Manjil Sureshbhai Rathod vs State Of Gujarat
2021 Latest Caselaw 2458 Guj

        C/SCA/12514/2020                                       ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 12514 of 2020

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                       MANJIL SURESHBHAI RATHOD
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR KARTIK V PANDYA(2435) for the Petitioner(s) No. 1
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                             Date : 17/02/2021

                               ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following reliefs:

"7(A) xxx (B) Your Lordships may be pleased to issue Writ of Mandamus or any other appropriate writ, order or direction for Quashing and setting aside the letter dated 19.08.2020 issued by Respondent no.2 herein and further be pleased to direct the respondent no.2 herein to rectify the change of name in Birth Certificate issued by the office of the respondent no.2 on 16.07.2020. (C) Pending admission, herein and final disposal of this petition, be pleased to direct the Respondent no.2 herein to rectify the name of Birth Certificate.

(D) xxxx"

         C/SCA/12514/2020                                               ORDER



2.          Heard          learned        advocate            Mr.Pandya              and
learned          advocate            Mr.Kinariwala                    for            the

petitioner, learned AGP Mr.Mehta for respondent no.1 and learned advocate Ms.Raval for respondent no.2.

3. Learned advocate for the petitioner has submitted that birth certificate is issued by respondent no.2 on 16.7.2020 in favour of the daughter of the petitioner. In the said certificate, the name of the baby girl is mentioned as Rose. It is submitted that by mistake, her name is mentioned as Rose. It is submitted by the petitioner in the petition itself that at the time of birth of baby child, name Rose was given by the petitioner and that is how it is reflected in the certificate issued by the respondent authority. However, petitioner, thereafter, made a request to the respondent no.2 vide representation dated 11.8.2020 that name of the daughter of the petitioner be changed from `Rose' to `Tapsee'. It is the grievance of the petitioner that respondent no.2, vide communication dated 19.8.2020, rejected the said application simply relying upon the circular dated 18.2.2016 issued by the competent authority. The petitioner has, therefore filed the present petition.

         C/SCA/12514/2020                                            ORDER



3.1         It        is      mainly             contended         that           the
respondent         no.2,      without            making    inquiry            under
Section      15     of     The     Registration            of    Births           and

Deaths Act, 1969 (`the Act of 1969' for short) and the Rules framed thereunder, rejected the request of the petitioner simply relying upon the aforesaid circular. It is submitted that the issue involved in the present petition is squarely covered by the decision rendered by this Court the case of Sejalben Mukundbhai Patel V/s State of Gujarat reported in 2019(3) GLR 1866. It is, therefore, urged that appropriate direction be issued to the respondent no.2.

3.2 Learned advocate Ms.Raval appearing for the respondent no.2 has opposed this petition and submitted that the respondent no.2 has followed the circular dated 18.2.2016 issued by the competent authority and there was no mistake of the respondent no.2 while making entry in the register maintained by the respondent no.2. Learned advocate submitted that in the petition itself, it is stated that at the time of birth of the baby girl, the name `Rose' was given and therefore and on the basis of the same, the birth certificate is issued. It is also submitted that as there is mistake committed by the respondent no.2 while registering the same, the respondent no.2 is bound by the circular which is at page 17

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of the compilation. It is, therefore, urged that this petition be dismissed.

4. Having heard the learned counsel for the parties and having gone through the material placed on record, it would emerge that the petitioner himself has informed to the respondent no.2 at the time of registration of the birth and mentioned that name of his daughter is Rose and accordingly the same is reflected in the birth certificate. However, when the request is made by the petitioner to the respondent no.2 for change of name of his daughter from Rose to Tapsee, respondent no.2 has placed reliance on circular dated 18.2.2016 issued by the competent authority and relying upon the said circular, the request is rejected.

5. The issue involved in the present petition is covered by the decision rendered in the case of Sejalben Mukundbhai Patel(supra), wherein this Court has considered the provisions of the Act of 1969 as well as Rules framed thereunder and other decisions rendered by this Court earlier and framed issues in paragraph 8 which read as under:

"8. In the aforesaid facts, following issues are required to be decided in the present case:

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(i) Can circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, override the statutory provisions?

(ii) Can the competent authority appointed under the provisions of the Act of 1969 and Rules framed thereunder, simply rely upon the aforesaid Circular without making any inquiry as contemplated under the provisions of the Act of 1969 and Rules framed thereunder?"

6. This Court discussed in paragraph 22 as under:

"22. From the aforesaid statutory provisions and the decisions rendered by this Court, following aspects would emerge:

(a) the expression `erroneous in form of substance' in Section 15 of the Act of 1969 is an expression of wide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Registrar of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of the Act of 1969 and Rule 11(1) to (7) of the State Rules, 2004.

(b) The Registrar appointed under the provisions of the Act of 1969 has got powers for correction in relation to the entries and the name also in the Register/Birth Certificate and such correction or cancellation also comes within the purview of powers under Section 15 of the Act of 1969.

(c) The contempt authority appointed under the provisions of the Act of 1969 has to consider whether the entry in the Birth Certificate/Register can be corrected or not,

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after making inquiry and after going through the relevant material, which may be produced by the concerned applicant or which may be called by competent authority for satisfying itself."

7. After discussing the above, the answers to the issues framed are given in paragraph 25 of the said judgment which read as under:

"25. Thus, answer to issue No.(i) framed as above, is that Circular dated 18.02.2016 issued by the Registrar, Births and Deaths and Commissioner (Health), State of Gujarat, cannot override the statutory provisions and answer to Issue No.(ii) is that Competent Authority appointed under the provisions of the Act of 1969 and Rules framed thereunder cannot simply rely upon the circular and reject the request of the concerned applicant, without making necessary inquiry."

8. Keeping in view the aforesaid decision which is not interfered with by the Division Bench of this Court in Letters Patent Appeal filed by the concerned respondent of the said petition, if the facts as stated hereinabove are examined, it is clear that respondent no.2 has without making any inquiry as contemplated under the Act and Rules framed thereunder, simply relied upon the aforesaid circular and thereby rejected the request of the petitioner. This Court has specifically held in the aforesaid decision that the expression `erroneous in form of substance' in Section 15 of the Act of 1969 is

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an expression of wide amplitude and does not confine to simple typing errors or clerical mistakes and no guidelines or circulars can take away powers of the Registrar of making correction in entries which are erroneous in form or substance in register as envisaged under Section 15 of the Act of 1969 and Rule 11(1) to (7) of the State Rules, 2004.

9. In view of the aforesaid, this petition stands disposed off. The impugned communication dated 19.8.2020 is set aside. The matter is remanded back to the respondent no.2 and the respondent no.2 is hereby directed to decide the representation of the petitioner dated 11.8.2020 keeping in view the provisions contained in Section 15 of the Act of 1969 and Rules framed thereunder and also keeping in view the aforesaid decision rendered in the case of Sejalben Mukundbhai Patel (supra), within a period of three months from the date of receipt of this order. Direct service is permitted.

(VIPUL M. PANCHOLI, J) SRILATHA