Karnataka High Court
Sri. Nettala Muttappa Rai vs The Union Of India on 11 December, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.28726/2016 (GM-PASS)
BETWEEN:
SRI. NETTALA MUTTAPPA RAI
S/O LATE NARAYANA RAO,
AGED ABOUT 60 YEARS,
R/AT NO.7-E, 7TH FLOOR,
RAJ MAHAL APARTMENT,
9TH MAIN, 8TH CROSS,
RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560080.
... PETITIONER
(BY SRI V. LAKSHMINARAYANA SENIOR COUNSEL A/W
SRI ASHWIN KUMAR. H., ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF EXTERNAL AFFAIRS,
PATIALA HOUSE ANNEXE,
TILAK MARG,
NEW DELHI-110 001
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2. THE JOINT SECRETARY (PSP) AND
CHIEF PASSPORT OFFICER, CPV DIVISION,
PATIALA HOUSE ANNEXE, TILAK MARG,
NEW DELHI(APPELLATE AUTHORITY).
3. THE REGIONAL PASSPORT OFFICER,
80 FEET ROAD, 8TH BLOCK,
KORAMANGALA,
BENGALURU-560095.
4. THE DEPUTY INSPECTOR GENERAL OF POLICE
(KARNATAKA)
BENGALURU POLICE HEAD QUARTERS,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
... RESPONDENTS
(BY SRI CAPT. ARAVIND SHARMA, ADVOCATE FOR
SRI C. SHASHIKANTHA ASG FOR R1-R3;
SMT. NILOUFER AKBAR, AGA FOR R4)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 25.6.2015 PASSED BY THE 3RD
RESPONDENT AS PER ANNEXURE-W AND ALSO THE ORDER
DATED 23.11.2015 PASSED BY THE JOINT SECRETARY
(PSP) & CHIEF PASSPORT OFFICER - R-2 AS PER
ANNEXURE-Y ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The petitioner filed the present writ petition for a writ of certiorari to quash the order dated 25.6.2015 bearing No.1300032 CPC BNG (BN1078364836315) passed by the Deputy Passport Officer as per Annexure-W as arbitrary, illegal and violative of Articles 14, 19(a)(b)&(g) and 21 of the Constitution of India and also to quash the order dated 23.11.2015 passed by the 2nd respondent - Joint Secretary (PSP) & Chief Passport Officer as per Annexure-Y and to direct the respondent authorities to consider the application of the petitioner for issue of regular passport forthwith, without any further delay.
I. FACTS OF THE CASE
2. It is the case of the petitioner that he is a citizen of this country and resident of Bengaluru and has got properties at Bengaluru and Mangaluru. He has two children and the eldest son, who is a MBA graduate from 4 Boston has settled in Dubai, having business enterprises in Dubai, Philippines, Singapore and Malaysia and the 2nd son viz., Ricky M. Rai studied BBM in MDIS College in Singapore and after completion of his studies, settled in Bengaluru, taking care of his own business. It is further case of the petitioner that his wife viz., Smt. Rekha Muthappa Rai passed away on 28.4.2013 as she was suffering from Metastatic Breast cancer. The passport issued to her was valid up to 13.7.2013. The eldest son has got a passport valid up to 15.7.2022 and the 2nd son has got a passport valid upto 30.5.2020.
3. It is further case of the petitioner that he filed an application for grant of passport and the competent authority issued the passport on 10.12.1979 bearing No.P.125401 and the said passport was valid up to 9.12.1984 and same was renewed up to 9.12.1989. Subsequently, the passport issued on 10.12.1989 was renewed on 31.1.1990 and the same was valid up to 5 30.1.2000 as per normal procedures. On 24.2.1999 when the petitioner was in Kazaksthan, since all the pages of the booklet were stamped, he moved an application to the Indian Embassy at Kazaksthan for issuing additional booklet and the additional booklet carries passport bearing No.S- 6572944, but its validity was up to 30.1.2000 in accordance with the renewal dated 31.1.1990. Thereafter, the petitioner was forced to file a fresh application on 11.10.2006 for issuance of passport and the said application was not considered. Therefore the petitioner was constrained to file W.P. No.6844/2017 before this Court, which came to be disposed of on 23.6.2008 with an observation that the petitioner has not produced all the documents pertaining to criminal cases. In pursuance of the said order passed by this Court, the petitioner made a representation on 3.2.2010 stating that he has been acquitted in all criminal cases. On 5.2.2011, he filed an application for grant of passport. Since no action was taken 6 on the application, again he was constrained to file Writ Petition No.11345/2011 before this Court. This Court after hearing both the parties by the order dated 3.11.2011 disposed of the writ petition directing the competent authority to consider the application of the petitioner in accordance with law after obtaining details from the Superintendent of Police, Dakshina Kannada district; the Inspector General of Police, Mangalore and the Deputy Superintendent of Police (Intelligence), Bangalore. Subsequently, the passport came to be issued on 14.6.2012 and it was valid up to 13.6.2013.
4. It is further case of the petitioner that he filed Writ Appeal No.29/2012 challenging the order dated 3.11.2011 passed by the learned Single Judge and the appeal was disposed of with an observation that the 2nd respondent therein i.e., Regional Transport Officer, Bangalore should pass a speaking order.
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5. It is further case of the petitioner that he filed an application on 22.1.2013 to consider and pass a speaking order in accordance with the orders passed by the Division Bench of this Court. The Regional Transport Officer communicated by means of a letter dated 19.2.2013 directing the petitioner that he shall furnish a fresh Court order for extension of validity of the passport. Therefore the legal notice came to be issued by the petitioner through an advocate and presented all the facts to the competent authority. Subsequently on the application filed for issuance of the passport, the same was issued on 14.3.2013 and it was valid up to 13.3.2014 to Singapore and USA. Though the passport issued on 14.6.2012 was valid up to 13.6.2013, the petitioner has to file a fresh application for issuance of a fresh passport since for renewal of a passport, a minimum six months validity of the passport was required for any person to travel outside the country.
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6. In view of the urgency of the situation, where the petitioner has to take his wife for medical assistance to Singapore, a fresh application was filed for grant of fresh passport. On 12.4.2013, the respondent No.2 gave a detailed report and furnished to the petitioner incorporating the opinion of the Ministry of External Affairs, New Delhi vide letters dated 7.6.2012, 21.9.2012 and 13.3.2013. Further, the Ministry of External Affairs, New Delhi vide letter dated 21.9.2012 has ordered that the case has been examined in the Ministry and it has been decided to extend the validity of the passport of the applicant to travel to USA, for urgent medical treatment. Further, on 13.3.2013 the Ministry of External Affairs, New Delhi issued letter and ordered that the matter was examined in the Ministry keeping in view, all the aspects of the case and it has been decided to issue him a Short Validity Passport of one year valid for Singapore only.
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7. It is further contended that on 19.2.2015 an Endorsement came to be issued directing the petitioner to produce fresh court order to issue validity of passport. That was the subject matter of Writ Petition No.30080/2013, which came to be disposed of on 25.2.2015 with a direction to consider the application and take an independent decision in accordance with law without reference to the Police records. Accordingly on 14.3.2013 the passport bearing No.K-9135011 was issued, which was valid up to 13.3.2014. In pursuance of the direction issued by this Court in W.P. No.30080/2013 dated 25.2.2015, the respondent No.3 rejected the application of the petitioner by invoking the provisions of Section 6(2)(b)&(c) of the Passport Act, 1967. Being aggrieved by the said order, the petitioner filed an appeal before the Appellate Authority - Joint Secretary (PSP) and the Chief Passport Officer. The Appellate Authority by the impugned order dated 23.11.2015 rejected the appeal, confirming the 10 order passed by the original authority. Hence the present writ petition is filed for the reliefs sought for.
II. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES
8. I have heard the learned counsel for the parties to the lis.
9. Sri V. Lakshminarayana, learned senior counsel appearing for the petitioner contended with vehemence that the original Authority and the Appellate Authority based on the adverse police verification reports and non- recommendatory reports of the Central Security Agencies, refused to issue passport to the petitioner. Before passing the adverse orders, the petitioner was not given reasonable opportunity of being heard. He would further contend that it is well settled that no material can be relied upon without an opportunity of being heard given to the petitioner on such material. Therefore, the orders passed by the 11 authorities are in utter violation of principles of natural justice and cannot be sustained.
10. The learned senior counsel further contended that the petitioner has been acquitted in all the criminal cases and no criminal case is pending against the petitioner and the original authority has passed the impugned order refusing to issue passport to the petitioner and it is a cryptic order without there being any reasons for rejection except incorporating the provisions of 6(2)(b) & (c) of the Passport Act, 1967. The same cannot be sustained. The Appellate Authority while confirming the order passed by the original authority tried to supplement the reasons to the order passed by the original authority, which is impermissible.
11. Learned senior counsel brought to the notice of this Court the order passed by this Court in W.P. No.30080/2013 dated 25.2.2015, which reads as under: 12
"Sri Krishna S Dixit, learned ASG appearing for the respondents submits that petitioner may be permitted to file a fresh application in the prescribed form for grant of passport. If such an application is filed, the second respondent will consider the same in accordance with law without being influenced by the orders at Annexure 'L' dated 19.2.2013, Annexure'S' dated 12.4.2013 and Annexure 'T' which is titled as 'speaking order'. It is further submitted that if the second respondent received any adverse material from the police, the petitioner will be informed of the same while considering his application.
2. Learned Counsel for the petitioner is agreeable to make a fresh application provided the second respondent, considers the application in accordance with the provisions of Section 5(2) of the Passports Act, 1967 without being influenced by any of the orders impugned in this writ petition.
3. The submission of the learned Counsel for the parties is placed on record. Petitioner is permitted to make an application for grant of passport in the prescribed form. If such an application is filed, the second respondent is directed to consider the same strictly in accordance with the 13 provisions of the Passports Act, 1967, without being influenced or by relying on the orders impugned in this writ petition. Needless to say the adverse material if received from the Police is not binding on the second respondent. The second respondent has to take an independent decision in accordance with law. The application shall be considered within a period of three months from the date of its receipt. Writ petition is disposed of in the aforesaid terms."
12. The learned Senior Counsel for the petitioner further pointed out that in the said writ petition, this Court has specifically recorded the submissions of the learned counsel for the parties and permitted the petitioner to make an application for grant of passport in the prescribed form and also observed that if such an application is filed, the Regional Passport Officer shall consider the same strictly in accordance with the provisions of the Passport Act, 1967 without being influenced or by relying on the orders impugned in the said petition. It is also observed that if any adverse material is received from the Police, the same 14 is not binding on the Regional Passport Officer and he has to take independent decision in accordance with law. Learned Senior counsel submits that the above directions issued by this Court have also not been followed by the original authority as well as the appellate authority. Therefore he sought to allow the present writ petition.
13. In support of his contentions, the learned senior counsel appearing for the petitioner relied upon the dictum of the Hon'ble Supreme Court in the following decisions:
1. (1995) Supp. (1) SCC 21 (para 4) {TILAK CHAND MAGATRAM OBHAN vs. KAMALA PRASAD SHUKLA AND OTHERS}
2. (2010)9 SCC 496 (para 47) {KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER vs. MASOOD AHMED KHAN AND OTHERS} 15
14. Per contra, Captain Aravind Sharma appearing for Sri C. Shashikantha, learned ASG for Respondent Nos.1 to 3 reiterating the averments made in the statement of objections sought to justify the impugned orders passed by the original authority as well as the appellate authority and contended that the Ministry of External Affairs has instructed by communication dated 28.5.2015 produced as per Anenxure-R2 that only after receiving of requisite clearances from the concerned security agencies, the passport application of the petitioner for grant of full validity passport would be considered. Accordingly, the petitioner was requested to submit the personal particular forms and the same were submitted by him on 3.6.2015. The petitioner's personal particulars forms were promptly forwarded to the Ministry of External Affairs, New Delhi as well as the State Police authorities for conducting necessary verification. The office of the 3rd respondent has received two fresh non-recommendatory reports from the office of 16 the Commissioner of Police, Bangalore and Superintendent of Police, Dakshina Kannada, Mangalore respectively. After taking in to view all the available facts and aspects of the case and in compliance of the order passed by this Court in W.P. No.30080/2013 dated 25.2.2015, the petitioner's application was considered afresh and duly examined by the office of the 3rd respondent and passed the impugned order.
15. He further contended that the petitioner himself has admitted that CC No.51142/2014 is pending against him on the file of the X ACMM, Bangalore. However, learned senior counsel for the petitioner submits that same is stayed by this Court in Crl.P No.490/2016. He further contended that on reconsideration of the entire material on record, the Appellate Authority rightly concurred with the finding recorded by the original authority and dismissed the appeal. Therefore the petitioner is not entitled to any relief before this Court under writ jurisdiction and sought to dismiss the writ petition.
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III. POINT FOR CONSIDERATION
16. Having heard the learned counsel for the parties, the point that arises for consideration in the present writ petition is:
"Whether the petitioner has made out a prima-facie case to interfere with the impugned orders passed by the original authority as well as the appellate authority, in the facts and circumstances of the case? "
IV. CONSIDERATION
17. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner has obtained passport from the respondent at the inception in the year 1979 and the passport was being renewed from time to time after following the procedure and it was being valid up to 30.1.2000 and there was no passport from 31.1.2000 to 13.6.2012. On 14.6.2012 the respondent authorities issued 18 passport to the petitioner and it was valid up to 13.6.2013. Subsequently, the passport was issued to the petitioner on 14.3.2013 taking into consideration that his wife was suffering from cancer and he has to take his wife to Singapore hospital for treatment and its validity was up to 13.3.2014 to Singapore and USA.
18. It is also not in dispute that the petitioner earlier approached this Court in W.P. No.30080/2013 and this Court vide order dated 25.2.2015 directed the Regional Passport Officer to consider the application of the petitioner for passport strictly in accordance with the provisions of the Passports Act, 1967 without being influenced or by relying on the orders impugned in the said writ petition and also observed that it is needless to say the adverse material if received from the Police is not binding on the Regional Passport Officer and he has to take an independent decision in accordance with law and the application shall be considered within a period of three months. In pursuance 19 of the order passed by this Court stated supra, the respondent - Regional Passport Officer, Bangalore by the impugned order dated 25.6.2015 (Annexure-W) refused to issue passport to the petitioner incorporating the provisions of Section 6(2)(b)&(c) of the Passports Act, 1967. Absolutely no discussion is made and no reasons are assigned except mentioning the provisions of Section 6(2)(b) & (c) of the Passport Act, 1967 in the order. The order passed by the 3rd respondent is not a speaking order and the same is contrary to the directions issued by this Court dated 25.2.2015 made in W.P. No.30080/2013 that the authorities have to take an independent decision without being influenced by the Police report and pass orders. Absolutely no reasons are assigned to refuse or reject the application of the petitioner for passport.
19. The appellate authority - 2nd respondent has narrated the events and ultimately recorded a finding that having gone through all the records and in the light of the 20 adverse police verification reports and the non- recommendatory reports of the Central Security Agencies, the order of the Passport Officer dated 25.6.2015 denying passport facility to the petitioner herein under the provisions of Sections 6(2)(b) & (c) of the Passports Act, 1967, is in order and the appeal is not allowed. The appellate authority while not allowing the appeal has tried to supplement the reasons to the order of the original authority, which is impermissible.
20. When this Court considering the rival contentions of the parties directed the respondent authorities to decide the application of the petitioner independently without being influenced by the adverse material received from the Police and the same is not binding on the respondent authorities, still the original authority has not assigned reasons as to why the application filed by the petitioner for passport was rejected and the appellate authority reiterated that in view of the adverse police verification reports and 21 the non-recommendatory reports of the Central Security Agencies, the order passed by the original authority is justified. Absolutely there is no independent application of mind by the original authority as well as the appellate authority while passing the impugned orders.
21. It is well settled that the deficiency of a natural justice before the original authority cannot be cured by the appellate authority. When the original authority has not followed the procedure, the appellate authority ought to have remanded the matter to the original authority for reconsideration of the matter afresh within the time frame. By the impugned order dated 23.11.2015, the appellate authority confirmed the order passed by the original authority relying upon the police verification reports as well as the reports of the Central Security Agencies and absolutely there is no discussion with the relevant material on record by the appellate authority.
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22. The Hon'ble Supreme Court in the case of KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER vs. MASOOD AHMED KHAN AND OTHERS reported in (2010)9 SCC 496 has held that while passing the orders, the authorities must record reasons in support of their conclusion by following the principles of natural justice. At paragraph-47, it is held as under:
47. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must
record reasons in support of its
conclusions.
c. Insistence on recording of reasons
is meant to serve the wider principle of
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justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts.24
This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.25
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers.
Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See RUIZ TORIJA v. SPAIN (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein 26 the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
V. CONCLUSION
23. For the reasons stated above, the point raised in the present writ petition is answered in the affirmative holding that the petitioner has made out a prima-facie case to interfere with the impugned orders passed by the original authority as well as the appellate authority, in the facts and circumstances of the case. The impugned order passed by the original authority without assigning any reasons cannot be sustained. The appellate authority while confirming the 27 order passed by the original authority tried to supplement the reasons to the order passed by the original authority, which is impermissible and therefore the same cannot be sustained.
24. In view of the above, the writ petition is allowed. The impugned orders passed by the original authority as well as the appellate authority as per Annexure-W dated 25.6.2015 and Annexure-Y dated 23.11.2015 are hereby quashed. The matter is remanded to the 3rd respondent - original authority to reconsider the claim/application of the petitioner afresh taking into consideration the additional documents to be produced by the petitioner and pass speaking order strictly in terms of the order dated 25th February 2015 made in W.P. No.30080/2013 and in accordance with law.
25. The petitioner is directed to produce the additional documents before the 3rd respondent within a period of 15 28 days from the date of receipt of copy of this order. After receipt of the additional documents, the 3rd respondent shall decide the application and pass appropriate orders strictly in accordance with law as stated supra within a period of six weeks from the date of receipt of copy of the order.
All the contentions of both the parties are left open. Ordered accordingly.
Sd/-
JUDGE Gss/-