Delhi District Court
Tenzin Tsomo vs Regional Passport Office on 28 May, 2014
IN THE COURT OF SH VINOD KUMAR MEENA
CIVIL JUDGE02, NEW DELHI DISTRICT, PHC,
NEW DELHI
Civil Suit No:140/13
Unique Case ID No.02403C0121352013
Tenzin Tsomo
R/o Sambhota Tibetan
Schools Society, Session Road,
Dharamsala ( HP) ... Plaintiff
Versus
1. Regional Passport Office
Trikoot3, HUDCO Building,
Bhikaji Camaji Place, New Delhi,
Through Regional Passport Officer
2. Ministry of External Affairs,
Consular Passport & Visa Division,
Patiala House Annexe, Tilak Marg,
New Delhi110001,
Through its Chief Passport Officer. ...Defendants
SUIT FOR DECLARATION
DATE OF INSTITUTION : 11.09.2013
DATE OF ARGUMENTS :22.05.2014
DATE OF DECISION : 28.05.2014
JUDGMENT
1. The present suit for declaration has been filed by the plaintiff namely Tenzin Tsomo praying for a decree thereby directing the defendant Regional Passport office to correct her date of birth as 23.07.1991 instead of 27.12.1991.
2. The brief facts pleaded in the plaint are as follows: C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 1 of pages 21
(i) That the plaintiff is a Tibetan by origin and born and brought up in Dharamsala, Himachal Pradesh, India and legally residing in India from past more than 21 years.
(ii) The father of the plaintiff applied for passport/identity certificate of plaintiff in the year 2004 and furnished the copy of birth certificate of plaintiff issued by Central Tibetan Administration, Dharamsala along with application form. It is further averred that in the above mentioned date of birth was wrongly mentioned as 27.12.1991 (actually mentioned/written as27.02.1991 instead of 27.12.1991) instead of correct date of birth as 23.07.1991. Being illiterate person the father of the plaintiff could not realize the same.
(iii) On the basis of annexed birth certificate the defendants issued identify certificate/passport bearing IC No.022730 to the plaintiff and the date of birth was mentioned as 27.12.1991.
(iv) Later on,the plaintiff got issued a birth certificate from department of Health and family welfare, Govt of Himachal Pradesh which was issued under section 12/17 of the registration of Birth and Deaths Act, 1969 and under rule 8 of Himachal Pradesh Registration of Birth and Deaths Rules 2003, with 23.07.1991 as her correct date of birth and even in matriculation certificate of plaintiff her date of birth is correctly mentioned as 23.07.1991. The plaintiff has applied for admission in abroad for pursuing the higher studies and it was found that her date of birth mentioned in the passport was different from the date of birth mentioned in matriculation certificate and even the birth certificate issued by Health and family welfare, Govt of Himachal Pradesh.
(v) Plaintiff approached the defendant for correction the same but the officials expressed their inability to do so in the absence of Court order.
3. It is thus contended that the error in the date of birth in the identity certificate was due to oversight and hence, the present suit C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 2 of pages 21 has been filed seeking a decree of declaration.
4. After perusal of the ordersheets it is revealed that the suit was instituted on 11.09.2013 and notice of the application u/s 80 (2) CPC was issued against of the defendant. Defendants put in its appearance though Sh. Neeraj Kumar ld. counsel for defendant as well as Sh Giriraj Sharma, official on behalf of defendants and filed the written statement on behalf of defendants. Vide order dated 23.10.2013 application under order VIII rule 1 of CPC as well as application under section 80 (2) of CPC filed by defendant and plaintiff respectively were allowed and accordingly written statement was taken on record.
5. In its written statement it is averred by the defendants that the present suit is not maintainable as same is filed without cause of action. It is also averred in the written statement that as per circulars dated 29.10.2001 and 21.05.2004 of Ministry of External Affairs the date of birth of an applicant cannot be changed unless the applicant furnished the declaratory order from the Court of competent Jurisdiction. It is also averred in the written statement that present suit is liable to be dismissed for nonjoinder of necessary parties.
6. Based on the pleading of the parties, following issues were framed by the court vide order dated 06.11.2013:
1. Whether the plaintiff is entitled for decree for declaration as prayed for? OPP.
2. Whether the suit of plaintiff is not maintainable? OPD
3. Relief.
7. In order to substantiate her case the plaintiff examined herself the only witness as PW1 and relied upon the documents the documents mark A, mark B, Ex. PW1/1 to Ex. PW1/4. Document Mark A is birth certificate issued by Tibetan Welfare Office, Dharamsala, HP; Mark B is legal notice u/s 80 CPC; Ex. PW1/1 is Passport/IC; Ex. PW1/2 is Matriculation certificate issued by CBSE board; Ex. PW1/3 birth certificate issued Govt of HP and Ex. PW1/4 is proof of service of notice.
In her crossexamination by ld. counsel for defendants it was averred by plaintiff that her date of birth was recorded by her father C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 3 of pages 21 and her father is an illiterate person and further averred that her parents might have got recorded her date of birth at the time of her admission in the school for the first time. Plaintiff denied that the birth certificate issued by Central Administration of Tibet, Dharamshala (CAT) was issued after filing certain supportive documents. It is further averred by plaintiff that the identity certificate (IC) was got issued by her parents. It is admitted by plaintiff that her earlier passport/ identity certificate was issued on the basis of date of birth certificate marked as Mark A and she has not canceled the date of birth certificate marked as Mark A. It was further averred by plaintiff that the date of birth certificate marked as mark A was automatically canceled from the Government as the date of birth certificate marked as Mark A was issued from the concerned authority at Tibet and she is staying in India and a new date of birth certificate has been issued.
Defendant has only exhibited in its defendant evidence, circular dated 29.10.2007 and 15.01.2008 as Ex. DW1/A. At this stage, it is pertinent to mention here that though it has been averred by DW1 in his examination in chief that he is exhibiting circular dated 29.10.2007 and 15.01.2008, yet DW1 has only exhibited the circular dated 29.10.2007 and has annexed the circular dated 21.05.2004 instead of any circular dated 15.01.2008. Without going further with the reasons for nonfiling of the circular dated 15.01.2008, the Court is taking a judicial notice of the circular dated 15.01.2008 as the same was filed by the ld. counsel for plaintiff along with the judgment on which the circular dated 15.01.2008 is based.
8. Final arguments on behalf of both the parties heard and the record as well as judgments filed by both the parties have been carefully perused and following issue wise findings have been given by the Court.
Issue no.1
9. Before moving ahead with the discussion on the issue no.1 i.e whether the plaintiff is entitled for decree for declaration, the Court deem it inevitable to mention here that a glaring fact w.r.t date of birth as mentioned in the birth certificate, issued by Tibetan Welfare Office, Dharamshala has been ignored by both the parties.
C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 4 of pages 21 The Court deem it fit to mention here that date of birth that has been mentioned in birth certificate, issued by Tibetan Welfare Office, Dharamshala is 27.02.1991, the same has been averred in plaint as 27.12.1991. The point has not been raised even by the defendant in its written statement.
At this stage, though the pleading as well as the averment by both the parties have not mentioned the above mentioned fact, yet, it is the paramount duty of the Court to take into consideration the above mentioned fact which is also a matter of record. In this context the Court is taking the help of observation made by the Hon. Apex Court in Management Of Borpukhurie Tea Estate vs Presiding Officer, Industrial 1978 AIR 992, 1978 SCR (3) 439 ..." The Courts charged with the duty of administering justice have to remember that it is not the form but the substance of the matter that has to be looked into and the parties cannot be penalised for inadvertent errors committed by them in the conduct of their cases. It is equally important for the Courts to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably..."
After going through the above mentioned observations, court deem it fit to mention here that the date of birth that has been mentioned in the identity certificate is 27.12.1991. Mention of Date of birth in identity certificate as 27.12.1991 gave an clear indication that there has been a clerical mistake on the part of the defendant, as it is the argument of the defendant that plaintiff has got issued the identity certificate on the basis of birth certificate, issued by the Tibetan Welfare Office, Dharamshala and it is the matter of record that date of birth mentioned in the birth certificate, issued by the Tibetan Welfare Office, Dharamshala is 27.02.1991 and not 27.12.1991 as mentioned in the identity certificate.
It is admitted fact on the part of the defendant which is substantiated by the circular dated 29.10.2007 exhibited as DW1/A that in case of a clerical mistake on the part of either party the rectification/correction be done by PIA without seeking any C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 5 of pages 21 declaratory order from the Court. The relevant para of the circular is quoted herein as under.
"... all the PIAs are advised that all cases related change of date of birth/place of birth in passport already held by applicant be examined on the following lines before asking for production of a Court order:
(a) where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and asked for rectification/correction: in all such cases the documents produced earlier as proof of date of date of birth/ place of birth at the time of issue...( not legible) 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 formal case, by charging fee for fresh passport and in the letter, 'gratis'. There is no need for declaratory Court order in such cases..."
After going through the above mentioned the court is of the view that as in the present case, there seems to be an apparent mistake on the part of the defendants in mentioning the date of birth in the identity certificate and as per the circular dated 29.10.2007 para (a) the same could have been done by the PIA without any declaratory order from the court.
At this stage, Court deem it fit to mention here that though the birth certificate issued by CTA (Central Tibetan Administration), Dharamshala mention the date of birth of plaintiff as 27 February 1991 yet it has been mentioned in the plaint that the date of birth mentioned in birth certificate issued by CTA (Central Tibetan Administration), Dharamshala is 27.12.1991,the same seems to be a clerical mistake. It is further averred in the plaint that the father of the plaintiff got issued the identity certificate on the basis of birth certificate issued by CTA (Central Tibetan Administration), Dharamshala and the defendant has issued the identity certificate by mentioning the date of birth as 27.12.1991. It is further averred in the plaint that father of the plaintiff was an C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 6 of pages 21 unlettered person that is the reason that the date of birth in the birth certificate issued from CTA (Central Tibetan Administration), Dharamshala was wrongly mentioned as 27.12.1991(actually mentioned as 27.02.1991 instead of 27.12.1991) and consequently the identity certificate was also issued by mention of dated 27.12.1991. It is also the contention of the defendant that the identity certificate was issued on the basis of birth certificate issued by CTA (Central Tibetan Administration), Dharamshala in which the date of birth was mentioned as 27.12.1991.
At this stage, before proceeding further with matter, Court deem it fit to mention here that defendant has not produced any document which show that the plaintiff has mentioned a wrong date of birth in the forms for applying the identity certificate and it is clear that date of birth certificate issued by CTA (Central Tibetan Administration), Dharamshala do mention the date of birth as 27.02.1991 instead of 27.12.1991.
Though apparently, it is prima facie clear that there is a glaring / apparent mistake on the part of the defendant, yet without going further with the point of mistake on the part of the defendant, the Court is taking the point of contention raised by or on behalf of the defendant; and the point of contention by or on behalf of defendant is that the identity certificate was issued by mentioning the date of birth as mentioned in the birth certificate issued by CTA, Dharamshala ( which apparently not so) and the plaintiff has now applied for new passport on the basis of date of birth certificate issued by Government of Himachal Pradesh, Department of Health and Family Welfare.
On the other hand, it is submitted by or on behalf of plaintiff that as per the Government of India Rule, any Tibtan residing in India, apply for identity certificate has to furnish only one supported document namely, birth certificate issued by CTA, Dharamshala ( Tibtan Government in Exile) as proof for his date of birth. It is further averred by ld. counsel for plaintiff that father of plaintiff was an illiterate person and had got issued the birth certificate as well as identity certificate due to his illiteracy and ignorance. It is further submitted by ld. counsel for plaintiff that plaintiff is seeking declaration on the basis of matriculation certificate,issued by CBSE Board and birth certificate issued by Registrar of Births and Deaths C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 7 of pages 21 which are public documents as issued by competent authority. It is further submitted by ld. counsel for plaintiff that birth certificate issued by CTA, Dharamshala used to be accepted by Government of India until 04.10.2005.
Ld. counsel for the defendant relied upon one judgment, pronounced by Hon. High Court of Delhi, titled as Ankit Aggarwal vs. Regional Passport officer and anothers {WP (C) No.5185/2013} and submitted that the above mentioned judgment pronounced by Hon. High Court of Delhi is applicable to present facts and circumstances and further submitted that having two birth certificates is nothing but a fraud play to the Court. Per contra it was submitted by ld. counsel for plaintiff that the judgment Ankit Aggarwal vs. Regional Passport officer and anothers ( Supra) is not applicable upon the present facts and circumstances as the earlier date of birth certificate issued by CTA, Dharamshala and subsequently the identity certificate got issued by the father of the plaintiff who due to illiteracy and ignorance has averred/mentioned a wrong date of birth and subsequently, a current date of birth certificate got issued from the Government of Himachal Pradesh, Department of Health and Family Welfare, issued under section 12/17 of the Registration of Births and Deaths Certificate Act 1969, which is a public document. It is also submitted by the ld. counsel for plaintiff that date of birth of plaintiff is 27.07.1991 and has been correctly mentioned in date of birth certificate got issued from the Government of Himachal Pradesh, Department of Health and Family Welfare and in matriculation certificate and all the subsequent educational certificate.
Ld. counsel for plaintiff relied upon judgment titled as Pushpendra Singh Divaniyan vs. Union of India and others {WP(C)7387/2008} pronounced by Hon. High Court of Delhi and one more judgment titled as Resham Singh vs. Union of India and anothers C.W.P. No. 13722 of 2007 pronounced by Court of Punjab and Haryana at Chandigarh. It is submitted by ld. counsel for plaintiff that in Pushpender Singh Divaniyan vs. Union of India and others (Supra), it was made clear after taking into account circular date 18.04.2001 and circular dated 29.10.2007 r.w.s 21 of General Clauses Act that decision whether or not date of birth on the passport has been correctly recorded is an administrative matter C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 8 of pages 21 which can be easily decided by the respondents on merits.
Arguments on behalf of both the parties heard and the pleadings, documents as well as judgment relied upon by both the parties has been carefully perused and it is observed by the Court that the main contention that has to be decided is that when the passport was issued on the basis of date of birth certificate furnished by or on behalf of plaintiff and when lateron an amendment is sought in the passport on the ground of a birth certificate issued by Registrar of Birth and Deaths and the matriculation certificate, in such cases which entry w.r.t date of birth would prevail. (in the present case the identity certificate/passport apparently and admittedly not in accordance with the birth certificate from CTA Dharamshala, filed by or on behalf of plaintiff, however, for the sake of convenience and to put an end to the controversy this point is not considered here.) Before proceeding further with deciding the above mentioned contention, the Court deem it fit to mention here that this situation as arose in the present case is not an alien situation and do found mention in the circulars issued by the respondent from time to time and also has been made clear by the orders from the Hon. High Courts.
Court deem it fit to mention here the observations made by Hon. Bombay High Court in Jigar Harish Shah vs. Union of India, AIR 2001 Bom 60 wherein it was held that in view of Section 21 of the General Clauses Act, the Passport authorities have requisite jurisdiction and authority to make necessary corrections in case a wrong entry has been made. The relevant para is quoted here as under: " ....In this matter, however, when the provisions of S.21 of the General Clauses Act have been brought to our notice and when we see that correction in the Passport in relation to the entries therein including in relation to the date of birth can be made by the Passport authority itself having regard to the provisions of S.21 of the General Clauses Act, we do not feel it proper to refer the matter to the Judicial magistrate whose Courts, we are aware, are already C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 9 of pages 21 overburdened and further in particular when the Judicial magistrates have not been conferred with such a jurisdiction under any law. We, therefore, instead of issuing a direction to the Judicial Magistrate in this matter, direct the Passport Authority itself to hold an enquiry on hearing the petitioner in relation to the petitioner's claim about his correct date of birth and in case the Passport Authority is satisfied with regard to the claim put forth by the petitioner, we further order it to effect the necessary change in the Passport issued in favour of the petitioner. Petition is allowed in the above terms. Rule is made absolute."
Similar was reiterated in judgment pronounced by Hon. High Court of Delhi in Pushpendra Singh Divaniyan vs. Union of India and others ( supra) wherein after taking into consideration the circular dated 18.04.2001 and 29.10.2007 it was observed that decision whether or not date of birth on passport has been correctly recorded is an administrative matter which can be easily decided by the respondents(passport authority) on merits.
The relevant paras are quoted here in as under: Circular dated 18.04.2001 " 2...
"(c) 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 resulting in conflicting sources of valid proof, the PIA should direct the applicant to obtain a civil order from a competent court of jurisdiction, certifying the valid date of birth/place of birth."
Circular dated 29.10.2007 "(c) Where files have already been destroyed. PIAs could use their discretion in correction of date of C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 10 of pages 21 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 First Class Judicial Magistrate, to effect the change as per Passport Manual 2001 (In some States, this function is discharged by Civil Magistrates)."
3. Date of birth is recorded in the passport of the petitioner on the basis of his school leaving certificate. Therefore the said clauses of the Circular will apply. In terms of the said Circulars, the respondents are insisting upon declaratory order from a First Class Judicial Magistrate to effect the change as per Passport Manual, 2001...
...5. It also appears that Chief Metropolitan Magistrates in Delhi have been following the view taken by the Bombay High Court in the case of Jigar harish Shah (supra) and directing the authorities to examine any request forchange/amendment in the date of birth and accept or reject the same on merits without insisting upon a declaratory decree. The petitioner has filed on record one such order dated 27th April, 2007 passed by the Additional Chief Metropolitan Magistrate.
6. As per the decision of the Bombay High Court in Jigar HarishShah (supra) the respondentauthorities have requisite power to examine any claim for change of date of birth in view of Section 21 of the General Clauses Act on merits. The respondent authorities in C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 11 of pages 21 view of the aforesaid position, should not delegate the matter and ask for declaration from the court of First Class Judicial Magistrate. As noted by the Bombay High Court, First Class Judicial Magistrates are overburdened and deciding an issue regarding declaratory decree will unnecessarily delay adjudication in other cases and increase dockets. Decision whether or not date of birth on the passport has been correctly recorded is an administrative matter which can be easily decided by the respondents on merits. It is a different matter that the claim may not be genuine and is required to be rejected."
The same was also reiterated by Hon. High Court of Punjab and Haryana at Chandigarh C.W.P. No. 13722 of 2007 wherein after a detailed discussion it was observed that when an application is filed before a Passport authority and there appears to be a conflict between entries in the birth certificate issued by the Registrar of Births and Deaths and the entry of birth in a school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, suspicious or appears to be procured or manipulated, parties should not be relegated to civil Courts in a mechanical manner. Relevant paras are herein quoted as under: "...10. It is not denied that a Passport Officer is empowered to alter/amend/vary/make entries and endorsements in a Passport. Section 21 of the General Clauses Act, empowers an authority to add, amend, vary or rescind an order issued by it earlier. However, the respondent Passport Officer relied upon instructions, issued by the Ministry of External Affairs dated 18.4.2001and more particularly Clause `c' thereof. The complete instructions are reproduced herein below:
"As per the current practice, in case of change of date of birth/place of birth, the applicant is required to produce the original declaratory order from a first class judicial magistrate. However,in view of the recent judgement given by C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 12 of pages 21 the High Court judicature at Mumbai in CWP No. 1072 of 2000 filed by Shri Jigar Harish Shah, the following clarifications are issued.
a) Where applicant is seeking rectification/correction of a mistake in the entry on date of birth/place of birth in the passport, PIA may after verifying/satisfying himself, affect the correction treating the same as a technical correction. There is no need for a declaratory order in such cases.
b) Where a competent authority issuing a birth certificate or an educational board registering a date of birth alongwith place of birth as valid were to issue any correction or amendment, PIA may affect the necessary amendment in a passport without insisting on a Court order. As per the provisions of Section 21 of the General Clauses Act, 1997, a competent authority issuing a certificate could also make necessary amendment to the same.
c) Where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e. a 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 resulting in conflicting sources of valid proof, the PIA should direct the applicant to obtain a civil order from the competent Court of jurisdiction, certifying the valid date of birth/place of birth. "
11. A perusal of the instructions disclose that Clause `a', empowers a Passport Officer to rectify/correct an entry in the date of birth/place of birth after C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 13 of pages 21 verifying/satisfying himself and treating the correction as technical in nature. However, Clause
(c), the provision relied upon by the Passport Officer, directs a Passport Officer not to adjudicate a plea for correction, where the claim is based upon two sets of documents, one being a matriculation certificate and the other being a certificate of birth issued by the Registrar of Births and Deaths. In such a situation, the instructions direct a Passport authority to relegate the applicant to a civil Court.
12. Once it is accepted, that a Passport Officer can alter/amend entries with respect to birth/place of birth, the caveat placed on his power, by Clause (c) of the instructions, in our opinion, curtails the powers of a statutory authority, namely; the Passport Officer.
It would be necessary to mention here that these instructions are merely explanatory or clarificatory and do not, impinge upon or in any manner curtail the statutory jurisdiction conferred by the Act. These instructions came to be issued in view of a judgement of the High Court of Bombay Jigar Harish Shah v. Union of India and Anr. , wherein the Union of India raised a defence similar to that urged in the present case...
...13. A similar dispute also arose before the High Court of Gujarat in Kokilaben J. Panchal v. Regional Passport Officer, Ahmedabad . After considering the judgement of the Bombay High Court, the instructions dated 18.4.2001, the provisions of Births and Death Registration Act, 1969 and the provisions of the General Clauses Act, 1897, it was held that the Passport authority was not justified in refusing to entertain the application for change of date of birth and/or place of birth and instead insisting that an order be obtained from a Court...
...14. It was,thus, held that where there is a conflict, between the date of birth, recorded by the competent authority under the Births and Deaths Registration Act and the school leaving certificate, primacy was to be accorded to the birth certificate issued by the C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 14 of pages 21 authority under the Registration of Births and Deaths. It was also held that unless upon verification,the certificate issued by the Registrar of Births and Deaths, appears to be doubtful or suspicious or the Passport authority is not satisfied as to its genuineness, then alone would the Passport authority be justified in declining to effect a correction in the date of birth and directing an applicant to seek adjudication, as to his date of birth before a civil Court.
...15. The aforementioned judgements, with which we are in respectful agreement,have correctly and succinctly delineated the powers and the jurisdiction of a Passport authority, considering an application for alternation of date of birth, based upon two contradictory documents i.e. a birth certificate issued by the Registrar of Births and Deaths and a certificate issued by an education authority.
16. A birth certificate is issued by a Registrar of Births and Deaths and reflects an entry extracted from the register maintained by the Registrar under the Registrarion of Births and Deaths Act, 1969. The aforementioned statute was enacted to provide for and regulate registration of Births and Deaths and for matters connected therewith. Section 7 thereof, requires a State government to appoint a Registrar for each area comprising the area within the jurisdiction of a municipality/panchayat or the local authority or any other area or a combination of any two or more of them. Section 16 of the Act requires every Registrar to keep in the prescribed form a register of Births and Deaths for the registration of births and deaths in his area or any part thereof in relation to which, he exercises jurisdiction. A register of Births and Deaths is, thus, a public record of births and deaths that occur within the area assigned to a Registrar. The Register being a public record, presumption of truth attaches thereto and consequently to the birth certificate,reflecting an extract from the Births and Deaths register. A C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 15 of pages 21 matriculation certificate, on the other hand, is primary evidence of the marks obtained by a candidate in a qualifying examination and the date of birth recorded as an ancillary measure. Primacy would, therefore, have to be accorded to the date of birth reflected in the birth certificate issued by the Registrar of Births and Deaths. (emphasis supplied) ...19. Thus, taking into consideration the aforementioned judgements, the enunciation of law, as detailed herein above, we are of the considered opinion that the Passport Authority erred by relegating the petitioner to seek a declaration before a civil Court and refusing to entertain his plea for correction of his date of birth. We would like to once again emphasise that as and when an application is filed before a Passport authority and there appears to be a conflict between entries in the birth certificate issued by the Registrar of Births and Deaths and the entry of birth in a school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, suspicious or appears to be procured or manipulated, parties should not be relegated to civil Courts in a mechanical manner..." The observation made by Hon. High Court of Punjab and Haryana and Chandigarh in the Resham Singh(Supra) were adopted by the defendants and has been incorporated in circular dated 15.01.2008 . It is pertinent to mention here that the circular dated 15.01.2008 do found mention in the averment of DW1 as exhibition no. DW1/A, however, the same has not been placed in judicial file and instead of circular dated 15.01.2008 other circular dated 21.05.2004 has been placed on record. Court is taking a judicial notice of this fact and also taking the judicial notice of circular dated 15.01.2008 as the same was placed by the ld. counsel for the plaintiff during the Course of arguments.
After going through the above mentioned judgments and as per circular dated 15.01.2008, the Court is left with no doubt that the defendants are competent to make a change in the entry w.r.t date of birth or place of birth. It is also trite now and same is apparently an admitted fact that if there appears to be a conflict C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 16 of pages 21 between entries in the birth certificate issued by the Registrar of Births and Deaths and the entry of birth in a school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, suspicious or appears to be procured or manipulated, parties should not be relegated to civil Courts in a mechanical manner.
Coming to the factual matrix of the present case, it is the contention of the defendants that earlier passport /identity certificate was issued on the basis of birth certificate issued by CTA, Dharamshala, and now the application for amendment of date of birth is moved on the basis of another birth certificate issued by Department of Health and family welfare, Govt of Himachal Pradesh. It is further averred by ld. counsel for defendants that the facts of the case are identical with the judgment pronounced by Hon. High Court of Delhi titled as Ankit Aggarwal ( Supra) and submitted that the present suit is liable to be dismissed.
Per contra it is submitted by ld. counsel for plaintiff that the facts of the present case are totally different from the case Ankit Aggarwal ( Supra) as in the present case earlier birth certificate was not issued by competent authority. It is also submitted by ld. counsel for plaintiff that facts of the present case are identical with the case Resham Singh ( Supra) wherein it was categorical mentioned that in case of conflict the entries in the birth certificate issued by Registrar of Birth and Deaths would prevail.
It is further submitted by ld. counsel for plaintiff that the judgment of Resham Singh (Supra) has been duly incorporated in circular dated 15.01.2008 and the present case is being contested for no reason and even the circular dated 15.01.2008 has not been placed in the judicial file by the defendants despite mentioning the same in the evidence.
After hearing the arguments qua the contention as mentioned above and after going through the judgment Ankit Aggarwal ( Supra) the court is of the prima facie view that facts of Ankit Aggarwal ( Supra) are differentiable with the present case on the basis of points that in Ankit Aggarwal ( Supra) the plaintiff/petitioner obtained two birth certificates from the same C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 17 of pages 21 competent authority. However, in the present case earlier birth certificate was issued by CTA Dharamshala which is not a competent authority and second date of birth certificate was issued from the Registrar of Births and Deaths which is a competent authority. It is pertinent to mention here that in Ankit Aggarwal ( Supra) the petitioner have two birth certificates bearing the same number which gave a prima facie indication and as observed by Hon. High Court of Delhi, that one of the document might be obtained by forgery; however, in the present case, earlier birth certificates was procured from CTA, Dharamshala by the father of the plaintiff who admittedly was an illiterate person due to an inadvertent mistake. Also, in Ankit Aggarwal ( supra) there was a difference of one year in both the date of birth which along with the fact that both the birth certificates were identical and were bearing same number with different date of birth, gave the prima facie indication that it was obtained with a deliberate attempt to use the birth certificate as per the convenience of the petitioner. However, in the present case the difference is only of few months and the earlier date of birth which was issued by CTA Dharamshala was prima facie and apparently obtained due to an inadvertent mistake due to illiteracy on the part of the father of the plaintiff and subsequently, after realising the mistake, the date of birth was applied from the registrar of births and death as per rules which was duly issued.
The Court also have to take a judicial notice of the fact that the plaintiff was born at home and not in hospital. The Court also has to take the judicial notice of the fact that earlier date of birth issued by CTA, Dharamshala was obtained by the father of the plaintiff who was admittedly illiterate person.
At this stage, Court again deem it fit to mention here that date of birth mentioned in the birth certificate CTA, Dharamshala is 27.02.1991, however, the date of birth mentioned in the identity certificate is 27.12.1991. The Court also take the judicial notice of the fact that there is an apparent wrong mention of the date in the identity certificate, undisputedly on the part of the defendant.
In view of the above said, the Court is of the view that facts of the present case are identical to the judgment Resham Singh (supra) which has been duly incorporated by the defendants in C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 18 of pages 21 circular dated 15.01.2008. The only difference is that in Resham Singh ( Supra) the document on which the earlier passport was issued was an educational certificate and subsequent document was the birth certificate, issued by registrar of births and deaths and it was specifically observed by the Hon. High Court that the birth certificate issued by Registrar of Births and Deaths would prevail in case of two conflicted documents. In the present case the earlier document was issued by the organisation/society which is not a competent authority/organization/society and the plaintiff has got issued the date of birth certificate from the competent authority i.e Department of Health and family welfare, Govt of Himachal Pradesh which was issued under section 12/17 of the registration of Birth and Deaths Act, 1969 and under rule 8 of Himachal Pradesh Registration of Birth and Deaths Rules 2003.
Now the court is confronted with the question that in such scenario as mentioned above whether it is the date of birth certificate issued by any authority which is not competent authority and issued by parents who are admittedly unlettered or it is the birth certificate issued by Registrar of Births and Deaths that should prevail. In this context Court deem it inevitable to mention here the purpose and the sanctity attached to a birth certificate issued by Registrar of Births and Deaths. It is pertinent to mention here that a birth certificate is issued by Registrar of Births and Deaths and duly reflects an entry extracted from the register maintained by the Registrar under the Registration of Births and Deaths Act, 1969 and the statute was enacted to provide for and to regulate the a registration of Births and Deaths and for matters connected therewith. Section 7 of Registration of Births and Deaths Act, 1969, provide that a State government has to appoint a Registrar for each area comprising the area within the jurisdiction of a municipality/panchayat or the local authority or any other area or a combination of any two or more of them. Court also deem it fit to mention here that Section 16 of the Act requires every Registrar to keep in the prescribed form a register of Births and Deaths for the registration of births and deaths in his area or any part thereof in relation to which, he exercises jurisdiction. A register of Births and Deaths is, accordingly, a public record of births and deaths that occur within the area assigned to a Registrar. The Register is no doubt a public record and a presumption of truth/genuineness is attached with it and consequently to the birth certificate,reflecting C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 19 of pages 21 an extract from the Births and Deaths register. Primacy would, therefore, have to be accorded to the date of birth reflected in the birth certificate issued by the Registrar of Births and Deaths.
After going through the above mentioned , it is observed by the Court firstly, there was an admitted mistake on the part of the defendants in recording the date of birth in the identity certificate/passport and admittedly the defendants i.e the passport authority were having authority/competence/jurisdiction to rectify the same. Secondly,as far as the contention w.r.t two conflicting documents qua the date of birth is concerned, it is trite now and an admitted fact on the part of the defendant which is apparent on account of circular dated 15.01.2008 that in case of conflicting documents the certificate issued by Registrar of Births and Deaths should be given primacy.
Before parting with the order Court deem it fit to mention here that there exists no facts or evidences which make the birth certificate issued by Registrar of Birth and Death as unreliable or forged. Court is also taking judicial note of the fact that admittedly the earlier date of birth certificate issued by CTA, Dharamshala was not used for any purpose other than issuing the identity certificate and the same identity certificate has not been used for any official purpose or for the purpose of travelling. Accordingly, as the birth certificate issued by Registrar of Births and Deaths is a public document and same is attached with a presumption of validity and genuineness and as there exists no ground to do away with the presumption of validity, the Court is of the view that the plaintiff is entitled for a decree of declaration in favour of plaintiff. Accordingly, the issue no. 1 is decided in favour of the plaintiff and against the defendant.
Issue No.2
10. As far as the issue no.2 i.e. Whether the suit of plaintiff is not maintainable? OPD, is concerned; it is pertinent to mention here that there are neither any evidence on behalf of defendant has been been adduced, nor the same has been argued accordingly, issue no.2 is decided against the defendant as court found no evidences to substantiate that this suit is not maintainable.
C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 20 of pages 21 Issue No.3
11. In view of the above discussion, it can be said that plaintiff is entitled for decree of declaration that date of birth of plaintiff is 23.07.1991 as mentioned in the birth certificate issued by the competent authority i.e Department of Health and family welfare, Govt of Himachal Pradesh which was issued under section 12/17 of the registration of Birth and Deaths Act, 1969 and under rule 8 of Himachal Pradesh Registration of Birth and Deaths Rules 2003, is correct date of birth.
12. Decree sheet be prepared separately accordingly. File be consigned to records room after due compliance.
Announced in Open Court ( Vinod Kumar Meena)
th
on 28 May, 2014 Civil Judge02/NDD/PHC
New Delhi
C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 21 of pages 21
DECREE SHEET
IN THE COURT OF SH VINOD KUMAR MEENA CIVIL
JUDGE02, NEW DELHI DISTRICT, PHC,
NEW DELHI
Civil Suit No:140/13
Unique Case ID No.02403C0121352013
Tenzin Tsomo
R/o Sambhota Tibetan
Schools Society, Session Road,
Dharamsala ( HP) ... Plaintiff
Versus
1. Regional Passport Office
Trikoot3, HUDCO Building,
Bhikaji Camaji Place, New Delhi,
Through Regional Passport Officer
2. Ministry of External Affairs,
Consular Passport & Visa Division,
Patiala House Annexe, Tilak Marg,
New Delhi110001,
Through its Chief Passport Officer. ...Defendants
SUIT FOR DECLARATION
DATE OF INSTITUTION : 11.09.2013
DATE OF ARGUMENTS :22.05.2014
DATE OF DECISION : 28.05.2014
This suit is coming on this day for final disposal before me in the presence of the ld. counsel for plaintiff as well as Sh. Neeraj Kumar ld. counsel for defendants and Sh. Giriraj, official on behalf of defendants.
It is ordered that the the present suit is disposed off in favour of the plaintiff. It is held that plaintiff is entitled for decree of declaration that date of birth of plaintiff is 23.07.1991 as mentioned in the birth certificate issued by the competent authority i.e Department of Health and family welfare, Govt of Himachal Pradesh which was issued under section 12/17 of the registration of Birth and Deaths Act, 1969 and under rule 8 of Himachal Pradesh Registration of Birth and Deaths Rules 2003, is correct date of birth.
cont..
C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 22 of pages 21
2
Costs of Suit
Plaintiff Rs. Ps. Defendants Rs. Ps.
Stamp for plaint NIL NIL
Stamp for power NIL Stamp of exhibits NIL
Stamp for exhibits NIL Pleader's fee NIL
Pleader's fee NIL Subsistence for NIL
witness
Subsistence of NIL Service of process NIL
witness
Commissioner's NIL Commissioner's fee NIL
fees
Service of Process NIL Misc. NIL
P.F
Misc. NIL NIL
total NIL NIL
Given under my hand and the seal of the Court, this 28th day of May 2014.
(Vinod Kumar Meena) Civil Judge02, New Delhi District, PHC,New Delhi C.S. No. 140/13 Tenzin Tsomo v Regional Passport Office 23 of pages 21