10.2013 issued by the OP to the complainant.
15. It is not in dispute that the appellant/OP had impounded the passport issued to the complainant on receipt of adverse report from police authorities on 26.09.2013 but the appellant/OP has itself stated at Para No.6 of its written reply that "On receipt of clear police report on 29.10.2013, the passport was released immediately". Hence, it is proved on record that impoundment of the passport of the complainant had been released after receipt of clear police report in the year 2013 itself and the respondent/complainant was holding a valid passport at the time of his visit to Canada. Hence, we found First Appeal No.601 of 2022 11 force in the contention raised by the respondent/complainant that he has been holding a passport issued by the appellant/OP on 02.08.2013 valid till 01.08.2023, but due to some incomplete on-line updation on the part of appellant/OP with regard to his passport, the airport authority did not allow him to travel to Canada and seized his passport due to negligence on the part of the appellant/OP. Therefore, the matter in dispute is with regard to non-updation of requisite information on the official website by the passport office after the issuance of the passport to the respondent/complainant. Accordingly, the respondent/complainant duly falls under the definition of 'Consumer' as defined under the Consumer Protection Act as has been held by the Hon'ble National Commission in the case of "Passport Officer Vs. Richa Bhandari (Supra)", that any defect or deficiency in other activities by the passport office or the agency to which such activities are outsourced, undertakes, post the decision of the passport officer to issue a passport to the applicant, would constitute a defect or deficiency in service as defined under the Consumer Protection Act.
16. We go further to determine the legal question that arises out of the present case, that the complainant to fall under the provisions of the Consumer Protection Act for an act of deficiency alleged against the passport office is to be seen whether such a service was rendered before the issuance of the passport or afterwards. We are further fortified with the latest judgment of First Appeal No.601 of 2022 12 Hon'ble National Commission in the case of "Henry Lawrence Managalnath vs Passport Officer," in Revision Petition No.4801 of 2013 decided on 15.11.2019, wherein a similar view has been taken. The relevant part is reproduced as under:-
"10 After the passport is ordered to be issued, an unjustified delay in preparation, issue/dispatch and delivery of the passport, occurring after the Passport Officer has decided to issue the Passport to the Applicant or any other defect or deficiency in the activities post decision of the Passport Officer to issue the Passport to the Applicant, would constitute a defect or deficiency of service. Hence, the Complainant in the instant case, whose main grievance is with respect to the delay in dispatch of the Passport, after admittedly the Passport Officer has decided to issue the Passport, is a 'Consumer', as defined under Section 2(1)(d) of the C.P. Act, and as observed in the afore-noted judgment."
17. In view of our above discussion and cited authorities, we are of the considered opinion that the circumstances in the present case rightly endorses the fact that there has been deficiency in service and negligence on the part of the appellant/OP for non- updation of requisite information on its online system, for which it is liable to compensate the respondent/complainant for the loss he had suffered and also on account of harassment that he had to undergo. The District Commission has rightly observed as under:-
"18. We find that the complainant had been the rightful holder of Passport No.L-1088614 issued to him on 02.08.2013 and its impounding and subsequent release etc. should have been urgently intimated to him but these were never brought to his knowledge till the passport was finally seized at New Delhi Airport on 05.03.2019 i.e. the First Appeal No.601 of 2022 13 stark omission continued to stay uncorrected for a period of six years.
19. We hold the OP office negligent in his acts/omissions pertaining to the complainant's passport and thus it does not stand entitled to avail of legal prosecution available to acts/omissions committed in 'good faith' under the Passport Act, 1967. As already, explained hereinabove as act/omission committed in 'negligence' cannot be said to have done in 'good faith'.
18. Sequel to our above discussion, we find that the District Commission has rightly decided the case and there is no material infirmity and irregularity in the order of the District Commission. Finding no merit in this appeal filed by the appellant/OP, the same is hereby dismissed & the order of the District Commission is upheld.
19. The appellant/OP had deposited an amount of Rs.87,500/- at the time of filing the appeal with this Commission. This amount alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. Respondent/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
20. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER October 4, 2023.
(Dv)