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SCA/12849/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12849 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JVALANT
ARUNRAY MEHTA - Petitioner(s)
Versus
REGISTRAR
OF BIRTH & DEATH BRANCH & 1 - Respondent(s)
=========================================================
Appearance :
MR
KH BAXI for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1 - 2.
MR
NILESH A PANDYA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 02/02/2010
ORAL
JUDGMENT
1. By
way of present petition under Article 226 of the Constitution of
India, the petitioner
has inter alia prayed for quashing and setting aside the
communication/decision dated 16.11.2009 at Annexure-N as well as for
directing the respondent authority to correct the name of the
petitioner’s
son in his Birth Certificate as ‘Kurang’ instead of ‘Vrundar’ as per
the representation dated 05.10.2009 at Annexure-L.
2. The
facts of the case, if put in nutshell, are as under :
2.1. Due
to some inadvertence, the name of petitioner’s
son, who was born on 30.04.1979, is mentioned as ‘Vrundar’ in his
Birth Certificate issued by the respondent-authority. However, in
reality, the name of the petitioner’s
son is ‘Kurang’, which is being mentioned in all the
records.
2.2. In
pursuance of the same, the petitioner
made a representation dated 05.10.2009 to the respondent
No.2-Corporation, which ultimately came to be rejected vide order/
communication dated 16.11.2009. Hence, this petition.
3. Mr.
Baxi, learned
counsel appearing for the petitioner,
has submitted that the impugned order passed by the
respondent-authority is an unjust and improper. The order passed by
the respondent-authority is a non-speaking order. It is submitted
that though the respondent-authority has statutory powers to correct
the name of the petitioner’s
son as ‘Kurang’ in his Birth Certificate, till date the grievance of
the petitioner
has not been redressed.
3.1. The
learned counsel appearing for the petitioner
has strongly relied upon the ratio of the decision rendered in the
case of Nitaben Nareshbhai Patel v. State of Gujarat and
others, reported in 2008(1) GLR 884, whereby
this Court has held that the competent authority has powers to
correct or cancel an entry in the register of Births and Deaths.
4. Mr.C.B.
Upadhyay, learned Assistant Government Pleader, has submitted that
the order passed by the respondent-authority is just, proper and
correct. It is submitted that the petitioner filled in the form which
is signed by the petitioner himself. It is submitted that there is no
infirmity in the order passed by the respondent-authority. In support
of his submissions, he has relied upon the decision of the Division
Bench of this Court rendered in the case of Regional
Passport Officer v. Kokilaben, w/o. Jaswantlal Panchal and others,
reported in 2009 (2) GLH 1246
and has submitted that the order impugned in this petition is just
and proper and the petitioner is not entitled to
any relief as prayed for in the petition and the same is required to
be dismissed.
5. Having
considered the facts and circumstances of the case and
the documents produced on record, it transpires that the name of the
petitioner’s
son is reflected as ‘Vrundar’ in the Birth Certificate instead of
‘Kurang’. The petitioner
had also made a representation dated 05.10.2009 to the
respondent-authority for correction of the name of his son stating
all the facts, including the fact that the petitioner’s
son was named as ‘Kurang’ and till date it is continued. However, the
respondent-authority has not appreciated the said aspect and has
failed to exercise his powers conferred upon him under the provisions
of the Births and Deaths Registration Act, 1969. At this stage, it
would be beneficial to reproduce the relevant paragraph Nos.15, 16
and 17 of the decision in the case of Nitaben Nareshbhai Patel
(supra) as under :
15.
In
view of the above, it is clear that Section 29 of the Act of 1969
protects provisions of earlier Act of 1886 and unambiguous language
of this section that nothing in the new Act is to be construed in
derogation of Act 6 of 1886 and Section 31 again makes it clear that
subject to provisions of Section 29, the earlier Act shall stand
repealed. Thus, in the new Act earlier provisions with regard to
correction or cancellation of entry are very much in existence and
remain unaffected to the extent provided as above.
16. Therefore,
Section 28 of the Births, Deaths and Marriages Registration Act,
1886, Section 15 of the Registration of Births and Deaths Act, 1969,
Rule 12 of the erstwhile Registration of Birth and Deaths
Registration Rules, 1973 as framed by the State Government on the
basis of model Rules and Rule 11 of the Gujarat Registration of
Births and Deaths Rules, 2004 now in force, along with the guidelines
of the Central Government and the State Government issued by the
Registrar General of India and Registry of Births and Deaths, it is
clear that none of the above sections and rules and guidelines
restrict the authority to correct any erroneous entry in form or
substance made in the register of births and deaths. That, Act of
1969 clearly envisages that an Act is enacted to provide regulations
of births and deaths and for matters connected there with, while the
Births, Deaths and Marriages Register Act, 1886 (now repealed) was
enacted to provide the voluntary registration of certain Births,
Deaths and Marriages. Now in view of the decision of the Apex Court
for compulsory registration of Births, Deaths and Marriages in the
country and when there is clear jurisdiction vested with the
authority concerned as envisaged under Section 15 coupled with Rule
11 of the State Rules and procedure explained
in the guidelines, there is no room for doubt that authority has
power to correct or cancel the entries in the register of Births and
Deaths.
17.
When concerned authority fails to exercise the power conferred by
the statute and the person has legal right under the statute, on
demand denied by the authority illegally, for removing such
illegality, writ of mandamus can certainly be issued to such
authority to act in accordance with the provisions of the statute.
Section 15 of the Act of 1969, read with Rule 11 of Rules of 2004
provide for the detailed procedure as held by the two Division Bench
of this High Court, where proof to the satisfaction of the Registrar
that any entry of birth and 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 on 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 marginal entry and add thereto the date of the correction or
cancellation. The above procedure envisages that competent authority
namely Registrar or designated authority can hold reasonable inquiry
to ascertain the correctness or otherwise of the entry sought for and
if it is proved to his satisfaction about entry being erroneous in
form or substance or has been fraudulently or improperly made subject
to the provisions of rules and regulations the powers can be
exercised.
6. In
view of the above facts and circumstances of the case as well as in
light of the aforesaid decision of this Court in the case of Nitaben
Nareshbhai Patel (supra), the decision of the Division Bench
in the case of Regional Passport Officer (supra) cited
by the learned Assistant Government Pleader, the decision of the
Division Bench in the case of Regional Passport Officer
(supra) cited by the learned Assistant Government Pleader,
will not be applicable to the facts of the present case since in the
present case the petitioner had earlier approached the competent
authority vide his representation dated 05.10.2009. Therefore, I am
of the opinion that when the petitioner had already approached the
respondent-authority by way of filing application/ representation
dated 05.10.2009, the respondent-authority ought to have exercised
its powers conferred upon it. However, the respondent-authority has
not exercised the powers vested in it and therefore, the order
impugned in the present petition is required to be quashed and set
aside and the respondent-authority is required to be directed to
correct the name of the petitioner’s son as ‘Kurang’ instead of
‘Vrundar’.
7. For
the foregoing reasons, the present petition succeeds and is,
accordingly, allowed. The impugned order/ communication dated
16.11.2009 passed by the respondent No.2 is hereby quashed and set
aside. The respondent-authority is directed to carry out amendment in
the register of Births and Deaths maintained by the
respondent-authority by correcting the name of the petitioner’s son
as ‘Kurang’ instead of ‘Vrundar’ within a period of four weeks from
the date of receipt of writ of this Court and the petitioner’s son be
provided with the amended Birth Certificate as aforesaid on his
making application in the prescribed form and on his payment of
necessary fees, if any. Rule is made absolute accordingly.
[K.S.
JHAVERI, J.]
/phalguni/
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