DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
Complaint No. : 152
Date of Institution: 23.10.2015
Date of Decision : 04.05.2016
Sohan Singh Brar aged about 54 years s/o Malkiat Singh r/o Village Gumti Khurd, Tehsil Jaitu, District Faridkot.
...Complainant
Versus
Secretary Department of Home Affairs Punjab, Civil Secretariat, Chandigarh.
Regional Passport Officer, Amritsar.
Union of India through Secretary Ministry of External Affairs, New Delhi.
Senior Superintendent of Police, Faridkot.
....Opposite parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh Ajit Aggarwal, President,
Sh P Singla, Member.
Present: Sh. A S Sekhon, Ld Counsel for complainant,
Sh. Jagroop Singh Inspector and Ld. Satnam Singh Gill, APP on behalf of OP-1 and 4,
Sh. R. S. Romana, Ld Counsel for OP2 and 3.
(Ajit Aggarwal, President)
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to OPs to issue passport and to pay Rs. 1,00,000/- as compensation for mental agony and harassment besides litigation expenses.
2 Briefly stated, the case of the complainant is that complainant applied for issuance of passport before OP-2 and his application was registered with file no. AS1067906255014 dt 11.07.2014 on payment of prescribed fee. After processing by OP-2, case of complainant was sent to Police for verification, who after verification reported OP-2 that FIR No. 84 dt 5.09.2011 under Section 506 of IPC and 25/27/54/59 Arms Act, P S Jaitu, FIR No. 43 dt 28.05.2012 under Section 452/427/336/506/148/149 IPC P S Jaitu, Cross case DDR No. 54 dt 28.05.2012 under Section 452/427/336/506/148/149 IPC P S Jaitu have been registered against complainant. Police have not reported the true facts FIR No. 84 and FIR No. 43 have been cancelled. Police did not clear the fact that no case is pending against complainant regarding which OP-2 has full knowledge, but still office of OP-2 has been issuing letters seeking unnecessary clarifications from complainant. Complainant paid many visits to the office of Ops with request to release passport, but they are keeping the matter pending on one pretext or the other. Moreover as per CWP No. 13863 of 2014 titled as Kulwant Rai Kataria Vs Verification Officer, Regional Passport Office, Amritsar and others, mere registration of criminal case against a person does not make him a convict and it does not debar him from getting the passport issued and passport authorities are bound to issue passport. Ops have arbitrarily and wilfully withheld the issuance of passport of complainant on false pretext of FIRs as both the said FIRs have been cancelled. Complainant wanted to go abroad in connection with his business activities, but this act of Ops has caused great loss in business of complainant. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused great harassment and mental agony to complainant for which he is entitled for compensation and litigation expenses besides the main relief. Hence, the complaint.
3 The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.11.2015, complaint was admitted and notice was ordered to be issued to the opposite party.
4 OP-1 and 4 also filed reply taking preliminary objections that complainant has no cause of action qua answering Ops as complaint is filed mainly against OP-2. It is further averred that relief sought is from OP-2, which is situated at Amritsar, therefore, this Forum has no jurisdiction to hear and try the present complaint. Moreover, Hon’ble Supreme Court has held in AIR SC 1174 that Passport is a document, which by its nature and purpose is a political document for the benefit of its holder as it recognizes him as a citizen of country granted it and in a nature of request to another country for their free passage there and even passport to a person would not be construed as a consumer in terms of Provisions of Section 2 (1) ( d) of the Act and non issuance of passport does not constitute a consumer dispute and can not be equated with services rendered to a consumer for consideration within the meaning of Consumer Act. On merits, it is averred that in its report Police has made the fact of cancellation of case qua complainant clear, but at the same time it is also made clear that report is yet pending before the court of Ld Area Magistrate and is not accepted by the court yet and personal appearance of complainant can be required at any time by the court. It is asserted that though the complainant has been found innocent by the Police in both the matters, but the report given by the Police in FIR No. 84 is still pending for its final approval. In DDR No. 54 dt 28.05.2012 of FIR NO. 43 of 2012 is pending in the court of JMIC, Jaitu for final approval for 1.03.2016. All the other allegations are denied being wrong and incorrect with prayer to dismiss the complaint with costs.
5 On receipt of notice, OP-2 and 3 appeared in Forum through Counsel and filed reply taking preliminary objections that complaint in hand is not maintainable and is bad for misjoinder and non joinder of necessary parties as complainant has made OP-2 a party, which is totally wrong. Complainant has no cause of action to file the complaint as Passport Office, Amritsar is doing its statutory duty of Government of India, Ministry of External Affairs and complainant does not fall under the definition of consumer as issuance of passport is the discretion of Central Government and in issuance of same, rules and regulations are to be followed and Passport Authority can refuse to issue a passport to an applicant on valid grounds as per The Passports Act, 1967 & The Passport Rules, 1980 Circulars and instructions issued from time to time. Moreover, an applicant is not the consumer of Ops as applicant of passport is not hiring the services of Passport Office for getting a passport and functions of Passport Office do not come under the definitions of services as defined in Consumer Protect Act. This Forum has no jurisdiction to hear, try and decide the present complaint as no cause of action has arisen within the jurisdiction of this Forum and being non-maintainable, present complaint is liable to be dismissed. Moreover, complainant has not come to the Forum with clean hands and has suppressed the material facts from the Ops as well as from this Forum. Complainant did not disclose the fact that he has applied for issuance of passport on 11.07.2014 vide file no. AS1067906255014 in fresh category. Alongwith application, complainant submitted copy of matriculation certificate, voter card, Adhar Card besides an affidavit declaring that “No proceedings in respect to any offence alleged to have been committed by me are pending before any criminal court in India” and when these particulars were sent to Senior Superintendent of Police, Faridkot for obtaining Police Verification on 11.07.2014, Police Authorities sent adverse report dt 26.09.2014 and did not recommend the issuance of Passport to the applicant. Office of answering Ops received Police Verification Report with remarks that proceedings against the applicant are still pending in Criminal Court of Law as two FIRs bearing no. 84 and 43 dt 5.09.2011 and 28.05.2012 respectively are pending and the SSP, Faridkot has specifically gave report that issuance of Passport to Sohan Singh Brar/complainant is not recommended. On 13.12.2014, letter was written to complainant to explain about his pending cases. Answering Ops also issued reminders dt 31.12.2014, 9.03.2015 and 12.05.2015 to complainant to provide copy of Court Judgment Order, but when no response was received from complainant till 9.09.2015, then, his case was closed as per rules. It is further asserted that answering OP is not an agency to verify, but as per settled procedure and law, the Passport Authority is to accept the Police Verification Report sent by Sr Superintendent of Police. However, on merits, OPs have denied all the allegations levelled by complainant being wrong and incorrect and reiterated the pleadings taken in preliminary objection and asserted that there is no deficiency in service on the part of answering OPs. All the other allegations and the allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.
6 Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-10 and then, closed the evidence.
7 In order to rebut the evidence of the complainant, ld Counsel for OP-2 and 3 tendered in evidence affidavit of Raj Kumar Bali as Ex OP-2,3/A and documents Ex OP-2, 3/1 to 7 and then, closed the evidence. Ld Counsel for OP-1 & 4 tendered in evidence affidavit of Jagdish Kumar Bishnoi as Ex Op-1, 4/1 and documents Ex OP-1,4/2 to 4 and then, closed the same on behalf of OP-1 and OP-4.
8 Ld Counsel for complainant vehemently argued that complainant applied for issuance of passport before Regional Passport Officer, Amritsar/OP-2 and his application was registered with file no. AS1067906255014 dt 11.07.2014 on payment of prescribed fee. OP-2 after processing sent his case to Police for verification, who after verification reported OP-2 that FIR No. 84 dt 5.09.2011 under Section 506 of IPC and 25/27/54/59 Arms Act, P S Jaitu, FIR No. 43 dt 28.05.2012 under Section 452/427/336/506/148/149 IPC P S Jaitu, Cross case DDR No. 54 dt 28.05.2012 under Section 452/427/336/506/148/149 IPC P S Jaitu have been registered against complainant. Police have not reported the true facts that FIR No. 84 and FIR No. 43 have been cancelled and also did not clear the fact that no case is pending against complainant regarding which OP-2 has full knowledge, but still office of OP-2 has been issuing letters seeking unnecessary clarifications from complainant. Complainant visited the office of OP-2 many times with request to release him passport, but they are keeping the matter pending on one pretext or the other. Moreover as per CWP No. 13863 of 2014 titled as Kulwant Rai Kataria Vs Verification Officer, Regional Passport Office, Amritsar and others, mere registration of criminal case against a person does not make him a convict and it does not debar him from getting the passport issued and passport authorities are bound to issue passport. It is further contended that Ops have arbitrarily and wilfully withheld the issuance of passport of complainant on false pretext of FIRs as both the said FIRs have been cancelled and are not pending. It is alleged that complainant wanted to go abroad in connection with his business activities, but this act of Ops has caused great loss in business of complainant and caused harassment and mental tension to him, which make him entitled for compensation along with relief sought. Ld counsel for complainant has prayed for accepting the present complaint.
9 Ld Counsel for OP-1 and 4 argued that in its report, Police has made the fact of cancellation of case against complainant clear, but at the same time it is also made clear that report is still pending before the court of Ld Area Magistrate and is not accepted by the court yet and personal appearance of complainant can be required at any time by the court. It is further asserted that though the complainant has been found innocent by the Police in both the matters, but the report given by the Police in FIR No. 84 is still pending for its final approval. In DDR No. 54 dt 28.05.2012 of FIR NO. 43 of 2012 is pending in the court of JMIC, Jaitu for final approval for 1.03.2016. It is further averred that complaint mainly deals with OP-2 as claim is sought only from OP-2 and they have been wrongly dragged in present litigation.
10 Ld Counsel for OP-2 and 3 has repelled all the allegations levelled by complainant being wrong and incorrect and argued that complainant applied for issuance of passport on 11.07.2014 vide file no. AS1067906255014 in fresh category. Personal particular forms of complainant were sent to Senior Superintendent of Police, Faridkot for obtaining Police Verification on 11.07.2014, but Police Authorities sent adverse report dt 26.09.2014 against complainant and did not recommend the issuance of Passport to him. Office of answering Ops received Police Verification Report with remarks that proceedings against the applicant/complainant are still pending in Criminal Court of Law as two FIRs bearing no. 84 and 43 dt 5.09.2011 and 28.05.2012 respectively are pending and the SSP, Faridkot has specifically gave report that issuance of Passport to Sohan Singh Brar/complainant is not recommended. Copy of Police Verification Report is Ex OP-2, 3/5. Copy of police verification report is Ex OP-2 & 3/5. On 13.12.2014, Ops wrote letter to complainant to explain about his pending cases and demanded copy of order pertaining to his FIR cases. Answering Ops also issued reminders dt 31.12.2014, 9.03.2015 and 12.05.2015 to complainant to provide copy of Court Judgment Order, but when no response was received from complainant till 9.09.2015, his case was closed as per rules. Copies of letters are Ex OP-2,3/2 to 4. It is further asserted that OP-2 is not an agency to verify, but as per settled procedure and law, the Passport Authority is to accept the Police Verification Report sent by Sr Superintendent of Police. Moreover, Regional Passport Office, Amritsar/op-2 is doing its statutory duty of Government of India, Ministry of External Affairs/OP-3 and complainant does not fall under the definition of consumer as issuance of passport is the discretion of Central Government and in issuance of same, rules and regulations are to be followed and Passport Authority can refuse to issue a passport to an applicant on valid grounds as per The Passports Act, 1967 & The Passport Rules, 1980 Circulars and instructions issued from time to time. Moreover, the complainant is not the consumer of Ops as applicant of passport is not hiring the services of Passport Office for getting a passport and functions of Passport Office do not come under the definitions of services as defined in Consumer Protect Act. Ld Counsel for OP-2 and 3 has prayed for dismissing the complaint with costs.
11. We have heard both the counsels and also gone through the pleadings and evidence by both the parties. The case of the complainant is that he had applied for the passport but the passport authorities denied to issue passport him on the ground of adverse police verification. It is found that there are criminal cases are pending against him whereas he pleaded that there is no criminal case is pending against him. The Ops put reliance for not issuing the passport to the complainant on police verification report which is Ex OP-2,3/5. We examined the police verification report in it, there is mention regarding a FIR no.43 dated 28.05.2012 which is registered on the statement of one Sadhu Singh against Sharanjit Singh Sharni others in this FIR the name of complainant is no where mentioned as complainant or accused and it does not relate with the complainant. There is a reference of one rapat no. 54 dated 28.05.2012 which was entered on the statement of Sh. Kulwinder Singh S/o Ajaib Singh against Sukhwinder Singh and others. The copy of DDR no.54 is also tendered as Ex OP-1,4/2 regarding it, it is submitted that on investigation conducted by police officials regarding this DDR the police found that this case is false and file cancellation report in this case and the accused were found innocent, the investigation report is Ex C-5 in this regard the Ops argued that the cancellation report is not approved by the Court and is still pending in the Courts. In Police verification report there is reference of FIR no.84 dated 14.08.2010 which is registered on the statement of one Harbans Singh in regard to this case the police reported that during investigation it is found that complainant is innocent and this FIR is lodge on false ground. The complainant filed copy of FIR no.84 as Ex C-10 and copy of Cancellation Report prepared by the police as Ex C-6 to C-9 and Ex OP-1,4/3,4. The Ops argued that police filed cancellation report in the Court of Area Magistrate which is yet pending for the approval of the Court and Court can summon the complainant at any stage. Mere stating that the case is still pending before the Court and there is possibility that the Court can summon the complainant in this case has no reason to declare him as accused and for recommending not to issue him passport. As discussed, as per police report verification we found there is no criminal case is pending against the complainant due to which the police recommended the passport authority to not to issue the passport to the complainant and no reason is found that why the passport authorities closed the passport file of the complainant. The Counsel for the complainant put reliance on the order passed by our Hon’ble High Court of Punjab and Haryana in CWP no.13863 of 2014 ( O & M) titled as Kulwant Rai Kataria Vs Verification officer, Regional Passport office, Amritsar and others in it our Hon’ble Lordship observed that Right to travel is important ingredient of freedom of movement and the restriction has to be by law for appropriate reasons. The Passport Act contains the provisions that regulates a person, who is guilty of a criminal offence, from obtaining a passport and the issue will stand therefore regulated by the means mentioned under the Passport Act. While no person can claim that he has absolute right of freedom to travel, the fetter has to be made on sufficient reasons recognised by law. In this case, the criminal offence admittedly attributed relating to the incident of the year 2010 and even the investigation is not complete. It is not as if the case is pending trial and is coming anywhere close to its conclusion. Incidents of the year 2010 and 2011 are lingering. When there have been initially reports for cancellation of the complaint, that itself be a justification to secure the passport without any objection. The issuance of a passport will still be subject to the control of Court about the document could be put to use and the Magistrate will be within his competence to issue appropriate direction about the conditions that could be imposed for travel outside India.
The State is therefore directed to give appropriate recommendations in the light of the directions issued by this Court that make liable the Passport office to issue the passport.
12. We are fully convinced with the evidence, arguments and case law produced by the Counsel for the complainant. The complainant succeeds in proving this case, so the present complaint in hand is allowed. The Ops are ordered to issue passport to complainant within one month from the receipt of copy of this order after fulfill other formalities by complainant for issuance of the passport. The complainant is also directed to fulfill and deposit all other documents which is required to the Ops for issuing the passport. Ops are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.
Announced in Open Forum
Dated: 04.05.2016
Member President
(P Singla) (Ajit Aggarwal)
