Gujarat High Court
Hareshbhai Kalubhai Sojitra vs State Of Gujarat on 12 January, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/6368/2021 ORDER DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6368 of 2021
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HARESHBHAI KALUBHAI SOJITRA
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK D MUCHHALA(5634) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 12/01/2022
ORAL ORDER
1. By way of this petition, which is filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-
"(A) Your Lordships may be pleased to admit and allow the present petition;
(B) Your Lordships may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the order dated 10.01.2020, annexed at Ann. B, passed by respondent no. 2 and also further be pleased to direct the respondent authorities to correct the Date of Birth of the petitioner from "16.10.1980" to "01.06.1979" as well as his name from "Ashok" to "Hareshkumar" in Birth Certificate and further be pleased to direct the respondent authorities to Page 1 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 provide amended Birth Certificate to the petitioner.
(C) Your Lordships may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the Government Resolution no.S.B.H.I./Janm-Maran/Sudharo V. S. - 2016 1110-151/9 dated 18.02.2016 on the grounds that it is contrary to law as culled out in this petition.
(D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the operation, execution and implementation of Government Resolution no.S.B.H.I./Janm-Maran/Sudharo V. S. - 2016 1110-
151/9 dated 18.02.2016.
(E) Ex-party interim relief in terms of para 8(D) may kindly be granted.
(F) Your Lordships may be pleased to grant such other and further relief that is just, fit and expedient in the facts and circumstances of the case."
2. By way of present petition the petitioner seeks to challenge the legality and validity of the order dated 10.1.2020 passed by the respondent No.2. Registrar (Birth & Death), Gandhinagar, Municipal Corporation, whereby the respondent No.2 refused to correct the date of birth of the petitioner from "16.10.1980" to "01.06.1979" as also the name of the petitioner from "Ashok" to "Hareshkumar" in the birth Page 2 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 certificate.
2.1 Reliance was placed by the petitioner on various documents which included affidavit of the petitioner, driving license, pan-card, school leaving certificate, passport duly issued in the name of the petitioner before the competent authority.
2.2 The respondent No.2 declined to correct the date of birth of the petitioner from "16.10.1980" to "01.06.1979" as also the name of the petitioner from "Ashok" to "Hareshkumar" in the birth certificate as sought for by the petitioner. The respondent No.2 declined to make aforesaid changes relying upon the Circular dated 18.2.2016. The said circular dated 18.2.2016 is cancelled by notification dated 2.12.2021.
3. Heard Mr. Hardik D. Muchhala, the learned advocate appearing for the petitioner, Ms. Dharitri Y. Pancholi, the learned AGP appearing for the respondent - State and Mr. H. S. Munshaw, the learned advocate appearing for the respondent No.2.
4. By order dated 10.1.2020 the respondent No.2 rejected the application of the petitioner seeking change of date of birth of the petitioner from "16.10.1980" to "01.06.1979" as also change of name of the petitioner from "Ashok" to Page 3 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 "Hareshkumar" in the petitioner's birth certificate. The impugned order dated 10.1.2020 is passed placing reliance on Circular No.SBHI/Birth-Death/Change/VS-2016 dated 18.2.2016.
5. Mr. Hardik D. Muchhala, the learned advocate appearing for the petitioner submitted that the aforesaid Circular dated 18.2.2012 relied upon by the competent authority stands cancelled by Notification dated 2.12.2021.
6. The Coordinate Bench of this Court in the Special Civil Application No.21302 of 2019 considered the said notification dated 2.12.2021 and has observed in para-6, which is produced thus :-
"6. It has been observed that day in day out, the Talati cum Mantries who are appointed as the Registrar under the provisions of the Act, were passing orders simply relying upon the Circular dated 18.02.2016 and therefore, this Court, was of the opinion that blind reliance on the Circular is misplaced for, the authorities are expected to exercise the powers under the provisions of the Act of 1969 so also the Rules of 2004. Considering the confusion prevailing, the Chief Registrar (Births & Deaths) and Commissioner (Health), was required to throw some light. The Chief Registrar (Births & Deaths) and Commissioner (Health) was pleased to withdraw the Circular dated 18.02.2016 so also the Circular dated 12.08.2009. Mr.Krutik Parikh, learned Assistant Government Pleader has Page 4 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 placed on record the said Circular. In view of the withdrawal of the Circulars, now, the respective Talati cum Mantri, Office of the Registrar, shall take decision independently and in conformity with the provisions of the Act of 1969 read with the provisions of the Rules of 2004."
The following observations are made in paragraphs 9 to 11, which are produced thus :-
"9. At this stage, the provisions of Section 15 of the Act of 1969, are also worth referring to. Section 15 reads thus:
"15. 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."
10. Similarly, the State Government, has framed the Rules of 2004, relevant would be sub-rule (4) and sub-rule (5) of the Rule 11. Sub-rule (4) and sub-rule (5) of Rule 11 read thus:
"(4) If any person asserts that any entry in the register of Births Page 5 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 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."
A bare reading of the provisions of Section 15 of the Act of 1969 in juxtaposition with sub-rule (4) of Rule 11, throws sufficient light that the Registrar, will be well within its power to carry out the correction; failing to undertake such exercise and rejecting the application only on the ground that it does not have powers; such action would be illegal and deserves to be deprecated.
11. Quiet apart the Circular dated 18.2.2016, had fallen for consideration before this Court in the case of Sejalben Mukundbhai Patel W/o. Khodabhai Joitaram Patel vs. State of Gujarat reported in AIR 2019 Gujarat 56 and this Court, has held and observed that the circular cannot override the provisions of the Act and it is incumbent upon the authority concerned to initiate the necessary inquiry as per the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. In the case of Sejalben Mukundbhai Patel (supra), this Court, in paragraph 8 has formulated the Page 6 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 issue which has been replied in paragraph 25. Relevant paragraphs 25 and 26 read thus:
"25. Thus, answer to issue No.(i) framed as above, is that Circular dated 18.02.2016 issued by the Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, cannot override the statutory provisions and answer to Issue No.(ii) is that Competent Authority appointed under the provisions of the Act of 1969 and Rules framed thereunder cannot simply rely upon the circular and reject the request of the concerned applicant, without making necessary inquiry.
26. Keeping in view the aforesaid legal position, if the facts as discussed hereinabove are examined, it is revealed that respondent No.2 has rejected the request of the petitioner simply relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat. It is not in dispute that while rejecting the request of the petitioner, respondent No.2 has not carried out any inquiry nor examined the documentary evidence produced by the petitioner. Therefore, the said decision taken by respondent No.2 is required to be set aside."
7. In view of above, the impugned order dated 10.1.2020 passed by the respondent No.2 - Registrar/Talati cum Mantri, Trambakpura Gram Panchayat, Taluka : Dhari, Dist. Amreli is hereby quashed and set aside. The matter is remitted back to the respondent No.2 - Registrar/Talati cum Mantri, Trambakpura Gram Panchayat for deciding the Page 7 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022 C/SCA/6368/2021 ORDER DATED: 12/01/2022 application dated 11.12.2019 afresh. The respondent No.2 is directed to decide the application/representation dated 11.12.2019 (Annexure-A to the petition) made by the petitioner and after taking into consideration the documents produced by the petitioner and the affidavit duly filed by the petitioner. The respondent No.2 is directed to decide the said application in accordance with law preferable within a period of eight weeks from the date of receipt of copy of this order.
8. With the aforesaid observation and direction, the present petition succeeds and is accordingly allowed. No order as to costs.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 8 of 8 Downloaded on : Sun Apr 24 09:25:32 IST 2022