Gujarat High Court
Patel Jinal Jagdishbhai vs The Sub Registrar on 27 February, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/20493/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20493 of 2018
=======================================================
PATEL JINAL JAGDISHBHAI
Versus
THE SUB REGISTRAR
=======================================================
Appearance:
MR LALIT V PATEL(5251) for the Petitioner(s) No. 1
MS NIYATI K SHAH(2935) for the Respondent(s) No. 1
=======================================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 27/02/2019
ORAL ORDER
01. This petition is filed under Article 226 of the Constitution of India, wherein the petitioner has prayed that the respondent authority be directed to correct the name of the petitioner from "Janvi"
to "Jinal" in the birth certificate issued by the respondent authority.
02. Heard learned advocate, Mr. Lalit Patel for the petitioner and learned AGP Ms. Niyati Shah for the respondent.
03. It is contended that the name of the petitioner is wrongly recorded in the birth certificate as "Janvi" instead of "Jinal" and, therefore, the petitioner submitted an application to the respondent authority for making necessary Page 1 of 8 C/SCA/20493/2018 ORDER correction in the birth certificate, however, the request of the petitioner is rejected by the respondent while placing reliance upon the Circular dated 18.02.2016 issued by the Chief Registrar, Birth - Death & Commissioner (Health), Gujarat State, Gandhinagar. It is submitted that the said Circular dated 18.02.2016 is considered by this Court while passing an order dated 16.01.2019 in Special Civil Application No.19054/2018 and this Court has held that the said Circular cannot override the statutory provision contained in Section 15 of the Registration of Birth and Death Act, 1969 and the Rules framed thereunder and the said Circular is giving only guidance to the authority while considering the request of the concerned applicant.
04. On the other hand, learned advocate, Ms. Shah for the respondent though referred to the averments made in the affidavitinreply, has fairly submitted that the issue involved in the present application is covered by the aforesaid order dated 16.01.2019 passed by this Court in Special Civil Application No.19054/2018.
Page 2 of 8 C/SCA/20493/2018 ORDER05. In view of the submissions, this Court is of the view that the present case is covered by the aforesaid order passed by this Court, wherein this Court in Paragraph Nos.8, 22, 23 and 25 observed as under, "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?
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 Page 3 of 8 C/SCA/20493/2018 ORDER 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.
23. 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 Page 4 of 8 C/SCA/20493/2018 ORDER 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 Page 5 of 8 C/SCA/20493/2018 ORDER 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 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 Page 6 of 8 C/SCA/20493/2018 ORDER 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."
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.
26. Keeping in view the aforesaid legal position, if the facts as discussed hereinabove are examined, it is revealed that respondent No.2 has rejected the request of the petitioner simply relying upon the Circular dated 18.02.2016 issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat. It is not in dispute that while rejecting the request of the petitioner, respondent No.2 has not carried Page 7 of 8 C/SCA/20493/2018 ORDER out any inquiry nor examined the documentary evidence produced by the petitioner. Therefore, the said decision taken by respondent No.2 is required to be set aside."
06. In view of the aforesaid, the impugned communication dated 30.11.2018 is set aside. The respondent is directed to consider the request of the petitioner keeping in view the provision of the Act of 1969 and the Rules framed thereunder and also keeping in view the aforesaid order dated 16.01.2019 passed by this Court in Special Civil Application No.19054/2018 on the basis of the documents produced by the petitioner and after making necessary inquiry, pass appropriate order in accordance with law within a period of six weeks from the receipt of the copy of this order.
07. With the aforesaid observation and direction, the present petition stands allowed to the aforesaid extent. Direct service is permitted.
(VIPUL M. PANCHOLI, J.) Gautam Page 8 of 8