Sureshkumar Dalpatbhai Acharya vs State Of Gujarat
2021 Latest Caselaw 17160 Guj

     C/SCA/11481/2021                            ORDER DATED: 15/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11481 of 2021

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                    SURESHKUMAR DALPATBHAI ACHARYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                            Date : 15/11/2021

                             ORAL ORDER

1. With the consent of the learned Advocates appearing for the

respective parties, the matter is taken up for final disposal.

2. Issue Rule, returnable forthwith. Learned AGP, Mr. Krutik

Parikh waives service of notice of rule on behalf of the respondent

No. 1 and Mrs. Kalpana K Raval, learned Advocate waives service

of notice of rule on behalf of respondent No. 2.

3. By way of the present petition, the petitioner has prayed for

quashing and setting aside the order dated 27.02.2020 passed by

the Registrar, Birth & Death Department, Ahmedabad Municipal

Corporation (hereinafter referred to as "the respondent No. 2")

whereby the application has been rejected on the ground that in

view of the provisions of the circular dated 18.02.2016, the name

cannot be corrected in the birth certificate.

C/SCA/11481/2021 ORDER DATED: 15/11/2021

4. Brief facts of the case are that the petitioner is the father of

the child named Chandresh Sureshkumar Acharya, aged about

seven years and his date of birth is 26.09.2014. In the birth

certificate bearing registration no. 2014-BW-0218-0001963; the

name of the minor son of the petitioner is mentioned as

'Chandrakant Sureshkumar Acharya' instead of 'Chandresh

Sureshkumar Acharya'. Since the name of the child was incorrectly

mentioned in the birth certificate, the petitioner had submitted

application for publishing correct name in the Gujarat Government

Gazette. Accordingly, the name has been changed from

'Chandrakant Sureshkumar Acharya' to 'Chandresh Sureshkumar

Acharya'. Owing to the incorrect name in the birth certificate, the

petitioner also submitted application dated 14.02.2020 to the

Registrar, Birth-Death Department, Ahmedabad Municipal

Corporation, Ahmedabad, inter alia, requesting that the name be

changed as desired. The application was inwarded on 14.02.2020

alongwith the relevant documents; however, the respondent no. 2

vide order dated 27.02.2020 rejected the request of the petitioner

mainly relying upon the circular dated 18.02.2016 issued by the

Chief Registrar, Births and Deaths, Gandhinagar. The petitioner is

aggrieved by the said rejection and hence the present writ petition.

5. Mr. Nishit Gandhi, learned Advocate appearing for the

petitioner, has submitted that the order has been passed by the

respondent no. 2 only on the basis of the circular dated 18.02.2016.

It is submitted that reliance placed on the circular dated

C/SCA/11481/2021 ORDER DATED: 15/11/2021

18.02.2016, is misplaced. It is further submitted that before

passing the order dated 27.02.2020, no hearing was accorded to

the petitioner and straight away the respondent no. 2 has passed

the order. Hence, the order dated 27.02.2020, passed is completely

illegal and unjustified so also in violation of the principles of

natural justice. It is also submitted that it was impermissible for the

respondent no. 2 to have placed reliance on the circular dated

18.02.2016 inasmuch as, this Court in the case of Sejalben

Mukundbhai Patel W/o Khodabhai Joitaram Patel v. State of

Gujarat, reported in 2019 (3) GLR 1866, has held and observed that

the circular cannot have the overriding effect and that it would be

incumbent upon the respondent authorities to exercise the powers

in tune with the provisions of Section 15 of the Registration of

Births and Deaths Act, 1969 (hereinafter referred to as "the Act of

1969") read with Rule 11 of the Gujarat Registration of Births and

Deaths Rule, 2004 (hereinafter referred to as "the Rules of 2004").

5.1. Reliance is also placed on the judgment in the case of Patel

Dipikaben Rajeshbhai v. State of Gujarat reported in 2014 (0)

AIJEL-HC-231933. It is submitted that this Court has held and

observed that a combined reading of Section 15 of the Act of 1969

and Rule 11 of the Rules of 2004, leaves no manner of doubt that

the respondent authority, is vested with the power to make

correction in an entry in the Register of Births & Deaths and also in

the birth certificate. It is also submitted that if one sees the

meaning of the name 'Chandrakant' and 'Chandresh', the

C/SCA/11481/2021 ORDER DATED: 15/11/2021

substance of the name would not be changed. It is therefore

submitted that considering the provision of Section 15 of the Act of

1969 read with Rule 11 of the Rules of 2004, the respondent no. 2

had ample powers to have corrected the birth certificate and

change the name of the son of the petitioner from 'Chandrakant

Sureshkumar Acharya' to 'Chandresh Sureshkumar Acharya'.

However, while not doing so it failed to exercise the powers under

Section 15 of the Act of 1969 read with Rule 11 of the Rules of

2004, and therefore the action is bad and illegal.

5.2. It is next submitted that when the petitioner has applied for

change of the name and that change has been published in the

Gujarat Government Gazette on 24.10.2019, there was no doubt

that there was an error in the name and therefore it ought to have

been corrected. Reliance is placed on the judgment in the case of

The Commissioner, The Pallavaram Municipality, Chromepet,

Chennai v. S.K. Syed Rafiullah reported in 2016-3-L.W.863. It is

submitted that the Hon'ble High Court of Madras, while

interpreting the provisions of Section 15 of the Act of 1969, has

held and observed that Section 15, contemplates that if it is proved

to the satisfaction of the Registrar that any entry of birth and death

in any Register kept under the Act is erroneous in form or

substance or has been fraudulently or improperly made, subject to

such rules as may be made, the entries may be corrected or

cancelled. Further, the aspect of publication of the change of name

in the Government Gazette has been considered and in paragraph

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no. 4 it has been observed that when the change of the name of the

minor, is based on publication in the Government Gazette, the

officer concerned was duty bound to change the name and issue

the birth certificate afresh and it would not be against the

provisions of Section 15 of the Act of 1969. It is therefore

submitted that the petition deserves to be allowed and the

respondent no. 2 be directed to carry out the correction as

requested.

6. On the other hand Ms. Kalpana Raval learned Advocate

appearing for the respondent no. 2 has opposed the writ petition

by inviting the attention of this Court to the application dated

14.02.2020. It is submitted that it is the case of the petitioner

himself that inadvertently the name of the child has been recorded

as 'Chandrakant'. It is therefore submitted that it is not the clerical

error on the part of the respondent authorities but it was the

mistake on the part of the petitioner himself in giving the details of

the name of the child. It is therefore submitted that no error can be

said to have been committed by the respondent authority in

recording the entry in the birth certificate and consequently in

passing the order dated 27.02.2020.

7. Heard learned Advocates appearing for the respective parties

and perused the documents available on the record.

8. By this petition, the petitioner has challenged the order dated

27.02.2020 whereby the application of the petitioner for change of

C/SCA/11481/2021 ORDER DATED: 15/11/2021

the name of his son 'Chandrakant Sureshkumar Acharya' to

'Chandresh Sureshkumar Acharya' has been rejected mainly

relying upon the circular dated 18.02.2016. It is the case of the

petitioner that the name of the child was 'Chandresh' and not

'Chandrakant' however, inadvertently, in the birth certificate it has

been recorded as 'Chandrakant'. As is discernible form the record

and more particularly, the Gujarat Government Gazette the

petitioner has applied for the change of the name of the child from

'Chandrakant Sureshkumar Acharya' to 'Chandresh Sureshkumar

Acharya'. As has been stated by Mr. Gandhi, at the bar, that

alongwith the application dated 14.02.2020, the parents, have also

filed affidavits, inter alia, declaring that the name of the child, is

'Chandresh' and not 'Chandrakant'. Such aspect has not been

disputed by the respondent.

9. With the aforesaid background, an application was made to

the authority concerned on 14.02.2020, inter alia, requesting for

change in the name of the child. As is discernible from the record,

the application has been rejected only on the ground that it would

be impermissible for the respondent no. 2 to change the name in

view of the provisions of the circular date 18.02.2016 issued by the

Chief Registrar, Births & Deaths, Gandhinagar.

10. So far as the circular dated 18.02.2016 is concerned, reliance

whereof has been placed while passing the communication dated

27.02.2020, had fallen for consideration before this Court in the

C/SCA/11481/2021 ORDER DATED: 15/11/2021

case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel

(supra). The issue before the co-ordinate bench, was that can the

circular dated 18.02.2016 issued by the Chief Registrar, Births &

Deaths Commissions (State of Gujarat) override the statutory

provisions. Relevant paragraphs 8, 21, 22, 24 read thus:-

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

(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?

21. 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 competent 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, 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.

22. It is required to be noted that respondent No.2 has not

C/SCA/11481/2021 ORDER DATED: 15/11/2021

stated in the impugned order that the father of the petitioner has given name as 'Manisha' while registering her name in the Birth Register and, therefore, respondent No.2 will not entertain the request of the petitioner for correction of the name. It is only the learned advocate who is appearing on behalf of respondent No.2, has raised contention, on the basis of the averments made by the petitioner in the memo of petition, that there was no mistake on the part of respondent No.2 in correcting the name of the petitioner and, therefore, respondent No.2 cannot be directed to correct the name of the petitioner. However, it is required to be noted at this stage that this Court has considered the similar issue in Special Civil Application No.10126 of 2017 and observed in Paragraphs3 and 4 as under:

"3. The petition is filed seeking a direction against the respondent under the provisions of the Registration of Births and Deaths Act, 1969 (Act of 18 of 1969) (for short "the Act") to correct the name of the petitioner's daughter from Purvi to Krupa, as, according to the petitioner, the said name was mistakenly entered into the birth register at the instance of the petitioner. The petitioner has made a representation in this regard produced at Annexure "C" which has been decided against the petitioner citing Circular dated 18.2.2016 purportedly prohibiting the respondent from correcting the name of a person in the birth register. On close perusal of the circular it transpires that once upon a time a clarification was made that the change in the name applied for by a person under the Act should not be permitted except where substantially the name remains the same. Such clarification came to be withdrawn subsequently and it appears that because of withdrawal of such clarification the respondent authority finds itself bereft of the power to make correction of the errors even in cases where the name is not sought to be changed, but only correction of name is sought. This, in the opinion of this Court, is a total misreading of the circular. The circular does not preclude correction of errors in the name; it once upon a time prohibited the change of name. This is not a case for change in name but a case where the parents of the baby girl Krupa have filed an affidavit stating that the correct name of their baby girl is Krupa and not Purvi as registered in the birth register. A reference to the decision in Nitaben Nareshbhai Patel v. State of Gujarat [2008(1) GLH 556] may be made at this stage where this Court has, after elaborately

C/SCA/11481/2021 ORDER DATED: 15/11/2021

pointed out the correct legal position inter alia for dealing with applications under Section 15 of the Act. The respondent is thus under an obligation to adhere to the decision in Nitaben (supra) and address the issue again on that basis.

4. In above view of the matter, the petition deserves to succeed. Accordingly the petition is allowed. The impugned order dated 1.5.2017 is quashed and set aside with a direction to the respondent to reconsider the case of the petitioner in the light of the observations made in this judgment. The exercise shall be completed within a period of four weeks from the date of receipt of writ of this Court. Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted."

24. 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."

11. In the present case, had the authority undertaken the said

exercise it would have appreciated that after the recording of the

name in the birth certificate, in the year 2019, the petitioner had

applied for change of the name in the Gujarat Government Gazette

which has been duly changed vide publication dated 24.10.2019

from 'Chandrakant Sureshkumar Acharya' to 'Chandresh

Sureshkumar Acharya'. Therefore, this Court is of the opinion that

while passing the order dated 27.02.2020 reliance placed on the

circular dated 18.02.2016 was misconceived and not proper. The

respondent no. 2 as discussed hereinabove has rejected the

application however, it has lost sight of the fact that in the case of

C/SCA/11481/2021 ORDER DATED: 15/11/2021

Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel (supra)

this Court has held that the circular cannot have an overriding

effect over the statutory provisions.

12. Reliance is placed by the learned Advocate appearing for the

petitioner on the judgment in the case of Patel Dipikaben

Rajeshbhai vs. State of Gujarat reported in 2014(0) AIJEL-HC-

231933 which is also worth referring to. The facts in the case of

Patel Dipikaben Rajeshbhai (supra) are identical to the facts of the

present case. The coordinate bench, has quashed and set aside the

action of the authorities inasmuch as, it had simply refused to

exercise the jurisdiction as laid down by the statute. It has been

observed that when the statute has conferred the powers upon the

authority concerned, it was incumbent upon it to have exercised

the powers judiciously and not mechanically.

13. Considering the facts and circumstances of the case, this

Court is of the opinion that the action of the respondent No. 2, is

erroneous inasmuch as the respondent no. 2 is obligated to

undertake the exercise laid down by the provisions of Section 15 of

the Act of 1969 read with Rule 11 of the Rules of 2004 framed by

the State Government with regard to the corrections of the entries

as prayed for, after verifying the relevant material, that may be

produced by the applicant and carry out the correction. In view of

the aforementioned discussion and the documentary evidence

available on the record and more particularly the publication in the

C/SCA/11481/2021 ORDER DATED: 15/11/2021

Government Gazette and in absence of any doubts raised about the

authenticity and the genuineness, the communication/order dated

27.02.2020 issued by the respondent no. 2 deserves to be quashed

and set aside and is accordingly quashed and set aside. The

respondent no. 2 is directed to carry out the correction in the

name of the son of the petitioner as 'Chandresh Sureshkumar

Acharya' instead of 'Chandrakant Sureshkmar Acharya', in the

birth certificate. Let the aforesaid exercise be carried out within a

period of eight weeks from the date of the receipt of copy of this

order.

14. In view of the above discussion, the petition succeeds and is

accordingly allowed. Rule is made absolute to the aforesaid extent.

No order as to cost.

Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR