JUDGMENT

1. RULE returnable forthwith. Mr. Nikunj Kanara, learned AGP waives service of notice of rule on behalf of the respondent no.1 and Mr. Rohan Shah, learned counsel waives service of notice of rule on behalf of the respondent no.2. With the consent of the learned counsel for the respective parties, the present petition is taken up for final hearing today.

2. The present petition is filed by the petitioner under Articles 14, 16 and 226 of the Constitution of India read with the provisions of The Registration of Births and Deaths Act, 1969 and Gujarat Registration of Births and Death Rules, 2004 seeking following reliefs:

“A. Be pleased to admit and allow this petition.

B. Be pleased to pass appropriate order and be pleased to direct the respondent No.2 to correct husband’s father name in death certificate Manguben i.e. Bhalaji Nathaji instead of Bhalaji Motiji.

C. Be pleased to pass any other appropriate order, as deemed fit, in the interest of justice.”

3. Brief facts giving rise to the present petition are that, the mother of the petitioner – Manguben passed away on 03.02.1990 in LG Hospital. That, at the time of filling up the documents for Manguben, while getting admitted in hospital, the name of husband’s father was mentioned as Bhalaji Motiji instead of Bhalaji Nathaji and hence, in the death certificate her name is mentioned as Manguben Bhalaji Motiji. That, for the purpose of preparing pedhinama, the concerned notary and Talati cum Mantri raised objection on the incorrect name and stated that pedigree cannot be prepared. That, the petitioner wishes to sell his land but due to this error he is not able to do so. That, the petitioner had submitted an application and also sent a notice to respondent no.2 but respondent no.2 informed orally that order of this Court is required to carry out the correction. Being aggrieved by the same, the petitioner has preferred the present petition.

4. Heard the learned counsel for the petitioners. Perused the materials available on record.

5. Mr. Maulik Soni, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition and has also submitted that the inaction on the part of the respondent no.2 in not correcting the death certificate is illegal, unjust, arbitrary, erroneous and contrary to the facts and material on record.

5.1 In support of his contention, learned counsel for the petitioner has referred and relied upon the decision of this Court in the case of Nitaben Nareshbhai Patel Vs. State of Gujarat reported in 2008 (1) GLR 884, where this Court had an occasion to decide the issue in relation to the powers and scope under section 15 of the Registration of Births and Deaths Act, 1969 that the correction can be made only if entry is erroneous in form or substance or if fraudulently or improperly made and after considering the rules and provisions of Act, this Court had allowed the petition. It is, therefore, submitted that the prayers made in the petition be granted.

6. On the other hand, learned Assistant Government Pleader for respondent No. 1 and learned counsel for respondent No. 2 both have opposed the present petition and that the present petition is required to be dismissed.

7. I have heard the learned counsel appearing for the respective parties and have considered the facts and circumstances of the case and the averments made in the matter.

8. Insofar as the impugned action of respondent no.2 in the present petition is concerned, it is clear 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.

9. In view of the aforesaid facts and in view of the a