Gujarat High Court
Hiteshkumar Hariharbhai Prajapati vs The Ahmedabad Municipal Corporation on 2 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/5733/2023 ORDER DATED: 02/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5733 of 2023
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HITESHKUMAR HARIHARBHAI PRAJAPATI
Versus
THE AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 02/02/2024
ORAL ORDER
1. By way of present petition, the petitioner herein has
prayed for the following reliefs:
"27. On the premise mentioned as above, the petitioner prays
that Your Lordship may:
(A) Be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of
mandamus, and to quash and set aside the impugned order
dated 02.03.2023 passed by the respondent no.2, in Annex-K
and further be pleased to direct the respondents to correct
the date of birth of the petitioner in the birth and death
register maintained by the respondents and also in the birth
certificate issued by the competent authority with the
rectification from 23.09.1973 to 26.08.1973;
(B) Pending admission and final disposal of the present
petition, be pleased to stay the implementation, execution
and operation of the impugned order dated 02.03.2023
passed by the respondent no.2, in Annex-K. and further be
pleased to direct the respondents to correct the date of birth
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of the petitioner in the birth and death register maintained
by the respondent no.2 and also in the birth certificate issued
by the competent authority from 23.09.1973 to 26.08.1973;
(C) Be pleased to pass such other and further orders as may
be deemed fit and proper".
2. By way of present petition, the petitioner herein has
prayed for issuance of direction to respondent No.2
authority to correct the date of birth of the petitioner
from "23.09.1973" to "26.08.1973", which came to be
declined by the respondent No.2 authority by impugned
communication/ order dated 02.03.2023, which is duly
produced at Annexure "K" at Page-82. A copy of the birth
certificate of the petitioner is duly produced at Page-27
Annexure "B".
2.1 It is submitted that this is second round of litigation
and in the earlier round, the petitioner was constrained to
approach this Court by preferring SCA No. 10457 of
2022. By order dated 17.8.2022, the said petition came to
be disposed of with direction to the petitioner to make
fresh application to the respondent No.2 for getting the
date of birth corrected from "23.09.1973" to
"26.08.1973".
2.2 In due compliance to the order dated 17.8.2022, the
petitioner herein approached respondent No.2 seeking
the aforesaid changes in the petitioner's birth certificate
by preferring written statement along with the judgments
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C/SCA/5733/2023 ORDER DATED: 02/02/2024
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rendered by this Hon'ble Court on 21.2.2023. The
respondent No.2 authority declined the request of the
petitioner by impugned communication/ order dated
02.03.2023, which is duly produced at Annexure "K" at
Page-82.
3. Heard Mr. B.M. Mangukiya, the learned advocate
appearing for the petitioner and Mr. Rituraj Meena, the
learned advocate appearing for the respondent No.2
authority.
4. Mr. B.M. Mangukiya, the learned advocate
appearing for the petitioner submitted that the petitioner
herein has prayed for issuance of direction to respondent
No.2 authority to correct the date of birth of the
petitioner from "23.09.1973" to "26.08.1973", which came
to be declined by the respondent No.2 authority by
impugned communication/ order dated 02.03.2023, which
is duly produced at Annexure "K" at Page-82. The
respondent authority declined to consider the aforesaid
change in the birth date of the petitioner, as prayed for in
the petition, on the ground that the respondent authority
has no power to make changes, as prayed for, under
Section 15 of the Act.
5. Mr. Rituraj Meena, the learned advocate appearing
for the respondent No.2 authority submitted that no
interference is called for in the impugned communication
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dated 2.3.2023 rejecting the petitioner's application on
the ground that the respondent No.2 authority has no
power to make the aforesaid changes, as prayed for, in
the birth certificate of the petitioner.
6. Having heard the learned advocates appearing for
the respective parties, the petitioner herein applied
seeking the aforesaid change in the birth certificate of the
petitioner from "23.09.1973" to "26.08.1973". The
respondent No.2 declined to consider the prayer, as
prayed for, by order dated 02.03.2023, which is duly
produced at Annexure "K" at Page-82 on the ground that
the respondent No.2 authority has no power to make the
aforesaid changes, as prayed for, by the petitioner in the
petition.
7. At this stage, it is apposite to refer to order passed
by the Division Bench of this Court in LPA No.185 of
2023, and the paragraphs No. 5 and 6 of the said order
reads thus:
"5. As noted above, learned Single Judge was satisfied, more
particularly having regard to the authenticate documents
such as Pan Card, School Leaving Certificate and Aadhar
Card, which showed the date of birth of the petitioner to
issue the direction in exercise of powers under Article 226 of
the Constitution. They were the documents which could form
valid basis of correcting the date of birth as recorded in these
documents, which included School Leaving Certificate.
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5.1 Even otherwise, the provisions of section 15 of the Act
permits the correction. It says that if it is proved to the
satisfaction that the entry in the birth or death register is
erroneous and required to be corrected, the error could be
corrected.
5.2 When the statutory provision permitted such correction
and learned Single Judge found on merits that such
correction was justified, no submission at the end of
Registrar of Birth and Death could hold good.
5.3 It was contended that the petitioner approached with the
prayer to correct the date of birth after 19 years. Not only
that, the learned Single Judge has taken into account the said
aspect and it was on the basis of the authenticate documents,
the correction was permitted. The petitioner was entitled to
seek such correction even after passage of time.
6. While the order passed by the learned Single Judge could
be said to be eminently proper and legal, when the Registrar
of Birth and Death has chosen to challenge the said order,
this Court prima facie finds that it is extremely doubtful
whether the authority-Registrar of Birth and Death can be
said to be party interested."
8. It is also apposite to refer to the ratio laid down in
the case of Nitaben Nareshbhai Patel Vs. State of Gujarat,
reported in 2008 (1) GLR 884, wherein it has observed in
paragraph 6.6 and 6.7 as under:
"6.6 In view of above position of law, it cannot be said that
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when the petitioner has made an application for correction of
entry in the date of birth etc. which was recorded at the
relevant time, merely because the date of birth sought to be
corrected is later in point of time by three months than the
originally recorded, the authority cannot exercise powers
under Section 15 of the Act read with Rule 11 as above. It
has to consider whether the entry in the birth date is correct
or can be cancelled and denied after making inquiry and
after going through relevant material which may be produced
by the petitioner or which the competent authority may call
for satisfying itself. It is entirely not germane to say that
there was a gap of three months between old birth date and
new birth date so as to refuse to exercise power on that
count.
6.7 In view of above, the competent authority respondent
No.2 herein has to exercise his powers so as to consider the
merits of the request of the petitioner for correction of date
of birth as well as corrections in the name of mother and the
name of grandfather. The respondent No.2 has got powers
for correction in relation to the entries and the name also and
such correction or cancellation also comes within the
purview of the powers under Section 15 of the Act. In the
facts and circumstances of the case, necessary directions are
required to be issued to respondent No.2 authority to
consider and decide the case of the petitioner again by giving
due regard to the material which may be produced by the
petitioner."
9. Considering the facts of the present case, it is also
apposite to refer to Section 15 of the Registration of
Births and Deaths Act, 1969 and Rule 11 of the
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Registration of Births and Deaths Rules, 2004, which read
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."
Rule 11 of the Rules of 2004 reads thus :-
"Rule 11. Correction or cancellation of entry in the register of
births and deaths:
(1) If it is reported to the Registrar that a clerical or formal,
error has been made in the register, or if such error is
otherwise noticed by him and if the Register is in his
possession, the Registrar shall enquire into the matter and if
he is satisfied that any such error has been made, he shall
correct the error (by correcting or cancelling the entry) as
provided in section 15 of the Act and shall send an extract of
the entry showing the error and how it has been corrected to
the District Registrar of Births and Deaths.
(2) In the case referred to in sub-rule (1) if the register is not
in the possession, the Registrar, he/she shall make a report
to the District Registrar of Births and Deaths and call for the
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relevant register and after inquiring into the matter, if he is
satisfied that any such error has been made, make the
necessary correction.
(3) Any such correction as mentioned in sub rule (2) shall be
countersigned by the District Registrar of Births and Deaths
when the register is received from the Registrar.
(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.
(6) If it is proved to the satisfaction of the Registrar that any
entry in the register of births and deaths has been
fraudulently or improperly, he shall make a report giving
necessary details to the officer authorized by the Chief
Registrar by general or special order in this behalf under
section 25 of the Act and on hearing from him take necessary
action in the matter.
(7) In every case in which an entry is corrected or cancelled
under this rule, intimation thereof should be sent to the
permanent address of the person who has given information
under section 8 or section 9 of the Act.... "
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10. Considering the position of law, as referred above
and the provisions of the Act, as referred above, in the
opinion of this Court, the respondent authority has ample
power to consider the application seeking aforesaid
changes in accordance with law. In view thereof, if
required, the respondent authority to call upon the
petitioner to produce relevant documents, and the
petitioner undertakes to produce all the documents that
are required for considering the application seeking
change in the date of birth of the petitioner from
"23.09.1973" to "26.08.1973". In light of the aforesaid,
the impugned order / communication dated 2.3.2023 is
quashed and set-aside. The respondent authority is
directed to consider the application taking into
consideration provisions of Section 15 read with Rule 11
and the ratio as laid down by this Court in LPA No. 185 of
2023 and also the decision reported in 2008 (1) GLR 884.
The aforesaid exercise be undertaken by the competent
authority within a period of 4 weeks of the filing of the
said application.
In view of the aforesaid, the petition is allowed in
part.
Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J)
SAJ GEORGE
