Allowed

Mansuri Parvez Dilavar v. State of Gujarat

Gujarat HC13 Oct 2023SCA/8640/2023

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed the order rejecting an application to correct a petitioner's birth date from 1981 to 1982. Despite the three-month delay, the court held the statutory authority must exercise its power under Section 15 of the Registration of Births and Deaths Act, 1969, read with Rule 11, to consider the merits of the application supported by documentary evidence.

What did the court decide?

The impugned order dated 9.3.2023 was quashed and set aside, and the respondent authority was directed to consider the correction application within two weeks.

Mansuri Parvez Dilavar Vs State of… — Constitutional and Fundamental Rights | Gujarat HC (2023)

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 8640 of 2023

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MANSURI PARVEZ DILAVAR

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Versus

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STATE OF GUJARAT

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Appearance:

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MS F P MADHU(3497) for the Petitioner(s) No. 1 MS. SURBHI BHATI, AGP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 13/10/2023

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ORAL ORDER

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Leave to amend. To be carried out forthwith.

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By way of present petition, the petitioner herein has prayed for the following reliefs:

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"15. The petitioner therefore, humbly prays;

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A) That, the Hon'ble Court may be pleased to admit this petition.

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B) That, the Hon'ble Court may be pleased to allow the present SCA by quashing and setting aside the order passed by the respondent authority and seeking direction to the registrar under the registration of the Birth and Death Act, 1969 to issue a fresh birth certificate in the name of petitioner after making necessary correction in date of birth from 17.4.1981 to 17.4.1982 within 2 weeks in the interest of the justice;

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C) That the Hon'ble Court may be pleased to allow the present SCA by quashing and setting aside order passed by

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Page 1 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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the respondent authority and seeking direction to the registrar under the registration of the Birth and Death Act, 1969 to issue a fresh birth certificate by correcting the name of the mother as Amirbanu Mansuri @ Nargis in new birth certificate in the interest of the justice;

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D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice".

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The petitioner has challenged the communication dated 9.3.2023, which is duly produced at Annexure "A" at Page-13, passed by the Respondent No.2 - Chief Officer, Birth and Death Registration, Bhuj Nagar Seva Sadan, Bhuj, rejecting the application seeking change in the birth date in the birth certificate of the petitioner from "17.4.1981" to "17.4.1982", filed by Amirbanu D. Mansuri vide application bearing No. 10626 dated 9.3.2023.

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Heard Ms. F.P. Madhu, the learned advocate appearing for the petitioner and Ms. Surbhi Bhati, the learned AGP for the respondent No.1. Though served, none appears for respondent No.2.

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Ms. Madhu, the learned advocate appearing for the petitioner submitted that the petitioner preferred application dated 15.11.2022, duly produced at page-18, seeking change in the birth date in the birth certificate of

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Page 2 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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the petitioner from "17.4.1981" to "17.4.1982", which came to be declined by the respondent no.2 authority by order dated 30.11.2022 at Page-28 (Annexure "E"), on the ground that in the record of the respondent No.2, the date of birth is recorded as 17.4.1981 and since the same is correct, new birth certificate with changed date of birth 17.4.1982 cannot be issued.

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5.1 Pursuant to the above order, the petitioner approached this Court by filing SCA No. 25932 of 2022. This Court, vide order dated 9.2.2023, taking into consideration the ratio as laid down in the case of Nitaben Nareshbhai Patel v. State of Gujarat reported in 2008 (1) GLH 556, observed that the respondent authority has power to make change in the register and directed the competent authority to exercise its power vested in it pursuant to the application preferred by the petitioner for correction as prayed for.

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5.2 Pursuant to the said order dated 9.2.2023, the petitioner approached the respondent authority, reiterating the request, by application dated 9.3.2023 preferred by Amirbanu D. Mansuri. The said application also came to be rejected by the respondent No.2 by communication/ order dated 9.3.2023.

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Being aggrieved by the impugned order dated

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Page 3 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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9.3.2023, the petitioner herein has again approached this Court seeking the reliefs, as referred hereinabove.

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The petitioner is put to the second round of litigation. The petitioner herein does not press the prayer 15(C) seeking issuance of fresh birth certificate by correcting the name of the mother as Amirbanu Mansuri@ Nargis in new birth certificate.

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Ms. Madhu, the learned advocate appearing for the petitioner submitted that while preferring the application dated 15.11.2022 seeking change in the birth date of the petitioner from "17.4.1981" to "17.4.1982", has produced all the documents germane for consideration of change as prayed for along with the application i.e.

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(i) Photocopy of PAN Card.

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(ii) Photocopy of Driving Licence;

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(iii) Photocopy of Aadhar Card of the petitioner.

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(iv) Photocopy of Passport

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(v) Photocopy of the School Leaving Certificate.

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7.1 It was submitted that inspite of the aforesaid documents produced on record, the respondent authority declined to consider the application seeking the aforesaid change in the birth date of the petitioner.

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Though served, none has appeared for respondent

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Page 4 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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No.2 Authority.

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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:

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"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.

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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.

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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,

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Page 5 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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the correction was permitted. The petitioner was entitled to seek such correction even after passage of time.

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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."

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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:

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“6.6 In view of above position of law, it cannot be said that 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.

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6.7 In view of above, the competent authority respondent

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Page 6 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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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.”

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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 Registration of Births and Deaths Rules, 2004, which read thus:-

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“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.”

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Rule 11 of the Rules of 2004 reads thus :-

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Page 7 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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"Rule 11. Correction or cancellation of entry in the register of births and deaths:

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(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.

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(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.

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(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.

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(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.

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(5) Notwithstanding anything contained in sub rule (1) and

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Page 8 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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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.

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(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.

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(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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Considering the position of law, as referred above and the provisions of the Act, as referred above, in the opinion of this Court, the Order dated 9.3.2023 at Page13 (Annexure "A") passed by the respondent No.2 authority is required to be quashed and set aside in view of the fact that the respondent authority has ample power to consider the application of the petitioner seeking change in the date of birth of the petitioner in accordance with Section 15 read with Rule 11 of the Act respectively.

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In view of the above, the order passed by the respondent authority dated 9.3.2023 is quashed and set-

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Page 9 of 10

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C/SCA/8640/2023 ORDER DATED: 13/10/2023

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aside and the respondent authority is directed to consider the application of the petitioner dated 15.11.2022, seeking change in the birth date of the petitioner in the birth certificate from "17.4.1981" to "17.4.1982", in accordance with law, within a period of two weeks from the date of receipt of this order, taking into consideration the ratio as laid down by this Court, as referred above and the provisions of the Act and position of law, as referred above. The respondent authority while deciding the application shall also take into consideration the documents which are produced on record along with the application i.e. (i) Photocopy of PAN Card, (ii)Photocopy of Driving Licence; (iii) Photocopy of Aadhar Card of the petitioner; (iv) Photocopy of Passport; and (v) Photocopy of the School Leaving Certificate.

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In view of the aforesaid, the petition stands allowed to the aforesaid extent.

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Direct Service is permitted.

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(VAIBHAVI D. NANAVATI,J)

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SAJ GEORGE

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Mansuri Parvez Dilavar v. State of Gujarat

Case brief

What is this about?

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Mansuri Parvez Dilavar v. State of Gujarat

Case brief

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