Rubinaben Abdul Rajak Meman W/O ... vs State Of Gujarat
2021 Latest Caselaw 4035 Guj

            C/SCA/5927/2020                                          ORDER




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO.                   5927 of 2020

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     RUBINABEN ABDUL RAJAK MEMAN W/O IKBALBHAI ABDULKARIM
                             MEMAN
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR HARISH J SONI(5142) for the Petitioner(s) No. 1
MRS BHARGVI H SONI(6243) for the Petitioner(s) No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 10/03/2021

                                      ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following main relief/s:

"(A) YOUR LORDSHIPS be pleased to admit and allow this petition;

(B) YOUR LORDSHIPS be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 14.02.2020 passed by respondent no.2 and further be pleased to direct the respondents to forthwith carry out correction in respect of

i. birth date of the petitioner from

C/SCA/5927/2020 ORDER

"20.08.1976" to correct birth date being "11.04.1976";

ii. name of petitioner from "Rubina" to correct name being "Rubinaben"

in the birth certificate/register, as per documents annexed at Annexure­C Colly, and consequently give directions to respondents to issue fresh birth certificate of petitioner containing the correct birth date and name of the petitioner, in the interest of justice;"

2. Heard learned advocate Mr. Harish Soni for the petitioner and learned Assistant Government Pleader Mr. Ronak Raval for respondent - State. Though served, none appears for respondent No.2.

3. Learned advocate for the petitioner has referred the averments made in the memo of the petition and thereafter submitted that correct date of birth of the petitioner is 11.04.1976 and correct name of the petitioner is Rubinaben. However, by mistake, the date of birth of the petitioner has been recorded as 20.08.1976 and name of the petitioner has been mentioned as Rubina in the birth certificate issued by the respondent No.2 in favour of the petitioner. In support of the said contention, learned advocate for the petitioner has referred to the documentary evidence including AADHAR Card, Pan Card, Election Card and Passport of the petitioner which are placed on record.

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After referring to the same, it is contended that in all the other documents, the correct date of birth of the petitioner is recorded as 11.04.1946 and correct name of the petitioner is mentioned as Rubinaben. Petitioner, therefore, requested the respondent No.2 that her birth date be corrected from 20.08.1976 to 11.04.1976 and her name from Rubina to Rubinaben in the birth certificate and necessary correction be made.

4. It is further submitted that by way of the impugned communication dated 14.02.2020, the respondent No.2 has rejected the request of the petitioner on the ground that in the Birth Register of 1976, there appears no clerical mistake and as per the circular dated 18.02.2016 issued by the competent authority, respondent No.2 is not empowered to correct the date of birth and name of the petitioner in the birth certificate. Petitioner has, therefore, filed the present petition.

5. Learned advocate Mr. Soni for the petitioner has referred the decision rendered by this Court in similar type of matters, copies of which are placed on record. At this stage, learned advocate has also referred and relied upon the decision rendered by this Court in the case of Sejalben Mukundbhai Patel v. State of Gujarat, reported in 2019(3) GLR 1866. It is submitted that the issue involved in the present petition is squarely covered by the said decision. It is, therefore, urged that this petition be allowed and appropriate direction be issued to respondent no.2.

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6. On the other hand, learned AGP has though opposed this petition, is not in a position to dispute the fact that in similar type of matters, this Court has considered the circular dated 18.02.2016 issued by the competent authority and remanded the matter back to the concerned respondent authority for deciding the request of the concerned petitioners afresh.

7. Having heard the learned advocates appearing for the parties and having gone through the material placed on record as well as the provisions of law and the decisions upon which reliance is placed by learned advocate for the petitioner, it would emerge that the case of the petitioner on the basis of the documentary evidence placed on record is that her correct date of birth is 11.04.1976 and her correct name is Rubinaben, however, in the birth certificate issued by the respondent No.2, the date of birth of the petitioner has been wrongly recorded as 20.08.1976 and the name of the petitioner has been wrongly mentioned as Rubina. From the impugned order passed by respondent No.2, it is revealed that respondent No.2 has, without making inquiry as contemplated under Section 15 of the Registration of Births and Deaths Act, 1969 and Rule 11 of the Rules framed thereunder and without considering the documentary evidence produced by the petitioner, rejected the request of the petitioner simply relying upon the circular dated 18.02.2016.

8. At this stage, this Court would like to refer the decision in the case of Sejalben Mukundbhai Patel (supra), wherein this Court has considered the

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aforesaid circular. This Court has observed in para 8 of the said judgment as under:

"8. In the aforesaid facts, following issues are required to be decided in the present case:

(i) Can Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, override the statutory provisions?

(ii) Can the competent authority appointed under the provisions of the Act of 1969 and Rules framed thereunder, simply rely upon the aforesaid Circular without making any inquiry as contemplated under the provisions of the Act of 1969 and Rules framed thereunder?"

9. Thereafter, this Court has, after considering various provisions of the Registration of Births and Deaths Act, 1969 and the Rules framed thereunder and after considering various decisions rendered by this Court in similar type of matters, held in para 25 to 27 as under:

"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

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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.

27. In view of the aforesaid discussion, the petition is partly­allowed. Impugned order dated 06.07.2018 passed by respondent No.2 is quashed and set aside. Respondent No.2 is directed to reconsider the case of the petitioner in light of the observations made in the present order and pass appropriate order after making inquiry as contemplated under Section 15 of the Act of 1969 and after considering the documentary evidence produced by the petitioner. Respondent No.2 shall complete the said exercise within a period of six weeks from the date of receipt of a copy of this order."

10. From the aforesaid observations made by this Court in the case of Sejalben Mukundbhai Patel (supra), I am of the view that the issue involved in the present petition is squarely covered by the said decision.

11. The petition is, therefore, disposed of by quashing and setting aside the impugned communication dated 14.02.2020 issued by respondent no.2. The matter is remitted back to respondent No.2 for deciding the application filed by the petitioner a fresh. The respondent No.2 shall consider the documentary evidence produced by the petitioner and after making necessary inquiry as contemplated under Section 15 of the Registration of Births and Deaths Act, 1969 and the

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Rules framed thereunder, pass appropriate order in accordance with law. The aforesaid exercise shall be carried out by the respondent No.2 within a period of 8 weeks from the date of receipt of this order.

Direct service is permitted.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI