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SCA/321/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 321 of 2010
=========================================================
REKHABEN
W/O SAMPATKUMAR RACHHADIYA D/O CHHAGANBHAI KARSAN - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR HARDIK
D MUCHHALA for
Petitioner(s) : 1,
MR CB UPADHYAYA, ASST GOVERNMENT PLEADER for
Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 02/02/2010
ORAL
ORDER
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 08th December 2009 at
Annexure-G as well as for directing the respondent authority to
correct the date of birth of the petitioner as 05.06.1976 in the
birth certificate instead of 17.07.1976 as per the representation
dated 07th December 2009.
2. It
is the case of the petitioner that due to inadvertence the date of
birth of the petitioner was registered with the competent authority
at the relevant time by a family member as 17.07.1976 instead of
05.06.1976. In pursuance of the same, the petitioner
made a representation dated 07th December 2009 to the
respondent authority, which ultimately came to be rejected vide order
dated 08th December 2009. Hence, this petition.
3. Mr.
Hardik Muchhala, learned
counsel appearing for the petitioner,
has submitted that the impugned order passed by the
respondent-authority is 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
date of birth of the petitioner
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 date of
birth of the petitioner in the Birth Certificate is mentioned as
17.07.1976 instead of 05.06.1976. The petitioner
had also made a representation dated 07th December 2009 to
the respondent-authority for correction of the same and till date it
is continued. However, the respondent-authority has not appreciated
the said aspect and has failed to exercise its powers conferred 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) which read 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 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 07th December 2009. Therefore, I am
of the opinion that when the petitioner had already approached the
respondent-authority by way of filing application/ representation
dated 07th December 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 date of birth of the petitioner as
05.06.1976 instead of 17.07.1976 in the birth certificate.
7. For
the foregoing reasons, the present petition succeeds and is,
accordingly, allowed. The impugned order dated 08th
December 2009 passed by the respondent No.3 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 date of birth of the
petitioner as 05.06.1976 instead of 17.07.1976 within a period of
four weeks from the date of receipt of writ of this Court and the
petitioner 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.
Direct Service is permitted.
(K.S.
JHAVERI, J.)
Divya//
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