REGIONAL PASSPORT OFFICER vs Santosh Chauhan

THIS appeal is directed against the order dated 5.11.2001 passed by District Forum, Gurgaon, whereby while accepting the complaint of the respondents -complainants direction has been given to the appellant -opposite party that the amount of the fee deposited by the complainants be refunded to them along with interest @ 9% per annum from the date of deposit till payment.

AS there was a delay of one year 9 days in filing the appeal, an application under Section 5 of the Limitation Act, 1963 (hereinafter referred to as the Act, 1963) was filed wherein it has been stated that the order dated 5.11.2001 of the District Forum, Gurgaon was not received by the office of the appellant and it came to know about the said order on receipt of summons in a petition filed under Section 27 of the Consumer Protection Act, 1986. It is further pleaded that soon thereafter an application dated 21.10.2002 and another application dated 4.12.2002 were moved to the District Forum, Gurgaon seeking supply of copy of the impugned order. The certified copy of the order was supplied to the appellant on 5.12.2001 and thereafter time was taken to remove the objections raised by the Registry and in this manner the delay resulted in filing the appeal for the above stated period which deserves to be condoned in the interest of justice. Supporting the averments an affidavit of Sg. R.N. Sarkar, Assistant Passport Officer (Policy), Regional Passport Office, HUDCO -Tricoot -3, Bhikajicama Place, R.K. Puram, New Delhi was filed. This application has been opposed from the side of the respondent. In the reply filed by the respondent -complainants it has been averred that certified copy No. 897 dated 5.11.2001 was despatched by the District Forum, Gurgaon vide despatch No. 36 dated (sic.) and it was also duty of the appellant to have obtained the certified copy of the order if they wanted to file an appeal. It was further stated that they have waited for execution of the order for a period of 9 1/2 months and summons of the Executing Court were sent to the appellant on 3.9.2002 which was received on 6.9.2002 and thereafter an application for obtaining certified copy of the order dated 5.11.2001 was moved on 21.10.2002 which further shows a lapse of the period of 5 months and 7 days on the part of the appellant in obtaining the copy for which no explanation has been rendered. Accordingly, it was prayed that the prayer made for condonation of delay deserves to be rejected and affidavit of Mrs. Santosh Chauhan has also been filed along with the written reply sent by post. The learned Counsel representing the appellant at the time of arguments has pressed the ground stated in the application seeking condonation of delay noticed above. None has chosen to appear on behalf of the respondents -complainants and the stand taken by them in the written reply received has been taken into consideration. It cannot be disputed that there has been a total delay of 397 days in filing the appeal. It is the case of the appellant that copy of the impugned order dated 5.11.2001 was not received by the appellant and it came to notice about the impugned order after intimation about filing of the execution application under Section 27 of the Consumer Protection Act, 1986 was received by the appellant. Thereafter time was taken, as noticed above, in obtaining the certified copy of the order and the present appeal was initially filed on 6.1.2003 in which the Registry raised objection and thereafter it was re -filed on 13.2.2003. We have given serious consideration to the above noted circumstances which clearly spelled out that the explanation put forward appears to be not convincing but in this case keeping in view the facts and circumstances and cause of justice, the delay has to be condoned in order to avoid illegality committed by the District Forum remaining perpetuated on record. Even otherwise, suo motu power is vested in this Commission under Section 17(1)(b) of the Consumer Protection Act, 1986 to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. Therefore, the delay in filing the appeal is condoned.

IN this case, how the District Forum has exercised the jurisdiction vested in it illegally in deciding the complaint, a few facts need to be noticed. The case set up by the complainant is that her youngest son and daughter -in -law had been serving in various foreign countries for the last 10 years. As the daughter -in -law being pregnant and was due for delivery in the month of May, 1997, the complainants wanted to look after her during the period of delivery and post operative recupration period, they applied for the passport on 20.1.1997. The application forms complete in all respect, with the security fee of Rs. 300 each, were delivered personally in the office of opposite party. The complainants were made to wait for the issuance of passports and they had also put in appearance in the Lok Adalat held on 11.3.2000 in the office premises of the opposite party but the passports were not delivered to them. In this manner, a period of four years had elapsed but the status report has not been given to them despite the fact that the passports were to be issued within 90 days on submitting of the forms or to intimate the reasons for delay for not issuing the passports to them. Forced by these circumstances, the complainants invoked the jurisdiction of the District Forum seeking direction to the opposite party to issue the passports to them immediately and if for any reason it is not feasible, then the amount deposited be refunded to the complainants along with interest @ 18% per annum. In addition, a compensation of Rs. 50,000 was demanded on account of mental agony and harassment suffered by them.

THE claim was contested by the opposite party. In the written statement filed, it was pleaded that the Superintendent of Police, Gurgaon gave an adverse report and had not recommended the grant of passport to the complainants as criminal cases were pending against Kuldip Singh Chauhan, and Surinder Singh Chauhan son and husband of the complainant No. 1, respectively and they were likely to engage in such activities prejudicial to the sovereignty and integrity of India. The District Forum took notice of the fact that the police had not recommended for issuance of passports to the complainants but at the same time accepted the complaint while coming to the conclusion that it was incumbent upon the opposite party to have refunded the deposited fee for issuance of passports, if it could not be issued to them and for that reason necessary direction was given to the opposite party to refund the fee deposited by the complainants along with interest @ 9% per annum from the date of deposit till payment. It is against this order, the present appeal has been filed. The learned Counsel representing the appellant -opposite party has been heard at length. None has chosen to appear on behalf of the respondent -complainants.

THE learned Counsel representing the appellant while assailing the impugned order of the District Forum has vehemently urged before us the District Forum committed the patent illegality in entertaining the complaint altogether ignoring the fact that issuance of passport is governed by the statutory functions in terms of the requirements of Passport Act, 1967. He, thus contended that the complainants were not consumers within the purview of the definition of consumer as stated in Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986) and the service rendered by the Passport Office could not be termed as service within the ambit of the provisions of Section 2(1)(o) of Act, 1986. There is a considerable merit in the stand taken from the side of the appellant. Provisions of Section 7 of the Passport Act, 1967 provide that a passport or travel document issued under this Act is all the time is the property of the Central Government. The Honble Supreme Court in case Nrisingha Muran Chakraborty and Others v. State of West Bengal, reported as AIR 1977 SC 1174 had occasion to consider the purport of the passport wherein it took a view that passport is a document which by its nature and purpose is a political document for the benefit of its holder as it recognises him as citizen of the country granted it and in a nature of request to the another country for their free passage there. That being so, even when the passport issued to a person, he would not be construed as consumer in terms of the provisions of Section 2(1)(d) of the Act, 1986. Position of law in this regard has been clarified by this Commission in case K.K. Kataria v. Asstt. Regional Passport Officer, 1998 (1) CCC 201, wherein it has been observed as under : ''In fact, issuance of passport by the Central Government or by any authority empowered under the Passport Act, 1967, is a sovereign Act, which has to be performed by the authorities according to the rules and regulations framed under the Act. This function of the Central Government required to be performed under the Passport Act cannot be equated with a service rendered to a consumer within the meaning of Consumer Protection Act, 1986. Moreover, a passport is not a commodity which is purchased or sold for consideration, but is only in the nature of a permission granted by the sovereign to its citizens to go outside the country. Therefore, the complainant has been ill -advised to approach the learned District Forum for the redressal of his grievance.'' In another case, Regional Passport Officer v. Ravinder Mehta, I (1998) CPJ 449, this Commission had held that the dispute with regard to non -issuance of passport does not constitute consumer dispute as contemplated under the Act, 1986. In view of position of law explained and clarified above, there cannot be any doubt that the complainant had no right to invoke the jurisdiction of the District Forum in seeking direction against the opposite party to issue passports to them and to seek other reliefs as they cannot be said to be consumers in terms of the requirement of Section 2(1)(d) of the Act, 1986. This aspect has not been taken into consideration by the District Forum and rather ignored altogether and the order being patently illegal cannot be sustained.

FOR the aforesaid reasons, we accept the appeal and while setting aside the impugned order, dismiss the complaint. Appeal allowed.