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SCA/8914/2011 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8914 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
MEHULKUMAR
JASHUBHAI PATEL - Petitioner(s)
Versus
TALATI
CUM MANTRI - Respondent(s)
=========================================================
Appearance
:
MR
NIRAL R MEHTA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 20/07/2011
ORAL JUDGMENT
1. Leave
to implead the State of Gujarat through the concerned Secretary, as
party-respondent No.2, is granted. The necessary amendment may
be carried out, forthwith.
2. Rule.
Mr.J.K.Shah, learned Assistant Government Pleader waives service of
notice of Rule on behalf of respondent No.2. Considering the settled
legal position, it is not necessary to issue notice of Rule to
respondent No.1. On the facts and in the circumstances of the case,
and with the consent of the learned counsel for the respective
parties, the petition is being heard and finally decided, today.
3. This
petition, under Article 226 of the Constitution of India, has been
filed challenging order dated 18.04.2011, passed by respondent No.1,
Talati-cum-Mantri, Chhatral Gram Panchayat, Taluka Kalol, District
Gandhinagar. In the said order, respondent No.1 has stated that he
has no power to effect a change in the date of birth and name of the
petitioner, as recorded in the Birth Register maintained by him.
4. It
is the case of the petitioner that he was born on 14.07.1992 at
village Chhatral, Taluka Kalol, District Gandhinagar, but at the
relevant point of time a wrong date of birth has been entered in the
Birth Register by a relative and the name of the petitioner has also
been wrongly recorded as Samirkumar, whereas the correct name is
Mehulkumar Jashubhai Patel. According to the petitioner, his correct
date of birth is 14.07.1992, and not 01.02.1990, and his correct name
is Mehulkumar Jashubhai Patel and not Samirkumar, as entered in the
Birth Register. The petitioner made an application dated 06.04.2010
under Section-15 of the Registration
of Births and Deaths Act, 1969 (“The Act” for short) to
respondent No.1. The impugned order dated 18.04.2011 has been passed
upon the said application of the petitioner, rejecting the same on
the ground of lack of power vested in respondent No.1. Aggrieved
thereby, the petitioner has approached this Court by filing the
present petition.
5. Mr.Niral
R. Mehta, learned counsel for the petitioner has submitted that the
stand taken by respondent No.1 in the impugned order is not correct,
as the said respondent is vested with power under Section-15 of the
Act, to correct or cancel an entry in the Register of Births and
Deaths. It is further submitted that
by passing the impugned order, respondent No.1 has refused to
exercise the power vested in
him by the Act, in spite of the fact that the petitioner has produced
necessary documents such as School Leaving Certificate, PAN card and
Identity Card issued by Swaminarayan College before the said
authority, which bear the correct date of birth of the petitioner,
that is, 14.07.1992 and correct name of the petitioner, that is,
Mehulkumar Jashubhai Patel. The learned counsel for the petitioner
has further contended that the refusal of the competent authority to
exercise the power vested in him, as per the provisions of the Act
and Rules is against the settled position of law as enunciated in the
case of in the case of Nitaben
N.Patel v. State of Gujarat reported
in 2008(1) GLR 884,
wherein
it has been held that the Competent Authority has the power to
correct or cancel an entry in the Register and when the said
authority fails to exercise such powers, a writ of Mandamus can be
issued.
6. Mr.J.K.Shah,
learned Assistant Government Pleader has fairly stated that in view
of the law laid down by this Court in Nitaben N.Patel v.
State of Gujarat (Supra), there
can be no doubt that respondent No.1 is vested with the power to
change the date of birth and
name of the petitioner in the Birth Register, in accordance with law.
7. I
have heard the learned counsel for the respective parties and perused
the averments made in the petition, contents of the impugned order
and other documents on record.
8. The
issue involved in the petition is whether respondent No.1 is vested
with the power to make a correction in the date of birth and name, as
recorded in the Birth Register, or not. The clear stand taken by
respondent No.1 is that no such power is vested in him. This stand is
belied by the provisions of Section-15 of the Act and Rule-11 of the
Gujarat
Registration of Births and Deaths Rules, 2004 (“the Rules”,
for short). Section-15 of the Act reads as below :
“15.
Correction or cancellation of entry in the register 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 marginal
entry and add thereto the date of the correction or
cancellation.”
9. It
may now be fruitful to refer to the provisions of Rule-11 of the
Rules, which are as follows :
“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 Sec. 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 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 sub rule (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 in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Sec. 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 sub rule (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 births and deaths has been made 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 Sec. 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 Sec.8 or Sec.9 of the Act.”
10. A
combined reading of Section-15 of the Act and Rule-11 of the Rules
leaves no manner of doubt that the Competent Authority is vested with
the power to make a correction or to cancel an entry of birth or
death and name, in any Register maintained by him, subject to it
being proved to his satisfaction that such correction or cancellation
is required to be done. The detailed procedure to be followed has
also been laid down in Rule-11.
11. Apart
from the above provisions of law, the legal position in this regard
is no longer res integra. After examining several
judgments, this Court has dealt exhaustively with various issues and
contingencies arising in case such as the present one in Nitaben
N.Patel v. State of Gujarat (Supra). The relevant extract of the
judgment is as follows:
“26.***********
(A)***********
“(B) Section
15 of the Act of 1969 read with Rule 11 of the State Rules, 2004
along with 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 Sub-Rule 4 of the above
Rule 11 mention about any entry which may be erroneous in substance
and Sub-Rule 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 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)**********
(E)
When the authority empowered to exercise power under Sec. 15 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.”
(emphasis supplied)
12. Examining
the case of the petitioner and the impugned order made by respondent
No.1 in light of the statutory provisions reproduced hereinabove and
the principles of law culled out in the above-mentioned judgment, it
is evident that the order dated 18.04.2011, passed by respondent No.1
is clearly erroneous, being contrary to the above provisions of law
and the settled legal position. The refusal of respondent No.1 to
exercise power vested in him under the Act and Rules certainly calls
for the interference of this Court in exercise of jurisdiction under
Article 226 of the Constitution of India.
13. In
view of the above position, the impugned order dated 18.04.2011,
passed by respondent No.1, is hereby quashed and set aside.
Respondent No.1 is directed to consider the case of the petitioner
and to exercise power vested in him under Section-15 of the Act and
Rule-11 of the Rules, by deciding the application of the petitioner
dated 06.04.2010, for correction of his date of birth and name in the
Birth Register, afresh, and in accordance with law. The necessary
action shall be taken within a period of four weeks from the date of
receipt of a copy of this order.
14. The
petition is allowed, in the above terms. Rule is made absolute,
accordingly. There shall be no orders as to costs.
Direct
service is permitted.
(Smt.
Abhilasha Kumari, J.)
~gaurav~
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