HARAN CHANDRA HALDER Vs. UNION OF INDIA

JUDGEMENT

(1.) 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.

(2.) 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 subSection 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, 2009 4 CalLT 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.

(3.) 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.