BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No. 8/2016
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.) -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Shri Tutumoni Deva Goswami, B.A.L.L.B. - Member
- Sri Varun Agarwal - Complainants
S/O- Justice B.D.Agarwal(Retired
R/O - VIP Road, Six Mile, Radha Nagar
Guwahati-22.Dist.Kamrup(M),Assam
- Smti Nickyta Agarwal
W/O- Sri Varun Agarwal
R/O - VIP Road, Six Mile, Radha Nagar
Guwahati-22.Dist.Kamrup(M),Assam
-vs-
1. The Regional Passport Officer, - Opposite parties
Rani Bagan, Basishta Road, Bye lane No. 3,
Guwahati-781028, Assam
2. The Deputy Passport Officer ,
Passport Sewa Kendra,
Subham Velocity, Hanuboro Path, Walford,
Guwahati 781005
Appearance :
For the complainant Sri Satyajit Dutta Learned advocate .
For the Opp.party Sri Subhash Chandra Keyal, Mr.Difenso Mam Learned advocate .
Date of oral argument by complainant :- 17.12.21
Date of judgment: - 27.1.2022
JUDGMENT
1) This is a complaint filed by one Sri Varun Agarwal and Smti Nickyta Agarwal the husband and wife against the opp.party the Regional Passport Officer and The Deputy Passport Officer, Passport Sewa Kendra, Guwahati. The fact of the case briefly narrated is that a child was born out of the wedlock of the complainant namely Kritartha Agarwal on 30.8.2013. After “Naming Ceremony” the birth certificate was obtained from Registration of Birth and Death, Assam, Hengrabari, Guwahati -36 having Serial No. 4456056 and Registration No. 959/13 issued on 30.9.13. Thereafter complainant on 28.7.2015 made an application for issuance of a passport in the name of Kritartha Agarwal and submitted an application through online having registration No. 15-0009497780. On payment of passport fee of Rs.1,000/- the appointment was given on 4.8.15.
2) Subsequent to the above on 28.7.15 the complainant No. 2 applied for renewal of her passport through online and her ANR No. 15-0009496324 and she was given a date for interview on 4.8.15. Accordingly, both the complainants visited the office of the opp.party No.2 , the Passport Sewa Kendra on 4.8.15 along with their child Kritarth Agarwal . The passport application of the complainant No. 2 was processed through File No. GU1079037283615 and her son’s application was processed through File No.GU1069037282815. After scrutiny the issuance of passport the correction of name and address after marriage was allowed. Thereafter a new passport was issued after scrutiny of the documents by the passport officer.
3) It is submitted that passport application of the son of the complainant was processed simultaneously by the same officer and both the complainant have submitted their attested copies of passport during the verification of the application for Kritarth Agarwal . A declaration was also submitted by both the complainant that they are the parents of Kritarth Agarwal, but the passport of the complainant ‘s son was with-hold on the ground that , surname/title Agarwal was not suffixed/reflected after the name of Kritarth in the birth certificate and complainant will directed to visit the passport office only after includes Agarwal as title in the birth certificate of the Kritarth. It is submitted further that on the following day the father of the complainant visited the office of the opp.party No.2 for renewal of his passport and carried the declaration form signed by Varun and Nickyta with Kritarth Agarwal is their son and though title has not been mentioned in the birth certificate. Thereafter the father of the complainant , Justice(Retd) B.D.Agarwal verbally intimated the matter to the Deputy Passport Officer , i.e. opp.party No.2 who allowed to declaration to be accepted, even then the subordinate office raised an objection that Varun’s passport name of the spouse was not mentioned. This question was not raised on 4.8.15 , but on that day Nichyta’s passport was granted showing Varun’s name as her husband after verifying of her certificate. The passport application form of Nickyta and Kritarth were verified by the same officer on 4.8.15 and he was satisfied of the guardianship of the Kritarth. Howevr on 5.8.15 passport of Kritarth was again put on hold fixing 4.9.15 for production of valid passport of parents.
4) After causing the delay of 1 month , opp.party issued the passport of complainant’s son Kritarth on 4.9.15.
5) It is further submitted in the complaint petition that neither the Passport Act, 1967 , nor the Passport Rule stipulated that passport to a minor can only to be issued if both the parents are having valid passport and or passport of the single parents should also include the name of his/her spouse. The only requirement is that the parents should submit through only declaration with the minor child under Annexure –H, which is the complainant have jointly submitted in the passport office on 4.8.2015. It is further submitted that consonance with the act and rules the government has also issued certain guidelines for issuance of passport and according to clause –(2) which is applicable in the present case has been mentioned in the complaint petition which read as under ,
“ For applicants born on or after 26.1.89, only Birth Certificate issued by the Municipal Authority or any office authorized to issue Birth and death Certificate by the Registrar of Birth’s and Deaths is acceptable. The birth certificate should ordinarily contain the name of child, name of father and mother, date of birth , place of birth, sex, registration number and date of registration. If the Birth Certificate doesn’t contain the name of child , a declaration on plain paper signed by parents , is required to be submitted specifying the name of the child.
6) It is further alleged that the passport of Kritarth was issued only after production of passport of the mother containing the name of the spouse, namely Varun Agarwal though there was no such statutory requirement. According to the complainant , birth certificate of Kritarth and Annexure-H and marriage certificate of the complainant were enough to hold that Kritarth was the son the complainant and his title was Agarwal. The fact of the case further disclose a story that complainant’s were interested to visit Dubai to celebrate his son’s birthday on 30.8.15. However due to withhold of passport of Kritarth and subsequent delay in issuing the passport for trip to Dubai could not done. In this way, complainants have been subjected to mental cruelty and harassment as alleged.
7) It is alleged further that passport officer in the passport office took different stand on 4.8.2015 and 5.8.2015 and passport of Kritarth was withheld on their subjective satisfaction and arbitrary decision for which the complainants have been unnecessarily harassed. The arbitrary action of the officials of the opp.party amounts to deficiency in service and unfair treatment of the complainant . It is alleged that such type of poor performance and ignorance of law is very unfortunate whereby the complainant has suffered immense mental agony and harassment and it is alleged that it was a deficiency in service defined under Consumer Act ,1986. Accordingly, the complainant claims compensation from the opp.party on different heads i.e. compensation for mental agony amounting to Rs.5,00,000/-(Rupees five lacs)only , cost of expenditure to the tune of Rs.10,000/-(Rupees ten thousand)only and cost of litigation Rs.10,000/-(Rupees ten thousand)only and lawyers fees Rs.10,000/-(Rupees ten thousand)only per day. Further prayer to direct the respondents/opp.aprty to follow the government guidelines while issuing to genuine applications hassle free and without giving any kind of undue harassment.
8) The complaint petition was duly registered . Notice were issued and ultimately the opp.party contested the proceeding by filing written statement. The pleading of the opp.party is that the petition filed by the complainant is not maintainable and the service rendered by the opp.party does not fall under the definition of service as defined under the consumer act and as such complaint petition is liable to be dismissed. It is further alleged that complaint petition is misconceived, groundless and is liable to be dismissed with cost. According to the op.party the present dispute is not maintainable as consumer disputes and is triable by civil court and as such it is liable to be dismissed . The statement made by the complainant in his complaint petition are specifically denied by answering opp.party. It is further submitted that the statement made in certain para are matters of record and their complaint made by the complainants which are out of record are denied.
9) It is mentioned in the written statement that passport manual 2010 appendix 12 I B stipulates that for minor applicant applying for fresh passport the following documents are essential
(i) proof of present address of parents,
(ii) proof of date of birth (fro applicant born on or after 26.1.89 only birth certificates issued by the Municipal Authority or any authority authorized to issue birth certificate),
(iii) Attested photocopy of passport of parents with spouse name endorsed in it, and
(iv) a declaration affirming the particulars furnished in application about the minor as per Annexure H.
10) In the present case on 4.8.15 the birth certificate of the son of the complainant was submitted without having the surname/title ‘Agarwal’ endorsed on it and in this connection if the birth certificate does not contain in the name of the child, a declaration in the plain piece of paper signed by the parents is required to be submitted specifying by the name of the child. In the present case the name of the child was their on the birth certificate as only ‘Kritarth’ and for that clarification of the name is requirement of the verifying officer and accordingly objection was raised in this regard in view of chapter 4 Rule 4.6 Note (b) of the passport manual 2010.
11) According to the opp.party in the present case the parents passport i.e. only father’s passport was submitted on 4.8.15 having no spouse name endorsed it. But on the next day on the request of Justice Retd. B.D.Agarwal, the grand father of the applicant and father of the complainant No. 1 , the deputy passport officer allowed the process, however the the same had to be put on hold as the passport of parent’s submitted did not have spouse name. It is further submitted that endorsement of spouse name in the passport is a pre-requisite for issuing passport under no verification and as such the contention of the complainants are not correct. The answering opp.parties acted under the provisions of law and guidelines framed thereunder.
12) Again regarding statement made by the complainant the answering opp.party submits that the passport submitted by the mother of the applicant was issued by Regional Passport Officer and delivered to her through post on 12.8.2015 i.e. within 8 days of her visiting to the passport Sewa Kendra on 4.8.15 and on receipt of the passport with spouse name endorsed, the file was granted on the very first day i.e. on 4.9.15 and under no police verification mode and passport was received by the applicant through post on 11.9.15 and accordingly there was no delay on the part of opp.party in issuing the passport. It is submitted that opp.party acted promptly as soon as the passport was submitted by the authorities with endorsement with the spouse name and as such allegation of causing delay of one month in issuing the passport to the son of the complainants has no legs to stand.
13) That in regard to the statement made in the complaint petition the op.party reiterated further that the documents required for issuance of a fresh passport to minor has been mentioned in the passport manual, which stipulates that if both or either parents hold a valid passport , the passport of the minor children can be issued without police verification report and photocopies of the parents’ passport should be attached with the application and at least one passport should contain spouse name and as such the same is insisted to reduce the process of police verification and extend a hassle free service.
14) It is again submitted by the opp.party that the matter of the applicant/complainant No. 2 submitted the passport containing the name of the spouse on 4.9.15 and thereafter observing other formalities it was completed and there was no delay in issuing the passport to the applicant . The answering op.parties were not informed or aware about the celebration of birthday of complainant’s son in Dubai on 30.8.15. It is incorrect that authorities withheld the passport on 4.8.15 without any reason. It is further submitted that if the complainant had urgency they could have been informed the opp.party more so when the passport of the complainant No. 2 was delivered on 12.8.15 , the complainant could have approached the op.party just after 12.8.15 as per their choice and coul d submit the passport of the mother of the applicant for issuance of passport for their son. For the latches and negligence of the complainants the answering opp.parties cannot be held responsible . The opp.parties further begs to state that going to a trip in Dubai to celebrate the birithday of their son is the personal affair of the complainant s and for their ignorance, failure to go to Dubai cannot be attributed upon the answering op.parties and as such the allegation of suffering mental cruelty and harassment is not correct.
15) The opp.party further submits that on 4.8.15 and 5.8.15 the decision of the verification officer was purely based on guidelines of the passport manual. The verification officer acted in very fair manner and in due compliance of the passport manual and guidelines . The allegation of arbitrary decision is denial and therefore, the question of compensation does not arise. The opp.party also denied the application about poor performance and ignorance of law which unfounded . According to the passport manual no police verification is required with minor applicant when the parents hold valid passport with at least one having spouse name endorsed in it or else the passport application may be granted under pre police verification mode, which certainly will take longer time for issuance of passport subject to receipt the passport verification. In the instant case , the applicant received the passport on 8.9.15 after submission of his mother’s passport on 4.9.15. The complainant for their own latches and negligence cannot held responsible the answering opp.parties and as such there is no deficiency in service on the part of the opp.parties . It is submitted that complaint petition is liable to be dismissed. It is further submitted in the pleading that if complainant was in hurry then complainant could have submitted her passport immediately on 12.8.15 to get the passport of her son. It is further submitted that if there was any grievances the complainant could have approached the grievance cell which is an effective mode of redressal to grievance of citizen , but the complainant rushed to this forum with malafide intention just to harass the answering opp.parties. It is further submitted that there is no deficiency in service or in arbitrariness on the part of the opp.party.They are not liable for any compensation or cost of litigation etc. It is further submitted that complainant are not a consumer under the provision of 2(1)(d) of the Consumer Protection Act and petition is not maintainable and liable to be dismissed.
16) The case was pending before this commission where the opp.party put some questionery and also to adduce evidence of one witness , Sri Joydeep Chakraborty ,the Asst. Passport Officer, Guwahati . He submitted that as per passport manual 2010 Appendix 12 1 B for minor applicant prove of present address of parents , prove of date of birth attested photo copy of passport with spouse name endorsed in it and the declaration affirming the particulars furnished in the application about the minor as per Annexure H is required. The opp.party in his evidence stated that renewal passport of the mother of the child (C.W.2 ) delivered to the complainant within 8 days of her visiting Sewa Kendra and according to him on 4.9.15 on receipt of passport with the spouse name endorsed the passport of the child was granted on 4.9.15 under no police verification mode and under the above O.P.W.1 claims that there is no delay of 1 month in issuing passport to the son of the complainant . The opp.parties have placed questionnaires to the complainant in which the 4 major questions have been put
(1) Do you have locus standi to appear before the court in connection with the instant case ?
(2) What was the reason for not inserting surname of the minor child in birth certificate?
(3) Whether Annexure H declaring the name of the minor child is applicable in this instant case ?
(4) Have you exhibited any proof regarding an endorsement “allowed “ made by opp.party No. 2 as mentioned by you in para 5 of your evidence on affidavit ?
17) We have gone through the answers given by the complainant to the interrogatories and it is found from the answers that on 4.8.15 and 5.8.15 all the required documents were submitted for passport of Kritarth Agarwal to the opp.parties . The detail discussion of the questionnaires are not made for brevity of the judgment. But however the relevant questions are to be discussed here-in-below.
18) From the record it is found that op.parties put their questionnaires to the complainant and on 14.7.17 answer to the questionnaires were furnished and opp.parties was given the opportunities to file evidence. The opp.parties accordingly filed their evidence on affidavit of Joydeep Chakraborty on 21.12.11 and matter was fixed for filing questionnaires by the complainant and complainant have filed the same, but no reply has been submitted by the opp.parties and an order was passed on 21.6.18 indicating the fact that by order dtd. 20.3.18 the case has already been fixed for filing written argument by the parties.
19) Against the order of this commission the opp.party preferred a Revision Petition before the Hon’ble State Commission and the record was send to the Hon’ble State Commission on 12.12.18. Thereafter the case record was again received back on 10.10.19 from the Hon’ble State Commission as the Revision Petition filed by the opp.party was withdrawn. Hence the proceeding restarted for filing written argument by the parties. Thereafter during continuation of lock down owing to covid-19 situation matter was pending and ultimately the opp.party have failed to file written argument and on the basis of the argument filed by the complainant the matter was taken up for delivery of judgment by a speaking order on record dtd. 17.12.21.
20) We have considered the documents and complaint petition along with the written statement filed by the opp.party. To determine a case of deficiency in service and related matters pertaining to issuance of passport is a question in the present proceeding. To find out at a decision we have taken up the following issues for discussion and decision one after another .
21) Points for decision
(I) Whether one passport of the parents should contain the spouse name as per passport manual ?
(II) Whether the passport of the complainant No. 2 containing the name of the spouse was submitted to the office of the opp.party on 4.9.15 and whether it was delivered to the complainant No. 2 on 12.8.15 ?
(III) Whether the passport of the Kritarth was withheld with a due reason for not having a title Agarwal and whether Annexure H the statutory declaration is sufficient to issue passport in the name of Kritarth Agarwal and whether Ext.5 the affidavit is sufficient for the title of her child as ‘Agarwal’ ?
(IV) Whether there is any negligence and deficiency in service on the part of the opp.party while issuing passport ot the child of the complainants ?
Reasons for decision
22) Whether one passport of the parents should contain the spouse name as per passport manual ?
To determine the above issue we have gone through the record and found that this fact has been admitted by the complainant and she submitted her passport for renewal with her husband’s name which has
been allowed and processed by the opp.parties and it was duly issued to the complainant No. 2 who received the same on 12.8.15 . As such this issue decided in affirmative without going to further discussion.
23) Whether the passport of the complainant No. 2 containing the name of the spouse was submitted to the office of the opp.party on 4.9.15 and whether it was delivered to the complainant No. 2 on 12.8.15 ?
This fact has already been discussed in the earlier issue and it indicates that on the day of processing the passport of the son of complainant No. 2 the renewal process of the passport with the name of the spouse has been allowed by the opp.party and same was received by the complainant No. 2 on 12.8.15 and is decided in affirmative .
Whether the passport of the Nickyta Agarwal was withheld with a due reason for not having a title Agarwal and whether Annexure H the statutory declaration is sufficient to issue passport in the name of Kritarth Agarwal and whether Ext.5 the affidavit is sufficient for the title of her child as ‘Agarwal’ ?
To answer this question we have found from record that opp.party No. 2 have submitted the declaration dated 5.8.15 for correcting the name of Kritarth Agarwal in the passport by putting her endorsement. It is also an undisputed fact that complainant have submitted Annexure H to the office of opp.party as required for the purpose.
24) After deciding the foregoing issues in the present dispute we like to made detail discussion on a particular question whether there is any negligence and deficiency in service on the part of the op.party while issuing passport to the child of the complainants . The questioner put on records by the complainant are also not replied by the opp.party and hence we confined our discussion on certain matters with the evidence and arguments placed on record by the complainant.
25) There is no specific reply from the complainant as to why they have not approach the pass port office after receiving the passport of complainant No.2. It is submitted by C.W.2 that they have redundant to visit Dubai as her mother in law’s passport has been withheld, which is a new fact brought by the complainant and it was not a ground for causing delay in the issuance of passport to Nickyta Agarwal.
26) C.W.2 have mentioned in his evidence that Annexure H declaring the name of their minor child as Kitarth Agarwal Has been submitted and when the first objection meted out by submitting a declaration on 5.8.2015. The “B” counter of the op.party raise a new objection asking the deponent to produce the passport of the parents mentioning the name of the spouse. Then it was told to the op.party that the passport of the mother of the child was processed and accepted only a day before the officer but they advice the deponent to visit their office on 4.9.15 along with the passport of the Nickyta Agarwal. If this fact is correct then no option left out for the complainant No. 2 to submit her passport after receiving it on 12.8.15 by preponding the date fix by the op.party. There is a clear statement made by C.W.2 that complainant had already submitted birth certificate issued by competent statutory authority along with that all necessary documents including Annexure H which is undisputed.
27) It is submitted that files of Nickyta Agarwal and Kritarth Agarwal we processed together/simultaneously and that to examined by the same officers. After verification of the documents, the passport officers were satisfied that Smti Nickyta Agarwal is the wife of Varun Agarwal . They have accepted the renewal application of complainant No. 2 on the same day. Printed passport was also issued on 6.8.2015. However, grant of passport to Kritarth was withheld on the ground that passport is being sought for in the name of Kritarth Agarwal, whereas in the Birth Certificate child’s name has been mentioned only as “Kritarth” . In other words solely on the ground that surname /title of Kritarth was not mentioned in the birth certificate the grant of his passport withheld. The aforesaid objection has been met out as per evidence of the complainant No. 2 who submitted Annexure – H . But not satisfied by the opp.party on Annexure -H on the following day submitted another declaration signed by the complainants reiterated that there son Kritarth is known also as Kritarth Agarwal. This declaration as Ext.6 was submitted to the op.party No.2 who gave his endorsement writing allowed on 5.8.2015 .
28) The argument put forward by the claimant is that after submitting the aforesaid documents another officer raised a new objection for granting passport to Kritarth Agarwal stating that the passport of a child can be issued only if his or her parents possesses a passport reflecting the name of their spouse. On the above ground the passport to the child of the complainant was postponed till 4.9.2015 . The argument raised by the counsel of the complainant is that passport of a husband and his wife , reflecting the names of spouses in their respective passport, cannot prove the legality of their minor child. If at all this is a legal requirement the same was fulfilled on 4.8.2015 itself when the passport application of Nickyta Agarwal was granted vide Ext.4 . It has already been stated earlier that the same officer had verified the passport application of Complainant No. 2 and that of Kritarth Agarwal. Accordingly, the said officer had sufficient evidence before him to prove that Complainant No. 2 was the wife of Complainant No. 1 and Kritarth Agarwal was their son. Despite that granting of passport to Kritarth Agarwal was postponed till 4.9.14. Resultantly, the complainants had to cancel their plan to visit Dubai in the last week of August,2015 .
29) The aforesaid submission made by the counsel for the complainant is found justified and the fact narrated is as per documents available on record. We are also of the view that inspite of having all documents with the renewal of the passport of complainant No.2 which was received on 12.8.2015 by the complainant. Now the question arises why for want of passport of the complainant same officer withheld the birth certificate of their son till 4.9.2015.
30) Again our attention has been drawn referring to manual 2010 Appendix 12 which deals with the requirement of documents for grant of passport to minor children under heading B-Minor. There are 16 segments. We are concerned with the fact that in case of a minor the spouse name need to be endorsed and it need to be signed by both the parents. In our present case in hand a declaration as per Annexure H was submitted along with the birth certificate and it is further submitted that Ext. 8 production of passport of parents containing name of the spouse is not required. As such , delaying the issue of passport of the child of the complainants is appears to be unnecessary and an objection raised by the opp.party found unjustified after issue of the renewal passport to the complainant No. 2 immediately after verification on 4.8.2015 and 5.8.2015.
31) The last question that has been raised in the pleading by the op.party in their written statement is that the definition of section 2(1)(d) is not applicable to them and as such this commission have no jurisdiction in the matter. To counter the above, it is submitted by the learned counsel of the complainant that complainant had applied for grant of passport to their minor on payment of mandatory fee of Rs.1,000/- and hence they are entitled for services from the opp..party and we are also of the view that the service provided by the opp.party to the complainant is a service on payment of certain amount of fees and it will cover the jurisdiction of consumer law.
32) In our close scrutiny it is found that complainant no. 2 have duly submitted Ext. 2 , the prove of date of birth along with a declaration of Annexure H with Ext.6. And as already discussed herein above that inspite of having the parents passport with spouse name with the opp.party they have withheld the passport of the child of c.w.2 till the date they have fixed for submitting the same document issued by them for submission on 4.9.2015. Here we have found certain amount of arbitrary and not reasonable ground for delaying the process of issuing the passport for around 1 month when the passport of the mother was issued after 2/3 days of its process . Withhelding the passport of a minor child taking different stand is not a proper services to a customer in the office of the opp.party. If the necessity of any verification was essential then opp.party could have done it together with the processing of passport renewal of the complainant No. 2 . Issuing of renewal passport to the mother of 2/3 years old child is meaningless if her child passport was withheld.
33) In the result, it is held that issue No. (IV) is decided in favour of the complainant and in affirmative.
After due consideration of the fact and circumstances of the dispute it is held that the opp.parties are jointly and severally liable for certain amount of compensation.
In our view a compensation amounting to Rs. 1,00,000/-(Rupees one lakh) only will be just and proper to be paid to the complainant by the opp.party within 45 days . Further an amount of Rs.10,000/-(Rupees ten thousand) only as cost of proceeding to be paid to the complainant failing which an interest @12% per annum be paid on decretal amount till realization .
Given under our hand and seal of the District Commission, Kamrup, this the 27th day of January /2022.
( Shri A F A Bora)
President
District Consumer Commission, Kamrup
(Smt A D Lahkar)
Member
District Consumer Commission, Kamrup
(Shri T D Goswami)
Member
District Consumer Commission, Kamrup
Dictated and corrected by me
( Shri A F A Bora)
President,
District Consumer Commission, Kamrup
Typed by me
( Smt Juna Borah)
Stenographer,
District Consumer Commission, Kamrup.
