1. Heard Sri Sameer Kalia and Sri Abhishek Yadav, learned counsels for the petitioner and learned Standing Counsel for the State.
2. Petitioner has filed the present writ petition for quashing of the order dated 05.12.2020 passed by the Superintendent of Police, Rai Bareilly, respondent no.3, and for a mandamus commanding the respondents to reconsider the case of the petitioner for grant of a compassionate appointment on the post of Sub Inspector (Civil Police).
3. By the impugned order the respondent no.3 has rejected the application of the petitioner for appointment under Dying in Harness Rules, 1974 (Rules of 1974) on the ground that late Parsuram expired on 15.11.2018, while in service, and Mahendra Kumar Gautam, petitioner, was not a member of his family during his lifetime or at the time of his death. The petitioner was never an adopted son and dependent of late Parsuram. The document of adoption was not executed in the lifetime of late Parsuram and is executed by the widow of late Parsuram. Therefore, the petitioner is not entitled to an appointment under the Rules of 1974.
4. The facts of the case are that Sri Parsuram was working on the post of Head Constable under respondent no.3 and expired in harness, due to heart failure, on 15.11.2018. Petitioner, on 08.08.2019, applied before respondent no.3 seeking a compassionate appointment on the post of Sub Inspector of police, claiming that he is an adopted son of the deceased employee. The adoption was set up on two different dates. The first adoption set up is on the day of Basant Panchami of the year 2002 in front of the entire village and the second is claimed on 27.04.2011 in presence of the gram pradhan and some other villagers. So far as the first adoption of the year 2002 is concerned, there is no adoption deed of the year 2002. There is an adoption deed concerning the second adoption dated 27.4.2011, but, the same is not a registered document. The only registered document is an adoption deed dated 20.12.2019 presented for registration on 21.12.2019 and registered on 24.12.2019. This registered deed is executed by the natural parents of the petitioner, claiming to have given him in adoption, and by Smt. Prema Devi wife of late Parsuram, claiming to have accepted petitioner in adoption. The said adoption deed states that on Basant Panchami of the year 2002, when petitioner was aged around 5 years, after conducting hawan, puja, etc. in presence of everyone, the adoption took place by both the natural parents and both the adopting parents, i.e., by Smt. Prema Devi as well late Parsuram, who then was alive. The deed further states that the document of adoption could not be registered at that time and, hence, now earlier executed adoption deed with the consent of parties is being presented for registration. The said document at the bottom notes its' date of drafting as 20.12.2019 and not of the year 2002. It does not even contain any signatures of late Parsuram.
5. Learned counsel for the petitioner, based on the aforesaid facts, submits that once there is a duly registered adoption deed, it was incumbent upon the authorities to accept the same. They cannot deny a valid adoption in the existence of a duly registered adoption deed. Reliance is placed upon the U.P. amendment to Section 16 of the Hindu Adoption and Maintenance Act, 1956 (Adoption Act, 1956). Further, reliance is also placed upon the succession certificate dated 12.06.2020 issued by the office of District Magistrate, Sitapur, which notes the two heirs of late Parsuram as Smt. Prema Devi, his widow, and Sri Mahendra Kumar Gautam, his adopted son. Based on these documents, counsel for the petitioner states that the petitioner is a duly adopted son of late Parsuram and, therefore, he is entitled to appointment under Dying in Harness Rules, 1974. Reliance is also placed by the petitioner upon the following judgments:-
(i) Vijay Shankar Pandey vs. State of Uttar Pradesh Through its Secretary, Irrigation Department, Lucknow and others 2006 SCC online All 1142
(ii) Jainendra Pratap Singh vs. State of Up. And ORS 2010 SCC online All 2508
(iii) Bijender and another vs. Ramesh Chand and others (2016) 12 SCC 483
(iv) Laxmibai (Dead) Through LRS and Another vs. Bhagwantbuva (Dead) Through Lrs. And others (2013) 4 SCC 97
(v) Baru (Since deceased) and another vs. Tej Pal and others 1997 SCC Online All 739
(vi) Lal Behari (Minor) vs. Gyanchand (Minor) And another 2007 SCC Online All 527
(vii) Rajendra vs. Assistant Director of Consolidation 2018 SCC Online All 5606
6. On the other hand, learned Standing Counsel submits that the adoption deed dated 20-12-2019 is executed after the death of late Parsuram and, therefore, the same can not confer any right upon the petitioner to claim appointment as the son of late Parsuram. He further states that even at best, the adoption can be said to have taken place in the year 2019, and admittedly at that time petitioner was a major, a fact not disputed by the petitioner, and thus could neither be given nor taken in adoption. He further argues that succession certificate is a collusive act on part of family members of the petitioner and has no binding force upon the respondents who are to act as per Rules of 1974.
7. By U.P. Civil Laws (Reforms and Amendments) Act, 1976 ('Amending Act of 1976'), amendments were brought in several laws in the State of U.P., including in the Registration Act, 1908 and the Adoption Act, 1956. The said amendments were made operative with effect from 01.01.1977. The Statement of Objects and Reasons, for introducing the bill, in paragraph-5 states:-
"5. A deed of adoption of a child, a sale deed of immovable property of the value below Rs. 100 and an agreement to sell immovable property, are not required compulsorily to be registered at present. Playing upon the element of chance involved in oral evidence, fictitious ante-dated deeds of such nature are set up with view to usurp the property of a rightful transferee of legatee, and on the other hand genuine transactions of these categories are challenged. Suitable amendments are proposed in the Transfer of Property Act, 1882, The Registration Act, 1908, and the Hindu Adoption and Maintenance Act 1956 to make compulsory the registration of the adoption deeds, all agreements to sell immovable property and all transfers of immovable property irrespective of the value or consideration."
8. By Section 35 of the Amending Act of 1976, Section 16 of the Act of 1956 was amended and relevant amended Section 16 reads:-
"Uttar Pradesh- Renumber Section 16 as sub-section (1)thereof and after sub-section (1) as so renumbered, insert the following sub-section (2) namely:--
"(2) In case of an adoption made on or after the 1st day of January, 1977 no court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force:
Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1872."
9. Similarly, by Section 32 of the Amending Act of 1976, Section 17 of the Registration Act, 1908 was also amended and the relevant amendment for our case is the addition of sub-clause (f) in Sub-Section 17(1). After amendment Section 17(1)(f) reads:-
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--, ...................................................
(f) any other instrument required by any law for the time being in force, to be registered,"
10. A reading of amended Section 16(2) of the Adoption Act, 1956 and Section 17(1)(f) of the Registration Act, 1908 makes it clear that after 01.01.1977 any adoption in the State of U.P. can take place by way of a registered deed only and not otherwise. The period within which a document can be presented for registration is provided under Section 23 of the Registration Act, 1908. The same reads:-
"23 Time for presenting documents.--Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final."
11. A perusal of the Statement of Objects and Reasons quoted above shows that the amendments in law were brought so that oral evidence or fictitious anti-dated deed may not be set up to claim any wrongful right or usurp the rights of a rightful person. If a contrary interpretation is accepted and this Court permits registration of an adoption deed beyond the period of four months, as provided under Section 23 of the Registration Act, 1908, the very mischief which is sought to be corrected by the U.P. Act of 1976 would be frustrated and the fraud and fictitious activities would go on unabated. This Court is duty-bound to give an interpretation to the provisions which would promote the purpose for which amendments in the Acts were brought and not one that would make the amendments redundant. This principle of interpreting a statute finds mention for the first time in Heydons' Case, [(1584) 3 Co Rep 7a : 76 ER 637], (thus also known as Heydon's Principle), which states:-
"that for the sure and true interpretation of all statutes in general (be they penal or beneficial restrictive or enlarging of the common law) four things are to be discerned and considered: (1st) What was the common law before the making of the Act. (2nd) What was the mischief and defect for which the common law did not provide. (3rd) What remedy Parliament has resolved and appointed to cure the disease of the commonwealth. And, (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall: (a) suppress the mischief, and advance the remedy, (b) suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, (c) add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
(ii) Maxwell on the Interpretation of Statutes, 12th edition; Chapter-6, page 137, states:-
"I NEVER understand," said Lord Cranworth L.C. (at p.89), "what is meant by evading an Act of Parliament. Either you are within the Act or you are not; if your are not within it, you are right; if you are within it, the course is clear, and it cannot be said that you are not within it because the very words of the Act may not have been violated." On the other hand, there is no doubt that "the office of the Judge is, to make such constructions as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief." To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: quando aliquid prohibetur, prohibitur et omne per quod denenitur ad illud;
This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When the courts find an attempt at concealment, they will, in the words of Wilmot C.J., "brush away the cobweb varnish, and shew the transactions in their true light."
(iii) In Halsbury's Laws of England, Vol. 44(1), 4th Reissue, para 1474, pp. 906-07, it is stated:
"Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common law did not provide;
(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy;and then the office of all the judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)."
The Supreme Court has also followed the said principle in a large number of cases, some of which are:-
(i) Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others1 Paragraph 33 of the said judgment reads:-
"33. Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the Court's construction." (emphasis added)
(ii) Utkal Contractors and Joinery Pvt. Ltd. and Others Vs. State of Orissa and Others2 In paragraph-9, the Supreme Court held:-
"9. In considering the rival submissions of the learned counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance, "the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of an Act may well indicate that wide or general words should be given a restrictive meaning" (see Halsbury, 4th edn. Vol. 44 para 874)." (emphasis added)
(iii) Novartis Ag. Vs. Union of India and Others3. In paragraph 28, the Court held:-
"28. In order to understand what the law really is, it is essential to know the "why" and "how" of the law. Why the law is what it is and how it came to its present form? The adage is more true in case of the law of patents in India than perhaps any other law. Therefore, in order to correctly understand the present law it would be necessary to briefly delve into the legislative history of the law of patents in the country." (emphasis added)
12. Thus, from the reading of Section 16 of Adoption Act, 1956 and Section 17(1)(f) read with Section 23 of Registration Act, 1908 and, applying the Heydons' Principle, it is clear that the registered adoption deed set up by the petitioner is not a valid adoption deed. Even its' registration could not have taken place.
13. From the aforesaid discussion, it is clear that the adoption set up by the petitioner is in violation of Chapter-2 of Adoption Act of 1956. Section 5 of the said Act provides that any adoption made in contravention of Chapter-2 shall be void. Since, the adoption set up by the petitioner is in violation of provisions of Chapter-2 of the Adoption Act of 1956 the same is a void document.
14. Now, lets also consider the judgments relied upon by the counsels for the petitioner. In the case of Vijay Shankar Pandey (supra), the petitioner was granted an appointment under Dying in Harness Rules, 1974 after looking into the correctness and validity of the adoption deed. After his continuing in the job for around a year his appointment was canceled without giving him any opportunity of hearing and on a note of the Chief Minister on a complaint filed by the persons who were involved in the murder of his father, the deceased employee. The Court allowed the said writ petition on the ground that the order cancelling the appointment only refers to there being some doubt created by the High School mark-sheet of the petitioner. There was no conclusive proof that the adoption was invalid. The impugned order was passed without giving any notice or opportunity of hearing to the petitioner and without any finding of fact that adoption was invalid. The Court also noted that there was an earlier satisfaction of a valid adoption recorded at the time of the petitioner's appointment. The argument under consideration in the present writ petition was neither raised in the said writ petition nor decided. In Jainendra Pratap Singh (supra) case, Section 16 of the Adoption Act, 1956 as well as provisions of Registration Act, 1908 were not taken into consideration by the Court and, therefore, the same has no application to the present case. In Bijender and another (supra) case, a registered adoption deed was challenged on the ground that though, seven-eight persons have signed the adoption deed but the natural guardians had not signed the adoption deed at the place provided for natural guardians but they had signed it along with witnesses. The Court refused to go into the hyper-technicalities and believed the adoption deed. Therefore, the same also has no applicability to the facts of the present case. In Laxmibai (Dead) Through LRS and Another (supra) case, in paragraph-4 it is specifically noted that adoption took place on 11.05.1971 in presence of all, and on the same day the adoption deed was executed and registered. Therefore, the facts of the said case are entirely different and not applicable to the present case. Even the question involved in the present writ petition was not raised in the said case. In Baru (Since deceased) and another (supra) case, the grounds raised in the present writ petition were not raised. The two questions considered in the said case by the Court were (i) as to whether the appellant had a right to sue and (ii) whether the requisite ceremony of adoption was performed or not. While considering the second ground, the Court said that the requisite ceremony for adoption was performed. The due execution and registration of adoption deed was proved and evidence given by the defendants has to be presumed to be correct under Section 16 of the Hindu Adoption and Maintenance Act, 1956. Therefore, the law settled in the said case is also not applicable to the facts of the present case as due execution of the adoption deed is not proved in the present case. In Lal Behri (Minor) (supra) case the factual controversy was considered and the argument raised in the present writ petition or the provisions referred were also not considered and, thus, said judgment does not apply to the present case. In Rajendra (supra) case also the deed was duly registered on 26.06.1981 and was duly filed before the consolidation authorities. The Court, therefore, relied upon the same under Section 16 of the Hindu Adoption and Maintenance Act, 1956. The question raised in the present writ petition i.e. impact of Section 17(f) read with Section 23 of the Registration Act, 1908 was neither raised nor considered in the said judgment. Therefore, the same is also not applicable to the facts of the present case. Thus, none of the judgments relied upon by the counsel for the petitioner have any bearing on the present case.
15. Though in the year 2019 petitioner was major and could not be adopted but still even accepting for the sake of arguments, the submission made by counsels for the petitioner, that, the adoption deed executed on 20.12.2019 is a valid adoption deed duly registered and thus must be accepted under Section 16 of the Adoption Act, 1956, still, petitioner would not succeed to claim appointment under Rules of 1974. The reason is that Section 8 of the Adoption Act, 1956 describes the capacity of a female to take in adoption. It provides that "any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption." The proviso to the same provided that if she has a husband living then the adoption shall be with the consent of her husband. Section 12 provides the effects of adoption. It says "An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption.....................". In the present case, admittedly in the year 2019 Smt. Prema Devi did not have a husband, but she was competent enough to adopt alone. She alone has signed the adoption deed accepting the petitioner in adoption. Therefore, under Section 8 read with Section 12 of the Adoption Act,1956 the petitioner would at best become an adopted child of his adoptive mother, i.e., Smt. Prema Devi only and not an adoptive child of late Parsuram.
16. So far as the succession certificate dated 12.06.2020 issued by the office of District Magistrate, Sitapur is concerned the same also is a document issued on the basis of stand taken by the family members. The same has no binding effect upon respondents. The respondents department can individually look into the entire matter and take a stand in accordance with law. The said document is not sufficient to accept the claim of the petitioner for appointment under the Rules of 1974.
17. Thus, this Court does not find any force in the present writ petition filed by the petitioner and the same is dismissed.
Order Date:-25.02.2021 Arti/-
(Vivek Chaudhary, J.)