SCA/23471/2007 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23471 of 2007 With SPECIAL CIVIL APPLICATION No. 23616 of 2007 With SPECIAL CIVIL APPLICATION No. 21788 of 2007 With SPECIAL CIVIL APPLICATION No. 29164 of 2007 With SPECIAL CIVIL APPLICATION No. 19896 of 2007 With SPECIAL CIVIL APPLICATION No. 6352 of 2007 With SPECIAL CIVIL APPLICATION No. 28336 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NITABEN NARESHBHAI PATEL - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : SPECIAL CIVIL APPLICATION NO. 23471/2007 MR CHETAN K PANDYA for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MS JIRGA D JHAVERI for Respondent(s) : 2, RULE NOT RECD BACK for Respondent(s) : 3, SPECIAL CIVIL APPLICATION NO. 23616/2007 MR BHUNESH C RUPERA for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR DHAVAL NANAVATI for Respondent No.2. SPECIAL CIVIL APPLICATION NO. 21788/2007 MR KIRIT PATEL for Petitioner(s) : 1, SCA/23471/2007 2/39 JUDGMENT MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR DHAVAL NANAVATI for Respondent No.2. SPECIAL CIVIL APPLICATION NO. 29164/2007 MR PANKAJ SONI for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, SPECIAL CIVIL APPLICATION NO. 19896/2007 MR KIRIT PATEL for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, SPECIAL CIVIL APPLICATION NO. 6352/2007 MR NIRAL MEHTA for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR HEMANT MUNSHA FOR Respondent No.2. SPECIAL CIVIL APPLICATION NO. 28336/2007 MR HTH HAKIM for Petitioner(s) : 1, MR SATYAM CHHAYA ASST. GOVERNMENT PLEADER for Respondent(s) : 1, MR HS MUNSHAW FOR Respondent No.2. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 21/02/2008 ORAL JUDGMENT 1. 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 SCA/23471/2007 3/39 JUDGMENT 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. 3.1. 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 SCA/23471/2007 4/39 JUDGMENT 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. 1.4.1970. 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 SCA/23471/2007 5/39 JUDGMENT 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 of 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 15 of the Act of 1969 which provide for correction or cancellation of entry in the registration of Births and Deaths. 8. Section 30 of the Act, 1969 empowers State Governments to frame Rules to carry out the purpose of the Act and initially model Rules were framed by the Central Government and so far as State of Gujarat is concerned in exercise of power under Section 30 of the Act, registration of Births and Deaths Rules, 1973 were framed which came into force w.e.f. 18/4/1973 and under the above Rules, certain guidelines were issued by the State of Gujarat. However, later on, in view of powers conferred by Section 30 of the Act, 1969, the State of Gujarat framed new rules pertaining to registration of births and deaths to be called as the Gujarat Registration of Births and Deaths Rules, 2004 vide notification dated 9th January, 2004 and came to be published in official gazatte on 22nd January, 2004 SCA/23471/2007 6/39 JUDGMENT and as on date the above Rules framed by the State of Gujarat are in force. The above Rules, framed by the State of Gujarat in 2004, provided Rule 11 for correction or cancellation of entry in the register of births and deaths and Chief Registrar, Births and Deaths, State of Gujarat, Gandhinagar in September, 2005 published certain guidelines which had basis on the Handbook of Civil Registration published by the Registrar General of India, Ministry of Home Affairs, Government of India. The above guidelines in Chapter 5, clause 5.8 provide for correction or cancellation of error in the register of births and deaths. 9. Therefore, section 15 of the Act of 1969 read with Rule 11 of Gujarat Registration of Births and Deaths Rules, 2004 (for short ' Rules of 2004') which has come into force w.e.f. 22.1.2004 based on the model rules published in the Handbook of Civil Registration by the Registrar General of India the Ministry of Home Affairs and guidelines contained in the booklet published by the Chief Registrar, Births and Deaths, State of Gujarat, Gandhinagar in September, 2005 govern the field. 9.1. So far as statutory provisions and rules are concerned Section 15 of the Rules reads as under: " ... 15. Correction or cancellation of entry in the registrar 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 SCA/23471/2007 7/39 JUDGMENT 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 .... " Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 reads as under: " ... 11. Correction or cancellation of entry in the register of births and deaths : (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. (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. (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. (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. (5) Notwithstanding anything contained in sub rule (1) and 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. SCA/23471/2007 8/39 JUDGMENT (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. (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.... " 10. That Registrar General, Ministry of Home Affairs has published the Handbook on Civil Registration in December, 1997 which contains the Model Rules which incorporate the amendments which have taken place after 1993. It also contains various guidelines under different heads about actual procedure to be followed in case of correction of entries in the register as envisaged under Section 15 of the Act. Likewise, the guidelines contained in the booklet published by the Chief Registrar, Births and Deaths of State of Gujarat, Gandhinagar in September, 2005 also contained procedure to be followed with regard to registration of Birth and Death. 10.1. In a Booklet published in a vernacular Gujarati by the Registrar General of India, Ministry of Home Affairs, Govt. of India in Chapter 2, Clause 2.3 mentions about administrative structure for registration of the authority and the officers empowered under the Act of 1969 and Rules framed under Gazetted Rules, 2004. SCA/23471/2007 9/39 JUDGMENT “2.3. The administrative set up for registration of Birth and Death in the State is as under: the above set up is in consonance with Chapter II of the Act of 1969. Chief Registrar, Birth and Death Commissioner (Health) Dy. Chief Registrar, Birth and Death Additional Director (Statistics) Additional Dy. Chief Registrar, Birth and Death Dy. Director (Statistics) District Registrar, Birth and Death Chief District Health Officer/ District Health Officer Taluka Registrar, Birth and Death Taluka Development Officer Registrar (Rural) Talati-cum-Mantri Forest Area Ranger, Forester Independent Area Authorised Officer Corporation Health Officer Municipality Chief Officer Health Officer Thus, complete administrative machinery is provided for registration of births and deaths under the Act. 10.2. Chapter 9 of the 'Hand book' of Registrar General, Ministry of Home Affairs, Government of SCA/23471/2007 10/39 JUDGMENT India, refer to Registration Procedures & Practices and clauses 9.6 and 9.7 are about corrections and cancellations of name of the child entered into register. Particularly, clause 9.7. is about errors of different types that may be clerical or formal, error in substance, fraudulently or improper entry and the procedure to be followed therein are also in conformity with Section 15 of the Act. Clauses 9.6 and 9.7 reads as under: “Corrections and cancellations: 9.6.Registration can be done without the name of the child. A provision has been made in the state rules enabling the Registrar to enter the name of the child in the register in respect of the birth already registered by him after getting the information from the parent or guardian of such child within a period of one year from the date of registration. The name of the child can also be entered even after one year on payment of prescribed late fee. 9.7.Rules have also been framed for correction or cancellation of an entry in the register of births and deaths. The Registrar can correct or cancel any entry in the register which is erroneous in form, or SCA/23471/2007 11/39 JUDGMENT substance, subject to the provisions of these rules. The errors may be of different types:(i) clerical or formal error. (ii) error in substance, and (iii) fraudulent or improper entry. The procedures to be followed in each case are as follows: (i) Clerical or formal error: In this case the Registrar must inquire into the matter and satisfy himself that such an error has been made. He should correct the entry and send an extract of the entry showing the error and how it has been corrected to the State Government or the officer specified in this behalf. If however, the register is not in his possession, then he must make report to the State Government or the officer specified in this behalf and call for the register for enquiring into the matter and making necessary correction in the register. In this case, the corrections would require countersigning by the specified authority. (ii) Error in substance: In this case the Registrar can correct the entry upon production of declaration setting forth the nature of the error and the true facts of the case made SCA/23471/2007 12/39 JUDGMENT by two credible persons having knowledge of the facts of the case. All corrections should be reported alongwith necessary details to the State Government or the officer specified in this behalf. (iii) Fraudulent or improper entry: This is an offence punishable under the Act. Therefore the Registrar must report to the Chief Registrar or the officer specified under section 25 of the Act and take necessary action on hearing form him.” 10.3. That Rules of 2004 take into consideration above aspects and provide an elaborate procedure for correction of an error recorded in the register. 11. So far as High Court of Gujarat is concerned there are two decisions of Division Bench, one is in the case of Mulla Faizal @ Fazilabanu Suleman Ibrahim v. State of Gujarat & Ors. reported in 2000 (2) GLR 1553 as reported in Letters Patent Appeal No. 195/1999 is the authority with regard to exercise of power by the Court in writ jurisdiction to grant proper relief to a citizen with regard to similar relief. 11.1. That, in the above decision, the Court has considered Section 15 of the Act of 1969 and the then existing Rule 12 of Births and Deaths Rules, 1973 framed by the State of Gujarat, which came to be SCA/23471/2007 13/39 JUDGMENT superseded by Rules of 2004. It is to be noted that erstwhile Rules of 1973 of State Rules were based on the model Rules and particularly Rule 12 of the above model Rules as framed by the Registrar General of India, Ministry of Home Affairs, Government of India. 11.2. Thus, the Division Bench of this Court considered Section 15 of the Act of 1969 and Rule 12 of the State Rules of 1973 prevalent at that point of time and based on the model Rules framed by the Government of India and thereafter in para 10 the Court has directed as under: “10. Since the respondent-authorities, who are in charge of maintenance of Register of Births, have been enjoined with a duty to entertain applications for correction of entries in the Register and can for that purpose make necessary enquiries, the learned Single Judge was not right in relegating the appellant to a remedy of civil suit for seeking a declaration regarding his sex. In our considered opinion, the authorities, under the provisions of Section 15 read with Rule 12 of the Rules framed thereunder, are duty-bound in law to make necessary enquiries and if necessary to obtain medical opinion to grant change of entry in the birth register regarding the sex of the appellant and to issue to him a corrected birth certificate. We find absolutely no legal impediment in the same and the reliance on the letter quoted above is totally misplaced. The said letter does not at all apply to the case like the present one. Here the change in the entries in the Register is sought not on the basis of change of sex, but on the basis that the appellant was born as a natural male although with some deformity in his sexual organ. It would not be proper for the court to relegate the appellant to an onerous remedy of civil suit even if that be held to be available to him.” 12. It is to be noted that in the above decision, this Court was concerned with Section 15 of the Act, 1969 and Rule 12 as framed under Births and Deaths Rules, 1973 framed by the State of Gujarat, now new Rule 11 which is already reproduced in the earlier SCA/23471/2007 14/39 JUDGMENT paragraph, deal with correction of entry in the birth and death register. 13. So far as another decision is concerned, it is also in the case of REGISTRAR, BIRTH & DEATH RAJKOT MUNICIPAL CORPORATION V. VIMAL M PATEL ADVOCATE in Letters Patent Appeal No.231/2001 dated 30.3.2001 and after relying on Section 15 of the Act of 1969 in para 4.1., the Court has held as under: 4.1 It will be seen from the above provision that the Registrar is empowered to correct the entries or cancel them by suitable entry in the margin without any alteration of the original entry and he shall sign the original entry and add thereto the date of the correction or cancellation. Such correction can be made when the Registrar is satisfied that any entry of a birth or death in any Register kept by him under the Act is erroneous in form or substance or has been fraudulently or improperly made. Such power has to be exercised subject to the rules that may be made by the State Government with respect to conditions on which and the circumstances in which the entries may be corrected or cancelled. The expression `erroneous in form or substance' is an expression of wide amplitude. It cannot be confined only to simple typing errors or clerical mistakes. It is the duty of every Registrar to keep in the prescribed form, a Register of Births and Deaths for the registration area or any part thereof in relation to which he exercises jurisdiction. As regards births, Section 8 of the said Act provides that it shall be the duty of the persons mentioned in Classes (a) to (e) to give or cause to give the information to the Registrar of the particulars required to be entered in the forms prescribed by the State Government, under Section 16(1) for register of births. The provisions of the said Act are aimed at ensuring sanctity of the births and deaths registers. It is the duty of the Registrar to see that the births and deaths registers are correctly maintained. An error may creep in an entry either at its inception or at a later point of time the entry may become erroneous. It can be that the entry when it is read would be erroneous in form or substance. When the Registrar is satisfied that the entries at any given point of time, when read, would be erroneous in form or substance, he can effect a correction. He is not to obliterate the original entry but is required, with a view to ensure that the entry whenever referred is not erroneous in form or substance, to make a suitable entry in the margin without any alteration in the original entry showing the correction that according to him would prevent any error being SCA/23471/2007 15/39 JUDGMENT reflected in form or substance of the entry as it stood. Since the powers of the Registrar are wide enough to ensure that the entry made in the Register does not mislead or give an incorrect impression, it is his duty to ensure that suitable correction is made in the entry to ensure the authenticity of the Register by reflecting the correct state of affairs in the marginal entry that he is required to make. No direction can be issued by any authority to take away the powers of the Registrar of making correction in entries which are erroneous in form or substance in the Register. The Registrar, therefore, was not justified in referring to some guidelines and reading them so as to curtail his own powers under Section 15 of the Act. No guidelines can be issued against the statutory provisions empowering the Registrar to make corrections except by way of rules made by the Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled as provided in Section 15 itself. In our opinion, therefore, the learned Single Judge was justified in setting aside the impugned order and directing the appellant Registrar to entertain the application of the respondent and effect necessary correction in the register in accordance with the provisions of Section 15 of the Act. The appeal is, therefore, summarily dismissed. 13.1. The other decision reported in the case of Dr. Sukumar Mehta v. District Registrar, Births & Deaths reported in 1993 (1) GLR 93 where also learned Single