Calcutta High Court (Appellete Side)
Haran Chandra Halder vs The Union Of India & Others on 7 April, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(2)
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present
The Hon'ble Justice Ashim Kumar Roy
W.P. No. 27380(W) of 2013
Haran Chandra Halder
Versus
The Union of India & Others.
For the Petitioner : Mr. Upendra Roy
For the Respondents : Mr. Kaushik Chandra,
Mr. Kushagra Shah,
Ms. S. Agarwal
Heard on : 04.4.2014
Judgment on : 7.4.2014
Ashim Kumar Roy, J.:
The writ petitioner is the holder of the passport bearing no. E- 1066662 issued in the year 2000 which is to remain valid till 2012. After expiry of the passport, on June9, 2012 the writ petitioner applied for re-issue of the passport, since there was no response from the side of the Passport Authority, the writ petitioner moved this court and by an order passed on 21st December, 2012 in connection with the W.P. No. 26473(w) of 2012, a co-ordinate bench of this court directed the Passport Officer to consider and dispose of his application for re-issue of passport and further directed in case of refusal, a reasoned order be passed and communicated to him. Finally, the respondent authority by its order passed on 1st February, 2013 being Annexure "P/5" of this writ application, rejected the petitioner's application for re-issue of the passport. Hence, this writ application.
Initially, the learned counsel appearing on behalf of the passport authority raised an objection against the maintainability of this writ application on the ground that the order impugned, passed by the Regional Passport Authority is an appellable order and against such order appeal lies before the Chief Passport Officer. On the face of such objection, I find that before rejecting the writ petitioner's prayer for re-issue of passport, no opportunity of hearing was given to him and such position has not been disputed from the side of the respondent authority. It needs no debate that availability of alternative remedy is no bar to invoke writ jurisdiction against any order passed by a statutory authority, even when the statutes itself provides for appeal, if such an order is passed in infringement of principle of natural justice. However, Mr. Chandra, the learned counsel who subsequently appeared on behalf of the respondent authority, has not disputed this well-settled position.
Furthermore, when any person applies for re-issue of passport, the passport authority is to proceed in terms of the provisions of Section 5 of the Passport Act. According to sub- Section 3 thereof, when the re-issue is refused, it is incumbent upon the authority concerned to record in writing a brief statement of its reasons for making such order and furnish to the applicant on demand, a copy of the same. Although in the case in hand, the reason for refusal has been clearly recorded but the question arises as to whether before making such order an opportunity of actual hearing is required to be given to the person so refused or not. In the case of Kamal Kumar Narottam Dash Parekh Vs. Superintendent (Administration), Regional Passport Office, Ministry of External Affairs and others reported in (2009) 4 CLT (HC) 461, an identical question arose before a co-ordinate bench of this court, where the passport of the writ petitioner was impounded. The provisions of Section 10 authorized the passport authority to impound a passport and sub-Section 5 thereof also contained a similar condition that in case of impounding of passport, the passport authority is to record in writing a brief statement of its reasons for making such order and furnish to the applicant on demand, a copy of the same. When the learned Single Judge after examining the said question quite scrupulously in the light of the decision of the Apex Court covering the field, authoritatively held the opportunity of giving actual hearing in addition to recording of reason is incumbent, when the authority concerned impounds a passport. Now having regard to the fact that content of sub-Section 5 of Section 10 and sub-Section 3 of Section 5 are para materia, I have no hesitation to hold in case of refusal to re-issue passport, the applicant has a right of hearing before the order of refusal is made and denial of hearing amounts to violation of principle of natural justice making the order untenable. Even if the statute is silent and there is no positive words in the Act or Rules as regards to the same there is nothing wrong in spelling out the need to hear the party whose right and interest likely to be affected by the order that may be passed, unless statute expressly excludes the same. Therefore, in the above background interference with the order impugned by this court in exercise of its writ jurisdiction, on the ground of availability of alternative remedy cannot be questioned.
Now, coming to the decision of the Passport Authority, I have no doubt that the consideration on which such order of refusal is based, is totally extraneous. The order in question goes like this, " .......... whereas during processing of his re-issue application, it was noticed that the police verification report against his previous passport application was incomplete/not recommended".
Thus, on the face of the aforesaid finding, indisputably, the previous passport was issued to the writ petitioner due to a mistake on the part of the passport authority and the writ petitioner cannot be blamed. None can be permitted to take advantage of his own mistake. It may be that on previous occasion the passport was issued to the writ petitioner even when the police verification report was incomplete/not recommended but the re-issue of passport cannot be refused on that ground. When any application for re- issue of passport is made, the decision as regards to the same ought to be taken on the basis of contemporaneous materials available to the authority concerned. Taking note of earlier mistake committed by the authority itself in issuing passport on the previous occasion and refusing to re-issue passport on that ground solely is totally extraneous and not tenable.
The learned counsel of the Passport Authority pointed out to this court that a criminal proceeding is pending against the writ petitioner and he is in the midst of trial. He further pointed out that pendency of a criminal proceeding is one of the grounds for refusing to grant or re-issue the passport. The question whether the passport shall be re-issued to the writ petitioner or not, on the ground of pendency of a criminal proceeding is entirely within the domain of the passport authority and this court has nothing to say on that issue, save and except noting that law does not mandate pendency of a criminal case is an automatic bar in re-issuing the passport. Once again at the risk of repetition, it be noted, it is for the passport authority to deliberate on the issue in accordance with law.
Having regard to the above, the order impugned stands quashed. The passport authority is directed to consider the question of re-issuance of the passport to the writ petitioner in accordance with law within a week from this date, after giving him reasonable opportunity of hearing. A three days' clear notice to be given to the writ petitioner before holding the hearing. To expedite the matter, the passport authority is directed to communicate the date of hearing to the writ petitioner through his lawyer by the learned counsel of the passport authority. In addition to that the writ petitioner be informed about the date of hearing by registered speed post.
The final decision in the matter to be taken by the Passport Authority within three days from the date of hearing by passing a reasoned and speaking order and same shall be communicated to the writ petitioner forthwith after final decision is reached.
Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application.
(Ashim Kumar Roy, J.)