Delhi High Court
Pushpendra Singh Diwaniyan vs Union Of India & Others on 4 August, 2009
Author: Sanjiv Khanna
24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7387/2008
PUSHPENDRA SINGH DIWANIYAN ..... Petitioner
Through Mr.Parminder Kaur, advocate.
versus
UOI & ORS. ..... Respondents
Through Mr.Rajiv Ranjan Mishra, advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 04.08.2009
1. Petitioner wants to change his date of birth as recorded in his
passport from 15th August, 1950 to 15th August, 1953. This is peculiar
as the petitioner had thought and had asked for change of his date of
birth, allegedly on the basis of school certificate of Vth Class, after he
has already retired from service. It is not possible to decipher what
advantage the petitioner may gain by changing his date of birth.
However, I need not go into the said aspect in detail, as the only
question involved in the present writ petition is whether the
respondents can consider and examine the request of the petitioner for
change of date of birth as recorded in his passport.
2. The respondents in the counter affidavit have relied upon
Circulars dated 18th April, 2001 and 29th October, 2007. Relevant
portions of the said Circulars read as under:-
Circular dated 18.04.2001
"(c) Where the initial entry has been made
on the basis of a supportive document issued by
one competent authority i.e. School/educational
WPC No.7387/2008 Page 1
authority and the applicant subsequently requests
for a change on the basis of a certificate issued by
another competent authority i.e. municipal
authorities resulting in conflicting sources of valid
proof, the PIA should direct the applicant to obtain
a civil order from a competent court of
jurisdiction, certifying the valid date of birth/place
of birth. "
Circular dated 29.10.2007
"(c) Where files have already been
destroyed. PIAs could use their discretion in
correction of date of birth without a Court Order,
where such correction is only in months (not more
than two years) and applicants provide
satisfactory explanation that the same
document(s) was provided at the time of initial
passport application. Fresh fees will be charged.
(d) Where the initial entry has been made
on the basis of a supportive document issued by
one competent authority i.e. School/educational
authority and the applicant subsequently
requests for a change on the basis of a certificate
issued by another competent authority i.e.
Municipal authorities etc., resulting in conflicting
documents for valid proof, the PIA should direct
the applicant to procure an order from a First
Class Judicial Magistrate, to effect the change as
per Passport Manual 2001 (In some States, this
function is discharged by Civil Magistrates)."
3. Date of birth is recorded in the passport of the petitioner on the
basis of his school leaving certificate. Therefore the said clauses of the
Circular will apply. In terms of the said Circulars, the respondents are
insisting upon declaratory order from a First Class Judicial Magistrate to
effect the change as per Passport Manual, 2001.
4. A similar controversy has arisen before the Bombay High Court in
the case of Jigar Harish Shah versus Union of India AIR 2001
Bom. 60. Bombay High Court dissented from the view taken by the
Kerala High Court and held that in view of Section 21 of the General
WPC No.7387/2008 Page 2
Clauses Act, the Passport authorities have requisite jurisdiction and
authority to make necessary corrections in case a wrong entry has
been made. Accordingly, it was observed as under:-
" ....In this matter, however, when the
provisions of S.21 of the General Clauses Act
have been brought to our notice and when we
see that correction in the Passport in relation to
the entries therein including in relation to the
date of birth can be made by the Passport
authority itself having regard to the provisions
of S.21 of the General Clauses Act, we do not
feel it proper to refer the matter to the Judicial
magistrate whose Courts, we are aware, are
already overburdened and further in particular
when the Judicial magistrates have not been
conferred with such a jurisdiction under any
law. We, therefore, instead of issuing a
direction to the Judicial Magistrate in this
matter, direct the Passport Authority itself to
hold an enquiry on hearing the petitioner in
relation to the petitioner's claim about his
correct date of birth and in case the Passport
Authority is satisfied with regard to the claim
put forth by the petitioner, we further order it
to effect the necessary change in the Passport
issued in favour of the petitioner. Petition is
allowed in the above terms. Rule is made
absolute."
5. It also appears that Chief Metropolitan Magistrates in Delhi have
been following the view taken by the Bombay High Court in the case of
Jigar harish Shah (supra) and directing the authorities to examine
any request for change/amendment in the date of birth and accept or
reject the same on merits without insisting upon a declaratory decree.
The petitioner has filed on record one such order dated 27 th April, 2007
passed by the Additional Chief Metropolitan Magistrate.
6. As per the decision of the Bombay High Court in Jigar Harish
WPC No.7387/2008 Page 3
Shah (supra) the respondent-authorities have requisite power to
examine any claim for change of date of birth in view of Section 21 of
the General Clauses Act on merits. The respondent authorities in view
of the aforesaid position, should not delegate the matter and ask for
declaration from the court of First Class Judicial Magistrate. As noted
by the Bombay High Court, First Class Judicial Magistrates are over-
burdened and deciding an issue regarding declaratory decree will
unnecessarily delay adjudication in other cases and increase dockets.
Decision whether or not date of birth on the passport has been
correctly recorded is an administrative matter which can be easily
decided by the respondents on merits. It is a different matter that the
claim may not be genuine and is required to be rejected.
7. In view of the aforesaid, the present Petition is disposed of with
directions to the respondents to examine the claim of the petitioner for
change of date of birth. It is clarified that this Court has not expressed
any opinion on the merits of the claim made by the petitioner for
change of his date of birth. It is open to the respondents to reject or
accept the said claim.
SANJIV KHANNA, J.
AUGUST 04, 2009.
P/VKR
WPC No.7387/2008 Page 4
