Gujarat High Court
Jinalben Jagdishbhai Modi W/O ... vs State Of Gujarat on 21 October, 2021
Bench: Sangeeta K. Vishen
C/SCA/10340/2021 ORDER DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10340 of 2021
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JINALBEN JAGDISHBHAI MODI W/O PRIYAKANT CHANDRAKANT MODI
Versus
STATE OF GUJARAT
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Appearance:
MR HARISH J SONI(5142) for the Petitioner(s) No. 1
MR.AYAAN PATEL, ASSISTANT GOVERNMENT PLEADER(1) 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 : 21/10/2021
ORAL ORDER
1. By this petition, the petitioner has prayed for quashing and
setting aside the order dated 24.06.2021 passed by the respondent
no.2. The petitioner has also prayed for direction to the respondent
No.2 to forthwith carry out correction in respect of correct date of
birth of the petitioner as "24.04.1987" instead of the incorrect date
of birth "25.10.1987" in the birth certificate/register as per the
documents. The petitioner has also raised grievance that in the birth
certificate, the name of the father of the petitioner, is also
incorrectly mentioned as "Jagdishbhai Jivrambhai Modi" instead of
"Jagdishbhai Jivanlal Modi".
2. Brief facts of the case are that the petitioner was born on
24.04.1987 and is the daughter of Hasumatiben Jagdishbhai Modi
and Jagdishbhai Jivanlal Modi. The details of the birth of the
petitioner, were given by the relatives of the petitioner to the
respondent No.2; however, inadvertently, the date of birth is
recorded as "25.10.1987" instead of "24.04.1987" and the name of
the father of the petitioner is recorded as "Jagdishbhai Jivrambhai
C/SCA/10340/2021 ORDER DATED: 21/10/2021
Modi" instead of "Jagdishbhai Jivanlal Modi".
2.1 The petitioner, approached the respondent no.2, being a
competent authority, inter alia, praying for correction of date of
birth so also for correction of the name of the grandfather of the
petitioner, enclosing all the requisite documents, namely, School
Leaving Certificate; Aadhar Card; Passport; Driving License; and
affidavits of the mother of the petitioner, maternal uncle and her
own affidavit.
2.2 According to the petitioner, disregarding all the documentary
evidence, the respondent no.2, rejected the application of the
petitioner only on the ground that the desired correction cannot be
carried out in view of the Circular dated 18.2.2016. Being aggrieved,
the petitioner has filed the present writ petition with the
aforementioned prayers.
3. Mr. Harish J. Soni, learned advocate appearing for the
petitioner, submitted that the correct date of birth of the petitioner
is "24.04.1987" and the name of the father of the petitioner is
"Jagdishbhai Jivanlal Modi", instead the birth certificate contains the
date of birth as 25.10.1987 and the name of the father of the
petitioner as Jagdishbhai Jivrambhai Modi. It is submitted that the
name of the grandfather of the petitioner is "Jivanlal" and not
"Jivrambhai" and therefore, it does not change the substance of the
name; however, the respondent No.2, disregarding the request, has
rejected the application only on the ground that it changes the
substance of the name. It is also submitted that mother, maternal
uncle and petitioner herself have filed affidavits substantiating the
fact that the correct date of birth of the petitioner is "24.04.1987"
and not "25.10.1987" and also the factum of the name of the father
as "Jagdishbhai Jivanlal Modi" and not "Jagdishbhai Jivrambhai
C/SCA/10340/2021 ORDER DATED: 21/10/2021
Modi".
3.1 It is submitted that disregarding all the documentary
evidence, which was available with the authority and without
conducting any inquiry, the respondent no.2, in a slipshod manner
and solely relying upon the Circular dated 18.2.2016, rejected the
application stating the reason that the Circular does not permit the
corrections. It is also submitted that while passing the order dated
24.06.2021, the respondent no.2, has not bothered to conduct any
inquiry and straightaway has passed the order which action, is bad
in law. It is submitted that the order passed by the respondent No.2
is against the principles laid down by this Court in the case of
Sejalben Mukundbhai Patel W/o. Khodabhai Joitaram Patel vs. State
of Gujarat reported in AIR 2019 Gujarat 56.
3.2 It is further contended that so far as the aspect of Circular
dated 18.2.2016 is concerned, this Court, in paragraph 25, has
answered the issue to the effect that the Circular dated 18.2.2016,
issued by the Chief Registrar, Birth and Deaths and Commissioner
(Health), State of Gujarat, cannot override the statutory provisions.
While answering the issue no.2, it has been held that the competent
authority appointed under the provisions of the Registration of
Births and Deaths Act, 1969 (hereinafter referred to as the 'Act of
1969') and Registration of Births and Deaths Rules, 2004
(hereinafter referred to as the 'Rules of 2004'), cannot simply rely
upon the circular and reject the request of the concerned applicant
without making necessary inquiry. It is therefore, urged that there is
a sheer non-application of mind on the part of the respondent no.2
while not acceding to the request of the petitioner for correction of
the date of birth in the birth certificate.
3.3 Reliance is placed on the order passed by this Court in the
C/SCA/10340/2021 ORDER DATED: 21/10/2021
case of Arunkumar Hanumansingh Katewal v. State of Gujarat
passed in Special Civil Application No. 210 of 2020 dated
07.01.2020. It is submitted that this Court, while relying upon the
judgments in the cases of (i) Nitaben Nareshbhai Patel v. State of
Gujarat reported in 2008 (1) GLR 884; (ii) Sejalben Mukundbhai
Patel (supra) and (iii) decision dated 29.03.2019 in the case of
Kamleshkumar Bhikhabhai Patel v. State of Gujarat rendered in
Special Civil Application No.3173 of 2019, has held that the
registering authority is within its power under Section 15 of the Act
of 1969 read with Rule 11 of the Rules of 2004 to correct the errors
as prayed for.
3.4 Reliance is also placed on the judgment of the Division Bench
in the case of Vipulkumar Ramanlal Patel through POA Patel
Ramanlal v. State of Gujarat reported in 2012 (0) GLHEL-HC 226903.
It is submitted that the Hon'ble Division Bench, having satisfied with
the documentary evidence produced by the appellants therein as
well as the affidavits of the parents, directed the authority
concerned to issue a new birth certificate showing the date of birth
of the appellant as requested. It is submitted that the order dated
24.06.2021, passed by the respondent No.2, is against the principles
laid down by this Court in the aforesaid judgments.
4. Heard Mr. Harsh J. Soni, learned advocate appearing for the
petitioner and Mr. Ayaan Patel, learned Assistant Government
Pleader appearing for the respondent no.1. Though served, the
respondent no.2, has chosen not to contest the captioned writ
petition.
5. The petitioner, is aggrieved by the incorrect recording of the
date of birth as "25.10.1987" in the birth certificate so also the
name of her father as "Jagdishbhai Jivrambhai Modi", according to
C/SCA/10340/2021 ORDER DATED: 21/10/2021
the petitioner, the correct date of birth of the petitioner is
"24.04.1987" and name of her father is "Jagdishbhai Jivanlal Modi".
In support of her plea, the petitioner has produced on record the
documents namely (i) School Leaving Certificate issued by Sheth P.
& R. High School, Prantij; (ii) Aadhar Card; (iii) Passport and (iv)
Driving License etc. In all such documents, the date of birth
recorded of the petitioner, is 24.04.1987. So far as the name of the
father of the petitioner is concerned, in the passport, the name of
the father of the petitioner is mentioned as "Jagdishbhai Jivanlal
Modi" Therefore, the documents which have been made available
on the record of the captioned writ petition, in no uncertain terms
record the date of birth of the petitioner as "24.04.1987". So far as
the name of the father of the petitioner is concerned, in the
passport, it is mentioned as "Jagdishbhai Jivanlal Modi".
6. The respondent no.2, while passing the order dated
24.06.2021, has simply brushed aside the documentary evidence
and rejected the application only on the ground that as per the
provisions of the Circular dated 18.2.2016, the desired corrections
cannot be carried out for, the same is not owing to the clerical error
however, the respondent No.2, has lost sight of the documents of
the petitioner and the contents thereof. It is clear that no inquiry has
been undertaken by the respondent no.2 as contemplated under
Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004.
7. The Circular dated 18.2.2016, had fallen for consideration
before this Court in the case of Sejalben Mukundbhai Patel (supra)
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 under the
provisions of Section 15 of the Act of 1969 read with Rule 11 of the
C/SCA/10340/2021 ORDER DATED: 21/10/2021
Rules of 2004. This Court, has relied upon the judgments in the case
of Nitaben Nareshbhai Patel (supra) where, it has been held that
read the provisions of Section 15 in juxtaposition with Rule 11,
suggest that adequate powers are conferred upon the authority to
correct/cancel erroneous entries.
8. 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."
9. This Court has categorically held that the circular framed and
issued by the Chief Registrar, Births & Deaths and Commissioner
(Health), State of Gujarat, cannot have an overriding effect over the
statutory provisions and it is incumbent upon the competent
authority under the provisions of the Act of 1969 read with Rules of
2004, to make a necessary inquiry. Therefore, it was erroneous on
the part of the respondent no.2, to have simply rejected the
application, without conducting any inquiry only on the basis of the
Circular dated 18.2.2016.
C/SCA/10340/2021 ORDER DATED: 21/10/2021
10. Hence, this Court is of the opinion that the order dated
24.06.2021 passed by the respondent No.2, is erroneous, illegal,
bad and deserves to be quashed and set aside. Accordingly, the
order dated 24.06.2021 passed by the respondent No.2 is hereby
quashed and set aside with a direction to the respondent no.2, to
reconsider and decide the application of the petitioner after
conducting requisite inquiry in accordance with the provisions of
Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004
ensuring that there is no second round of litigation. While doing so,
the respondent no.2 is also directed to consider all the documentary
evidence which are forming part of the captioned writ petition and
pass order within a period of four weeks' from the date of the
receipt of the copy of this order. The decision, be communicated to
the petitioner within a period of two weeks thereafter.
11. With the aforesaid direction, the petition is partly allowed. No
order as to costs.
12. Direct service is permitted.
(SANGEETA K. VISHEN, J)
RAVI P. PATEL
