Patel Bhavesh Vishnubhai vs State of Gujarat and Others

Abhilasha Kumari, J.

Rule. Mr. P.P. Banaji, learned Assistant Government Pleader waives service of notice of Rule for respondent No. 1 and Mr. H.S. Munshaw, learned Advocate, waives service of notice of Rule for respondent No. 2. On the facts and in the circumstances of the case and with the consent of learned Counsel for the respective parties, the petition is being heard and decided finally. By preferring this petition under Art., 226 of the Constitution of India, the petitioner has, inter alia, prayed that the impugned order/communication dated 10-3-2012, passed by respondent No. 2-Talati-cum-Mantri, Kada Gram Panchayat, Taluka Visnagar, District Mehsana, be quashed and set aside and the said respondent be directed to correct the name and date of birth of the petitioner in the Register of Births and Deaths and to issue a Birth Certificate with the correct name and date of birth of the petitioner.

According to the petitioner, he was born on 20-8-1991, at Puranpura, Post Kada, Taluka Visnagar, District Mehsana. An entry regarding his birth was registered in the relevant record vide Registration No. 85 of 1991, and a Birth Certificate was issued accordingly. It is the case of the petitioner that his date of birth has wrongly been recorded as 1-11-1991, instead of 20-8-1991. The petitioner further states that his name is Bhavesh and not Bhaveshkumar and, therefore, his correct name has not been recorded in the relevant record and the Birth Certificate. The other documents of the petitioner including his School Leaving Certificate, records the correct date of birth and name of the petitioner. The petitioner made an application to respondent No. 2 requesting that his name and date of birth be corrected in the relevant record and a fresh Birth Certificate with the corrected entries be issued to him. The said application has been rejected by respondent No. 2 by passing the impugned order dated 10-3-2012, on the ground that the said respondent does not have the power to carry out the necessary corrections. Aggrieved thereby, the petitioner has approached this Court by way of filing the present petition.

Pursuant to the issuance of notice, respondent No. 2 has filed an affidavit-in-reply, affirmed on 10-7-2014.

Ms. Amrita Ajmera, learned Advocate for Mr. Daifraz Hawewalla, learned Advocate 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 him to correct an erroneous entry regarding the date of birth in the Birth Certificate. As such, the said respondent has failed to discharge his statutory duties and to exercise the power conferred upon him by way of the statute, which has resulted in a serious miscarriage of justice.

It is submitted that this issue is no longer res integra and this Court has, in the case of Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, , 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.

Mr. H.S. Munshaw, learned Advocate for respondent No. 2, has drawn the attention of the Court to the affidavit-in-reply filed on behalf of the said respondent, especially, Paragraph 3 thereof, wherein it is stated that the petitioner has approached respondent No. 2 for changing his name and date of birth without producing any justifiable or satisfactory documents. It is further stated that there is no error on the part of respondent No. 2 in registering the date of birth of the petitioner as 1-11-1991, and his name as Bhaveshkumar. That the petitioner is not justified in making the prayers made by him before this Court without producing any substantive material in support thereof, before respondent No. 2.

Mr. P.P. Banaji, learned Assistant Government Pleader, submits that in view of the principles of law enunciated in the judgment of Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, , the Court may pass an appropriate order.

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 Sec. 15 of the Registration of Births and Deaths Act, 1969 ("the Act" for short) 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."

In addition thereto, reference may be made to Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 ("the Rules" for short) 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 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 canceling the entry) as provided in Sec. 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 Sec. 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 Sec. 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 Sec. 8 or Sec. 9 of the Act."

A combined perusal of Sec. 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.

In Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, , 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 Sec. 28 of the Repealed Act of 1886 and provisions contained in Secs. 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 Sec. 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, Government 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, Government 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 of 1999 and 231 of 2001 in the case of Mulla Faizal @ Fazilabanu Suleman Ibrahim Vs. State of Gujarat and Others, and Registrar, Birth and Death Rajkot Municipal Corporation (supra), there is no doubt that the expression erroneous in form or substance in Sec. 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 Sec. 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 Sec. 15 of the Act and Rule 11 of the State Rules, 2004, refuse to do so, writ petition is maintainable under Art. 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 Sec. 27 of the Act of 1969 is pertaining to delegation of powers and Sec. 32 empowers to 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 of 2006 by an order dated 30-7-2007 by which the judgment of the learned Single Judge in Special Civil Application No. 2716 of 2006 is stayed."

(Emphasis supplied)

A perusal of the impugned order goes to show that the only ground stated therein is that respondent No. 2 does not have the power to make the necessary correction. It has not been stated in the impugned order that the petitioner has not produced sufficient material on record in order to enable respondent No. 2 to carry out the necessary correction, as is now being stated in the affidavit-in-reply filed by respondent No. 2.

When respondent No. 2 has chosen not to exercise the jurisdiction vested in him under Sec. 15 of the Act and Rule 11 of the Rules, it does not lie in his mouth to state in the affidavit-in-reply, that the petitioner has not produced sufficient material on record, especially when that is not the reason mentioned in the impugned order.

It is a settled position of law that an order made by a statutory functionary, based on certain grounds, cannot be supplemented by fresh reasons in the shape of an affidavit, or otherwise. The Supreme Court, in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , has elaborated upon the above principle of law in the following terms:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhanji.

Referring to Commissioner of Police, Bombay Vs. Gordhandas Bhanji, :

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

Hence, the reasons stated in the affidavit-in-reply filed on behalf of respondent No. 2 cannot be looked into or taken into consideration by this Court, being extraneous to the impugned order.

The judgment in the case of Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, , applies on all fours to the present case. It is absolutely clear that respondent No. 2 has been empowered by Sec. 15 of the Act and Rule 11 of the Rules, to make a correction in any entry in the Register of Births and Deaths, or to cancel such entry. Of course, the procedure envisaged in Sec. 15 of the Act and Rule 11 of the Rules will have to be followed. Without following such procedure, respondent No. 2 cannot state in the affidavit-in-reply, that the petitioner did not produce sufficient material when, evidently, the application has been decided by him on the sole ground that he does not have the power to make the necessary corrections.

Respondent No. 2 cannot speak in two voices at the same time and such a stand cannot be appreciated by this Court.

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 it 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. 1 is, therefore, directed accordingly.

Insofar as the impugned order in the present petition is concerned, it is clear from a perusal thereof that respondent No. 2 has simply refused to exercise the jurisdiction vested in him 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 him 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.

Accordingly, the petition is partly allowed. The impugned order dated 10-3-2012, is quashed and set aside. Respondent No. 2 is directed to decide the application made by the petitioner afresh and in accordance with law, within a period of four weeks from the date of the receipt of a copy of the order of this Court. Rule is made absolute to the above extent. There shall be no orders as to costs.

Direct Service of this order is permitted.