Being born in Nepal, you become a citizen of Nepal by birth so the information what you provided with the passport office in India about your birth place is false especially being a foreign citizen at the time of applying for Indian passport.

What prompted you now to change your birth place in your passport?

Did you enquire from the passport office giving he details about your issue?

Without a proof for your birth in Nepal, you cannot authenticate the claim being made now, especially at this juncture wherein your parents are Indians.

1) under Section 15 of the Registration of Births and Deaths Act, 1969, the competent authority has the discretion to correct and cancel the entries in the said registers.

2) 1) if you were born in hospital on basis of hospital records you can have your birth certificate rectified by court order

3) further an affidavit oif your parents would have to be enclosed mentioning your correct place of birth

Gujarat High Court

Maheshchandra Ishwarlal Rana vs State

MAHESHCHANDRA ISHWARLAL RANA....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY

C/SCA/2347/2013

JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CIVIL APPLICATION NO. 2347 of 2013

FOR

APPROVAL AND SIGNATURE:

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA : Sd/-

=======================================================

1

Whether

Reporters of Local Papers may be allowed to see the judgment ?

NO

2

To

be referred to the Reporter or not ?

NO

3

Whether

their Lordships wish to see the fair copy of the judgment ?

NO

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 ?

NO

5

Whether

it is to be circulated to the civil judge ?

NO

=======================================================

MAHESHCHANDRA

ISHWARLAL RANA....Petitioner(s)

Versus

STATE

OF GUJARAT THRO SECRETARY & 1....Respondent(s)

=======================================================

Appearance:

MR

PP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1

MR

ROHAN YAGNIK AGP for the Respondent(s) No. 1

MR

KI SHAH, ADVOCATE for the Respondent(s) No. 2

=======================================================

CORAM:

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA

Date

: 24/04/2013

ORAL

JUDGMENT

Rule.

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.

Sd/-

(RAJESH H.SHUKLA, J.) Gautam Page of 8

1. When you were born in Nepal the court cannot order the authorities to incorporate India as your country of birth in your passport.

2. The court can order only a rectification of error in the passport. The rectification so sought has to be founded on documentary evidence which can support the claim. If you are armed with documentary proof which can show that India is the country you were born in then alone you can knock at the doors of the court.

3. You are a citizen of India if at the time of your birth your father was a citizen of India. The fact that you were born in Nepal does not have a bearing on your Indian citizenship.

1. You shall have to file a declaratory suit praying for declaration that you were born in Nepal on that particular date,

2. For filing the said suit, you shall have to submit adequate evidence in support of your said claim.

1. In the instant case, file a declaratory suit before a Court in Nepal with the same prayer,

2. If the Court asks for supporting evidence, you should submit that at that time there was no infrastructure in Nepal to record such birth,

3. You can produce witnesses being your parents and your the then neighbours in support of your your claim and wait for Court order.

You have given the details about the eligibility for Indian citizenship, but that is not a dispute now. You are already an Indian by citizenship. Your problem is that you wanted to change the place of birth in the passport. For any proposal to amend or change the existing record in any document more so in the passport, documentary evidence substantiating the genuineness of the claim made or the proposal made to change has to be produced to the satisfaction of the authority. However, since you have already obtained a passport with place of birth as India, the same is going on peacefully and uninterrupted, what is the problem in continuing with it especially when you are an Indian citizen by birth?

Let your passport remain the same and continue with it without disturbing the status or trying to change the details without proper evidence which may backfire or alternately you can make an affidavit duly notarised giving the facts and submit to the passport authorities for the needful to be done.

what are the reason that you wanted to change the birth place? India to Nepal?

when you fapplied the citizenship then what are the documents filed by you/your parents to get Indian Citizenship?

anywhere in Indian authorities ever you had mentioned the birth place as Nepal or NOT?

if yes then on what ground you mentioned your birth place in India at the time of applying the passport?