Vishal Mahendrakumar Kapadiya vs The Sub-Registrar And Deputy ...
2023 Latest Caselaw 5164 Guj

     C/SCA/3480/2023                                   ORDER DATED: 04/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3480 of 2023
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                VISHAL MAHENDRAKUMAR KAPADIYA
                             Versus
          THE SUB-REGISTRAR AND DEPUTY HEALTH OFFICER
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1
S M KIKANI(7596) for the Petitioner(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 04/07/2023

                                ORAL ORDER

1. By way of present petition, the petitioner herein prayed for direction,directing the respondent to amend and/ or correct the name of daughter of the petitioner as "Ruchita" instead of "Taushini" in the Birth Certificate of daughter of the petitioner and to issue fresh birth certificate with correct name as prayed for, by quashing and setting aside the impugned communication dated 8.12.2022, which is duly produced at Annexure "D".

2. Heard Mr. S.M.Kikani, the learned advocate appearing for the petitioner and Mr. Kaushal Pandya, the learned advocate appearing for the respondent authority.

3. The petitioner herein applied for change in name of daughter of the petitioner in the birth certificate of the daughter of the petitioner, which was entered in the Birth

C/SCA/3480/2023 ORDER DATED: 04/07/2023

Certificate of the daughter of the petitioner as "Taushini" instead of "Ruchita". The said application came to be preferred on 21.11.2022, which is duly produced at page- 16 (Annenxure "C"), seeking aforesaid relief. The said application dated 21.11.2022, came to be rejected by the respondent authority on the ground that the respondent authority has no power to make requisite changes in the birth certificate of the daughter of the petitioner under Section 7 of the Registration of Birth and Death Act (in short "the Act").

4. Mr. Pandya, the learned advocate appearing for the respondent is not in a position to controvert the submissions made by the learned advocate appearing for the petitioner.

5. Having heard the learned advocates appearing for the respective parties, in the opinion of this Court, the aforesaid issue was considered in SCA No. 5793 of 2022 wherein it was held that the provisions of Section 7(1) of the Act provide that by appointment of Registrar for exercise of the power, which are conferred to the Registrar under Section 15 of the Act. The said Paras-7,8, 9 and 10 read thus:

"7. At this stage, I may with profit refer to the decisions of this Court. In case of Sukumar Mehta (supra), this Court, after examining the provision of section 15 of the

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Registration Act, has held thus:

"In my opinion, the Act is silent about the contingency for subsequent correction of entry already made in Birth Register by correcting the name of the child at the instance of the parents, his is the case of unmindful legislative omission. This is classic case of casus omissi, i.e., circumstances concerning which an Act is silent. The question is how to deal with such contingencies? Should the Court leave the litigant in sheer helpless condition asking him to wait till the legislature curds the defect by providing for the omission? Can the Court escape the responsibility of considering these unforeseen contingencies? However, I cannot ignore the modern tendency in Courts to take the view that if a case is entirely unprovided for by a Statute, either directly or indirectly, then it must remain nobody's child - a luckless orphan of the law (In re Leicester Permanent Building Society, 1942 Ch. 340). Same was the view of Devlin L. J. in Gladstone V/s. Bower, reported in 1960 (2) QB 384 when he observed "we cannot legislate for casus omiss". This tendency has given rise to inconvenient results. One option left for me is to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However, in my opinion, in this case there is "impalpable line" of distinction which should enable the Court to come out of helplessness. In this case" the caption of Sec. 15 gives general indication to give power to correct the entry in the Birth Register.

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However, specific case of correction of name of the child already entered is omitted to be provided for. When the entry is erroneous, there is power to correct. When it is factually improperly made, there is power of correction. Question is when entry is rightfully made can it be corrected by resort to this power ? In my opinion, once power to correct an entry already made in the Birth Register is conceded, it should legitimately take within its sweep the correction of entries rightfully made. It is the correction of the name of the child at the instance of the parents or wards. What possible objections can there be in reading such power in the authority if power to correct erroneous entry is conceded? The omission in the present case appears to be non-deliberate. In my opinion, omission being not deliberate and not supported by cogent reasons it would not be hazardous to read "implied will of the Legislators" in this provision so as to authorise the Registrar to correct the name of the child at the instance of the parents. I, therefore, hold that there is power in the Registrar to correct the entry already made by entertaining the application of the parents. In undertaking this exercise, I am reminded of what C. K.

Alien said in his book "Law in the Making": "Judges must and do carry out the express will of the legislature as faithfully as they can, but there is a wide margin in almost every statute where the Courts cannot be said to be following any will except their own. The statute then becomes, as to great part of it, not a direct "command" but simply part of the social and legal material which judges have to handle according to their

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customary process of judicial logic."

7.1 Thus, the Coordinate Bench has held that while exercising powers under section 15 of the Act, the Registrar can correct an entry already made in the Birth Register, if the same is conceded and such correction should legitimately take within its sweep the correction of entries rightfully made, since it is the correction of the name of the child at the instance of the parents of wards.

8. In case of Sejalben Mukundbhai Patel (supra), this Court, after considering various judgments of this Court, has enunciated thus:

"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

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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."

8.1 It is held that the Registrar can correct the entries made in the Birth Certificate, after making inquiry and after going through the relevant material, which may be produced by the applicant. Such correction and cancellation in the entries with relation to the name also comes within the purview of powers under section 15 of the Registration Act.

9. So far as the contention with regard to provision of Section 7(1) of the Act is concerned, in is noticed that the provision of Section 7(1) of the Act provides the appointment of the registrar for exercise of the power, which are conferred to the registrar under Section 15 of the Act, which is already interpreted by this Court in catena of judgements.

10. Hence, impugned communication/order dated 15.02.2022 passed by the respondent authority is hereby quashed and set aside. The respondents are directed to issue fresh birth certificate to the petitioners correcting the name of their son from "Dev" to "Ved". Such certificate shall be issue within a period of 6 (six) weeks from the date of receipt of writ of order of this Court."

6. Considering the facts of the present case and the order dated 13.7.2022 passed in SCA No. 5793/2022, the prayers as prayed for by the petitioner, require to be

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allowed and the same are allowed.

7. The order passed by the respondent authority dated 8.12.2022 at Annexure "D" is quashed and set aside. The respondent authority is directed to decide the said application dated 21.11.2022, which is duly produced at Annexure "C", within a period of 4 weeks from the receipt of this Order, taking into consideration Section 15 of the Act and Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 and the position of law, as referred above.

The petition stands allowed.

(VAIBHAVI D. NANAVATI,J) SAJ GEORGE