Chandigarh

StateCommission

A/35/2022

Regional Passport Officer - Complainant(s)

Versus

Gurpiara Dass Aggarwal - Opp.Party(s)

Indresh Goel Adv.

19 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	35 of 2022
Date of Institution	:	06.04.2022
Date of Decision	:	19.07.2022

 

 

 

 

 

Regional Passport Officer, SCO 28-32, Sector 34-A, Chandigarh 160022.

…..Appellant/Opposite party

V e r s u s

 

1. Gurpiara Dass Aggarwal s/o Sh. Prem Sagar, aged about 67 years.
2. Kanta Devi w/o Sh. Gurpiara Dass Aggarwal, aged around 65 years;

Both r/o House No.102, Sector 17, Panchkula.

….Respondents/complainants

  

Present:-             Sh Indresh Goel, Advocate for the appellant/opposite party.

      Dr.Sumati Jund, Advocate for the respondents/ complainants.

================================================================

 

Appeal No.	:	79 of 2021
Date of Institution	:	24.09.2021
Date of Decision	:	19.07.2022

 

 

 

 

 

1. Gurpiara Dass Aggarwal s/o Sh. Prem Sagar, aged about 67 years.
2. Kanta Devi w/o Sh. Gurpiara Dass Aggarwal, aged around 65 years;

Both r/o House No.102, Sector 17, Panchkula.

…..Appellants/Complainants

V e r s u s

 

Regional Passport Officer, SCO 28-32, Sector 34-A, Chandigarh 160022.

….Respondent/Opposite party

 

Present:-              Dr.Sumati Jund, Advocate for the appellants/complainants.

      Sh.Indresh Goel, Advocate for the respondent/opposite party.

 

================================================================

BEFORE:            JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                           MRS. PADMA PANDEY, MEMBER.

                           MR.RAJESH K. ARYA, MEMBER.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   By this order, we are going to dispose of the above captioned two appeals, both originated from the common order dated 17.08.2021 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.45 of 2020, which was partly allowed and the opposite party-Regional Passport Officer was directed as under:-

“……In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-

1. to pay a global compensation of ₹70,000/-, inclusive of the amount spent by the complainants on their tickets/hotel bookings etc. as well as for causing mental agony and harassment to them;
2. to pay ₹7,000/- to the complainants as costs of litigation.

This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(ii) above….”

2.           Appeal bearing no.79 of 2021 titled as Gurpiara Dass Aggarwal  and another Vs. Regional Passport Officer, has been filed by the complainants- Gurpiara Dass Aggarwal  and Kanta Devi, who are senior citizens, for enhancement of the relief awarded by the District Commission.
3.           On the other hand, cross Appeal bearing no.35 of 2022 titled as Regional Passport Officer Vs. Gurpiara Dass Aggarwal  and another,  has been filed by the opposite party-Regional Passport Officer, for setting aside the impugned order dated 17.08.2021 passed by the District Commission
4.           The facts lies in narrow compass. The complainants planed a trip to Dubai from 17^th  to 22^nd January, 2019 with their family friends, after getting requisite visa/approval from the Director of Residency and Foreign Affairs, United Arab Emirates (UAE).  They spent an amount of Rs.35,164/- for to and fro journey tickets and Rs.22,430/- for hotel and sightseeing, at UAE. It was stated that as per plan, the complainants reached the Indira Gandhi International Airport, New Delhi, on 17.01.2019 from Chandigarh via Shatabdi Train, for which they spent Rs.2,815/-. 
5.           At the airport, when the complainants were about to board the flight booked by them, complainant-Shri Gurpiara Dass was stopped by Immigration Officer and his passport No.N-6813490 was seized by stating that it fell under category of ‘Lost travel document’, as a result whereof, the complainants could not board their scheduled flight. Under those circumstances, the whole trip of the complainants was cancelled. The complainants had to wait at the airport for a long time to get their luggage and came back to Chandigarh via bus on 18.01.2019 by spending an amount of Rs.1,410/-. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of opposite party, the complainants filed consumer complaint before the District Commission.
6.           The opposite party filed its written reply and stated that one Sh.Nikhil Balkrishan Joshi r/o Pune City, had submitted a complaint for loss of his old Passport and wrongly mentioned his Passport No. as N-681349 in the DDR submitted with the Passport Office, Pune and therefore the said passport was drilled in the ‘lost list’.  It was averred that passport of complainant no.1 was seized by the Immigration Authority at New Delhi Airport and sent to the opposite party. It was stated that after issuance of memo of seizure, the complainants approached the opposite party and after verifying the record, new passport bearing No.T-5115822 dated 04.06.2019 was issued to complainant no.1 on gratis basis. While denying remaining averments of the complaint, prayer was made to dismiss the consumer complaint. 
7.           The parties led evidence in support of their case.
8.           The District Commission after considering the rival contentions of the parties and on going through the material available on record,  partly allowed the consumer complaint, in the manner stated above. Hence these appeals.
9.           We have heard counsel for the parties and have gone through the entire record in both the appeals, including written arguments of Regional Passport Officer, very carefully.
10.           Counsel for the appellant/opposite party in Appeal bearing no.35 of 2022,  vehemently contended that since the passport officer is performing a sovereign function; and passport is not a commodity, which can be purchased or sold for consideration, rather it is only a valid permission granted to a person/citizen  of one country to respectfully go outside the country and enter into another nation, as such, it could not be equated with the definition of ‘service’ rendered to a consumer, as defined in the Consumer Protection Act. In support of his contention, he has placed reliance on following judgments:-

 

1. Passport Officer Vs. Avtar Singh Gondara, First Appeal No.856 of 2012 decided by the State Consumer Disputes Redressal Commission, Punjab, on 08.10.2015;
2. S.Vijaya Kumar and another Vs. Regional Passport Officer, Revision Petition No.3322 of 2009 decided by the Hon’ble National Commission on 10.04.2015;
3. Passport Officer Vs Ajay Bansal, Revision Petition No.3785 of 2013 decided by the Hon’ble National Commission on 13.03.2015; and
4. The Regional Passport Officer and another Vs Paramjit Kaur Dhaliwal, First Appeal No.175 of 2019 decided by the State Consumer Disputes Redressal Commission, Punjab, on 08.11.2019.

 

11.           On the other hand, Counsel for the respondents-complainants in  Appeal No.35 of 2022 submitted that the immigration officer without verifying the facts; without giving any notice to complainant no.1 had seized/ impounded his passport bearing no.N-6813490, as a result whereof, the complainants were compelled to cancel their trip to UAE, which act on the part of the opposite party is totally unfair, illegal and against the principles of natural justice, the same has absolutely no concern whatsoever with the sovereign function of the State and as such, covered under the ambit of Consumer Protection Act. In support of his contention, he has placed reliance on following judgments:-
    1. Henry Lawrence Managalnath Vs. Passport, Revision Petition No.4801 of 2013 decided by the Hon’ble National Commission on 15.11.2019; and
    2. Passport Officer Vs. Richa Bhandari, Revision Petition No.120 of 2015 decided by the Hon’ble National Commission on 16.03.2016;
    3. Regional Passport Officer Vs. Anuradha Thadipathri Gopinath, Revision Petition No.2389 of 2008 decided by the Hon’ble National Commission on 10.07.2008;
    4. A.Ignatious Julian Vs. The Passport Officer, OP No.426 of 1993 decided on 14.02.1994 by the Tamil Nadu State Consumer Disputes Redressal Commission;. and
    5. Lucknow Development Authority vs. M. K. Gupta [1994 (1) SCC 243]

 

12.           We have given our thoughtful consideration to the rival contentions and scanned the material available on the record, including written arguments of Regional Passport Officer. We are also of the considered opinion that the passport is a personal property of its holder. Ceasing or impounding a passport in an unjust manner, certainly amounts to impair of fundamental rights of its holder. Under similar circumstances, the Hon’ble Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, has held as under:-

 

“……The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-section (3) of section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by sub-section (5) of section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the bolder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by section 11, and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak's case. The same result must follow in view of the decision in A. K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.………”

13.           In the present case, the opposite party has taken a plea that one Sh.Nikhil Balkrishan Joshi r/o Pune City had submitted a complaint for loss of his old Passport and inadvertently mentioned his Passport No. as N-681349 in the DDR submitted with the Passport Office, Pune. Surprisingly, no such document has been produced by the opposite party, if said Sh.Nikhil Balkrishan Joshi has submitted his application with regard to loss of his old passport and issuance of new one. Besides this, the passport of the complainant no.1 was valid for the period from 25.01.2016 to 24.01.2026 and it was not an old one. When the complainants were about to enter in the booked flight, the Indian Immigration Officer at Indira Gandhi International Airport, New Delhi, seized passport of complainant no.1 vide Seizure Memo (Annexure C-3), contents of which are reproduced hereunder:-

“……INDIAN IMMIGRATION CONTROL

INDIRA GANDHI INTERNATIONAL AIRPORT, NEW DELHI

SEIZURE MEMO

 

The Passport/Travel document No. A 6813490 dated 25/01/2016 issued at Chandigarh in the name of Mr./Mrs. Gurpiara Dass Aggarwal Son of Prem Sagar has been seized and sent to Regional Passport Officer, Chandigarh,  through the F.R.R.O Delhi, for necessary action as:-

 

(Tick mark the correct one)

 

The Immigration Officer is satisfied that the holder of the passport is in wrongful possession thereof.

OR

 

The Immigration Officer is satisfied that the condition relating to the passport has been contravened.

OR

 

Any other reason “Pax Drill Status Showing Passport “LOST”. ….”

14.           The Indian Immigration Officer failed to observe that the passport of complainant no.1 (Sh. Gurpiara Dass Aggarwal) bears No. N-6813490 and  not N-681349; and that it was valid for the period from 25.01.2016 to 24.01.2026 and  was in possession of complainant no.1 only and therefore, it cannot be taken as “lost”. In this view of the matter, seizure of passport of  Sh. Gurpiara Dass Aggarwal was illegal, unfair, unreasonable and against the principles of natural justice and such acts of the Immigration Officer certainly amounts to deficiency in rendering service and negligence.
15.           Now the question arises, as to whether, impounding or seizure of passport  amounts to sovereign function by the immigration/passport officer and does not fall within the ambit of Consumer Protection Act?. First of all, we would like to discuss with regard to the point relating to the immunity of the appellant-Passport Officer- being a functionary of the Govt. of India- in respect of its sovereign acts.
16.           Immunity of State for its sovereign acts is claimed on the basis of the old English Maxim that the King can do no wrong but this maxim has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.
17.           Holding/acquiring a passport is a fundamental as well as human right of a citizen. It is well settled that the fundamental rights, which also include basic human rights, continue to be available to the citizens of the country and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by the Hon’ble Supreme Court. In N. Nagendra Rao & Co. vs. State of A.P., AIR 1994 SC 2663, it was observed:- "But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is soverign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as "soverign and non-sovereign" or "governmental or non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between soverign and non-soverign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity”.
18.           The whole question was again examined by the Hon’ble Supreme Court in Common Cause, A Registered Society vs. Union of India & Ors., (1999) 6 SCC 667, wherein the theory of immunity was rejected.
19.           In Lucknow Development Authority (supra) reliance whereupon has also been placed by counsel for the respondents-complainants, the Hon’ble Supreme Court of India has held that a statutory authority that offers any kind of service for which a fee is charged, will be amenable to the jurisdiction of the consumer fora. Relevant part of the said order is reproduced hereunder:-

"In absence of any indication, expressed or implied there is no reason to hold that authorities created by the Statute are beyond purview of the Act..... The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, 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". (Vide para 4).

.......the entire purpose of widening the definition (of `service' under section 2(o) of the Act) is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer". (vide para 6)

20.           In the present case, in the seizure memo Annexure C-3 reason for the seizure has been given “Pax Drill status showing Passport “LOST”. Complainant no.1 was not even shown any copy of the alleged document showing such status. We are of the considered view that this contention of the opposite party is vague, in the eyes of law. In this view of the matter, we are of the considered view that the said Indian Immigration Officer was not performing any sovereign function.
21.           Facts in the case of Avtar Singh Gondara (supra) reliance whereupon has been placed by counsel for the appellant-Passport Officer are distinguishable. In that case, Avtar Singh applied for a new passport. Although the website of the passport office indicated the passport will be dispatched to the complainant shortly but after waiting for 7 days the passport was not supplied to him and there was an inordinate delay in doing so. But these facts are not in dispute in the present case.
22.           Facts in the case of S.Vijaya Kumar and another (supra) are also distinguishable. In that case, the complainant applied for a passport. Police verification was conducted  and requisite amount was deposited. When he visited the passport office to inquire about the reasons for delay, he was misbehaved and thereby inordinate delay.
23.           Facts in the case of Ajay Bansal (supra) were also distinguishable. In that case also, the passport was issued after considerable delay. The Hon’ble National Commission in para no.9 held that “..As issuance of passport is a sovereign function, passport officer does not fall within the purview of service provider and Learned District Forum committed error in holding that on account of payment of fee for issuance of passport, complainant falls within the purview of ‘consumer’.  Learned State Commission further committed error in upholding this contention.…” but in the instant case, it does not relate to delay in issuance of passport.
24.           Facts in the case of Paramjit Kaur Dhaliwal (supra) are also distinguishable. In that case, wrong date of birth was mentioned  in the passport, therefore, the complainant applied for correction of date of birth by paying requisite fee. She was asked time and again and ultimately, the correction was refused.  But this is not the situation in the present case.
25.           On the other hand, in Passport Officer Vs. Richa Bhandari  (supra), the Larger Bench of Hon’ble National Commission in para no.16 has held as under:-

                   “…16.   For the reasons stated hereinabove, the reference is                                       answered as under:

(i)     A person, who applies for a passport and to whom a passport is ordered to be issued, is a consumer as defined in the Consumer Protection Act.  We make it clear that he will be a consumer only in respect of the activities which the Passport Office or the agency to which such activities are outsourced, undertakes, after the decision of the Passport Officer to issue a passport to the applicant;

 (ii)    An unjustified delay in preparation, issue, dispatch and delivery of the passport, occurring after the Passport Officer has decided to issue passport to the applicant or any other defect or deficiency in the activities post the decision of the passport officer to issue a passport to the applicant, would constitute defect or deficiency in the service as defined in Section 2(1)(f) and 2(1)(g) respectively of the Consumer Protection Act and a consumer complaint, seeking compensation for such a defect or deficiency is maintainable;

 (iii)   any defect or deficiency in the document of passport issued to a person would constitute defect or deficiency as defined in Section 2(1)(f) and 2(1)(g) respectively of the Consumer Protection Act and a consumer complaint, seeking compensation for such a defect or deficiency is maintainable.….”

26.           In another case titled as Regional Passport Officer Vs. Anuradha Thadipathri Gopinath (supra) the  Hon’ble National Commission in para no.5 has held as under:-

“………He further submitted that the officer was discharging his duties without recovering any fee and, therefore, this would not be a consumer dispute. In our view, issuance or non-issuance of a passport may be a statutory duty and may not be a consumer dispute but issuance of an invalid passport which is not signed by the Passport Officer, would be deficiency in service on the part of the concerned officer as defined under Section 2(1)(g) of the Consumer Protection Act which defines deficiency. It specifically provides that deficiency means any fault, imperfection, shortcoming, inadequacy in the nature and manner of performance, which is required to be maintained under any law. Admittedly, the petitioner is charging fee for issuance of passport and, hence, service is availed by paying fee. A passport, which is issued without the signature of the Competent Authority, is on the face of it invalid which would have placed the complainant in a precarious position and she might have been hauled up for various offences if she had tried to go abroad on that passport. Such lapse amounts to a serious deficiency in discharge of duties, which is in the nature of rendering of service, hence, the complaint is maintainable. This Revision Petition is, therefore, dismissed…….. ”

27.           In this view of the matter, we are of the considered view that Appeal filed by the opposite party bearing no.35 of 2022 titled as Regional Passport Officer Vs. Gurpiara Dass Aggarwal  and another,  is devoid of merit and as such is dismissed with  costs of Rs.5000/- to be paid to the respondents/complainants, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, it shall carry interest @6% p.a. from the date of passing this order, till realization. Consequently, miscellaneous application bearing no.290 of 2022 (for stay) also stands dismissed, having been rendered infructuous.

Appeal bearing no.79 of 2021:- Gurpiara Dass Aggarwal  and another Vs. Regional Passport Officer:-

28.           Now coming to the appeal filed by the complainants for enhancement. In this case, the District Commission awarded global compensation to the tune of Rs.70,000/- inclusive of the amount spent by the complainants on their tickets/hotel bookings etc. as well as for causing mental agony and harassment to them; and Rs.7,000/- as costs of litigation. We are of the considered opinion that the complainants, who are senior citizens, were deprived of the enjoyment of the company of family friends and a trip to UAE, for which they paid total amount of Rs.61,819/-in the following amounts:-

• Rs.35,164/- for to and fro tickets
• Rs.22,430/- for hotel and sightseeing.
• Rs.2,815/- to reached Indira Gandhi International Airport on 17.1.2019 from Chandigarh via Shatabdi Train
• Rs.1,410/- towards bus fare to  come back to Chandigarh

29.           Apart from above, complainant no.1 was not allowed to board the flight and his passport was seized/impounded. However, thereafter, a temporary passport was issued on 04.06.2019 i.e. after much delay. If the Indian Immigration Officer was having any doubt with regard to passport of complainant no.1, he could have issued temporary passport on the very same day, as was did on 04.06.2019 but he failed to do so.
30.           Complainants have already spent Rs.61,819/- as aforesaid. They are entitled to be indemnified qua this amount. Apart from it, passport of complainant no.1 was wrongly and illegally withheld. Thus, in this case, damage has been suffered only by Sh. Gurpiara Dass Aggarwal, complainant no.1. Although Smt.Kanta Devi is the wife of complainant no.1, yet, in her individual capacity, she did not suffer any damage on this count. Thus, to our mind, only Sh. Gurpiara Dass is entitled to Rs.50,000/- as compensation for damages and mental agony. However, complainant no.2 being companion and wife of complainant no.2 also could not enjoy and was deprived of the trip to UAE for the reasons mentioned above, therefore,  she is also entitled to compensation of Rs.50,000/-. At the same time, we also enhance the litigation expenses from Rs.7,000/- to Rs.15,000/- which will take care of litigation expenses incurred by the complainants for filing consumer complaint before the District Commission, appeal filed by them before this Commission and also for appearance in the cross appeal filed by Regional Passport Officer.  
31.           From the facts narrated above, it can easily be seen that the complainants, who are senior citizens, have definitely suffered lot of mental agony and harassment at the hands of the opposite party but the District Commission failed to appreciate all these facts. Under these circumstances, we are of the considered view that compensation granted by the District Commission is on the lower side.
32.           For the reasons recorded above, Appeal bearing no.79 of 2021- Gurpiara Dass Aggarwal  and another Vs. Regional Passport Officer stands partly allowed with the modification and following directions are given to the respondent/opposite party-Regional Passport Officer, as under:-

1. To refund the amount of Rs.61,819/- as referred to above, to the complainants in equal shares, spent by them on the tickets/hotel bookings, bus fare etc.
2. To pay Rs.50,000/- to Sh.Gurpiara Dass Aggarwal-complainant no.1 for causing him mental agony, as his passport was illegally seized, in the manner aforesaid.
3. To pay Rs.50,000/-, to complainant no.2-Smt.Kanta Devi as she was deprived of the trip to UAE, in the circumstances explained above.
4. To pay Rs.15,000/- in equal shares i.e. Rs.7,500/- each, to the complainants as cost of litigation.
5. This order be complied within a period of 30 days from the date of receipt of its certified copy, failing which, the awarded amounts shall entail interest @ 12% per annum from the date of filing of consumer complaint before the District Commission till realization.

33.           Certified copies of this order be sent to the parties, free of charge and one copy be placed in the cross appeal file.
34.           The concerned files be consigned to Record Room, after completion.

Pronounced.

19.07.2022

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 Rg.