1 wp4449-10 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4449 OF 2010 Rupa Mansukhlal Vithalani @ Rupa Sanjiv Raithatha ....Petitioner V/s. Union of India & Ors. ....Respondents Mr.Manish Dubey i/b Mr.Akhilesh Singh for the Petitioner. Mr.J.K. Bhatia for Respondent No.1 – Union of India. CORAM : MOHIT S. SHAH, C.J. AND S.J. VAZIFDAR, J. MONDAY 28TH FEBRUARY 2011. P.C. :- 1. This petition is filed under Article 226 of the Constitution of India for direction to the respondents particularly respondent No.2 (Respondent No.2 shall be described as the Regional Passport Officer, Thane) to correct the petitioner’s date of birth in the passport by changing it from 5.12.1977 to 26.10.1978. 2. The petitioner’s case in the petition is that the petitioner had applied for a passport. The petitioner had given her date of birth as 5.12.1977 on the basis of the school leaving certificate and had also accordingly travelled on the said passport and gone to Lisbon. The Indian Embassy in Lisbon had issued another passport on 25.9.2009 2 wp4449-10 mentioning in the same the date of birth as 5.12.1977. The petitioner states that subsequently she came to know that the correct date of her birth was 26.10.1978 as recorded in the birth register issued by the Municipal Council, Khopoli. 3. Accordingly, the petitioner applied to respondent No.2 to make the necessary change of the date of birth of the petitioner in the passport. 4. By the impugned reply dated 14.5.2009, the Second Secretary (Cons), Embassy of India, Lisbon informed the petitioner that once a date of birth has been entered in the passport, any substantive correction can be made only on the basis of a Court Decree/Order passed by a First Class Magistrate, mentioning the correct date of birth. The said letter is produced at Exhibit “B”. 5. The learned counsel for the petitioner submits that this Court had an occasion to deal with a similar case in Jigar Harish Shah v. Union of India and another, AIR 2001, Bombay, 60. It is submitted that in view of the said judgment the power to correct the date of birth in the passport is conferred on the passport authority itself and that the petitioner cannot be compelled to approach the Court of First Class Judicial Magistrate, who has not been conferred with such jurisdiction under any law. It is submitted that the question of approaching the Court of First Class Judicial Magistrate will arise if only the petitioner is seeking the correction in the date of birth, as noted in the birth register under Section 13 of the Registration of Births and Deaths Act, 1969. However, in the instant case, the petitioner is not seeking any correction in the birth register and in fact relies upon the same. 3 wp4449-10 6. The learned counsel for respondent No.1 – Union of India and Regional Passport Officers, has submitted that the passport officer has no jurisdiction to make any such correction in the passport and that once the passport is issued, for any change therein in the date of birth, the petitioner must approach the First Class Judicial Magistrate. 7. Having heard the learned counsel for the parties, we find that this question has already been considered by the division bench of this Court in Jigar Harish Shah v. Union of India and another, AIR 2001, Bombay, 60. The Court has already held in the said decision that First Class Judicial Magistrates have not been conferred with the jurisdiction to make corrections in the passport and that this Court, instead issuing a direction to the First Class Judicial Magistrate, directed the passport authority itself to hold an enquiry granting a hearing to the concerned petitioner in relation to the petitioner’s claim about her correct date of birth and in case the passport authority was satisfied with the record and the claim put-forth by the petitioner, the passport officer was directed to effect the necessary change in the passport. 8. We find considerable substance in the submissions made on behalf of the petitioner. The petitioner is now not seeking any change in the birth entry in the register of birth maintained by the Chief Officer, Municipal Council, Khopoli. 9. It has already been held by this Court that where there is a difference in the date mentioned in the birth register maintained by the Chief Officer of a Municipal Council, Khopoli the entry in the school record, usually the entry in the birth register should prevail. 4 wp4449-10 10. We may however, hasten to add that the principle may not apply where the person has already taken advantage of the particular birth date and after joining the services, seeks extension in the period of service by claiming to have been born in a date later than what was stated to the employer at the time of joining the services. However, this consideration which may be relevant in a service matter, is of no consequence when the petitioner is seeking to change the date of birth in the passport on the basis of the entry made in the birth register maintained by the local authority. 11. At the same time, since the passport was already issued to the petitioner earlier, necessary direction would have to be given to respondent No.2 to prepare a new passport with the petitioner’s date of birth to be shown as 26.10.1978, as indicated in the birth certificate issued by the Khopoli Municipal Council. The Registration number is 433/1978. 12. In the result the petition is allowed. The respondents are directed to issue a fresh passport in favour of the petitioner with the date 26.10.1978 as being the correct date, as indicated in the certificate of registration of birth issued by the Khopoli Municipal Council which is at Exhibit “D” to the petition. The same shall be done upon the petitioner making an application for a fresh passport. CHIEF JUSTICE S.J. VAZIFDAR, J.