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Judgment
A.S. Supehia, J
Rule. Learned advocates for the respective respondents waive service of notice of rule for and on behalf of the respective respondents.
In the present writ petition, the petitioner has assailed the impugned communication dated 03.04.2021, whereby the application of the petitioner to correct the name of his minor son in the birth certificate is rejected.
It is the case of the petitioner that his minor son’s name is required to be corrected and the same is incorrectly recorded in the birth certificate and name of his son is actually ‘Panth’ and the same is inadvertently recorded as ‘Bhavy’. The petitioner has accordingly filed the application dated 27.11.2020 for correcting name in the birth certificate, which was rejected vide communication dated 03.04.2021 by placing reliance on the circulars dated 12.08.2009 and 07.04.2016.
At the outset, learned advocate Mr.Soni appearing for the petitioner has submitted that the issue is squarely covered by the decision of this Court rendered in the case of Sejalben Mukundbhai Patel W/o Khodabhai Joitaram Patel Vs. State of Gujarat, 2019 (3) GLR 1866. It is submitted that the provisions of the circulars cannot over-right the statutory provision of the Registration of Birth and Death Act, 1969 (for short “the Act”) read with Registration of Birth and Death Rules, 2004 (for short “the Rules”). Thus, he has submitted that the impugned communication may be set aside.
Per contra, learned advocate Ms.Patel appearing for the respondent No.2 has submitted that in case, this Court sets aside the impugned communication, liberty may be reserved in favour of the respondent No.2 to pass a fresh order, after undertaking necessary exercise under Section 15 of the Act.
Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
The application of the petitioner for change in the name of his son has been rejected by the respondent No.2 by placing reliance on the circular dated 12.08.2009 issued by the Chief Registrar Births and Deaths and the circular dated 07.04.2016 issued by the Additional Director, Health Department, Gandhinagar.
At this stage, it would be apposite to refer to the observations made by the Coordinate Bench of this Court in the case of Sejalben Mukundbhai Patel (supra). While referring to the circular dated 18.02.2016, the Coordinate Bench has held thus:
“21 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.”
8.1 Thus, it is specifically held by the Coordinate Bench that no guideline or circular can take away the powers of the registrar of making correction of entries in the Birth Certificate, which are erroneous in form or substance in register as envisaged under section 15 of the Registration Act read with Rule 11(1) to (7) of the Rules.
Hence, the reliance placed by the respondent No.2, while rejecting the application filed by the petitioner, on the circulars is misconceived. The provisions of the circulars, which are administrative in nature, cannot over-right the statutory provisions of the Act.
Under the circumstances, the impugned order dated 03.04.2021 is quashed and set aside. The respondent No.2 is directed to reconsider the case of the petitioner and pass appropriate orders, after making necessary inquiry as contemplated under Section 15 of the Act read with Rule 11 of the Rules and communicate the same within a period of six weeks to the petitioner.
The present writ petition stands allowed. Rule made absolute.