1) Passport authority is bound by the Act, the Rules framed thereunder and the instructions issued by the Ministry of External Affairs from time to time. As per instructions dated 18.4.2001, a Passport Officer is competent to make alterations of a technical nature only. The instructions specifically provide that where an entry is made on the basis of a supporting document issued by one competent authority i.e. school/education authority and the applicant subsequently requests for change, on the basis of a certificate issued by another competent authority i.e. a Municipal Authority, the Passport Officer should direct the applicant to obtain an order from a civil Court, certifying the validity of birth/place of birth
2) High Court judicature at Mumbai in CWP No. 1072 of 2000 filed by Shri Jigar Harish Shah, the following clarifications are issued.
a) Where applicant is seeking rectification/correction of a mistake in the entry on date of birth/place of birth in the passport, PIA may after verifying/satisfying himself, affect the correction treating the same as a technical correction. There is no need for a declaratory order in such cases.
b) Where a competent authority issuing a birth certificate or an educational board registering a date of birth alongwith place of birth as valid were to issue any correction or amendment, PIA may affect the necessary amendment in a passport without insisting on a Court order. As per the provisions of Section 21 of the General Clauses Act, 1997, a competent authority issuing a certificate could also make necessary amendment to the same.
c) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. a 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 resulting in conflicting sources of valid proof, the PIA should direct the applicant to obtain a civil order from the competent Court of jurisdiction, certifying the valid date of birth/place of birth.
3) Clause (c), the provision relied upon by the Passport Officer, directs a Passport Officer not to adjudicate a plea for correction, where the claim is based upon two sets of documents, one being a matriculation certificate and the other being a certificate of birth issued by the Registrar of Births and Deaths. In such a situation, the instructions direct a Passport authority to relegate the applicant to a civil Court.
4) High Court of Bombay Jigar Harish Shah v. Union of India and Anr. , wherein the Union of India raised a defence similar to that urged in the present case. While considering the matter, it was held as follows:
XXXX XXXX XXXX The passport has been issued in favour of the petitioner by the Passport authority by passing an order in that regard as contemplated by Sub-section (2) of Section 5. Once we see that the Passport is issued by an order by a competent authority under the provisions of Section 5(2) of the Passport Act, it is apparent that the provisions of Section 21 of the General Clauses Act, 1897 would come into play and such an authority would be having the power to add to, amend,vary or rescind an order issued by it earlier. The Passport Information Book let,which was brought to our notice by Mr.Mehta, contains a note below paragraph 4 that the 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 and place of birth alongwith a Court order by a judicial magistrate directing the Passport Office to change the date or place of birth. No provision was, however, brought to our notice by Mr.Mehta empowering the judicial magistrate for issuing such a direction after holding an enquiry in relation to the correct date of birth of a person seeking Passport except the Circular dated 22.12.1994 of the Ministry of External Affairs (CPU Division) wherein it is stipulated that where a change of date of birth in the Passport is being sought, the person concerned should be advised to produce the original copy of a declaratory order issued by the First Class Judicial Magistrate in India instructing that a correction in date of birth be made. We are afraid that such a circular whether would confer jurisdiction on the Magistrate if otherwise, he is not having under any provisions of law.
XXXX XXXX XXXX In this matter, however, when the provisions of Section 21 of the General Clauses Act have been brought to our notice and when we see that correction in the Passport in relation to the entries therein including in relation to the date of birth can be made by the Passport Authority itself having regard to the provisions of Section 21 of the General Clauses Act, we do not feel it proper to refer the matter to the Judicial Magistrate whose Courts, we are aware, are already overburdened and further in particular when the Judicial Magistrates have not been conferred with such a jurisdiction under any law. We, therefore, instead of issuing a direction to the Judicial Magistrate in this matter, direct the Passport Authority itself to hold an enquiry on hearing the petitioner in relation to the petitioner's claim about his correct date of birth and in case the Passport Authority is satisfied with regard to the claim put forth by the petitioner. We further order it to effect the necessary change in the Passport issued in favour of the petitioner. Petition is allowed in the above terms. Rule is made absolute.
