Trivedi Niravkumar Ashvinkumar vs State Of Gujarat
2021 Latest Caselaw 18156 Guj

     C/SCA/13895/2019                             ORDER DATED: 07/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13895 of 2019
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                        TRIVEDI NIRAVKUMAR ASHVINKUMAR
                                      Versus
                                STATE OF GUJARAT
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Appearance:
JIGNESHKUMAR M NAYAK(8558) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP (99) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 07/12/2021
                   ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the matter 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 No.1. Respondent No.2, though served, has chosen not to contest the petition.

3. By this petition, the petitioner has prayed for quashing and setting aside the order dated 02.08.2019 passed by the respondent No.2, rejecting the application of the petitioner for correction of the date of birth from "30.08.1979" to "30.07.1979" on the ground that he has no power to amend the same.

4. Mr.Jigneshkumar Nayak, learned advocate for the petitioner submitted that the correct date of birth of the petitioner is 30.07.1979 and not 30.08.1979; however, inadvertently, the date mentioned in the birth certificate is 30.08.1979. It is submitted that all other public documents, namely, (i) Aadhar Card; (ii) School Leaving Certificate issued by Vakharia P.J. High School; (iii) Pan Card and; (iv) Passport of the petitioner, carry the date of birth as 30.07.1979 and therefore, the petitioner submitted an application

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dated 02.08.2019 to the respondent No.2, inter alia, praying for correction of the date of birth; however, the respondent No.2, without considering the documents placed on record, has rejected the application on the ground that he has no power to carry out any correction in the column of the date of birth of the birth certificate.

4.1. It is submitted that Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the "Act of 1969") read with Rule 11 of the Gujarat Registrations of Births and Deaths Rules, 2004 (hereinafter referred to as the "Rules of 2004"), clearly empowers the respondent No.2 to carry out the desired correction and, more particularly, when all the public documents of the petitioner carry the date of birth as 30.07.1979. In support of such contention, reliance is placed on the judgment of this Court in the case of Natubhai Dharamdas Patel vs. State of Gujarat reported in AIR 2018 Guj. 92. It is submitted that this Court has held and observed that if it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept under the 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, correct the error or cancel the entry by suitable entry in the margin. It is submitted that this Court, while allowing the writ petition, has directed the respondent therein to consider the representation and to decide the same in terms of the judgment of this Court in the case of Nitaben Nareshbhai Patel vs. State of Gujarat reported in 2008 (1) GLH 556. It is submitted that therefore, the respondent No.2 be directed to carry out desired correction in the birth certificate and the order dated 02.08.2019 be quashed and set aside.

5. Mr.Krutik Parikh, learned Assistant Government Pleader submitted that the respondent No.2 is the Registrar, appointed

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under the provisions of Section 7 of the Act of 1969 and he has to undertake the exercise of the correction of the date of birth.

6. Heard the learned advocates for the respective parties. The respondent No.2 has been duly served on 21.08.2019; however, the respondent No.2 has chosen not to contest the petition and therefore, the present writ petition is to be decided on the basis of the material available on record.

7. It is the case of the petitioner that the petitioner was born on 30.07.1979 at Village: Thol, Taluka: Kadi and his date of birth was registered at Thol Gram Panchayat; however, inadvertently, the birth certificate contains the incorrect date of birth i.e. "30.08.1979" instead of "30.07.1979". In support of such contention, various public documents have been placed on record, namely, (i) Aadhar Card; (ii) School Leaving Certificate; (iii) Pan Card and; (iv) Passport. All the documents carry the date of birth as 30.07.1979. Therefore, when the public documents carry the date of birth as 30.07.1979, the respondent No.2 ought to have undertaken the requisite inquiry as provided under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. Section 15 of the Act of 1969 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."

8. The State Government has framed the Rules of 2004. Sub- rules (4) and (5) of Rule 11 of the Rules of 2004 read thus:-

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"(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 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 State Government or the officer specified in this behalf."

9. Read the aforesaid provisions in juxta position, it is clear that it is incumbent upon the Registrar, if it is proved to the satisfaction that the entry of a birth or death in any register, is erroneous in form or substance, the same to be corrected or cancelled by suitable entry in the margin. Therefore, there are powers available with the Registrar to carry out the necessary corrections in the date of birth, of course, if it is proved to the satisfaction that the entry is erroneous in form or improperly made.

10. At this stage, it would be appropriate to refer to the judgment in the case of Natubhai Dharamdas Patel (supra) and, more particularly, paragraphs 8 and 9, which read thus:-

"8. Therefore the provisions of Section 15 of the Act read with the Rules as stated above makes the position clear that it is for the Registrar to reach such satisfaction and make necessary correction on verification of the document produced before him. In other words, it is for the Registrar to arrive at the satisfaction based on the documentary evidence and thereafter he can make the correction. Thus, the Registrar is vested with such powers which he can exercise and therefore there is no lack of jurisdiction or the power. Thus, when the statute cast an obligation upon the Registrar to make such changes depending upon the facts and circumstances of each case and in the background of the material and evidence that may be produced, it cannot be said that there is no provision, and the Registrar cannot correct the date of birth once it is recorded in the birth register. In fact the provisions of Section 15 of the Act read with Rule 11(4) and 11(5) of the Rules give power to the Registrar to

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make such correction or modification after having been satisfied on the basis of the documentary evidence that may be produced before him. In other words this is a power coupled with the obligation that he has to reach such satisfaction on the basis of material that may be produced. Moreover as stated by learned AGP, there is also a Circular issued by the Government.

9. Therefore, the interest of justice would be served if the petitioner is directed to make fresh representation with necessary supporting documents or the petition itself may be treated as a representation which shall be made to the Respondent No.2 within a period of one week. The Respondent No.2 shall consider the same within a period of eight weeks as per the the provisions of the Registration of Births and Deaths Act and the Rules as stated above as well as in light of the decision of this Court in the case of Nitaben Nareshbhai Patel (AIR 2008 (NOC) 1876 (Guj) (supra) as well as the decision of the Division Bench in Letters Patent Appeal No. 497 of 2012 dated 10.05.2012, after being satisfied and shall take the decision within a period of four weeks thereafter regarding correction of date of birth. "

11. The co-ordinate Bench of this Court has held and observed that when the statute cast an obligation upon the Registrar to make such changes depending upon the facts and circumstances of each case, considering the material and evidence that may be produced, it cannot be said that there is no provision and that, the Registrar cannot correct the date of birth once it is recorded in the birth register.

12. In the present case, when the petitioner has placed on record various documents, there was no reason available to the respondent No.2 not to exercise the powers under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004 citing that he has no power to correct the date of birth. Such action on the part of the respondent No.2 is not in conformity with the provisions of the Act of 1969 so also, the Rules of 2004 and therefore, the same deserves to be quashed and set aside.

C/SCA/13895/2019 ORDER DATED: 07/12/2021

13. Accordingly, the order dated 02.08.2019 is quashed and set aside. The respondent No.2 is directed to consider the application of the petitioner and carry out the necessary corrections in terms of the present order, ensuring that there is no further round of litigation by the petitioner. Let the aforesaid exercise be carried out within a period two weeks from the date of receipt of copy of this order.

14. With the aforesaid direction, the present petition succeeds in part and is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(SANGEETA K. VISHEN,J) Hitesh