Gujarat High Court
Vaibhavi @ Mahima Maitreya Patel vs State Of Gujarat on 14 February, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/11699/2020 ORDER DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11699 of 2020
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VAIBHAVI @ MAHIMA MAITREYA PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR YV VAGHELA(2450) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, AGP ON ADVANCE COPY SERVED
TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/02/2022
ORAL ORDER
[1.0.] The writ petitioner herein is aggrieved and dissatisfied by the impugned communication dated 02.09.2020 issued by the Ahmedabad Municipal Corporation, Central Record Office, whereby the application made by the present writ petitioner is rejected on the ground of non-availability of the certificate, which was issued under Section 17 of the Registration of Births and Deaths Act, 1969 (for short 'the Act').
[2.0.] The brief facts of the writ petitioner in the present writ petition are as under:
[2.1.] The writ-petitioner was born on 18.03.1979 at Ahmedabad. The writ-petitioner had got married with one Laxminarayan Sharma on 08.12.2006, who was resident of Jaipur, Rajasthan. The writ-petitioner's husband had expired on 09.03.2020 and she got married with Patel Page 1 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 Sanjaykumar Manilal on 01.07.2020. The writ-petitioner was also known by the name of Mahima @ Vaibhavi amongst their family members. The writ-petitioner applied for obtaining birth certificate and writ-petitioner's father name and her date of birth along with other relevant documents i.e. Election Card, Pan Card and Passport, which also shows the date of birth to be 18.03.1979.
[2.2.] The writ-petitioner approached the competent authority on 30.07.2020 for getting the birth certificate in her name showing the date of birth to be 18.03.1979. The respondent authority informed the writ-
petitioner by communication dated 02.09.2020 that the said record was not available with it.
[2.3.] Being aggrieved and dissatisfied by the communication dated 02.09.2020 issued by the Ahmedabad Municipal Corporation, Central Record Office, Form No.17, issued under Section 17 of the Registration of Births and Deaths Act, 1969, the writ-petitioner is constrained to approach this Court by seeking following reliefs, which read thus:
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue appropriate writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order/ communication dated 2/9/2020 issued by office of respondent No.2 herein and further be pleased to direct the respondent No.2 herein to issue a fresh birth certificate in the name of "Vaibhavi Maitreya Patel" and her date of birth as 18/03/1979.
(C) Pending admission and final hearing of this special civil application, Your Lordships may be pleased to direct the respondent No.2 herein to consider the petitioner's application afresh and issue fresh birth certificate in Page 2 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 the name of "Vaibhavi Maitreya Patel" and her date of birth as 18/03/1979.
(D) Any other relief deemed just and proper may pleased be granted in the interest of justice"
[3.0.] Mrs. Kalpana Raval, learned advocate for respondent No.2 - authority submitted that the said correction in the birth certificate is sought for after a period of 40 years and she vehemently submitted that the writ petitioner could avail the same under Section 33(3) of the Act.
[4.0.] Heard Mr. Vaghela, learned advocate for the petitioner as also Mrs. Kalpanak Raval, learned advocate appearing for respondent authority.
[5.0.] For deciding the aforesaid issues, relevant provisions of the Act 1969 are required to be referred:
[5.1.] Section-15 of the Act provides for correction or cancellation of entry in the register of births and deaths, which reads thus:
Correction or cancellation of entry in the register of births and deaths.--If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.
[5.2.] Section -16 of the said Act provides for Registrars to keep Page 3 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022
registers in the prescribed forms, which reads thus:
Registrars to keep registers in the prescribed form.---(1) Every Registrar shall keep in the prescribed form a register of births and deaths for the registration area or any part thereof in relation to which he exercises jurisdiction. (2) The Chief Registrar shall cause to be printed and supplied a sufficient number of register books for making entries of births and deaths according to such forms and instructions as may, from time to time, be prescribed; and a copy of such forms in the local language shall be posted in some conspicuous place on or near the outer door of the office of every Registrar.
[5.3.] Section-17 of the said Act provides for search of births and deaths register, which reads thus:
Search of births and deaths register.--(1) Subject to any rules made in this behalf by the State Government, including rules relating to the payment of fees and postal charges, any person may-- (a) cause a search to be made by the Registrar for any entry in a register of births and deaths; and (b) obtain an extract from such register relating to any birth or death: Provided that no extract relating to any death, issued to any person, shall disclose the particulars regarding the cause of death as entered in the register. (2) All extracts given under this section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in section 76 of the Indian Evidence Act, 1872 (1 of 1872), and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates.
[5.4.] Rule-11 of the Gujarat Registration of Births and Deaths Rules, 2004, reads thus:
Page 4 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022C/SCA/11699/2020 ORDER DATED: 14/02/2022
11. Correction or cancellation of entry in the register of Births and Deaths: (1) If it is reported to the registrar that a clerical or formal error has been made in the register, or if such error is otherwise noticed by him and if the register is in his possession, the registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in Section 15 of the Act and shall send an extract of the entry showing the error and how it has been corrected to the District Registrar of Births and Deaths.
(2) In the case referred to in Sub-Rule (1) if the register is not in the possession, the Registrar, he/she shall make a report to the District Registrar of Births and Deaths and call for the relevant register and after inquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction.
(3) Any such correction as mentioned in Sub-Rule (2) shall be countersigned by the District Registrar of Births and Deaths when the register is received from the Registrar.
(4) If any person asserts that any entry in the register of Births and Deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Section 15 of the Act upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.
(5) Notwithstanding anything contained in Sub-Rule (1) and Sub-Rule (4), the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the District Registrar of Births and Deaths.
(6) If it is proved to the satisfaction of the Registrar that any entry in the register of Births and Deaths has been fraudulently or improperly, he shall make a report giving necessary details to the officer authorized by the Chief Registrar by general or special order in this behalf under Section 25 of the Act and on hearing from him take necessary action in the matter.
(7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under Section 8 or Section 9 of the Act....
Page 5 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022C/SCA/11699/2020 ORDER DATED: 14/02/2022 [6.0.] In the case of Nitaben Nareshbhai Patel versus State of
Gujarat reported in 2008 (1) GLH 556, this Court held in paragraph-26 as under:
"26. Thus in the nutshell, what emerges from the factual and legal submissions made and conclusions arrived in earlier paragraph is as under:
(A) In view of the provisions of Section 28 of the Repealed Act of 1886 and provisions contained in Sections 29 and 31 of the Act of 1969, by which erstwhile provision of correction/cancellation of entries in the register of birth and death, which is not in derogation, remained alive in Section 15 of the new Act and, therefore, the authority is empowered to correct erroneous entries in the register of birth and death, even in a case where registration was made prior to 1.4.1970 i.e. the date on which new Act of 1969 came into force and correction of error is sought for later on.
(B) Section 15 of the Act of 1969 read with Rule 11 of the State Rules, 2004 along with Chapter 9, Clause 9.6 and 9.7 of the Handbook of Registrar General, Ministry of Home Affairs, Govt. of India and Clause 5.8 of Chapter 5 of guidelines contained in vernacular Gujarati adequately conferred power upon the authority to correct/cancel erroneous entries and provide for complete mechanism for types of errors to be corrected.
(C) Section 15 of the Act of 1969 empowers Registrar of Birth and Death to correct any erroneous entry in form or substance or any entry which has been fraudulently or improperly made. Rule 11 of Rules, 2004 and particularly Sub Rule 1 provide for any entry, any error which may be clerical or formal and Sub Rule 4 of the above Rule 11 mention about any entry which may be erroneous in substance and Sub Rule 6 of Rule 11 refer to any entry which is fraudulently or improper is to be corrected by the Registrar and an elaborate procedure is provided which prescribe method and manner in which such entry to be corrected or cancelled and report to be made to the higher authority, which may rule out in misuse of power by registering authorities. Thus, clause 9.6 and 9.7 of Chapter 9 of the Handbook of Registrar General, Ministry of Home Affairs, Govt. of India Page 6 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 provide for corrections and cancellations of entries and contain clerical or formal error, error in substance or fraudulent or improper entry and once any error in substance is to be corrected, it covers error of such nature which is an error of substance or form. That similar types of errors are mentioned in Clause 5.8 of Chapter 5 of vernacular guidelines published by the State Authorities under the Act.
(D) The above proposition of law stand fortified by the decisions of this Court in two Letters Patent Appeal Nos. 195/1999 and 231/2001 in the case of Mulla Faizal &Faxilabanu Suleman Ibrahim and Registrar, Birth and Death Rajkot Municipal Corporation (Supra), there is no doubt that the expression "erroneous in form or substance" in Section 15 of Act of 1969 is an expression of vide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Register of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of Act of 1969 and Rule 11 (1) to (7) of the State Rules, 2004.
(E) when the authority empowered to exercise power under Section 15 of the Act and Rule 11 of the State Rules, 2004, refuse to do so, writ petition is maintainable under Article 226 of the Constitution of India for issuing appropriate directions to the authority.
(F) the kind and types of directions to be issued to the authority depend on facts and circumstances of the each case and nature of denial of legal right to the aggrieved persons by the authority.
(G) That even Section 27 of the Act of 1969 is pertaining to delegation of powers and Section 32 empowers to concerned Government to remove the difficulties and, therefore, the appropriate Government or any authority upon whom the powers are delegated can act in accordance with scheme of the Act and appropriate directions can be given accordingly.
(H) So far as matters arising out of the Regulation 12(A) of the Gujarat Secondary Education Regulation, 1974 is concerned, law as on date is Page 7 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 governed as in the case of Soorat Jessomal Khanchandani (supra) and Thakore Nilesh Shishirbhai (supra).
(I) So far as the matters arising out of the Passport Act, 1967 and Rules, 2000, is concerned, law as on date is governed as in the case of REGIONAL PASSPORT OFFICER (supra) in view of admission of L.P.A. No.1673/2006 by an order dated 30.7.2007 by which the judgment of the learned Single Judge in Special Civil Application No.2716/2006 is stayed."
[7.0.] In the case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel Versus State Of Gujarat reported in 2019 (3) GLR 1866, this Court held in para- 16 and 17 as under:
(16.) In the case of Natubhai Dharamdas Patel v. State of Gujarat and others (supra), this Court has considered the provisions contained in Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004 and after considering the decision in the case of Nitaben Nareshbhai Patel v. State of Gujarat (supra), this Court issued necessary direction to the respondent authority for reconsideration of the request of the concerned petitioner.
(17.) In the case of Krunal Prahladbhai Prajapati Vs. State of Gujarat and Anr., this Court has passed an order dated 26.02.2016 in Special Civil Application No.11281 of 2016. This Court has, after considering the decision in the case of Nitaben Nareshbhai Patel v. State of Gujarat (supra), observed in Paragraphs6.6 and 6.7 as under:
"6.6 In view of above position of law, it cannot be said that when the petitioner has made an application for correction of entry in the date of birth etc. which was recorded at the relevant time, merely because the date of birth sought to be corrected is later in point of time by three months than the originally recorded, the authority cannot exercise powers under Section 15 of the Act read with Rule 11 as above. It has to consider whether the entry in the birth date is correct Page 8 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 or can be cancelled and denied after making inquiry and after going through relevant material which may be produced by the petitioner or which the competent authority may call for satisfying itself. It is entirely not germane to say that there was a gap of three months between old birth date and new birth date so as to refuse to exercise power on that count. 6.7 In view of above, the competent authority respondent No.2 herein has to exercise his powers so as to consider the merits of the request of the petitioner for correction of date of birth as well as corrections in the name of mother and the name of grandfather. The respondent No.2 has got powers for correction in relation to the entries and the name also and such correction or cancellation also comes within the purview of the powers under Section 15 of the Act. In the facts and circumstances of the case, necessary directions are required to be issued to respondent No.2 authority to consider and decide the case of the petitioner again by giving due regard to the material which may be produced by the petitioner."
[8.0.] It appears from the record that the writ - petitioner was born on 18.03.1979 at Ahmedabad. She got married to one Laxminarayan Sharma on 08.12.2006, who was resident of Jaipur, Rajasthan. The writ - petitioner's husband - Laxminarayan Sharma recently expired on 09.03.2020 and the petitioner got married to Shri Patel Sanjaykumar Manilal on 01.07.2020. The petitioner was not in possession of the original birth certificate, and therefore, the petitioner had approached the Office of respondent No.2 for obtaining the birth certificate by preferring an application on 30.07.2020 for seeking birth certificate after paying requisite fees. The said application was submitted along with the Election Card, the Pan Card, Passport and Aadhar Card, which are duly produced at Annexure-D collectively. The writ petitioner has also produced death certificate of Shri Laxminarayan Sharma who expired on 09.03.2020.
Page 9 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022C/SCA/11699/2020 ORDER DATED: 14/02/2022 This Court has gone through the documents duly produced by the writ petitioner. The respondent No.2 vide communication / order dated 02.09.2020 informed the petitioner that the original register of the birth and death year i.e. 1979-80 was not available and the pages are torn, and therefore, the respondent authority refused to issue birth certificate to the writ petitioner.
[9.0.] The said communication dated 02.09.2020 reads thus:
"Ahmedabad Municipal Corporation Central Record Office Form No.17 (See Rule 14) Date : 02/09/2020 AP 31/7/2020 Government of Gujarat Non Availability certificate issued under Section 17 of the Registration of Birth and Deaths Act, 1969.
This is to certify that search has been made on the request of Shri/Smt./Kum. Mahima Patel Son/wife/daughter of - for the birth/death certificate of Vaibhavi son/wife/daughter of Maitreya Harivallabh Das in the Registration records relation to Asarwa (C/Z) Ward of Ahmedabad City of Gujarat State and found that the original Register of birth/death for the year 18/03/79 is not available Pages are torn.
Dt. 18/03/79 to Dt. 18/03/80 (Asarwa Ward . Birth Reg.) Signature of the issuing authority Record Keeper Date 02/09/2020"
[10.0.] In view of settled legal position of law and ratio as laid down by this Court, the impugned order / communication dated 02.09.2020 is required to be quashed and set aside and the matter is required to be remanded back to the competent authority to adjudicate the same in accordance with the provisions of the Act and Rules. It is not in Page 10 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022 C/SCA/11699/2020 ORDER DATED: 14/02/2022 dispute that there is an extract of birth and death; however, the authority has stated that the record is not available and the pages are torn. In the above perspective, it would be in the interest of justice to direct the respondent authority to reconstruct the record on the basis of evidence produced by the writ - petitioner before the authority and take appropriate steps for issuance of birth certificate of the writ applicant as prayed for in the application and the date of birth of the writ petitioner as prayed for i.e. "18.03.1979" and name as "Vaibhavi Maitreya Patel".
[10.1.] The respondent authority is competent to reconstruct the record relying upon the documents produced by the writ applicant under the provisions of Sections 15, 16, 17 and Rule (11) of the Registration of Births and Deaths Act. The impugned order / communication dated 02.09.2020 is hereby quashed and set aside and the matter is remanded back to the competent authority for a decision afresh taking into consideration the documents as produced by the writ petitioner. The competent authority is directed to decide the application preferred by the writ petitioner dated 30.07.2020 afresh as expeditiously as possible preferably within a period of three months from the date of receipt of copy of this order. Accordingly, the petition stands allowed to the above extent. The findings arrived at by this Court are merely for adjudication of the present petition.
[11.0.] This Court has, otherwise, not gone into the merits of the matter. It is open for the respondent authority to decide the same independently. With the above directions, the present petition stands disposed of. Direct service is permitted.
(VAIBHAVI D. NANAVATI, J.) Lalji Desai Page 11 of 11 Downloaded on : Sun Apr 24 12:58:40 IST 2022