Niruben Umakant Pandit vs Ahmedabad Municipal Corporation and Others

Rajesh H. Shukla, J.—Rule. The present petition has been filed by the petitioner under Articles 14 and 226 of the Constitution of India as well as in the matter of the Birth and Death Registration Act, 1969 for the prayers:

(A) This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, and be further pleased to direct the respondents, their agents and servants, to register the name of Paruben Umakant Pandit-daughter of the petitioner-in the Birth and Death Registration Book showing date of birth as 26.11.1967 as mentioned in the School Leaving Certificate and issue Birth Certificate to the petitioner of Paruben Umakant Pandit showing date of birth as 26.11.1967, on payment of appropriate late registration charges as decided by the respondent Ahmedabad Municipal Corporation;

(B) Pending hearing and final disposal of this petition, this Hon''ble Court may be pleased to grant ad interim relief in terms of prayer (A) above;

(C) ...

(D) ...

Heard learned Advocate Shri Nilesh A Pandya for the petitioner and learned Advocate Mrs. Kalpana K. Raval for the Respondents.

Learned Advocate Shri Pandya has stated that the birth of the daughter-Paruben had not been registered with the Ahmedabad Municipal Corporation at the time of her birth. Therefore, the petitioner had applied for getting the birth certificate of daughter Paruben on 2.12.2011. However, it has been informed that as there is no registration about the birth of Paruben, therefore the certificate could not be issued. Learned Advocate Shri Pandya submitted that in fact it is the case of the petitioner that the birth of the daughter Paruben has not been registered, and therefore, on the basis of school leaving certificate and other documents, he had made an application for making the necessary entry in the birth and death register and for issuance of the birth certificate, which is refused. The school leaving certificate shows the date of birth as 26.11.1967 produced at Annexure-B. Similarly, there are other documents like voters I.D. Card issued by the Election Commissioner at Annexure-C. Learned Advocate Shri Pandya submitted that as per Section 13 of the Birth and Death Registration Act, even after the delay, it could be registered. He submitted that Section 13(3) of the Birth and Death Registration Act provide that if it is not registered within one year it shall be registered only on the order of the Magistrate of First Class on verifying the correctness of the birth or the death. Learned Advocate Shri Pandya submitted that Section 30 of the Birth and Death Registration Act provide for making the rules and referred to and relied upon the judgment of the High Court reported in Dipika Arvindkumar Pancholi Vs. State of Gujarat and Another, . and submitted that in a similar case, this Hon''ble High Court has made the observation that when the birth has not been registered, still, according to the scheme of the Act and the Rules, the entry could be made and the certificate could be issued on satisfaction of the competent authority. He therefore submitted that it cannot be said that there is no authority or jurisdiction. He pointedly referred to the observations and submitted that the court has observed:

Since the statute is silent, it is the case of casus omissi, i.e. circumstances concerning which the Act is silent, therefore, suitably interpreting the provision, as provided in AIR 76 SC 331, held that powers envisaged u/R.11 can be extended to enter the name even after a period of 15 years.

He pointedly referred to these observations. Reference is also made to another judgment of the High Court reported in Dr. Sukumar Mehta Vs. District Registrar, Births and Deaths, . He therefore submitted that the present petition may be allowed. In support of this submission, learned Advocate Shri Pandya has also referred to and relied upon the judgment reported in Nitaben Nareshbhai Patel Vs. State of Gujarat and Others, .

Learned Advocate Mrs. Kalpana K. Raval for the Respondents submitted that it is for the Respondent No. 2 to make necessary entry. She submitted that there is no provision in the Act that after the lapse of such a long period, the entry could be made in the register of birth and death, on the basis of which the certificate could be issued. She has also stated that there is no provision in the statute that such a certificate could be issued and Section 13(3) of the Act clearly provide that if the entry is not made in the birth and death register after a period of one year, then one has to make an application before the Magistrate, who, after considering the relevant material, may pass appropriate order. Therefore, it was submitted that there is no jurisdiction or authority for the Registrar of Birth and Death for making an entry in the Birth and Death register after such a long lapse of time. In fact, it was obligatory for the petitioner to make an entry in the register of birth and death with regard to every birth in the family, which is made compulsory. She therefore submitted that appropriate application is required to be made before the competent authority.

In view of this rival submissions, it is required to be considered whether the present petition can be entertained or not.

As it transpires from the provisions of the Registration of Births and Deaths Act, Section 15 provides for the correction or cancellation of an entry in the register of Birth and Death. Rule 11 provides for the procedure. However, the emphasis is that it is not the correction but making an entry in the birth and death register regarding the birth of the daughter of the petitioner and issuance of birth certificate. Therefore, as could be seen from Section 13 of the Act, it provides for the aspect of delay in registration and the entry regarding the birth in such register of Birth and Death. Section 13(3) of the Act provides that if the birth or the death has not been registered within one year of its occurrence, what could be the procedure. It provides that it can be registered only by an order of the Magistrate after verifying the correctness of the birth or death. In the facts of the present case, therefore, the contention is that, only on the basis of factual verification regarding the birth on the basis of the evidence, the competent court, that is the court of Magistrate, such a certificate could be issued, and therefore, the Respondent No. 2 has declined to issue such certificate. The provision and the statute, as rightly contended, is silent. However, at the same time it has been interpreted by the High Court in its judgment in case of Dipika Arvindkumar Pancholi (supra):

Applying the principles laid down by the Supreme Court as well as this Court in the above referred to judgments to the facts of the present case, it is seen that in clear terms the Supreme Court has held that if we interpret the statute the result of it may be unjust, however, it does not entitle the court to refuse to give it effect and this is a classic case of casus omissi, that is, circumstances concerning which the Act is silent. Therefore, the said power envisaged under R.11 of the rules can be legitimately extended to the power to enter the name of the child even after a period of 15 years on the application of the parent or guardian of the child. If there is a power with the Registrar to enter the name of the child after a period of 12 months and within 15 years from the date of registering the date of birth as per the proviso to R.11 of the Rules on the request of the parents or guardian of the child, I read that there is also a power within the Registrar to enter the name of the child even after the period of 15 years.

Proviso to Rule 10 of the Gujarat Registration of Birth and Deaths Rules provide:

If the information is given after the period of 12 months but within the period of 15 years, which shall be reckoned from the commencement of these Rules.

Thus, there is no absolute statute like inherent powers, and the statute and the Rules have to be construed and interpreted as observed by the High Court in its judgment in case of Dipika Arvind kumar Pancholi (supra). It is required to be mentioned that in the present case, no doubt, the petitioner has prayed the authority after a long lapse of period for entering the name in the birth and death register. However, the Rules provide that within a period of 15 years after the birth, if the information is given, it should be reckoned from the original date. Therefore, though the provision is made in the Rule, the Act is silent about such contingency, and therefore, applying the doctrine of casus omissi, the underlying purpose of the Act or the statute is required to be considered. It has been observed in the judgment of the High Court with regard to this doctrine of casus omissi that it may lead to inconvenient result and therefore the omission in the present case appears to be non-deliberate. In my opinion, omission being not deliberate and not supported by cogent reasons it would not be hazardous to read "implied will of the Legislators" in this provision so as to authorise the Registrar to correct the name of the child at the instance of the parents.

Therefore, when the statute has given the powers, which could be considered while reading the Rules though the Act may not have been specific or rather silent, which has to be interpreted in a harmonious way so as to advance the cause of justice. It is stated by C.K. Allen in his book Law in the Making:

Judges must and do carry out the express will of the legislature as faithfully as they can, but there is a wide margin in almost every statute where the Courts cannot be said to be following any will except their own. The statute then becomes, as to great part of it, not a direct "command" but simply part of the social and legal material which judge have to handle according to their customary process of judicial logic.

Therefore, the Rules can be legitimately extended to the power to enter the name of the child even after a period of 15 years on the application of the parent or the guardian of the child. The Registrar is obliged to verify and scrutinize the material, on the basis of which he could make the entry. Even there is a power with the Registrar to enter the name of the child then he is required to consider the materials-like the school leaving certificate and the election I.D. Card for the purpose of his satisfaction. Therefore, it is not a total lack of jurisdiction or the power, but it is a matter, where the discretion could be exercised on the basis of the facts and the material and the evidence. Therefore, once the statute empowers the authority like Respondent No. 2 and the authority has failed to consider exercising this jurisdiction vested in it, the appropriate direction could be issued. In fact as observed by this Court in a judgment reported in Manoj Omprakash Goel Vs. State of Gujarat and Another, it casts an obligation upon the Registrar to make necessary correction after having been satisfied on the basis of documentary evidence. Therefore, as discussed above, when there is a discretion or the powers with the Registrar, it cannot be declined and the Registrar is obliged to make the entries and depending upon the facts like in the present case, it cannot be said that there is no such provision or the power. The present petition therefore deserves to be allowed and accordingly stands allowed. The prayer in terms of paragraph 9(A) is granted. The Respondent is directed to make an entry regarding the birth of the daughter of the petitioner based on the documentary evidence like school leaving certificate and the voters I.D. Card issued by the Election Commissioner and issue birth certificate on the basis thereof within a reasonable period of 6 weeks. Rule is made absolute.