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2015 DIGILAW 2 (GUJ)

KRUPABEN RASHIKBHAI PATEL v. STATE OF GUJARAT

2015-01-05

ABHILASHA KUMARI

body2015
JUDGMENT 1. Rule. Mr. P.P. Banaji, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1. Respondent No.2 Chauhan Rohitkumar Babaldas, Registration Officer and Talati-cum-Mantri, Oran Gram Panchayat, is present in person and accepts notice of Rule. He prays that appropriate orders may be passed in the matter. 2. This petition under Article 226 of the Constitution of India has been preferred with the following prayers: “A) Admit this petition; B) Allow this Petition by issuing a writ of Mandamus or any other appropriate writ, order or direction, and thereby be pleased to quash and set aside the order dated 19/08/2014 passed by the Talati cum Mantri, Oran Gram Panchayat Anvarpura (Oran); C) Further be pleased to hold that the respondent authorities are empowered to make correction in the birth certificate and thereby, be pleased to direct the respondent no. 2 to exercise such powers by issuing a birth certificate to the petitioner with her correct date of birth i.e. 20/08/1992 instead of 22/10/1992; D) Pending admission and till final disposal of this petition be pleased to direct the Respondent Authorities to issue a birth certificate to the petitioner with her correct date of birth i.e. 20/08/1992 instead of 22/10/1992; E) Grant such other and further relief(s) as deemed fit in the interest of justice.” 3. The brief facts of the case are that the petitioner was born at Village Anvarpura (Oran), Taluka Prantij, District Sabarkantha, on 20.08.1992. According to the petitioner, in all her relevant documents, such as, School Leaving Certificate, Voter’s I.D. Card, her date of birth is mentioned as 20.08.1992. However, by an inadvertent mistake, her date of birth in the Birth Certificate has been wrongly mentioned as 22.10.1992 instead of 20.08.1992. In order to correct the discrepancy, the petitioner made an application to respondent No.2 dated 14.08.2014. By the impugned order dated 19.08.2014, respondent No.2 rejected the application of the petitioner without assigning any reasons. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 4. Mr. Akash R. Patel, learned advocate for the petitioner, submits that the impugned order passed by respondent No.2 deserves to be quashed and set aside as the said respondent has not exercised the jurisdiction vested upon him to correct an erroneous date in the Birth Certificate. 4. Mr. Akash R. Patel, learned advocate for the petitioner, submits that the impugned order passed by respondent No.2 deserves to be quashed and set aside as the said respondent has not exercised the jurisdiction vested upon him to correct an erroneous date in the Birth Certificate. As such, the said respondent has failed to discharge his statutory duties and to exercise the power conferred upon him by way of the statute, which has resulted in serious miscarriage of justice. 5. It is submitted that this issue is no longer res integra and this Court has, in the case of Nitaben Nareshbhai Patel v. (The) State of Gujarat and Ors. 2008(1) GLH 556 , held that when the Competent Authority fails to exercise the powers conferred by the statute, a writ of mandamus can certainly be issued to such authority to act in accordance with the provisions of the statute. It is, therefore, submitted that the prayers made in the petition be granted. 6. Mr. P.P. Banaji, learned Assistant Government Pleader, submits that in view of the principles of law enunciated in the judgment of Nitaben Nareshbhai Patel v. (The) State of Gujarat and Ors. (supra), the Court may pass an appropriate order. 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and documents annexed thereto, including the impugned order. In this context, it would be pertinent to refer to the provisions of Section 15 of the Act, which confers the power of correction or cancellation of an entry in the Register of Births and Deaths. The said provision reads as below: “15. Correction or cancellation of entry in the register 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 correct 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. In addition thereto, reference may be made to Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004, which lays down the procedure for correction or cancellation of an entry in the Register of Births and Deaths. This rule is reproduced as below: "11. Correction or cancellation of entry in the register of births 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 section 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 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. (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. (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 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 section 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 section 8 or section 9 of the Act.” 9. A combined perusal of Section 15 and Rule 11, as reproduced above, leaves no manner of doubt that respondent No.2 is vested with the power to make a correction in an entry in the Register of Births and Deaths and, therefore, in the Birth Certificate. 10. In Nitaben Nareshbhai Patel v. (The) State of Gujarat and Ors. (supra), this Court has exhaustively dealt with the refusal of the Competent Authority to exercise power in cases similar to the present one and has held as below: “26. Thus in the nutshell, what emerges from the factual and legal submissions made and conclusions arrived in earlier paragraph is as under: (A) In view of the provisions of Section 28 of the Repealed Act of 1886 and provisions contained in Sections 29 and 31 of the Act of 1969, by which erstwhile provision of correction/cancellation of entries in the register of birth and death, which is not in derogation, remained alive in Section 15 of the new Act and, therefore, the authority is empowered to correct erroneous entries in the register of birth and death, even in a case where registration was made prior to 1.4.1970 i.e. the date on which new Act of 1969 came into force and correction of error is sought for later on. (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. (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) The above proposition of law stand fortified by the decisions of this Court in two Letters Patent Appeal Nos. 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) The above proposition of law stand fortified by the decisions of this Court in two Letters Patent Appeal Nos. 195/1999 and 231/2001 in the case of Mulla Faizal & Faxilabanu Suleman Ibrahim and Registrar, Birth and Death Rajkot Municipal Corporation (Supra), there is no doubt that the expression erroneous in form or substance in Section 15 of Act of 1969 is an expression of vide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Register of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of Act of 1969 and Rule 11 (1) to (7) of the State Rules, 2004. (E) When the authority empowered to exercise power under Section 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. (G) That even Section 27 of the Act of 1969 is pertaining to delegation of powers and Section 32 empowers to concerned Government to remove the difficulties and, therefore, the appropriate Government or any authority upon whom the powers are delegated can act in accordance with scheme of the Act and appropriate directions can be given accordingly. (H) So far as matters arising out of the Regulation 12(A) of the Gujarat Secondary Education Regulation, 1974 is concerned, law as on date is governed as in the case of Soorat Jessomal Khanchandani (supra) and Thakore Nilesh Shishirbhai (supra). I. So far as the matters arising out of the Passport Act, 1967 and Rules, 2000, is concerned, law as on date is governed as in the case of REGIONAL PASSPORT OFFICER (supra) in view of admission of L.P.A. No.1673/2006 by an order dated 30.7.2007 by which the judgment of the learned Single Judge in Special Civil Application No.2716/2006 is stayed.” (emphasis supplied) 11. The principles of law enunciated in the above quoted judgment would squarely apply in the present case. It is disheartening to note that even though this Court has, on various occasions, rendered a plethora of judgments setting aside the orders whereby the Competent Authority has refused to exercise the jurisdiction vested in him by the statute, the same kind of stereotyped orders are being passed time and again, refusing to exercise the power vested by law. It would, therefore, be appropriate to direct the State Government to take appropriate steps, so that the judgments rendered by this Court in this regard are brought to the notice of the competent authorities under the Act so as to put an end to continuous multifarious litigation on an issue that has already been decided. Respondent No.1 is, therefore, directed accordingly. 12. Insofar as the impugned order is concerned, it is clear from the perusal thereto that respondent No.2 has rejected the application of the petitioner and has not exercised the power vested in him by the statute without assigning any reasons whatsoever. When the statute has conferred power upon respondent No.2, it is incumbent upon him to exercise judiciously and in accordance with law. No reason whatsoever, leave alone any justifiable reason has been assigned by respondent No.2 in the impugned order, for the rejection of the application of the petitioner. Hence, the impugned order, being a totally unreasoned one, deserves to be quashed and set aside. 13. Accordingly, the petition is partly allowed. The impugned order dated 19.08.2014, is quashed and set aside. Respondent No.2 is directed to decide the application made by the petitioner afresh and in accordance with law, within a period of four weeks from the date of the receipt of a copy of the order of this Court. 14. Rule is made absolute to the above extent. There shall be no orders as to costs. Direct Service of this order is permitted.