Gujarat High Court
Patel vs Talati on 18 August, 2010
Gujarat High Court Case Information System
SCA/9571/2010 7/ 7 ORDER
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION No. 9571 of 2010
ROOPANG GIRISHBHAI - Petitioner(s)
CUM MANTRI & 1 - Respondent(s)
KEYUR A VYAS for
MR AMIT PATEL AGP for
1. Heard learned advocate Mr.Keyur A. Vyas for petitioner and learned AGP Mr.Amit Patel for respondents.
2. The petitioner was born on 12.2.1992 at Rancharda village, Taluka Kalol, District Gandhinagar. The petitioner is a student and study of the petitioner is still continued. That in school leaving certificate, the correct date of birth of petitioner is shown as '12.2.1992'. Copy of school leaving certificate is annexed to present petition. But by mistake in Birth & Death Registration Certificate, the date of birth of petitioner is recorded as '12.2.1993', a copy of which is also annexed to present petition. Therefore, petitioner has made an application to respondent No.1 for correcting the date of birth in birth register on the basis of school leaving certificate on 2.8.2010. Along with said application, an affidavit is also enclosed. The copy of said application is also annexed to present petition. The petitioner has also produced a letter of Income Tax Pan Service Unit (Annexure-C, Page-11) wherein also, the date of birth of petitioner is recorded as '12.2.1992'. Learned advocate Mr.Vyas submitted that in spite of aforesaid application made to respondents, no decision is taken so far. Therefore, present petition is filed.
3. Learned advocate Mr.Vyas has placed reliance upon a decision of this Court rendered in SCA No.12822 of 2004 dated 8.10.2004. Relevant observations of aforesaid decision are in Para.2 to 11, which is quoted as under :
2. By way of this petition the petitioner has prayed for a direction to the respondent authorities to accept and entertain the application of the petitioner for correcting his name as Arunkumar instead of Bhalabhai and also his date of birth as 8.8.1969 instead of 5.8.1989 in the Register maintained under the provisions of Registration of Birth and Deaths Act, 1969 and to issue necessary amended certificates accordingly.
3. According to the petitioner, he was born at village Paliyad, Taluka Kalol, District Gandhinagar on 8.8.1969. At that time as his pet name was Bhalabhai , the same was mentioned before the authority and therefore the same was reflected in the birth certificate. The petitioner further contended that by mistake the birth date of the petitioner was mentioned as 5.8.1969 instead of 8.8.1969. Petitioner contended that in all other documents like school leaving certificate, ration card, etc. his name is mentioned as Arunkumar Mohanbhai Patel . Therefore the petitioner approached the respondent authorities to get it corrected his name and date of birth in the birth certificate. The respondent authorities refused to entertain the application of the petitioner and therefore the petitioner has filed the present petition with the aforesaid prayer.
4. Heard the learned counsel for the respective parties. Learned counsel for the petitioner relied upon a decision of this Court in the case of Dr. Sukumar Vs. District Registrar, Births & Deaths, reported in 1993(1) GLR 93, wherein while considering sections 14, 15 and 16 of the said Act it is held that there is a power to correct an entry incorrectly made.
5. Learned counsel next relied upon a decision of this Court in the case of B.K. Suthar Vs. State and Another, reported in 1983(2) GLR 932 wherein it is held as under:
On a plain reading of rule 171 of the Bombay Civil Services Rules, it is manifestly clear that the government servant has a right to the correction of entry either on the ground of apparent clerical error or any other ground including the ground of want of care on the part of the person responsible for making the entry.
The rule nowhere provides for any limitation or making such an application for correction of entry. It is, therefore, beyond the powers and the authority of the government to introduce a rule of limitation by an executive direction contained in the Government resolution since the Bombay Civil Services Rules are Rules enacted in exercise of powers conferred by proviso to Art.309 of the Constitution of India.
6. Learned counsel for the petitioner next relied upon a decision in the case of Mulla Faizal Vs. State, reported in 2002(2) GLR 1553 wherein it is held that the authorities, under the provisions of section 15 read with Rule 12 of the Rules framed thereunder, are duty-bound in law to make necessary enquiries and if necessary to obtain medical opinion to grant change of entry in the Birth register regarding the sex of the appellant and to issue to him a corrected birth certificate.
7. Learned counsel for the petitioner also relied upon a decision in the case of Vimal M. Patel Vs. State of Gujarat, reported in 2001(3) GLR 2484, wherein it is held that the Registrar is entitled to hold an inquiry for this purpose and on the basis of material on record he is not powerless to make correct entries.
8. Learned counsel for the petitioner also relied upon a decision in the case of Dipika Arvindkumar Pancholi Vs. State of Gujarat and Another, reported in 2003(1) GLR 515, wherein it is held that since the statute is silent, it is the case of casus omissi, I.e.
circumstances concerning which the Act is silent, and therefore the powers envisaged under Rule 11 can be extended to enter the name even after a period 15 years.
9. Learned counsel for the petitioner also relied upon a decision of the Division Bench of this Court in Letters Patent Appeal No.231 of 2001, wherein it is held that no direction can be issued by any authority to take away the powers of the Registrar of making correction in entreis which are erroneous in form or substance in the Register.
10. Learned counsel for the respondent is not able to contest the aforesaid settled law.
11. In the premises aforesaid, the petition is partly allowed. The respondent authority is directed to entertain the application submitted by the petitioner for correcting his name as Arunkumar instead of Bhalabhai and also the date of birth as 8.8.1969 instead of 5.8.1969 in the Register maintained under the provisions of Registration of Births & Deaths Act, 1969 within a period of four weeks from the date of receipt of writ of this Court. Rule is made absolute to the aforesaid extent with no order as to costs. D.S.
4. He also relied upon a decision of the Division Bench of this Court in the case of Regional Passport Officer v. Kokilaben w/o Jashwantlal Panchal and others, reported in 2009 (2) GLR 1246. Relevant Para.9 to 12 are quoted as under :
9. We may indicate that Registration of Births and Deaths Act, 1969 was enacted to provide for births and deaths and matters connected therewith, which came into force with effect from 1.4.1970. Chapter 3 of the Act provides for registration of births and deaths and Section 13 is pertaining to delayed registration of births and deaths. Sub-section (3) of Section 13 empowers a Magistrate of the First Class to pass an order in case if birth or death is not registered within one year by its occurrence. Initial registration of births and deaths within a period of one year remain with the authority as provided under sub-section (1) and sub-section (2) of Section 13 of the Act. Section 15 of the Act deals with correction or cancellation of entries in the register of Births and Deaths. Section 15 of the Act, read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 provides for detailed procedure to be followed. It says where 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 or cancel the entry by suitable entry in original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation. Thus, it is clear that if it is proved to the satisfaction of the Registrar that entry being erroneous in the register of births and deaths, and it has been fraudulently or improperly made, he can make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under Section 25 of the Act and on hearing from him, take necessary action in the matter. Learned Single Judge of this Court in Nitaben Nareshbhai Patel Vs. State of Gujarat 2008 (1) G.L.R 884 elaborately considered the scope of above mentioned provisions, and the learned Single Judge also examined at length the provisions of Gujarat Secondary Education Act, 1972 and Gujarat Secondary Education Regulation, 1974. With regard to the change of date of birth entered in the school record, referring to Regulation 12(A), it was stated that if the student has actually left the school, no change can be effected in the record of the school. For making a change in the name, as provided under Regulation 12(5)(1), an application in prescribed proforma with certain documents as narrated in Regulation 5(1)(A) to (D) are required to be submitted. Regulation 12(6) deals with correction of date of birth, which is permissible only when student is studying in the school, and thereafter it can be corrected by the concerned Magistrate of First Class, upon proof of correct birth date.
10. Reference may also be made to the order passed by the Division Bench of this Court in Letters Patent Appeal No. 699 of 2003 in Special Civil Application No. 8122 of 2003, decided on 11.8.2003 (unreported). In Minor Jagdishbhai Prabhatbhai Gohil Vs. State of Gujarat and others, referring to Gujarat Secondary Education Regulation, this Court took the view that the only remedy available to the party with regard to correction of date of birth/place of birth is to approach the authority for redressal of his grievance as provided under Section 13 of the Act.
11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder.
12. We are therefore, clearly of the view that Passport Authorities are not expected to make their own independent enquiry when there is a dispute or difference with regard to the date of birth, place of birth or name entered in the Passport, especially when entries were once made on the basis of records produced by the Passport holder. If there is any mistake on the records already produced, based on which entries were already made, then it is for the party who seeks correction to produce documents after carrying out necessary correction by the concerned statutory authorities, Judicial Magistrate or the Civil Court, as the case may be. Passport Authorities are always competent to direct the parties to produce relevant documents either from the authorities functioning under the Births and Deaths Register or from the Judicial Magistrate or from the Civil Court, as the case may be. On production of corrected documents, Passport Authorities will immediately carry out necessary correction in the Passport.
5. In view of above observations made by the Division Bench of this Court, it is directed to respondent No.1 herein to consider the application made by petitioner dated 2.8.2010 and also consider the original documents which will be produced by petitioner as well as affidavit of father of petitioner and, thereafter to pass appropriate reasoned order with respect to correcting the date of birth in birth register based on school leaving certificate, within a period of two months from date of receiving copy of present order and communicate the decision to the petitioner.
6. In view of aforesaid observations and directions, present petition is disposed of without expressing any opinion on merits. Direct service is permitted.
(H.K.RATHOD,J.) (vipul) Top