Gujarat High Court
Maheshchandra Ishwarlal Rana vs State
MAHESHCHANDRA ISHWARLAL RANA....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 2347 of 2013
APPROVAL AND SIGNATURE:
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
Reporters of Local Papers may be allowed to see the judgment ?
be referred to the Reporter or not ?
their Lordships wish to see the fair copy of the judgment ?
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
it is to be circulated to the civil judge ?
OF GUJARAT THRO SECRETARY & 1....Respondent(s)
PP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
ROHAN YAGNIK AGP for the Respondent(s) No. 1
KI SHAH, ADVOCATE for the Respondent(s) No. 2
MR.JUSTICE RAJESH H.SHUKLA
Learned AGP Shri Rohan Yagnik for respondent no.1-State and learned counsel, Shri K.I. Shah for the respondent no.2 waive service of notice of rule.
The present petition has been filed by the petitioner under Article 226 of the Constitution of India as well as under the provisions of the Gujarat Registration of Birth & Death Act, 1969 for quashing and setting aside the impugned order dated 16.01.2013 (Annexure-H) passed by the respondent no.2 and also for directing the respondent authorities to correct the date and name of the petitioner in his birth certificate on the grounds stated in the memo of petition.
Heard learned counsel appearing for the respective parties.
Learned counsel, Shri Majmudar has referred to the papers and submitted that the date of birth of the petitioner has been recorded as 01.05.1953 instead of 03.05.1953 and name has also been recorded as Mahesh instead of Maheshchandra . He submitted that the application was made by the petitioner to the respondent no.2-authority for correction of the entry in the record including the birth certificate produced at Annexure-A, however, same has not been considered by the respondent no.2, which has led to filing of the present petition. Learned counsel, Shri Majmudar submitted that earlier petition being Special Civil Application No.368/2012 was filed, wherein the High Court by an order dated 17.01.2013 directed the respondent authorities to decide the representation of the petitioner, however, same has been returned down by impugned order dated 16.01.2013 and, therefore, the present petition has been filed.
Learned counsel, Shri Majmudar submitted that the respondent no.2-authority has failed to consider other documentary evidence including the school leaving certificate and the passport and also in PAN Card and driving license, wherein dete of birth of the petitioner is recorded as 01.05.1953. Therefore it has been submitted that the present petition may be allowed.
Learned counsel, Shri Majmudar has referred to and relied upon the judgment reported in 2008 (1) G.L.H.
556 in case of Nitaben Nareshbhai Patel Vs. (The) State of Gujarat & Ors. and pointedly referred to the observations made therein. He has also referred to Section 15 of the Act read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 and submitted that the present petition may be allowed.
Learned AGP Shri Rohan Yagnik has also submitted that the birth certificate is issued on the basis of the record from the entry in the birth and death register and, therefore, if there are two different dates, it is a matter of appreciation of evidence, which could be considered on the basis of the material and evidence before the competent court.
Though the submissions have been made, it is required to be considered in light of the statutory provisions. As per Section 15 of the Act of 1969, the provision is made for correction and cancellation of an entry in the register of birth and death, meaning thereby, the respondent no.2-Registrar is empowered for making such entry if it is proved to the satisfaction as per the Rules made by the State Government.
Rule 11 of the Rules of 2004 provides for correction or cancellation of entry in the register of birth and death. Rule 11(4) provides as under :-
(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 section 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.
Therefore, it clearly provides that if anyone asserts that entry in the register of birth and death is erroneous and the Registrar may correct such entry in such exercise of discretion under Section 15 of the Act of 1969 as provided in this Rule upon production of that person a declaration setting forth the nature of error with affidavits of two credible person having known about the fact. Therefore, when the petitioner claims to make correction in the entry regarding the date and name of the petitioner with supporting documents, there is no reason to decline any such request on the ground as stated in the impugned order.
A useful reference can also be made to the judgment of the High Court (Coram : Anant S. Dave, J.) in case of Nitaben Nareshbhai Patel (supra) wherein these very provisions have been considered in detail. In the said judgment it has been observed in Para No.17 as under :-
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.
A useful reference can also be made to the observation of this Court reported in 2011 (2) GLH 455, wherein it has been observed that Section 15 read with Rules 11(4) and 11(5) give this power to the Registrar and in fact, it cast obligation upon the Registrar to make such correction after having been satisfied on the basis of the documentary evidence to make correction.
Therefore considering the aforesaid settled legal position, the present petition deserves to be allowed.
In the circumstances, the present petition stands allowed in terms of Para No.23(A). The impugned order dated 16.01.2013 (Annexure-H) passed by the respondent no.2 is hereby quashed and set aside. The respondent no.2 is directed to correct the date of birth of the petitioner as 01.05.1953 instead of 03.05.1953 and name of the petitioner as Maheshchandra instead of Mahesh on verification within a period of four weeks from the date of the receipt of the order.
Rule is made absolute to the aforesaid extend. Direct service is permitted.
(RAJESH H.SHUKLA, J.) Gautam Page of 8