Allowed

Vaibhav Tarleshkumar Pathak v. Registrar, Birth and Death Registration

Gujarat HC5 May 2022SCA/12866/2021

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed the Registrar's refusal to correct a child's name in the birth certificate. Relying on Section 15 of the Registration of Births and Deaths Act, 1969 and Rule 11(4), the Court directed the authority to consider original documents within six weeks.

What did the court decide?

Quashed the impugned communication dated 09.06.2021 and directed the respondent authority to correct the birth certificate within six weeks.

Vaibhav Tarleshkumar Pathak Vs Registrar… — Child Custody and Guardianship | Gujarat HC (2022)

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 12866 of 2021

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VAIBHAV TARLESHKUMAR PATHAK

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Versus

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REGISTRAR, BIRTH AND DEATH REGISTRATION

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================================================== Appearance:

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MS. LAKSHA BHAVNANAI FOR MR AFTABHUSEN ANSARI (5320) for the Petitioner(s) No. 1

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MRS KALPANA K RAVAL(1046) for the Respondent(s) No. 1 MR. ISHAN JOSHI, AGP for the Respondent(s) No. 2

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 05/05/2022

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ORAL ORDER

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1. With the consent of the learned advocates appearing

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for the respective parties, the captioned petition is taken up for final hearing.

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Issue Rule , returnable forthwith. Mrs. Kalpana K.

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Raval, learned counsel waives service of notice of Rule on behalf of the respondent no.1 and Mr. Ishan Joshi, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent no.2.

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Page 1 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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By way of this petition, which is filed under Article

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226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

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“(a) YOUR LORDSHIPS MAY KINDLY BE pleased to admit and allow this petition;.

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(b) YOUR LORDSHIPS MAY KINDLY BE pleased to issue a writ or mandamus or any other writ, Order or direction directing the Respondent Authorities to consider the letter dated 23.02.2021 (Annexure-A) and further direct them to change the name in the Birth Certificate of the daughter of the petitioner in the interest of justice;

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(c) YOUR LORDSHIPS MAY KINDLY BE pleased to quash and set aside the reply / communication of the Respondent No. 2 dated 06.07.2017;

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(d) YOUR LORDSHIPS MAY KINDLY BE pleased to quash and set aside the reply / communication of the Respondent No.1 dated 09.06.2021;

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(e) YOUR LORDSHIPS MAY KINDLY BE pleased to grant such other and further relief(s) as may deem just and proper in the facts and circumstances of the case.”

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At the outset, it is required to be noted that, this is a 2^nd round of litigation. Earlier by an order dated 16.02.2021

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passed in Special Civil Application No. 3066 of 2021, the coordinate bench were given directions to the respondent authority in para-4, which reads thus:

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“4. Looking to the limited grievance raised by the petitioner in the present petition, the same is disposed of with the

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Page 2 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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direction to the respondent No.1 to decide the application dated 16.04.2016 given by the petitioner in accordance with law within a period of four weeks from the date of receipt of copy of this order. At the time of deciding the said application, respondent No.1 shall consider the provisions contained in Section 15 of the Act of 1969 and Rule 11 of the Rules framed thereunder and to make inquiry as contemplated under the said provision. The respondent No. l shall also consider the decision rendered by this Court in the case of Sejalben Mukundbhai Patel (supra) and also the documentary evidence supplied by the petitioner at the time of deciding the application and thereafter pass appropriate order in accordance with Law. It is clarified that this court has not examined the merits of case of the petitioner.”

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5. The respondent authority declined to make

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correction in spite of the order dated 16.02.2021 passed by the coordinate bench of this Court in Special Civil Application No. 3066 of 2021, by an order dated 09.06.2021. The respondent authority while declining to make changes in the birth certificate of the petitioner by an order / communication dated 09.06.2021, relevant para of the same reads thus:

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“Thus, acquainted with the aforesaid facts, (1) The Registration of Birth and Death Act, 1969 section-15 Correction or cancellation of entry in the register of births and deaths, (2) No. 1/12/2014-VS (CRS), Government of India, Office of the Registrar General, India, dated 30/06/2015, Correction in name and date of birth of the child in birth record- clarification sought. (3) Circular no.SBHI/ Birth-Death/ Correction VS-2016 1110-1559, dated 18/02/2016 of the Registrar General (Birth Death) and the Commissioner, Health and Medical Services and Medical Education (Health Department), Gandhinagar (4) As per Notification, No.GP-14JNM-102017-757-B.l:- rules:- Correction and cancellation of entry in the register of birth and death, dated 16 November, 2018 of Health and Family Welfare Department, Gandhinagar,

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Page 3 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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there was no clerical error in recording the name of the child in the register or the birth certificate on the part of the petitioner. Moreover, application was submitted first time before Health Birth-Death department, I.no.246, dated 16/04/2016 in order to correct the name of the child in birth certificate. Prior to that, in circular no.SBHI/ Birth-Death/ Correction VS-2016 1110-1559, dated 18/02/2016 (1) of the Registrar General (Birth Death) and the Commissioner, Health and Medical Services and Medical Education (Health Department), Gandhinagar, it was stated that if any person after changing his name, asks to record new name in the register, then it can not be recorded. (5) Audit para vide primary objection no.28, dated 25/02/2020 was received by the Assistant to the Assistant Inspector, Office of the divisional deputy inspector, Local Fund Accounts, Mahanagarpalika, Ahmedabad zone for making correction in the name, even though the meaning of the name was changed, against the provision mentioned in circular no.SBHI/ Birth-Death/ Correction VS-2016 1110-1559, dated 18/02/2016. (6) Laminated photo copy- color copy was submitted in the submission of original birth certificate (Schedule) and it was asked to submit the same in 3 days if found. The applicant has not submitted the evidence in the said time limit.

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You are informed that as per the aforesaid details, correction can not be made in the name of the child.”

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Heard Ms. Laksha Bhavnanai appearing for Mr. Aftabhusen Ansari, learned counsel appearing for the petitioner, Mrs. Kalpana K. Raval, learned counsel appearing on behalf of the respondent no.1 and Mr. Ishan Joshi, learned Assistant Government Pleader appearing on behalf of the respondent no.2.

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Having heard the learned counsel appearing for the respective parties, Ms. Kalpana K. Raval, learned advocate

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Page 4 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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appearing for the respondent no.1 was not in a position to explain that what is the schedule, while seeking the original birth certificate. Even otherwise the order passed by the respondent authority is not sustainable in the eye of law. The respondent authority had failed to consider the order passed by the coordinate bench dated 16.02.2021 passed in Special Civil Application No. 3066 of 2021 as well as ratio laid down by this Court in various decisions as well as the Act r/w. Rules. In the case of Nitaben Nareshbhai Patel v. State of Gujarat , reported in 2008 (1) GLR 884 the Coordinate Bench of this Court has considered the provisions contained in Section 15 of the Act of 1969 read with Rule 11 of the Rules of 2004 which were further considered in the case of Natubhai Dharamdas Patel v. State of Gujarat and others , reported in AIR 2018 Guj. 92 whereby, the Coordinate Bench of this Court issued necessary direction to the respondent authority for reconsideration of the application preferred by the concerned petitioner.

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In the case of Krunal Prahladbhai Prajapati Vs.

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Page 5 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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State of Gujarat and Anr. , this Court has passed an order dated

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26.02.2016 in Special Civil Application No.11281 of 2015. This

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Court has observed in Paragraphs 6.6 and 6.7 as under:

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“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.

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6.7 In view of above, the competent authority respondent No.2 herein has to exercise his 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.”

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This Court once again has considered the relevant

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documents for undertaking the requisite changes and the said

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Page 6 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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documents in view of this Court are in line with Section 15 of

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the Registration of Birth and Death read with Rule 11(4) of the

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Act. Section 15 reads thus :-

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“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.”

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10. Rule 11 of the Rules of 2004 reads thus :-

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"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 his 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.

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(2) In the case referred to in subrule (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.

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(3) Any such correction as mentioned in sub rule (2) shall be countersigned by the District Registrar of Births

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Page 7 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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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.

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(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.

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(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.

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(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.... "

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In view of the aforesaid ratio as discussed above

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and under the provisions of Section 15 of the Registration of Birth and Death Act r/w. Rule-11(4) of the Rules, 2004, the impugned order/ communication dated 09.06.2021 addressed by the respondent No.1 - Ahmedabad Municipal Corporation (Annexure-J) is hereby quashed and set aside. Considering the averments made by the petitioner and in the peculiar facts and circumstances of the present case as well as further affidavit

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Page 8 of 9

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C/SCA/12866/2021 ORDER DATED: 05/05/2022

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filed by the petitioner, by which the petitioner has produced the original birth certificate, duly produced at page-4 with the further affidavit, the respondent no.1 authority is directed to take into consideration the said certificate produced by the petitioner, without insisting for schedule and the respondent authority is further directed to carry-out the necessary changes in the birth certificate of the petitioner as expeditiously as possible preferably within a period of six weeks from the date of the receipt of the copy of the order.

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With the aforesaid observation and directions, the present petition succeeds and is accordingly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

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(VAIBHAVI D. NANAVATI,J)

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Pradhyuman

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Page 9 of 9

Vaibhav Tarleshkumar Pathak v. Registrar, Birth and Death Registration

Case brief

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Vaibhav Tarleshkumar Pathak v. Registrar, Birth and Death Registration

Case brief

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