The Government of India has already outsourced a number of functions post-decision of the
Passport Officer to issue passport to an applicant, to an outside agency. A perusal of the Press
Release dated 30.7.2014 issued by Government of India, Ministry of External Affairs would show
that under a Public-Private Partnership approach adopted by the Government, while retaining the
core and sovereign functions such as verification of supporting documents, police verification,
decision on grant of passports, revocation and impounding of passports, the activities such as
token issuance, initial security of application forms, digitization of documents, taking photographs
and biometrics are now being performed by the staff of the service provider. The aforesaid step
taken by the Government also indicates that the activities post decision of the passport officer to
issue the passports to an applicant, i.e. activities such as printing, preparation, dispatch and
delivery of the passport etc., are non-sovereign activities and that is why the said activities have
been outsourced to a private agency.
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.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 120 OF 2015
PASSPORT OFFICER, PASSPORT OFFICE Vs RICHA BHANDARI
BEFORE:
HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
HON'BLE DR. B.C. GUPTA, MEMBER
HON'BLE MRS. M. SHREESHA, MEMBER
Dated : 16 Mar 2016
Pursuant to a reference made by a Two-Members Bench of this Commission on 17.11.2015,
the following questions of law have been referred to this Bench for decision:
Whether a person, who applies for a passport and to whom a passport is ordered to be
issued, is a Consumer as defined in Consumer Protection Act;
1.
Whether the delay in preparation and issue of passport, after the Passport Officer has
decided to issue passport to the applicant, or any other deficiency thereafter constitutes
defect or deficiency in the services as defined in Section 2(1)(f) and 2(1)(g) respectively of
the Consumer Protection Act;
Whether any defect 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.
2. Section 2(1)(d)of the Consumer Protection Act, to the extent it is relevant defines the term
‘consumer’ to mean any person who hires or avails of any services for a consideration. The term
‘service’ is defined in Section 2(1)(o) of the Act to mean service of any description which is made
to potential users, including though, not limited to the service enumerated therein. The aforesaid
term however, does not include the rendering of any service free of charges or under a contract of
personal service.
3. Since the aforesaid term includes service of any nature made available to the user, unless
rendered free of charge or under a contract of personal service, the first question which arises for
our consideration is as to whether the activities of the Passport Office, post-order of the Passport
Officer directing / approving issue of a passport to an applicant is rendered free of charge or for a
consideration. Section 5 of the Passports Act, 1967, to the extent it is relevant, provides that
an application for issue of a passport shall be accompanied by such fee as may be prescribed “to
meet the expenses incurred on special security papers, printing, lamination and other connected
miscellaneous service in issuing passports and other travel documents”. It is therefore, evident
that a person applying for issuance of a passport does pay a consideration in the form of a
prescribed fee and the said consideration is paid for the expenses incurred in the activities post
passing of the order, directing / approving issuance of passport to the applicant. In other words,
the said fee is not paid to meet the expenses involved in the process of the Passport Officer
deciding whether the passport should be issued to the applicant or not. Therefore, going by the
definition of the terms ‘service’ and ‘consumer’ contained in the Consumer Protection Act, a
person applying for a passport would be a consumer as defined in the Consumer Protection Act, in
case he is aggrieved from a defect or deficiency including an unjustified delay in the services
rendered to him by the Passport Office, post decision / approval of the passport officer to issue a
passport to him. Such activities would include printing, preparation, dispatch and delivery of the
passport to the applicant.
4. In Standard Chartered Bank Ltd. Vs. Dr. B.N. Raman (2006) 5 SCC 727 rendered in a
complaint filed under the provisions of Consumer Protection Act, the Hon’ble Supreme Court
inter-alia observed that the activity relating to non-sovereign powers of the Statutory bodies are
-2-within the purview of the said Act. It was further observed that the functions of such bodies are
under the term ‘service’ under Section 2(1)(o) of the Act. The decision was rendered in the
context of definition of ‘service’. Since the services rendered by the Passport Office post decision
of the Passport Officer to issue a passport to the applicant do not fall within the ambit of the
statutory power conferred upon the Passport Officer and the said services are rendered for a
consideration, it would therefore be difficult to dispute that the said service fall within the purview
of Section 2(1)(o) of the Consumer Protection Act.
5. It was contended by the learned counsel for the petitioner i.e. the Passport Officer that since
issuance of a passport is a sovereign function, any defect or deficiency in any service related to
issuance of the passport would not be covered under the Consumer Protection Act and therefore, a
person aggrieved from any defect or deficiency in any such service will not be a consumer as
defined in Section 2(1)(d) of the Consumer Protection Act. In support of her contention, she
relied upon the decisions of this Commission in Passport Officer, Passport Office Vs. Ajay
Bansal Revision Petition No.3785 of 2013 decided on 13.3.2015, S. Vijayakumar & Ors. Vs.
Regional Passport Officer, Regional Passport Office & Ors. Revision Petition No.3322 of
2009 decided on 10.4.2015 and Union of India Vs. Beena Sharma Revision Petition No.4344
of 2012 decided on 27.8.2013. Shri Rajeev Sharma, whom we had requested to act as Amicus
Curiae in this matter and who very ably assisted us in the matter, however, submitted that the
services rendered by the Passport Office, post decision of the Passport Officer to issue a passport
to the applicant cannot be said to be a sovereign function and since the said services and functions
are rendered for consideration, a person aggrieved on account of any defect or deficiency in the
said service would be a consumer as defined in the Consumer Protection Act. In support of his
contention he referred to the decisions of the Hon’ble Supreme Court in Chief Conservator of
Forests and another etc. etc. Vs. Jagannath Maruti Kondhare, etc. etc., (1996) 2 SCC 293.
He also drew our attention to certain observations made by the Hon’ble Supreme Court in Bihar
School Examination Board Vs. Suresh Prasad Sinha, AIR 2010 SC 93. He also brought to our
notice the decision of Three-Members Bench of this Commission in Regional Passport Officer
Vs. Anuradha Thadipathri Gopinath, III (2008) CPJ 118 (NC) decided on 10.07.2008. He
has submitted that the correct legal position on the subject has been summarized in the later part
of para-5 of the reference order dated 17.11.2015.
6. On the question as to which functions of the State are sovereign functions and which are
non-sovereign function, the Hon’ble Supreme Court in Nagendra Rao & Co. Vs. State of
Andhra Pradesh AIR 1994 SC 2663, inter-alia observed that the functions like defence of the
country, raising Armed Forces and maintaining it, making peace or war, foreign affairs, power to
acquire and retain territory, are functions which are indicative of external sovereignty and are not
amenable to the jurisdiction of the ordinary Civil Court in as much as the State is immune from
being sued in such matters, but the immunity ends there. It was further observed that in a welfare
State, the functions of the State are not only the defence of the country, administration of justice
or maintaining law and order but extend to regulating and controlling the activities of people in
almost every sphere, educational, commercial, social, economic, political and even material.
Because of this, the demarcating line between sovereign and non-sovereign power has largely
-3-disappeared. In Chief Conservator of Forests & Anr. etc. (supra) , the Hon’ble Supreme Court
declined to extend the concept of sovereign functions to all the welfare activities undertaken by
the State.
7. The question whether the power exercised by a Passport Officer is sovereign powers or
statutory powers came to be considered by this Commission in Anuradha Thadipathri
Gopinath (supra) . In the above referred decision, when the complainant who had been issued a
passport, reached Bombay Airport for travelling to Dubai, was asked to go back since Passport
Officer had not signed the passport issued to him. Being aggrieved, he filed a consumer
complaint before the concerned District Forum, seeking compensation etc. The District Forum
directed payment of compensation as well as the cost of litigation to the complainant. The
Regional Passport Officer preferred an appeal before the State Commission, challenging the
decision of the District Forum. The said appeal having been dismissed, he approached this
Commission by way of a revision petition. It was inter-alia contended on behalf of the Passport
Officer that he was discharging his duties without recovering any fee and was exercising
sovereign functions. Rejecting the contention, it was held by this Commission that there was no
question of exercising of sovereign functions; he was discharging a statutory duty. It was further
held that though issuance or non-issuance of a passport may not be a consumer dispute, the
issuance of an invalid passport would be a deficiency in service on the part of the concerned
officer and since the passport office was also charging fee, a deficiency in such a service could be
subject matter of a consumer complaint.
8. In Beena Sharma (supra) , the grievance of the complainant was due to non-issuance of a
passport to her and not on account of any defect or deficiency in activities such as printing,
preparation and discharge of the passport. Holding that issuance of passport was a sovereign
power of the Government of India and it was not incumbent on the Government to issue a
passport in each and every case, the consumer complaints, subject matter of the said revision
petition were dismissed by this Commission. This decision is clearly inapplicable to a case where
the grievance of the complainant is on account of any defect or deficiencies in the services such as
printing, preparation, dispatch and delivery of the passport to him. We are in agreement that the
decision of the passport officer whether to grant or refuse passport to an applicant, cannot be the
subject matter of a consumer complaint but the position would be altogether different where the
grievance is on account of any defect or deficiency in the services rendered to him post
decision/approval of the passport officer to grant a passport to him.
In Ajay Bansal (supra) , the grievance of the complainant was that the passport had not been
issued to him. The complaint was resisted inter-alia on the ground that there was an adverse
police report against the complainant and since he failed to submit explanation with respect to the
said report, passport was not issued to him. It was also stated in the reply filed by the Passport
officer that though the complainant had applied afresh for the issuance of the passport, the factum
of the previous application was concealed by him while submitting the afresh application. There
is nothing in the judgment to indicate that the grievance of the complainant was on account of any
defect or deficiency in the matter, such as printing, preparation, dispatch or delivery of the
passport. Relying upon Beena Sharma (supra) , the consumer complaint was dismissed by this
Commission holding that issuance of passport was a sovereign function.
9. In S. Vijayakumar & Ors. (supra) , the complainant No.2 was not issued passport, despite
police verification and therefore, the complainants approached the District Forum for a direction
to the Passport Officer to issue the passports and also pay compensation for the mental agony
caused to them. The respondents stated, at the time of hearing of the complaint, that the passports
was made ready for delivery to complainant No.2. The District Forum awarded a compensation
of Rs.25,000/- to the complainants against the Regional Passport Officer for the physical and
mental harassment caused to the complainants on account of the delay in issue of the passports.
In an appeal filed by the Passport Officer, the State Commission closed the case, noticing that the
passports had since been issued to the complainants. The plea of the Passport Officer questioning
the jurisdiction of the Consumer Forum was however, kept open. Being aggrieved from the order
of the State Commission, the complainants approached this Commission by way of a revision
petition. The question which arose for determination before this Commission was as to whether
or not a person applying for the issuance of a passport is a consumer within the meaning of
Section 2(1)(d) of the Consumer Protection Act. Relying upon Ajay Bansal (supra) and
referring to the decisions of the Hon’ble Supreme Court in Standard Chartered Bank Ltd.
(supra) and Bihar School Examination Board (supra) , it was held that issuance of a passport
was a statutory function, the passport officer cannot be said to be a service provider and therefore,
a complaint under Consumer Protection Act for delay in issuing the passport would not be
maintainable. Consequently, the revision petition filed by the complainants was dismissed.
It would thus be seen that in S. Vijayakumar & Ors. (supra) , this Commission was not called
upon to segregate and distinguish the functions of the passport office such as printing, preparation,
dispatch and delivery of the passport from the statutory function of the passport officer to decide
whether a person should be issued a passport or not. A perusal of the above referred decision also
shows that the earlier Three-Member Bench decision of this Commission in Anuradha
Thadipathri Gopinath (supra) was not brought to the notice of this Commission. In our
opinion, since the judgment in S. Vijayakumar & Ors. (supra) , was delivered without taking
note of the earlier decision of a Coordinate Bench, the said decision would be per-incuriam and
would not constitute a binding precedent.
10. The term ‘ per-incuriam’ has been defined as under in Black’s Law Dictionary (Ninth
Edition):-
“There is at least one exception to the rule of stare decisis. I refer to judgments
rendered per incuriam. A judgment per incuriam is one which has been rendered
inadvertently. Two examples come to mind: first, where the judge has forgotten to take
account of a previous decision to which the doctrine of stare decisis applies. For all the
care with which attorneys and judges may comb the case law, errare humanum est, and
sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is
forgotten. It is in cases such as these that a judgment rendered in contradiction to a
-5-previous judgment that should have been considered binding, and in ignorance of that
judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no
authority… The same applies to judgments rendered in ignorance of legislation of which
they should have taken account. For a judgment to be deemed per incuriam, that
judgment must show that the legislation was not invoked.” Louis-Philippe Pigeon,
Drafting and Interpreting Legislation 60 (1988).
“As a general rule the only cases in which decisions should be held to have been
given per incuriam are those of decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the court concerned, so
that in such cases some features of the decision or some step in the reasoning on which it
is based is found on that account to be demonstrably wrong. This definition is not
necessarily exhaustive, but cases not strictly within it which can properly be held to have
been decided per incuriam, must in our judgment, consistently with the stare decisis rule
which is an essential part of our law, be of the rarest occurrence”. Rupert Cross & J.W.
Harris, Precedent in English Law 149 (4 ed. 1991)”. th
11. The Hon’ble Supreme Court observed as under in Government of Andhra Pradesh Vs. B.
Satyanarayana Rao (dead) by LRs & Ors. (2000) 4 SCC 262 :
“The rule of per incuriam can be applied where a court omits to consider a binding
precedent of the same court or the superior court rendered on the same issue or where a
court omits to consider any statute while deciding that issue”.
12. In Siddharam Satlingappa Mhetre Vs. State of Maharashtra, 2011 (1) SCC 694, the
Hon’ble Supreme Court, after an analysis of the English and Indian Law, concluded that not only
the judgment of a larger strength is binding on a judgment of a smaller strength but the judgment
of a co-equal strength is also binding on a Bench of judges of co-equal strength. Thus, if a
decision is rendered without taking note of an earlier decision of a Coordinate or a larger bench,
such a decision would be per incuriam and not constitute a binding precedent. Therefore, the
decision of this Commission in S. Vijayakumar & Ors. (supra) , having been passed without the
earlier decision of a Coordinate Bench in Anuradha Thadipathri Gopinath (supra) having been
brought to its notice, is per incuriam .
13. As far as the decision of the Hon’ble Supreme Court in Standard Chartered Bank Ltd.
(supra) is concerned, there is nothing in the said judgment to indicate that even the non-sovereign
functions of a statutory body will not come within the purview of the Consumer Protection Act.
Rather the Hon’ble Supreme Court expressly held that the activities relating to non-sovereign
powers of statutory bodies are within the purview of the said Act, as they come under the term
‘service’.
-6-14. In Bihar School Examination Board (supra) , the Hon’ble Supreme Court was dealing
with a matter arising out of a complaint on account of the result of a student having not been
published and consequently his having to reappear in the board examination the following year,
thereby suffering a loss of one year allegedly due to the fault of the Board. It was inter-alia
pleaded by the Board, before the Consumer Forum, that since the complainant was not a
consumer, as defined in Section 2(1)(d) of the Consumer Protection Act, it had no jurisdiction in
the matter. It was contended on behalf of the complainant / respondent that a statutory authority
that offers any kind of service for which a fee is charged will be amendable to the jurisdiction of
the Consumer Fora. Reliance was placed upon an earlier decision of the Hon’ble Supreme Court
in Lucknow Development Authority Vs. M.K. Gutpa 1994 (1) SCC 243. The said contention
was rejected holding that the Board was not carrying on any commercial, professional or service
oriented activities and no benefit was conferred nor any facility was provided by the Board for
any consideration.
There is no quarrel with the legal proposition that every service rendered by a Statutory
Authority for which a fee is charged will not constitute service as defined in Section
2(1)(o) of the Consumer Protection Act, but, considering the nature of the activities
involved in preparation, printing, dispatch and delivery etc. of a passport, the said
activities which can be clearly segregated and distinguished from the statutory duty of
deciding whether passport should be issued to a person or not, coupled with the fact that in
terms of Section-5 of the Passport Act, the prescribed fee is charged only to meet the
expenses incurred on special security papers, printing, lamination and other connected
miscellaneous services in issuing passports and other travel documents, will clearly fall
within the ambit of the term ‘service’ as defined in the Consumer Protection Act. The
decision of the Hon’ble Supreme Court in Bihar School Examination Board (supra)
cannot be interpreted to mean that no activity performed by a Government Office
irrespective of the nature of such activity can be termed as ‘service’ as defined in the
Consumer Protection Act.
15. The Government of India has already outsourced a number of functions post-decision of the
Passport Officer to issue passport to an applicant, to an outside agency. A perusal of the Press
Release dated 30.7.2014 issued by Government of India, Ministry of External Affairs would show
that under a Public-Private Partnership approach adopted by the Government, while retaining the
core and sovereign functions such as verification of supporting documents, police verification,
decision on grant of passports, revocation and impounding of passports, the activities such as
token issuance, initial security of application forms, digitization of documents, taking photographs
and biometrics are now being performed by the staff of the service provider. The aforesaid step
taken by the Government also indicates that the activities post decision of the passport officer to
issue the passports to an applicant, i.e. activities such as printing, preparation, dispatch and
delivery of the passport etc., are non-sovereign activities and that is why the said activities have
been outsourced to a private agency.
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.
......................J
V.K. JAIN
PRESIDING MEMBER
......................
DR. B.C. GUPTA
MEMBER
......................
M. SHREESHA
MEMBER
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