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SCA/15467/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15467 of 2010
=========================================================
PATEL
CHIMANBHAI LALBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 1 - Respondent(s)
=========================================================
Appearance
:
MR.KIRIT
R CHAUDHARI for
Petitioner(s) : 1,
MS MAITHILI MEHTA, AGP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 09/12/2010
ORAL
ORDER
Heard
learned counsel for the petitioner and learned AGP Ms.Mehta for the
State appearing on advance copy.
Petitioner
seeks correction of date of birth of his sister in the birth
certificate. It is his case that the date of birth recorded in the
birth certificate is 4.9.58 instead of 1.5.57.
Counsel
for the petitioner submitted that he applied to the authority under
the Birth and Death Registration Act. Such application was not
entertained. He also applied to the Magistrate who also dismissed
the application as not competent.
Counsel
for the petitioner relied on a decision of the learned Single Judge
of this court in the case of Nitaben Nareshbhai Patel v. State
of Gujarat & ors. 2008(1)
GLR 884 wherein following observations have been made :
27. In
view of the above and also considering the prayers made in each of
the Special Civil Applications following is the order and direction
issued to the authority concerned.
(i)
In Special Civil Application No.23471/2007 the petitioner has prayed
to correct the name entered into the Birth and Death Register, which
the Chief Officer, Municipality of Bardoli has refused to correct the
name entered into the birth and death register on the ground that
clause 7-1 of the guideline of Birth and Death Registration Act, 1969
does not empower the authority, the order impugned deserves to be
quashed and set aside and order accordingly.
(ii) In
Special Civil Application Nos.23616/2007 and 21788/2007, the
petitioners have prayed to correct the date of birth of the
petitioners and to issue the fresh birth certificate to the
petitioners;
(iii) In
Special Civil Application NO.29164 the petitioner has prayed to
correct the name and date of birth of the son of the petitioner in
the birth record ;
(iv) In
Special Civil Application No.19896/2007 the petitioner has prayed to
correct the name of the petitioner’s son;
(v) In
Special Civil Application No.6352/2007 the prayer is with regard to
correcting date of birth of the petitioner and also name of the
father of the petitioner and;
(vi)
In Special Civil Application No. 28336/2007, the prayer of the
petitioner is with regard to quash and set aside the order dated
16.4.2007 passed by respondent No.1 on application dated 12.4.2007
and direct the respondents to effect the correction as sought in the
application.
(vii) That
so far as Special Civil Application No.28336/2007 is concerned, the
deponent of affidavit-in-reply has relied on Clause 7.1 and Clause
7.4 of the guidelines issued by the Commissioner of Health, Medical
Services and Medical Education, Govt. of Gujarat and has opposed
grant of any relief. The above reliance on the guidelines is
misplaced, in as much as, Section 15 of the Act of 1969, Rule 11 of
Rules, 2004 and even the above clause 5.8 clearly empower the
authority to correct/cancel any erroneous entry in the form and
substance. As laid down in the LPA No. 231/2001 in the case
Registrar, Birth and Death Rajkot Municipal Corporation (supra) no
guidelines dehors the statutory scheme can be framed by the authority
divesting or depriving such authority of the statutory duties
prescribed under the Act. Thus, a case is made out by the petitioner
to quash and set aside the impugned order and issuance of further
direction for correction as sought for in the application submitted
by the petitioner.
27.1. In
view of what is discussed and held in paragraphs 14 to 18 and
particularly in paragraph 26, the impugned order in Special Civil
Applications where prayer is made to quash and set aside is hereby
quashed and set aside in each of the petitions and respondents are
directed to exercise power vested with them.
27.2. In
light of the discussions and observations made in the judgment,
respondents are directed to exercise power vested into under Section
15 of the Act of 1969 and Rule 11 of 2004 pursuant to the
application preferred by the petitioners for correction as prayed for
by each of the applicant and as per application submitted before the
concerned authority preferably within six weeks from the date of
receipt of the order.
In
view of the above findings and conclusions, it would be open for the
person concerned to apply for correction of date of birth in the
birth certificate to the Authorities under the Birth and Death
Registration Act. If such application is filed within a period of
one week, the same may be decided expeditiously preferably within
eight weeks of its receipt on the basis of available material on
record in accordance with law. The petition stands disposed of
accordingly.
(Akil
Kureshi, J.)
(vjn)
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