Dnyaneshwar Krushnaji Ingle vs Secretary Grampanchayat Paunar ...
2022 Latest Caselaw 8369 Bom

                                  1



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.


            CRIMINAL WRIT PETITION NO. 93 OF 2022


         Dnyaneshwr Krushnaji Ingle, aged about
         65 years, Occ : Labourer, R/o Plot No.
         44, Santa Krupa Swami Nagar, Diwan
         Layout, Besa Nagpur, Tah. & Dist.
         Nagpur.

                                                  ... PETITIONER

                              VERSUS
         Secretary, Grampanchayat,
         Paunar, Tah. & dist. Wardha.

                                                  ... RESPONDENT
_____________________________________________________________
       Shri Amit M. Kukday, Advocate for the petitioner.
       Respondent is served.
______________________________________________________________


               CORAM : VINAY JOSHI, J.
               JUDGMENT RESERVED ON    : 23.08.2022.
               JUDGMENT PRONOUNCED ON : 25.08.2022


JUDGMENT :

RULE. Rule is made returnable forthwith. Heard finally

by consent of both the parties.

2. The petitioner has impugned herein an order dated

25.11.2021 in Criminal Misc. Application No. 257 of 2019 whereby the

Magistrate has declined to issue directions for delayed registration of

date of birth of the petitioner's father.

3. The petitioner has applied to the Magistrate in terms of

Section 13(3) of the Registration of Births and Deaths Act, 1969 (for

short 'the Act of 1969') seeking directions for registration of date of

birth of his father namely Krushnaji Bisanji Ingle, who was born on

04.08.1930 at village Paunur, District Wardha. It is the petitioner's case

that his father resided at village Paunur till the year 1935, and

thereafter, shifted his family at village Natala, Taluka and District

Wardha. At the time of birth of the petitioner's father, Gram Panchayat

office at village Paunur was not in existence. The petitioners

grandparents were illiterate and therefore, they had not recorded the

birth entry of the petitioner's father at nearest government office. At

relevant time, the Kotwal of village paunur used to maintain the record

of births and deaths of villagers.

4. It is the petitioner's case, that after inquiry from village

inhabitants, he came to know that his father Krushnaji born at village

Paunur on 04.08.1930 at residential house. The Village Sarpanch has

issued a certificate stating that the petitioner's father was residing at

village Paunur till the year 1935. The petitioner has applied to the

Tahsil office for issuance of birth certificate on which it is informed that

the old registers are in decayed conditions and therefore, requisite

information cannot be supplied. Having no remedy left, the petitioner

has applied to the Magistrate under Section 13(3) of the Act 1969, who

is empowered to issue directions for delayed registration of birth date.

5. The petitioner has filed certain documents as well as led

evidence however, the Magistrate was dissatisfied regarding alleged

date of birth and accordingly, rejected the application. It is the

petitioner's contention that he has led the best possible evidence before

the Magistrate to vouch and verify the correctness of the birth

information. However, the Magistrate has rejected the application by

taking hyper technical view. The petitioner has led his evidence before

the Magistrate stating the contents regarding date of birth of his father.

He has produced a certificate issued by the Gram Panchayat Office

regarding residence of petitioner's father at Paunur village till the year

1935. Likewise, the petitioner has produced a certificate issued by the

Naib Tahsildar informing that the old record is decayed and therefore,

the requisite certificate cannot be issued. The petitioner in his evidence

has stated that he learnt from his relatives and villagers that his father

born on 04.08.1930 at village Paunur. The petitioner has led evidence

of his relative namely Abhimanyu Bavne to support his contention. This

witness is the petitioner's maternal uncle, who was 78 years of age at

the time of giving the evidence. He has stated that he was personally

known to the petitioner's father and had good acquaintance with him.

He has stated that the petitioner's father Krushnaji was stating that he

born 11 days prior to the Independence Day and thus, his date of birth

was 04.08.1930. Precisely, this witness has stated about his personal

knowledge regarding date of birth of Krushnaji. The learned Magistrate

has observed that the petitioner has not led evidence of any person

having knowledge or a person who was present at the time of birth of

the petitioner's father. As a matter of fact, witness Abhimanyu Bavne

has stated about his personal knowledge regarding date of birth of the

petitioner's father. It is highly impossible to examine a person, who was

present in the year 1930. The law expects to lead evidence, which is

possible to be led.

6. The respondent resisted this application by stating that

since the Act came into force in the year 1969, the Gram Panchayat has

no authority to take entry of the births or deaths prior to the

enactment. The leanred Counsel for the petitioner has relied on the

decision of the Full Bench of the Kerala High Court in case of Abu vs.

Sub Divisional Magistrate 1998 SCC OnLine Ker 248 , wherein the

Kerala High Court has considered the said difficulty and expressed that

it is open to those who are born before the enactment to take

advantage of the provisions of Section 13 of the Act 1969. Section

13(3) of the Act, 1969 empowers the Magistrate of First Class to pass

an order for taking delayed entry of registration of births and deaths

provided on verifying the correctness of the information.

7. There was paper publication of the proceedings, however,

no one has objected to the contents of the application. There is no

contrary material to discard the petitioner's statement. The Act of 1969

nowhere precludes the Magistrate to exercise the powers conferred

under Section 13(3) of the Act 1969 to a person who born prior to the

enactment. The very purpose of the Act would be defeated if such view

is taken that the person who was born prior to the enactment, his entry

cannot be taken. In that case, the person would remain without remedy

of registration. The evidence is to be appreciated in the context that the

petitioner was to establish the date of birth which took place prior to

several decades i.e. in the year 1930. In that relation, the petitioner has

led evidence of a person who had personal knowledge regarding date

of birth of his father. The birth certificate may require for variety of

reasons. There is no justification to deny the petitioner's right especially

when no counter material is available.

8. In that view of the matter, the petition is allowed. The

impugned order dated 25.11.2021 passed by the Judicial Magistrate

First Class, Wardha in Criminal Misc. Application No.257 of 2019 is

hereby quashed and set aside. The concern authority is directed to

record delayed birth entry of the petitioner's father namely Krushnaji

Bisanji Ingle as he was born on 04.08.1930 on payment of prescribed

fees and necessary compliance.

9. The petition stands disposed of in the afore-stated terms.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

25.08.2022 14:36