Gujarat High Court
Kadva Asif Abdurrashid vs State Of Gujarat on 4 March, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/347/2020 ORDER DATED: 04/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 347 of 2020
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KADVA ASIF ABDURRASHID
Versus
STATE OF GUJARAT
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Appearance:
ABHIJIT V VANJARA(9339) for the Petitioner(s) No. 1
MS RUTVI V CHAKRAVARTI(10306) for the Petitioner(s) No. 1
NIGAM D SONI(9314) for the Petitioner(s) No. 1
MR.ISHAN JOSHI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/03/2022
ORAL ORDER
1. Heard learned advocate Mr.Nigam Soni appearing on behalf of the writ-applicant. By way of the present writ application, the writ- applicant has prayed for the following reliefs:-
"(A) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction holding and declaring the action of the respondent authorities in issuing the impugned office letter dated 03.08.2019 compelling the petitioner to provide the full new name i.e. new name along with middle name as arbitrary and discriminatory and violative of the fundamental rights of the petitioner;
(B) Your Lordships may be pleased to issue a
writ of mandamus and/or any other
appropriate writ, order or direction,
directing the respondent authorities to
allow the petitioner to change his name and Page 1 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 surname from 'Kadva Asif Abdurrashid' to 'Suryapratap Singh' and thereby publish it trough Gujarat Government Gazette; (C) Your Lordships may be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."
2. The facts as summerised and stated by the writ-applicant germane to adjudicate the present writ application are stated thus:-
3. Learned advocate Mr.Soni submitted that the writ-applicant is serving as Assistant Commandant in Border Security Force (BSF) and married to Jayaben Jethabhai Parmar on 01.01.2018 under the provisions of Special Marriage Act. The writ- applicant decided to convert his faith from Islam to Hinduism and subsequently, the writ-applicant preferred an application dated 07.03.2019 before the District Magistrate as mandatory under Section 5 of the Gujarat Freedom of Religion Act, 2003 seeking the prior permission to be taken from the District Magistrate with respect to conversion of religion from Islam to Hinduism. The said permission came to be granted by the District Magistrate, Vadodara on 04.06.2019, thereafter the writ-applicant approached the respondent no.3 authority on 13.06.2019 by filing an application in accordance with the Gujarat Government Gazette.
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4. Learned advocate Mr.Soni submitted that the said application came to be returned for not providing father's name/middle name, by the office of the respondent no.3 vide Communication dated 03.08.2019. Learned advocate Mr.Soni relying upon various instances submitted that the respondent authority on many occassions has permitted such change in name and published in the Gujarat Government Gazette. He further relied upon various Gujarat Government Gazettes dated 29.08.2019, 05.09.2019 and 26.09.2019. Learned advocate for the writ-applicant further submitted that being aggrieved by the impugned Communication dated 13.06.2019, the writ- applicant made a representation dated 04.10.2019 through e-mail to the Competent Authority, stating above referred illustrations, whereby the other applicants, who did not include any middle name, their new name got officially published.
5. Learned AGP Mr.Ishan Joshi appearing on behalf of the respondent State relying upon the Government Resolution dated 19.11.2016 and Communication dated 11.05.2011 submitted that the form of the writ-applicant has been returned since the writ-applicant had not written middle name/father's name as per clause 10 of the circular dated 11.05.2011.
6. Heard the learned advocates appearing for both the parties.
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7. The internal Communication dated 11.05.2011 along with instructions, which read thus:-
"Industries and Mines Department 5, Sardar Bhavan, Fourth Floor, Sachivalaya, Gandhinagar
--------------------------------------------------------------------------------
No.MLS/102009/592809/D-2 Date:
11/05/2011
To,
The Director,
Government Printing and Stationary
Udyog Bhavan,
Gandhinagar
Sub: Amendment in the form for change in name.
Sir,
Pursuant to your office letter No.PTK-4/2010-11/1009 dated 09/03/2011 in regard with the above mentioned subject, it is to state that, the form sent with this letter has been approved vide informal note dated 27/04/2011 on the even number file of General Administration Department. I am directed to request you to take further action as per the amended form and to keep informed regarding the details of the same. Copy of this form is attached herewith.
Yours Faithfully Sd/-illegible (P.U. Thakkar) Section Officer, Industries and Mines Department Enclosed:- As above."Page 4 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022
C/SCA/347/2020 ORDER DATED: 04/03/2022 Free of Cost The Director, Government Printing and Stationary Department, Gandhinagar.
Note : Read the given instructions carefully before filling this form (in big and clear alphabets) This form shall be filled in Photo English for publishing the name in English FORM TO CHANGE NAME / SURNAME N o t i c e It is hereby declared that the person signing in the notice Name : (Old) has changed his / her name to new name as Name (New) :
* Signature of Guardian Signature of Applicant (for Minor) ( as per Old name) Permanent Address of Applicant At Po.
Ta. Dist.
Pin Code
For Office use only
To, Gazette Register
The Manager, No. ......................................
Government Printing Date : .......................................................
Press ..........
Reed Club Road, Received Rs. ............................... by
Rajkot - 360 001 Cash /MO
Form Verified
by ..............................Signature Receipt Number : ...........................................Page 5 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022
C/SCA/347/2020 ORDER DATED: 04/03/2022 Mr. /Mrs. / Miss.
(1) I have carefully read and understood the instructions given overleaf and all the instructions are binding to me. (2) Hereby I send the aforementioned Notice for publishing in Part II of the Gazette of the Government of Gujarat. Kindly forward copies of the Edition in which it is published in my mentioned address. I have mentioned all the information as per the instructions.
(3) My age is years as on the date of application. If the Applicant has forwarded the application on behalf of minor, then age of minor years.
(4) Rate of Publishing the Advertisement Rs. For additional copies.- Rs.
Total - Rs.
(Rupees.. )
is forwarded vide Money Order Receipt No. Date
through the Post Office.
(5) Details about whether the Applicant is an Indian Citizen or
not Yes / No.
(6) Is the Applicant is Original Native of Gujarat or not ? Its
Details Yes / No.
If No, Then Place of his / her Original Native and details about since how much time he / she is residing in Gujarat (7) I am a member of Scheduled Caste/ Scheduled Tribe.
Regarding which I enclosed True Copy of Certificate of Backward Class of the Competent Officer of the Government of Gujarat.
(8) Mention clear reason to change Name / Surname Details of Enclosed Documents :
1. 4.
2. 5.
3. 6.Page 6 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022
C/SCA/347/2020 ORDER DATED: 04/03/2022
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Signature of Witness (in case of illiterate person / applicant ) Name of Witness :
Residential Address of Witness :
Signature / Thumb impression of the Applicant / Guardian / Mother / Father :
* If the Applicant is Minor (less than 18 years, then signature of Guardian is mandatory at the place of this mark.
(see overleaf) Page 7 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 Guidelines for Publication of Name/Surname (1-a) The applicant should write full name instead of short name. (1-b) The applicant shall be an Indian citizen. (1-c) For publication of name/surname in English, this form shall be filled up with English capital letters. (1-d) The notice form with struck out or illegible writing will not be accepted. Moreover, the press shall not be responsible for it. (1-e)With the change in name/surname, attribute/degree/nickname shall not be published prefix or suffix to the name. (1-f) The applicant shall have to produce necessary affidavit along with the application.
(1-g) Caste, sub-caste shall not be published. (1-h) The change made by the applicant in father's name shall not be published.
(1-i) Legal document shall have to be produced in the case of divorce. (1-j) The notice to make changes in the place of birth shall not be published.
(2) The name of deceased person is not published in case of changes.
(3-1) Out of two recent passport size photographs, an adult applicant shall have to affix one photograph on the notice form and the other on the affidavit along with the signature for the change in name/surname. New name replacing the old name and the complete details of residential address shall have to be mentioned in the affidavit. Also the certified true copy of any one of the residential proofs such as ration card/election identity card/PAN card/telephone bill/electricity bill/driving license/property tax bill/identity card of service/passport with the signature of the applicant shall have to be produced. The affidavit to be published in the gazette shall have to be produced in original on non-judicial stamp paper with the seal and signature of First Class Magistrate or Executive Magistrate or Notary.
(3.2) In the case of minor applicant i.e. an applicant below the age of 18 (eighteen) years, required affidavit shall have to be executed by father/mother/guardian. The affidavit shall have to be submitted individually. Certified proof of the date of birth shall have to be submitted along with the application as the proof of Page 8 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 a minor applicant.
(4) A married female applicant, who wants to bear the name of her husband in place of the name/surname of her father, shall have to produce a true copy of the wedding card or the marriage certificate.
(5) The applicant, who has changed his/her sex either from male to female or vice-a-versa, shall have to produce the certificate of medical surgeon of the medical board along with the affidavit to change the name.
(6) In case of divorce, the female applicant shall have to produce the order of the hon'ble court regarding the dissolution of marriage along with necessary affidavit. (7) The applicants of other State shall have to produce a domicile certificate issued by the competent authority of Gujarat Government as an authentic documentary proof to residence for 10 years in Gujarat along with necessary affidavit for change in name/urname.
(8) To suffix the name of mother with the name of the child in case of unmarried mother, original affidavit including the joint photograph as per Guideline No - (3) and (4) and certified true copy of the birth certificate of the child bearing the signature of the applicant shall have to be produced along with the notice form.
(9) In case of adoption, the deed of adoption as per the provisions of the Hindu Adoption and Maintenance Act - 1956 along with the certified copy of the birth certificate of adopted son/daughter shall have to be produced. The applicant shall fulfil the provisions of the same. In each case of adoption, the publication shall be done on the basis of the judgement of the Hon'ble Court. With respect to the certified copy of the birth certificate of adopted son/daughter and separate affidavits of adopter and donor regarding the adoption, the procedure shall be followed as per the Guideline No - (3) and (4). (10) The applicant cannot make any changes in the name of his/her father. If any change is to be made in the name of his/her father, his/her father shall have to change his name first. Thereafter, the applicant shall have to submit an application on the basis of the same for the change in name. (11) The change in the name of the applicant with prefix of attribute/degree/nickname etc. shall not be published.
Page 9 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022C/SCA/347/2020 ORDER DATED: 04/03/2022 (12) The request to make changes in the name of a missing person shall not be accepted.
(13) The applicant shall have to deposit the amount including the necessary fee for change in name/extra copy in the Government along with the application. The amount of fee shall not be accepted through challan or postal order. For notice, it shall be Rs.100/- (except for the members of scheduled classes). This cost includes the cost of two copies of the gazette. Moreover, for each extra copy, Rs.20/- shall have to be sent. Extra copies shall not be provided later on. The extra copy shall have to be received in the first instance itself.
(14) Changed names of the members of the categories of scheduled castes/ scheduled tribes shall be published in the Gazette of the Government of Gujarat at the reduced rate of Rs.60/- instead of Rs.100/- for each application. True certified copy of the certificate of the backward class, issued by the competent authority, signed by the applicant shall be submitted along with duly filled form for change in name.
(15) A separate prescribed form is to be filled for publishing the date of birth in the Gazette of the Government of Gujarat and it shall be published in Gujarati language only. The actual date of birth recorded at the Registry office shall be considered valid. Change in the name/ surname of foreign nationals shall not be published.
(16) Notice of change in name/ surname shall be published as per order.
(17) Each notice form for change in name shall be forwarded along with money order. If necessary details are not mentioned on the money order coupon, it shall be rejected. Money order should be sent by old name only and all the details should be mentioned in notice form.
(18) The cost of notice shall have to be paid in advance. V.P.P./ Chalan or postal order will not be accepted. The rate (except for the members of scheduled classes) of publication shall be Rs.100/-. This rate includes two copies of the Gazette. Moreover, additional amount of Rs. are to be sent for each additional copy. Additional copies will not be provided later on. You are required to get the additional copies in the first instance. Moreover, if any printing mistake is found in the publication of notice, the same shall be informed to this office Page 10 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 with complete details within the period of one month and the copies of the published gazette shall have to be returned.
(19)Upon publication of advertisement of change in name-surname in the gazette of the Government of Gujarat, the concerned person does not get entitled to change name-surname in Government or other record, superceding any existing legal provision. Publishing a notice is an advertisement. The Government does not accept any liability with regard to authenticity of the said advertisement. The Government does not accept any liability if the notice to change name-surname is given by unauthorized person. There is no authorized record evidence for changed name-surname. The decision of the Government to accept or reject the publication of the advertisement in the gazette shall be considered final.
(20) The filled form and fees from the applicant are accepted at the Government Printing Press and Stationary, Ridclub road, Rajkot; Government Central Press, Sector-29, Near Gh-7 circle, Gandhinagar; Government Books Store, Azamkhan palace, near Bhadrakali temple, Lal darvaja, Ahmedabad; Government Printing Press and Stationary, Anandpura Kothi road, Vadodara; Government Printing Press, GIDC, Vitthalwadi, Bhavnagar.
(21) At the occasion of accepting or rejecting the form notice to change name-surname, the affidavit submitted by the applicant along with annexed documents, papers are not returned.
(22) The necessary orders/ instructions/ rules/ provisions issued by the Government from time to time regarding change in name- surname, will be binding to the applicant. Jurisdiction of the Court shall be Rajkot.
PRINTED O.I.G.S. Dispatched:
The Manager, The Government Press and Stationary, Ridclub road, Rajkot-360001.Page 11 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022
C/SCA/347/2020 ORDER DATED: 04/03/2022
8. The Government Resolution dated 19.11.2016, which reads thus:-
Resolution:
At the end of careful consideration, it is hereby decided to publish the name / surname of the person (as per the method of the Government of Maharashtra) individually on the basis of his/her affidavit. In this context, the Office of the Director, Government Printing and Stationary shall have to follow the procedure as under:
1) As the customs or nomenclature / personal I.D.s of the southern or other states are different, no liability of the Government arises in publishing the name of the applicant upon submitting of affidavit as well as the government proofs by the applicant, such names may be published as mentioned in the Gazette of the Government of Maharashtra.
However, the concerned applicant shall be responsible individually and it shall have no legal validity.
2) In the case where the long duration i.e. 30 - 40 years has passed to the marriage of the applicant and the wedding card is unavailable and the concerned name has been mentioned in the Government Records such as Ration Card / Election Card / Pan Card / Aadhar Card, the name may be published considering the affidavits of the husband and wife and the Government Records.
3) There is no difficulty if the change regarding name / surname suggested by the applicant in the affidavit is published, wherein change regarding the change in name / surname of the father after the name of children may be published on the basis of the deed of divorce granted by the court and proof of re-marriage as well as on the basis of the Page 12 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 affidavits of the mother and father. However, responsibility of such publication shall be of the concerned person and it shall have no legal validity.
4) In the case where the custody of the child is legally with the mother in the case of divorce, the name / surname of the mother after the name of the child may be published subject to various judgments of the Hon'ble Gujarat High Court regarding publication of the name of the mother after the name of child.
5) As the deed of adoption contains legal intricacy and the matters relating to the succession and property, change of name may be published upon submission of the deed of adoption as per the updated provision / amendment pursuant to the Hindu Adoption and Maintenance Act, 1956.
6) The amount deposited towards the change of name / surname shall be non-refundable.
7) The applicant shall be completely responsible for publication of name in the Gazette.
8) Following note shall be published in every Gazette regarding publication of name / surname:
'Government accepts no responsibility as to the authenticity of the contents of the notice since they are based entirely on the application / affidavit of the concerned persons without verification of documents."
9. This Court has perused the above referred Communication dated 11.05.2011 and the Form along with instructions, specifically instruction no.10, on which the learned AGP relied on, which reads thus:-
"10) The applicant cannot make any changes in the name of his/her Page 13 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022 C/SCA/347/2020 ORDER DATED: 04/03/2022 father. If any change is to be made in the name of his/her father, his/her father shall have to change his name first.
Thereafter, the applicant shall have to submit an application on the basis of the same for the change in name."
10. The Government Resolution dated 19.11.2016 has couched out procedure laid down for carrying out the changes in the Gujarat Government Gazette.
11. In view of this Court, it is incumbent for the respondent no.3 to accept the form filed by the writ-applicant as the writ-applicant has already mentioned above referred cases through the e-mail dated 04.10.2019 contending Gujarat Government Gazettes that the respondent authority not in any way or in any manner restricted to accept the form without entering middle name/father's name. Clause 10 of the Communication dated 11.05.2011 does not apply to present case in view of the fact that the said clause deals with the procedure to be adopted in change in the name of the father. In the present case, the writ-applicant is seeking change of his name without middle name and it is not incumbent for the writ-applicant to give middle name/father's name for changing his own name.
12. The writ-applicant is directed to make a fresh application fulfilling all requirements of the form.
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13. Once the fresh application is made by the writ applicant, the respondent authority is directed to consider the form without relying upon Clause 10 of the Communication dated 11.05.2011 as recorded in Government Resolution and take appropriate steps within a period of four weeks from the date of receipt of this order.
14. In view of the above directions, the present writ application is disposed of. Notice is discharged.
(VAIBHAVI D. NANAVATI,J) NABILA Page 15 of 15 Downloaded on : Fri Mar 11 20:19:53 IST 2022