Bharatkumar Somdas Prajapati through Poa Vikas Bharatbhai Prajapati Vs State of Gujarat

C/SCA/1184/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 1184 of 2019

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BHARATKUMAR SOMDAS PRAJAPATI THROUGH POA VIKAS BHARATBHAI

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PRAJAPATI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR HARISH J SONI(5142) for the Petitioner(s) No. 1
MRS BHARGVI H SONI(6243) for the Petitioner(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 22/02/2019

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ORAL ORDER

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1.This petition is filed under Article 226 of
the Constitution of India in which the petitioner
has prayed for the following relief/s:

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“(A) YOUR LORDSHIPS be pleased to admit and
allow this petition;

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(B)YOUR LORDSHIPS be pleased to issue a
writ of mandamus or a writ in the nature
of mandamus or any other appropriate writ,
order or direction, quashing and setting
aside the order dated 28.08.2018 passed by
respondent no.2. And further be pleased to
direct the respondents to forthwith carry
out correction in respect of birth date of
petitioner as “1.6.1969” instead of
“20.5.1970”,inthebirth
certificate/register, as per documents
annexed atAnnexure-CColly,and
consequentiallygivedirectionsto
respondents toissuefreshbirth
certificate containing the correct birth
date of the petitioner, in the interest of

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Page 1 of 6

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C/SCA/1184/2019 ORDER

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justice;

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(C)Pending the admission, hearing and
final disposal of this petition, YOUR
LORDSHIPS may be pleased to stay he
implementation, operation and order dated
28.8.2018 passed by respondent no.2 and
further be pleased to direct the
respondents to carry out correction in
respect of birth date of petitioner as
“1.6.1969” instead of “20.5.1970” in the
birthcertificate/register,asper
documents annexed at Annexure-C Colly, and
consequentiallygivedirectionsto
respondents toissuefreshbirth
certificate containing the correct birth
date of the petitioner, in the interest of
justice;

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(D)YOUR LORDSHIPs may be pleased to
direct grant such other and further
reliefs as may be deemed fir and proper,
in the interest of justice and equity;”

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2.Heard learned advocate Mr. Harish Soni for
the petitioner and learned Assistant Government
Pleader Ms. Asmita Patel for respondent No.1.
Though served, none appears for respondent No.2.

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3.Learned advocate for the petitioner submits
that the petitioner was born on 01.06.1969.
However, through inadvertence, the relative of
the petitioner informed the respondent authority
about the date of birth of the petitioner as
20.05.1970. It is submitted that therefore the
respondent authority has issued birth certificate
in favour of the petitioner in which incorrect
date of birth is recorded.

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Page 2 of 6

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C/SCA/1184/2019 ORDER

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4.It is submitted that in other record i.e. in
School Leaving Certificate and Passport, the
correct date of birth of the petitioner is
recorded. On the basis of the same, petitioner
submitted application to respondent No.2 for
correction. However, the request was not
entertained. Therefore, petitioner filed petition
being Special Civil Application No.2380 of 2017
before this Court. It is submitted that this
Court has disposed of the said petition vide
order dated 10.07.2018 with direction to the
respondent No.2 to consider the request of the
petitioner and after making inquiry, appropriate
order is to be passed. It is contended that
without conducting appropriate inquiry as
contemplated under Section 15 of the Registration
of Births and Deaths Act, 1969 (hereinafter
referred to as 'the Act of 1969') and the Gujarat
Registration of Births and Deaths Rules, 2004
(hereinafter referred to as 'the Rules of 2004'),
now respondent No.2 has passed impugned order
dated 28.8.2018, by which, the request of the
petitioner is rejected and while rejecting the
request of the petitioner, the respondent
authority has placed reliance upon circular dated
18.02.2016 issued by the Chief Registrar, Births
and Deaths and Commissioner (Health), State of
Gujarat.

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5.At this stage, learned advocate for the
petitioner has placed reliance upon the
provisions contained in Section 15 of the Act of

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Page 3 of 6

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C/SCA/1184/2019 ORDER

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1969 and Rule 11 of Rules of 2004. Learned
advocate has also placed reliance upon order
dated 16.01.2019 passed by this Court in Special
Civil Application No.19054 of 2018 as well as
order dated 13.10.2017 passed in Special Civil
Application No.9752 of 2017. In view of the
aforesaid submissions, it is contended that the
impugned order dated 28.8.2018 be set aside and
respondent No.2 be directed to consider the
aforesaid decisions and provisions of the Act of
1969 and Rules of 2004.

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6.At the outset, it is required to be noted
that when the request of the petitioner was not
accepted by the respondent authority, petitioner
preferred Special Civil Application No.2380 of
2017 before this Court and the said petition was
disposed of vide order dated 10.07.2018 by which
direction was given to respondent No.2 to decide
the application of the petitioner after making
inquiry. From the impugned order dated 28.8.2018
passed by the respondent No.2, it is revealed
that though respondent No.2 has made certain
observations, he has not considered the
documentary evidence produced by the petitioner.
It is further required to be noted that circular
dated 18.02.2016 issued by the aforesaid
authority is considered by this Court in the
order dated 16.01.2019 passed in Special Civil
Application No.19054 of 2018, wherein this Court
has observed in para 22, 25 and 26 as under:

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C/SCA/1184/2019 ORDER

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“22. From the aforesaid statutory provisions
and the decisions rendered by this Court,
following aspects would emerge:

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(a) The expression “erroneous in form of
substance” in Section 15 of the Act of 1969
is

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an expression of wide amplitude and does not
confine to simple typing errors or clerical
mistakes and no guidelines or circulars can
take away powers of the Registrar of making
correction in entries which are erroneous in
form or substance in register as envisaged
under Section 15 of the Act of 1969 and Rule
11(1) to (7) of the State Rules, 2004.

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(b) The Registrar appointed under the
provisions of the Act of 1969 has got powers
for correction in relation to the entries and
the name also in the Register/ Birth
Certificateandsuchcorrectionor
cancellation also comes within the purview of
powers under Section 15 of the Act of 1969.

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(c)The competent authority appointed under
the provisions of the Act of 1969 has to
consider whether the entry in the Birth
Certificate/Register can be corrected or not,
after making inquiry and after going through
the relevant material, which may be produced
by the concerned applicant or which may be
called by competent authority for satisfying
itself.

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XXX XXX XXX

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25. Thus, answer to issue No.(i) framed as
above, is that Circular dated 18.02.2016
issued by the Registrar, Births and Deaths
and Commissioner (Health), State of Gujarat,
cannot override the statutory provisions and
answer to Issue No.(ii) is that Competent
Authority appointed under the provisions of
the Act of 1969 and Rules framed thereunder
cannot simply rely upon the circular and
reject the request of the concerned
applicant,

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C/SCA/1184/2019 ORDER

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without making necessary inquiry.

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26. Keeping in view the aforesaid legal
position, if the facts as discussed
hereinabove are examined, it is revealed that
respondent No.2 has rejected the request of
the petitioner simply relying upon the
Circular dated 18.02.2016 issued by the Chief
Registrar, Births and Deaths and Commissioner
(Health), State of Gujarat. It is not in
dispute that while rejecting the request of
the petitioner, respondent No.2 has not
carried out any inquiry nor examined the
documentary evidence produced by the
petitioner. Therefore, the said decision
taken by respondent No.2 is required to be
set aside.”

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7.In view of the aforesaid decision, this Court
is of the view that present case is covered by
the aforesaid order, accordingly, the petition is
partly allowed and impugned order dated 28.8.2018
is set aside. Respondent No.2 is directed to
consider the case of the petitioner and after
making appropriate inquiry and after considering
the documentary evidence, respondent No.2 shall
pass fresh order within a period of four weeks
from the date of receipt of this order, in
accordance with law. At the time of passing the
order, respondent No.2 shall also consider the
order dated 16.01.2019 passed by this Court in
Special Civil Application No.19054 of 2018. It is
clarified that this Court has not examined the
documents of the petitioner.

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Direct service is permitted.

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(VIPUL M. PANCHOLI, J)

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Jani

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Bharatkumar Somdas Prajapati through Poa Vikas Bharatbhai Prajapati v. State of Gujarat

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Bharatkumar Somdas Prajapati through Poa Vikas Bharatbhai Prajapati v. State of Gujarat

Case brief

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What the court decided

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