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SCA/15668/2011 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15668 of 2011
=========================================================
PATEL
DHAVALKUMAR MAHENDRABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DK CHAUDHARI for
Petitioner(s) : 1,
MS ASMITA PATEL, ASST.GOVERNMENT PLEADER for
Respondent(s) : 1-
2,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date :
19/10/2011
ORAL ORDER
1. This
petition under Article 226 of the Constitution of India has been
filed, with the following prayers :
“(A) To
issue a writ of mandamus or any other appropriate writ,
order or direction
directing respondent No.2 to correct the birth date of the petitioner
as 01/09/1990 instead of 20/09/1990 and name as Patel Dhavalkumar
Mahendrabhai instead of Patel Gautamkumar Mahendrakumar in the birth
certificate.
(B) In
the birth register and accordingly, respondent No.2 may be directed
to issue a new correct birth certificate to the petitioner as
aforesaid;
(C) Pass
such other and further order in the interest of justice which may be
deemed fit to this Hon’ble Court.”
2. Briefly
stated, the case of the petitioner is that his name has wrongly been
mentioned in the Birth Certificate as ‘Patel
Gautamkumar Mahendrakumar’ whereas the correct name of
the petitioner is ‘Patel
Dhavalkumar Mahendrabhai’. Similarly, the correct date
of birth of the petitioner is 01.09.1990, which has been wrongly
reflected in the Birth Certificate as 20.09.1990. The petitioner made
an application to respondent No.2 for correction of his name and date
of birth that has been rejected by the said respondent by
communication dated 20.09.2011, on the ground that he does not have
the jurisdiction to make the necessary correction.
3. Heard
Mr.D.K.Chaudhari, learned advocate for the petitioner and perused the
averments made in the petition and documents annexed thereto. It is
submitted by the learned advocate for the petitioner that the
impugned communication of respondent No.2 is not in consonance with
Section 15 of
the Registration of Births and Deaths Act, 1969 (“The Act”
for short) and Rule 11 of the Gujarat Registration of Births and
Deaths Rules, 2004 (“The Rule” for short),
whereby the Competent Authority, which in this case is respondent
No.2, is vested with the power to make a correction in the entry in
the Register of Births and Deaths, maintained by him on it being
proved to his satisfaction that such a correction deserves to be
made. The learned advocate for the petitioner has further referred to
the judgment of this Court rendered in the case of Nitaben
Nareshbhai Patel Vs. State of Gujarat and others – 2008 (1) GLR
884, wherein it has been laid down that if
the Competent Authority does not exercise the jurisdiction vested in
him, as per Section-15 of the Act and Rule-11 of the Rules, a writ of
mandamus can be issued.
4. Having
heard the learned advocate for the petitioner, it would be pertinent
to refer to the relevant provisions of law. Section-15 of the Act
reads as under :
“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.”
4.1 Rule-11
of the Rules is reproduced hereinbelow :
“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.”
5. In
Nitaben N.Patel Vs. State of Gujarat and
others (Supra), this Court has culled out the following
principles of law :
“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)
6. From
a cumulative reading of the provisions of law mentioned hereinabove
in light of the principles of law laid down in the above-quoted
judgment, it is evident that respondent No.2 is vested with the power
and jurisdiction to make a correction in the entry regarding the name
and date of birth of the petitioner, in the eventuality that he is
satisfied that such a correction is required to be made.
7. In
view of the above, the ground on which the application of the
petitioner has been rejected, vide communication dated 20.09.2011,
namely, that respondent No.2 is not vested with the power to make the
necessary correction, is not in consonance with the provisions of law
or the principles of law enunciated in the above-mentioned judgment.
8. In
view of the above, the following directions would meet the ends of
justice :
Respondent
No.2 is directed to consider and decide the application made by the
petitioner dated 20.09.2011 afresh and, in accordance with law,
within a period of six weeks from the date of receipt of a copy of
this order.
The
petition is disposed of, in the above terms, without entering into
the merits of the case.
Direct
Service of this order is permitted.
(Smt.
Abhilasha Kumari, J.)
~gaurav~
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