Pankaj Holkar v. State of Uttarakhand & Ors.

Present: Mr. Rajesh Rai, Advocate with Mr. P.S. Rawat, Advocate for the petitioner. Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of Uttarakhand. Mr. Piyush Garg, Advocate for respondent no. 3. Hon(cid:146)ble Sudhanshu Dhulia, J. (Oral)

1. Heard Mr. Rajesh Rai, Advocate with Mr. P.S. Rawat, Advocate for the petitioner, Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of Uttarakhand and Mr. Piyush Garg, Advocate for respondent no. 3.

2. The petitioner before this Court has sought a writ of certiorari to quash the death certificate issued by respondent no. 2 i.e. the Registrar, Death and Birth, Lansdowne, Pauri Garhwal, Uttarakhand in favour of respondent no. 3 which is a private respondent.

3. The only contention of the petitioner is that the death certificate (Annexure No. 4 to the writ petition) shows that the date of registration of the death certificate is 5.2.2011, and the certificate was issued on 5.2.2011, where the death of the father of respondent no. 3, namely, Krishna Dabral has been shown as

22.9.1987. The petitioner has relied upon Section 13 of the Registration of Births and Deaths Act, 1969 (from hereinafter referred to as the (cid:147)Act(cid:148)). Section 13 of the Act reads as under :- (cid:147)13. Delayed registration of births and deaths.- (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but 2 within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a magistrate of the first class or a Presidency Magistrate after varifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.(cid:148)

4. According to the petitioner, therefore, admittedly Sri Krishna Dabral died on 22.9.1987 and his death was registered on 5.2.2011 i.e. after more than 22 years which is in violation of law. The same could only have been done if respondent no. 3 could have obtained an order from the Magistrate as visualised under Section 13 (3) of the Act.

5. Counsel for respondent no. 3, on the other hand, contends that respondent no. 2 has got power under Section 15 of the Act read with Rule 11 of the U.P. Registration of Birth and Death Rules, 2002.

6. Section 15 of the Act reads as under :- (cid:147)15. Correction or cancellation of entry in the register of births and deaths. (cid:150) 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 3 of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.

7. Rule 11 of the U.P. Registration of Birth and Death Rules, 2002 reads as under :- (cid:147)11. Correction or cancellation of entry in the register births and deaths. (cid:150) (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 and shall send an extract of the entry showing the error and how it has been corrected to the District Registrar. (2) In the case referred to in sub-rule (1), if the register is not in his possession, the Registrar shall make a report to the District Registrar and call for the relevant register and after enquiring 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 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 upon production by that person a declaration setting forth the nature of the error and true facts of the case 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. (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 made, he shall make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under Section 25 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.(cid:148)

8. The argument of the respondents is entirely misconceived inasmuch as these powers are vested with the authorities in 4 order to correct the date of birth which is already on record. In the present case, the death certificate was itself registered on

5.2.2011 after more than 22 years of the death of Krishna Dabral. Therefore, the aforesaid provisions are not applicable in the present case. The death certificate is hereby declared to be null and void. Respondent no. 3 is at liberty to pursue his remedy under Section 13 of the Act by moving an application to a competent Magistrate and in case he gets the order from the Magistrate, he shall be given the death certificate.

9. There is another objection on the part of respondent no. 3 that he has filed a suit for cancellation of sale deed in which the counter claim has been filed by the petitioner declaring the death certificate dated 5.2.2011 to be sham and bogus. Learned counsel for the petitioner undertakes that he shall be withdrawing his counter claim from the court below with regard to this prayer. It is made clear that any observations made above will not affect the Magistrate concerned or respondent no. 2 for grant of such death certificate.

10. Writ petition is therefore allowed in the above terms.

11. No order as to costs. Avneet (Sudhanshu Dhulia, J.) 19.12.2012