Patel Neetaben Pankajkumar D/O ... vs State Of Gujarat
2022 Latest Caselaw 759 Guj

     C/SCA/7051/2021                           ORDER DATED: 24/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7051 of 2021

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      PATEL NEETABEN PANKAJKUMAR D/O PATEL VITTHALBHAI
                         ISHWARDAS
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR H A SHAH(6071) for the Petitioner(s) No. 1
MR. DARSHIT H SHAH(9894) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP 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 VAIBHAVI D. NANAVATI

                           Date : 24/01/2022

                            ORAL ORDER

1. With the consent of the learned advocates appearing for the respective parties, the captioned writ-application is taken up for final hearing.

2. Issue Rule, returnable forthwith. Ms. Dharitri Pancholi, the learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State.

3. By way of this petition, which is filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"(A) YOUR LORDSHIP may be pleased to admit and allow this petition.

C/SCA/7051/2021 ORDER DATED: 24/01/2022

(B) YOUR LORDSHIP may be pleased to allow present Application by issuing a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, or any other appropriate writ, order and direction quashing and setting aside the order no. 4367 dated 25.02.2021 passed by respondent no.2 and further be pleased to direct the respondent no.2 to reconsider the application dated 22.02.2021 filed by petitioner before it for correction of birth date of her daughter from 30.12.1974 to 30.04.1974 in her birth certificate in light of the judgment passed by this honorable court in Special Civil Application No. 19054 of 2018 dated 16.01.2019.

(C) Pending admission hearing and till final disposal of present petition Your Lordships may be pleased to direct the respondent no.2 to reconsider the application dated 22.02.2021 filed by petitioner before it for correction of birth date of her daughter from 30.12.1974 to 30.04.1974 in her birth certificate in light of the judgment passed by this honorable court in Special Civil Application No. 19054 of 2018 dated 16.01.2019.

(D) YOUR LORDSHIP may be pleased to pass such other order and further orders as may be deemed just and proper in the interest of justice."

4. By way of present petition the petitioner seeks to challenge the legality and validity of the order dated 25.2.2021 passed by the respondent No.2. Chief Officer, Kalol Nagar Palika, Dist. Gandhinagar, whereby the respondent No.2 refused to correct the date of birth of the daughter of the

C/SCA/7051/2021 ORDER DATED: 24/01/2022

petitioner from dated 30.12.1974 to 30.4.1974 in the birth certificate.

5. Mr. Darshit Shah, the learned advocate appearing for the petitioner submitted that the petitioner is the mother of Patel Neetaben Pankajkumar, who is living in USA. The daughter of the petitioner applied for obtaining green card for USA. She was informed to obtain birth certificate from the respondent No.2. At that time, the petitioner came to know that in the birth certificate her daughter's birth date was written as '30.12.1974 instead of 30.4.1974'. It is further submitted that after inquiry the petitioner made an application dated 22.2.2021 duly applied with the necessary documents which included copy of old and new passport, school leaving certificate, driving license and Aadhar card of the petitioner which shows 30.4.1974 is actual birth date of the daughter of the petitioner.

5.1 The respondent No.2 received the said application and issued receipt No.4571. By an order dated 25.2.2021 the application of the petitioner came to be rejected.. The respondent No.2 declined to make aforesaid changes as sought for by the petitioner relying upon the Circular dated 18.2.2016 bearing No.SBHI/Birth-Death/Change/VS-2016. The said circular dated 18.2.2016 is cancelled by notification dated 2.12.2021.

6.     Heard       Mr. Darshit Shah, the learned advocate appearing





      C/SCA/7051/2021                                  ORDER DATED: 24/01/2022

for the petitioner and Ms. Dharitri Y. Pancholi, the learned AGP appearing for the respondent - State.

7. By order dated 25.2.2021 the respondent No.2 rejected the application of the petitioner seeking change of date of birth of Patel Neetaben Pankajkumar from '30.12.1974 to 30.4.1974 in her birth certificate. The impugned order dated 10.1.2020 is passed placing reliance on circular dated 18.2.2016.

8. Mr. Darshit Shah, the learned advocate appearing for the petitioner submitted that the aforesaid Circular dated 18.2.2012 relied upon by the competent authority stands cancelled by Notification dated 2.12.2021.

9. The Coordinate Bench of this Court in the Special Civil Application No.21302 of 2019 considered the said notification dated 2.12.2021 and has observed in para-6, which is produced thus :-

"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.

C/SCA/7051/2021 ORDER DATED: 24/01/2022

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."

The following observations are made in paragraphs 9 to 11, which are produced thus :-

"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."

C/SCA/7051/2021 ORDER DATED: 24/01/2022

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.

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

C/SCA/7051/2021 ORDER DATED: 24/01/2022

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."

10. In view of above, the impugned order dated

C/SCA/7051/2021 ORDER DATED: 24/01/2022

25.2.2021 passed by the respondent No.2 - Chief Officer, Kalol Nagar Palika, Dist. Gandhinagar is hereby quashed and set aside. The matter is remitted back to the respondent No.2

- Chief Officer, Kalol Nagar Palika, Dist. Gandhinagar for deciding the application dated 22.2.2021 afresh. The respondent No.2 is directed to decide the application/representation dated 22.2.2021 (Annexure-A to the petition) made by the petitioner after taking into consideration the documents produced by the petitioner. The respondent No.2 is directed to decide the said application in accordance with law preferable within a period of eight weeks from the date of receipt of copy of this order.

11. With the aforesaid observation and direction, the present petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED