Gujarat High Court
Ghanshyam Maganbhai Talavia vs State Of Gujarat & on 7 January, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/244/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 244 of 2016
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GHANSHYAM MAGANBHAI TALAVIA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. BHAUMIK DHOLARIYA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 07/01/2016
ORAL ORDER
Heard learned advocate Mr. Bhaumik Dholariya for for the petitioner and learned Assistant Government Pleader Mr. Bharat Vyas for respondent No.1State.
1.1 Having regard to the nature of the order being passed hereinafter and the kind of the directions being given, the petition could be taken up for final consideration without issuance of notice to other side.
2. The case of the petitioner in this petition is that his correct date of birth is 30.04.1968, however in the certificate of birth, the same was inadvertently recorded as 29.10.1968; the name of his father ought to have been recorded as "Maganbhai", but it stands recorded as "Magan"; it is the further grievance of the petitioner that his birth certificate records the name of his mother erroneously as "Kankubhai", instead of "Kankuben".
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3. With such basic facts, the petitioner has prayed for a direction against respondent No.2 herein which is the competent authority under the Registration of Births and Deaths Act, 1969, for correcting the details in the birth certificate. It appears that the petitioner applied in writing before respondent No.2 by application dated 23.09.2015, copy whereof (figures at AnnexureB, page 10) in the compilation of the petition.
3.1 Responding to the said application, the Chief Officer and the competent authority under the Act respondent No.2 herein, refused to entertain the request as per decision reflected in the communication dated 20.11.2015 stating inter alia that the date of birth recorded at the relevant time in the Birth Register of the Municipality was based on the declaration made by the applicant and it was not liable to be corrected. It is against the aforesaid decision that the petitioner is aggrieved and has filed the present writ petition.
4. Learned advocate for the petitioner submitted that in the other government and semigovernment documents and certifications such as Election Card issued by Election Commission of India, PAN card, School Leaving Certificate, Driving Licence etc., his correct date of birth 30.04.1968 has been recorded. It was submitted that in light of above documents, the Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Jan 12 01:44:09 IST 2016 C/SCA/244/2016 ORDER authority ought to have looked into the matter to consider the case of the petitioner for correction in the date of birth.
4.1 Learned advocate for the petitioner relied on decision in Nitaben N. Patel Vs State of Gujarat [2008 (1) GLR 884]. He further relied on decision in Madhvi Sandip Patel vs. Registrar, Birth and Death Department [2015 (2) GLR 1416] in respect of prayer for change in the name by submitting that the authority has got such power.
5. Section 15 of the Registration of Births and Deaths Act provides for correction or cancellation of entry ion the register of births and deaths and empowers the authority to correct the entries on being satisfied that any entry in the register of births and deaths kept by him is erroneous either in form or substance or has been fraudulently or improperly made. Rule 11 of the Gujarat Registration of Births and Deaths Rule, 2004 deals with the correction of entry and an entry showing an error can be corrected with the authority upon inquiry into the matter. A combined reading of the Section and the Rule implies that the competent authority is vested with power to correct an erroneous entry and for that, he may undertake an inquiry. The material and the documents which are relevant and germane has to go into consideration of the authority in his decisional process.
5.1 A combined reading of the aforesaid Section and the Rule makes it clear that the competent authority Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Jan 12 01:44:09 IST 2016 C/SCA/244/2016 ORDER is vested with power to correct or cancel an entry in the Register of Birth and Death maintained by him. The authority may correct or cancel the entry if it is proved to the satisfaction that such correction is required. Rule 11 contemplates the procedure to be followed in that regard.
5.2 This Court in Nitaben N. Patel Vs State of Gujarat [2008 (1) GLR 884] has held that when an authority is empowered to exercise powers under Section 15 of the Act and Rule 11 of the State Rules, 2004 and if the authority refuses to exercise its powers, a writ petition is maintainable under Article 226 of the Constitution for issuing appropriate directions to the authority. Following was laid down by the Court, "(1) 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.
(2) 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 SubRule (1) provide for any entry, any error which may be clerical or formal and SubRule 4 of the above Rule 11 mention about any entry which may be erroneous in substance and SubRule 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.
(3) The kind and types of directions to be issued to the Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Jan 12 01:44:09 IST 2016 C/SCA/244/2016 ORDER authority depend on facts and circumstances of the each case and nature of denial of legal right to the aggrieved persons by the authority."
5.3 In another judgment dated 26.12.2011 by this Court in Jagdish Liladhar Vadera Vs State of Gujarat being Special Civil Application No.15139 of 2011, the Court relying on Nitaben N. Patel (supra), directed the authority to exercise powers under Rule 15 of the Act and decide the application of the petitioner regarding correction in date of birth. In other decision in Patel Ramilaben vs. State of Gujarat being Special Civil Application No. 9695 of 2015 decided on 10.08.2015, directions on the similar footing were issued by this court to the authority.
6. Keeping in view the above and considering the reason supplied by respondent No.2authority that since the date of birth recorded at the relevant time in the Birth Register of the Municipality was based on the declaration made by the applicant, the same cannot be corrected, it can be said that the authority has not properly exercised its powers under Section 15 of the Act read with Rule 11 of the Rules. Respondent No.2 is statutorily obliged to consider the material produced by the petitioner in support of his request and on the basis of the merits of the case put forth by the petitioner, has to take an appropriate decision. The powers improperly exercised by the authority vested in law can be said to be an exercise bad in law.
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7. In the circumstances, appropriate direction deserves to be issued to respondent No.2. The impugned decision of respondent No.2 reflected in communication dated 20.11.2015 is hereby set aside. This petition is disposed of by directing respondent No.2 to exercise powers available to him under the statute and take a fresh decision on the application of the petitioner, after considering all the documents which may be produced by the petitioner. Respondent No.2 authority is free, and the petitioner is at liberty, to produce such and further material and evidence with regard to date of birth.
8. It is observed that this court has not gone into the merits of the case of the petitioner. Respondent No. 2 competent authority would consider the case of the petitioner by duly examining it on merits and in accordance with law.
9. The exercise directed as above shall be completed by respondent No.2 as expeditiously as possible and preferably within six weeks from the receipt of the present order.
10. The petitioner is allowed to serve the authority and produce this order before it.
(N.V.ANJARIA, J.) chandrashekhar Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Jan 12 01:44:09 IST 2016