Gujarat High Court Case Information System
Print
SCA/440/2010 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 440 of 2010
=========================================================
PATEL
LALJIBHAI PARSOTTAMBHAI - Petitioner(s)
Versus
MAMLATDAR
SHRI DHOKLA - Respondent(s)
=========================================================
Appearance
:
MR
LALIT V PATEL for
Petitioner(s) : 1,
MR JK SHAH, AGP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 02/02/2010
ORAL
ORDER
1. The
petitioner herein has prayed to direct the respondent authority to
amend the date of birth of the petitioner in the birth certificate
whereby his date of birth is wrongly mentioned as 09.09.1951 instead
of 10.09.1951 as well as to amend his name as Bhailalbhai instead of
Babu and to include his father’s name as Prahladbhai Motidas Patel
instead of Prahladbhai Motira in the said birth certificate.
2. It
is the case of the petitioner that he was born on 10.09.1951 at Moje
Dangarva, Viramgam at Ahmedabad. At that time the entry was
recorded under the provision of the Registration of Birth & Death
Act. At that time the petitioner’s date of birth was written as
09.09.1951 instead of 10.09.1951 in his birth certificate. It is the
case of the petitioner that his name is written as Babu instead of
Bhailalbhai and father’s name is mentioned as Prahladbhai Moitra
instead of Prahladbhai Motidas Patel.
3. Though
served none appears for the petitioner.
4. Mr.
C.B. Upadhyaya, learned AGP has relied upon
a 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
is reflected as Babu in the Birth Certificate instead of Bhailalbhai
and father’s name is wrongly mentioned and the date of birth is
mentioned as 09.09.1951 instead of 10.09.1951. The petitioner
had also approached the respondent-authority for correction of the
name. However, the respondent-authority has not appreciated the said
aspect and has failed to exercise powers conferred upon it 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 v. State of Gujarat and others,
reported in 2008(1) GLR 884
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. 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 as Bhailalbhai
instead of Babu as also to amend the date of birth as 10.09.1951
instead of 09.09.1951 and his father’s name shall be mentioned as
Prahladbhai Motidas Patel.
7. For
the foregoing reasons, the present petition succeeds and is
accordingly, allowed. 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 as
Bhailalbhai instead of Babu as also to amend the date of birth as
10.09.1951 instead of 09.09.1951 and his father’s name shall be
mentioned as Prahladbhai Motidas Patel 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//
Top