Gujarat High Court
Patel vs Regional on 20 September, 2011
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
Print
SCA/8192/2011 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8192 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ?
Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ?
No
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PATEL
MUKESHKUMAR KARSHANBHAI - Petitioner(s)
Versus
REGIONAL
PASSPORT AUTHORITY - Respondent(s)
=====================================================
Appearance :
Mr.M.T.M.Hakim
for MR R.K.MANSURI for Petitioner
MR HRIDAY
BUCH for
Respondent
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 20/09/2011
ORAL
JUDGMENT
1. Rule.
Mr. Hriday Buch, learned Central Government Standing Counsel, waives service of notice of Rule, for the respondent. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being finally heard and decided.
2. This petition under Article 226 of the Constitution of India has been preferred with a prayer to direct the respondent Regional Passport Authority to renew the Passport, incorporating therein the name of the adoptive father of the petitioner, and to quash and set aside the Communication dated 29-03-2011, whereby the application of the petitioner dated 07-03-2011, has been rejected on the sole ground that the adoption of the petitioner has not been done in accordance with the requirements of Section 10(iv) of the Hindu Adoptions & Maintenance Act, 1956 ("The Adoptions and Maintenance Act"
for short).
3. The case of the petitioner, as set out in the petition, is that the petitioner has been adopted by Shri Karshanbhai Patel, as per the Registered Adoption Deed dated 09-04-2009, as the adoptive father of the petitioner has six daughters and no son. According to the petitioner, the rituals of adoption have been conducted as per the customs of the community to which the petitioner belongs. The name of the adoptive father of the petitioner has been entered in the Ration Card, Driving Licence, and Election Card of the petitioner, as being the father of the petitioner. The grievance of the petitioner is that, on applying for renewal of his Passport, the application has been rejected by the respondent by impugned order dated 29-03-2011, on the ground that the adoption of the petitioner has not been made in accordance with the provisions of Section 10(iv) of the Adoptions and Maintenance Act. Aggrieved thereby, the petitioner has approached this Court by way of the present petition.
4. An affidavit-in-reply has been filed on behalf of the respondent wherein the stand has been reiterated that the adoption of the petitioner has not been made in accordance with the provisions of the Adoptions and Maintenance Act, as the petitioner has been adopted at the age of 34 years whereas, as per the Adoptions and Maintenance Act, the adoption cannot take place after the age of 15 years. It is further stated in the affidavit-in-reply, that if the petitioner is not satisfied with the decision rendered by the respondent, he may file an appeal to the Chief Passport Officer, Ministry of External Affairs, as per Section 11 of the Passports Act, 1967 ("The Passports Act" for short).
5. Mr.M.T.M.Hakim, learned advocate for the petitioner, has submitted that the impugned order passed by the respondent is beyond the jurisdiction vested in him as per provisions of Section 5(2) of the Passports Act, therefore, the petitioner has invoked the jurisdiction of this Court. It is submitted that, as per sub-section(2) of Section 5, the Passport Authority is vested with the power to conduct an inquiry, if considered necessary, before issuing or refusing a Passport. However, the said provision of law does not empower the Passport Authority to render a finding regarding the legality, or otherwise, of the adoption, as such a finding can only be given by a Competent Court. It is further urged by the learned advocate for the petitioner, that as per Section 16 of the Adoptions and Maintenance Act, there is a legal presumption that a registered document regarding adoption shall be presumed to have been made in accordance with the provisions of the Hindu Adoptions and Maintenance Act, unless it is proved otherwise. It is urged that in the present case, there is no material on record to indicate that the adoption of the petitioner has been proved to be not in accordance with the provisions of Section 10(iv) of the Adoptions and Maintenance Act, as it was never challenged before any Court of law, therefore, the impugned order is without jurisdiction, and may be quashed and set aside.
6. Mr.Hriday Buch, learned Central Government Standing Counsel, has supported the stand taken by the respondent in the affidavit-in-reply, and has submitted that in the inquiry conducted by the respondent under the provisions of Section 5(2) of the Passports Act, it has been noticed that the age of the petitioner on the date of adoption was 34 years whereas, as per the provisions of Adoptions and Maintenance Act, the adoption could not have been made beyond the age of 15 years, and this aspect has been noted by the respondent, in the impugned order, and the request of the petitioner has been rightly refused.
7. I have heard the learned advocates for the respective parties, considered the submissions made at the Bar, and perused the impugned order dated 29-03-2011. It transpires therefrom, that the said order appears to have been passed on the sole ground that the adoption of the petitioner has not been effected in accordance with the provisions of Section 10(iv) of the Adoptions and Maintenance Act, leading to the rejection of the application of the petitioner, for renewal of the Passport by reflecting the name of his adoptive father.
8. In order to examine whether the impugned order has been passed by exceeding the jurisdiction vested in the respondent, it would be necessary to refer to the provisions of Section 5 of the Passports Act, which is relevant and reads as below:
"5. Applications for passports, travel documents, etc., and orders thereon. - (1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents.
Explanation.-
In this section, "named foreign country" means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.
(1A) An application for the issue of-
(i) a passport under this Act for visiting a named foreign country; or
(ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee, if any, not exceeding rupees fifty, as may be prescribed.
(1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.
(2) On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing.-
(a) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or
(b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or
(c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.(3)
Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy."
(emphasis supplied)
9. As is seen from sub-section (2) of Section 5 of the Passports Act, the Passport Authority is vested with power to make an inquiry, upon receipt of an application, if it is considered necessary. As per Clause (c) of sub-section (2), after making the inquiry, the Passport Authority can refuse to issue a Passport or travel document, by making an order in writing. This is the extent of the power vested in the Passport Authority, while dealing with an application for issuance or renewal of a Passport. The power of conducting an inquiry under sub-section (2) of Section 5 of the Passports Act cannot be stretched so far as to mean that it would include the power to pronounce upon the legality, or otherwise, of an adoption. That power can only be exercised by a Court of competent jurisdiction in a case where such adoption is under challenge, and that too after following the proper procedure, hearing the parties and considering the evidence produced by them. Admittedly the Regional Passport Officer is not the competent authority to adjudicate upon the legality, or otherwise, of an adoption, while dealing with an application for renewal of a Passport, whatever may be impression regarding the provisions of law gathered by him. In this view of the matter, the respondent has exceeded the jurisdiction vested in him by virtue of Section 5(2) of the Passports Act. As the impugned order is without jurisdiction, the same is bad in law and the challenge to it can be entertained by this Court in writ jurisdiction.
10. In this regard, it would also be relevant to notice the provisions of Section 16 of the Adoptions and Maintenance Act, which are as follows:
"16.
Presumption as to registered documents relating to adoption.- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
11. The said provision of law makes it clear that a legal presumption is attached to any registered document pertaining to an adoption, and it shall be presumed that such adoption has been made in compliance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 "unless and until" it is disproved. The adoption of the petitioner has been effected by a Registered Deed. It is not the case of the respondent that the adoption of the petitioner has been disproved, therefore, the presumption envisaged by Section 16 will come into play and it is not open to the said respondent to pronounce upon the legality, or otherwise, of the adoption of the petitioner, which has not been disproved by a competent court of law.
12. The learned advocate for the petitioner has brought to the notice of the Court, the judgment in Amruta Vijay Vora v. Union of India, 2003(3) GLR 2625, wherein this Court has held that:
"6.
Even otherwise also, as per Sec.16 of Hindu Adoptions & Maintenance Act, 1956 (hereinafter referred to as "the Act") when any adoption deed is registered there shall be a presumption for documents relating to the adoption and the presumption shall be that the adoption has been made in compliance with the provisions of Act unless and until it is disproved. Such presumption can be made applicable not only in Court proceedings, but such presumption in view of Sec.16 can also reasonably be made applicable even at the time when the authority has to consider the matter for issuance of passport because the passport authority while considering the matter for issuance of passport is also acting as a quasi-judicial authority."
This judgment fortifies the view of this Court, noted hereinabove.
13. For the aforestated reasons, the petition is partly-allowed. The impugned order dated 29-03-2011 passed by the respondent is quashed and set aside. The matter is remitted to the said respondent for fresh consideration and decision, in accordance with law. Rule is made absolute, accordingly. No order as to costs. Direct service is permitted.
(Smt.Abhilasha Kumari,J) arg Top