Anitaben W/O Kalpeshkumar Patel ... vs State Of Gujarat
2022 Latest Caselaw 9432 Guj

      C/SCA/15743/2022                           ORDER DATED: 08/11/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15743 of 2022

==========================================================
ANITABEN W/O KALPESHKUMAR PATEL D/O JAGJIVANBHAI CHELDAS
                         PATEL
                          Versus
                    STATE OF GUJARAT
==========================================================
Appearance:
MR RISHABH R JAIN(12326) for the Petitioner(s) No. 1
MS SHRUNJAL SHAH, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 08/11/2022

                              ORAL ORDER

(1) Rule. Learned AGP Ms. Shah waives service of notice of

Rule for respondent Nos.1 and 2 while Mr. Munshaw, learned

advocate waives service of notice of Rule for respondent

No.3.

(2) Heard Mr. Rishabh R. Jain, learned counsel for the

petitioner, Ms. Shrunjal Shah, learned AGP for respondent

Nos.1 and 2 while Mr. H. S. Munshaw, learned counsel for the

respondent No.3. Perused the record.

C/SCA/15743/2022 ORDER DATED: 08/11/2022

(3) In this petition, under Article 226 of the Constitution of

India, the petitioner has prayed that the name of the petitioner

be changed from Muniben to Anitaben and the petitioner's

father name be changed from Jagjivandas to Jagjivan Bhai

and issue fresh Birth Certificates.

(4) Mr. Jain, learned counsel for the petitioner would rely on

documents annexed to the petition namely; the passport and

the school leaving certificate which indicate that the name of

the petitioner is Anita Ben and the father's name too is

Jagjivan Bhai. Reliance is placed on an order dated

09.03.2022 of this Court in SCA No.4557 of 2021.

(5) Mr. Munshaw, learned counsel for the respondent -

Gram Panchayat would oppose the petition and submit that

since the application is received more than 40 years after the

registration of birth, no change can be made.

C/SCA/15743/2022 ORDER DATED: 08/11/2022

(6) The coordinate bench of this Court by an order dated

20.02.2018 in SCA No.11841 of 2017 held as under:

"4. Learned Advocate Mr. Soni has referred to the background of the facts and also the impugned order at AnnexureA passed by the TalaticumMantri. He referred to the impugned order and submitted that the authority below has failed to consider the judgment of the High Court in case of Nitaben Nareshbhai Patel v. The State of Gujarat & Ors., reported in 2008(1) GLH 556. Learned advocate Mr. Soni also referred to the provisions of Section 15 of the Registration of Birth and Death Act read with Rule 11(4) and 11(5) of the Gujarat Registration of Birth and Death Rules 2004.

5. Learned AGP Mr. Parikh however resisted and submitted that as stated in the earlier judgment, the judgment may not have any application as there is no inadvertent mistake. Learned AGP Mr. Parikh has also referred to the Circular issued by the government and submitted that still the petitioner may make the representation in light of the Circular.

6. As could be seen from the background of the facts, the petitioner has produced the documentary evidence along with the evidence. The documentary evidence in the form of School Leaving Certificate and passport etc. record the date of birth of the petitioner as 01.05.1954 and therefore the prayer made for correction of date of birth as 01.05.1954 instead of 10.04.1954 as recorded in the birth certificate deserve consideration by the authority.

7. The provisions of Section 15 of Registration of Birth and Death Act provide for such correction. The Judgment of the High Court in case of Nitaben Nareshbhai Patel (supra) clearly suggest about

C/SCA/15743/2022 ORDER DATED: 08/11/2022

such correction could be made if the Registrar is satisfied on the basis of material and document produced on record. Therefore, a close look at the provisions of the Act read with the Rules require to be considered. Rule 11(5) of the Birth and Registration Rules provide:

"(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."

Similarly, Section 11(4) of the Rules provide;

"If any person asserts that any any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the same 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."

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)

C/SCA/15743/2022 ORDER DATED: 08/11/2022

of the Rules give power to the Registrar to 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.3 within a period of one week. The Respondent No.3 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 (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

10. The petition is allowed. The impugned communication at AnnexureA is hereby quashed and set aside. It is also made clear that the observation that the decision of this High Court would not have any application, cannot be accepted in light of the discussion herein above and Respondent No.3 as stated above is under statutory obligation by the statute to make necessary verification and correct the date of birth if he is satisfied on the basis of the documentary evidence.

11. The present petition stands disposed of to the aforesaid extent. Rule is made absolute. Direct serviced permitted."

(7) In view of above, this petition is allowed. The

C/SCA/15743/2022 ORDER DATED: 08/11/2022

respondents are directed to carry out necessary corrections in

the birth certificate based on the documents i.e. the passport

and the school leaving certificate and change the name of the

petitioner to Anitaben and that of her father's name to Jagjivan

Bhai after necessary verification within a period of eight weeks

from the date of receipt of copy of this order.

(8) Rule is made absolute. Direct Service is permitted. No

costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA