Jatin Bhanubhai Hirapara vs State Of Gujarat & 1 Other(S)

Vipul M. Pancholi, J

By way of this petition, which is filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs,

“(A) xxx xxx xxx.

(B) Your Lordship may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction by

quashing and setting aside the order dated 27.10.2020, annexed at Ann. B, passed by respondent no. 2 and also further be pleased to direct the

respondent authorities to correct the name of the petitioner from “Jitendra†to “Jatin†as well as name of the petitioner's mother from

“Anjanaben to Ajwalibenâ€​ in Birth Certificate and further be pleased to direct the respondent authorities to provide amended Birth Certificate.

(C) Your Lordship may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction

quashing and setting aside the Government Resolution no. S.B.H.I./JamnÂMaran/Sudharo V. S. Â 2016 1110Â151/9 dated 18.02.2016 on the grounds

that it is contrary to law as culled out in this petition.

(D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the operation, execution and

implementation of Government Resolution no. S.B.H.I./JamnÂ​Maran/Sudharo V. S. Â​ 2016 1110Â​151/9 dated 18.02.2016.

(E) xxx xxx xxx

(F) xxx xxx xxx.â€​

Heard learned advocate, Mr. Hardik Muchhala for the petitioner and learned AGP Mr. R.B. Raval appearing for the respondent no.1. Though

served, none appears for the respondent no.2.

Learned advocate for the petitioner referred to the averments made in the memo of petition and submitted that the name of the petitioner is wrongly

recorded in the birth certificate as “Jitendra†instead of “Jatinâ€. He further submitted that similarly, name of his mother is also wrongly

recorded as “Anjanaben†instead of “Ajwalibenâ€. It is submitted that when the petitioner came to know about the said mistake committed by

the respondent no.2, he filed an application dated 13.10.2020 and along with the said application, the petitioner has produced relevant documents

including school leaving certificate, marksheets of 10th and 12th Standard, Aadhar Card and affidavits. It is submitted that though the said documents

were produced by the petitioner before the respondent no.2 along with the said application, the respondent no.2, without making any inquiry, rejected

the said application on the ground that the respondent no.2 is not empowered to correct any mistake made in the birth certificate and while rejecting

the application of the petitioner, the respondent no.2 has placed reliance upon the Circular dated 18.02.2016 issued by the concerned authority. The

petitioner, therefore, filed present petition.

Learned advocate has referred to the documents including Aadhar Card and school leaving certificate and, thereafter, contended that the

respondent without making any inquiry as contemplated under Section 15 of the Registration of Births & Deaths Act, 1969 (hereinafter referred to as

“Act of 1969) and the Rule 11 of the Rules framed thereunder, rejected the request of the petitioner simply relying upon the Circular dated

18.02.2016 issued by the concerned authority. It is, therefore, urged that appropriate direction be issued to the respondent no.2 to correct the said

mistake in the birth certificate issued in favour of the petitioner. Learned advocate for the petitioner has placed reliance upon the decision of this Court

in case of Sejalben Mukundbhai Patel Vs. State of Gujarat & Anr., reported in 2019 (3) GLR 1866, copy of said decision is placed on record at Page

No.42 of the compilation.

On the other hand, learned AGP Mr. Raval is not in a position to dispute the fact that the case of the petitioner is covered by the decision rendered

by this Court in case of Sejalben Mukundbhai Patel (supra).

Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the request

of the petitioner has been rejected by the respondent no.2 simply relying simply relying upon the Circular dated 18.02.2016 issued by the concerned

authority. It appears that no inquiry has been conducted by the respondent no.2 before rejecting the request of the petitioner and even the

documentary evidence produced by the petitioner has not been taken into consideration.

At this stage, Section 15 of the Act of 1969 is required to be referred to, which provides as under:

Section 15. Correction or cancellation of entry in the registrar 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 ....

It is required to be noted that this Court in a decision in case of Sejalben Mukundbhai Patel (supra) has considered the issue with regard to Circular

dated 18.02.2016 and framed issues in Para No.8, which reads as under,

“(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?â€​

Thereafter in Para Nos.25, the aforesaid issue has been answered, which reads as under,

“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.â€​

Keeping in view of the aforesaid decision, I am of the view that the issue involved in the present petition is squarely covered by the said decision.

Accordingly, the impugned communication/ order dated 27.10.2020 passed by the respondent no.2 is hereby quashed and set aside. The matter is

remitted back to the respondent no.2 for deciding the application afresh. The respondent no.2 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.2 shall pass appropriate order in accordance with law. Necessary

inquiry shall be made by the respondent no.2 within a period of four weeks from the date of receipt of this order.

With the aforesaid observation and direction, the present petition stands allowed accordingly. Direct service is permitted.