WPMS/2248/2020 of DHANANJAY PRASAD NAUTIYAL Vs THE CHIEF MEDICAL OFFICER

WPMS No. 2248 of 2020 Hon’ble Manoj K. Tiwari, J.Mr. A.M. Shukla, Advocate for the petitioner. Mr. Ashish Joshi, Advocate for the respondent.

Heard learned counsel for the parties through video conferencing.

By means of this writ petition, petitioner has challenged the order dated 09.11.2020 passed by Registrar, Birth-Death, Nagar Nigam, Dehradun. By the said order, petitioner’s request for entering the name of her daughter in the birth certificate has been rejected.

According to the petitioner, his elder daughter was born on 30.06.1986 at District Female Hospital, Dehradun. Based on the information given by the hospital authorities, her birth was registered by the Competent Authority.

It is the case of the petitioner that since ‘naming ceremony’ was subsequently solemnized, therefore, her name could not be mentioned at the time of registration of her birth. The name of his elder daughter is Ms. Sneha Nautiyal. It is further the case of the petitioner that Ms. Sneha Nautiyal has gone for higher studies to France and her study visa is going to expire on 01.01.2021. It is pleaded in the writ petition that petitioner is blessed with two daughters and there is no other issue out of the wedlock with Mrs. Prabha Nautiyal.

According to the petitioner, as per new norms, study visa cannot be extended, if birth certificate, with name of the child, is not furnished.

Since name of petitioner’s elder daughter was missing from the birth certificate, therefore, he made an application to the Competent Authority on 04.11.2020 for adding the name of her daughter in the birth certificate.

In the said application, he mentioned all the relevant facts and also made declaration that Smt. Sneha Nautiyal is the same girl, who

was born on 30.06.1986 at District Female Hospital, Dehradun out of the wedlock of petitioner with Smt. Prabha Nautiyal. His application has been rejected by the respondent vide order dated 09.11.2020.

Thus, feeling aggrieved, petitioner has approached this Court against rejection of his application.

The sole ground for rejecting petitioner’s application is that as per Section 14 of Registration of Births and Deaths Act, 1969, name can be entered in birth certificate free of cost upto one year and thereafter with late fee upto 15 years.

Thus, petitioner’s application has been rejected on the ground that it is filed after fifteen years. Section 14 of the Registration of Births and Deaths Act, 1969, is extracted below:-

“14. Registration of name of child- Where the birth of any child has been registered without name, the parent or guardian of such child shall within the prescribed period give information regarding the name of the child to the Registrar either orally or in writing and thereupon the Registrar shall enter such name in the register and initial and date the entry.”

State of Uttarakhand has framed Rules under Registration of Births and Deaths Act, 1969, which was notified on 28.04.2003. English Translation of Rule10 of the said Rules is as follows:-

“10. Period for the purpose of section 14- (1)Where the birth of any child had been registered without name, the parent or guardian of such child shall, within 12 months from the date of registration of the birth of child, give information regarding the name of the child to the Registrar either orally or in writing:

Provided that if the information is given after the aforesaid period of 12 months but within period of 14 years, which shall be reckoned

(i)in case where the registration had been made prior to the date of commencement of the Registration of Births & Deaths Rules, or prior to the date of commencement of the Registration of Births & Deaths Rules, or

(ii)in case where the registration is made after the date of commencement of the Registration of Births & Deaths Rules, from the date of such registration, subject to the provisions of sub section (4) of section 23, date of commencement of the Registration of Births & Deaths Rules, from the date of such registration, subject to the provisions of sub section (4) of section 23, the Registrar shall

(a)if the register is in his possession forthwith enter the name in the relevant column of the concerned form in the birth register on payment of late fee of rupees five, enter the name in the relevant column of the concerned form in the birth register on payment of late fee of rupees five,

(b)if the register is not in his possession and if the information is given orally, make report giving necessary particulars, and, if the information is given in writing, forward the same to the District Registrar for making the necessary entry on payment of late fee of rupees five.” the information is given orally, make report giving necessary particulars, and, if the information is given in writing, forward the same to the District Registrar for making the necessary entry on payment of late fee of rupees five.”

Learned counsel for the petitioner has placed reliance upon judgment passed by Gujarat High Court in the case of Dipika Arvindkumar Pancholi Vs State of Gujarat, & another reported in 2002 SCC OnLine Guj 230. Relevant paragraphs of the said judgment are extracted below:-

“8. Provisions of Section 14 of the Act postulate that the parent or guardian of child whose birth is registered without name, shall within the prescribed period give information regarding the name of the child either orally or in writing to the Registrar, the Registrar shall enter such name in the register and initial and date the entry.

9. So far as the prescribed period is concerned, there is provision in Rule 11 of the Rules. The said Rule 11 envisages time limit within which the name of the child can be entered into the register. Rule 11 of the Rules reads thus :

"11. Period for the purpose of Section 14(1) Where the birth of any child had been registered without name, the parent or guardian of such child shall, within 12 months from the date of registration of the birth of child, give information regarding the name of the child to the Registrar either orally or in writing.

Provided that if the information is given after the aforesaid period of 12 months but within period of 15 years, which shall be reckoned :

(i) in case where the registration had been made prior to the date of commencement of the Registration of Births and Deaths (Amendment) Rules, 1985 from such date; or

(ii) In case where the registration is made after the date of commencement of the Registration of Births and Deaths (Amendment) Rules 1985 from the date of such registration.

subject to the provisions of sub-Section (4) of Section 23 the Registrar shall-

(a) If the register is in his possession, forthwith enter the name in the register on payment of late fee of rupees two. (b) If the register is not in his possession and if the information is given orally, make report giving necessary particulars, and if the information is given in writing, forward the same to the officer specified by the State Government in his behalf for making the necessary entry on payment of late fee of rupees two.

(2) The parent or guardian, as the case may be, shall also present to the Registrar the copy of the extract given to him under Section 12 or certified extract issued to him under Section 17 and on such registration the register shall make the necessary endorsement relating to the name of the child or take action as laid down in clause (b) of the provisions of sub-Rule (1)".

10. In view of the aforesaid provisions of the Act as well as the Rules, there is no manner of doubt that the statute is silent with respect to

entering name of child after the period of 15 years in the Births and Deaths Register. Therefore, in my opinion, the Act is silent about the contingency of entering the name of child after 15 years of his/her birth.

11. Similar question arose before this Court in the ease of Dr. Sukumar Mehta v. District Registrar, Births & Deaths, 1993 (34) GLR 93, where the question was for effecting the change in the name of the child entered from "Suchi" to "Prachi". In the said case, this Court (Coram : S. D. Shah, J. as he then was) in Para 4 of the judgment has observed as under :

"4. In my opinion, the Act is silent about the contingency for subsequent correction of entry already made in Birth Register by correcting the name of the child at the instance of the parents. This is the case of unmindful legislative omission. This is classic case of casus omissus, i.e. circumstances concerning which an Act is silent. The question is how to deal with such contingencies? Should the Court leave the litigant in sheer helpless condition asking him to wait till the legislature cures the defect by providing for the omission? Can the Court escape the responsibility of considering these unforeseen contingencies? However, I cannot ignore the modern tendency in Courts to take the view that if case is entirely unprovided for by Statute, 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) 9B 384 when he observed "we cannot legislate for casus omissus". This tendency has given rise to inconvenient results. One option left for me is to express regrets for statutory lacuna and to hope that it will be remedied by legislation and occasionally the hope is fulfilled, even if tardily. However, in my opinion, in this case, there is "impalpable line" of distinction which should enable the Court to come out of helplessness. In this case the caption of Sec. 15 gives general indication to givepower to correct the entry in the Birth Register. However, specific case of correction of name of the child already entered is omitted (o be provided for. When the entry is erroneous, there is power to correct. When it is factually improperly made, there is power of correction. Question is when entry is rightfully made, can it be corrected by resort to this power? In my opinion, 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. It is the correction of the name of the child at the instance of the parents or wards. What possible objections can there be in reading such power in the authority if power to correct erroneous entry is conceded? 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. I, therefore, hold that there is power in the Registrar to correct the entry already made by entertaining the application of the parents. In undertaking this exercise, I am reminded of what C. K. Alien said 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 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 direct "command" but simply part of the social and legal material which judges have to handle according to their customary process of judicial logic."

After having observed as aforesaid, the Court accepted the petition and thereby respondent authority was directed

to entertain the application of the petitioner by accepting the same and to amend the entry in the Birth Register by amending the name of the female minor child of the petitioner from that of "SUCHI" to "PRACHI" and to initial such entry after correcting the name.

11A. Similar, question arose before this Court once again in the case of Vimal M. Patel v. State of Gujarat, 2001 (42) GLR 2484 : AIR 2001 Guj 311. In the said case, this Court (Coram: Kundan Singh, J.). after referring to Para 4 of the judgment in Dr. Sukumar's case (supra) has taken similar view which was taken in the earlier ease and granted the relief prayed for in the petition.

12. So far as interpretation of statute is concerned, Constitution Bench of the Supreme Court in the case of Carew & Co, v. Union of India, AIR 1975 SC 2260, has held as under :

"If the language of 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."

13. Similarly, in the ease of Nasiruddin v. State Transport Appellate Tribunal. AIR 1976 SC 331, Constitution Bench of the Supreme Court has observed as under :

"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 statute may be unjust does not entitle 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 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."

14. 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 classic case of casus omissus, that is, circumstances concerning which the Act is silent. Therefore, the said power envisaged under Rule 11 of the Rules can be legitimately extended to the power to enter the name of the child even after period of 15 years on the application of the parent or guardian of the child. If there is power with the Registrar to enter the name of the child after 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 Rules on the request of the parents or guardian of the child, I read that there is also power with the Registrar to enter the name of the child even after the period of 15 years. In my opinion, 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. I am, therefore, of the opinion that this is fit case where power ought to have been exercised by the Registrar under Section 14 of the Act read with Rule 11 of the Rules by entertaining the application submitted by the father of the petitioner by adding name of the petitioner as requested in the application on payment of late fee of Rs. 2/- or any amount of late fee as may be prescribed by the authority.

15. Seen in the above context, the petition deserves to be allowed by granting the reliefs as prayed for therein.

16. For the foregoing reasons the petition succeeds and accordingly, it is allowed respondent No. 2 is directed to entertain the application submitted by the father of the petitioner by accepting the same afresh and to enter the name of the petitioner in the register on payment of late fee of Rs. 2/- or any amount of late fee as may be determined by the authority, within period of four weeks from the date of receipt of the writ of this Court. Rule is made absolute to the aforesaid extent with no order as to costs.”

From perusal of the aforesaid judgment rendered by Gujarat High Court, it is apparent that the provision contained in Rule 11 of the Rules framed by State of Gujarat are pari materia to Rule 10 of the Rules framed by State of Uttarakhand. In the said judgment, Gujarat High Court was dealing with an identical question, namely, when the Act is silent about the contingency of entering the name of child after fifteen years of his/her birth, whether direction can be issued to the Competent Authority to enter the name of the child.

The said question was answered by Gujarat High Court in the affirmative. Hon’ble Supreme Court in the case of Carew and Company Ltd. Vs Union of India reported in AIR 1975 SC 2260 has held that where two interpretations are feasible, than which advances the remedy and suppresses the evil, as the legislature envisioned, must find favour with the Court.

Thus, I am in respectful agreement with the view taken by Gujarat High Court in the aforesaid judgment. Therefore, the power envisaged under Rule 10 of the Uttarakhand Rules can be legitimately extended to cases where application for entering name of the child is made, even after period of 14 years. Since the Rules are silent regarding the course of

action to be adopted after 14 years, therefore, it is not case of total absence of power in the Registrar, therefore, petitioner’s application should have been entertained by the Registrar for entering name of his elder daughter in the Register. Thus, in my humble opinion, this is fit case where power ought to be exercised by the Registrar under Section 14 of the Act read with Rule 10 of the Rules by entertaining the application submitted by the petitioner for adding name of petitioner’s daughter, as requested in the application, subject to payment of late fee, as determined by the Registrar.

In view of the aforesaid discussion, the writ petition is allowed. The impugned order dated 09.11.2020 is quashed. Respondents shall consider petitioner’s application and pass appropriate order thereupon and enter the name of petitioner’s daughter in the Register on payment of late fee, to be determined by the respondent, within week from the date of receipt of certified copy of this order. Let certified copy of this order be supplied to the petitioner within 24 hours.

(Manoj K. Tiwari, J.)

Aswal

16.12.2020