Passport; Chippy Richy Cheriyan Vs. Union of India [Kerala High Court, 07-10-2016]

Passports Act, 1967 – Section 24 – Direction issued to the petitioner to produce court order, in order to carry out correction with respect to place of birth in the Passport, and required documents, since there is a change of country is in accordance with law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SHAJI P. CHALY, J.

W.P.(C) No.29180 of 2016

Dated this the 7th day of October, 2016

PETITIONER

CHIPPY RICHY CHERIYAN, 900 RIGGINS ROAD, TALLAHASSEE, FLORIDA

BY ADVS.SRI.K.L.JOSEPH SMT.P.SAREENA GEORGE SRI.V.NAMADEVA KAMATH

RESPONDENT(S)

1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, CTV DIVISION, TV 1 SECTION, PATIALA HOUSE ANNEX, GOVERNMENT OF INDIA, NEW DELHI-110 001.

2. REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR, ERNAKULAM-682020.

3. CONSULAR PASSPORT SECTION OF INDIAN CONSULATE ATLANTA, USA.

R1 -R 3 BY ADV. SRI.N.NAGARESH,ASGI

JUDGMENT

This writ petition is filed seeking to issue a direction to the 3 rd respondent to consider and pass appropriate orders on Ext.P3 application for Passport dated 05.07.2016, submitted by the petitioner. Material facts for the disposal of the writ petition are as follows:

2. Petitioner is a Non Resident Indian. Petitioner is settled in Florida, U.S.A from 2014 onwards, and was born on 10.07.1987 at ALBAHA, Saudi Arabia, where her father and mother were residing at that time. Birth of the petitioner was registered on 27.07.1987 with Consulate General of India Jeddah, Kingdom of Saudi Arabia, evident from Ext.P1 certificate of birth dated 24.04.2016 issued by the Consulate General.

3. While petitioner was aged 6 months, her parents took her to India. According to the petitioner, at that time, she did not have a Passport. When petitioner was aged one year, parents decided to take her to Saudi Arabia. When applied for the Passport, in the application, the birth place of the petitioner was shown as Kaniyapara, Kerala, evident from Ext.P2, relevant pages of the Passport bearing No.J7440943, issued by the 2nd respondent.

4. However, since Ext.P1 birth certificate shows the place of birth of the petitioner as ALBAHA, Saudi Arabia, in order to secure a Green Card and also to correct the mistake of the place of birth occurred in the Passport, petitioner submitted online application for re-issue of Passport, incorporating the correct place of birth to the Indian Consulate in Atlanta, U.S.A., along with original birth certificate of the petitioner, evident from Ext.P3. It is the case of the petitioner, even though all necessary documents as per Consulate Checklist including original birth certificate were produced for the correction of place of birth of the petitioner in the Passport, 3 rd respondent is insisting for court order for the re-issue of Passport, incorporating the correction sought for. It is thus aggrieved by the inaction on the part of the 3 rd respondent and insisting for Court order to correct the place of birth of the petitioner, this writ petition is filed.

5. Respondents 1 to 3 have filed a statement denying the allegations and claims and demands made by the petitioner. It is stated that, admittedly, petitioner is a holder of Indian Passport issued on 23.08.2011 by the 2 nd respondent in continuation of Passport No.B5838580 dated 11.12.2001 issued by the Consulate General of India, Jeddah. Thus it is clear, petitioner was holding a Passport issued earlier from any one of the Passport offices in India/Indian Mission abroad. However, the details of the same or copy of the same have not been furnished and the same are not available to the office of the 2 nd respondent. The document for any proof of place of birth produced by the applicant for getting the first Passport in 1988 is not available with the 2nd respondent.

6. It is also stated, correction sought in the place of birth from ‘Kaniyapara in Kerala’ to “Al Baha in Saudi Arabia” involves a change in country. The document for proof of place of birth produced by the applicant is the Birth Certificate issued on 24.04.2016 from the Consulate General of India, Jeddah, Saudi Arabia.

7. As per the existing instructions issued, in the place of birth correction cases, where the change in place of birth involves change of State or Country, Civil Court order from the First Class Judicial Magistrate/Sub-Divisional Magistrate, as listed at Document No.41 of Table 3, in Schedule III of the

# Passport Rules, 1980

is required. It is clearly mentioned in Table 2, Schedule III of the said Rules, vide Case No.(II)(E) (10), under the heading, documents to be submitted for Change/Correction of place of birth. Since the place of birth involves change in country, petitioner was advised to furnish Court order of the competent Court in order to consider her application for effecting change in place of birth. Therefore, according to the respondents, there is no manner of illegality on the part of the respondents in detaining the application of the petitioner for want of necessary document.

8. Heard learned counsel for the petitioner and learned Assistant Solicitor General appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties.

9. The question to be considered is whether there is any manner of illegality on the part of the respondents in not taking a decision on Ext.P3 application submitted by the petitioner for correction of her place of birth. There are certain facts which cannot be denied by the petitioner: (1) Petitioner had secured a Passport in the year 2001, evident from the present Passport held by the petitioner. The said circumstance is stated clearly in the statement filed by the respondents, which is not refuted by the petitioner in any manner; and (2) In Ext.P2 Passport, the place of birth of the petitioner is shown as ‘Kaniyapara, Kerala’. However, Ext.P1 Birth Certificate shows that petitioner was born on 10.07.1987 at “AL BAHA, SAUDI ARABIA”. Therefore, when the application was submitted by the petitioner, the application can be processed by the respondents only on the basis of the rule provided thereunder specifically. When there is a rule provided for meeting with a specified circumstance, the administrative authorities are duty bound to follow the same. 10. The foregoing discussion of facts would reveal that Schedule III, Section III, Column No.5 deals with Place & Country of Birth, which read thus:

# COLUMN 5 – PLACE & COUNTRY OF BIRTH

In case born in India, please mention name of place like Village/Town, District, State and if born outside India, mention name of place and country. If born before partition of India, at a place, which now falls within Pakistan or Bangladesh, please fill up the name of place followed by Country as “Undivided India”. Undivided India means India as defined in the Government of India Act, 1935, as originally enacted”.

11. So also, Column 17 of the said Schedule of Section III shows that the applicant should give correct information and the suppression of any fact may lead to fine up to Rs.5,000/- per offence and other penal provisions as applicable under the provisions of the

# Passports Act, 1967

as amended from time to time. So also, Table 2: List of Applicant Categories and Documents to be submitted appended to the Passport Rules and Column No.10 read thus:

“Change/Correction of place of birth; 5, 41 (if change in place of birth involves State change or Country change), 42, 56”.

12. Table 3 deals with Overall List of Documents. Document Nos.5 and 41 as mentioned above are required for the purpose of change/correction of place of birth. Column 5 read thus:

“Old Passport in original with self-attested photocopy of its first two and last two pages, including ECR/Non-ECR page (previously ECNR) and the page of observation (if any), made by Passport Issuing Authority and validity extension page, if any, in respect of short validity Passport”.

Column No.41 read thus:

“First Class Judicial Magistrate/Sub-divisional Magistrate civil court order (if change in date of birth is more than 2 years/in case of conflicting documents/if change in place of birth involves change of State or Country) (In case change of place of birth involves change of country, also attach Document No.7)”.

Document No.7 read thus:

“Citizenship Certificate issued by Ministry of Home Affairs”.

13. The afore-quoted requirements are conditions contemplated under the Passports Rules, 1980. Passports Rules are framed by virtue of powers conferred on the Central Government under Sec.24 of the Passports Act, 1967. Therefore, there is no doubt, direction issued to the petitioner to produce court order, in order to carry out correction with respect to place of birth in the Passport, and required documents, since there is a change of country is in accordance with law. In that view of the matter, action of the 3 rd respondent cannot be said to be illegal or arbitrary in any manner. Moreover, an officer functioning under the provisions of the Passports Act and the Passports Rules are bound to follow the same. Apart from all these, it is not a case where the petitioner is not left without any remedy. A remedy is provided as per the Rules to deal with a situation arisen in this case. In order to exercise discretion conferred on this Court, the first endeavour of the Court should be to ascertain whether there is a remedy available under the Act or Rules, enabling the petitioner to deal with the situation. As discussed above, there is a clear remedy available under the Rules. If there is no remedy available under the Act or the Rules, or if the Rules or the provisions of the Act are unconstitutional or redundant in any manner alone, the question of exercising the discretion arises. Here is a case where the petitioner has no case that the Rules provided under the Passports Rules, 1980, discussed above, are bad in any manner.

14. Learned counsel for the petitioner has invited my attention to the judgment rendered by a learned Single Judge of this Court in

# Musthafa Nambiamkulam Abdulkader v. Secretary, Ministry of External Affairs, South Block and Another, 2013 KHC 3680 : 2013 (4) KLT 527

wherein this Court had occasion to consider an issue in regard to proof of date and place of birth, and held that

“petitioner has now produced a copy of the Birth Certificate issued by the competent authority as Ext.P7 along with I.A.No.13168 of 2013 showing the Date of Birth and Place of Birth of the petitioner. Birth Certificate issued by the competent authority is the most reliable piece of evidence to substantiate the Date of Birth and Place of Birth. There is no conflicting entry between Ext.P2 and Ext.P7 either in respect of the Date of Birth or Place of Birth”.

15. The findings in the judgment quoted above does not require any further explanation since it is explicit and clear, the situation there was only with respect to ‘proof of Place and Birth’. However, the facts and circumstances in this case differ materially, and the judgment cited supra is not having any material application to the facts and circumstances of this case and the law involved. Therefore, I do not find any illegality, arbitrariness or other legal infirmities warranting exercise of discretionary jurisdiction conferred on this Court under Article 226 of the Constitution of India.

16. Upshot of the above discussion is that there is no case established by the petitioner in order to secure any relief as sought for.

Resultantly, writ petition fails, accordingly it is dismissed, however, leaving open the liberty of the petitioner to seek necessary orders as per the Act and Rules.

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