CWP No. 20710 of 2006 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. CWP No. 20710 of 2006 Date of decision: 25.1.2008 Gagandeep Singh and another ....Petitioners. vs. Union of India and others. ..Respondents CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE RANJIT SINGH. HON'BLE MR.JUSTICE M.M.S.BEDI. --- Present: Mr.Vikas Behl, Advocate, for the petitioners. Mrs.Naveender P.K.Singh, Advocate, for respondent Nos. 1 to 5. -- J.S.KHEHAR,J. 1. The present controversy relates to the action of the respondents in denying a passport to petitioner No.1 Gagadeep Singh the minor adopted son of petitioner No.2 Manjit Kaur. When the issue pertaining to the controversy came to be canvassed before this Court in the first instance, learned counsel for the petitioner had placed emphatic reliance on a decision rendered by the Full Bench of this Court in Pawan Deep Singh v. Union of India and another AIR 2004 (Punjab) 106. In Pawan Deep Singh's case (supra), the petitioner who was an applicant for a passport, had been adopted by his uncle living in Italy. Pawan Deep Singh's application for the grant of a passport was turned down because his adoption by his uncle living in Italy was considered to be invalid. The controversy raised in the present case is substantially similar to the one raised in Pawan Deep Singh's case. Gagandeep Singh, Petitioner No.1 in the present case, has been adopted by his aunt ( sister of the natural mother of petitioner No.1.) Manjit CWP No. 20710 of 2006 2 Kaur, petitioner No.2. Gagandeep Singh has also been denied a passport on the ground that his adoption by his aunt Manjit Kaur is not being considered valid. 2. While adjudicating upon the controversy referred to in the foregoing paragraph, a Full Bench of this Court in Pawan Deep Singh's case (supra) had the occasion to examine Section 6 of the Passports Act, 1967 (hereinafter referred to as “the Passports Act”). It was thereupon concluded, that the Passport Authorities could refuse to issue a passport to an applicant, on any one or more of the nine grounds expressed in Section 6 (2) of the Passports Act, and on no other ground. While dealing with the same contention advanced by the learned counsel for the petitioner (in the present case) for the same relief as had been granted to the petitioner in Pawan Deep Singh's case (supra), this Court passed the following order on 9.5.2007:- “ The respondents have refused to issue a passport to petitioner No.1. It is, therefore, that the instant writ petition has been filed, impugning the action of the respondents in declining to issue a passport to petitioner No.1. The primary contention of the learned counsel for the petitioners, to assail the action of the respondents, is based on a judgment rendered by a Full Bench of this Court in Pawan Deep Singh v. Union of India and another, AIR 2004 (Punjab) 106. In the aforesaid case, while interpreting section 6 of the Passport Act, 1967, the Full Bench observed as under : “9. A bare perusal of Section 6 aforementioned shows that except on four grounds mentioned in sub-section(1) and nine grounds mentioned in sub-section (2) of Section 6 on no other ground there could be refusal to grant Passport or travel document .” It is necessary, however, to notice that there was no discussion on the matter and no other provision, besides section 6 of the Passport Act, 1967, was taken into consideration. It would, however, be pertinent to mention that section 6 commences with the words “Subject to the other provisions of this Act...”. It is, therefore, apparent, that the provisions of the Passport Act, 1967, envisage grounds for CWP No. 20710 of 2006 3 refusal of a passport to an applicant, other than the 13 grounds noticed by the Full Bench, in the extract, reproduced by us, hereinabove. Learned counsel for the respondents submits, that other grounds for refusal of a passport, besides those mentioned under section 6 of the Passport Act, 1967, emerge from sections 5(2) and 10(3) of the said Act. Learned counsel for the respondents, accordingly, submits that the matter in hand cannot be deemed to be completely and effectively adjudicated upon in the decision rendered by this Court in Pawan Deep Singh's case (supra). It would, therefore, be in the fitness of matter, that the controversy should be re-adjudicated by a Full Bench of this Court. Since the issue is of vital interest and arises for consideration repeatedly at short intervals, it would be in the interest of all concerned that the issue be taken to its logical conclusion at the earliest. In view of the above, Hon'ble the Chief Justice may constitute a Full Bench, for the aforesaid purpose, at the earliest. The Registry is, accordingly, directed to place this order for his Lordship's perusal, without any further delay.” 3. The order passed by the Division Bench on 9.5.2007, resulted in the constitution of the present Full Bench. 4. The present Full Bench shall, therefore, once again embark on the task of determining, whether or not there are any other provisions besides Section 6 of the Passports Act, under which a passport can be declined to an applicant i.e. besides the nine grounds expressed in Section 6 (2) of the Passports Act. 5. Learned counsel for the rival parties have invited our attention to the introduction, as well as, the statement of objects and reasons of the Passports Act. A perusal thereof reveals that the Supreme Court by a majority decision, in Satwant Singh Sawhney v. Union of India AIR 1967 SC 1836, held that the right to travel abroad was an integral part of a person's personal liberty protected and preserved as a fundamental right under Article 21 of the Constitution of India. And that, Government had no CWP No. 20710 of 2006 4 right to interfere with an individual's personal liberty except in accordance with procedure, established by law. The Apex Court accordingly also concluded, that Government did not enjoy an absolute discretion in the matter of issuing passports. The aforesaid conclusion was drawn in the back ground of the fact that prior to the decision in Satwant Singh Sawhney's case (supra), Government in exercise of its executive power exercised an unfettered discretion in the matter of issue of passports. 6. As Parliament was not in session, an Ordinance namely the Passports Ordinance 1967 (hereinafter referred to as “the Passports Ordinance”) was promulgated immediately after the decision in Satwant Singh Sawhney's case (supra), so as to lay down the procedure and parameters for the grant and denial of passports. The Passport Ordinance prohibited the departure from India of any person without a passport or a travel document. The Ordinance also provided for the machinery and the mechanism for the issuance of passports. The Passport Ordinance additionally defined the grounds on which a passport could be refused. The said Ordinance also specified the grounds on which a passport could be impounded or revoked. 7. The Passports Act replaced the Passports Ordinance on 24.6.1967. 8. Learned counsel for the rival parties keeping in mind their rival interest, read and re-read to us the provisions of Sections 5,6 and 10 of the Passports Act. Whilst, the objective of the learned counsel for the petitioner was emphatically aimed at justifying the conclusion drawn by the Full Bench in Pawan Deep Singh's case (supra) i.e. that the refusal of a passport to an applicant, must essentially be based on the nine grounds CWP No. 20710 of 2006 5 specified in Section 6(2) of the Passports Act, and on no other ground. Learned counsel for the respondents, on the contrary, relying heavily on Sections 5 and 10, as well as, the provisions of the rules framed thereunder emphatically canvassed, that a passport can be refused by the Passport Authorities for reasons/grounds besides those specified under Section 6(2) of the Passports Act. 9. Having heard learned counsel for the parties, we are of the view, that it would be appropriate, in the first instance, to search answers for the following three propositions. Firstly, whether or not the “consideration”of the claim of an applicant for the issuance of a passport can be “refused” if the applicant has provided wrong information, or has suppressed material information while submitting the application form. This proposition relates to a stage before deciding whether or not an applicant has the “right” to hold a passport. The instant issue would have within its purview the limited determination of the “validity” of the application submitted by an applicant seeking a passport. Secondly, whether an applicant can be refused the “right” of holding a passport despite the fact that he has submitted a valid application for the same. The instant issue essentially relates to a situation where the validity of the application submitted by the applicant for issuance of a passport (unlike the first proposition) is not a matter of dispute. And thirdly, whether a person who has in his possession a passport, can be deprived of the same, by revoking the passport issued to him, or by impounding it, on the ground that the application had been wrongfully “considered” in the first instance, or that the applicant does not have a “right” to hold the passport. In the instant proposition, there is no presumption of the applicant being eligible for CWP No. 20710 of 2006 6 “consideration” for the issuance of a passport, nor that the applicant has the “right” to hold a passport. These propositions could be drawn only after hearing of the matter concluded. The purport of each of the three propositions would unfold with the interpretation of the different provisions of the Passports Act, coupled with the submissions advanced by the rival parties. 10. The first proposition raised in paragraph 9, first. 11. Section 5 of the Passports Act requires that an application submitted for the grant of a passport should be in a specific format, and should be submitted along with the fee specified therefor. Section 5 also vests a right in the Passport Authorities to make an inquiry into the correctness of the particulars disclosed by the applicant in his application form. Section 5 of the Passports Act, also vests the decision making authority with the right/authority to “accept” an application or to “refuse” to accept the same. Section 5 aforesaid thus defines the procedural code for the issuance of a passport. Section 5 of the Passports Act is being reproduced hereunder:- “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 express 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 - CWP No. 20710 of 2006 7 (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. (IB) 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 an 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 © 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 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.” 12. An examination of Section 5(1) of the Passports Act, reveals CWP No. 20710 of 2006 8 that an application form for the issuance of a passport is to be accompanied by such fee “as may be prescribed”. Sub section (1-B) of Section 5, mandates that an application form for a passport must be in such form as “may be prescribed”. Incidentally, the words “... as may be prescribed ...” appear repeatedly in the Passports Act. Reference in this behalf may be made to Section 7 of the Passports Act which deals with the duration of the validity of a passport. The duration being such “as may be prescribed” Likewise, Section 9 of the Passports Act stipulates, that the issuance of a passport would be subject to such conditions “as may be prescribed”. 13. In order to understand the term “prescribed” used in different provisions of the Passports Act, one must essentially fall back on Section 2 (d) of the Passports Act, which defines the said term as under:- “2. Definitions:- In this Act, unless the context otherwise requires;- (d) “prescribed” means prescribed by rules made under this Act”. A perusal of Section 2(d) of the Passports Act, leads one to the rule making authority vested in the Central Government under Section 24 of the Passports Act. Section 24 of the Passports Act, is also being extracted hereunder:- 24. Power to make rules_(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely; (a) the appointment, jurisdiction, control and functions of passport authorities; (b) the classes of persons to whom passports and travel documents referred to respectively in sub-section (1) and sub- section (2) of section 4 may be issued; CWP No. 20710 of 2006 9 (c) the form and particulars of application for the issue or renewal of a passport or travel document or for endorsement on a passport or travel document and where the application is for the renewal, the time within which it shall be made; (d) the period for which passports and travel documents shall continue in force; (e) the form in which and the conditions subject to which the different classes of passports and travel documents may be issued, renewed or varied; (ee) specifying the foreign country for the purposes of the Explanation to sub-section (1) of section 5: (f) the fees payable in respect of any application for the issue of a passport under sub section (1) of section 5 or issue of a passport for visiting a foreign country referred to in sub- section (1A) of section 5 or travel document or for varying any endorsement or making a fresh endorsement on a passport or a travel document and the fees payable in respect of any appeal under this Act; (g) the appointment of appellate authorities under sub- section (1) of section 11, the jurisdiction of, and the procedure which may be followed by, such appellate authorities; (h) the services (including the issue of a duplicate passport or travel document in lieu of a passport or travel document lost, damaged or destroyed) which may be rendered in relation to a passport or travel document and the fees therefor; (i) any other matter which is to be or may be prescribed or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary for the proper implementation of the Act. (3) Every rule made under this Act shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” 14. In exercise of the powers vested with the Central Government under Section 24 of the Passports Act, the Central Government notified the CWP No. 20710 of 2006 10 Passports Rules, 1980 ( hereinafter referred to as “the Passports Rules”) on 11.10.1980. It also needs to be noticed that Section 24(3) of the Passports Act, requires that rules made by the Central government under the aforesaid provision have to be placed before the two Houses of Parliament. The rules so framed by the Central Government, unless modified or annulled by the two Houses of Parliament come into effect as they are drawn by the Central Government. If both the Houses of Parliament, do not accept the rule(s), framed by the Central Government, the rule(s) framed by the Central government do not come into effect. And in case, the Houses of Parliament agree that the rule(s) should be framed in a modified form , then the rule(s) in such modified form, as are approved by both the Houses of Parliament, come into effect. 15. (i) So as to limit the deliberations to the subject matter in hand, relating to the first proposition, reference may be made to Section 5 (1-B), which postulates that every application for a passport must be in the form “prescribed”. Section 24(2)(c) of the Passports Act authorizes the Central Government to make rules providing for “the form and particulars of application” for the issuance of a passport. In continuation with the aforesaid power vested in the Central Government, rule 5 of the Passports Rules, provides as under :- “5. Form of applications;- (1) An application for the issue of a passport or travel document or for the renewal thereof or for any miscellaneous service shall be made in the appropriate Form set out therefore in Part I of Schedule III and in accordance with the procedure and instructions set out in each form; Provided that every application for any of the aforesaid purposes shall be made only in the form printed and supplied by- (a) the Central Government; or (b) Any other person whom the Central Government may CWP No. 20710 of 2006 11 by notification specify, subject to the condition that such person complies with the conditions specified by that Government in this behalf; Provided further that in the course of any inquiry under sub- section (2) of section 5, a passport authority may require an applicant to furnish such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application. (2) The price of the new application forms referred to in sub rule (1) shall be as specified in column 3 or 4, as the case may be, of Schedule III A for that particular category; (3) The Passport Authority may authorise any person or authority to collect passport applications on its behalf for use of a passport or travel document or for the renewal thereof or for any miscellaneous service on payment of a service charge specified by the Central Government under sub rule(2) of rule 8 in addition to the fee payable under sub rule (1) of rule 8 and the service charge shall be paid by the applicant to such person or authority”. A perusal of rule 5, extracted hereinabove, reveals that an application for a passport has to be in the format thereof set out in Part-I of Schedule-III, and also, in “accordance with the procedure and instructions set out in such form”. It would, therefore, essentially follow that a valid application submitted for the issuance of a passport, should be in the format stipulated under the Passport Rules. (ii) Section 5(1) of the Passports Act mandates that an application form is to be accompanied by such fee, as may be “prescribed”. Section 24(2)(f) of the said Act vests power in the Central Government to provide for the fees payable. Rule 8 of the Passports Rules, which deals with the issue, is being extracted hereunder:- “8. Fee payable on applications;- (1) The fee payable on every application mentioned in column (2) of Schedule IV shall be at the rates specified in the corresponding entry in column (3) or column (4), as the case may be of that schedule”. A perusal of the aforesaid rule reveals that the fee expressed in Schedule-IV CWP No. 20710 of 2006 12 appended to the Passport Rules, would be payable by an applicant seeking a passport. It would, therefore, essentially follow that a valid application for a passport would be one wherein the prescribed fee is enclosed. (iii) Stated briefly, the provisions of the Passports Act lay down the duration for which a passport can be issued (section 24(2)(d) of the Passports Act read with with rule 12 of the Passports Rules). The aforesaid statutory provisions also prescribe the conditions subject to which a passport can be issued (section 24(2)(ee) of the Passports Act read with rule 12 of the Passports Rules). The eligibility of an individual for the different classes of passports (ordinary/official/diplomatic) envisaged under Section 4 of the Passports Act (read with section 24(2)(b) of the Passports Act and rule 4 of the Passports Rules). And the countries to which a passport holder can travel, or the countries to which a passport holder is restrained from travelling (envisaged under Sections 5 and 19 of the Passports Act, read with section 24(ee) of the Passports Act and the Passports Rules). The Rules referred to in the instant sub paragraph are not being extracted as two illustrations on the same lines in the two sub- paragraphs above fully elaborate the issue which is sought to be projected. 16. From a cumulative reading of Sections 5,7 and 9, with section 2(d) and Section 24 of the Passports Act, it is inevitable to conclude that the provisions of the Passports Act, and the provisions of the Passports Rules have to be read together Only when read together the procedure for the issuance of a passport, as also, the essential prerequisites for the issuance of a passport become clear. Illustratively, although an application for a passport is made under Section 5 of the Passports Act, the format thereof and the fee