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2023 DIGILAW 572 (GUJ)

ZIL Nareshkumar Mistry v. State Of Gujarat

2023-04-06

VAIBHAVI D.NANAVATI

body2023
ORDER : 1. Issue Rule, returnable forthwith. Mr.Niraj Sharma, the learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State. Mr. Rituraj Meena, the learned Counsel for the Respondent No. 2 Ahmedabad Municipal Corporation waives service of notice of Rule on behalf of the respondent- Ahmedabad Municipal Corporation. 2. The Petitioner has filed this Petition for the following relief:- a) This Hon’ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, direction and order to quash and set aside order dated 20.06.2022 passed by the respondent No. 2, Annexure A, in so far as it relies on the extraneous considerations and refuses to correct the name of the Petitioner as “Zil”. b) command the Respondent(s) to accept the application of the Petitioner for correction in the Birth Certificate incorporating the name of the Petitioner as “ZIL” in place of “Drashti” in the Birth Register of Maninagar Page No. 47 for Month November of year 1990 at entry No. 6323 registered on 29.11.1990 and make necessary corrections in the birth register as required under law and in the interest of justice; 3. The Petitioner had earlier filed Special Civil Application No. 4959 of 2022 under Article 226 of the Constitution of India, wherein the petitioner had prayed for the following reliefs :- “(a) This Hon’ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, direction and order to quash and set aside order dated 30.11.2021 passed by the respondent no.2; (b) Command the respondent to accept the applicant of the petitioner for correction in the Birth Certificate incorporating the name of the petitioner as “Zil” in place of “Drashti” and family name as “Mistry” in place of “Mistri” in the Birth Register of Maninagar Page No.47 for Month of November, year 1990 at entry no.6323 registered on 29.11.1990 and make necessary corrections in the birth register as required under law and in the interest of justice.” 4. By way of that petition the petitioner sought to challenge the legality and validity of the communication dated 30.11.2021 addressed by the respondent No.2 – Ahmedabad Municipal Corporation, Registrar of Birth, Death & Marriages, Ahmedabad 380022, whereby the respondent No.2 refused to correct the name of the petitioner from ‘Drashti to Zil’ and family name from 'Mistry to Mistri" in the birth certificate. 5. 5. After hearing parties, this Court by passing order dated 31.03.2022 and after discussing the law on the subject and holding that the Respondent No. 2 had powers to make corrections in the records after considering the Section 15 of the Registration of Birth and Death Act and Rule 11(4) of the Rules, 2004 in para 14 of the Judgment quashed and set aside the communication dated 30.11.2021 and directed as under: “14. In view of ratio as laid down by this Court and the provisions of law as referred above, the impugned communication dated 30.11.2021 addressed by the respondent No.2 – Ahmedabad Municipal Corporation, Registrar of Birth, Death & Marriages, Ahmedabad 380022, is hereby quashed and set aside. The matter is remitted back to the respondent No.2 – Ahmedabad Municipal Corporation, Registrar of Birth, Death & Marriages, Ahmedabad 380022, for deciding the application dated 04.08.2021 afresh. The respondent No.2 is directed to decide the application/representation dated 04.08.2021 made by the petitioner after taking into consideration the documents produced by the petitioner and make necessary changes. The respondent No.2 is directed to decide the said application in accordance with law preferably within a period of four weeks from the date of receipt of copy of this order.” 7. Mr. Darshan Parikh, the learned advocate appearing for the petitioner submitted that the petitioner’s name was wrongly mentioned as ‘Drashti’ and correct name is ‘Zil’ as well as her family name was wrongly mentioned as 'Mistry' instead of 'Mistri' in the birth certificate. It is further submitted that the petitioner made an application dated 04.08.2021 before the respondent No.2 for correction of her name and surname with the necessary documents which included copy of School leaving certificate, Aadhar-card, Passport and Pan-card of the petitioner. 8. The respondent No.2 by communication dated 30.11.2021 refused to make correction of name and birth date of the petitioner in the birth certificate. The respondent No.2 declined to make aforesaid changes as sought for by the petitioner on the ground that the competent authority does not have the jurisdiction to decide the said application as there were no clerical errors. 9. The respondent No.2 declined to make aforesaid changes as sought for by the petitioner on the ground that the competent authority does not have the jurisdiction to decide the said application as there were no clerical errors. 9. In view of the quashing of the said communication dated 30.11.2021 by order dated 31.03.2022, the application was reconsidered and by the impugned communication the Respondent No. 1 has again refused to record the correct name of the Petitioner as “ZIL’ in place of her registered name “Drashti” on the same ground that the competent authority does not have the jurisdiction to decide the said application as there were no clerical errors. 10. Learned advocate Mr.Rituraj Meena appearing on behalf of the respondent no.2 submitted that it could not be said that respondent authority has committed any error in passing the impugned order under Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004 and therefore, the present petition may not be entertained. 11. Heard Mr. Darshan Parikh, the learned advocate appearing for the petitioner and Mr. Niraj Sharma, the learned AGP appearing for the respondent – State and the learned advocate Mr.Rituraj Meena appearing on behalf of the respondent no.2. 12. In view of this Court, the case of the petitioner is required to be considered in view of all the documents produced before the Respondent No. 2 along with the application dated 04.08.2021 and with this writ-application. 13. In the case of Natubhai Dharamdas Patel v. State of Gujarat and others (supra), this Court has considered the provisions contained in Section 15 of the Act of 1969 and Rule 11 of the Rules of 2004 and after considering the decision in the case of Nitaben Nareshbhai Patel v. State of Gujarat (supra), this Court issued necessary direction to the respondent authority for reconsideration of the request of the concerned petitioner. 14. In the case of Krunal Prahladbhai Prajapati Vs. State of Gujarat and Anr., the Court has passed an order dated 26.02.2016 in Special Civil Application No.11281 of 2016. 14. In the case of Krunal Prahladbhai Prajapati Vs. State of Gujarat and Anr., the Court has passed an order dated 26.02.2016 in Special Civil Application No.11281 of 2016. This Court has, after considering the decision in the case of Nitaben Nareshbhai Patel v. State of Gujarat (supra), observed in Paragraphs 6.6 and 6.7 as under:- “6.6 In view of above position of law, it cannot be said that when the petitioner has made an application for correction of entry in the date of birth etc. which was recorded at the relevant time, merely because the date of birth sought to be corrected is later in point of time by three months than the originally recorded, the authority cannot exercise powers under Section 15 of the Act read with Rule 11 as above. It has to consider whether the entry in the birth date is correct or can be cancelled and denied after making inquiry and after going through relevant material which may be produced by the petitioner or which the competent authority may call for satisfying itself. It is entirely not germane to say that there was a gap of three months between old birth date and new birth date so as to refuse to exercise power on that count. 6.7 In view of above, the competent authority respondent No.2 herein has to exercise her powers so as to consider the merits of the request of the petitioner for correction of date of birth as well as corrections in the name of mother and the name of grandfather. The respondent No.2 has got powers for correction in relation to the entries and the name also and such correction or cancellation also comes within the purview of the powers under Section 15 of the Act. In the facts and circumstances of the case, necessary directions are required to be issued to respondent No.2 authority to consider and decide the case of the petitioner again by giving due regard to the material which may be produced by the petitioner.” 15. This Court once again has considered the relevant documents for undertaking the requisite changes and the said documents, in view of this Court were required to be considered by the respondent no.2 in line with Section 15 of the Registration of Birth and Death and Rule 11(4) of the Rules, 2004. Section 15 of the Act reads thus :- “15. This Court once again has considered the relevant documents for undertaking the requisite changes and the said documents, in view of this Court were required to be considered by the respondent no.2 in line with Section 15 of the Registration of Birth and Death and Rule 11(4) of the Rules, 2004. Section 15 of the Act reads thus :- “15. Correction or cancellation of entry in the register of births and deaths.—If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.” Rule 11 of the Rules, reads thus :- "Rule 11. Correction or cancellation of entry in the register of births and deaths : (1) If it is reported to the Registrar that a clerical or formal, error has been made in the register, or if such error is otherwise noticed by him and if the Register is in her possession, the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in section 15 of the Act and shall send an extract of the entry showing the error and how it has been corrected to the District Registrar of Births and Deaths. (2) In the case referred to in sub-rule (1) if the register is not in the possession, the Registrar, he/she shall make a report to the District Registrar of Births and Deaths and call for the relevant register and after inquiring into the matter, if he is satisfied that any such error has been made, make the necessary correction. (3) Any such correction as mentioned in sub rule (2) shall be countersigned by the District Registrar of Births and Deaths when the register is received from the Registrar. (3) Any such correction as mentioned in sub rule (2) shall be countersigned by the District Registrar of Births and Deaths when the register is received from the Registrar. (4) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under section 15 of the Act upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case. (5) Notwithstanding anything contained in sub rule (1) and sub rule (4), the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the District Registrar of Births and Deaths. (6) If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly, he shall make a report giving necessary details to the officer authorized by the Chief Registrar by general or special order in this behalf under section 25 of the Act and on hearing from him take necessary action in the matter. (7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under section 8 or section 9 of the Act.... " 15. As this Court by order dated 31.03.2022 quashed and set aside the communication dated 30.11.2021 had directed the Respondent No. 2 to decide the application/representation dated 04.08.2021 again, the Respondent No. 2 once again decided the said application again, by the impugned order Annexure A dated 20.06.2022 and while doing so went on to hold that since there is no clerical error, the application is rejected and no change is required to be made in the name from “Drashti” to “ZIL”. However, while doing so the Respondent No. 2 accepted the application to the extent that the request of the Petitioner to correct the surname/family name of the Petitioner, which was corrected from “Mistri” to “Mistry”. 16. This Court has gone through the contemporaneous record produced by the Petitioner regarding the copies of her Birthdate/Bonafide certificate, school leaving certificate, Pan Card, Aadhar Card, Passport, driving license etc. 16. This Court has gone through the contemporaneous record produced by the Petitioner regarding the copies of her Birthdate/Bonafide certificate, school leaving certificate, Pan Card, Aadhar Card, Passport, driving license etc. issued by the competent Authorities, her own affidavit dated 14.07.2021, the affidavit of her father affirmed as early as on May 11, 1991 as well as the documents like copies of pass port and School Leaving certificate of her father and pan Card of her mother and this Court finds that since 1991, i. e. the beginning the Petitioner has used her name as ‘ZIL’ and nowhere has she used her name as ‘Drashti’. 17. In the circumstances, this court is inclined to direct the Respondent No. 2 to reconsider the application dated 04.08.2021 made by the Petitioner and direct the Respondent No. to change the name of the petitioner from ‘Drashti’ to ‘Zil’ by making necessary corrections in the Register of Birth on the basis of the documents, produced by the Petitioner and available on record with the Respondent No. 2 and before this Court and issue new birth certificate showing the name of the petitioner as “ZIL” in her birth certificate. 18. In the circumstances the impugned order/communication dated 20.06.2022 Annexure A, passed by the respondent No. 2 is quashed and set aside, in so far as it refuses to correct the name of the Petitioner as “Zil” and Respondent No. 2 is directed to change the name of the petitioner from ‘Drashti’ to ‘Zil’ by making necessary corrections in the Register of Birth incorporating the name of the Petitioner as “ZIL” in place of “Drashti” in the Birth Register of Maninagar Page No. 47 for Month November of year 1990 at entry No. 6323 registered on 29.11.1990 and make necessary corrections in the birth register on the basis of the documents, produced by the Petitioner and available on record with the Respondent No. 2 and before this Court and issue new birth certificate showing the name of the petitioner as “ZIL” in her birth certificate. The entire exercise be carried out within a period of eight weeks from the date of receipt of copy of this order. 19. With the aforesaid observation and direction, the present petition succeeds and is accordingly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.