Vikas Chowdhary and Others vs Union of India and Others

Caveat No. 335/2013 in LPA No. 216/2013

Since learned counsel for the caveator has entered appearance, the caveat stands discharged.

CM. No. 5862/2013, 5864/2013 (exemptions) in LPA No. 216/2013.

Exemptions allowed subject to all just exceptions.

C.M. No. 5865/2013(delay of 30 days in filing) in LPA No. 216/2013

For the reasons stated in the application, delay of 30 days in filing the appeal is condoned.

The application is disposed of.

LPA No. 216/2013 & W.P. (C) No. 8027/2012

The appeal is directed against the orders dated 07.02.2013 and 08.03.2013 passed the learned Single Judge in W.P. (C) No. 8027/2013. For better appreciation of the issue, we are inclined to extract both the orders herein below :-

ORDER

07.02.2013

Mr. Datta has come back with instructions that a show cause notice was issued to respondent No. 2, i.e. Vikash Chowdhary, as to why his passport ought not to be impounded u/s 10(3)(e)(h) of the Passport Act, 1967 in view of the fact that non-bailable warrants had been issued against him in FIR No. 277 dated 30th July, 2010 PS Palam Vihar.

To be noted, this show cause notice was evidently issued to respondent No. 2, i.e. Vikash Chowdhary, on 24th August, 2012. Mr. Datta tells me that no reply has been filed by respondent No. 2 to the said show cause notice.

He has also brought to my notice a communication dated 20th September, 2012 issued by the Government of India, Ministry of External Affairs, Regional Passport Office, which is addressed to various authorities, including the Indian Missions abroad to seize the passport if presented for services by respondent No. 2.

In view of the above, Mr. Datta says that he will ascertain as to whether any order has been passed post the issuance of the show cause notice. If the same is not done, he says steps will be taken in that behalf within next two weeks.

It may be noted that admittedly, respondent No. 2 is in possession of his passport and, therefore, the adjudicating officer will have to decide as to whether an order for impounding or revocation should be passed in this particular case. If necessary, the adjudicating officer shall take into account the averments made in the writ petition and the documents appended thereto.

In the meanwhile, the Regional Passport Office, Delhi shall send the communication dated 20th September, 2012 to the New Zealand Citizenship Office, PO Box - 6147, Auckland 1141, Level-6, AA Building, 99, Albert Street, Auckland - 1010 Phone # (09) 363 0567 through its Embassy in New Zealand.

Renotify on 6th March, 2013

ORDER

08.03.2013

Mr. Datta has come back with instructions. He submits that pursuant to the show cause notice dated 24.08.2012, an order dated 20.09.2012 for impounding was issued. This aspect was noticed in this court''s order dated 07.02.2013 and 06.03.2013 and therefore, direction was issued to the respondents to communicate the said order to the Indian Embassy for onward transmission to the New Zealand Citizenship Office. It appears that, the needful has been done.

Mr. Datta submits that he has instructions to state that they will give a hearing to respondent no. 3 both in respect of the order of impounding, which of course would be a post-decisional hearing, as well as, in respect of any other order, which the respondent may wish to pass. For this purpose, they will issue a show cause notice to respondent no. 3 care of the address of his advocate, Mr. Vachher. Let the needful be done within one week from today.

The official respondents shall also indicate the date, time and venue at which respondent no. 3 can present himself for hearing.

In the meanwhile, respondent no. 3 is given liberty to file his counter affidavit to the captioned writ petition. Let the same be filed within three weeks. Rejoinder thereto, be filed before the next date of hearing.

The official respondents will communicate the factum of pendency of these proceedings to the Citizenship Office in New Zealand.

List on 16.04.2013.

Respondent no. 3 alongwith the children, shall remain present in court, on the next date of hearing. Similarly, the petitioner shall also remain present in court, on the next date of hearing.

Dasti.

The appellant, Vikas Chowdhary is the husband of Sunaina Chowdhary, Respondent No. 3. It appears that there is matrimonial dispute between the appellant and the respondent No. 3 and there are orders of the Courts of competent jurisdiction in this regard which we are not concerned in these proceedings. The respondent No. 3, Sunaina Chowdhary filed a writ petition before the learned Single Judge with a prayer for a direction to the Union of India, Ministry of External Affairs and the Regional Passport Officer (RPO), New Delhi to revoke the Passport No. G2160514 issued in favour of the appellant in accordance with law. While the writ petition was pending the above interim orders came to be passed.

The grievance of the appellant is that when the relief in the writ petition is only for revocation of the passport, issuance of directions to the appellant to appear in person and produce the children before the Court would be outside the scope of the relief sought for in the writ petition.

On the other hand, it is the contention of the Respondent No. 3 that in view of various proceedings, the custody of two children had been ordered in favour of the mother by family Court having jurisdiction over the matter and particularly when the appellant is evading to obey the orders of the family Court, the learned Single Judge was right in issuing such a direction.

It is the case of the respondent No. 2/Regional Passport Officer through his counsel that a show cause notice dated 24.08.2012 was issued to the appellant and thereafter an order dated 20.09.2012 impounding the passport of the appellant was also passed. Having noticed the above by order dated 07.02.2013 and 08.03.2013 directions were issued by the learned Single Judge to the Regional Passport Officer to issue show cause notice for revocation of the passport. Pursuant to the same, further show cause notice was also issued and on the date fixed for hearing, the appellant did not appear either in person or through counsel and, therefore, no further action has been so far taken.

As the issue involved is very limited, by consent of the learned counsel appearing for the parties, we withdraw the writ petition from the learned Single Judge to be listed before this Bench and pass following orders.

As far as the interim order is concerned, in our opinion, the direction to the appellant to appear in person and to produce the children in Court shall fall outside the scope of the relief sought for in the writ petition. Nevertheless, as we are disposing of the writ petition as well, such an order is not required.

The grievance of respondent No. 3/Sunaina Chowdhary is that the passport of the appellant should be revoked. This Court cannot issue a positive direction directing the Regional Passport Officer to revoke the passport as it is a property as held by the Supreme Court. Even according to the prayer in the writ petition such revocation can be done only in accordance with law. For that purpose, the Regional Passport Officer has already issued notice and the inquiry is pending.

In view of the above, the only course for the Court to adopt is to direct the Regional Passport Officer to pass orders on the show cause notice as expeditiously as possible in accordance with law, particularly, when the appellant has not responded to the show cause notice so far.

Accordingly, we direct the Regional Passport Officer, New Delhi who has issued the show cause notice to the appellant for revocation of the passport in question to pass orders in a period of six weeks from today. It is for the appellant either to appear in person or through counsel to represent his case before the Passport Officer. We make it clear that Regional Passport Officer shall adhere to the above time schedule.

Learned counsel for Respondent No. 3/Sunaina Chowdhary has expressed an apprehension that the appellant is using the passport in question for securing a separate citizenship of New Zealand and for that reason, she requested us to issue necessary directions to the appellant that he should not use the passport for that purpose. In our opinion, such a direction cannot be issued in these proceedings as it would also be outside the scope of the writ petition. However, the said request can be kept in mind by the Regional Passport Officer as well as Union of India in the event an adverse order is passed against the appellant with regard to the revocation of the passport. The appeal as well as the writ petition are disposed of.