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2021 DIGILAW 216 (GUJ)

Kamil Vajihuddin Siddiqui v. State of Gujarat

2021-03-10

V.M.PANCHOLI

body2021
ORDER : V.M. Pancholi, J. 1. By way of this petition, which is filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs, "(A) YOUR LORDSHIPS be pleased to quash and set aside impugned order dated 30.07.2020 passed by respondent No. 3 at Annexure 'A' as well as impugned order dated 04.11.2020, passed by Ld. Add. Chief Metropolitan Magistrate, Court No. 8, A.M.C., Ahmedabad at Annexure 'B' in this petition, in the interest of justice. (B) YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent authorities, more particularly respondent No. 3 to correct the name entered into the Birth Certificate as well as in Birth Register, in the interest of justice;. (C) xxx xxx xxx." 2. Heard learned advocate, Mr. A.R. Kadri for the petitioner, learned AGP Mr. R.B. Raval appearing for the respondent Nos. 1 and 2 and learned advocate, Mrs. Kalpana Raval appearing for the respondent No. 3. 3. Learned advocate for the petitioner has referred to the averments made in the memo of petition and, thereafter, submitted that in the birth certificate, name of the son of the petitioner is recorded as "Jibril", however after taking advice and suggestion of spiritual Guru, the name of the son of the petitioner is changed from "Jibril" to "Arsil". It is submitted that the name of the son of the petitioner is corrected and published in the Gujarat Government Gazette on 18.01.2018, copy of said gazette is placed on record at Page No. 25 of the compilation. It is further submitted that in Aadhar Card as well as in the school, where the son of the petitioner is staying, his correct name is recorded as "Arsil". Learned advocate for the petitioner, thereafter, submitted that the petitioner has made request to the respondent No. 3 for correction of the name of his son, however by impugned communication dated 30.07.2020, the request of the petitioner has been rejected by the respondent No. 3 by placing reliance upon the Circular dated 18.02.2016 issued by the concerned authority. It is submitted that before passing impugned order, the respondent No. 3 has not made any inquiry as contemplated under Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as "Act of 1969) and the Rules framed thereunder. It is submitted that before passing impugned order, the respondent No. 3 has not made any inquiry as contemplated under Section 15 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as "Act of 1969) and the Rules framed thereunder. He also submitted that the respondent has also not considered the documentary evidence supplied by the petitioner. 4. At this stage, learned advocate has placed reliance upon the decision rendered by this Court in case of Rajeshbhai Shambhubhai Vora v. State of Gujarat, delivered in Special Civil Application No. 13148/2009 dated 12.01.2020. Learned advocate has also placed reliance upon the decision of this Court Sejalben Mukundbhai Patel v. State of Gujarat and Anr., reported in, 2019 (3) GLR 1866 : AIR 2019 Guj 56 ). It is submitted that the issue involved in the present petition is squarely covered by the aforesaid decisions. He, therefore, urged that appropriate direction he issued to the respondent No. 3. 5. On the other hand, learned advocate, Mrs. Kalpana Raval appearing for the respondent No. 3 has opposed this petition and, thereafter, contended that there was no fault on the part of the respondent No. 3 while recording the name of the son of the petitioner as "Jibril" in the birth certificate and, hence, the request of the petitioner has been rejected by impugned order by placing reliance upon the Circular dated 18.02.2016. Thus, it is contended that when there was no mistake on the part of the respondent No. 3, this Court may not entertain the present petition. 6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the name of son of the petitioner is recorded as "Jibril", however thereafter immediately, it was corrected and correct name is published in the Gujarat Government Gazette on 18.01.2018 and even in the Aadhar Card also, the name of the son of the petitioner is reflected as "Arsil". Similarly in the school record also, the correct name is reflected. 7. It appears from the impugned order/communication that the respondent No. 3 has without making any inquiry as contemplated under Section 15 of the Act of 1969 and the Rule 11 of the Rules framed thereunder, rejected the request of the petitioner on the basis of the Circular dated 18.02.2016 issued by the concerned authority. 8. 7. It appears from the impugned order/communication that the respondent No. 3 has without making any inquiry as contemplated under Section 15 of the Act of 1969 and the Rule 11 of the Rules framed thereunder, rejected the request of the petitioner on the basis of the Circular dated 18.02.2016 issued by the concerned authority. 8. In case of Sejalben Mukundbhai Patel (supra), this Court has considered similarly issue and made observation in Para Nos. 22 and 25 as under, "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 a 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." 9. Thus in view of the above facts, the issue involved in the present petition is squarely covered by the aforesaid decision. 10. At this stage, the submission made by learned advocate, Mrs. Thus in view of the above facts, the issue involved in the present petition is squarely covered by the aforesaid decision. 10. At this stage, the submission made by learned advocate, Mrs. Kalpana Raval appearing for the respondent No. 3 that there was no fault on the part of the respondent No. 3 while recording the name of the petitioner in the birth certificate, is also required to be considered. Therefore if the respondent No. 3 considers the case of the petitioner for correction of the name in the birth certificate then, the petitioner is required to pay some cost to the respondent No. 3. 11. Accordingly, the impugned communication/order dated 30.07.2020 passed by the respondent No. 3 is hereby quashed and set aside. The matter is remitted back to the respondent No. 3 for deciding the application afresh. The respondent No. 3 shall decide the application/representation made by the petitioner and after making necessary inquiry as contemplated under Section 15 of the Act of 1969 read with Rules framed thereunder and after considering the documentary evidence produced by the petitioner, the respondent No. 3 shall pass appropriate order in accordance with law. Necessary inquiry shall be made by the respondent No. 3 within a period of six weeks from the date of receipt of this order. If the request of the petitioner is considered by the respondent No. 3 then, the petitioner has to pay cost of Rs. 5,000/to the respondent No. 3 as observed hereinabove. 12. With the aforesaid observation and direction, the present petition stands allowed accordingly. Direct service is permitted.