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2019 DIGILAW 486 (GUJ)

REGISTRAR OF BIRTH AND DEATH v. STATE OF GUJARAT

2019-04-29

ANANT S.DAVE, BIREN VAISHNAV

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ORDER : ANANT S. DAVE, J. 1. In this appeal under Clause 15 of Letters Patent Appeal challenge is to the order dated 24.1.2019 passed in Special Civil Application No.19065 of 2018 wherein learned Single Judge directed the appellant to consider the request of the petitioner afresh for change of name on the basis of documentary evidence produced by the petitioner keeping in view the provisions contained in Section 15 of the Registration of Births and Deaths Act, 1969. 2. One of the main contentions of learned advocate for the appellant is that no such direction could have been issued by learned Single Judge particularly, Section 15 of the above Act, directs that such procedure of change of name can only be carried out after factual findings of the evidence before learned Judicial Magistrate First Class and examination of facts and evidence in a petition under Article 226 of the Constitution of India ought not to have been undertaken by learned Single Judge and, therefore, the appeal deserves to be allowed by quashing and setting aside the impugned order as prayed for. 3. In support of arguments, learned advocate for the appellant placed reliance on the decision of Regional Passport Officer vs. Kokilaben W/o Jaswantlal Panchal reported in 2009 Vol. 2 GLR 1246 and submitted that no such direction could have been given to the authority for correction rather change of the name of the petitioner. 4. Having perused the order passed by learned Single Judge, we may refer to factual controversy about change of name from “Pinki” to “Nidhi” and application was submitted by the applicant with necessary documents to establish that such change of name was based on copies of Aadhar Card, Pan Card and other relevant record. Besides, learned Single Judge upon consideration of circular issued by Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat dated 18.2.2016 certain instructions are given was also considered and it was held that such circular could not have gone beyond statutory provisions, particularly, when Section 15 provide recording of any entry of a birth or death in any register kept by Registrar under the Act is erroneous in form or substance. The Registrar has such power to alter or change such entry by placing suitable entry in the margin. “15. The Registrar has such power to alter or change such entry by placing suitable entry in the margin. “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 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.” 5. The above section, therefore, provides entires be corrected or cancelled and correct the error or cancel the entry by suitable entry in the margin without any alteration of original entry and hence to be signed accordingly. 6. The decision relied on by learned Single Judge in the case of Nitaben Nareshbhai Patel v. State of Gujarat & Ors. reported in 2008 (1) Vol. 49 GLR 884 wherein all relevant provisions of various Act, were considered including that of Births, Deaths and Marriages Registration Act, 1886 succeeded by Registration of Births and Deaths Act, 1969, Gujarat Registration of Births and Deaths Rule, 2004 and also Higher Secondary Education Act and Rules made thereunder and even Passport Act and Rules and finally in para 26 it was held 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, Clauses 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 of 1999 and 231 of 2001 in the case of Mulla Faizal @ Fazilabanu 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 of 2006 by an order dated 30-7-2007 by which the judgment of the learned single Judge in Special Civil Application No. 2716 of 2006 is stayed. 7. 7. Learned Judge in facts of the present case rightly placed reliance on the above decision and other such decisions including that passed in order dated 16.1.2019 in Special Civil Application No.19054 of 2018 and, therefore, it cannot be said that for all purposes the application seeking change of entry in the Register of Births and Deaths is not to be relegated and the applicant to undergo rigmarole of Court of learned Judicial Magistrate First Class since the statute has conferred powers upon Registrar as discussed herein above. 8. Decision relied on by learned advocate in the case of Regional Passport Officer (supra) on the contrary in paragraph 9 takes note of decision in the case of Nitaben Nareshbhai Patel (supra) and in 11 held as under: “11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder.” 9. Thus, decision in the case of Nitaben Nareshbhai Patel (supra) is amply confirmed by Division Bench in the above case of Regional Passport Officer (supra). However, the facts of the appeal before Division Bench directions were issued to passport authorities by learned Single Judge which were contrary to provisions of Passport Act, Rules made thereunder and interference issued the order passed by learned Single Judge came to be quashed and set aside. 10. In the facts of this case, the above decision is not applicable. In absence of any error, this appeal as well as civil application (For Stay) is rejected.