National Consumer Disputes Redressal
Passport Office & Anr vs Ira Sharma on 16 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1758 OF 2023 (Against the Order dated 01/03/2023 in Appeal No. A/474/2019 of the State Commission Delhi) 1. PASSPORT OFFICE & ANR REGIONAL PASSPORT OFFICE, HUDCO TRIKOOT-3, BHIKAJI CAMA PALACE, R.K. PURAM, NEW DELHI 110066 SOUTH DELHI 2. MINISTRY OF FOREIGN AFFAIRS, GOVT. OF INDIA, JAWAHAR LAL NEHRU BHAWAN, OPP. NATIONAL MUSEUM, RAJPATH, NEW DELHI CENTRAL DELHI ...........Petitioner(s) Versus 1. IRA SHARMA R/O E-202, NAGARJUNA APARTMENTS, MAYUR VIHAR-I, NEW DELHI-110096 EAST DELHI ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONER : MR. VIKRANT N GOYAL, ADVOCATE FOR THE RESPONDENT : FOR RESPONDENTS : MS. IRA SHARMA, IN PERSON
Dated : 16 February 2024 ORDER
1. The present Revision Petition has been filed by the Petitioner under Section 58(1)(b) of the Consumer Protection Act, 2019 (hereinafter referred to as the "Act") against impugned order dated 01.03.2023, passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the 'State Commission') in First Appeal No. 474 of 2019. In this appeal, the Petitioners/ Opposite Parties appeal was dismissed, thereby affirming/upheld the Order dated 01.05.2019, passed by the District Consumer Disputes Redressal Commission-VII, (South-West District), Delhi, (the "District Commission") in Consumer Complaint No. 485 of 2013 wherein the complaint filed by the Complainant/Respondent was allowed.
2. There was a delay of 53 days in filing the present Revision Petition. For the reason stated in the Application seeking condonation of delay bearing No. IA/9449/2023, the delay is condoned.
3. For convenience, the parties are referred to as placed in the original Complaint filed before the District Commission.
4. Briefly, the facts of the case, as per the Complainant are that she applied for a passport (File No. A029679) on 06.05.2011 along with requisite fee of Rs. 1,000/- to the passport office. However, the OP1 failed to issue the passport within the stipulated three-months period. Despite numerous emails sent by the Complainant, no response was received. In the interim, the Complainant's father filed a Right to Information (RTI) request to the Public Information Officer (PIO) on 30.04.2012, which was responded to on 25.05.2012. The RTI reply indicated that the Application status was "pending as the Police Verification Report from SSP Bangalore was awaited." Dissatisfied, an appeal to the Appellate Authority was made, but the response stated that no further action was warranted on the RTI request. Subsequently, an appeal was filed with Central Information Commission (CIC) on 31.01.2013, receiving the following response: "The fact remains that the passport applicant could not get a passport even after two years of her applying for it, and now her case is closed. The system should be more responsive in such cases and should have the arrangement to inform the passport applicant whose application is being filed or closed for whatever reason". The Complainant further contended that due to the non-issue of passport, she lost a career opportunity with 'Deloitte' (MNC). Perceiving the actions of the Opposing Parties (OPs) as deficient in service, she filed Consumer Complaint No. 458 of 2013, seeking compensation of Rs.5,00,000/- for loss of professional opportunities, Rs.10,000/- for mental agony, and Rs.1,000/- towards litigation costs.
5. In response, the OPs raised an objection, contending that the Complainant is not a consumer. They explained that the case underwent local police verification, and due to the Complainant's stay being less than 1 year, the verification could not be completed. The verification report from the Senior Superintendent of Police (SSP) Bangalore was pending, leading to the delay in decision on issue of passport. Additionally, they emphasized that no specific timeframe is prescribed for passport issuance, and it was only granted upon receiving a clear police verification report, contingent on all other documents being in order. The closure of file No. A29679/11 in the National Informatics Centre (NIC) system and the introduction of new computer system at TCS were cited as reasons for no deficiency in service on the part of OPs. Further, OPs alleged that the Complainant attempted to conceal accurate information. The OPs prayed for the dismissal of the complaint, along with the exemplary costs.
6. In her Rejoinder, the Complainant stressed that she qualifies as a consumer having made a payment of Rs.1,000/- as fees for issue of passport. The OPs failed to communicate the closure of the file under the National Informatics Centre (NIC) system to the Complainant. As of 14.06.2013, the official website still indicated that the case was pending, and no communication regarding the closure was received from the OPs.
7. The District Commission in its Order dated 01.05.2019 allowed the complaint and granted the following relief to the Complainant:
"The OPs did not submit any exemplary evidence to show that the Complainant/applicant was duly informed about the reasons for delay in the issuance of passport as per normal office procedure and what further action was taken by the Department to expedite the requisite information from SSP Bangalore. We have also noted that the Complainant was offered an opportunity to go abroad for joining MNC but could not proceed abroad. Therefore, keeping in view all the above factors, we hold the considered view that the Complainant had succeeded in establishing a case of deficiency in service on the part of OPs for non-issuance of passport and no reply was sent to the applicant about the status of her application during a considerable period and therefore we direct the OPs to issue the passport without further delay, if not already issued to the Complainant and also to pay a sum of Rs. 1,50,000/- as compensation for the deficiency in service and the mental agony suffered by the Complainant and her family members, due to non-issuance of passport to the applicant, by the OPs, jointly and severally. A reference to is invited to the case of passport office v/s Richa Bhandari, III(2016)CPJ 581 (NC), wherein the unjustified delay constitutes deficiency in service as defined in sec. 2(1) (f) and sec 2(1)(g) of Consumer Protection Act, 1986.
We also direct the OP to make the payment of Rs. 10,000/- towards cost of litigation to the Complainant. The total amount of Rs.1,60,000/- shall be payable within the period of 30 days from the receipt of this order and in case of failure to do so by the OPs, the OPs shall be liable to pay interest @9% pa on the total amount of Rs.1,60,000/- from the date of filing of this complaint in this forum to the date of realization jointly and severally. Copy of the order is to be supplied to all concerned parties free of cost as statutorily required."
8. Being aggrieved by the District Forum order, the Appellants/ OPs filed Appeal No. 474 of 2019 before the State Commission. The State Commission vide order dated 01.03.2023 dismissed the Appeal, with the following observation: -
"10. Therefore, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to interfere in the findings of the District Commission. In view of the above discussion, we uphold the judgment dated 01.05.2019 passed by the District Consumer Disputes Redressal Commission - VI, New Delhi 110002. Accordingly, the present Appeal stands dismissed with no order as to costs.
11. Further, the Appellant is directed to comply with the directions given in the impugned judgment dated 01.05,2019 within a period of one month from the date of present judgment i.e. by 01.04.2023 and if in case, the Appellant fails to refund the awarded amount on or before 01.04.2023, the entire amount is to be refunded along with a simple interest @ 9% p.a. calculated from the date of impugned judgment i.e. 01.05.2019 till the actual realization of the amount."
9. Being dissatisfied by the Impugned Order dated 01.03.2023 passed by the State Commission, the Petitioners / OPs have filed the instant Revision Petition bearing no. 1758 of 2023.
10. The primary legal question at hand revolves around "whether the person applying for passport is a consumer as to enable maintaining of complaint before the consumer forum". It is noteworthy that this Commission previously addressed this issue in the case of "Passport Officer Vs. Richa Bhandari," decided on 17.03.2016. This determination followed comprehensive examination of pertinent questions by a larger bench. Nevertheless, the counsel for Petitioners has raised the existence of a judgment from the Hon'ble Supreme Court in the matter of "KK Kataria Vs Asstt. Regional Passport Office," dated around 1998. Although he was unable to produce the exact reference, this issue was specifically addressed by the Hon'ble President of this Commission vide order dated 07.08.2023. The relevant portions of the Order are reproduced below:-
"We had adjourned the matter yesterday to enable us to gather information about the judgment of the Hon'ble Supreme Court in the case of "KK Kataria Vs. Asst Regional Passport Office" that was referred to by the learned counsel for the revisionist.
Today, learned counsel for the revisionist states that he is not able to substantiate the aforesaid submission as the judgment is not available with him. We have also verified from the docket of the Supreme Court Case and such a reference is not available. For that, to rely on such a judgment which may not exist would be a travesty of justice.
Learned counsel submitted that he had referred to the same as it was quoted in another judgment of the State Consumer Disputes Redressal Commission, Punjab namely, "Regional Passport Office Vs. Gurpreet Singh Mangat & Others". A copy of the said judgment has been produced before us, wherein paragraph 16 has been referred to by the learned counsel for the revisionist, which is extracted hereunder:
"16. Hon'ble Supreme Court in KK Kataria Vs Asstt. Regional Passport Office 1998 (1) CCC 201 held that passport is not a commodity, which can be purchased or sold for consideration, but it is only a nature of permission granted by the sovereign to its citizens to go outside the country. It was further held that the function of the Central Government, which is required to be performed under the Passport Act, could not be equated with the definition of 'service' rendered to a consumer as defined in the CP Act."
As indicated above the aforesaid quoted extract which refers to the judgment could not be verified by either the learned counsel for the revisionist or otherwise as it is not available in any report.
In these circumstances, we have to proceed on the strength of the larger Bench reference order in the case of "Passport Officer Vs. Richa Bhandari", where this issue has been dealt with and while answering the reference also we do not find any reference to the so called judgment of "K.K. Kataria Vs. Asstt. Regional Passport Office" case referred to above.
Learned counsel for the revisionist contends that the distinction between the sovereign function of the passport officer and the ministerial act after the issuance of passport has been distinguished. He therefore submits that in the present case, the respondent had been issued the passport on 28.07.2014. For this learned counsel relies on the memo of appeal filed before the State Commission, wherein paragraph 2 (iii), the following averment has been made:
"That the respondent had thereafter applied again for passport vide file no. DL4067890129414 at passport office, Delhi on 04/07/2014 and this office processed the file of the respondent and passport bearing no. M0342818 dated 28/07/2014 was issued."
This averment has been disputed by the respondent contending that neither the respondent has moved any fresh application nor she had deposited any fee for processing of a fresh application for the issuance of the passport. The contention is that the passport came to be issued on 28.07.2014 after she had filed the complaint case before the forum.
In the given circumstances, it is urged that the averment referred to above in the memo of appeal by the revisionist is not borne out from record and is denied.
In the aforesaid circumstances we would like to peruse the contents of the file referred to by the revisionist, which states that an application was filed by the respondent on 04.07.2014. This will be relevant to determine any delay or otherwise of the passing or not passing of an order that can be established only from a perusal of that file. Learned counsel for the revisionist may therefore through an affidavit bring on record the aforesaid facts as averred in paragraph 2 (iii) of the memo of appeal referred to above along with the relevant documents including the stated fresh application as alleged to have been filed by the respondent within four weeks."
11. In accordance with the aforementioned order dated 07.08.2023, the Petitioner filed an Additional Affidavit reaffirming the facts of the case. It was argued that File No. DLHA02967911 was officially closed on 26.12.2018, following an application received from Respondent requesting its closure. During this period, the Respondent submitted a fresh application on 07.05.2014 for issuance of a new passport, vide Application No. 14-0004775696. Notably, the Respondent sought exemption from paying the fee, and this request was granted with the annotation "accepted in Gratis." Subsequently, the application was approved on 28.07.2014 after a clear Police Verification report dated 19.07.2017. Therefore, the Petitioner asserts that there is no delay or fault on their part in this matter.
12. The learned Counsel for the Petitioner contended that the learned State Commission misinterpreted the judgment of Passport Officer v. Richa Bhandari (Supra). Specifically, it was argued that the judgment delineated between two aspects of work performed at the passport office: firstly, the decision to issue the passport by the Passport Officer, which was deemed an act of sovereign authority and not subject to the jurisdiction of Consumer Courts; and secondly, tasks such as printing and dispatch of the passport, which occur after the Passport Officer has decided to issue the passport, were considered non-sovereign functions and thus amenable to the jurisdiction of Consumer Courts. The State Commission overlooked this distinction made in its judgment and incorrectly interpreted that all actions of the Passport Officer were subject to the decision of Consumer Courts.
13. Contrary to the contentions presented in the Additional Affidavit filed by the Petitioner and arguments presented, the Respondent/ Complainant filed a reply along with written submissions denying all contentions and argued that the Complaint falls within the ambit of the Consumer Protection Act, as the deficiencies in the passport issuance process are directly related to the services, as defined in the Passport Act, 1967 as under:
"Section 5 of the Passports Act, 1967, to the extent it is relevant provides that an application for issue of a passport shall be accompanied by such fee as may be prescribed" to meet the expenses incurred on special security papers, printing, lamination and other connected miscellaneous service in issuing passport and other travel documents."
14. The Complainant/Respondent further contended that the Additional Affidavit by the OPs actually supports the claim that the first Application (No. DLHA02967911) was not rejected or closed, as asserted by the Petitioner. As per her, this Application existed until 26.12.2018, approximately 4 years and 4 months after the passport was issued on 28.07.2014. She was never informed about transition from the National Informatics Centre (NIC) system to the PSP system, which is considered an act of outsourcing and is integral to the service. She argued that she never reapplied, challenging the Petitioner's claim that an online application was submitted on 07.05.2014, given that the Respondent was physically present at the Passport Office at 9:30 AM on the same day. She asserted that, in reality, the Passport Office called her on 07.05.2014 for issue of passport, despite her refusal to withdraw the case filed in the District Forum. She also denied ever requesting exemption from the fee, asserting that the passport office processed the same application.
15. I have examined the pleadings and associated documents, including the orders of both the learned fora on record and rendered thoughtful consideration to the arguments advanced by the learned Counsel for Petitioner and Respondent/ Complainant in person.
16. It is undisputed that the Complainant applied for issue of a passport from OP-1 vide File No. A029679. Her request was processed as per the procedure. Police verification and submission of a report is an essential consideration for the competent authority to take a decision on her application for issue of passport. In the case of the Complainant, the process for obtaining the police verification report was initiated as per procedure. However, the same could not be completed as the stay of the Complainant at the address notified was for less than 1 year, and she did not fill the details where she had stayed for over one year in the application and left the column blank. Consequently, the verification report from the Senior Superintendent of Police (SSP) Bangalore remained pending, resulting in delay in consideration of the competent authority for issue of passport to her. The Complainant argued that the failure to receive the passport caused her to lose a career opportunity. Conversely, the OPs alleged that she attempted to conceal accurate information in the application.
17. The main questions to be determined in the instant Revision Petition are, whether the Complainant falls under the definition of a 'consumer' under the Act?; and, if so, whether there is any deficiency in the services provided by the OPs with respect to passport service to the Complainant?
18. In Passport Officer, Passport Office v. Richa Bhandari, 2016 SCC OnLine NCDRC 225, this Commission meticulously distinguished two distinct aspects of functions at the passport office: firstly, the decision-making process concerning the issuance of passports by the Passport Officer, which was deemed an act of 'Sovereign Authority' and thus beyond purview of the jurisdiction of Consumer Courts; and secondly, supplementary tasks like printing and dispatching passports, carried out subsequent to the decision to issue, which were classified as 'Non-Sovereign' functions and hence fell squarely within the ambit of Consumer Courts' jurisdiction. To substantiate these delineations, pertinent excerpts from the judgment are reproduced below:-
2. Section 2(1)(d) of the Consumer Protection Act, to the extent it is relevant defines the term 'consumer' to mean any person who hires or avails of any services for consideration. The term 'service' is defined in Sec. 2(1)(o) of the Act to mean service of any description which is made to potential users, including though, not limited to the service enumerated therein. The aforesaid term, however, does not include the rendering of any service free of charge or under a contract of personal service.
3. Since the aforesaid term includes service of any nature made available to the user, unless rendered free of charge or under a contract of personal service, the first question which arises for our consideration is as to whether the activities of the Passport Office, post-order of the Passport Officer directing/approving issue of a passport to an applicant is rendered free of charge or for a consideration. Section 5 of the Passports Act, 1967, to the extent it is relevant, provides that an application for issue of a passport shall be accompanied by such fee as may be prescribed "to meet the expenses incurred on special security papers, printing, lamination and other connected miscellaneous service in issuing passports and other travel documents". It is therefore, evident that a person applying for issuance of a passport does pay a consideration in the form of a prescribed fee and the said consideration is paid for the expenses incurred in the activities post passing of the order, directing/approving issuance of passport to the applicant. In other words, the said fee is not paid to meet the expenses involved in the process of the Passport Officer deciding whether the passport should be issued to the applicant or not. Therefore, going by the definition of the terms 'service' and 'consumer' contained in the Consumer Protection Act, a person applying for a passport would be a consumer as defined in the Consumer Protection Act, in case he is aggrieved from a defect or deficiency including an unjustified delay in the services rendered to him by the Passport Office, post decision/approval of the passport officer to issue a passport to him. Such activities would include printing, preparation, dispatch and delivery of the passport to the applicant.
4. In Standard Chartered Bank Ltd. v. Dr. B.N. Raman, (2006) 5 SCC 727 rendered in a complaint filed under the provisions of Consumer Protection Act, the Hon'ble Supreme Court inter-alia observed that the activity relating to non-sovereign powers of the Statutory bodies are within the purview of the said Act. It was further observed that the functions of such bodies are under the term 'service' under Section 2(1)(o) of the Act. The decision was rendered in the context of definition of 'service'. Since the services rendered by the Passport Office post decision of the Passport Officer to issue a passport to the applicant do not fall within the ambit of the statutory power conferred upon the Passport Officer and the said services are rendered for a consideration, it would therefore be difficult to dispute that the said service fall within the purview of Section 2(1)(o) of the Consumer Protection Act.
5. It was contended by the learned counsel for the petitioner i.e. the Passport Officer that since issuance of a passport is a sovereign function, any defect or deficiency in any service related to issuance of the passport would not be covered under the Consumer Protection Act and therefore, a person aggrieved from any defect or deficiency in any such service will not be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. In support of her contention, she relied upon the decisions of this Commission in Passport Officer, Passport Office v. Ajay Bansal Revision Petition No. 3785 of 2013 decided on 13.3.2015, S. Vijayakumar v. Regional Passport Officer, Regional Passport Office. Revision Petition No. 3322 of 2009 decided on 10.4.2015 and Union of India v. Beena Sharma Revision Petition No. 4344 of 2012 decided on 27.8.2013. Shri Rajeev Sharma, whom we had requested to act as Amicus Curiae in this matter and who very ably assisted us in the matter, however, submitted that the services rendered by the Passport Office, post decision of the Passport Officer to issue a passport to the applicant cannot be said to be a sovereign function and since the said services and functions are rendered for consideration, a person aggrieved on account of any defect or deficiency in the said service would be a consumer as defined in the Consumer Protection Act. In support of his contention he referred to the decisions of the Hon'ble Supreme Court in Chief Conservator of Forests v. Jagannath Maruti Kondhare, (1996) 2 SCC 293. He also drew our attention to certain observations made by the Hon'ble Supreme Court in Bihar School Examination Board v. Suresh Prasad Sinha, AIR 2010 SC 93. He also brought to our notice the decision of Three-Members Bench of this Commission in Regional Passport Officer v. Anuradha Thadipathri Gopinath, III (2008) CPJ 118 (NC) decided on 10.07.2008. He has submitted that the correct legal position on the subject has been summarized in the later part of para-5 of the reference order dated 17.11.2015.
6. On the question as to which functions of the State are sovereign functions and which are non-sovereign function, the Hon'ble Supreme Court in Nagendra Rao & Co. v. State of Andhra Pradesh, AIR 1994 SC 2663, inter-alia observed that the functions like defence of the country, raising Armed Forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are not amenable to the jurisdiction of the ordinary Civil Court in as much as the State is immune from being sued in such matters, but the immunity ends there. It was further observed that in a welfare State, the functions of the State are not only the defence of the country, administration of justice or maintaining law and order but extend to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even material. Because of this, the demarcating line between sovereign and non-sovereign power has largely disappeared. In Chief Conservator of Forests (supra), the Hon'ble Supreme Court declined to extend the concept of sovereign functions to all the welfare activities undertaken by the State.
7. The question whether the power exercised by a Passport Officer is sovereign powers or statutory powers came to be considered by this Commission in Anuradha Thadipathri Gopinath (supra). In the above referred decision, when the complainant who had been issued a passport, reached Bombay Airport for travelling to Dubai, was asked to go back since Passport Officer had not signed the passport issued to him. Being aggrieved, he filed a consumer complaint before the concerned District Forum, seeking compensation etc. The District Forum directed payment of compensation as well as the cost of litigation to the complainant. The Regional Passport Officer preferred an appeal before the State Commission, challenging the decision of the District Forum. The said appeal having been dismissed, he approached this Commission by way of a revision petition. It was inter-alia contended on behalf of the Passport Officer that he was discharging his duties without recovering any fee and was exercising sovereign functions. Rejecting the contention, it was held by this Commission that there was no question of exercising of sovereign functions; he was discharging a statutory duty. It was further held that though issuance or non-issuance of a passport may not be a consumer dispute, the issuance of an invalid passport would be a deficiency in service on the part of the concerned officer and since the passport office was also charging fee, a deficiency in such a service could be subject matter of a consumer complaint.
8. In Beena Sharma (supra), the grievance of the complainant was due to non-issuance of a passport to her and not on account of any defect or deficiency in activities such as printing, preparation and discharge of the passport. Holding that issuance of passport was a sovereign power of the Government of India and it was not incumbent on the Government to issue a passport in each and every case, the consumer complaints, subject matter of the said revision petition were dismissed by this Commission. This decision is clearly inapplicable to a case where the grievance of the complainant is on account of any defect or deficiencies in the services such as printing, preparation, dispatch and delivery of the passport to him. We are in agreement that the decision of the passport officer whether to grant or refuse passport to an applicant, cannot be the subject matter of a consumer complaint but the position would be altogether different where the grievance is on account of any defect or deficiency in the services rendered to him post decision/approval of the passport officer to grant a passport to him.
9. In Ajay Bansal (supra), the grievance of the complainant was that the passport had not been issued to him. The complaint was resisted inter-alia on the ground that there was an adverse police report against the complainant and since he failed to submit explanation with respect to the said report, passport was not issued to him. It was also stated in the reply filed by the Passport officer that though the complainant had applied afresh for the issuance of the passport, the factum of the previous application was concealed by him while submitting the afresh application. There is nothing in the judgment to indicate that the grievance of the complainant was on account of any defect or deficiency in the matter, such as printing, preparation, dispatch or delivery of the passport. Relying upon Beena Sharma (supra), the consumer complaint was dismissed by this Commission holding that issuance of passport was a sovereign function.
10. In S. Vijayakumar (supra), the complainant No. 2 was not issued passport, despite police verification and therefore, the complainants approached the District Forum for a direction to the Passport Officer to issue the passports and also pay compensation for the mental agony caused to them. The respondents stated, at the time of hearing of the complaint, that the passports was made ready for delivery to complainant No. 2. The District Forum awarded a compensation of Rs. 25,000/- to the complainants against the Regional Passport Officer for the physical and mental harassment caused to the complainants on account of the delay in issue of the passports. In an appeal filed by the Passport Officer, the State Commission closed the case, noticing that the passports had since been issued to the complainants. The plea of the Passport Officer questioning the jurisdiction of the Consumer Forum was however, kept open. Being aggrieved from the order of the State Commission, the complainants approached this Commission by way of a revision petition. The question which arose for determination before this Commission was as to whether or not a person applying for the issuance of a passport is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. Relying upon Ajay Bansal (supra) and referring to the decisions of the Hon'ble Supreme Court in Standard Chartered Bank Ltd. (supra) and Bihar School Examination Board (supra), it was held that issuance of a passport was a statutory function, the passport officer cannot be said to be a service provider and therefore, a complaint under Consumer Protection Act for delay in issuing the passport would not be maintainable. Consequently, the revision petition filed by the complainants was dismissed.
11. It would thus be seen that in S. Vijayakumar (supra), this Commission was not called upon to segregate and distinguish the functions of the passport office such as printing, preparation, dispatch and delivery of the passport from the statutory function of the passport officer to decide whether a person should be issued a passport or not. A perusal of the above referred decision also shows that the earlier Three-Member Bench decision of this Commission in Anuradha Thadipathri Gopinath (supra) was not brought to the notice of this Commission. In our opinion, since the judgment in S. Vijayakumar (supra), was delivered without taking note of the earlier decision of a Coordinate Bench, the said decision would be per-incuriam and would not constitute a binding precedent.
12. The term 'per-incuriam' has been defined as under in Black's Law Dictionary (Ninth Edition):--
"There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind : first, where the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority... The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked." Louis-Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988).
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence". Rupert Cross & J.W. Harris, Precedent in English Law 149 (4 ed. 1991)"
13. The Hon'ble Supreme Court observed as under in Government of Andhra Pradesh v. B. Satyanarayana Rao (dead) by LRs, (2000) 4 SCC 262:
"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue".
14. In Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1) SCC 694, the Hon'ble Supreme Court, after an analysis of the English and Indian Law, concluded that not only the judgment of a larger strength is binding on a judgment of a smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. Thus, if a decision is rendered without taking note of an earlier decision of a Coordinate or a larger bench, such a decision would be per incuriam and not constitute a binding precedent. Therefore, the decision of this Commission in S. Vijayakumar (supra), having been passed without the earlier decision of a Coordinate Bench in Anuradha Thadipathri Gopinath (supra) having been brought to its notice, is per incuriam.
15. As far as the decision of the Hon'ble Supreme Court in Standard Chartered Bank Ltd. (supra) is concerned, there is nothing in the said judgment to indicate that even the non-sovereign functions of a statutory body will not come within the purview of the Consumer Protection Act. Rather the Hon'ble Supreme Court expressly held that the activities relating to non-sovereign powers of statutory bodies are within the purview of the said Act, as they come under the term 'service'.
16. In Bihar School Examination Board (supra), the Hon'ble Supreme Court was dealing with a matter arising out of a complaint on account of the result of a student having not been published and consequently his having to reappear in the board examination the following year, thereby suffering a loss of one year allegedly due to the fault of the Board. It was inter-alia pleaded by the Board, before the Consumer Forum, that since the complainant was not a consumer, as defined in Section 2(1)(d) of the Consumer Protection Act, it had no jurisdiction in the matter. It was contended on behalf of the complainant/ respondent that a statutory authority that offers any kind of service for which a fee is charged will be amendable to the jurisdiction of the Consumer Fora. Reliance was placed upon an earlier decision of the Hon'ble Supreme Court in Lucknow Development Authority v. M.K. Gutpa, 1994 (1) SCC 243. The said contention was rejected holding that the Board was not carrying on any commercial, professional or service oriented activities and no benefit was conferred nor any facility was provided by the Board for any consideration.
There is no quarrel with the legal proposition that every service rendered by a Statutory Authority for which a fee is charged will not constitute service as defined in Section 2(1)(o) of the Consumer Protection Act, but, considering the nature of the activities involved in preparation, printing, dispatch and delivery etc. of a passport, the said activities which can be clearly segregated and distinguished from the statutory duty of deciding whether passport should be issued to a person or not, coupled with the fact that in terms of Section-5 of the Passport Act, the prescribed fee is charged only to meet the expenses incurred on special security papers, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents, will clearly fall within the ambit of the term 'service' as defined in the Consumer Protection Act. The decision of the Hon'ble Supreme Court in Bihar School Examination Board (supra) cannot be interpreted to mean that no activity performed by a Govt Office irrespective of the nature of such activity can be termed as 'service' as defined in the Consumer Protection Act.
17. The Government of India has already outsourced a number of functions post decision of the Passport Officer to issue passport to an applicant, to an outside agency. A perusal of the Press Release dated 30.7.2014 issued by Government of India, Ministry of External Affairs would show that under a Public-Private Partnership approach adopted by the Government, while retaining the core and sovereign functions such as verification of supporting documents, police verification, decision on grant of passports, revocation and impounding of passports, the activities such as token issuance, initial security of application forms, digitization of documents, taking photographs and biometrics are now being performed by the staff of the service provider. The aforesaid step taken by the Government also indicates that the activities post decision of the passport officer to issue the passports to an applicant, i.e. activities such as printing, preparation, dispatch and delivery of the passport etc., are non-sovereign activities and that is why the said activities have been outsourced to a private agency.
18. For the reasons stated hereinabove, the reference is answered as under:
(i) 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;
(ii) 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;
(iii) 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 the Consumer Protection Act and a consumer complaint, seeking compensation for such a defect or deficiency is maintainable.
19. In the present case, the Complainant applied for a passport vide File No. A029679 on 06.05.2011 and paid Rs.1,000/- towards the passport fees. As per her, the OP-1 failed to issue the passport within the stipulated three-months and despite numerous emails, no response was received from OPs. Her father had filed RTI application on 30.04.2012, which was responded to on 25.05.2012 indicating her Application status as "pending as the Police Verification Report from SSP Bangalore was awaited." Their Appeal to the CIC on 31.01.2013 was responded as "The fact remains that the passport applicant could not get a passport even after two years of her applying for it, and now her case is closed. The system should be more responsive in such cases and should have the arrangement to inform the passport applicant whose application is being filed or closed for whatever reason". Due to non-issue of passport, she lost a career opportunity. As she paid prescribed consideration, she is a 'consumer;' under the Act and she claimed compensation. On the other hand, OPs objected to her claim as consumer and asserted that on receipt of her application for issue of passport, the same was duly processed by respective functionaries, including seeking of security verification by the police. As the Complainant's stay at the place notified was less than 1 year, the verification could not be completed. The verification report from the Senior Superintendent of Police (SSP) Bangalore remained pending, leading to the delay in decision on issue of passport. OPs emphasized that no specific timeframe prescribed for passport issue, and it was to be granted only upon receiving a clear police verification report, contingent on all other documents being in order. The closure of file No. A29679/11 in the National Informatics Centre (NIC) system and the introduction of new computer system were the reasons and there was no deficiency in service by the OPs.
20. It is undisputed that, on receipt of her request for issue of passport, it was processed by the OPs as per procedure. Police verification and receipt of a report is an essential consideration for the competent authority to take a decision on her application for issue of passport. In this case, while the process for police verification was initiated in time, the same could not be completed as her stay at the address notified was for less than 1 year, and she did not fill the details where she had stayed for over one year in the application and left it blank. Thus, verification report from the Senior Superintendent of Police, Bangalore remained pending, resulting in delay in consideration of the competent authority for issue of passport to her.
21. It is the assertion of the learned counsel for the Petitioner that the issuance of a passport is a sovereign function, any defect or deficiency in any service related to issuance of the passport would not be covered under the Consumer Protection Act and, therefore, a person aggrieved from any defect or deficiency in any such service will not be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. At the same time, it is also an admitted position that the Govt of India has outsourced a number of functions to an outside agency to issue passport to an applicant, post decision of the Passport Officer. Thus, the Govt of India retained the core and sovereign functions such as verification of supporting documents, police verification, decision on grant of passports, revocation and impounding of passports. And, the activities such as token issuance, initial scrutiny of applications, digitization of documents, taking photographs and biometrics are outsourced to service providers. The aforesaid step taken by the Government also indicates that the activities subsequent to decision of the passport officer to issue the passports to an applicant, i.e. activities such as printing, preparation, dispatch and delivery of the passport etc., are non-sovereign activities and that is why the said activities have been outsourced to a private agency.
22. From the aforementioned judgments and in Passport Officer, Passport Office v. Richa Bhandari (Supra), it is clear that 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 only in respect of the activities which the Passport Office or the agency to which such activities are outsourced, undertakes, after the decision of Passport Officer to issue a passport to the applicant.
23. In the present case, it is uncontested position that the application of the Complainant was processed by the OPs and the matter remained pending due to delay in receipt of Police Verification. The police could not furnish the report as the Complainant has not resided at the address for continuous period of one year. In the absence of the said her application was not even considered for issue of passport by the competent authority. Therefore, this is a case wherein her application is not even considered for issue of passport as the inherent important procedures were not completed. Whereas, only those who apply for a passport and to whom a passport is ordered to be issued by the competent authority, is a 'consumer' as defined in the Consumer Protection Act. Thus, post approval for issuer of a passport, 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. 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 Act and a consumer complaint is maintainable.
24. A person applying for issue of a passport does pay a consideration in the form of fee prescribed. This consideration is paid for the expenses incurred in the activities post passing of the order, directing/ approving issuance of passport to the applicant. This fee is not for meeting the expenses involved in the process of the Passport Officer deciding whether the passport should be issued to the applicant. Therefore, going by the definition of the terms 'service' and 'consumer' contained in the Consumer Protection Act, a person applying for a passport would be a consumer as defined in the Consumer Protection Act, in case he is aggrieved from a defect or deficiency including an unjustified delay in the services rendered to him by the Passport Office, post decision/approval of the passport officer to issue a passport to the individual. Such activities would include printing, preparation, dispatch and delivery of the passport.
25. In view of the foregoing, it is an established position in the present case that the competent authority has not approved the issue of the passport to the Complainant. When it was approved, she was immediately issued and there is no grievance in this regard. Further, the change in the system from NIC to other portal, if any, is a Government level decision and it does not alter her status. While there is no timeline prescribed for mandatory issue of passport, the accusations of not responding to her emails, not preferring any fresh complaint, her alleged refusal to withdraw the complaint before the learned District Forum, her previous application remaining on the portal even after she was issued a passport etc are of limited relevance to the main issue in question.
26. As a result, the present complaint is not maintainable under the Consumer Protection Act, as the process for issuing her passport was not completed and the competent authority had not considered her case for a decision. Both the learned District Forum as well as the learned State Commission have erred in considering that all actions of Passport Officer are subject review under Consumer Law.
27. Based on the discussion above, the findings recorded by the learned State Commission and the District Forum are not sustainable in law and accordingly set aside and the present Revision Petition is Allowed. Consequently, the Complaint is dismissed.
28. Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.
29. All other pending Applications, if any, stand disposed of.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER