Goswami Tulshigiri Umedgiri vs State Of Gujarat
2021 Latest Caselaw 15128 Guj

     C/SCA/22462/2019                           JUDGMENT DATED: 27/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 22462 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        GOSWAMI TULSHIGIRI UMEDGIRI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Petitioner(s) No. 1
MS SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
NOTICE UNSERVED(8) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 27/09/2021
                     ORAL JUDGMENT

1. Leave to amend the prayer clause is granted. The same shall be carried out forthwith.

2. This Court has issued the notice, which has been duly served upon the respondents. The respondent no.2, though served, has chosen not to enter appearance.

C/SCA/22462/2019 JUDGMENT DATED: 27/09/2021

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

4. Issue rule, returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent no.1.

5. By this petition, the petitioner has prayed for direction to the respondent authority to correct the date of birth as 1.10.1963 in place of 20.12.1963 and further prayer to quash and set aside the order dated 30.4.2019 passed by the respondent no.2.

6. The petitioner, is aggrieved by the action on the part of the respondent no.2 in not correcting his date of birth as 1.10.1963 instead of 20.12.1963. According to the petitioner, the birth certificate issued by Gamanpura Gram Panchayat reflects the date of birth of petitioner as 20.12.1963 which, according to the petitioner, is incorrect. It is the case of the petitioner that the actual date of birth of the petitioner is 1.10.1963 and which is recorded in all the public documents, namely, PAN Card, Aadhar Card, School Leaving Certificate etc. Since the birth certificate carried an incorrect date, the petitioner applied before the respondent no.2 to correct the date of birth, i.e., 1.10.1963 so as to avoid any confusion and mistake. The application dated 16.11.2018 was preferred before the respondent no.2. However, the respondent no.2, vide order dated 17.11.2018, rejected the application on the ground that it had no authority to correct the date of birth as prayed for. The application of the petitioner came to be filed.

6.1 Being aggrieved, the petitioner had preferred a writ petition before this Court being Special Civil Application No.1723 of 2019. This Court, after hearing the petitioner and the respondents, passed an order dated 26.2.2019, observing that the respondent no.2 is

C/SCA/22462/2019 JUDGMENT DATED: 27/09/2021

empowered to make necessary correction in the birth certificate/register. Accordingly, the communication dated 17.11.2018, was quashed and set aside. This Court, remitted back the matter to the respondent no.2 for deciding the application of the petitioner afresh. This Court also directed that while deciding the application, 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 (hereinafter referred to as 'the Act of 1969') read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 (hereinafter referred to as 'the Rules of 2004'). The respondent no.2 was directed to carry out the requisite exercise and pass appropriate order in accordance with law within a period of six weeks.

6.2 The petitioner, accordingly, had submitted all the documents, namely, Aadhar Card, PAN Card, School Leaving Certificate wherein, the date of birth of the petitioner is recorded as 1.10.1963. However, the respondent no.2, vide communication dated 30.4.2019, required the petitioner to produce on record the evidence such as, (i) documents of the Government hospital, (ii) documents of vaccination, and (iii) the documents submitted at the time of taking admission in the school. It further states that if the petitioner fails to do so, it would be construed that the petitioner is not interested in carrying out the correction in the date of birth. The petitioner, is aggrieved by the said communication dated 30.4.2019 issued by the respondent no.2.

7. Mr. Yogendra Thakore, learned advocate appearing for the petitioner submitted that the petitioner, is having all the relevant documents, namely, Aadhar Card, PAN Card and School Leaving Certificate wherein, the date of birth of the petitioner have been

C/SCA/22462/2019 JUDGMENT DATED: 27/09/2021

recorded as 1.10.1963 and therefore, instead of correcting the date of birth, the respondent no.2 required the petitioner to produce the documents of the hospital where the petitioner took birth, the documents of vaccination and the documents submitted at the time of taking admission in the school. It is submitted that there were sufficient documents available for the respondent no.2 to have taken into consideration and after undertaking necessary inquiry, ought to have changed the date of birth of the petitioner.

7.1 It is submitted that the petitioner is serving as Senior Technician with the Uttar Gujarat Vij Company Ltd. and in the service record also, the date of birth of the petitioner is 1.10.1963. It is further submitted that though this Court has issued a direction to the respondent no.2 to decide the application of the petitioner afresh, considering the documentary evidence produced by the petitioner and after making necessary inquiry, as contemplated under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004, the respondent no.2 disregarding the said direction, has required the petitioner to submit the documents which, according to the petitioner, were not relevant inasmuch as, the documents, namely, Aadhar Card, PAN Card and School Leaving Certificate were sufficient enough for the respondent no.2 for conducting the inquiry.

7.2 Reliance is placed on the judgment in the case of Mukeshkumar Prahaladbhai Patel vs. State of Gujarat passed in Special Civil Application No.5727 of 2018. It is submitted that in the case before this Court, the petitioner, has twice been relegated to the respondent authority and the respondent authority, did not correct the date of birth. This Court, had expressed displeasure by observing that the petition, was a third round of litigation. Despite on two occasions, this Court had directed the respondent authority to consider the application by the petitioner for correction of the

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date of birth on the basis of the documents produced before this Court, the respondent, has reiterated its decision while refusing the application for correction of the date of birth.

7.3 It is submitted that this Court, while considering the various judgments passed by this Court, quashed and set aside the order and directed the respondent to make necessary correction in the register of birth on the basis of affidavit of the mother of the petitioner therein as well as other documentary evidence produced by the petitioner. It is therefore, submitted that similar such order be passed in the present petition.

8. Heard Mr. Yogendra Thakore, learned advocate appearing for the petitioner.

9. As recorded herein above, though served, the respondent no.2, has not entered appearance and therefore, this Court is of the opinion that the respondent no.2, has chosen not to contest the petition.

10. Pertinently, the petitioner is desirous of correcting the date of birth in the birth certificate as 1.10.1963 instead of 20.12.1963. According to the petitioner, his actual date of birth is 1.10.1963 which, has been supported by various public documents, namely, Aadhar Card, PAN Card, School Leaving Certificate etc. Further, as has been reported in the service record, the date of birth of the petitioner is recorded as 1.10.1963. Accordingly, the petitioner applied to the respondent no.2 to correct the date of birth, i.e., 1.10.1963 so as to avoid any confusion and mistake. The application preferred by the petitioner before the respondent no.2 on 16.11.2018, came to be rejected vide order dated 17.12.2018.

11. Aggrieved, the petitioner preferred a writ petition before this

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Court being Special Civil Application No.1723 of 2019. This Court, vide order dated 26.2.2019, while accepting the contention of the petitioner, held and observed that the respondent no.2, is empowered to make necessary correction in the birth certificate/register. While observing thus, this Court, remanded the matter to the respondent no.2 for deciding the application of the petitioner afresh after considering the documentary evidence produced by the petitioner and after making necessary inquiry as contemplated under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. It also directed that the respondent no.2 shall carry out the aforesaid exercise and pass appropriate order in accordance with law.

12. The respondent no.2, vide communication dated 30.4.2019, while not considering the documents which were produced, required the petitioner to produce various documents, namely, documents pertaining to the Government hospital, vaccination and the documents submitted at the time of taking admission in the school. It has also been observed that if the petitioner fails to produce the documents, it would be construed that the petitioner is not desirous to carry out any corrections.

13. At this stage, the judgment of this Court, in the case of Mukeshkumar Prahaladbhai Patel (supra) is worth referring to. Relevant paragraphs whereof read thus:

"12. Learned advocate for the petitioner further relied upon the decision of this Court (Coram: Hon'ble Mr.Justice Rajesh Shukla, J.) passed in the case of Ghanshyambhai Maganbhai Talavia vs. State of Gujarat passed in Special Civil Application No.4596 of 2016 dated 15.07.2016. This Court has categorically held that the approach of the authority is casual resulting into inconvenience to the persons like petitioner and it is shirking the responsibility or avoiding obligation and duty imposed by the statute.

       13. It was          further submitted that as      per the provision of
       Section 15            of   the  Act-1969,  if      it  is proved to the





 C/SCA/22462/2019                                  JUDGMENT DATED: 27/09/2021

satisfaction of the Registrar that any entry of birth and 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 correct the error. The respondent nos.2 and 3, who are discharging their duties as Registrar of Births and Deaths are under lawful obligation to make such change in the Register of Birth depending upon the facts of the case under Section 15 of the Act1969 and 11(4) and 11(5) of the Rules.

14. Learned advocate for the petitioner submitted that the respondents have utterly ignored the order passed by this Court in earlier two rounds of litigations, and therefore, the notice under the provisions of the Contempt of Court Act was also issued by the learned advocate for the petitioner.

15. Learned advocate for the petitioner relied upon the decision of this Court (Coram: Hon'ble Mr.Justice K.S.Jhaveri) passed in Special Civil Application No.321 of 2010 rendered on 02.02.2010 in the case of Rekhaben W/o. Sampatkumar Rachhadiya D/o. Chhaganbhai Karsan, wherein in similar facts, this Court, relying upon the decision in case of Neetaben Nareshbhai (supra), directed the respondent authority to carry out the amendment in the register of Births and Deaths maintained by the respondent under the provisions of the Act-1969.

16. Learned advocate for the petitioner relied upon the decision of this Court (Coram:Hon'ble Mr.Justice V.M.Pancholi) in the case of Bharat Somdas Prajapati Through Poa Vikas Bharatbhai vs. State of Gujarat passed in Special Civil Application No.1184 of 2019 dated 22.02.2019, wherein after considering the effect of Circular dated 18.02.2016 issued by the Registrar of Births and Deaths, which was considered again in Special Civil Application No.19054 of 2018, directed the respondent authority to correct the date of birth of the petitioner.

17. Learned advocate for the petitioner relied upon the decision of this Division Bench of this Court in the case of Vipulkumar Ramanlal Patel Through POA Patel Ramanlal passed in in Letters Patent Appeal No.497 of 2012 in Special Civil Application No.2316 of 2012 dated 1055 of 2018, wherein the Division Bench of this Court, after considering the affidavit of the parents allowed the appeal and the competent authority was directed to issue a new birth certificate with correct date of birth.

18. Learned advocate for the petitioner relied upon the decision of this Court (Coram: Hon'ble Mr.Justice A. Y. Kogje) in the case of Sarojben Prahlad Patel Vs. State of Gujarat & Anr. passed in Special Civil Application No.5728 of 2018 dated 03.07.2019, wherein this Court directed the respondent to take a decision on the fresh application to be made before the authority after considering the documents produced before it."

22. The provisions of Section 15 of the Act-1969 read with Rule 11(4) and 11(5) of the Rules are explained time and again by this Court holding that the respondent no.3

C/SCA/22462/2019 JUDGMENT DATED: 27/09/2021

is having power under the provisions of the Act and Rules for correcting the entry with regard to the date of birth and such power has to be exercised by application of mind by the respondent no.3, more particularly, when this Court has directed twice for such exercise of power by the respondent- authority."

14. In view of the above enunciation, it is no longer in dispute that the authority, is empowered under the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004 to carry out necessary correction after undertaking an inquiry for correcting the date of birth in the register of births and deaths. However, it appears that the respondent authority, instead of acting in sync with the provisions of the Act and the Rules, is disregarding the same, abrogating his duty to be performed under the Act.

15. This Court in the first round of litigation while disposing of the writ petition on 26.2.2019, while referring to the judgment in the case of Gitaben Keshavlal Patel W/o Amrutbhai K. Patel vs. State of Gujarat reported in 2009(3) GLR (U.J.) 1, has observed in paragraph 4 that the respondent no.2, is a competent authority under the provisions of the Act of 1969 and is empowered to make necessary correction in the register of births and deaths. Therefore, when this Court has directed the respondent no.2, clearly declaring that he is empowered to make necessary corrections in the birth certificate/register, it was incumbent upon the respondent no.2, to have considered the documents, namely, Aadhar Card, PAN Card and School Leaving Certificate of the petitioner by undertaking necessary inquiry for correcting the date of birth; instead, the Talati- cum-Mantri, only with a view to seeing that no decision is taken, has sought for various documents, namely, document of the hospital, vaccination and school admission. Such demand, was misplaced inasmuch as, various other public documents were already there before the respondent no.2 for taking necessary decision.

16. Under the circumstances, this Court, is of the opinion that the communication dated 30.4.2019 issued by the respondent no.2, was

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not in the right earnest; instead, the respondent no.2 ought to have appreciated the documents as referred to herein above.

17. Having regard to the documents produced on the record and in view of the aforementioned discussion, this Court, is of the view that the case of the petitioner, deserves to be considered. Therefore, the communication dated 30.4.2019, is hereby quashed and set aside. The respondent no.2, is directed to make necessary correction in the register of the birth on the basis of the documents, namely, PAN Card, Aadhar Card, School Leaving Certificate and further documents as may be produced by the petitioner in support of his request for the change of birth date in the register. The petitioner shall produce the relevant service record over and above the documents produced on the record of the captioned writ petition within a period of two weeks from today and the respondent no.2 is directed to take decision accordingly within a period of ten days, thereafter.

18. In view of the above, the petition succeeds and is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

19. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI