Bhavika Niteshkumar Patel D/O ... vs State Of Gujarat
2021 Latest Caselaw 17581 Guj

      C/SCA/10666/2021                            ORDER DATED: 23/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10666 of 2021

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     BHAVIKA NITESHKUMAR PATEL D/O GUNWANT SHAMJIBHAI PATEL
            THROUGH POA BHIMJIBHAI NARSHIBHAI SUJITRA
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR TANMAY B KARIA(6833) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 23/11/2021
                   ORAL ORDER

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. Mr. Rohan Shah, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent no.1 and Mr. Tanmay B. Karia, learned advocate waives service of notice of rule on behalf of the respondent no.2.

3. By this petition, the petitioner has prayed for quashing and setting aside the communication dated 7.7.2021 issued by the Talati

- cum - Mantri, Sarambhda Gram Panchayat, Village Sarambhda, Taluka & District Amreli whereby, the request of the petitioner for changing of the date of birth as 6.6.1985 instead of 9.6.1985 in the register of birth and death, has been rejected.

4. Mr. Bhaumik Dholariya, learned advocate appearing for the petitioner, at the outset, submitted that the present writ petition is a second round of litigation. In the recent past, the petitioner has filed

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a Special Civil Application No.2762 of 2021 whereby, this Court vide order dated 15.3.2021, allowed the writ petition directing the respondent no.2 to decide the application for change of date of birth after making inquiry under 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 Birth and Death Rules, 2004 (hereinafter referred to as the 'Rules of 2004').

5. It is submitted that though there was a specific direction issued by this Court to decide the application, the respondent no.2, disregarding the directions, so also the provisions of the Act of 1969 and the Rules of 2004, has passed the order dated 7.7.2021, reiterating the earlier order, which was quashed and set aside by this Court vide order dated 15.3.2021.

6. Mr. Tanmay B. Karia, learned advocate appearing for the respondent no.2, could not dispute the fact that the respondent no.2, has passed the order, not in conformity with the directions issued by this Court vide order dated 15.3.2021.

7. Heard the learned advocates appearing for the respective parties.

8. As is discernible from the record, the petitioner, has submitted an application for change of the date of birth from 6.6.1985 instead of 9.6.1985 in the register of birth and death. In support of such request, reliance has been placed on various documents, namely, Secondary School Certificate issued by Maharashtra State Board of Secondary and Higher Secondary Education, Pune; College Leaving Certificate issued by Yeshwantrao Chavan College of Engineering, Nagpur; PAN Card No.AOMPP7848H; Aadhar Card No.475365852796; so also the passport No.L4562012 issued by the authority concerned.

C/SCA/10666/2021 ORDER DATED: 23/11/2021

9. The parents of the petitioner, in support of such request, have filed respective affidavits indicating that the correct date of birth of the petitioner is 6.6.1985 and not 9.6.1985. Despite the bunch of documents placed on record, the respondent no.2, instead of undertaking requisite inquiry as contemplated under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004, has passed the order dated 7.7.2021.

10. Mr. Dholariya, learned advocate, has rightly contended that the circular dated 18.2.2016, has been issued on the basis of Section 35 of the Indian Evidence Act, 1872 which circular, has been dealt with by this Court in the case of Sejalben Mukundbhai Patel W/ o Khodabhai Joitaram Patel vs. State of Gujarat reported in 2019 (3) GLR 1866. This Court, while dealing with the circular dated 18.2.2016 issued by the Chief Registrar, Births and Deaths & Commissioner (Health), State of Gujarat, has held and observed that the circular cannot override the provisions of the Act of 1969, so also the Rules of 2004. 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

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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 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

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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 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."

Therefore, once this Court has held and observed that the circular cannot have an overriding effect, the respondent no.2, while passing the order, ought to have initiated the inquiry as contemplated under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. In absence of any inquiry, this Court is of the opinion that the order dated 7.7.2021, is not in conformity with the directions contained in the order dated 15.3.2021; the provisions of the Act of 1969; the Rules of 2004 and the documents available on

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the record.

11. Under the circumstances, the order deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent no.2, shall undertake the inquiry in tune with the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004; consider the documents, which are available on the record of the captioned writ petition, authenticity and genuineness of which have remained undisputed, and pass the order, ensuring that there is no further round of litigation by the petitioner. Such exercise shall be completed within a period of six weeks from the date of receipt of the copy of this order.

12. In view of the above, the petition succeeds and is accordingly allowed. Rule is made to the aforesaid extent. No order as to costs.

13. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI