JUDGMENT - G.D. Patil, J.:---Rule made returnable forthwith. Mr. Mehta, learned Counsel for respondent No. 1 waives service. The learned A.P.P. waives service for respondent No. 2 - State. Heard by consent.

2. By the instant petition, the petitioner is seeking a direction against respondent No. 1 for rectifying the mistake allegedly committed by the Passport Authority in relation to mentioning his date of birth as 2-7-1979 as against his correct date of birth 2-10-1979 in the passport issued to the petitioner.

3. The petitioner had made an application to the Passport authority for recording his correct date of birth in the passport making amendment in the passport. The Passport Authority appears to have declined to do so, unless the petitioner produces a declaratory order in that regard from the First Class Judicial Magistrate. The petitioner thereupon had approached the Metropolitan Magistrate, 30th Court, Kurla, Mumbai seeking such a declaration. The learned Metropolitan Magistrate by his Order dated 23-2-2000 disposed of the petitioner's application; on coming to the conclusion that the Court was having no jurisdiction in this regard. It is in these circumstances the petitioner has filed the instant petition.

4. Heard the learned Counsel for the petitioner so also learned Counsel appearing for the respondents.

5. The passports are being issued undisputedly under the provisions of section 5 of the Passport Act, 1967 and the Passport Rules, 1980. Section 5 of the Passport Act provides that an application for the issue of passport may be made to the Passport Authority. Passport Authority, as per section 2(c) means an officer or authority empowered under rules made under the Act to issue passports and includes the Central Government. Rule 3 of 1980 Rules speaks of Passport Authorities and lays down that in addition to the Central Government the officers specified in Clause (2) of Schedule I shall, subject to the provisions of sub-rule (2), be the Passport Authorities for all purposes of the Act and these Rules. There is no dispute that the authority which has issued the passport in favour of the petitioner was one of such officer empowered under sub-rule (1) of Rule 3 for the purposes of the Act and the Rules. 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 Booklet, 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 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. A judgment rendered by the Kerala High Court inter alia appears to be the basis for issuing the circular dated 22-12-199

Click Here to Read the rest of this document