Calcutta High Court
Dr. Bhatindra Nath Mukhopadhyay vs Kolkata Municipal Corporation on 22 February, 2007
Equivalent citations: AIR2007CAL116, (2007)2CALLT457(HC), AIR 2007 CALCUTTA 116, 2007 (4) ALL LJ NOC 602, 2007 (4) AKAR (NOC) 482 (CAL), 2007 A I H C (NOC) 366 (CAL), (2007) 2 CAL HN 541, (2007) 2 CALLT 457
Author: Soumitra Pal
Bench: Soumitra Pal
ORDER Soumitra Pal, J.
1. This is a writ application challenging the order passed by the Chief Municipal Health Officer, Kolkata Municipal Corporation, respondent No. 2 rejecting the prayer of the petitioner to record the date of birth by giving effect to the order passed by the learned 10th Metropolitan Magistrate, Kolkata in Misc. Case No. 225 of 2005 on 11th August, 2005. In order to appreciate the issue it is necessary to set out the relevant portion of the order impugned which is as under:
Now it appears that the petitioner Dr. Bratindra Nath Mukhopadhyay has applied for issuance of his birth certificate in his favour after lapse of about sixty one years from the date of his birth, as alleged. But during the long span of 61 years no efforts have been taken to cause recording of his alleged date of birth in the Register of the Kolkata Municipal Corporation. During the hearing the representative of the petitioner was asked to produce a Xerox copy of the physician's certificate relating to the date of birth of the petitioner which was produced before the learned Metropolitan Magistrate, 10th Court, Kolkata, which was an important document for evidencing about the event of birth of Dr. B.N. Mukhopadhyay on the date as alleged, but he failed to produce of such document or any other cogent document in order to establish about the date of birth Dr. Bratindra Nath Mukhopadhyay as alleged.
Under the compelling circumstances, I am not in position to issue the birth certificate of the petitioner.
As such, the prayer of the petitioner Dr. Bratindra Nath Mukhopadhyay is considered and rejected.
Chief Mpl. Health Officer The Kol. Mpl. Corpn.
2. Earlier, on 28th December 2005 the petitioner applied to get his date of birth registered in the records of the Corporation. In support of his prayer the petitioner produced the order passed by the learned Magistrate whereby the Registrar, Birth and Death of the Corporation was directed to register the name and date of birth of the petitioner. However, as the respondents neglected to record the date of birth, the petitioner moved a writ application being WP No. 140 of 2006 compelling inaction on the part of the authorities. The said writ application was taken up for hearing on 10th May, 2006. after hearing the parties, the writ application was disposed of by directing the respondent No. 2 to consider the prayer of the petitioner and to dispose of the same by passing a reasoned order after giving a reasonable opportunity of hearing to the petitioner.
3. In compliance of the said order the respondent No. 2 considered the matter after giving an opportunity of hearing to the petitioner and by his order rejected the prayer of the petitioner to record the date of birth of the petitioner and to grant birth certificate.
4. Learned Advocate appearing on behalf of the Municipal Corporation has submitted that by order dated 10th May, 2006 Court directed the respondent No. 2 to consider the prayer of the petitioner. Unless documents were supplied, the said respondent was unable to take a decision and, therefore, the order passed was just and proper.
5. Learned Advocate appearing on behalf of the petitioner submitted that as the learned Magistrate by his order dated 11th August, 2005 had directed the respondent No. 2 to register his name and date of birth of the petitioner, the said respondent was bound to carry out the order.
6. Section 13 of the Registration of Birth and Deaths Act, 1969 is as under:
13. "Delayed registration of births and deaths".
(1) to (2) ****** ******** ******** (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 verifying the correctness of the birth or death and on payment of the prescribed fee. (A) ****** ******* ********
7. Sub-section (3) of Section 13 of the Act enumerates that "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 verifying the correctness of the birth". In the instant case, the prayer of the petitioner was rejected on the ground of failure to produce such documents or any other cogent document to establish the date of birth of the petitioner.
8. In my view, since the learned Magistrate had passed an order after verification, which was in terms with Section 13(3) of the Act, the respondent No. 2 was bound to follow the same. The action of the respondent, as it appears from the order impugned, seeking the documents relied on by the learned Magistrate is unwarranted as he cannot sit on appeal over an order passed by the Magistrate. Had he been aggrieved, the respondent could have either filed an appropriate application before the learned Sessions Judge or could have come up before the High Court in revision. Since the respondent No. 2 chose not to take recourse to any of those avenues, the order passed by the Magistrate which had attained finality could not be questioned.
9. Since the learned Magistrate by order dated 11th August, 2005 had 'directed' the authorities to register the name and the date of birth of the petitioner, the respondent No. 2 was bound to carry out the order passed. In not doing so the respondent No. 2 had failed and neglected to perform the statutory duty cast upon him. Therefore, the order impugned cannot be sustained and set aside and quashed. The respondent No. 2 is directed to register the name and date of birth of the petitioner on production of the certified or authenticated copy of the order dated 11th August, 2005 passed by the learned 10th Metropolitan Magistrate, Calcutta within a fortnight from the date of communication of this order. The writ petition is, thus, allowed.
10. No order as to costs.
11. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.