[Cites 14, Cited by 0]
Gujarat High Court
Labhuben Gokalbhai Marviya vs State Of Gujarat on 23 April, 2026
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C/SCA/16624/2024 JUDGMENT DATED: 23/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16624 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
✔
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LABHUBEN GOKALBHAI MARVIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KUNAL S SHAH(5282) for the Petitioner(s) No. 1
MR ANGESH PANCHAL AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 23/04/2026
ORAL JUDGMENT
1. RULE returnable forthwith. Learned Assistant Government
Pleader waives services of notice of rule on behalf of the respondent -
State Authorities.
2. With the consent of learned counsel appearing for the
respective parties, the present petition is taken up for final hearing.
3. Present petition is filed by the petitioner under Article 226 of
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the Constitution of India and under the provisions of the Births and
Deaths Registrations Act, 1969 for quashing and setting aside the
order dated 04.10.2024 passed by respondent No.2 and for direction
to the respondents to issue birth certificate to the petitioner
mentioning her date of birth as 21.07.1951 at Village Chowki, Taluka
and District: Junagadh.
4. Heard Mr.Kunal Shah, learned counsel for the petitioner and
Mr.Angesh Panchal, learned Assistant Government Pleader for the
respondent - authorities.
5. Learned counsel for the petitioner, has submitted that the
impugned order passed by respondent No.2, deserves to be quashed
and set aside as the said respondent has not exercised the jurisdiction
vested upon it to issue the Birth Certificate. It is also submitted that
the the petitioner has produced two affidavits of elder to support her
case, but the same has not been considered by the authority. As such,
the said respondent - authority has failed to discharge its statutory
duties and to exercise the power conferred upon it by way of the
statute, which has resulted in serious miscarriage of justice.
5.1 It is submitted that this issue is no longer res integra and this
Court has, in the case of Nitaben Nareshbhai Patel Vs. (The)
State of Gujarat and Others, reported in 2008 (1) GLH 556, held
that when the Competent Authority fails to exercise the powers
conferred by the statute, a writ of mandamus can certainly be issued
to such authority to act in accordance with the provisions of the
statute. It is, therefore, submitted that the prayers made in the
petition be granted.
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6. Learned Assistant Government Pleader, submits that in view of
the principles of law enunciated in the judgment of Nitaben
Nareshbhai Patel v. (The) State of Gujarat and Ors. (supra), the Court
may pass an appropriate order.
7. This Court has heard learned counsel for the respective parties,
perused the averments made in the petition and documents annexed
thereto, including the impugned order. In this context, it would be
pertinent to refer to the provisions of Section 15 of the Act, which
confers the power of correction or cancellation of an entry in the
Register of Births and Deaths. The said provision reads as below:
"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 correct 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."
8. In addition thereto, reference may be made to Rule 11 of the
Gujarat Registration of Births and Deaths Rules, 2004, which lays
down the procedure for correction or cancellation of an entry in the
Register of Births and Deaths. This rule is reproduced as below:
"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
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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 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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9. A combined perusal of Section 15 and Rule 11, as reproduced
above, leaves no manner of doubt that respondent No.2 is vested with
the power to make a correction in an entry in the Register of Births
and Deaths and, therefore, in the Birth Certificate.
10. In Nitaben Nareshbhai Patel v. (The) State of Gujarat and Ors.
(supra), this Court has exhaustively dealt with the refusal of the
Competent Authority to exercise power in cases similar to the present
one and has held as below:
"26. Thus in the nutshell, what emerges from the factual
and legal submissions made and conclusions arrived in
earlier paragraph is as under:
(A) In view of the provisions of Section 28 of the
Repealed Act of 1886 and provisions contained in Sections
29 and 31 of the Act of 1969, by which erstwhile provision
of correction/cancellation of entries in the register of birth
and death, which is not in derogation, remained alive in
Section 15 of the new Act and, therefore, the authority is
empowered to correct erroneous entries in the register of
birth and death, even in a case where registration was
made prior to 1.4.1970 i.e. the date on which new Act of
1969 came into force and correction of error is sought for
later on.
(B) Section 15 of the Act of 1969 read with Rule 11 of the
State Rules, 2004 along with Chapter 9, Clause 9.6 and 9.7
of the Handbook of Registrar General, Ministry of Home
Affairs, Govt. of India and Clause 5.8 of Chapter 5 of
guidelines contained in vernacular Gujarati adequately
conferred power upon the authority to correct/cancel
erroneous entries and provide for complete mechanism for
types of errors to be corrected.
(C) Section 15 of the Act of 1969 empowers Registrar of
Birth and Death to correct any erroneous entry in form or
substance or any entry which has been fraudulently or
improperly made. Rule 11 of Rules, 2004 and particularly
Sub Rule 1 provide for any entry, any error which may be
clerical or formal and Sub Rule 4 of the above Rule 11
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mention about any entry which may be erroneous in
substance and Sub Rule 6 of Rule 11 refer to any entry
which is fraudulently or improper is to be corrected by the
Registrar and an elaborate procedure is provided which
prescribe method and manner in which such entry to be
corrected or cancelled and report to be made to the higher
authority, which may rule out in misuse of power by
registering authorities.
Thus, clause 9.6 and 9.7 of Chapter 9 of the Handbook of
Registrar General, Ministry of Home Affairs, Govt. of India
provide for corrections and cancellations of entries and
contain clerical or formal error, error in substance or
fraudulent or improper entry and once any error in
substance is to be corrected, it covers error of such nature
which is an error of substance or form. That similar types of
errors are mentioned in Clause 5.8 of Chapter 5 of
vernacular guidelines published by the State Authorities
under the Act.
(D) The above proposition of law stand fortified by the
decisions of this Court in two Letters Patent Appeal Nos.
195/1999 and 231/2001 in the case of Mulla Faizal &
Faxilabanu Suleman Ibrahim and Registrar, Birth and Death
Rajkot Municipal Corporation (Supra), there is no doubt that
the expression "erroneous in form or substance" in Section
15 of Act of 1969 is an expression of vide amplitude and
does not confine to simple typing errors or clerical
mistakes and no guidelines or circulars can take away
powers of the Register of making correction in entries
which are erroneous in form or substance in register as
envisaged under Section 15 of Act of 1969 and Rule 11 (1)
to (7) of the State Rules, 2004.
(E) When the authority empowered to exercise power
under Section 15 of the Act and Rule 11 of the State Rules,
2004, refuse to do so, writ petition is maintainable under
Article 226 of the Constitution of India for issuing
appropriate directions to the authority.
(F) The kind and types of directions to be issued to the
authority depend on facts and circumstances of the each
case and nature of denial of legal right to the aggrieved
persons by the authority.
(G) That even Section 27 of the Act of 1969 is pertaining
to delegation of powers and Section 32 empowers to
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concerned Government to remove the difficulties and,
therefore, the appropriate Government or any authority
upon whom the powers are delegated can act in
accordance with scheme of the Act and appropriate
directions can be given accordingly.
(H) So far as matters arising out of the Regulation 12(A)
of the Gujarat Secondary Education Regulation, 1974 is
concerned, law as on date is governed as in the case of
Soorat Jessomal Khanchandani (supra) and Thakore Nilesh
Shishirbhai (supra).
(I) So far as the matters arising out of the Passport Act,
1967 and Rules, 2000, is concerned, law as on date is
governed as in the case of REGIONAL PASSPORT OFFICER
(supra) in view of admission of L.P.A. No.1673/2006 by an
order dated 30.7.2007 by which the judgment of the
learned Single Judge in Special Civil Application
No.2716/2006 is stayed."
(emphasis supplied)
11. The principles of law enunciated in the above quoted judgment
would squarely apply in the present case. It is disheartening to note
that even though this Court has, on various occasions, rendered a
plethora of judgments setting aside the orders whereby the
Competent Authority has refused to exercise the jurisdiction vested in
him by the statute, the same kind of stereotyped orders are being
passed time and again, refusing to exercise the power vested by law.
It would, therefore, be appropriate to direct the State Government to
take appropriate steps, so that the judgments rendered by this Court
in this regard are brought to the notice of the competent authorities
under the Act so as to put an end to continuous multifarious litigation
on an issue that has already been decided. Respondent No.2 is,
therefore, directed accordingly.
12. Insofar as the impugned order in the present petition is
concerned, it is clear from a perusal thereof that concerned
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respondent - authority has simply refused to exercise the jurisdiction
vested in it by the statute, by conveniently putting the onus on the
Court. When the statute has conferred power upon the said
respondent, it is incumbent upon it to exercise it judiciously and in
accordance with law. There is no justifiable reason why respondent
No.2 has refused to act in accordance with law and decide the
application of the petitioner. Hence, the impugned order deserves to
be quashed and set aside.
13. In view of the aforesaid facts and circumstances of the case, the
petition is partly allowed. The impugned order is quashed and set
aside. The petitioner shall prefer an application before the respondent
- authority within a week and the respondent - authority is directed to
decide an application as early as possible preferably within a period of
four weeks and in accordance with law. Rule is made absolute to the
aforesaid extent. Direct service is permitted.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
