Gujarat High Court
Solanki Dharmendrasinh Chenuji vs State Of Gujarat on 18 September, 2020
Equivalent citations: AIR 2021 GUJARAT 1, AIRONLINE 2020 GUJ 759
Author: A. C. Rao
Bench: A.C. Rao
C/SCA/6373/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6373 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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SOLANKI DHARMENDRASINH CHENUJI
Versus
STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI AGP (99) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date : 18/09/2020
CAV JUDGMENT
1. The petitioner has filed this petition with a prayer to correct the name of the petitioner as "Dharmendrasinh" and name of father of the petitioner Page 1 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT as "Chenuji Mansangji Solanki" in the birth certificate of the petitioner annexure-A.
2. The short facts leading to the present petition are that the birth certificate issued by the Aasjol Gram Panchayat wherein the birth date of the petitioner is mentioned as 15.6.1984 and the name of the petitioner is shown as "Dharamsang" and the name of the father of the petitioner is reflected as "Thakor Chenaji Monaji".
2.1 It is the case of the petitioner that the names of the petitioner as well as name of the father of the petitioner is wrongly recorded and are not correct. The petitioner had applied to respondent No. 2 to correct the name of the petitioner as "Dharmendrasinh" and name of father of the petitioner as stated above. He had preferred an application before the respondent No. 2 on 11.2.2020. The said application was replied by the respondent No.2 by his letter dated 4.3.2020 stating that as per the Notification of the Gujarat Government dated 18.2.2016 No. SBSI/birth-death/amendment/vs/2016, the case of the petitioner is not covered under the said Page 2 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT notification. He has relied upon the said notification and according to him his case is not covered with the said notification. Therefore, his application cannot be allowed.
3. At the time of arguments through video conference, learned advocate for the petitioner has contended that the he has produced all relevant certificates namely School Leaving Certificate, Driving Licence, passport, pan card, aadhar card, certificate of degree of bachelor of computer application. All these certificates show his correct name and in order to avoid any complication he has filed application before the respondent No. 2 to correct the name but the same is not entertained by the respondent No. 2 and wrongly rejected.
4. Per contra Mr. Munshaw, learned advocate appearing for the respondent No. 2 has contended that if petition is allowed, whole name of the petitioner would be changed and such type of amendment cannot be allowed. He further submitted that the said aspect is not covered under the said notification. Page 3 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT
5. It is contended that the application is filed after long period of 26 years and therefore also the petition is required to be dismissed.
6. After considering the rival submission, I am of the view that it would be fruitful to refer Section 15 of the Registration of Births and Deaths Act 1969 (hereinafter referred to as the "Act"). The said Act reads as under:-
"15. Correction or cancellation of entry in the registrar 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 Page 4 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT marginal entry and add thereto the date of the correction or cancellation...."
7. Rule 11 of the Rules of 2004 provides as under:
"Rule 11. Correction or cancellation of entry in the register of births and deaths:
(1)If it is reported to the Registrar that a clerical or formal,error has been made in the register, or if such error is otherwise noticed by him and if the Register is in his possession, the Registrar shall enquire into the matter and if he is satisfied that any such error has been made,he shall correct the error (by correcting or cancelling the entry) as provided in section 15 of the Act and shall send an extract of the entry showing the error and how it has been corrected to the District Registrar of Births and Deaths. (2)In the case referred to in sub-rule(1)if the register is not in the possession, the Registrar, he/she shall make a report to the District Registrar of Births and Deaths and call for the relevant register and after Page 5 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT inquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction. (3)Any such correction as mentioned in subrule (2) shall be countersigned by the District Registrar of Births and Deaths when the register is received from the Registrar. (4)If any person asserts that any entry inthe register of births 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 subrule(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. (6)If it is proved to the satisfaction of the Registrar that any entry in the register of Page 6 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT births and deaths has been fraudulently or improperly, he shall make a report giving necessary details to the officer authorized 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. (7)In every case in which an entry is corrected or cancelled under this rule,intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9 of the Act...."
8. At this stage, this Court would like to refer various decisions rendered by the learned Single Judge as well as the Division Bench of this Court on the similar points.
9. In the case of Vipulkumar Ramanlal Patel Through POA Patel Ramanlal Versus State of Gujarat(supra), the Division Bench of this Court passed an order on 10.05.2012 in Letters Patent Appeal No.497of2012, copy of which is produced at Page44 of the compilation. The Division Bench of this Court Page 7 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT considered the similar issue and on the basis of the documentary evidence produced by the concerned appellant as well as on the basis of the affidavits filed by the parents of the concerned appellant, direction was given to issue new Birth Certificate showing the correct date of birth.
10. In the case of Nitaben Nareshbhai Patel v. State of Gujarat(supra), this Court held in Paragraph 26 asunder:
"26.Thus in the nutshell, what emerges from the factual and legal submissions made and conclusions arrived in earlier paragraph is as under:
(A)In view of the provisions of Section 28 of the Repealed Act of 1886 and provisions contained in Sections 29 and 31 of the Act of 1969, by which erstwhile provision of correction/cancellation of entries in the register of birth and death, which is not in derogation,remained alive in Section 15 of the new Act and, therefore, the authority is empowered to correct erroneous entries in the register of birth and death, even in a case was made prior to 1.4.1970 i.e.the date on which new Act of 1969 came in to force and correction of error is sought for later Page 8 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT on.
(B) Section 15 of the Act of 1969 read with Rule 11 of the State Rules, 2004 alongwith 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.
(C) 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 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 Page 9 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT authority, which may rule out in misuse of power by registering authorities. Thus, clause 9.6 and 9.7 of Chapter 9 of the Handbook of Registrar General, Ministry of Home Affairs, Govt. of India provide for corrections and cancellations of entries and contain clerical or formal error, error in substance or fraudulent or improper entry and once any error in substance is to be corrected,it covers error of such nature which is an error of substance or form. That similar types of errors are mentioned in Clause 5.8 of Chapter 5 of vernacular guidelines published by the State Authorities under the Act.
(D)The above proposition of law stand fortified by the decisions of this Court in two Letters Patent Appeal Nos.195/1999 and 231/2001 in the case of Mulla Faizal & Faxilabanu Suleman Ibrahim and Registrar,Birth and Death Rajkot Municipal Corporation (Supra,there is no doubt that the expression "erroneous in form or substance"
in Section 15 of Act of 1969 is an expression of vide amplitude and does not confine to simple typing errors or clerical mistakes and no guide lines or circulars can take away powers of the Register of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of Act Page 10 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT of 1969 and Rule 11(1)to(7)of the State Rules, 2004.
(E) when the authority empowered to exercise power under Section15 of the Act and Rule 11 of the State Rules, 2004, refuse to do so, writ petition is maintainable under Article 226 of the Constitution of India for issuing appropriate directions to the authority.
(F) 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. (G) That even Section 27 of the Act of 1969 is pertaining to delegation of powers and Section 32 empowers to concerned Government to remove the difficulties and,therefore,the appropriate Government or any authority upon whom the powers are delegated can act in accordance with scheme of the Act and appropriate directions can be given accordingly.
(H) So far as matters arising out of
the Regulation 12(A) of the Gujarat
Secondary Education Regulation,
1974isconcerned,law as on date is governed
as in the case of Soorat Jessomal
Khanchandani(supra) and Thakore Nilesh
Shishirbhai(supra).
(I) So far as the matters arising out
Page 11 of 15
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C/SCA/6373/2020 CAV JUDGMENT
of the Passport Act, 1967 and Rules,
2000, is concerned,law as on date is
governed as in the case of REGIONAL
PASSPORT OFFICER (supra) in view of
admission of L.P.A.No.1673/2006 by an order dated 30.7.2007 by which the judgmentof the learned Single Judge in Special Civil Application No.2716/2006 is stayed."
11. In the case of Natubhai Dharamdas Patel v.State of Gujarat and others (supra), this Court has considered the provisions contained in Section15 of the Act of 1969 and Rule 11 of the Rules of 2004 and after considering the decision in the case of Nitaben Nareshbhai Patel v.State of Gujarat(supra), this Court issued necessary direction to the respondent authority for reconsideration of the request of the concerned petitioner.
12. In the case of Krunal Prahladbhai Prajapati Vs. State of Gujarat and Anr., this Court has passed an order dated 26.02.2016 in Special Civil Application No.11281 of 2016. This Court has,after considering the decision in the case of Nitaben NareshbhaiPatel v. State of Gujarat (supra), observed in Paragraphs6.6 and 6.7 as under:
Page 12 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT
"6.6 In view of above position of law,it cannot be said that when the petitioner has made an application for correction of entry in the date of birth etc. which was recorded at the relevant time, merely because the date of birth sought to be corrected is later in point of time by three months than the originally recorded, the authority cannot exercise powers under Section 15 of the Act read with Rule11 as above. It has to consider whether the entry in the birth date is correct or can be cancelled and denied after making inquiry an dafter going through relevant material which may be produced by the petitioner or which the competent authority may call for satisfying itself. It is entirely not germane to say that there was a gap of three months between old birth date and new birth date so as to refuse to exercise power on that count.
6.7 In view of above, the competent authority respondent No.2 herein has to exercise his powers so as to consider the merits of the request of the petitioner for correction of date of birth as well as corrections in the name of mother and the name of grandfather. The respondent No.2 has got powers for correction in relation to the entries and the name also and such correction or cancellation also comes within the purview of the powers under Section 15 of the Act. In the facts and circumstances of the case, Page 13 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT necessary directions are required to be issued to respondent No.2 authority to consider and decide the case of the petitioner again by giving due regard to the material which may be produced by the petitioner."
13. Keeping in view the aforesaid legal position, if the facts as discussed herein above 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 in query nor examined the documentary evidence produced by the petitioner. Therefore, the said decision taken by respondent No.2 is required to be set aside.
14. In view of the aforesaid discussion, the petition is partly allowed. Impugned order dated 4.3.2020 passed by respondent No.2 is quashed and set aside. Respondent No.2 is directed to reconsider the case of the petitioner in light of the Page 14 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020 C/SCA/6373/2020 CAV JUDGMENT observations made in the present order and pass appropriate order after making inquiry as contemplated under Section 15 of the Act of 1969 and after considering the documentary evidence produced by the petitioner. Respondent No.2 shall complete the said exercise within a period of six weeks from the date of receipt of a copy of this order. Direct Service is permitted.
Sd/-
(A. C. RAO, J) DIPTI PATEL Page 15 of 15 Downloaded on : Sat Sep 19 01:27:42 IST 2020