Gujarat High Court
Yadav Amitkumar Hariprasad vs Regional Passport Authority - Surat & 2 on 15 December, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/9541/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9541 of 2015
==========================================================
YADAV AMITKUMAR HARIPRASAD....Petitioner(s)
Versus
REGIONAL PASSPORT AUTHORITY - SURAT & 2....Respondent(s)
==========================================================
Appearance:
MITTAL N PATEL, ADVOCATE for the Petitioner(s) No. 1
MR NIMESH M PATEL, ADVOCATE for the Petitioner(s) No. 1
KSHITIJ M AMIN, ADVOCATE for the Respondent(s) No. 1 - 2
MR KI SHAH, ADVOCATE for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 15/12/2015
ORAL ORDER
1. Heard Ms.Mittal N. Patel, learned counsel for the petitioner, Mr.Kshitij Amin, learned Central Government Counsel for respondent Nos.1 and 2-Passport Authority and Mr.Vishwas K. Shah, learned counsel for respondent No.3- Corporation.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent to insert the correct date of birth is 16.04.1980 of the petitioner instead of incorrect of date of birth is 07.04.1983 of the petitioner as shown in the passport dated 22th August, 2005 bearing No.F4538717 of the petitioner in the basis of the Affidavit declared by the petitioner in the alternative, the respondent be directed to issue passport to the petitioner showing the date of birth is 16.04.1980 of the petitioner.
(B) Your Lordships be pleased to direct the respondent authority to consider the application of the petitioners Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER for grant of passport facility to the petitioners, with the respondent to correct the date of birth is 16.04.1980 of the petitioner instead of incorrect date of birth is 07.04.1983 of the petitioner as shown in the Passport dated 22nd August, 2005 bearing No.F4538717 of the petitioner as mentioned therein, pending the admission hearing and final disposal of this petition;
(C)***."
3. The following facts emerge from the record of the petition:
3.1 The petitioner applied for issuance of passport in the year 2005 based upon the school leaving certificate issued by the last school attended by the petitioner, which mentions the date of birth of the petitioner as 07.04.1983 and such passport was issued by respondent No.1-Authority under Passport Registration No.F4538717.
3.2 It further appears that birth place of the petitioner is Surat and the records of respondent No.3- Corporation on basis of which respondent No.3 has issued birth certificate under the provisions of the Registration of Birth and Death Act, 1969 (hereinafter referred to as "the Act" for short) indicates that the birth date of the petitioner is 16.04.1980.
4. The petitioner has also relied upon other document such as 'Aadhar Card' and has also filed an affidavit to the effect that real date of birth of the petitioner is 16.04.1980. Learned counsel for the petitioner has relied upon the judgment of this Court rendered in the case of Patel Mukeshkumar Karshanbhai Vs. Regional Passport Authority [2012 (1) GLH 682] and has submitted that the respondent may be given appropriate direction.Page 2 of 7
HC-NIC Page 2 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER
5. Per contra, learned Central Government Counsel for the Passport Authority has relied upon the judgment of the Division Bench of this Court delivered in the case of Regional Passport Officer Vs. Kokilaben, W/o. Jaswantlal Panchal & Ors., [2009(2) GLR 1246] as well as the judgment of this Court in the case of Nitaben Nareshbhai Patel vs. State of Gujarat, [2008 (1) GLR 884] and has submitted that the petitioner earlier had approached for issuance of passport on basis of very school leaving certificate, which bears the date of birth is 07.04.1983. Therefore, ld. Central Government Counsel submitted that the Passport Authority has no authority to correct the date of birth of the petitioner and therefore, to get the birth date as mentioned in the school leaving certificate duly corrected, the petitioner should approach the competent authority, and if such correction is made by order of the competent authority, the Passport Authority shall consider such corrected documents in accordance with law.
6. Learned counsel for respondent No.3-Corporation states that this Court may pass appropriate order as respondent No.3 has issued birth certificate on basis of the application made by the parents of the petitioner himself.
7. Upon hearing learned counsel for the parties and on perusal of the record of this petition, it clearly transpires that the petitioner was studying in Vidya Bharti Hindi Vidyalaya, Surat and left the school on passing H.S.C examination in the year 2000. The school leaving certificate clearly mentions the date of birth is 07.04.1983.
Page 3 of 7HC-NIC Page 3 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER
8. Considering the judgment of the Division Bench of this Court rendered in the case of Regional Passport Officer (supra), the Passport Authority is not the authority to correct the date of birth. The Division Bench of this Court has also referred the judgment of this Court in the case of Regional Passport Officer (supra) and has observed thus:
"9. We may indicate that Registration of Births and Deaths Act, 1969 was enacted to provide for births and deaths and matters connected therewith, which came into force with effect from 1.4.1970. Chapter 3 of the Act provides for registration of births and deaths and Section 13 is pertaining to delayed registration of births and deaths. Sub-section (3) of Section 13 empowers a Magistrate of the First Class to pass an order in case if birth or death is not registered within one year by its occurrence. Initial registration of births and deaths within a period of one year remain with the authority as provided under sub- section (1) and sub-section (2) of Section 13 of the Act. Section 15 of the Act deals with correction or cancellation of entries in the register of Births and Deaths. Section 15 of the Act, read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 provides for detailed procedure to be followed. It says where 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 or cancel the entry by suitable entry in original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation. Thus, it is clear that if it is proved to the satisfaction of the Registrar that entry being erroneous in the register of births and deaths, and it has been fraudulently or improperly made, he can make a report giving necessary details to the officer authorised 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. Learned Single Judge of this Court in Nitaben Nareshbhai Patel Vs. State of Gujarat ý 2008 (1) G.L.R 884 elaborately considered the scope of above mentioned provisions, and the learned Single Judge also examined at length the provisions of Gujarat Secondary Education Act, 1972 and Gujarat Secondary Education Regulation, 1974. With regard to the change of date of birth entered in the school record, referring to Regulation 12(A), it was stated that if the student has actually left the school, no change can be Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER effected in the record of the school. For making a change in the name, as provided under Regulation 12(5)(1), an application in prescribed proforma with certain documents as narrated in Regulation 5(1)(A) to (D) are required to be submitted. Regulation 12(6) deals with correction of date of birth, which is permissible only when student is studying in the school, and thereafter it can be corrected by the concerned Magistrate of First Class, upon proof of correct birth date.
10. Reference may also be made to the order passed by the Division Bench of this Court in Letters Patent Appeal No. 699 of 2003 in Special Civil Application No. 8122 of 2003, decided on 11.8.2003 (unreported). In Minor Jagdishbhai Prabhatbhai Gohil Vs. State of Gujarat and others, referring to Gujarat Secondary Education Regulation, this Court took the view that the only remedy available to the party with regard to correction of date of birth/place of birth is to approach the authority for redressal of his grievance as provided under Section 13 of the Act.
11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder.
12. We are therefore, clearly of the view that Passport Authorities are not expected to make their own independent enquiry when there is a dispute or difference with regard to the date of birth, place of birth or name entered in the Passport, especially when entries were once made on the basis of records produced by the Passport holder. If there is any mistake on the records already produced, based on which entries were already made, then it is for the party who seeks correction to produce documents after carrying out necessary correction by the concerned statutory authorities, Judicial Magistrate or the Civil Court, as the case may be. Passport Authorities are always competent to direct the parties to produce relevant documents either from the authorities functioning under the Births and Deaths Register or from the Judicial Magistrate or from the Civil Court, as the case may be. On production of corrected documents, Passport Authorities will immediately carry out necessary correction in the Passport."
9. In the facts and circumstances of the case, the petitioner has required to approach learned Judicial Magistrate First Class by filing appropriate application for declaration as held by this Court in the case of Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER Nitaben Nareshbhai Patel (supra) and prayed for declaration or change of date of birth and consequently, correction in the school leaving Certificate. It would be appropriate to refer to the judgment rendered in the case of Nitaben Nareshbhai Patel (supra), wherein this Court has observed thus:-
"19. So far as the decisions relied on by learned advocate appearing for the Corporation etc. about correction of date of birth, name or place of birth under Gujarat Secondary Education Act, Rules and Regulations made thereunder in the school leaving certificate, the same field is being governed by different set of rules namely Gujarat Secondary Regulation Act, 1974 and Regulation 12 framed in exercise of power under Section 54 of the Act of the said regulations envisaged to the provisions as contained in Regulation 12-A (1) to (7).
19.1. As per Regulation 12(5) (1) provided for making a change in the name in a prescribed performa application with certain documents as narrated in Regulation 5(1) (A) to (D) and Regulation 12(6) is pertaining correction of date of birth can be permitted by the school authority only when the student is studying in the school and thereafter by the concerned Magistrate of First Class by furnishing necessary proof of correct birth date. That so far as Regulations 12(A) of Gujarat Secondary Education Regulation, 1974 is concerned there is an oral order dated 11.8.2003 passed in Letters Patent Appeal No.699/2003 in Special Civil Application No.8122/2003 in a case of Minor Jagdhishbhai Prabhatbhai Gohil v. State of Gujarat & Ors., the Division Bench while confirming the order of learned Single Judge held that ýSonly remedy to the appellant with regard to correction of date of birth is to approach learned Magistrate First Class, having jurisdiction in the matter for redressal of his grievance as provided under Section 13(3) of the Act. Therefore, the learned Single Judge was justified in concluding that the appellant has alternative remedy and that it was not necessary to entertain the petition filed under Article 226 of the Constitutionýý. Thus, the Division Bench in the above case also specifically and authoritatively did not pronounce about maintainability of the petition in such type of case under Article 226 of the Constitution of India but expressed desirability not to entertain the petition in view of the availability of the alternative remedy.
10. In light of the aforesaid, if the petitioner files any such application before the learned Magistrate with necessary proof for correction in the birth certificate Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Dec 20 00:43:38 IST 2015 C/SCA/9541/2015 ORDER under Regulation 12A of the Act, the learned Magistrate of First Class shall decide the same, as expeditiously as possible, within a period of 01 (one) month from the date of its filing. The petitioner shall produce all relevant documents to show that real date of birth is 16.04.1980 as reflected in the birth certificate issued by respondent No.3-Corporation.
11. Respondent No.1- Authority, on petitioner submitting order that may be passed by learned Magistrate in such proceedings, shall process the application of the petitioner and pass necessary order upon the application for correction of birth date in the passport within a period of 04 (four) weeks from the date of its filing of such order.
With these observations and directions, the petition stands disposed of. Notice is discharged. Direct Service is permitted.
(R.M.CHHAYA, J.) Suchit Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Dec 20 00:43:38 IST 2015