The Petitioner shall be at liberty to make an application to the
court of competent Metropolitan Magistrate in Mumbai and the learned
Magistrate then to consider the Petitioner's request as made therein, in
accordance with law and on its own merits, as expeditiously as possible
and within a period of three months from the date of such application
being received by him. However, we do not see that this is a fit case to
grant any relief much less a direction to the Passport Authorities to effect
any change in the date of birth and as prayed by the Petitioner. That relief
could be sought from the court of competent jurisdiction in the form of
declaration. We clarify that it would be not open for the Respondent Nos.1
and 2 to urge before the Magistrate or any other forum that the Judicial
Magistrate First Class or the Metropolitan Magistrate, in this case, has no
power or jurisdiction to issue a declaration as prayed by the Petitioner. In
terms of the Passport Manual, 2010, it would be their plain duty to effect
the necessary changes in the passport as per the declaration made of the
competent court. The Respondent Nos.1 and 2 shall not take a stand that
the Magistrate has no power to issue any consequential or incidental
direction after the declaration issued in favour of the Petitioner with
regard to his date of birth. All such orders and directions of the Magistrate
shall be given effect to by the Passport Authorities without insisting on any
separate application by the Petitioner. However, this does not mean that
the Petitioner is not required to fill up the necessary or electronic form
with the Passport Office.
CRIMINAL WRIT PETITION NO.3746 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Kondram Vallapil Srinivas.
Versus
Union of India and others.
CORAM: S.C. DHARMADHIKARI,
AND
G.S. PATEL, JJ.
DATE : 29th October, 2013.
Citation;2014 ALLMR(cri) 3122 Bom
By this Writ Petition under Article 226 of the Constitution of
India, the Petitioner has approached this Court praying that a writ of
mandamus or any other writ, order or direction in the nature thereof be
issued to the Respondents to rectify the Date of Birth in the Passport of the
Petitioner.
2
The Petitioner is a citizen of India. He is permanent resident
of Andheri, Mumbai. However, he made an application for issuance of
Passport and accordingly, the Passport Authorities issued the Passport in
his favour, details of which are disclosed in paragraph 2 of the Writ
Petition. The Writ Petition then narrates as to how the Petitioner’s Passport
was renewed from time to time for a period of five years. The new
Passport, details of which are set out in paragraph 4 of the Writ Petition,
Petitioner has annexed the first and last page of this Passport.
The Petitioner’s case is that the Passport Authorities inserted
3
was issued by the Indian Embassy at Riyadh, Saudi Arabia and the
his Date of Birth as 26.03.1955, however, his correct Date of Birth is
26.03.1958. He came to know about this mistake sometime in the year
2013 and that is how on 07.08.2013 he applied to the Passport Authorities
to effect the change in Date of Birth. He relied upon the School Leaving
certificate, Secondary School Board Certificate, Secondary School
Certificate marksheet and in which the date of birth is reflected as
26.03.1958. The grievance is that no decision has been taken on his
application although it was followed up by the Advocate’s letter dated
filed.
4
04.09.2013. Finding no response that the present Writ Petition has been
The Writ Petition was initially placed before the learned
Single Judge and who examined the contents thereof and found that the
directions sought can be issued only by the Division Bench and that is how
the matter is placed before us.
5
The learned counsel appearing for the Petitioner submitted
that it is the Passport Authority which can effect the change in the
Passport and it is not necessary for the Petitioner to approach any other
forum. He submits that the Authority which issues the Passport is equally
empowered in law to effect any change therein. The Passports Act, 1967
wholly empowers such authorities to make changes in the Passport. There
is no reason why the Petitioner’s application should be kept pending.
6
In support of his submission that it is the Passport Authority
and particularly the Regional Passport Officer who alone can issue the
subject direction, reliance is placed upon a judgment of the learned Single
Judge reported in 2013 ALL MR (Cri) 2380 (The Regional Passport Officer,
Panjim v/s Damodar Babal Shirodkar).
On the other hand, Mrs.Gonsalves, learned counsel appearing
for the Respondents, first submitted that the Writ Petition is not
maintainable. The Petitioner has not approached the concerned Authority
by producing the original Passport. He has also not produced the relevant
documents and straight away filed the present petition. Secondly, the
Regional Passport Officer cannot make any change in the Date of Birth and
as sought by the Petitioner. The Regional Passport Officer is not
empowered to effect all changes and alterations in the Passport on his
own. He can effect the desired change provided the Petitioner produces an
order or declaration from the competent court in that behalf.
Mrs.Gonsalves placed reliance upon the Passport Manual, 2010 which is
the Manual prepared and circulated for guidance of the Passport
Authorities by the Ministry of External Affairs, Government of India.
8
She invites our attention to paragraph 5 of this Manual which
deals with change in date of birth. Therein a reference is made to the
earlier instructions and circulars and particularly of 02.05.2001,
29.10.2007 and 15.01.2008. She also placed for our perusal a circular
issued by the same Ministry way back on 22.12.1994.
9
Mrs.Gonsalves submits that the Petitioner will have to,
therefore, approach a court of Metropolitan Magistrate and who has
jurisdiction over the area in which the Petitioner has a permanent place of
residence and obtain from that court an appropriate declaration or an
order or direction with regard to his date of birth. It is that declaration,
order or direction which will be duly complied with and thereafter, the
requisite changes will be effected in the Passport. The Passport Authority
cannot make such changes in the light of the guidelines given to it and
particularly paragraph 5.2 of the Passport Manual, 2010. She submits that
there is no indication in the petition as to what has happened to the first
Passport as that is not produced. The Writ Petition is directly filed without
producing the original Passport before the Passport Authority and then
making a request as contained in this Writ Petition. For all these reasons, it
10
is submitted that the Writ Petition be dismissed.
We have with the assistance of the learned counsel appearing
for the parties, perused this Writ Petition and all annexures thereto. We
have also perused the Passport Manual. What we find is that on
22.12.1994 the Ministry of External Affairs, Government of India, issued a
circular on the subject of change in date of birth. That refers to earlier
circular dated 18.07.1991. Frequent requests were being received by the
Passport Authorities in India and abroad regarding change of date of birth
in the Passports already held by the Applicants. The Passports Act, 1967 is
referred to and then what is stated in the circular is that once the Passport
Authority has granted the Passport with a particular birth date, then, the
Passport Authority cannot review or revise his own grant order. A
reference is also made to the judgment of the High Court of Kerala dated
09th September 1994 in the case of Elizabeth Mathews v/s Union of India
giving directions that the Petitioner before that Court may file an affidavit
along with relevant documents before the Judicial Magistrate First Class
praying that an order may be passed to correct the date of birth. The
Magistrate may conduct such other inquiries as he deems fit and pass
relevant orders regarding correction of date of birth in the Passport. The
circular, therefore, states that keeping this in view, in all such cases where
a passport holder insists on change of date of birth, he should be advised
to produce the original copy of a declaratory order issued by the
Magistrate instructing that a correction in date of birth be made.
Therefore, all Passport Officers were advised to follow this procedure
contained in the circular dated 22.12.1994. This circular supersedes the
earlier circular dated 18.07.1991.
11
Insofar as the Passport Manual and paragraph 5 thereof is
concerned, that refers to three subsequent circulars, namely, 02.05.2001,
29.10.2007 and 15.01.2008. The Manual then makes provision in regard
to the request of change in date of birth. Paragraph 5 of the Manual reads
thus:
“ 5.
Change in Date of Birth:
(Ref.V.I/401/2/5/2001 dated 29.10.2007 and
15.01.2008 as adapted)
Requests are frequently received by PIAs for a change in
the date of birth. This is due to the fact that many
countries insist that date of birth (or place of birth) in
all documents of a person be the same for purposes of
immigration, long term resident/ student visas, etc.. The
Kerala High Court in a judgment dated 09th September,
1994, in the case of Elizabeth Mathews versus Union of
India and others, gave directions that the Petitioner
may file an affidavit, along with relevant documents,
before a First Class Judicial Magistrate praying for an
order to correct the date of birth.
In the context of various High Court pronouncements
and with a view to addressing genuine difficulties an
applicant might face due to discrepancies in date of
birth in passport and other documents of the passport
holder/ applicant, it has been decided as follows:
Where an application claims a clerical/ technical
mistake in the entry relating to birth/ place of birth in
the passport and asks for rectification/ correction: In all
such cases the documents produced earlier as proof of
date of birth/place of birth at the time of issue of
passport may be perused (if not already destroyed) by
PIA. If it is a clerical mistake either by the applicant or
the PIA, date/ place of birth correction may be allowed
by issue of fresh passport booklet; in the former case, by
charging the fee for fresh passport and in the latter,
'gratis'. There is no need for declaratory court order in
such cases.
Where a competent authority which issued a birth
certificate or an educational certificate issues any
correction or amendment in date/ place of birth, PIA
may effect the necessary amendment in the passport
without insisting on a court order provided the same
5.2
(a)
(b)
(d)
document was produced earlier with the passport
application. Fresh fees will be charged.
Where files have already been destroyed, PIAs could use
their discretion in correction of date of birth without a
court order and where such correction is only in months
(not more than two years) and applicants provide
satisfactory explanation that the same document(s) was
provided at the time of initial passport application. DOB
Affidavit should not be accepted for change in date of
birth. Fresh fees will be charged.
Where the initial entry has been made on the basis of a
supportive document issued by one competent authority
i.e. School/ educational authority, and the applicant
subsequently requests for a change on the basis of a
certificate issued by another competent authority i.e.
Municipal authorities etc., resulting in conflicting
documents for valid proof, the PIA should accept the BC
as the correct date of birth. However, suspicious
documents should be verified from the issuing authority.
Since BC has been made compulsory under the Passport
Rules only on or after 26.01.1989, the preference of BC
over school certificate (as per the Punjab and Haryana
High Court judgment quoted below) may be made
effective from that date only. In case date of birth falls
before this deadline either BC or School Certificate may
be accepted.
For those born on or after 26.01.1989, birth certificate
is the only approved document, as already prescribed”
(c)
(e)
12
A bare perusal thereof would show that in the light of the
High Court pronouncements and with a view to address the genuine
difficulties faced by the Passport holders/ applicants due to discrepancies
in date of birth in the passports and other documents, the Passport
Authorities decided that barring the clerical or technical mistake in the
date of birth in the Passport and where there are minor discrepancies and
as enumerated in paragraph 5.2 (a) to (e) in case the correction is more
than two years, the concerned applicants should approach the competent
court and seek an order and declaration from that court. The Passport
Authorities have been cautioned not to accept the date of birth affidavit
and on the strength of such affidavit, changes should not be made. The
caution that has to be exercised by the Passport Authorities is in larger
public interest and to avoid any situation where the changes effected are
later on objected. That would mean frequent changes being required to be
made and on the basis of some affidavit, so also, questionable and
doubtful documents produced, the requests of this nature would have to
be granted. The paragraph 5 of the Manual makes reference to the
decisions of the Kerala High Court and the Punjab & Haryana High Court.
Equally, it takes care of the fact that such requests should not be routinely
refused and it must not be insisted that in all cases the parties must bring
an order or declaration from the competent court. The Passport
Authorities are, therefore, cautioned that the applications ought not be
refused on the ground that there is no court order or declaration. In the
cases referred to in the Manual, the Passport Authorities themselves
should make the changes by taking requisite care.
13
However, it has been pointed out before us that in the present
case the Petitioner has made a request to effect the change in date of birth
from 26.03.1955 to 26.03.1958. This change has been sought after
issuance of the first Passport and which is stated to have been issued 25
years back. The Petitioner has been working at Riyadh in Saudi Arabia. On
his own showing the Petitioner was issued the Passport on 30.11.2003 and
later on there are renewals and reference is made to the Passport issued
by the Indian Embassy at Riyadh on 25.01.2009 which expires on
24.01.2019. In these circumstances the Passport Authorities have rightly
relied upon the Passport Manual of 2010 placed before us. They have
pointed out that in such cases it is insisted that the court's orders be
obtained and in terms of paragraph 5 of the Manual because a thorough
scrutiny would be required in such cases. The change is more than two
years. The scrutiny will not be only on the basis of the documents which
the Petitioner now produces. It is also not proper to grant such request
only on the explanation given by the Petitioner. In these circumstances and
as a matter of abundant caution that the Passport Authorities are refusing
to exercise their powers and insisting that applicants like the Petitioner
should approach the competent court. We do not find any serious infirmity
approach of the Passport Authorities.
The Petitioner's Advocate has placed reliance upon a
much less error of law apparent on the face of record or perversity in this
judgment of the learned Single Judge rendered at Panaji Bench of this
Court in the case of The Regional Passport Officer, Panjim v/s Damodar
Babal Shirodkar reported in 2013 ALL MR (Cri.) 2380. In that case, the
Petitioner was the Regional Passport Officer and had challenged the order
dated 18.07.2012 passed by the Judicial Magistrate First Class, Margaon
in Criminal Miscellaneous Application No.314/2012 partly allowing the
application and granting a declaration of the date of birth of the
Respondent (Damodar Babal Shirodkar). The Passport was issued to the
Respondent and which wrongly mentioned the date of birth as 10.10.1965
instead of 10.10.1967. Pertinently, the change desired was not more than
two years. He, therefore, filed the Criminal Miscellaneous Application in
the Court of Judicial Magistrate First Class under Section 5(2) of the
Passports Act, 1967 and invoked Section 21 of the General Clauses Act,
1897 and the provisions of the Registration of Births and Deaths Act, 1969
for carrying out the correction in date of birth. That application was partly
allowed by the JMFC granting a declaration of the correct date of birth,
but rejecting the request for direction to the Passport Authority to carry
out the correction in the passport. The reason set out for refusal to grant
the direction to carry out the correction was that the JMFC does not have
powers to issue such directions. Surprisingly, the Passport Authority
argued before the learned Single Judge that the order of the JMFC is
without jurisdiction because he has no powers to issue any declaration.
Further on facts it was pointed out that the date of birth of the
Respondent was recorded correctly in the register of Births and Deaths
maintained by the concerned authorities. There was no reason to seek
declaration and all that was necessary to be done by the Respondent was
to file an application before the Passport Authority under Section 21 of the
General Clauses Act, 1897 for carrying out the necessary correction in the
passport. Since the Passport Authority has power to issue the Passport, it
would have also authority to direct correction therein. In the event of
rejection of such application, the remedy available to the Respondent
would be to approach the High Court.
15
Each of these submissions that have been made before the
learned Single Judge on behalf of the Regional Passport Authority, leave us
astounded. There is absolutely no reference made to any of the provisions
of the Passports Act, 1967 other than Section 5 thereof and Section 21 of
the General Clauses Act, 1897. In the Passports Act, 1967 one finds that
the Passports have to be issued by the Authorities stipulated therein. The
Passport Authority is defined to mean an officer or authority empowered
under rules made under this Act to issue passports or travel documents
and includes the Central Government. Section 5 enables consideration of
applications for passports, travel documents and orders thereon. Sub
section (2) of Section 5 empowers the Passport Authority to make inquiry,
if any, as it may consider necessary and by order in writing, to issue
passport or travel document as the case may be or refuse the same. While
it is true that refusal to issue the passport and equally power to issue the
passport would enable the Passport Authority to carry out corrections
therein and issue the passport on that basis afresh or otherwise, but we do
not find any reference made by the learned Single Judge to the cases
which are dealt with by the circular issued on 22.12.1994 or paragraph 5
of the Passport Manual, 2010. We are surprised that the learned Assistant
Solicitor General of India at Panaji Bench did not invite the Court's
attention to any of these circulars. The Division Bench judgments which
are relied upon before us including the judgment of this Court in Yogesh
Indukumar Patel v/s Union of India in Writ Petition No.1417/1999
decided on 05.07.1999, equally make no reference to any Manual or
Once we find that such material has been placed before us
circulars.
and there is procedure prescribed therein so as to consider the
applications for change in date of birth in the passports, then, we cannot
issue any directions unmindful of the same or contrary thereto and
particularly because none of the stipulations or clauses or paragraphs of
the Manual or circulars are challenged before us. The circulars were in
force and they are not struck down by any higher court. There is nothing
in the circulars which would enable us to hold that they travel beyond the
ambit and scope of the powers conferred in the Passport Authorities or the
Central Government. Ultimately, it is the Central Government which is
conferred with exclusive powers to deal with and dispose of the
applications for issuance of the passports. The Central Government has
been empowered by Section 24 of the Passports Act, 1967 to make rules
for carrying out the purposes of this Act. Section 24 and subsection (2)
thereof, enables making of Rules in relation to several matters including
the appointment, jurisdiction, control and functions of the Passport
Authorities, etc.. Section 24(2) and particularly clause (e) makes a specific
reference to the form and conditions subject to which the different classes
of passports and travel documents may be issued, renewed or varied. In
these circumstances we do not see how the Central Government could be
said to be not conferred with any power to issue any guidelines or
circulars. It is not as if the Manual or paragraphs thereof or the circulars
would enable the Authorities to insist in all cases that parties like the
Petitioner should obtain the court's orders and declaration because the
Manual itself clarifies that the same may not be necessarily insisted and to
cause unnecessary harassment to the applicants. In a suitable case and
when there is reliable and satisfactory material produced, the Passport
Authority itself can make minor changes. We do not find that on the basis
of the Manual or the circulars that in all such cases the Passport Authority
has abdicated its function and duty to make change or vary the passport
or travel document in any manner. In specific cases as a matter of
abundant caution and to avoid unnecessary controversy that the
Authorities are insisting on parties like the Petitioner to obtain the court's
order or declaration in their favour.
In none of the judgments brought to our notice, there is any
17
reference made to any of these circulars or the Manual. The learned Single
Judge was persuaded to accept the stand of the Passport Authority that
seeking relief of declaration from the JMFC in that case was unnecessary.
However, we do not find that the law laid down in the decision of this
Court at Panaji is to the effect that in every case the Passport Authority
alone should make the requisite changes and parties need not be
compelled to approach the Magistrate's courts. It is not as if in all cases
there would be the insistence as apprehended. In appropriate case, the
Passport Authority can make the requisite changes. However, in what
cases the changes would be made by the Passport Authority and in what
cases the parties or applicants would be required to approach the
Magistrate's courts, are matters best left to the decision of the Passport
Authorities. They would be definitely guided by their own Manual and
circulars. In individual cases if their decisions are found to be arbitrary,
illegal and violative of the mandate of Articles 14, 19 and 21 of the
Constitution of India, then, the parties who are aggrieved by their action
or inaction, can approach the High Court and invoke its jurisdiction under
Article 226 of the Constitution of India. However, we do not see the
judgment of the learned Single Judge as laying down an absolute principle
of law that the JMFC has no jurisdiction or power to issue a relief of
declaration. The relief may not be necessary, but that does not denude the
Magistrate of his power and which is conferred by the Passport Authorities
themselves. They would certainly be bound by their own Manuals and
circulars. In these circumstances we are of the opinion that the judgment
of the learned Single Judge does not lay down any absolute principle of
law. It is clearly distinguishable and considering the facts and
circumstances placed before us it is of no assistance to the Petitioner.
Everything depends on the facts and circumstances of each case. Equally,
the judgments of the Division Benches also do not lay down any principle
as has been sought to be deduced by the Petitioner's Advocate therefrom.
In any event, these judgments have been delivered prior to the circulars
being issued or updated. In none of these judgments, there is any
reference made to the circulars. Once the circulars are in place and we
find that same have not been challenged nor their legality or validity is
questioned, then, no reliance can be placed on these judgments.
18
As a result of the above discussion, the Writ Petition fails and
is dismissed.
19
The Petitioner shall be at liberty to make an application to the
court of competent Metropolitan Magistrate in Mumbai and the learned
Magistrate then to consider the Petitioner's request as made therein, in
accordance with law and on its own merits, as expeditiously as possible
and within a period of three months from the date of such application
being received by him. However, we do not see that this is a fit case to
grant any relief much less a direction to the Passport Authorities to effect
any change in the date of birth and as prayed by the Petitioner. That relief
could be sought from the court of competent jurisdiction in the form of
declaration. We clarify that it would be not open for the Respondent Nos.1
and 2 to urge before the Magistrate or any other forum that the Judicial
Magistrate First Class or the Metropolitan Magistrate, in this case, has no
power or jurisdiction to issue a declaration as prayed by the Petitioner. In
terms of the Passport Manual, 2010, it would be their plain duty to effect
the necessary changes in the passport as per the declaration made of the
competent court. The Respondent Nos.1 and 2 shall not take a stand that
the Magistrate has no power to issue any consequential or incidental
direction after the declaration issued in favour of the Petitioner with
regard to his date of birth. All such orders and directions of the Magistrate
shall be given effect to by the Passport Authorities without insisting on any
separate application by the Petitioner. However, this does not mean that
the Petitioner is not required to fill up the necessary or electronic form
with the Passport Office.
20
The Writ Petition is disposed of in the above terms. There will
be no order as to costs.
(G.S. PATEL, J.)
(S.C. DHARMADHIKARI,J.)
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