IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 29566 of 2011(U) ----------------------------------------- PETITIONER(S): ------------------------ KUNJUMON THANKAPPAN, NAMPIATHIKUTTY VADAKKATHIL, KIDANGANAM NORTH, PATTARAM P.O., KOLLAM DISTRICT. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): ---------------------------- 1. THE CHIEF PASSPORT OFFICER, GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, CPV DIVISION PATIALA HOUSE, ANNEXE, TILAKMARG, NEW DELHI, PIN - 110 001. 2. THE PASSPORT OFFICER, SNSM BUILDING, KAITHAMUKKU, TRIVANDRUM, PIN - 695 024. R1 & R2 BY SRI. P.PARAMESWARAN NAIR, ASST.S.G. OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29566/2011 U APPENDIX PETITIONER'S EXHIBITS: EXT.P-1 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 4.2.2011. EXT.P-2 TRUE COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BEFORE THE FIRST RESPONDENT. EXT.P-3 TRUE COPY OF THE O.P.NO.501/2010 OF THE FAMILY COURT, KOTTARAKKARA. EXT.P-4 TRUE COPY OF THE O.P (HMA) NO.289/2010 OF THE FAMILY COURT, KOTTARAKKARA. EXT.P-5 TRUE COPY OF THE JUDGEMENT IN O.P.NO.501/2010 DATED 2.4.2011 OF THE FAMILY COURT, KOTTARAKKARA. EXT.P-6 TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER DATED 18.8.2011. EXT.P-7 TRUE COPY OF THE PASS ISSUED TO SRI.M.P.ASLAM DT.1.9.2011. EXT.P-8 TRUE COPY OF THE LETTER ISSUED BY THE PORT REGISTRATION OFFICER, TRIVANDRUM AIRPORT DATED 18.9.2011. EXT.P-9 TRUE COPY OF THE ADMA-OPCO DAS ISLAND BOOKING FORM. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 29566 of 2011 U ``````````````````````````````````````````````````````````` Dated this the 9th day of November, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner is the holder of passport No.J 2314435 dated 24.11.2010 issued by the second respondent. Ext.P1 order was issued by the second respondent on 04.02.2011, impounding his passport and the reason stated in the said order reads thus:- “2. Since a criminal case pending trial accused in criminal case and also you have not responded to our show cause notice issued vide this office letter of even number dated 03/01/2011, it has been decided to impound your passport No.J2314435 issued on 24/11/2010 by this office, under section 10(3)(e) of the Passports Act, 1967 as amended in 1993.” 2. Aggrieved by Ext.P1, in terms of the provisions contained in Section 11 of the Passports Act, 1967, W.P.(C) No.29566/2011 : 2 : petitioner filed an appeal before the first respondent. In the appeal memorandum, in ground Nos.2, 3 and 4, petitioner specifically stated thus:- “2. There is no criminal case pending in any court against the appellant. 3. In the impugned order the details of the case namely the number of the case, the name of the court etc... are not given. 4. If any report in this regard is obtained by the passport officer from the police a copy of the same ought to have been furnished to the appellant. The non- supply of the same vitiates the order as the appellant could not effectively make any representation against the notice.” 3. Further, he also stated that there were two cases pending against him before the Family Court, Kottarakkara, which were O.P.Nos.289/2010 and 501/2010. In this writ petition, he has also produced Ext.P5, the order dated 02.04.2011 of the Family Court, which shows that the W.P.(C) No.29566/2011 : 3 : proceedings in the aforesaid two O.Ps. were settled and were withdrawn. 4. Petitioner submits that the appeal was heard by the first respondent on 01.09.2011. However, orders have not been passed so far. In the meanwhile, on 18.09.2011, when the petitioner landed at the Thiruvananthapuram Airport, his passport was seized and was forwarded to the second respondent. According to the petitioner, he has to join back his employer on 10.11.2011 and as a result of the failure of the first respondent in passing orders on his appeal, he is prevented from getting the passport released from the second respondent. It is in these circumstances, the writ petition has been filed with the prayers as follows:- “(i) Issue a writ of mandamus directing the first respondent to dispose of Ext.P2 appeal and communicate the copy of the same to the petitioner forthwith to the petitioner and to the second respondent. (ii) Issue a writ of mandamus directing the second respondent to release W.P.(C) No.29566/2011 : 4 : the passport of the petitioner bearing No.J2314435 forthwith to the petitioner.” 5. Taking note of the specific averment in the writ petition that the first respondent heard the appeal as early as on 01.09.2011 and that orders have not been passed so far and also taking note of the urgency of the situation as pointed out by the learned counsel for the petitioner, when this writ petition came up for admission on 04.11.2011, the case was adjourned and posted to 08.11.2011 with a specific direction to the Standing Counsel for the respondents to obtain instructions as to whether any order has been passed by the first respondent on Ext.P2 appeal. Instructions were not obtained and, therefore, the case was posted to today. Today also, instructions in that respect are not forthcoming. 6. However, Standing Counsel sought to justify Ext.P1 by contending that the passport in question was issued to the petitioner under a scheme called “Tatkal”. It is stated that in the post verification conducted by the police, an adverse report to the effect that at the time when the petitioner applied W.P.(C) No.29566/2011 : 5 : for passport, cases were pending against him in the Family Court, Kottarakkara was received and that it was because of that report, show cause notice was issued to the petitioner on 03.01.2011 to which the petitioner did not submit any reply. It is stated that it was in such circumstances that Ext.P1 order has been issued. Yet another contention that is now raised by the counsel is that his marital status was not disclosed and that this amounted to suppression of a vital information. 7. As already seen, the impounding of the passport of the petitioner was ordered as per Ext.P1 and the reason thereof is also stated in the said order. The only reason which is contained in this order is that criminal cases are pending trial against the petitioner and that he did not respond to a show cause notice. From the submissions made by the learned counsel for the respondents itself, it is evident that there was no criminal case pending against the petitioner and that the only proceedings which were pending and now compromised, are the proceedings that were pending before W.P.(C) No.29566/2011 : 6 : the Family Court. Passports Act do not render a person against the proceedings in the Family Court are pending ineligible for the issuance of a passport. On the other hand, Section 6(2)(f) renders only a person against whom criminal proceedings are pending alone is ineligible in this case. Not only that no criminal case is pending against the petitioner and even if it is assumed that at the relevant time proceedings were pending before the Family Court, such proceedings cannot be relied on against the petitioner to impound his passport. Consequently, there was no circumstances justifying the invocation of Section 10(3)(e) of the Passports Act against the petitioner. 8. As far as the failure of the petitioner to respond to the show cause notice is concerned, the counsel for the respondent relied on Section 10(1) and Section 10(3)(g) of the Passports Act. Section 10(3)(g) states that the passport authority may impound or cause to be impounded or revoked a passport or travel document if the holder of the passport or W.P.(C) No.29566/2011 : 7 : travel document has failed to comply with a notice issued under Section 10(1). Section 10(1) provides for the issuance of a notice in writing requiring the holder of a passport to deliver up the passport or travel document within such time as may be specified in the notice and the holder is required to comply with such notice. 9. A show cause notice calling upon the holder of a passport requiring him to show cause why the passport shall not be impounded is not a notice as contemplated under Section 10(1) to attract the provision of Section 10(3)(g) of the Act. Therefore, even if it is assumed that the petitioner did not show cause against the notice dated 03.01.2011, that could not have been resulted in the impounding of his passport. 10. As far as the suppression alleged against the petitioner is concerned, that is not a ground relied on in Ext.P1 order. It is the settled position of law [Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi (AIR 1978 SC 851)] that the validity of an order has to be W.P.(C) No.29566/2011 : 8 : judged based on the reasons stated in the order itself and not by anything else. Therefore, since suppression alleged is not a reason relied on in Ext.P1, I am not inclined to entertain the submission now made by the learned counsel for the respondents. 11. In the result, I do not find any ground to sustain Ext.P1. Since despite having heard the appeal as early as on 01.09.2011, orders have not been passed by the appellate authority so far and in view of the urgency pointed out by the learned counsel for the petitioner for the release of the passport, for the reasons pointed out above, Ext.P1 order will stand quashed and the second respondent shall forthwith release the passport of the petitioner to him. Writ petition is disposed of as above. Sd/- (ANTONY DOMINIC, JUDGE) aks/09/11 // True Copy // P.A. To Judge