Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Guj) 69

2008 (3) GCD 1768 (Guj)
Hon’ble Mr. Justice Anant S. Dave
Nitaben Nareshbhai Patel
Versus
State of Gujarat & Ors.
Special Civil Application No. 23471 of 20071—Decided on 21/02/2008

Advocates Appeared:
Special Civil Application No. 23471/2007 :
Mr. Chetan K Pandya, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader, for the Respondent No. 1.
Ms. Jirga D. Jhaveri, for the Respondent No. 2.
Rule Not Recd Back, for the Respondent No. 3.
Special Civil Application No. 23616/2007 :
Mr. Bhunesh C. Rupera, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader, for the Respondent No. 1.
Mr. Dhaval Nanavati, for the Respondent No. 2.
Special Civil Application No. 21788/2077 :
Mr. Kirit Patel, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader for the Respondent No. 1.
Mr. Dhaval Nanavati, for the Respondent No. 2.
Special Civil Application No. 29164/2007 :
Mr. Pankaj Soni, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader, for the Respondent No. 1.
Special Civil Application No. 19896/2007 :
Mr. Kirit Patel, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader for the Respondent No. 1.
Special Civil Application No. 6352/2007 :
Mr. Niral Mehta, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader, for the Respondent No. 1.
Mr. Hemant Munsha, for the Respondent No. 2.
Special Civil Application No. 28336/2007 :
Mr. H.T.H. Hakim, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Government Pleader, for the Respondent No. 1.
Mr. HS. Munshaw, for the Respondent No. 2.

Important Point :
What is the extent and power of authority to correct the record of Births and Deaths Register.

Headnote:Registration of Births and Deaths Act, 1969 — Sections 13 and 13(3) — Gujarat Secondary Education Regulation, 1974 — Regulation 12(A) — Gujarat Secondary Education Act, 1972 — Section 54 — Passport Act, 1967 — Passport Rules, 1980 — Births, Deaths and Marriages Registration Act, 1886 —Secs. 28 and 36—Registration of Birth and Deaths Act, 1969—Secs. 15, 29 and 31—Gujarat Registration of Birth & Death Rules, 2004—Rule 11—Births and Deaths—Recorded in the Register—Correction and cancellation—Powers of competent authority—Scope of—Considering the provisions of the Act, and Rules 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 01.04.1970 the date on which new Act of 1969 came into force and correction of error is sought for later on—Rules of 2004 provide and prescribe elaborate procedure and method and manner in which such entry can be corrected or cancelled—It is also beyond doubt that the expression erroneous in form or substance in the Act of 1969 does not confine to simply typing error or clerical mistake—The expression has wide amplitude to include other nature of corrections of form and substance and when authority refuse to do so writ petition is maintainable under the Act—In view of the above position of law Court passed appropriate order in each case.
       Held :
       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 01.04.1970 i.e. the date on which new Act of 1969 came into force and correction of error is sought for later on. [Para 26]
       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. [Para 26]
       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 @ Fazilabanu Suleman Ibrahim vs. State of Gujarat & Ors., 2000 (2) GLR 1553 and Registrar, Birth & Death Rajkot Municipal Corporation vs. Vimal M. Patel Advocate, Letters Patent Appeal No. 231/2001, dated 30.03.2001, there is no doubt that the expression “erroneous in form or substance.” in Section 15 of Act of 1969 is 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 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. [Para 26]
       Petition Allowed

Judgment

Anant S. Dave, J.—Rule. Learned Advocates appearing for the respondents waive service of Rule in all these writ petitions.

2. All these writ petitions involve common question of law and submissions made by the learned Advocates appearing for the petitioners as well as respondents are almost similar in the context of the subject matter of the petition, all the writ petitions are decided finally by common order as agreed by all concern.

3. Before dealing with factual aspects, considering the nature of controversies about powers of competent authority under the Act to correct or cancel entry recorded in the register of Births and Deaths and to what extent correction and cancellation can be made in the said register, it is necessary to refer to statutory provisions of the Act, Rules and also guidelines framed by the respective Government in this regard.

3.01. All the writ petitions under Article 226 of the Constitution of India involves mainly three different statutes namely Registration of Births and Deaths Act, 1969 (Act of 18 of 1969), Regulation 12(A) of Gujarat Secondary Education Regulation, 1974 framed in exercise of power conferred by Section 54 of the Gujarat Secondary Education Act, 1972, and Passport Act, 1967 (Act of 15 of 1967) and Rules, 1980 made thereunder.

3.2. Along with the statutory provisions contained in above Acts, various decisions of this Court on the subject with regard to the interpretation of the provisions of the statute are also necessary to be referred to.

4. It is to be noted that, as early as, in 1886, Registration of Births, Deaths and Marriages Registration Act, 1886 governed by the Act named as the Births, Deaths and Marriages Registration Act, 1886 (for short ‘the repealed Act) having Six Chapters consisting of 37 Sections and particularly Section 28 was pertaining to correction of entry with regard to date of Birth and Death which empowered Registrar of Births and Deaths to correct any entry into the register, when error was erroneous in form or substance and subject to Rules framed in this regard. Section 36 of the above Act of 1886 empowered State Government to frame rules to carry out the purposes of the Act.

5. Later on, the registration of Births and Deaths Act, 1969, an Act No. 18 of 1969 (for short ‘Act of 1969’) was enacted to provide for registration of Births and Deaths and for matters connected there with which came into force w.e.f. 01. 04.1970, The above Act, is divided into 5 Chapters containing 32 Sections and Section 29 and Section 31 are pertaining to repeal and sufferings. Section 29 clearly mentions that nothing in this Act shall be construed to be in derogation of the provisions of Births, Deaths and Marriages Act, 1886 and Section 31 states that subject to the provisions of Section 29, as from the coming into force of this Act in any State or part thereof, so much of any law in force therein as relates to the matters covered by this Act shall stand repealed in such State or part, as the case may be.

6. Thus, this Act of 1969 is not in derogation of Act No. 6 of 1986. Thus, whatever is not inconsistent of Act of 1886 clearly remain operative as on date.

6.1. The Chapter II provides for Registration Establishment at Central, State, District and Local authority level.

7. That new Act of 1969 in Chapter 3 which provides for registration of Births and Deaths and Section 13 is pertaining to delayed registration of births and deaths and Sub- section (3) of above Section 13 empowers a Magistrate of the First Class to pass an order in case if birth or death is not registered within one year by its occurrence. Otherwise, initial registration of births and deaths within a period of one year remain with the authority as provided under Sub-section (1) and Sub-section (2) of Section 13 of the Act. Section 14 deals, with registration or name of child and Section 15 is pertaining to correction or cancellation of entries in the register of Births and Deaths. We are concerned with Section 1

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2008 Supreme(Guj) 69

2008 (3) GCD 1768 (Guj)Hon’ble Mr. Justice Anant S. Dave Nitaben Nareshbhai Patel VersusState of Gujarat & Ors.Special Civil Application No. 23471 of 20071—Decided on 21/02/2008

Important Point :What is the extent and power of authority to correct the record of Births and Deaths Register.

Cases Referred (1)

2008 (3) GCD 1768 (Guj)
Hon’ble Mr. Justice Anant S. Dave
Nitaben Nareshbhai Patel
Versus
State of Gujarat & Ors.
Special Civil Application No. 23471 of 20071—Decided on 21/02/2008

Important Point :
What is the extent and power of authority to correct the record of Births and Deaths Register.