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2015 DIGILAW 243 (GUJ)

MANJI MEGHJI MEPANI v. STATE OF GUJARAT

2015-02-27

VIPUL M.PANCHOLI

body2015
JUDGEMENT 1. Rule. Rule is made returnable forthwith. Learned A.P.P. Ms. H.B. Punani waives service of notice of Rule for respondents. With the consent of learned advocates for the parties, petition is taken up for final hearing. 2. This petition is filed under Article 227 of the Constitution of India wherein the petitioner has prayed that the order dated 9.4.2014 passed by the learned 4th (Adhoc) Judicial Magistrate First class, Bhuj in Criminal Miscellaneous Application No. 834 of 2013 and the order dated 30.9.2014 passed by learned Additional Sessions Judge, Bhuj in Criminal Revision Application No.46 of 2014 be quashed and set aside. 3. Heard learned advocate Ms. Neha Shukla for learned advocate Shri Kirtidev R. Dave for the petitioner and the learned A.P.P. Ms. Punani for the respondents. 4. Learned advocate for the petitioner submitted that the petitioner has filed an application under Section 13 of the Births and Deaths Registration Act, 1969 for registration of his birth. Said petition was filed before the learned 4th (Adhoc) Judicial Magistrate First Class, Bhuj which was registered as Criminal Miscellaneous Application 834 of 2013. Along with the said application the petitioner submitted various documents, including a copy of the passport and driving licence of the petitioner. During the course of the aforesaid proceedings, petitioner gave his deposition and examined two other witnesses namely Dasharathbhai Nai and Naran Mepari. Learned advocate further submitted that a public notice was also issued in the newspaper as per the requirement, and objections were also invited. In pursuance to the said public notice, nobody has given any objections. Thereafter the learned Magistrate passed the impugned order on 9.4.2014 whereby the application of the petitioner has been dismissed. The petitioner has therefore challenged the said order by filing Criminal Revision Application No.46 of 2014 before the learned Additional Sessions Court, Kutch Bhuj. However, the revision application is also dismissed by the learned Sessions Judge by an order dated 30.9.2014. Learned advocate for the petitioner submitted that both the impugned orders are bad, illegal and perverse, and therefore the same may be quashed and set aside. Learned advocate submitted that both the courts below have not properly appreciated the documentary evidence as well as oral evidence produced before the said courts, and therefore the impugned orders be quashed and set aside. Learned advocate submitted that both the courts below have not properly appreciated the documentary evidence as well as oral evidence produced before the said courts, and therefore the impugned orders be quashed and set aside. Learned advocate for the petitioner further submitted that the courts below have also failed to consider the provisions of law, and thereby wrongly rejected the application given by the petitioner. Learned advocate referred to the public notice issued in Kutchmitra daily newspaper on 21.1.2014, and submitted that in pursuance to the publication of the said notice in the newspaper nobody has filed any objection. She has further referred to the copy of the passport as well as the driving licence of the petitioner. In both the aforesaid documents birth date of the petitioner is recorded as 12.10.1948. Learned advocate further referred to the deposition given by the petitioner as well as the witnesses, and submitted that from the said deposition also it is clear that birth date of the petitioner is 12.10.1948. However, at the relevant time the said birth date was not registered before the concerned authority. Now the birth certificate issued by the concerned authority is required for getting OCI passport, and therefore when the petitioner has made an inquiry from the concerned Gram Panchayat, it was revealed that the said Panchayat is not having the record with regard to the birth date of the petitioner, and therefore the petitioner was compelled to file application under Section 13 of the Births and Deaths Registration Act. The petitioner is aged about 66 years, and therefore only with a view to get OCI passport such document is required. However, the learned Magistrate as well as the revisional court have failed to consider the aforesaid aspects of the matter, and therefore the impugned orders be quashed and set aside, and thereby the concerned authority be directed to issue birth certificate to the petitioner showing birth date of the petitioner as 12.10.1948. 5. On the other hand learned A.P.P. Ms. Punani submitted that both the courts below have not committed any error while dismissing the application of the petitioner. No error is committed by the courts below, and therefore this Court may not interfere with the said orders while exercising powers under Article 227 of the Constitution of India. The scope of judicial review is very limited, and therefore this petition be dismissed. 6. No error is committed by the courts below, and therefore this Court may not interfere with the said orders while exercising powers under Article 227 of the Constitution of India. The scope of judicial review is very limited, and therefore this petition be dismissed. 6. I have considered the rival submissions canvassed on behalf of the learned advocates for the parties, and also gone through the documentary as well as oral evidence produced on record. From the documentary as well as oral evidence, it is revealed that the petitioner has filed an application before the learned Magistrate court under Section 13 of the Births and Deaths Registration Act. The petitioner is aged about 66 years. After filing of the said application, a public notice was issued in Kutchmitra daily newspaper and objections were invited. However, nobody has filed any objection with regard to the application of the petitioner. It is specific case of the petitioner that he was born on 12.10.1948. However, because of illiteracy, the parents of the petitioner had not registered the said date before the concerned Panchayat. From the documentary evidence, i.e. copy of passport as well as the driving licence issued by the concerned authorities in favour of the petitioner it is revealed that the date of birth of the petitioner is 12.10.1948. Petitioner is having passport, which is issued by United Kingdom of Great Britain and Northern Ireland. Similarly, the driving licence is also issued by the concerned authority of London. In both the aforesaid documents, as observed hereinabove, the date of birth of the petitioner is stated as 12.10.1948. The petitioner has also given his deposition before the learned Magistrate. The deposition of the elder brother of the petitioner is also recorded by the learned Magistrate Court at Exh.14. In the said deposition, the elder brother of the petitioner is specifically stated that birth date of the petitioner is 12.10.1948. From the aforesaid documentary as well oral evidence, it is crystal clear that birth date of the petitioner is 12.10.1948. However, because of the non-registration of the said birth date in the record of the Panchayat or because of the fact that the said record is not available in the Panchayat, petitioner was required to file application under Section 13 of the Births and Deaths Registration Act. However, because of the non-registration of the said birth date in the record of the Panchayat or because of the fact that the said record is not available in the Panchayat, petitioner was required to file application under Section 13 of the Births and Deaths Registration Act. In the application given by the petitioner, he has specifically stated that the birth certificate is required for getting OCI passport, and therefore when the petitioner is aged about 66 years and a retired person, and when such birth certificate is required for a particular purpose, the learned Magistrate ought to have allowed the said application given by the petitioner. However, the learned Magistrate has committed grave error by not considering the documentary as well as oral evidence on record. Even the revisional court has also not properly appreciated the aforesaid important aspects of the matter, and therefore both the impugned orders are required to be quashed and set aside. 7. In view of the aforesaid observations and discussion, the impugned order dated 9.4.2014 passed by the learned 4th (Adhoc) Judicial Magistrate First class, Bhuj in Criminal Miscellaneous Application No. 834 of 2013 and the order dated 30.9.2014 passed by learned Additional Sessions Judge, Bhuj in Criminal Revision Application No.46 of 2014 are hereby quashed and set aside. Respondent No.2 is hereby directed to issue birth certificate to the petitioner reflecting 12.10.1948 as his birth date as mentioned in the documentary evidence produced by the petitioner. With these observations and directions, the petition is allowed. Rule is made absolute. Direct service is permitted.