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SCA/7994/2011 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7994 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 ?
=====================================================
PATEL
CHANDRAKANTBHAI SHANKARBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=====================================================
Appearance :
MR
JOITABHAI N PATEL for Petitioner(s) : 1,
Mr.J.K.Shah, learned
ASST.GOVERNMENT PLEADER for Respondent(s) : 1,
MR DEEPAK P
SANCHELA for Respondent(s) :
2,
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 21/07/2011
ORAL
JUDGMENT
1. Rule.
Mr.J.K.Shah, learned Assistant Government Pleader waives service of
notice of Rule for respondent No.1 and Mr.Deepak P.Sanchela, learned
advocate waives service of notice of Rule for respondent No.2. On the
facts and in the circumstances of the case and with the consent of
the learned advocates for the respective parties, the petition is
being heard and finally decided today.
2. This
petition under Article 26 of the Constitution of India has been filed
with the following prayers.
“(A)
YOUR LORDSHIPS may be pleased to admit and allow the Special Civil
Application.
(B)
YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or
certiorari or any other appropriate writ, order or direction
quashing and setting aside the order / letter No.132 of 11-12 dated
06-05-2011 issued by the respondent No.2 – Chief Officer,
Nagar Seva Sadan, Kapadwanj.
(C) YOUR
LORDSHIPS may further be pleased to direct the respondent No.2 –
Chief Officer, Nagar Seva Sadan, Kapadwanj to correct or change the
name of the petitioner from Mangar to Chandrakantbhai and Sir Name
from Patidar to Patel and to issue Birth Certificate with corrected
name as Chandrakant and Sir name as Patel to the petitioner in the
interest of justice.
(D) YOUR
LORDSHIPS may be pleased to pass any other order in the interest of
justice in the facts and circumstances of the case.”
3. Briefly
stated, the case of the petitioner is that he was born on 09-08-1960
at village Sonipura, Taluka Kapadwanj, District Kheda and the factum
of his birth was registered with the competent authority in the
Register of Births and Deaths, Kapadwanj. It is the case of the
petitioner that his name is actually “Chandrakantbhai”
but has been wrongly entered in the Register as “Mangar”.
It is also stated that the Surname of the petitioner is actually
“Patel” but has been entered as “Patidar in the
said Register. According to the petitioner, his correct name and
Surname, that is, Chandrakantbhai Patel is reflected in several
documents, such as the School Leaving Certificate, Ration Card,
Election Card, Mark-sheets of the SSC and HSC Examinations, Mark
sheets of the 3rd Year BA Examination and Passport and
PAN Card. Accordingly, the petitioner made an application on
18-10-2010 to respondent No.2 for change of his name and Surname in
the Register of Births and Deaths maintained by the said respondent.
By impugned order dated 06-05-2011, respondent No.2 has declined to
entertain the application made by the petitioner by stating that it
is not possible to effect the change in the name and Surname of the
petitioner. Aggrieved thereby, the petitioner has approached this
Court, by filing the present petition.
4. Mr.J.N.Patel,
learned advocate for the petitioner has submitted that at the time
of the registration of the birth of the petitioner his name and
Surname have been incorrectly recorded in the Register of Births and
Deaths. In view of the fact that all other important documents of the
petitioner such as School Leaving Certificate, Ration Card, Election
Card, Mark-sheets of the SSC and HSC Examinations, Mark sheets of the
3rd Year BA Examination and Passport and PAN Card etc. reflect the
correct name of the petitioner, that is, “Chandrakant Patel”,
the application made by the petitioner for change of his name and
Surname in the Register ought to have been entertained by respondent
No.2. It is further submitted that the petitioner has changed his
name from “Mangar” to “Chandrakant” and his
Surname from “Patidar” to “Patel” and the
necessary changes have been effected, as declared and published in
the Government Gazette Vol.LI. No.39, dated 30-9-2010/ASHVINA 8, 1932
at Sr.No.380 It is further submitted that the refusal of respondent
No.2 to exercise jurisdiction vested in him is unsustainable in law,
therefore, the prayers made in the petition may be granted.
5. I
have heard Mr.J.N.Patel, learned advocate for the petitioner,
Mr.J.K.Shah, learned Assistant Government Pleader for respondent No.1
and Mr.Deepak P.Sanchela, learned advocate for respondent No.2.
6. The
position of law, regarding correction or cancellation of an entry in
the Register of Births and Deaths is no longer res integra. In
Nitaben N.Patel v.
State of Gujarat, 2008 (1) GLR 884 this
Court has decided the issue whether, the competent authority has the
power to make a correction in the date of birth, as recorded in the
Register of Births and Deaths, or not.
7. At
this stage, it would be fruitful to advert to the relevant provisions
of law, namely, 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
Rules” for short).
Section 15 of the Act, reads as under:
“15.
Correction or cancellation of entry
in the registrar 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.”
8. Rule
11 of the Rules is reproduced hereinbelow:
“11.
Correction or cancellation of entry in the register of
berths 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.”
9. From
a combined reading of Section 15 of the Act and Rule 11 of the Rules,
there can be no manner of doubt that the competent authority, in this
case respondent No.2, is vested with the power to cancel or make a
correction of an entry in the Register of Births and Deaths
maintained by him, subject to it being proved to his satisfaction
that the same is required to be corrected or cancelled, as the case
may be. Necessary procedure to be followed in this regard has been
laid down in Rule 11.
10. Apart
from the above provisions of law, the legal position in this regard
has been propounded in the
judgment in Nitaben
N.Patel v. State of Gujarat (Supra),
where, after examining several relevant judgments, this Court has
exhaustively dealt with various contentions and contingencies arising
in cases, such as the present one. The relevant extract of the
judgment is reproduced hereinbelow:
“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)
11. Examined
in light of the statutory provisions reproduced hereinabove and the
principles of law culled out in the above-quoted judgment, it is
clear that respondent No.2 has been vested with power to entertain
the application made by the petitioner for change of the entry made
in the Register of Births and Deaths, regarding correction of his
name and Surname. The refusal of respondent No.2 to exercise the
powers vested in him under the Act and Rules, certainly calls for
interference of this Court in exercise of jurisdiction under Article
226 of the Constitution of India, especially when, in this case, no
cogent reason is reflected in the impugned order.
12. In
view of the afore-stated legal position, the impugned order dated
06-05-2011 passed by respondent No.2, is hereby quashed and set
aside. Respondent No.2 is directed to consider the application dated
18-10-2010 made by the petitioner for correction of his name and
Surname, as recorded in the Register of Births and Deaths. The said
application may be considered in light of the provisions of Section
15 of the Registration of Births and Deaths Act, 1969 and Rule 11 of
the Gujarat Registration of Births and Deaths Rules, 2004. The
decision thereupon, shall be taken by respondent No.2, in accordance
with law, within a period of four weeks from the date of receipt of a
copy of this order.
13. The
petition is allowed, in the above terms. Rule is made absolute,
accordingly. There shall be no orders as to costs.
Direct
service of this order is permitted.
(Smt.Abhilasha Kumari,J)
arg
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