Prajapati Jayeshkumar ... vs State Of Gujarat

      C/SCA/20727/2022                             ORDER DATED: 13/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20727 of 2022

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                 PRAJAPATI JAYESHKUMAR KALPESHKUMAR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR JIGNESHKUMAR M NAYAK(8558) for the Petitioner(s) No. 1
MR SANJAY UDHAWANI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 13/02/2023

                              ORAL ORDER

1. Rule returnable forthwith. Mr. Sanjay Udhwani, learned AGP waives service of notice of rule for the respondent-State. Though served, nobody appears for respondent No.2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.

2. The prayer in this petition is to direct the respondent to change the name of the father of petitioner from Jitendrabhai to `Kalpeshkumar'.

C/SCA/20727/2022 ORDER DATED: 13/02/2023

3. For the purpose of correcting the name of the petitioner from Jitendrabhai to `Kalpeshkumar', learned counsel for the petitioner would rely on the documents produced on record i.e. xerox copies of School Leaving Certificate and Pan Card.

4. In light of a decision of the Division Bench in Letters Patent Appeal No.1002 of 2019 dated 29.04.2019, relying on the decision in the case of Nitaben Nareshbhai Patel v. State of Gujarat and others reported in 2008(1) Vol., 49 GLR, 884, the petition needs to be allowed. Relevant portion of the decision dated 29.04.2019 reads as under:

"6. The decision relied on by learned Single Judge in the case of Nitaben Nareshbhai Patel v. State of Gujarat & Ors. reported in 2008 (1) Vol 49 GLR 884 wherein all relevant provisions of various Act, were considered including that of Births, Deaths and Marriages Registration Act, 1886 succeeded by Registration of Births and Deaths Act, 1969, Gujarat Registration of Births and Deaths Rule, 2004 and also Higher Secondary Education Act and Rules made thereunder and even Passport Act and Rules and finally in para 26 it was held as under:

26. Thus, in the nutshell, what emerges from the factual and legal submissions made and Page 2 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023 C/SCA/20727/2022 ORDER DATED: 13/02/2023 conclusions arrived in earlier Paragraph is as under:

(A) 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 1-4-1970 i.e. the date on which new Act of 1969 came into force and correction of error is sought for later on.

(B) Section 15 of the Act of 1969 read with Rule 11 of the State Rules, 2004 along with Chapter 9, Clauses 9.6 and 9.7 of the Handbook of Registrar General, Ministry of Home Affairs, Govt. of India and Clause 5.8 of Chapter 5 of guidelines contained in vernacular Gujarati adequately conferred power upon the authority to correct/cancel erroneous entries and provide for complete mechanism for types of errors to be corrected.

(C) 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 Page 3 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023 C/SCA/20727/2022 ORDER DATED: 13/02/2023 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.

Thus, Clause 9.6 and 9.7 of Chapter 9 of the Handbook of Registrar General, Ministry of Home Affairs, Govt. of India provide for corrections and cancellations of entries and contain clerical or formal error, error in substance or fraudulent or improper entry and once any error in substance is to be corrected, it covers error of such nature which is an error of substance or form. That similar types of errors are mentioned in Clause 5.8 of Chapter 5 of vernacular guidelines published by the State Authorities under the Act.

(D) The above proposition of law stand fortified by the decisions of this Court in two Letters Patent Appeal Nos. 195 of 1999 and 231 of 2001 in the case of Mulla Faizal @ Fazilabanu Suleman Ibrahim and Registrar, Birth and Death, Rajkot Municipal Corporation (supra), there is no doubt that the expression "erroneous in form or substance" in Section 15 of Act of 1969 is an expression of vide 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.

(E) When the authority empowered to exercise power under Section 15 of the Act and Rule 11 of the State Rules, 2004, refuse to do so, writ petition is maintainable under Article 226 of the Page 4 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023 C/SCA/20727/2022 ORDER DATED: 13/02/2023 Constitution of India for issuing appropriate directions to the authority.

(F) The kind and types of directions to be issued to the authority depend on facts and circumstances of the each case and nature of denial of legal right to the aggrieved persons by the authority.

(G) That even Section 27 of the Act of 1969 is pertaining to delegation of powers and Section 32 empowers to concerned Government to remove the difficulties, and therefore, the appropriate Government or any authority upon whom the powers are delegated can act in accordance with scheme of the Act and appropriate directions can be given accordingly.

(H) So far as matters arising out of the Regulation 12(A) of the Gujarat Secondary Education Regulation, 1974 is concerned, law as on date is governed as in the case of Soorat Jessomal Khanchandani (supra) and Thakore Nilesh Shishirbhai (supra).

(I) So far as the matters arising out of the Passport Act, 1967 and Rules, 2000, is concerned, law as on date is governed as in the case of Regional Passport Officer (supra) in view of admission of L.P.A. No. 1673 of 2006 by an order dated 30-7- 2007 by which the judgment of the learned single Judge in Special Civil Application No. 2716 of 2006 is stayed.

7. Learned Judge in facts of the present case rightly placed reliance on the above decision and other such decisions including that passed in order dated 16.1.2019 in Special Civil Application No.19054 of 2018 and, therefore, it cannot be said that for all Page 5 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023 C/SCA/20727/2022 ORDER DATED: 13/02/2023 purposes the application seeking change of entry in the Register of Births and Deaths is not to be relegated and the applicant to undergo rigmarole of Court of learned Judicial Magistrate First Class since the statute has conferred powers upon Registrar as discussed herein above.

8. Decision relied on by learned advocate in the case of Regional Passport Officer (supra) on the contrary in paragraph 9 takes note of decision in the case of Nitaben Nareshbhai Patel (supra) and in 11 held as under:

"11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder."

9. Thus, decision in the case of Nitaben Nareshbhai Patel (supra) is amply confirmed by Division Bench in the above case of Regional Passport Officer (supra). However, the facts of the appeal before Division Bench directions were issued to passport authorities by learned Single Judge which were contrary to provisions of Passport Act, Rules made thereunder and interference issued the order passed by learned Single Judge came to be quashed and set aside."

5. Accordingly, the petition is allowed. The respondents are Page 6 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023 C/SCA/20727/2022 ORDER DATED: 13/02/2023 directed to change and correct the name of the petitioner's father from Jitendrabhai to `Kalpeshkumar' within a period of Eight Weeks from the date of receipt of copy of this order.

6. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J) VATSAL Page 7 of 7 Downloaded on : Mon Feb 13 21:07:05 IST 2023