Gujarat High Court
Rukshanaben D/O Valibhai Bujurg W/O ... vs State Of Gujarat & 2 on 21 October, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/9460/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9460 of 2014
==========================================================
RUKSHANABEN D/O VALIBHAI BUJURG W/O MUSA ISMAIL
PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR NV GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
KSHITIJ M AMIN, ADVOCATE for the Respondent(s) No. 2 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 21/10/2015
ORAL ORDER
1. Heard Mr.N.V.Gandhi, learned counsel for the petitioner, Mr.Manan Mehta, learned Assistant Government Pleader for respondent No.1State and Mr.Kshitij Amin, learned Central Government counsel for respondent Nos.2 and 3.
2. Rule. Learned counsel for the respective respondents waive service of Rule. With consent of learned counsel for the parties, the petition is taken up for its final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(a) Issue a writ of mandamus or writ/certiorari in the nature of mandamus /certiorari or any other appropriate writ/certiorari order or direction, Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Oct 22 03:01:52 IST 2015 C/SCA/9460/2014 ORDER directing the respondent authorities to consider my application for issuance of new passport which having birth date of 21.06.1975 and also issue new passport on the basis of birth certificate which having birth date of 21.06.1975.
(b) ***"
4. Learned counsel for the petitioner has taken this Court through the factual matrix arising in this petition. It was pointed out by learned counsel for the petitioner that in the year 2005, the petitioner applied for passport on basis of school leaving certificate, whereas the date of birth of the petitioner is recorded as 01.06.1976. The petitioner married one Musa Ismail Patel, resident of America. As the husband of the petitioner is citizen of America, even the petitioner is also entitled to citizenship of America, for which the procedure was initiated by the petitioner. It is further case of the petitioner that it is now revealed that as per Birth Certificate issued by the competent authority under the Birth and Death Registration Act, date of birth is recorded as 21.06.1975, whereas in the school leaving certificate, it is erroneously mentioned as 01.06.1976. Therefore, the petitioner filed an application on 25.04.2014 for reissuance of passport having birth date of 21.06.1975.
5. In response to said application, respondent No.3 authority has also undertaken exercise of verification of documents on 18.06.2014 and as respondent No.3 refused to issue new passport, having birth date of 21.06.1975, present petition is filed.
Page 2 of 6HC-NIC Page 2 of 6 Created On Thu Oct 22 03:01:52 IST 2015 C/SCA/9460/2014 ORDER
6. Learned counsel for the petitioner has relied upon the judgment of the Division Bench of this Court rendered in the case of Regional Passport Officer Vs. Kokilaben, W/o. Jaswantlal Panchal & Ors. [2009 (2) GLR 1246], more particularly paragraph Nos.13 and 14 thereof to buttress his arguments. It was therefore, submitted that the petition deserves to be allowed as prayed for.
7. Per contra, learned counsel for respondent Nos.2 and 3 has submitted that even for correction of birth date from 01.06.1976 to 21.06.1975 as per Circular dated 29.10.2007, the petitioner is required to obtain the order from learned Judicial Magistrate First Class and therefore, this Court straightway cannot issue a writ of correction in birth date even as per the judgment of the Division Bench of this Court.
8. Learned Assistant Government Pleader for respondent No.1State has also adopted the arguments made by learned counsel for respondent Nos.2 and 3.
9. On perusal of the record of the petition and on appreciating the submissions made by learned counsel for the parties, it appears that the petitioner's birth date as recorded in Birth Certificate is 21.06.1975, however, the fact remains that earlier when the petitioner applied for passport for the first time, the petitioner has relied upon the School Leaving Certificate where birth date is recorded as 01.06.1976.
Page 3 of 6HC-NIC Page 3 of 6 Created On Thu Oct 22 03:01:52 IST 2015 C/SCA/9460/2014 ORDER
10. At this juncture, it would be appropriate to refer to the judgment of the Division Bench of this Court rendered in the case of Regional Passport Officer (supra), wherein the Division Bench has observed thus: "13.We may in this connection also refer to the Circular issued by the Ministry of External Affairs on 29th October, 2007, which refers to change of date of birth and place of birth in the Passports. Following directions have been issued in the said Circular.
(a) Where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and asks for rectification/correction, in all such cases the documents produced earlier as proof of date of birth/place of birth at the time of issue of passport may be perused (if not already destroyed) by PIA. In case, it is a clerical mistake either by the applicant or the PIA, date/place of birth correction may be allowed by issue of fresh passport booklet; in the former case, by charging fee for fresh passport and in that latter, 'gratis'. There is no need for declaratory court order in such cases.
(b) Where a competent authority which issued a birth certificate or an educational certificate issues any correction or amendment in date/place of birth, PIA may effect the necessary amendment in the passport without insisting on a Court order provided the same document was produced earlier with the passport application. Fresh fees will be charged.
© Where files have already been destroyed, PIAs could use their discretion in correction of date of birth without a Court order, where such correction is only in months (not more than two years) and applicants provide satisfactory explanation that the same document(s) was provided at the time of initial passport application. Fresh fees will be charged.
(d) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. 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 etc., resulting in conflicting documents for valid proof, the PIA should direct the applicant to procure an order from a Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Oct 22 03:01:52 IST 2015 C/SCA/9460/2014 ORDER First Class Judicial Magistrate, to effect the change as per Passport Manual 2001 (In some States, this function is discharged by Civil Magistrates).
(e) For those born on or after 26.1.1989, birth certificate is the only approved document, as already prescribed.ýý
14. We have already indicated that subsection (2) of Section 5 of the Act enables the Passport authority to ask for furnishing such additional information, documents or certificates, as may be considered necessary by such authority for the proper disposal of the application. Therefore, it is always open to the Passport authority to insist that, when application is submitted by any person for correction of date of birth, place of birth or name, to produce relevant certificates issued by the Competent statutory authority, Judicial Magistrate or Civil Court, based on which necessary correction could be made in the Passport already issued. Passport Authority is not competent or expected to make a rowing enquiry by its own to decide as to whether date of birth, place of birth or name already entered in the Passport is correct or not, which in our view, is not the function of the Passport Authority functioning under the Passport Act and the Rules and Regulations. We therefore disagree with the reasoning of the ruling rendered by the learned Judge as well as the view expressed by the Division Bench of the Bombay High Court."
Thus, ClauseD of the aforesaid Circular clearly provided that where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. 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 etc., resulting in conflicting documents for valid proof, the PIA should direct the applicant to procure an order from a First Class Judicial Magistrate."
Page 5 of 6HC-NIC Page 5 of 6 Created On Thu Oct 22 03:01:52 IST 2015 C/SCA/9460/2014 ORDER
11. It is an admitted position that as the petitioner has not obtained any order from learned JMFC, the decision taken up by the passport authority, in particular, cannot be termed as roaring inquiry as observed by the Division Bench of this Court.
12. From the above, it reveals that the petitioner has not even approached learned JMFC as per the Circular dated 29.10.2007 and hence, the prayers prayed for cannot be entertained by this Court. However, it is provided that if the petitioner approaches the competent jurisdictional Magistrate with appropriate application and relevant documents for correction in the date of birth in the passport, the same shall be dealt with by learned JMFC and decide the same, in accordance with law, preferably within a period of three months from the date of filing of such application.
With these clarifications and directions, the petition stands disposed of. Notice is discharged. No costs.
(R.M.CHHAYA, J.) Suchit Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Oct 22 03:01:52 IST 2015