SCR.A/2656/2011 6/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2656 of 2011 [ENTITY] - Applicant(s) Versus [ENTITY] & 1 - Respondent(s) Appearance : MR [ENTITY] for Applicant(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR [ENTITY] for Respondent(s) : 2, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 06/02/2012 ORAL ORDER
This petition under [SECTION] and [SECTION] of the [ACT] initially directed against the order dated 05.09.2011 passed in [CASE NUMBER] by the Court of learned Additional Judicial Magistrate, Lathi-Liliya at Liliya by which the learned Magistrate has refused to exercise powers for correction of date of birth of the petitioner herein on the ground that the circumstances required under the provisions of [SECTION] of the [ACT] were not in existence.
2. It is the case of the petitioner that the petitioner was born in the village Shedhavadar, Taluka-Liliya, District Amreli on 10.09.1986. The birth of the petitioner has been registered t Sr. No.11 in the Birth Register maintained by Shedhavadar Gram Panchayat. While admitting the petitioner in school, the date of birth registered in the record of school as 31.08.1984 as against 10.09.1986 on account of inadvertence error committed by the parents/guardians of the petitioner. The school leaving certificate issued by the Satsangi Higher Secondary School, Mahavirnagar, India Colony Ahmedabad shows 31.08.1984 as date of birth of petitioner. It is further the case of the petitioner that on the basis of copy of school leaving certificate as proof of date of birth, the Deputy Passport Officer, Regional Passport Officer, Ahmedabad issued passport showing date of birth of the petitioner as 31.08.1984. The petitioner filed [CASE NUMBER] before the Court of Learned Judicial Magistrate First Class, Liliya for a declaration that the correct date of birth of the petitioner is 10.09.1986 to carry out change in the date of birth in the passport. The learned Additional Judicial Magistrate, First Class, Lathi-Liliya at Liliya by order dated 05.09.2001 dismissed the application of the petitioner.
Thus, two dates of birth of the petitioner recorded by two different authorities exist as on the date. Hence the present petition.
3. Shri [ENTITY], learned Standing Counsel appearing for the Regional Passport Authority relying on the affidavit in reply filed by the Passport authority and decision dated 05.12.2008 rendered by this Court in [CASE NUMBER] and allied matters, of this court resisted the prayer made by the petitioner, submitting that it is not open for the Passport authority to enter into the disputed documents showing different dates of birth.
4. Learned advocate for the petitioner has brought to the notice of this Court a circular dated 15.01.2008 issued by the Deputy Secretary, Ministry of External Affair [CPV Division], Government of India pursuant to the decision of the High Court of Punjab and Haryana at Chandigarh in the case of [ENTITY] v. Union of India [UOI] and Anr. by which the revised instructions contained in para [d] of the Circular dated 29.10.2007 issued by the Ministry of External Affairs is to read together with the decision of the High Court of Punjab and Haryana.
5. Learned advocate for the petitioner has also placed reliance on the decision of the Apex Court in the case reported in [ENTITY] v. Vasudha Gorakhnath Mandevlekar reported in 2009(7) SCC 283 wherein it is held that in case of two certificates of date of births viz. one issued by the School Authority, as recorded in school leaving certificate and another by certificate of date of birth, which is recorded by the registering authority viz. Gram Panchayat, Nagarpalika, Municipality, Municipal Corporation, the date of birth recorded by the local authority or the registering authority under the Act will prevail. Therefore, it is submitted that date of birth viz. 10.09.1986 of the applicant so recorded in the register maintained by the authority as per certificate of birth is the correct date of birth and respondent authority be directed to correct date of birth accordingly.
6. Learned Standing Counsel appearing for the respondent-authority, however, submits that date of the birth of the petitioner recorded in the register of date of birth maintained by the respondent can be considered in light of circular dated 05.01.2008 only if the petitioner applies afresh in accordance with requirement of passport information booklet and in that eventuality the Passport authority will take appropriate decision in consonance with the said certificate.
7. Heard learned counsels for the parties and perused the record, including the circular dated 15.01.2008, judgments in the case of [ENTITY] [supra] and [ENTITY] [supra]. The circular dated 15.01.2008 incorporates directions contained in para [d] of Circular No.VI/401/2/5/2001 dated 29.10.2007 together with the judgment in the case of [ENTITY] [supra] and the said circular reads as under:
"No.VI/401/2/5/2001 15th January 2008 CIRCULAR Subject : Change of date of birth and place of birth in passports.
In the [CASE NUMBER] filed by Shri [ENTITY] v. Union of India, High Court of Punjab and Haryana has, inter alia, delivered the following judgment on 06th November 2007:
"We would like to emphasize that as and when an application is filed before a Passport Authority, and there appears to be conflict between entries in the birth Certificate issued by the Registrar of Births and Deaths and the entry of birth in a school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, suspicious or appears to be procured or manipulated, parties would not be relegated to civil Courts in a mechanical manner."
Ministry's revised instructions contained in para [d] of [CASE NUMBER] dated 29th October 2007 may now be read together with the above judgment of High Court of Punjab and Haryana and stand amended to the extent.
[[ENTITY]] Deputy Secretary [PV-I]"
The circular dated 29.10.2007 was referred by the Division Bench of this Court in the case of [PRECEDENT]. rendered in [CASE NUMBER] and allied matters, but Circular dated 15.01.2008 issued pursuant to the decision of High Court of Punjab and Haryana in the case of [ENTITY] [supra] was not noticed. In the above circumstances, all the Passport authorities are duty bound to follow the directions contained in the circular dated 15.01.2008, which is in consonance with the decision of the Apex Court in the case of [ENTITY] [supra]. Para 20 of the said judgment reads as under:
"The Deaths and Births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of [SECTION] of the [ACT]. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. [See [PRECEDENT]]"
8. In the instant petition, the petitioner has not prayed for correction of entry in the Register of Birth or in the Certificate of Birth issued by the Registering authority, and therefore, procedure prescribed under the [ACT] and Rules are not applicable. Similarly, once a student leaves the school, no correction can be ordered by the school authority. In the above circumstances, if the petitioner is subjected to rigmarole of proceedings before the civil court for recording date of birth, it would cause undue hardships and frustrate the purpose for getting passport.
9. The date of birth recorded by Talati-cum-Mantri, Shedhavadar Gram Panchayat is 10.09.1986, and even upon verification of the original record as well as the certificate, it appears that there is no dispute in the date of birth. Further, the petitioner has already left the school in which she was studying and further correction is not permissible in view of the [ACT]. However, considering the peculiar facts and circumstances of the case, respondent No.2 is hereby directed to take decision and enter the date of birth of the petitioner as 10.09.1986 so recorded in the register maintained by the authority i.e. Shedhavadar Gram Panchayat, Shedhavadar, Taluka Liliya, District Amreli, as per the Circular dated 15.01.2008 issued by the Ministry of External Affairs [CPV Division], subject to petitioner fulfilling other conditions under provisions of [ACT] and rules framed thereunder. It is submitted by learned advocate for the petitioner that the petitioner has made fresh application on 28.01.2012, which shall be decided by the respondent No.2 as early as possible and preferably within 4 weeks from the date of filing of the application.
It is made clear that this order is passed considering the peculiar facts and circumstances of the case and to be treated accordingly.
With the aforesaid, this petition stands disposed of.
Notice is discharged.
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