Niravkumar Chandulal Thakkar vs State Of Gujarat
2021 Latest Caselaw 14799 Guj

      C/SCA/7350/2021                              ORDER DATED: 22/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7350 of 2021

==========================================================
                        NIRAVKUMAR CHANDULAL THAKKAR
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
MR.KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER
==========================================================
 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 22/09/2021
                                ORAL ORDER

1. By this petition under Article 226 of the Constitution of India, the petitioner, has prayed for quashing and setting aside the communication/order dated 22.03.2021 passed by the Registrar, Birth and Death Department, Ahmedabad Municipal Corporation (hereinafter referred to as the "Registrar") whereby, the request of the petitioner for change of name in the Birth Certificate of his son, has been rejected relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths & Commissioner (Health), Gandhinagar, State of Gujarat.

2. Briefly stated are the facts:

2.1 The petitioner is father of a minor child namely "Neev", aged about 4 years and his date of birth is 24.03.2017. The Birth Certificate bearing Registration No.2017-BW-0210-0000489 was issued; however, the Birth Certificate carry the name of the son of the petitioner as "Neer Niravkumar Thakkar".

2.2 According to the petitioner, the name of his son is "Neev Niravkumar Thakkar" and not "Neer Niravkumar Thakkar". Apropos

C/SCA/7350/2021 ORDER DATED: 22/09/2021

the steps taken by the petitioner for change in name, the Gujarat Government Gazette was published on 05.07.2018 whereby, the name of the son of the petitioner, has been corrected from "Thakkar Neer Niravkumar" to "Thakkar Neev Niravkumar".

2.3 Since the name of the son of the petitioner, was not mentioned correctly in the Birth certificate, the petitioner approached the competent authority for the purpose of correction of name in the Birth Certificate. The said application, was inwarded on 12.01.2021. Along with the application, the petitioner has also annexed documentary evidence such as Birth Certificate, Aadhar Card, affidavits of the petitioner and his wife and publication of Gujarat Government Gazette dated 05.07.2018.

2.4 The Registrar, vide communication/order dated 22.03.2021, refused the request of the petitioner for change of name relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths & Commissioner (Health), Gandhinagar, State of Gujarat. Being aggrieved, the petitioner has filed the captioned writ petition with the aforementioned prayer.

3. Mr.Nishit P. Gandhi, learned advocate appearing for the petitioner submitted that the name of the son of the petitioner, has been incorrectly recorded in the Birth Certificate. It is submitted that instead of "Neev Niravkumar Thakkar", the name recorded is "Neer Niravkumar Thakkar". It is submitted that the correct name of the son of the petitioner, is "Neev Niravkumar Thakkar" and not "Neer Niravkumar Thakkar". Reliance is placed on the documentary evidence namely the Aadhar Card, the Gujarat Government Gazette and the affidavits of the petitioner and the wife of the petitioner.

3.1 It is submitted that the communication/order dated 22.03.2021, has been passed by the Registrar wrongly placing the reliance on the Circular dated 18.02.2016 inasmuch as, Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter

C/SCA/7350/2021 ORDER DATED: 22/09/2021

referred to as the "Act of 1969") obliges the competent authority to correct the entry of birth in any register kept by him under the Act. It is submitted that Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 (hereinafter referred to as the "Rules of 2004") provides for correction or cancellation of entry in the register of births and deaths. It is submitted that if it is reported to the Registrar that the clerical or formal error has been made in the register, it is incumbent upon the Registrar to inquire into the matter and if 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 of 1969. It is therefore submitted that provisions of Section 15 read in juxtaposition with the provisions of Rule 11 of Rules of 2004, the Registrar is under an obligation to correct the name in the Birth Certificate of the son of the petitioner; however, the Registrar, has rejected the application only relying upon the provisions of the Circular dated 18.02.2016 which was impermissible for him to do so.

3.2 In support of such contention, reliance is 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, after considering the provisions of Section 15 of the Act of 1969 so also Rule 11 of the Rules of 2004, held and observed that the law is well settled by catena of judgments. It has also been held that Section 15 of the Act of 1969 read with the provisions of Rule 11 of the Rules of 2004, empowers the Registrar to make correction in an entry in the register of births and deaths. It would be impermissible for the competent authority to refuse to exercise the jurisdiction vested in it by the Statute, more particularly, when the Statute has conferred power upon the competent authority. It has also been held that it is incumbent upon it to exercise the same judiciously and in accordance with law.

3.3    It    is     submitted   that    the      edifice   on       which,         the





       C/SCA/7350/2021                             ORDER DATED: 22/09/2021

communication/order dated 22.03.2021 has been issued is the circular dated 18.02.2016, which would be strictly impermissible for the Registrar to rely upon. In support of such contention, reliance is placed on the judgment in the case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel v. State of Gujarat reported in 2019 (0) AIJEL-HC-240227. It is submitted that the validity of the Circular dated 18.02.2016 has fallen for consideration before this Court and this Court, while interpreting the provisions of Section 15 read with Rule 11 of the Rules of 2004, held and observed that the provisions of the Circular cannot override the provisions of the Act and the Rules. This Court, has formulated the issues namely (i) Can circular dated 18.02.2016, issued by the Chief Registrar, Births and Deaths & Commissioner (Health), Gandhinagar, State of Gujarat override the statutory provisions and (ii) Can the competent authority appointed under the provisions of the Act of 1969 and Rules framed thereunder simply rely upon the Circular dated 18.02.2016 and reject the request, without making any inquiry as contemplated under the provisions of the Act of 1969 and Rules of 2004. This Court, has answered the issues holding that the Circular dated 18.02.2016, cannot override the statutory provisions. So far as the issue No.(ii) is concerned, it has been held that the competent authority appointed under the provisions of the Act and Rules framed thereunder, cannot simply rely upon the Circular and reject the request for correction in the Birth Certificate.

3.4 It is submitted that the judgment of the learned single Judge in the case of Sejalben Mukundbhai Patel (supra) was carried in appeal before the Hon'ble Division Bench by way of Letters Patent Appeal No.1002 of 2019 and this Hon'ble Court, did not entertain the appeal and therefore, the judgment of the learned single Judge, stands confirmed. Reliance is also placed on the oral order dated 18.09.2008 rendered in Special Civil Application No.10435 of 2008. It is submitted that when this Court, found that the action of the respondent No.2, was not in conformity with the provisions of

C/SCA/7350/2021 ORDER DATED: 22/09/2021

Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004, quashed and set aside the order directing the concerned respondent to carry out the correction in the name of the father of the petitioner therein and date of birth accordingly.

3.5 So far as the effect of the publication in the Gujarat Government Gazette is concerned, 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 Madras High Court has, inter alia, held and observed that as per the provisions of Section 15 of the Act of 1969, 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 the Act is erroneous in form or substance, or has been fraudulently or improperly made, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, may correct the error or cancel the entry by suitable entry in the margin, without any alteration of the entry and add thereto the date of the correction or cancellation. In the said case, the publication of the change of the name, was made in the Government Gazette. Considering the said aspect, the Hon'ble Madras High Court held that in view of the change or alteration of date of birth based on publication in the Government Gazette, the officer concerned is duty bound to change the name and issue the birth certificate afresh.

3.6 It is therefore, urged that the issue, stands covered by the judgment rendered by this Court and therefore, the petition deserves to be allowed, setting aside the communication/order dated 22.03.2021 passed by the Registrar. It is also urged that the respondent authorities be directed to make necessary correction in the register of birth by entering the correct name of the son of the present petitioner as "Neev Niravkumar Thakkar".

C/SCA/7350/2021 ORDER DATED: 22/09/2021

4. On the other hand, Mrs.Kalpana K. Raval, learned advocate appearing for the respondent No.2 submitted that the name of the son of the petitioner, was registered as "Neer Niravkumar Thakkar" and the petition is filed seeking permission to change such name as "Neev Niravkumar Thakkar". The application, was filed on 12.01.2021 and therefore, the change of name would be beyond the authority accorded upon the answering respondent under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004. It is submitted that as is discernible from the register, the name of the child, has to be mentioned during the time of the birth and accordingly, the parents of the child after the birth had themselves mentioned the name as "Neer", which is reflected at Serial No.489 mentioning the name of the father as Nirav Thakkar and the name of the child as "Neer". It is also urged that there is a delay in preferring the writ petition and no explanation is coming forth. It is submitted that the correction sought is, not merely a correction in erroneous spelling/pronunciation in the name but, is an attempt to have the name changed in its entirety which, according to the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004 is not permissible.

4.1 In support of such contention, reliance is placed on the order dated 21.10.2020 passed in Special Civil Application No.22669 of 2019. Reliance is also placed on the judgment in the case of Bhupatsinh Dalsukhbhai Pateliya v. State of Gujarat passed in Letters Patent Appeal No.239 of 2011. It is submitted that this Court, while interpreting the provisions of sub-Section (2) and sub-Section (3) of Section 13 of the Act of 1969 held that the provisions do not deal with the question of making correction in the school leaving certificate or the other school records. Similarly, reliance is also placed on the oral judgment dated 07.09.2018 passed in Special Civil Application No.1174 of 2018. It is, therefore, urged that no error has been committed by the Registrar in passing the communication/order dated 22.03.2021. It is submitted that the

C/SCA/7350/2021 ORDER DATED: 22/09/2021

reliance placed by the officer concerned on the Circular dated 18.02.2016, is in the right earnest inasmuch as, the Circular provides that no correction shall be carried out while exercising the powers under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004 when, the substance of the name is capable of being changed. It is, therefore, submitted that the petition does not deserve to be entertained and is required to be dismissed.

5. Heard the learned advocates for the respective parties.

6. By this petition, the petitioner has challenged the communication/order dated 22.03.2021 passed by the Registrar, rejecting the application of the petitioner for change of name of his son from "Neer" to "Neev". The basis on which the order has been passed is Circular dated 18.02.2016. As is discernible from the record, in all the documents namely Aadhar Card, Gujarat Government Gazette dated 05.07.2018 and the affidavits of the petitioner and his wife i.e. the mother, the name of the son of the petitioner is "Neev" and not "Neer".

7. So far as the Circular dated 18.02.2016 is concerned, reliance whereof has been placed while passing the communication/order dated 22.03.2021 had fallen for consideration before this Court in the case of Sejalben Mukundbhai Patel (supra). This Court, after considering the provisions of Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004, in para 24, has answered the issues. It has been held that the Circular dated 18.02.2016, issued by the Registrar, Births and Deaths & Commissioner (Health), State of Gujarat cannot have the overriding effect over the statutory provisions. It has been further held that the competent authority appointed under the provisions of the Act of 1969 read with Rule 11 of the Rules of 2004, cannot simply rely upon the Circular and reject the request of the concerned applicant, without making necessary inquiry. This Court, was of the opinion that if the authority

C/SCA/7350/2021 ORDER DATED: 22/09/2021

concerned, exercises the powers under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004, it has to undertake the necessary inquiry. Had the authority concerned, conducted the requisite inquiry, it would have appreciated that in all the documents namely Aadhar Card, Gujarat Government Gazette, the name of the son of the petitioner is "Thakkar Neev Niravkumar". Moreover, the parents have also filed affidavits, inter alia, declaring that inadvertently, the name of their son "Thakkar Neev Niravkumar", was recorded as "Thakkar Neer Niravkumar". Therefore, this Court, is of the opinion that the inquiry as envisaged under Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004, has not been properly conducted requiring interference by this Court.

8. In the present case also, by citing the provisions of the Circular dated 18.02.2016, the authority has rejected the application of the petitioner. However, it has lost sight of the fact that in the case of Sejalben Mukundbhai Patel (supra), this Court, has held and declared that the circular cannot have an overriding effect over the statutory provisions and the rules.

9. Further, the Memorandum dated 30.06.2015, issued by the Government of India, Ministry of Home Affairs also throws some light on the aspect of exercise of powers by the competent authority. Para 2 whereof reads thus:

"2.Taken into consideration the request received from various quarters through Court Orders or individual applications, it is observed that errors in name in birth record occurs due to negligent recording by hospital authorities or by the informant in birth reporting forms. Applications for correction in name are filed by the individuals when the birth certificates are to be produced for school admission, issue of passport etc.

Considering the requirements of birth certificate with correct names, it has been decided that the request of change in name may be considered by the Registrar, if he/ she is satisfied with the authenticity of the documents submitted by the applicant, the Registrar is authorized to consider the

C/SCA/7350/2021 ORDER DATED: 22/09/2021

request of change in name. As far as possible, the concern Registrar may use the term 'alias' in respect of change in name and prefer to write both names in the birth certificate after making necessary entry in the remarks column of birth register. In case 'alias' is not acceptable to the applicant, then necessary changes in the name may be done upon the satisfaction of the registrar on the authenticity of the documents furnished by the applicant. After making changes, necessary entry should be made in the remarks column of the birth register and mention the date of correction and both names in the remarks column of birth register."

Para 2 clearly provides that considering the requirements of birth certificate with correct names, if the request of change in name is made, and if the Registrar is satisfied with the authenticity of the documents submitted by the applicant, he is authorized to consider the request of change in name. Therefore, the provisions of Memorandum dated 30.06.2015, clearly provides about the powers of the Registrar to carry out the correction in name after he is satisfied about the authenticity of the documents.

10. Apart from the aforesaid, the judgment rendered in the case of Patel Dipikaben Rajeshbhai (supra) is worth referring to and helps the case of the petitioner. The facts were similar to the facts of the present case. This Court, has quashed and set aside the action of the authority as, it has simply refused to exercise the jurisdiction vested in it by the statute. It has been observed that when the statute has conferred power upon the authority concerned, it is incumbent upon it to exercise it judiciously and in accordance with law.

11. While adverting to the judgments cited by the learned advocate for the respondent, it is required to be noted that the judgments, cannot be made applicable to the facts of the present case inasmuch as, in all the cases, correction was sought for in the school leaving certificate about the date of birth. This Court, while referring to the provisions of Section 13 of the Act of 1969, held and observed that the provisions do not deal with the question of

C/SCA/7350/2021 ORDER DATED: 22/09/2021

making correction in the school leaving certificate or other school records; however, so is not the position in the present case. Present case is a simple case of correction of name in the birth certificate and that too from "Neer Niravkumar Thakkar" to "Neev Niravkumar Thakkar".

12. Considering the facts and circumstances of the case, this Court is of the opinion that the action of the concerned authority, is erroneous inasmuch as, the authority 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 correction of entries as sought for and after verifying the relevant material that may be produced by the applicant carry out the correction, which it failed to do so.

13. In the result, on the basis of the documentary evidence available on record of the captioned petition and in absence of any doubt raised about its authenticity and genuineness, the communication/order dated 22.03.2021 passed by the Registrar, is quashed and set aside. Respondent Corporation is directed to carry out the correction in the name of the son of the petitioner, as "Neev Niravkumar Thakkar".

14. In view of the aforesaid discussion, the petition is allowed. No order as to costs.

15. Direct service is permitted.

(SANGEETA K. VISHEN, J) RAVI P. PATEL