Massarat Maqbool vs State of J.and K.and Ors

Petitioner is seeking a writ of mandamus commanding the respondents to consider his case for issuance of a Passport.

It is averred by the petitioner that he is doctor by profession and in order to improve his studies further and seek employment abroad, he

applied for issuance of passport to the respondents, which has been refused to him for none of his faults. He is a law abiding citizen and has not

indulged in any activity, allegedly prejudicial to the security of the State and is also not involved in any criminal case, but despite that, respondents

failed to issue him a passport.

Reply stand filed on behalf of respondents. Respondents 1 to 3 have opposed the prayer of the petitioner on the sole ground that his mother is

Chairperson of a Separatist Organization viz. Mass Movement and due to her militancy background, she is indexed in the records of the CID

Organization. The respondent No. 2 has further supplemented his reply by filing a supplementary affidavit. It is specifically and categorically

averred in the supplementary affidavit that ""there is nothing adverse against the petitioner."" However, in view of adverse family background, the

case of the petitioner was not recommended to the Passport Officer for issuance of passport in his favour, as there is every apprehension that the

petitioner may establish links at the behest of his mother with the separatist leaders abroad.

The question which calls for determination in this petition is whether petitioner can be denied passport on the ground that his mother is

Chairperson of an Organization, when as per objections of the respondents, there is nothing adverse against the petitioner?

Apex court in a case titled Satwant Singh Sawhney Vs. D. Ramrathnam, (1967) 3 SCR 525 has held that no person can be deprived of his right

to travel except according to the procedure established under law. It is apt to reproduce relevant para of the said judgement hereunder:

For the reasonsmentioned above, we would accept the view of Kerala, Bombay and Myspore High Courts in preference to that expressed by

the Delhi High Court. It follows that under Article 21 of the Constitution, no person can be deprived of his right to travel except according to

procedure established by law. It is not disputed that no law was made by the State regulating or deprive persons of such a right.''

Same view was taken by the apex court in case titled Maneka Gandhi Vs. Union of India and another, (1978) 1 SCC 248. This court also

while dealing with an identical case, OWP No. 551/2008 titled Sajad Ayoub Bhat Vs. State and others, has held that it is not permissible under

law that when ""A"" has committed a crime, ""B"" should be punished. In the instant case, respondents have taken a definite stand that there is nothing

adverse in the CID records against the petitioner. Thus keeping in view the ratio laid down by the apex court and this court coupled with mandate

of ClauseC of subclause (2) of Section 6 of the Passport Act, read with the reply filed by respondents, the action of respondents in denying

passport to the petitioner is illegal and violative of mandate of Article 21 of the Constitution of India.

For the above reasons, this petition is allowed and the respondents are directed to consider the ease of petitioner for issuance of passport within

a period of four weeks. The period of four weeks shall commence from the date copy of this order is served by the petitioner on the respondents

against proper receipt.

Disposed of along with connected CMP.