V.MEHAR SHRAVAN KUMAR vs REGIONAL PASSPORT OFFICER

THE complainant Mr. V. Mehar Shravan Kumar is aggrieved by the alleged deficiency in service on the part of the Passport Officer in issuing to him passport belatedly because of which he could not joint the medical course for which he got admission in Vinnitsa Medical University, Ukraine. THE complainant states tha the received admission letter dated 27.7.1998 from the Ukrainian Ministry of Public Health stating that he had been admitted in Vinnitsa Medical University for a Bachelor of Medicine (M.B.B.S.) course on the basis of self finance and requiring him to furnish his passport number and that he applied for a passport to the opposite party on 1.8.1998 paying the prescribed fee of Rs. 300/-by way of bank draft. THE opposite party issued to him a passport bearing No. A6625884 dated 12.11.1998 on 26.11.1998. He was to join the medical course in the University in Ukraine by 20.9.1998 when the classes were to start. THE complainant submits that there was inordinate delay by the opposite party in issuing passport because of which he lost his admission for M.B.B.S. course in Vinnitsa Medical University in Ukraine.

THE question that arises is whether in applying for a passport paying a prescribed fee of Rs. 300 / - the complainant hired the services of the opposite party from a consideration. THE learned Counsel for the complainant contends that even Statutory Authorities rendering services are subject to the jurisdiction of the Tribunals under the Consumer Protection Act, 1986 (''the Act'' for short) in view of the judgment of the Supreme Court in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243, and submits that the fee collected by the opposite party was the consideration for the services to be rendered by him. He also relies on the decision of the Tamilnadu State Commission in A. Ignatious Julian v. THE Passport Officer, III (1994) CPJ 321=1995 (2) CPR 108, wherein it has been held relying on Lucknow Development Authority (supra), that "the Consumer Protection Act is applicable even in respect of acts done under statutory provisions like the Passport Act". There is no doubt that the Supreme Court has held in Lucknow Development Authority (supra), that the legislative intention in enacting the Act is "to protect a consumer against services rendered even by statutory bodies" and that the test "is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility". The Supreme Court has further held that the expression "service'' as defined in Clause (o) of Section 2(1) takes in such wide ranging activities in day to day life and such facilities as are available to a consumer in connection with banking, financing etc., and that no distinction can be drawn in private and public transport or insurance companies and that even supply of electricity or gas which throughout the country is being made, mainly, by statutory authorities is included in it. The Supreme Court further has observed as follows : "In fact the Act requires provider of service to be more objective and care-taking. It is still more so in public services. When private undertakings are taken over by the Government or Corporations are created to discharge what is otherwise State''s function, one of the inherent objectives of such social welfare measures is to provide better, efficient and cheaper services to the people. Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and the spirit behind it." The Supreme Court has also observed that deficiency in service in Section 2(1)(o) is not exhaustive and that "any service except when it is free of charge or under a constraint of personal service is included in it."

But the question that arises in the present case is whether the opposite party is rendering any service for consideration in issuing a passport on an application made by a citizen. We are clearly of the view that the opposite party is performing only statutory functions in considering application of the citizens for passport and in issuing the same to them and that the statutory functions performed by him are not for any consideration paid by the citizens. No contract of service or purchase of goods for consideration is involved in granting passports. In Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), the Supreme Court held that tax or fee collected by the State does not amount to consideration. The Supreme Court there was dealing with free services rendered in Government hospitals. The Supreme Court held as follows in that context : "The essential characteristics of a tax are that, (i) it is imposed under statutory power without the tax-payer''s consent and the payment is enforced by law; (ii) it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax and (iii) it is part of the common burden, the quantum of imposition upon the tax payer... The tax paid by the person availing the service at a Government hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service though rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer."

"Fee" is also an imposition and a form of tax. A fee charged under a statutory provision cannot be equated to consideration for services hiring of or purchase of goods. See the decision of Orissa State Commission in Secretary to Government of Orrisa, Forest Environment Department & Ors. v. Sri Kulamani Sahu, 1995 (2) CPR 7.

PASSPORT is defined under the PASSPORT Act, 1967 as "a passport issued or deemed to have been issued under this Act". Section 5 of that Act provides for application to be made to PASSPORT Authority for the issue of a passport and it also provides that such an application shall be made in the prescribed form and shall be accompanied by a fee. Sub-section (2) of Section 5 provides that "on such an application the PASSPORT Authority, after making such enquiry, if any, as it may consider, necessary, shall, subject to other provisions of this Act, by order in writing" issue the passport or refuse to issue the passport recording the reasons for the same. Section 6 of the Act specifies the grounds on which the PASSPORT Authority shall refuse to make an endorsement for visiting any foreign country and the grounds on which the PASSPORT Authority shall refuse to issue a passport for visiting any foreign country. Section 7 deals with duration of passports and Section 9 deals with the conditions subject to which and form in which a passport shall be issued or renewed. Section 10 provides for variation, impounding and revocation of passports. Section 17 provides that the "passport and travel documents issued under this Act shall at all times remain the property of the Central Government". These provisions of the PASSPORT Act, 1967 clearly establish that the issuance of passport is governed by statute and that no hiring of service is involved when an application for passport is made by a person. In Satwant Singh Sawhney v. D. Ramarathnam, Assistant PASSPORT Officer, New Delhi & Ors., AIR 1967 SC 1836, the Supreme Court held that "an Indian passport is factually a necessary condition for travel abroad and without it no person residing in India can travel outside India". In Nrisingha Murari Chakraborty & Ors. v. State of West Bengal, AIR 1977 SC 1174, the Supreme Court held as follows : "A passport is a document which, by its nature and purpose, is a political document for the benefit of its holder. It recognises him as a citizen of the country granting it and is in the nature of a request to the other country for his free passage there..."

We are, therefore, clearly of the view that the complainant in the present case is not a consumer as that expression is defined under Section 2(1)(d) of the Act because he had not hired or availed of any services of the opposite party for any consideration. We are supported in this view by the decision of the Haryana State Commission in K.S. Kataria v. Regional Passport Officer, 1998 (1) CCC 201 (SS). The Haryana State Commission held as follows : "In fact, the 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 can not 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."

FOR the reasons stated above we are not in agreement with the view of the Tamil Nadu State Commission expressed in A. Ignatious Julian v. The Passport Officer (supra), that the Act "is applicable even in respect of acts done under statutory provisions like the Passport Act". The Tamil Nadu State Commission did not enquire into the legal incidents and characteristics of passport and the statutory powers conferred on the Passport Officer for granting passports. Even assuming for argument sake that in issuing passports the Passport Officer renders services to the applicants for passports, the Tamil Nadu State Commission did not enquire into the very material question whether such services were rendered for consideration. In the result, the complaint is dismissed. No costs. This does not preclude the complainant from pursuing appropriate remedies that may be available to him under law. Complaint dismissed.