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2017 DIGILAW 152 (GUJ)

Hasmukhbhai Chimanlal Ghiwala v. State of Gujarat

2017-01-20

R.M.CHHAYA

body2017
ORDER : R.M CHHAYA, J. Heard Mr. Siddharth Dave, learned advocate for the petitioner, Mr. Janak Raval, learned AGP for respondent no. 1 and Mr. Shivang Shah, learned advocate for respondent no. 2. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10.3.2016 issued by respondent no. 2 and has further prayed for a direction directing the respondent authorities to correct the birth certificate of the son of the petitioner by showing the correct date of birth as 3.8.1999 instead of 3.8.1998 3. Considering the issue involved in the petition and with consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal forthwith. 4. Following facts emerge from the record of the petition:— It is the case of the petitioner that his son, namely, Yash was born on 3.8.1999 It appears from the record that the birth certificate came to be issued, wherein it reflects that the date of birth is 3.8.1998 It appears from the record that on perusal of the school leaving certificate, the date of birth of the son of the petitioner is mentioned as 3.8.1999 It is further the case of the petitioner that due to inadvertent mistake, instead of 3.8.1999, the birth date is registered as 3.8.1998 It appears from the record of the petition that the petitioner made a representation to the respondent Municipality on 9.3.2016 and the respondent no. 2 vide impugned order dated 10.3.2016 has rejected the representation filed by the petitioner and hence, the petitioner has approached before this Court. 5. Learned advocate for the petitioner has taken this Court through the factual matrix arising out of this petition and has relied upon the recognized authenticated documents, wherein the date of birth is mentioned as 3.8.1999 It is submitted that the impugned order is passed without proper application of mind and in total disregard to the provision of Section 15 of the Act. Relying upon the ratio laid down in the case of Nitaben Nareshbhai Shah v. State of Gujarat reported in 2008 (1) GLH 884, it is contended that respondent no. Relying upon the ratio laid down in the case of Nitaben Nareshbhai Shah v. State of Gujarat reported in 2008 (1) GLH 884, it is contended that respondent no. 2 is the authority under Section 15 of the Act read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004, the impugned order is bad in law and the same deserves to be quashed and set aside. 6. Per contra. Mr. Janak Raval, learned AGP has submitted that as per the ratio laid down by this Court in the case of Nitaben Nareshbhai Shah (supra), respondent no. 2 is the authority under Section 15 of the Act and the State of Gujarat has no role to play. Mr. Shivang Shah, learned advocate for respondent no. 2 has supported the impugned order. 7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 8. Before considering the submissions made by the learned advocates appearing for the respective parties, it would be evident to note that the petitioner has annexed authenticated documents, wherein the date of birth is mentioned as 3.8.1999 It is no doubt true that the State Government has come out with a Resolution dated 18.2.2016, however, respondent no. 2 is the authority under Section 15 of the Act and the circular would not override in any manner the jurisdiction and power with respondent no. 2 as also held by this Court in the case of Nitaben Nareshbhai Shah (supra) and also in the case of Madhavi Sandip Patel v. Registrar, Birth and Death Department, reported in 2015 (2) GLR 1416 . 9. This Court in the case of Madhavi Sandip Patel (supra), relying upon the case of Nitaben Nareshbhai Shah (supra), has passed similar order and was pleased to direct the concerned authority to consider and decide the application of the petitioner/s afresh taking into consideration the materials available on record. 10. As observed in the case of Nitaben Nareshbhai Shah (supra), respondent No. 2 - authority has power to make necessary correction/s in the record pertaining to the date of birth. Even at the cost of repetition, it would be appropriate to refer to the observations of this Court in the case of Nitaben Nareshbhai Shah (supra), which are as under:— “26. Even at the cost of repetition, it would be appropriate to refer to the observations of this Court in the case of Nitaben Nareshbhai Shah (supra), which are as under:— “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. 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. 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. 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…………..” 11. On bare perusal of the impugned communication/order, it appears that the respondent authority has not considered the relevant authenticated as documents even though there is specific mentioning. As held by this Court in the case of Nitaben Nareshbhai Shah (supra), it is the duty of respondent No. 2 authority while exercising the powers under Section 15 of the Act to look into such materials and then consider and decide such application. In opinion of this Court, such documents are from the Government records and hence, the same have to be considered while dealing with the application under Section 15 of the Act. 12. In opinion of this Court, such documents are from the Government records and hence, the same have to be considered while dealing with the application under Section 15 of the Act. 12. In light of the facts of the case, impugned order dated 10.3.2016 passed by respondent no. 2 deserves to be quashed and set aside and the proceedings of the application filed by the petitioner stands remitted back to respondent No. 2, who shall consider such application afresh by taking into consideration the materials available on record and if it is necessary, it would be open for the respondent authority to call for the affidavit of the petitioner and after following the procedure as prescribed under Section 15 of the Act, shall pass an order upon the application of the petitioner in accordance with law, preferably within a period of eight weeks from the date of receipt of this order. 13. With the observations and directions, the petition stands disposed of.