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Yogesh Indukumar Patel v. Union Of India & Others
Summary of Opinion
Factual and Procedural Background
The petitioner, father of a minor girl Payal Yogesh Patel, filed a petition under Article 226 of the Constitution seeking a direction to the Union of India (Ministry of External Affairs through the Regional Passport Officer, Mumbai) to rectify the date of birth shown in Payal's passport. In the passport application submitted in April 1998 the date of birth was indicated as 28-05-1983, and an earlier passport (No. E-288403) similarly showed 28-05-1983. The petitioner contended that the correct date of birth is 28-05-1982 and produced a school leaving certificate (Exhibit C) dated 29 June 1998 and an extract from the birth register of the Bombay Municipal Corporation (Exhibit D) dated 15 June 1988 in support. The Regional Passport Office refused rectification by order dated 4 June 1999 (Exhibit E), stating there was no provision under the Indian Passports Act or the Rules for rectification of particulars and that a declaratory judicial order must be produced. Aggrieved, the petitioner approached this Court by writ petition.
Legal Issues Presented
- Whether the Regional Passport Office/authorities have power under the Indian Passports Act, 1967 and the Rules framed thereunder to rectify an entry (date of birth) in a passport once issued.
- Whether this Court can, under Article 226 of the Constitution, direct an appropriate judicial officer to inquire into and adjudicate the true date of birth when the passport authority lacks statutory adjudicatory power.
- If a judicial officer determines the true date of birth to be as alleged by the petitioner, whether the Passport Authority is obliged to correct the passport and within what timeframe.
Arguments of the Parties
Petitioner's Arguments
- The date of birth shown in Payal's passport (28-05-1983) is erroneous; the correct date is 28-05-1982.
- He produced supporting documents: an extract of the school leaving certificate (Exhibit C) and an extract from the birth register of the Bombay Municipal Corporation (Exhibit D).
- The discrepancy is causing urgency because Payal's visa/application for higher studies abroad is being held up; hence the petitioner requested the Court to declare the true date of birth as 28-05-1982 and direct respondent No.1 to rectify the passport particulars.
- Learned Counsel for the petitioner accepted that the incorrect date had appeared earlier (in a 1988 passport) and suggested the mistake was on the part of the petitioner or his daughter when the application was made.
Respondent No.1 (Union of India / Regional Passport Authority) Arguments
- There is no provision in the Indian Passports Act, 1967 or the Rules framed thereunder that confers adjudicatory power on passport authorities to rectify entries in an issued passport.
- The Regional Passport Office relied on a note in paragraph 4 of the "Passport Information Booklet" stating that date/place of birth once included in the passport will not be changed and that for change the applicant must make a fresh application with relevant evidence and a Court order by a Judicial Magistrate directing the passport officer to change the date or place of birth.
- Relying on a Kerala High Court decision (Sosomma Iypo v. Union of India), the learned Additional Solicitor General contended that this Court's appropriate course was to direct a Judicial Magistrate to hold an inquiry and make a judicial order determining the correct date of birth.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sosomma Iypo v. Union of India | Consideration of the Passport Information Booklet note and a decision on an identical issue regarding change/rectification of date/place of birth in a passport. | The Court relied on the decision as supporting the approach that the appropriate remedy is to direct a Judicial Magistrate to inquire and make a judicial order determining the correct date of birth. |
Court's Reasoning and Analysis
The Court first noted that the Indian Passports Act, 1967 and the Rules framed thereunder contain no provision for rectification of entries made in a passport, even if erroneous. The Court examined the original passport application and observed that the application itself indicated the date of birth as 28 May 1983, supporting the position that the passport authority had acted on the particulars supplied by the applicant. Learned Counsel for the petitioner acknowledged that the incorrect date had appeared in an earlier passport (issued in 1988) and suggested the mistake originated with the petitioner or his daughter.
The learned Additional Solicitor General argued there was no adjudicatory power in passport authorities to rectify entries and pointed to the Passport Information Booklet note which states date/place of birth once included in the passport will not be changed and that a court order by a Judicial Magistrate is required for change. The Court considered a Kerala High Court judgment (Sosomma Iypo v. Union of India) which had construed the import of that note and appeared to decide an identical issue.
Given the absence of adjudicatory machinery under the Act and Rules, the Court concluded that it would exercise its powers under Article 226 to direct an appropriate judicial officer to carry out the adjudicatory exercise. The Court identified the Metropolitan Magistrate, Borivli as the appropriate judicial officer to inquire, take evidence from the petitioner, the Regional Passport authority, the Bombay Municipal Corporation authorities and concerned police officers, and determine whether Payal's true date of birth is 28 May 1982 or 28 May 1983. The Court imposed time limits for the subsequent rectification and for the completion of the adjudicatory and rectificatory exercise because of the urgency arising from the petitioner's daughter's admission application abroad.
Holding and Implications
HOLDING: The writ petition is partly allowed. The Court directed that:
- The Metropolitan Magistrate, Borivli shall, without raising jurisdictional objections, hear the petitioner, the Regional Passport authority, Bombay Municipal Corporation authorities and concerned police officers, take such evidence as he deems fit and make an order determining whether the true date of birth is 28 May 1982 or 28 May 1983.
- If the Metropolitan Magistrate holds that the true date of birth is 28 May 1982, respondent No.1 (passport authority) shall correct the passport of Payal Yogesh Patel within two weeks of receipt of the Magistrate's order.
- The entire adjudicatory and rectificatory exercise is to be carried out within four weeks of the writ of this Court reaching the Metropolitan Magistrate, Borivli, in view of the urgency.
Implications: The direct effect of the decision is to provide the petitioner with a specific judicial mechanism to have the date of birth adjudicated and, if found in his favour, to secure rectification of the passport by the passport authority within a prescribed timeframe. The opinion does not purport to create a new statutory power for passport authorities; rather it directs judicial determination by a Magistrate and consequent administrative compliance. The Court made no order as to costs and expedited the issuance of certified copy. The opinion does not discuss any broader precedent beyond the steps ordered here.
P.C:— Rule, returnable forthwith. Dr. D.Y Chandrachud, Additional Solicitor General, waives service for respondent No. 1. Mr. A.L Patki, Additional Government Pleader, waives service for respondent No. 2. By consent, Rule called out and heard.
1. By this petition under Article 226 of the Constitution of India, the petitioner, the father of a minor girl, Payal Yogesh Patel, seeks a direction to the Union of India in the Ministry of External Affairs through the Regional Passport Officer to rectify what is alleged to be a mistake in the date of birth committed by the Regional Passport Office while issuing a passport to his daughter Payal. In the application submitted to the Regional Passport Officer at Mumbai in April, 1998, the date of birth of Payal was indicated as “28-05-1983”. The applicant submitted a xerox copy of a previous passport No. E-288403 as proof of date of birth. In the previous passport also the date of birth of the petitioner's daughter Payal had been shown as 28-05-1983. On the strength of these particulars supplied by the applicant, a passport bearing No. A-5477622 was issued to the daughter of the petitioner in which the date of birth was shown as “28-05-1983”. The petitioner complains by this petition that this is erroneous as the correct date of birth of Payal is 28-05-1982. In support, he produced before us an extract of the school leaving certificate Exhibit “C” and a certificate from the birth register maintained by the Bombay Municipal Corporation Exhibit “D”. We notice that the school leaving certificate is issued by Smt. Jayaben B. Khot High School, Borivli (East), Bombay 400066 on 29th June, 1998 and the extract from the birth register is issued on 15th June, 1988. The petitioner applied to the Regional Passport Officer on the strength of these documents and sought rectification of the particulars of date of birth of his daughter Payal in the passport issued to her. This request was refused by the Regional Passport Office by the order dated 4th June, 1999 (Exhibit “E”) on the ground that there was no provision in the Indian Passports Act or the Rules framed thereunder for rectification of particulars furnished and that the applicant shall produce a declaratory judicial order in support. Being aggrieved thereby, the petitioner is before this Court.
2. We have heard the petitioner's Counsel and Dr. D.Y Chandrachud, learned Additional Solicitor General, for respondent No. 1. It is not in dispute that the Indian Passports Act, 1967 and the Rules framed thereunder contain no provision for rectification of any entry made in the passport, even if the entry has been made erroneously. Dr. Chandrachud made available for our perusal the original application of Payal Yogesh Patel made for passport. After perusal of the particulars therein, we are satisfied that the mistake, if any, was not on the part of the Regional Passport Office inasmuch as the application in terms indicated the date of birth of Payal as 28th May, 1983. Mr. Bhavsar, learned Counsel for the petitioner, states that this was a mistake on the part of the petitioner or his daughter. The mistake had appeared earlier when a passport was applied for in the year 1988 and it has been carried over. The need for rectification has become an urgent necessity now since Payal's application for visa to a foreign country has been held up because of the discrepancy. Payal intends to go abroad for higher studies. He, therefore, requests this Court to hold that the true date of birth of the petitioner's daughter Payal is 28th May, 1982 and net 28th May, 1983 and direct respondent No. 1 to rectify the mistake made in the passport issued to Payal with regard to the particulars of date of birth.
3. The learned Additional Solicitor General contends that neither under the Act, nor under the Rules framed thereunder is there any adjudicatory power conferred upon the authorities to carry out the exercise of rectification of particulars entered in a Passport. On the other hand, it is pointed out by the learned Additional Solicitor General that there is a note in paragraph 4 of the “Passport Information Booklet” which reads as follows:
“Note—Date of birth/Place of birth once included in the passport will not be changed; for change the applicant will have to make a fresh application enclosing relevant evidence for obtaining fresh passport with correct, date of birth and place of birth alongwith Court order by a Judicial Magistrate directing the passport officer to change the date or place of birth.”
4. The import of this note was considered by a judgment of the Kerala High Court in O.P No. 2012 of 1994-H (Sosomma Iypo v. Union of India)1. Relying on this judgment, which appears to have decided an identical issue, the learned Additional Solicitor General contended that, at the highest, this Court can issue a direction to the Judicial Magistrate, within whose jurisdiction the petitioner resides, to make an enquiry and by a judicial order decide as to whether the date of birth of the petitioner's daughter Payal is 28th May, 1982 as contended by the petitioner or whether it is 28th May, 1983 as entered in her passport. We are in agreement with the submission of the learned Additional Solicitor General. In the absence of an adjudicatory machinery incorporated in the provisions of the Indian Passports Act and the Rules framed thereunder, we would have to exercise our powers under Article 226 of the Constitution of India to direct an appropriate judicial officer to carry out this adjudicatory exercise and make an appropriate order. In our view, the Metropolitan Magistrate, Borivli would be the appropriate Judicial Officer to carry out this exercise.
5. Hence, the writ petition is partly allowed and we make the following order;
(i) The Metropolitan Magistrate, Borivli, within whose jurisdiction the petitioner resides, shall hear the petitioner, Regional Passport authority, Bombay Municipal Corporation authorities and the concerned Police Officers and, after making such enquiry and taking such evidence as he deems fit, make an order as to whether the true date of birth of the petitioner's daughter Payal Yogesh Patel is 28th May, 1982 or 28th May, 1983. He shall not raise or entertain any objection on the issue of jurisdiction.
(ii) In case the Metropolitan Magistrate, Borivli concerned holds that the date of birth of the petitioner's daughter Payal is 28th May, 1982, the respondent No. 1 shall accordingly correct the passport of Payal Yogesh Patel, within two weeks of the said order being furnished to him.
6. The petitioner's Counsel submits that Payal Yogesh Patel has applied for admission to a foreign University and, therefore, the matter is urgent. In view of the urgency of the matter, we direct that the entire adjudicatory and rectificatory exercise shall be carried out within four weeks of the date of writ of this Court reaching the Metropolitan Magistrate, Borivli.
7. Rule accordingly made absolute. No order as to costs. Issuance of certified copy expedited.
8. Writ to go down FORTHWITH.
9. Petition partly allowed.
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