Bhrambhatt Mrugaxiben Anil vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Mr. J.K. Shah, learned Assistant Government Pleader waives service of notice of Rule for Respondents Nos. 1 and 2. Mr. N.V. Anjaria, learned advocate waives service of notice of Rule for Respondent No. 3. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided today.

The challenge in this petition, preferred under Article 226 of the Constitution of India, is to the order dated 04-03-2011, made by Respondent No. 3, Chief Officer, Patan Nagarpalika, to the effect that under the provisions of Section 15 of the Registration of Births and Deaths Act, 1969 ("The Act" for short) and Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 ("The Rule" for short) no power is vested in him to make changes in the date of birth, as recorded in the Register.

The facts of the case, as are relevant for the decision of the petition, are as follows:

3.1 It is the case of the Petitioner that she was born on 15-05-1953, at Patan. The birth of the Petitioner was registered with the competent authority on 16-07-1953, by one of the members of her family. According to the Petitioner her date of birth was wrongly registered as 15-07-1953, instead of 15-05-1953, which resulted in issuance of the Birth Certificate wherein the incorrect date of birth was recorded. The Petitioner asserts that her correct date of birth is reflected in the School Leaving Certificate and in the Passport issued by the competent authority. Moreover, the correct date of birth also figures in her Driving License and PAN Card. The Petitioner is desirous of settling down abroad. On gathering necessary documents for the said purpose, she realised that there is a discrepancy in the date of birth mentioned in the Birth Certificate. She, therefore, approached Respondent No. 3 by making a representation on 19-02-2011, annexing copies of the School Leaving Certificate, Passport, Driving License and PAN Card, in order to enable the said authority to make the necessary correction in the Birth Certificate. The representation of the Petitioner was rejected by Respondent No. 3, vide impugned order dated 04-03-2011, mentioned herein-above. Aggrieved thereby, the Petitioner has approached this Court by way of the present petition.

Mr. Digant Popat, learned advocate for the Petitioner has submitted that the stand taken by Respondent No. 3 in the impugned order is not correct as Respondent No. 3 is vested with the power u/s 15 of the Act to correct or cancel an entry in the Register of Berths and Deaths. It is further submitted, that by passing the impugned order Respondent No. 3 is refusing to exercise the power vested in him by the Act, in spite of the fact that the Petitioner has produced necessary documents before him. The learned advocate for the Petitioner has further contended that the action of Respondent No. 3 in rejecting the representation of the Petitioner and refusing to exercise the power vested in him by the Act, on the ground that he has no power to correct the date of birth in the Register, is against the settled position of law.

Reliance has been placed upon the judgment in the case of Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, , wherein it has been held that the competent authority has the power to correct or cancel an entry in the Register and when the said authority fails to exercise such powers, a writ of Mandamus can be issued.

Mr. J.K. Shah, learned Assistant Government Pleader has fairly stated that in view of the law laid down by this Court in Nitaben N. Patel v. State of Gujarat (Supra), there can be no doubt that Respondent No. 3 is vested with the power to change the date of birth of the Petitioner in the Birth Register, in accordance with law.

Mr. N.V. Anjaria, learned advocate for the Respondent No. 3 has opposed the grant of the prayers made in the petition, on the ground that the representation for change of date of birth has been made after an inordinate delay, for which there is no explanation. He has, accordingly prayed that the petition be dismissed.

I have heard the learned Counsel for the respective parties and perused the averments made in the petition, contents of the impugned order and other documents on record.

The issue involved in the petition is whether Respondent No. 3 is vested with the power to make a correction in the date of birth,as recorded in the Register of Berths and Deaths, or not. The clear stand taken by the said Respondent is that no such power is vested in him. A bare perusal of the relevant provisions of the Statute, namely, Section 15 belies this stand. The said Section is reproduced herein-below:

Correction or cancellation of entry in the registrar 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.

It may also be fruitful to refer to Rule 11 of the Rules, which is reproduced herein-below:

Correction or cancellation of entry in the register of berths 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 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 u/s 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 made 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 u/s 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 u/s 8 or Section 9 of the Act.

A combined reading of Section 15 of the Act and Rule 11 of the Rules leaves no manner of doubt that the competent authority is vested with the power to make a correction of an entry of birth or death, in any Register kept by him, subject to it being proved to his satisfaction that it is required to be corrected. The procedure to be followed is laid down in detail in Rule 11.

Apart from the above provisions of law, the legal position in this regard is no longer res integra. After examining several relevant judgments, this Court dealt exhaustively with various issues and contingencies arising in case such as the present one in Nitaben N. Patel v. State of Gujarat (Supra). The relevant extract of the judgment is as follows:

****

(A) ****

"(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 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) ****

(E) When the authority empowered to exercise power u/s 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.

(emphasis supplied)

Examined in the light of the statutory provision, relevant Rule and the principles of law culled out in the above-mentioned judgment, it is evident that the impugned order of Respondent No. 3 is clearly erroneous,being contrary to the provisions of law and the settled legal position. The refusal of Respondent No. 3 to exercise power vested in him under the Act and Rules certainly calls for the interference of this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

In view of the afore-stated legal position, the impugned order dated 04-03-2011, is hereby quashed and set aside. Respondent No. 3 is directed to exercise power vested in him u/s 15 of the Registration of Births and Deaths Act, 1969 and Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004, and to decide the representation of the Petitioner dated 19-02-2011 for correction of the date of birth in the Register in accordance with law. The necessary action shall be taken within a period of four weeks from the date of receipt of a copy of this order.

The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.

Direct service is permitted.