Monday 5 March 2012

Show Cause Notice

Show cause notice is requires to be speaking in nature too enable the person concerned to answer the materials contained in the notice. A show cause notice with out any materials for deliquent to answer is no show cause notice.
CWJC No.19615 of 2010
Citation: AIR 2011 Patna 54
Heard learned counsel for the petitioner and the Union of India.
Counter affidavit is stated to have been filed on behalf of the respondents on 21.1.2011. It is not on record. The Registry shall place it on record. The Court requested the counsel for the Union of India to make available his copy for perusal so as not to hold up the proceedings on that ground. Let the office retain on record a Xerox copy of the same.
A rejoinder and a supplementary affidavit are stated to have been field on behalf of the petitioner today in the Registry. The Registry shall place it on record also.
The petitioner was issued a Passport in the year 1990 by the Passport authority at Patna. It is his case that the Passport was renewed in 1999 and again in the year 2009. It is his further case that through the validity of the Passport, he has utilized the same on several occasions for overseas
travel without any let or hindrance.
Learned counsel for the petitioner submits that he is embroiled in property litigation with a family member. An issue of his citizenship was sought to be raised by the latter behind his back culminating in a show cause notice dated 1.7.2010 issued to him by the Superintendent Passport Office at Patna informing him that he had obtained a Passport without obtaining Indian citizenship and by furnishing false and fabricated information. Asking him to show cause he was directed to deposit his Passport. The petitioner replied to the same denying all allegations asserting Indian citizenship by birth. The petitioner then filed C.W.J.C. No. 14085 of 2010, questioning the show cause notice and which is pending. On 3.8.2010, he was issued another show cause notice acknowledging his reply and reasserting that it had been reported to the Passport office that petitioner had obtained Passport on false information without Indian Citizenship. He was again directed to surrender his passport, failing which action would be taken under the Passport Act. The petitioner responded to the same denying allegation when finally orders have been passed on 20.10.2010 revoking his Passport. A look out notice was issued

against him. He was deplaned while boarding an aircraft at the Indira Gandhi International Airport, New Delhi on 4.10.2010, causing gross humiliation to him apart from hindering his travel plan. A claim for compensation was made. Learned counsel for the Union of India finds it difficult to explain and demonstrate to the Court that the show cause notices dated 1.7.2010 and 3.8.2010 contain materials of the details on basis of which the authorities were satisfied that the petitioner was not an Indian citizen and the nature of the false and fabricated materials based upon which by misrepresentation of Passport had been obtained. The fairness shown by the counsel for the Union of India need not compel the Court to enter into a discussion with regard to the requirements of a decision making process.
A presumption arises in law that when a Passport is issued to a citizen all necessary inquiries, formalities and queries have been fully answered to the satisfaction of the authorities. Once a Passport is issued after compliance with procedures, a presumption of its correctness arises under Section 114(e) of the Indian Evidence Act. The presumption
is rebuttable in accordance with law. The onus lies on the person who questions the same. The Passport can certainly be revoked but only in accordance with law. A show cause notice given for as important a document as a Passport vesting the fundamental right to freedom of movement cannot be an empty formality. The person issuing the show cause was conscious of the need in law to issue the same before action. A presumption arises that he was also conscious of the fact that the show cause was required to be speaking in nature to enable the person concerned to answer the materials contained in the notice. A show cause notice without any materials for the delinquent to answer is not a show cause notice. It cannot be lost sight of that the petitioner claims to have utilized the Passport even since 1990 and including two renewals granted by the Passport authority. The renewal granted by them further reinforce the claim of the petitioner at this stage with regard to the validity and correctness of the representation made by him to obtain the Passport. The petitioner on both occasions in his reply to the show cause notice requested to furnish the grounds. The respondents have refused to do so.
In view of the fact that the show cause notice dated 1.7.2010 and 3.8.2010 does not stand the scrutiny of the law at all, a document as important as a Passport cannot be impounded or revoked in the casual manner done by the order dated 20.10.2010. The three orders are accordingly set aside. The Passport of the petitioner stands reinstated and directions are issued to hand over the same to him forthwith. The issue of citizenship is not the jurisdiction of the Passport authorities, but assumes significance under the Passport Act only after adjudication and determination by the Central Government only under the Citizenship Act.
Nothing precludes the respondents from issuing a show cause notice to the petitioner in the manner as discussed in the present order and then pass a final reasoned and speaking order in accordance with law. In the event that the respondents are satisfied that the petitioner was not entitled to a Passport, they shall simultaneously examine and take a decision by a reasoned order with regard to institution of Civil and Criminal law proceedings with regard to their own office personnel who not only issue the Passport to the petitioner in
1990 but renewed it in 1999 and in 2009 again. There cannot be a unilateral action in such matters. Circumstances warranting, the petitioner may raise a claim for compensation and damages before the appropriate forum. The writ application stands allowed.
P. Kumar
( Navin Sinha, J.)
Print Page

No comments:

Post a Comment