Ms Alka Nagaraj Simha Vs. The Registrar Of Births And Deaths - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232349
CourtKarnataka High Court
Decided OnDec-21-2020
Case NumberWP 13692/2020
JudgeR DEVDAS
AppellantMs Alka Nagaraj Simha
RespondentThe Registrar Of Births And Deaths
Excerpt:
-1- in the high court of karnataka at bengaluru r dated this the21t day of december, 2020 before the hon' ble mr.justice r devdas writ petition no.13692 of2020(lb-res) between ms alka nagaraj simha aged about38years, d/o k n nagaraja1109 stone gate dr, irving, tx-75063 united states represented by her father k n nagaraja no.30, simha, rbi layout5h cross, 7th phase, j p nagar, bangalore-560078 ...petitioner (by sri chandan k, advocate) and the registrar of births and deaths mysore mahanagara palike next to banumaiah college sayyaji rao road, agrahara chamrajpura, mysuru-570024 …respondent (by smt m p geetha devi, advocate ) this writ petition is filed under articles226and227of the constitution of india praying to quash the impugned endorsement dtd2910.2020 vide annexure-j issued by the respondent and etc.-.2- this writ petition is coming on for preliminary hearing this day, the court made the following: order r. devdas j., (oral): the petitioner is aggrieved by the impugned endorsement dated 29.10.2020 given by the respondent, registrar of births and deaths, rejecting the application of the petitioner for showing the name of the petitioner in the birth certificate.2. the petitioner contends that she was born to sri k.n.nagaraja and smt.k.mamatha on 06.07.1983, in mysore. the birth of the petitioner was registered with the respondent and the certificate of birth as prescribed under section 17 of the registration of births and deaths act, 1969 (for short ‘the act’) was issued to the petitioner’s parents.3. the learned counsel for the petitioner submits that as per the customs and traditions, few months after the birth of the petitioner she was named as alka nagaraj simha and the same was entered in the academic records such as sslc marks card, degree certificate and master degree certificate. most importantly the name given to the petitioner is also reflected in -3- the passport and pan card. however, since the intimation of the birth was given to the respondent, as required in law, the information of the birth of the child was recorded and in the birth certificate which was issued, petitioners name is not reflected, but it only shows the birth of a female child to sri k.n.nagaraja and smt. k.mamatha. the petitioner has been staying in the united states and has applied for green card for which the petitioner is required to furnish a birth certificate bearing her name. in this regard an application has been made to the respondent and the respondent has issued the impugned endorsement rejecting the application on the ground that the application has been made beyond the period prescribed under rule 10 of the karnataka registration of births and deaths rules, 1999 (for short ‘rules’).4. learned counsel for the petitioner admits that the application was filed on 14.10.2020 and in terms of the proviso to section 10(1) of the rules, the application was required to be made within a period of 15 years from the date of commencement of the rules. it is also admitted that the rules came into effect from 01.01.2000. nevertheless, it is submitted that under similar circumstances, the gujarat high court while -4- considering similar provisions, held in the case of dipika arvindkumar pancholi /vs./ state of gujarat and another reported in (2003) air (gujarat) 102 that the power envisaged under the rules can be legitimately extended to the power to enter the name of the child even after the 15 years on the application of the parents or the guardian of the child. the learned counsel for the petitioner therefore submits that the impugned endorsement is required to be set aside while directing the respondent to enter the name of the petitioner in the birth certificate.5. learned counsel for the respondent submits that when the office of the respondent and the state government found many such instances where applications were made beyond the period prescribed under the rules, a recommendation was made to the ministry of home affairs, office of the registrar general, india, new delhi to permit the inclusion of the names in the birth records even beyond the prescribed period of 15 years. however, a communication dated 09.10.2019 has been made by the ministry of home affairs, office of the registrar general, inida, new delhi rejecting the request of the state government. consequently, instructions -5- have been given by the registrar general on behalf of the government of karnataka to all the chief registrars of births and deaths that they have no power to condone the delay beyond the prescribed period and enter the names in the birth certificates. however it is also been stated in the said communication that if there is an order or direction issued by the courts, only in such circumstances the application could be entertained.6. having heard the learned counsels and on perusing the petition papers, this court finds that the gujarat high court in the decision referred by the learned counsel for the petitioner, has considered similar provisions. the gujarat high court noticed an earlier decision in the case of dr.sukumar mehta /vs./ district registrar, births and deaths, 1993 (34) glr93 where the question was for effecting the change in the name of the child entered in the birth register. since the act is silent about the contingency for subsequent correction of entry made in the birth register for correcting the name of the child at the instance of the parents, the court proceeded to hold that this is a classic case of casus omissus i.e., circumstances concerning which an act is silent. while elaborately considering the modern -6- tendency of the courts in taking the view that if a case is entirely unprovided for by a statue, either directly or indirectly, then it must remain nobody’s child-a luckless orphan of the law (in re leicester permanent building society 1942 ch.340). same was the view of devlin l.j.in gladstone v.bower; reported in 1960(2) 9b384when he observed “we cannot legislate for casus omissus”. the gujarat high court went on to hold that this tendency has given rise to inconvenient results. the court felt that one of the options left to the court was to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. however the court felt that in this case there lies a “impalpable line” of distinction which will enable the court to come out of helplessness. it was noticed that there was no specific provision to correct the name of the child already entered or omitted. it was held that when the entry is erroneous, there is power to correct. the court went on to hold that once power to correct an entry already made in the birth register is conceded, it should legitimately take within its sweep the correction of entries rightfully made.-.7- 7. the gujarat high court further noticed another decision in the case of vimal m.patel /vs./ state of gujarat and another which had also followed the decision in dr.sukumar’s case (supra). thereafter in the case of dipika aravindkumar pancholi (supra), the rule of interpretation of statutes as considered, by the constitutional bench of the hon’ble supreme court in the case of carew and company ltd., /vs./ union of india (uoi), was noticed as under: “if the language of a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it, minor definitional disability divorced from the realities of the industrial economics if stressed as the sole touchstone is sure to prove disastrous when special types of economic legislation like monopolies and restrictive trade practices act having object is to inhibit concentration of economic power. therefore, when two interpretations are feasible, that which advances the remedy and suppresses the evil as the legislature envisioned must find favour with the court.8. similarly, in the case of sri nasiruddin /vs./ state transport appellate tribunal, another constitution bench of the supreme court had observed as under: -8- “if the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. the mere fact that the result of a statute may be unjust does not entitle a court to refuse to give it effect. if there are two different interpretations of the words in an act. the court will adopt that which is just, reasonable and sensible rather than that which is none of those things. if the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all; there would be reason why one should not read it according to its ordinary grammatical meaning. where the words are plain, the court would not make any alteration.9. considering all these aspects, the gujarat high court went on to hold that the power envisaged under rule 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 parents 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 rule 11 of the -9- rules on the request of the parents or guardian of the child, the court is also empowered to direct the registrar to enter the name of the child even after the period of 15 years. the gujarat high court has held that it is not the case of total absence of power in the registrar and therefore the application of the petitioner should have been entertained by the registrar by entering the name of the child in the register. consequently, direction was given to the registrar to enter the name of the petitioner therein, even beyond the prescribed period.10. rule 11 which was considered in the case of gujarat high court, is pari materia rule 10 of the karnataka registration of births and deaths rules, 1999. this court is in respectful agreement with the decision of the gujarat high court.11. section 14 of the registration of the births and deaths act, 1969 makes a provision for entry of the name of the child in the register where the birth of any child was registered without a name. it provides that the parents or guardian of such child shall within the prescribed period give information regarding the name of the child to the registrar either orally and -10- in writing and thereupon the registrar shall enter the name in the register and initial the date of the entry.12. consequently, the writ petition is allowed. the impugned endorsement dated 29.10.2020 is hereby set aside. the name of the petitioner shall be entered in the register in terms of section 14 of the act r/w rule 10 of the rules, 1999. thereafter birth certificate showing the name of the petitioner shall be issued to the petitioner forthwith.13. at this juncture, learned counsel for the respondent submits that the original register of the year 1983 was summoned to a court in some other case and the same has to be requested to be returned to comply with the directions issued by this court. the learned counsel submits that this may take some time and therefore reasonable time may be granted to comply with the directions of this court. accordingly, four weeks are granted to do the needful. ordered accordingly. sd/- judge kly/
Judgment:

-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE21T DAY OF DECEMBER, 2020 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.13692 OF2020(LB-RES) BETWEEN MS ALKA NAGARAJ SIMHA AGED ABOUT38YEARS, D/O K N NAGARAJA1109 STONE GATE DR, IRVING, TX-75063 UNITED STATES REPRESENTED BY HER FATHER K N NAGARAJA NO.30, SIMHA, RBI LAYOUT5H CROSS, 7TH PHASE, J P NAGAR, BANGALORE-560078 ...PETITIONER (BY SRI CHANDAN K, ADVOCATE) AND THE REGISTRAR OF BIRTHS AND DEATHS MYSORE MAHANAGARA PALIKE NEXT TO BANUMAIAH COLLEGE SAYYAJI RAO ROAD, AGRAHARA CHAMRAJPURA, MYSURU-570024 …RESPONDENT (BY SMT M P GEETHA DEVI, ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DTD2910.2020 VIDE ANNEXURE-J ISSUED BY THE RESPONDENT AND ETC.-.2- THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

R. DEVDAS J., (ORAL): The petitioner is aggrieved by the impugned endorsement dated 29.10.2020 given by the respondent, Registrar of Births and Deaths, rejecting the application of the petitioner for showing the name of the petitioner in the birth certificate.

2. The petitioner contends that she was born to Sri K.N.Nagaraja and Smt.K.Mamatha on 06.07.1983, in Mysore. The birth of the petitioner was registered with the respondent and the certificate of birth as prescribed under Section 17 of the Registration of Births and Deaths Act, 1969 (for short ‘the Act’) was issued to the petitioner’s parents.

3. The learned counsel for the petitioner submits that as per the customs and traditions, few months after the birth of the petitioner she was named as Alka Nagaraj Simha and the same was entered in the academic records such as SSLC marks card, Degree certificate and Master Degree certificate. Most importantly the name given to the petitioner is also reflected in -3- the Passport and Pan card. However, since the intimation of the birth was given to the respondent, as required in law, the information of the birth of the child was recorded and in the birth certificate which was issued, petitioners name is not reflected, but it only shows the birth of a female child to Sri K.N.Nagaraja and Smt. K.Mamatha. The petitioner has been staying in the United States and has applied for Green card for which the petitioner is required to furnish a birth certificate bearing her name. In this regard an application has been made to the respondent and the respondent has issued the impugned endorsement rejecting the application on the ground that the application has been made beyond the period prescribed under Rule 10 of the Karnataka Registration of Births and Deaths Rules, 1999 (for short ‘Rules’).

4. Learned counsel for the petitioner admits that the application was filed on 14.10.2020 and in terms of the proviso to Section 10(1) of the Rules, the application was required to be made within a period of 15 years from the date of commencement of the Rules. It is also admitted that the Rules came into effect from 01.01.2000. Nevertheless, it is submitted that under similar circumstances, the Gujarat High Court while -4- considering similar provisions, held in the case of DIPIKA ARVINDKUMAR PANCHOLI /VS./ STATE OF GUJARAT AND ANOTHER REPORTED IN (2003) AIR (Gujarat) 102 that the power envisaged under the Rules can be legitimately extended to the power to enter the name of the child even after the 15 years on the application of the parents or the guardian of the child. The learned counsel for the petitioner therefore submits that the impugned endorsement is required to be set aside while directing the respondent to enter the name of the petitioner in the birth certificate.

5. Learned counsel for the respondent submits that when the office of the respondent and the State Government found many such instances where applications were made beyond the period prescribed under the Rules, a recommendation was made to the Ministry of Home Affairs, Office of the Registrar General, India, New Delhi to permit the inclusion of the names in the birth records even beyond the prescribed period of 15 years. However, a communication dated 09.10.2019 has been made by the Ministry of Home Affairs, office of the Registrar General, Inida, New Delhi rejecting the request of the State Government. Consequently, instructions -5- have been given by the Registrar General on behalf of the Government of Karnataka to all the Chief Registrars of Births and Deaths that they have no power to condone the delay beyond the prescribed period and enter the names in the birth certificates. However it is also been stated in the said communication that if there is an order or direction issued by the Courts, only in such circumstances the application could be entertained.

6. Having heard the learned counsels and on perusing the petition papers, this Court finds that the Gujarat High Court in the decision referred by the learned counsel for the petitioner, has considered similar provisions. The Gujarat High Court noticed an earlier decision in the case of Dr.Sukumar Mehta /vs./ District Registrar, Births and Deaths, 1993 (34) GLR93 where the question was for effecting the change in the name of the child entered in the birth register. Since the Act is silent about the contingency for subsequent correction of entry made in the Birth Register for correcting the name of the child at the instance of the parents, the court proceeded to hold that this is a classic case of casus omissus i.e., circumstances concerning which an Act is silent. While elaborately considering the modern -6- tendency of the Courts in taking the view that if a case is entirely unprovided for by a Statue, either directly or indirectly, then it must remain nobody’s child-a luckless orphan of the law (In re Leicester permanent Building Society 1942 Ch.340). Same was the view of Devlin L.J.

in Gladstone V.Bower; reported in 1960(2) 9B384when he observed “we cannot legislate for casus omissus”. The Gujarat High Court went on to hold that this tendency has given rise to inconvenient results. The court felt that one of the options left to the Court was to express regrets for a statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However the Court felt that in this case there lies a “impalpable line” of distinction which will enable the court to come out of helplessness. It was noticed that there was no specific provision to correct the name of the child already entered or omitted. It was held that when the entry is erroneous, there is power to correct. The Court went on to hold that once power to correct an entry already made in the Birth Register is conceded, it should legitimately take within its sweep the correction of entries rightfully made.-.7- 7. The Gujarat High Court further noticed another decision in the case of Vimal M.Patel /vs./ State of Gujarat and another which had also followed the decision in Dr.Sukumar’s case (supra). Thereafter in the case of Dipika Aravindkumar Pancholi (supra), the rule of interpretation of statutes as considered, by the Constitutional Bench of the Hon’ble Supreme Court in the case of Carew and Company Ltd., /vs./ Union of India (UOI), was noticed as under: “If the language of a statute can be construed widely so as to salvage the remedial intendment, the Court must adopt it, Minor definitional disability divorced from the realities of the industrial economics if stressed as the sole touchstone is sure to prove disastrous when special types of economic legislation like Monopolies and Restrictive Trade Practices Act having object is to inhibit concentration of economic power. Therefore, when two interpretations are feasible, that which advances the remedy and suppresses the evil as the legislature envisioned must find favour with the Court.

8. Similarly, in the case of Sri Nasiruddin /vs./ State Transport Appellate Tribunal, another Constitution Bench of the Supreme Court had observed as under: -8- “If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. The mere fact that the result of a statute may be unjust does not entitle a Court to refuse to give it effect. If there are two different interpretations of the words in an Act. The Court will adopt that which is just, reasonable and sensible rather than that which is none of those things. If the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all; there would be reason why one should not read it according to its ordinary grammatical meaning. Where the words are plain, the Court would not make any alteration.

9. Considering all these aspects, the Gujarat High Court went on to hold that the power envisaged under Rule 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 parents 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 Rule 11 of the -9- Rules on the request of the parents or guardian of the child, the Court is also empowered to direct the Registrar to enter the name of the child even after the period of 15 years. The Gujarat High Court has held that it is not the case of total absence of power in the Registrar and therefore the application of the petitioner should have been entertained by the Registrar by entering the name of the child in the register. Consequently, direction was given to the Registrar to enter the name of the petitioner therein, even beyond the prescribed period.

10. Rule 11 which was considered in the case of Gujarat High Court, is pari materia Rule 10 of the Karnataka Registration of Births and Deaths Rules, 1999. This Court is in respectful agreement with the decision of the Gujarat High Court.

11. Section 14 of the Registration of the Births and Deaths Act, 1969 makes a provision for entry of the name of the child in the register where the birth of any child was registered without a name. it provides that the parents or guardian of such child shall within the prescribed period give information regarding the name of the child to the Registrar either orally and -10- in writing and thereupon the Registrar shall enter the name in the register and initial the date of the entry.

12. Consequently, the writ petition is allowed. The impugned endorsement dated 29.10.2020 is hereby set aside. The name of the petitioner shall be entered in the register in terms of Section 14 of the Act r/w Rule 10 of the Rules, 1999. Thereafter birth certificate showing the name of the petitioner shall be issued to the petitioner forthwith.

13. At this juncture, learned counsel for the respondent submits that the original register of the year 1983 was summoned to a Court in some other case and the same has to be requested to be returned to comply with the directions issued by this Court. The learned counsel submits that this may take some time and therefore reasonable time may be granted to comply with the directions of this Court. Accordingly, four weeks are granted to do the needful. Ordered accordingly. Sd/- JUDGE KLY/