Gujarat High Court
Rashmikaben Vishalkumar Patel vs State Of Gujarat & on 12 January, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/20906/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20906 of 2015
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RASHMIKABEN VISHALKUMAR PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR Y J PATEL, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 12/01/2016
ORAL ORDER
Heard learned advocate Mr. Y. J. Patel for the petitioner and learned Assistant Government Pleader Ms. Jyoti Bhatt for respondent No.1-State. None appears for respondent No.2 though served with the notice of this court.
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 at this stage for disposal.
2. The petitioner has prayed to set aside order dated 29.10.2015 passed by respondent No.2 - Talati- cum-Mantri who is the competent authority under the Registration of Births and Deaths Act, 1969, and further direction is prayed against the said authority for correction of date of birth in the birth certificate and record of birth.
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3. It is the case of the petitioner that her correct date of birth is 25.04.1985 which is wrongly recorded in the birth certificate as 28.09.1984. It appears that the petitioner applied before respondent No.2-the competent authority requesting correction in her date of birth in the birth certificate. Along with the application, the documents showing the correct date of birth, as per the claim of the petitioner, were produced. Copy of the application made by the petitioner is produced along with the petition. It appears that that on the same day, that is, 29.10.2015, respondent No.2-Talati-cum-Mantri made an endorsement below the petitioner's application that he does not have any power to correct the date of birth.
4. Learned advocate for the petitioner submitted that in other government and semi-government documents and certifications such as school leaving certificate, Passport issued by the passport authority, PAN card issued by the Income-tax Department, Election card of the Election Commission of India, Adhar card issued by the Central Government and Driving licence issued by the Regional Transport Authority, her correct date of birth 25.04.1985 is recorded. It was submitted that these documents were produced before respondent No.2.
5. Apart from the aspect that the impugned order is too cryptic to be countenanced, this is a case where the competent authority under the Act has failed to exercised his statutory powers under Section 15 of the Act read with Rule 11 of the Gujarat Registration of Births and Deaths Rule, 2004.
Page 2 of 6HC-NIC Page 2 of 6 Created On Sat Jan 16 01:12:09 IST 2016 C/SCA/20906/2015 ORDER 5.1 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.
5.2 A combined reading of the aforesaid Section and the Rule makes it clear that the competent authority 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.
5.3 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 Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Jan 16 01:12:09 IST 2016 C/SCA/20906/2015 ORDER 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 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.
(3) 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."
5.4 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 Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Jan 16 01:12:09 IST 2016 C/SCA/20906/2015 ORDER footing were issued by this court to the authority.
6. Keeping in view the above and considering the reason supplied by respondent No.2-authority that he does not have any power to correct the date of birth, it can be said that the authority has virtually refused to exercise its powers under Section 15 of the Act read with Rule 11 of the Rules. Respondent No.2 is obliged to consider the material produced by the petitioner in support of her request and on the basis of the merits of the case put forth by the petitioner, has to take an appropriate decision.
7. In the circumstances, the impugned order 29.10.2015 passed by respondent No.2 - Talati-cum Mantri is hereby set aside. Appropriate direction deserves to be issued to respondent No.2. Respondent No.2 is directed 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.
7.1 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.
7.2 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.
8. It is observed that this court has not gone into the merits of the case of the petitioner. Respondent Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Jan 16 01:12:09 IST 2016 C/SCA/20906/2015 ORDER No. 2-competent authority would consider the case of the petitioner by duly examining it on merits and in accordance with law.
9. 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 Sat Jan 16 01:12:09 IST 2016