Bharatbhai Bavabhai Dhamelia ... vs State Of Gujarat
2021 Latest Caselaw 17985 Guj

     C/SCA/21302/2019                              ORDER DATED: 02/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21302 of 2019
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     BHARATBHAI BAVABHAI DHAMELIA THROUGH NARENDRABHAI
                      RAVJIBHAI SOJITRA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR HARDIK D MUCHHALA(5634) for the Petitioner(s) No. 1
MR.KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
UNSERVED REFUSED (R)(70) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 02/12/2021
                   ORAL ORDER

With the consent of the learned advocates appearing for the respective parties, the captioned writ petition is taken up for final disposal.

2. Issue rule, returnable forthwith. Mr.Krutik Parikh, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent.

3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 18.07.2019 passed by the Registrar/Talati cum Mantri, Office of the Registrar, Vitthalpur Gram Panchayat. The petitioner has also prayed for direction to the respondent authorities to correct the date of birth of the petitioner's daughter Kiran from "22.07.1985" to "22.04.1985" in the Birth Certificate.

4. Mr.Hardik D. Mucchala, learned advocate submitted that the order dated 18.07.2019, is contrary to law; in violation of principles of natural justice as no opportunity of hearing was granted and therefore, illegal and bad. It is submitted that though the

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respondent No.2 authority is empowered to correct the date of birth of the petitioner's daughter, it miserably failed to exercise the powers vested in it. It is submitted that the Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the 'Act of 1969') provides for correction or cancellation of entry in the register of births and deaths. It provides that if it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register is erroneous in form or substance, the Registrar may subject to such rules as may be made 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. It is submitted that Registration of Births and Deaths Rules, 2004 (hereinafter referred to as the 'Rules of 2004') have been framed. Rule 11 provides for correction or correction of entry in the register of births and deaths. Sub-rule (4) of Rule 11 provides that if any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar is empowered to correct the entry in the manner prescribed under Section 15 of the Act, producing and declaring the nature of the error and true facts of the case. It is therefore submitted that combine reading of Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004, makes it evident that the competent authority is vested with the power to make the correction or to cancel an entry in the register maintained by the office if it is proved to the satisfaction of the officer concerned that such correction or cancellation is required to be made.

4.1 Reliance is placed on the judgment in the case of Nitaben Nareshbhai Patel v. State of Gujarat reported in 2008 (1) GLR 884. This Court, has held and observed that the competent authority has power to correct or cancel the entry in the register of births and

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deaths. Reliance is placed on the judgment passed by the coordinate Bench in various writ petitions to contend that this Court, has repeatedly held that competent authority, is empowered under the provisions of the Act read with the provisions of the Rules to correct the entry in the register of births and deaths. It is also submitted that while passing the order, reliance is placed on the Circular dated 18.02.2016, which is misplaced inasmuch as, the said circular, has been held not to have any overriding effect over the provisions of the Act and the Rules.

4.2 It is next submitted that in past, the petitioner has filed the writ petition being Special Civil Application No.1683 of 2019 and this Hon'ble Court was kind enough to dispose it of by directing the respondent to decide the representation after making inquiry and verifying the documentary evidence. The respondent No.2, passed the order dated 01.03.2019 rejecting the application filing the order dated 31.01.2019. It is further submitted that the petitioner filed another writ petition being Special Civil Application No.5989 of 2019 when, this Court, had expressed its displeasure for the conduct exhibited by the respondent authority. The Talati cum Mantri, submitted an affidavit tendering the apology and this Court, accepted the apology and once again directed the respondent No.2 to decide the application of the petitioner afresh, rectifying the mistake and correcting the date of birth of the daughter of the petitioner within a period of one month. This Hon'ble Court has also clarified that the previous decisions of the authorities on the subject matter shall not act as impediment for considering fresh application of the petitioner. It is submitted that disregarding the orders passed so also the provisions of the Act and the Rules, the respondent No.2 has once again rejected the application referring to the Circular dated 18.02.2016 and also mentioning that as per the Resolution dated 11.08.1989 of the General Administration Department, the

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date of birth mentioned in the birth certificate, is treated as correct. It has also been mentioned that the respondent No.2, is not empowered to carry out any correction. It is submitted that hence the present writ petition.

5. Heard Mr.Hardik D. Muchhala, learned advocate appearing for the petitioner and Mr.Krutik Parikh, learned Assistant Government Pleader for the respondent No.1 and perused the material available on the record. The respondent No.2 though served has not entered appearance and has not bothered to contest the petition and therefore, this Court, has no option but to decide the petition in absence of any contest.

6. It has been observed that day in day out, the Talati cum Mantries who are appointed as the Registrar under the provisions of the Act, were passing orders simply relying upon the Circular dated 18.02.2016 and therefore, this Court, was of the opinion that blind reliance on the Circular is misplaced for, the authorities are expected to exercise the powers under the provisions of the Act of 1969 so also the Rules of 2004. Considering the confusion prevailing, the Chief Registrar (Births & Deaths) and Commissioner (Health), was required to throw some light. The Chief Registrar (Births & Deaths) and Commissioner (Health) was pleased to withdraw the Circular dated 18.02.2016 so also the Circular dated 12.08.2009. Mr.Krutik Parikh, learned Assistant Government Pleader has placed on record the said Circular. In view of the withdrawal of the Circulars, now, the respective Talati cum Mantri, Office of the Registrar, shall take decision independently and in conformity with the provisions of the Act of 1969 read with the provisions of the Rules of 2004.

7. Adverting to the facts of the case, as is discernible from the record, the petitioner has been struggling since last more than 3

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years seeking correction in the date of birth of his daughter Kiran from "22.07.1985" to "22.04.1985" in the Birth Certificate. In support of such request, reliance is placed on various documents namely (i) School Leaving Certificate issued by Shree Govindpur Primary School; (ii) School Leaving Certificate of Shri N.J.L.S. Vidhyalaya, Govindpur; (iii) School Leaving Certificate of Smt. V.P.G. Kanya Vidhyalaya; (iv) Mark sheet issued by Gujarat Secondary Education Board, Gandhinagar; (v) Passport; (vi) Driving License issued by State of Pennsylvania; (vii) affidavit of the wife of the petitioner. In all the documents, the date of birth of the daughter of the petitioner, is mentioned as "22.04.1985". Moreover, there is no doubt raised or dispute as regards the authenticity or genuineness of the documents produced on the record. In absence of any contest or dispute as regards the genuineness of the documents, there was no reason available to the respondent No.2 not to exercise the powers under the provisions of Section 15 of the Act of 1969 read with sub-rule (4) of Rule 11 of the Rules of 2004, to undertake the inquiry and carry out necessary correction.

8. Perceptibly, the petitioner has filed an application in the year 2019. Since there was an inaction on the part of the respondent authority, the petitioner filed a writ petition being Special Civil Application No.1683 of 2019 seeking correction in the date of birth of the daughter of the petitioner in the Birth Certificate. This Court, directed the respondent authority to decide the representation submitted by the wife of the petitioner and petitioner, within a period of three weeks in accordance with law, considering the provisions contained in the Act of 1969 and the Rules framed thereunder. Decision dated 01.03.2019, was taken by the respondent No.2 rejecting the application on the ground that the date of birth mentioned in the School Leaving Certificate, is not binding to the respondent authority and the date of birth dated

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22.07.1985 in the birth certificate is treated to be correct. The petitioner, being aggrieved, preferred a writ petition being Special Civil Application No.5989 of 2019. When the Court has shown displeasure against the conduct of the respondent No.2. The respondent No.2 by filing affidavit tendered apology and this Court accepted the apology. The respondent No.2 was once again directed to decide the application of the petitioner rectifying the mistake and correcting the date of birth as desired within a period of one month, after affording an opportunity of hearing to the petitioner. This Court, has also clarified that the previous decisions of the respondent authorities shall not act as impediment for considering the application afresh; however, showing adamant attitude and without understanding the provisions of the Act of 1969 so also the provisions of Rules of 2004, the respondent No.2 has rejected the application simply relying upon the Circular dated 18.02.2016 treating it as a binding precedent. The respondent No.2, though is well within its power to take a decision, after conducting necessary inquiry, has abdicated its power. Such conduct on the part of the respondent No.2 is deprecated, more particularly when in the earlier two rounds of litigation, this Court, has specifically directed the respondent No.2 to decide the application in accordance with law after conducting requisite inquiry. Simply passing the order, citing the Circular dated 18.02.2016 so also the Resolution issued by the General Administration Department, was not expected of the respondent No.2; the respondent No.2 was expected to decide the application in conformity with the provisions of Section 15 of the Act of 1969 so also sub-rule (4) of Rule 11 of the Rules of 2004. If the authority is conferred with the powers, it is expected to act in accordance with law and not to disregard the provisions and blindly follow the Circulars issued by the State Government. This Court, does not suggest that the Circulars and Resolutions are not to be

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followed. They work as a guiding principles and do not restricts the exercise of powers in accordance with the provisions of the Act and Rules framed thereunder.

9. At this stage, the provisions of Section 15 of the Act of 1969, are also worth referring to. Section 15 reads thus:

"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."

10. Similarly, the State Government, has framed the Rules of 2004, relevant would be sub-rule (4) and sub-rule (5) of the Rule 11. Sub-rule (4) and sub-rule (5) of Rule 11 read thus:

"(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."

A bare reading of the provisions of Section 15 of the Act of 1969 in juxtaposition with sub-rule (4) of Rule 11, throws sufficient light that the Registrar, will be well within its power to carry out the correction; failing to undertake such exercise and rejecting the application only on the ground that it does not have powers; such action would be illegal and deserves to be deprecated.

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11. Quiet apart the Circular dated 18.2.2016, had fallen for consideration before this Court in the case of Sejalben Mukundbhai Patel W/o. Khodabhai Joitaram Patel vs. State of Gujarat reported in AIR 2019 Gujarat 56 and this Court, has held and observed that the circular cannot override the provisions of the Act and it is incumbent upon the authority concerned to initiate the necessary inquiry as per the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. In the case of Sejalben Mukundbhai Patel (supra), this Court, in paragraph 8 has formulated the issue which has been replied in paragraph 25. Relevant paragraphs 25 and 26 read thus:

"25. Thus, answer to issue No.(i) framed as above, is that Circular dated 18.02.2016 issued by the Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, cannot override the statutory provisions and answer to Issue No.(ii) is that Competent Authority appointed under the provisions of the Act of 1969 and Rules framed thereunder cannot simply rely upon the circular and reject the request of the concerned applicant, without making necessary inquiry.

26. Keeping in view the aforesaid legal position, if the facts as discussed hereinabove are examined, it is revealed that respondent No.2 has rejected the request of the petitioner simply relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat. It is not in dispute that while rejecting the request of the petitioner, respondent No.2 has not carried out any inquiry nor examined the documentary evidence produced by the petitioner. Therefore, the said decision taken by respondent No.2 is required to be set aside."

12. Even otherwise, as noted hereinabove the Circular now has been withdrawn. In the present case, the petitioner has been struggling to see that the necessary correction is carry out in the Birth Certificate of his daughter by providing all the other documents which carry the date of birth as "22.04.1985". It was incumbent upon the respondent No.2 to have undertaken the inquiry and carried out the necessary correction. It is also not in

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dispute that the request of the petitioner, is illegal or that sufficient documents have not been produced to substantiate such request. In view of the various documents produced on the record to substantiate the request so also the affidavit of the mother of the applicant, the respondent No.2, ought to have carried out the correction and not rejected the application citing the provisions of the Circular dated 18.02.2016.

13. Relegating the petitioner once again to the respondent authority would be an exercise in futility and subjecting the petitioner or his daughter to unnecessary harassment, therefore, this Court, is of the opinion that the direction may be issued to the respondent No.2 to carry out the required correction in the date of birth in tune with the date of birth indicated in various documents produced on the record so also the affidavit of the wife of the petitioner.

14. The respondent No2, is directed to make necessary correction in the register of birth on the basis of the documents available on the record including the affidavit of the wife of the petitioner and issue new birth certificate showing the date of birth as "22.04.1985". The respondent No.2 is directed to carry out the said exercise within a period of four weeks' from the date of the receipt of the copy of this order.

15. In view of the aforementioned discussion, the petition succeeds and is accordingly allowed. Rule is made absolute. No order as to costs.

16. Direct service is permitted.

(SANGEETA K. VISHEN, J) RAVI P. PATEL