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2019 DIGILAW 148 (GUJ)

Manishabahen Satishbhai Patel v. State of Gujarat

2019-02-20

VIPUL M.PANCHOLI

body2019
JUDGMENT : Vipul M. Pancholi, J. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed that the respondent authority be directed to change the name of the petitioner in the birth certificate issued in her favour from Jaywantiben to Manishaben. 2. Heard learned advocate Mr.Rahevar for the petitioner and learned Assistant Government Pleader Ms.Pathak for the respondent no.1 and learned advocate Mr.Munshaw for respondent nos.2 and 3. 3. Learned advocate for the petitioner submits that the petitioner was born on 23.5.1974 at village Talodh, Taluka Gandevi, District Navsari. In the birth certificate issued by the respondent authority, her name is mentioned as Jaywantiben by mistake. It is pointed out by learned advocate for the petitioner from the documentary evidence produced on record that in all the other documents namely School Leaving Certificate, Aadhar Card, Pan Card, Election Card and Passport, her name is mentioned as Manishaben. It is submitted that recently the petitioner has applied for permanent residence- ship of Canada and therefore the concerned authorities are insisting for her birth certificate wherein the name of the petitioner is recorded as Jaywantiben. The petitioner has, therefore, made a representation to the respondent authority on 7.12.2018 and requested to correct her name in the birth certificate. However, the respondent authority, by communication dated 12.12.2018 rejected the request of the petitioner on the ground that circular dated 18.2.2016 is issued by the Chief Registrar, Births and Deaths and Commissioner (Health), State of Gujarat. 4. Learned advocate for the petitioner has challenged the said communication and contended that under Section 15 of the Registration of Births and Deaths Act, 1969 ('the Act of 1969' for short) and the Gujarat Registration of Births and Deaths Rules, 2004 ('Rules of 2004' for short), the respondent authority is empowered to correct the entries namely name and/or the birth certificate after making necessary inquiry. In the present case, without making any inquiry, the respondent authority has refused to make necessary correction in the birth certificate and simply placed reliance upon the circular dated 18.2.2016. 5. Learned advocate for the petitioner has placed reliance upon the order dated 16.1.2019 passed in Special Civil Application No.19054 of 2018 wherein this Court has considered the similar issue and considered the circular dated 18.2.2016 issued by the concerned authority and thereafter this Court issued necessary directions to the respondent authorities. 5. Learned advocate for the petitioner has placed reliance upon the order dated 16.1.2019 passed in Special Civil Application No.19054 of 2018 wherein this Court has considered the similar issue and considered the circular dated 18.2.2016 issued by the concerned authority and thereafter this Court issued necessary directions to the respondent authorities. It is, therefore, urged that the present case is squarely covered by the aforesaid order passed by this Court and therefore appropriate direction be issued to the respondent authority. 6. On the other hand, learned advocate for the respondent Mr.Munshaw has opposed this petition and referred the averments made in the affidavit-in-reply filed by respondent no.2. It is submitted that there is a delay of 44 years in making such application for correction and therefore the respondent authority has not entertained the application of the petitioner. It is further contended that the respondent authority is bound by the circular dated 18.2.2016 issued by the competent authority of the State Government. Thus, no error is committed by the respondent authority while rejecting the request of the petitioner. It is, therefore, urged that this petition be dismissed. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that in all the documentary evidence produced by the petitioner on record, name of the petitioner is mentioned as Manishaben whereas in the birth certificate, name of the petitioner is stated as Jaywantiben. 8. The petitioner has specifically averred in paragraph 3.2 of the petitioner that recently the petitioner has applied for permanent residence-ship of Canada and concerned authority is insisting for her birth certificate wherein the name of the petitioner is mentioned as Jaywantiben whereas in all the other documents, her name is mentioned as Manishaben. Thus, change is required at this stage. 9. At this stage, it is required to be noted that if the order which is produced at page 9 of the compilation is carefully examined, it is revealed that the request of the petitioner was not entertained on the ground of circular dated 18.2.2016 and not on the ground of delay in filing the application. Thus, it appears that this is nothing but an afterthought on the part of the respondent authority in making submission of delay. Thus, it appears that this is nothing but an afterthought on the part of the respondent authority in making submission of delay. However, in the facts of the present case and in view of the averments made in paragraph 3.2 of the memo of the petition, this Court is of the view that the contention of the respondent with regard to delay in filing the application is misconceived. 10. It is further revealed from the impugned communication that the respondent authority has, without making any inquiry and without verifying the documentary evidence produced by the petitioner rejected the request relying upon the circular dated 18.2.2016. 11. This Court has considered the similar issue in the case of Sejalben Mukundbhai Patel w/o Khodabhai Joitaram Patel V/s State of Gujarat in Special Civil Application No.19054 of 2018, wherein this Court has considered various decisions rendered by this Court on the issue in question and also considered the provision contained in Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004 and thereafter observed in paragraphs 8, 22 and 25 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 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. 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." Thus, the issue involved in the present petition is squarely covered by the aforesaid decision. 12. In view of the aforesaid discussion, this petition is partly allowed. The impugned communication dated 12.12.2018 issued by the respondent authority is quashed and set aside and the respondent authority is directed to reconsider the case of the petitioner in light of the observation made by this Court in the present order and pass appropriate order after making inquiry as contemplated under Section 15 of the Act of 1969 and after considering the documentary evidence produced by the petitioner. The respondent authority shall complete the aforesaid exercise within a period of six weeks from the date of receipt of this order. Direct service is permitted.