1. Heard Sri Brijesh Kumar Singh, learned counsel for the petitioners, Sri Anil Tiwari, learned counsel for Nagar Nigam Kanpur and Sri Siddharth Singh Shreenet, learned Standing Counsel for the State-Respondent.
2. In compliance to the order dated 17th November, 2014, the District Magistrate Kanpur Nagar has filed today her personal affidavit which is taken on record.
3. Learned counsel for the petitioners submits that looking into the facts and circumstances of the case and the statements of petitioners recorded in open court on 30.10.2014, he has to say nothing.
4. Learned standing counsel submits that the alleged birth certificate is a complete nullity in the eyes of law inasmuch as it was issued unauthorizedly and without compliance to the provisions of Section 13 (3) of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the 'Act') and Rule 9 of the U.P. Registration of Births and Deaths Rules, 2002 (hereinafter referred to as the 'Rules'). He submits that in view of the averments made in the affidavit filed before this Court by the Respondents and the statements of petitioners as recorded in the open Court on 30th October, 2014, the writ petition is wholly misconceived and, therefore, deserves to be dismissed.
5. Sri Anil Tiwari, learned counsel for Nagar Nigam, Kanpur submits that the provisions of the aforesaid Act and Rules have not been followed and as a matter of general practice birth certificates are being issued from last several years without inquiry and order by a Magistrate-Ist Class. He admits that such Certificates are being issued not by competent Officers. He, therefore, submits that looking into the whole practice a lenient view may be taken against the Nagar Nigam Authorities.
6. I have carefully considered the submissions of learned counsel for the parties.
7. Briefly stated the facts of the present case are that the petitioners have filed this writ petition supported by an affidavit of petitioner No.2 praying for security to them as married couple. In the writ petition it is stated that the date of birth of petitioner No.1, girl is 23.5.1993 as per high school mark sheet and the birth year of petitioner No.2 is 1991. As per birth certificate of the petitioner No.2, issued by Birth/Death Registrar, Kanpur Nagar Nigam, a copy of which has been filed as Annexure No.2, the date of registration and date of issuance of the certificate is mentioned as 8th September, 2014. It is alleged that the petitioner No.1, girl has changed her religion on Ist August, 2014 in presence of Qazi-E-Shahr, Kanpur and performed marriage (Nikaha) on the same day before a Maulvi at Kanpur Nagar. It is alleged that on the same day they entered into an agreement dated Ist August, 2014, a copy of which has been filed as Annexure No.5. It is also alleged that the petitioner No.2 has moved an application dated 18.8.2014 before the Senior Superintendent of Police, Kanpur Nagar, a copy of which has been filed as Annexure-6. In this application the name of petitioner No.1 is mentioned as "Sonam". It is also mentioned in this letter that the petitioner No.2 knows petitioner No.1 from last six months and she is studying in a coaching with him. In the alleged agreement dated Ist August, 2014, filed as Annexure No.5 it is mentioned that the petitioner No.1 accepted Islam in a mosque and married on the same day i.e. on Ist August, 2014. In his application dated 18th August, 2014 the petitioner No.2 has stated his age to be 19 years and further stated that petitioners want to live together. In this application dated 18.8.2014 there is no mention of Nikaha or religion conversion and even the name of petitioner No.1 was not mentioned rather the name of one "Sonam" is mentioned. In her voluntary statement dated 30th October, 2014 given on oath, petitioner No.1 has stated that she has not gone to any mosque for religion conversion. In his voluntary statement on oath on 30th October, 2014 given on oath, petitioner No.2 stated that he got converted religion of petitioner No.1 to marry with her. He stated that he does not know what happened at the time of conversion which he got done at the house of "Manjoor Kazi" and further stated that Nikah was performed in his friend's house. He stated that he does not know that what proceeding was carried by Kazi at the time of Nikaha. He stated that he studied only upto class 5th. He stated that when he got converted the religion of Ankita (petitioner No.1) he was present but he does not know that what proceeding was carried at that time.
8. From the above noted facts it is evident that alleged religion conversion of petitioner No.1 and the alleged Nikah as well as the date of birth/age of petitioner No.2 as recorded in the alleged birth certificate are extremely doubtful. In any circumstances, the petitioner No.2 got converted the religion of petitioner No.1 merely for the purposes of Nikah. Since the only age proof of the petitioner No.2 is the alleged birth certificate dated 8th September, 2014 which was registered on the same day and as such, vide order dated 5th November, 2014 this Court directed the Birth/Death Registrar, Kanpur Nagar Nigam to file his personal affidavit mentioning therein the date when the application was received from the petitioner No.2 and the provision under which proceedings were carried by him. He was also directed to file all papers relating to the alleged birth certificate dated 8th September, 2014.
9. On 7th November, 2014 Birth/Death, Registrar Nagar Nigam Kanpur filed an affidavit stating that an application dated 4th September, 2014 was moved in the office of the Health Officer, Kanpur Nagar mentioning the date of birth as 1.1.1991. Since the application was moved beyond a year , therefore, permission was sought. Thereupon the Administrative Officer in the office of District Magistrate, Kanpur Nagar merely condoned the delay by letter dated 6th September, 2014. The Zonal Sanitary Officer, Kanpur Nagar Nigam, Kanpur submitted a report dated 8th September, 2014. Thereafter birth certificate dated 8th September, 2014 was issued under Section 13 (3) of the Act. The fees of the birth certificate was deposited by receipt no. 1602/19 dated 15.10.2014, a copy of which has been filed as Annexure-2 to the affidavit.
10. Since the birth certificate in question of petitioner No.2 was found prima facie to have been issued unauthorizedly without any inquiry and without following due procedure as provided under Section 13 (3) of the Act read with Rule 9 of the Rules and, as such, this Court passed the order dated 7th November, 2014 directing the District Magistrate or an officer authorized by him to file an affidavit disclosing as to who issued letter dated 6th September, 2014 condoning the delay.
11. In compliance to the order date 7.11.2014 an affidavit was filed on 12th November, 2014 in which it was mentioned that the letter dated 6th September was issued by one Sri Kishore Kumar Beriya who is Administrative Officer in the collectorate, Kanpur Nagar.
Under the circumstances by order dated 12th November, 2014 this Court directed the District Magistrate, Kanpur Nagar to file his personal affidavit after going through the provisions of the Act and the Rules and also to explain that how the birth certificate dated 8th September, 2014 was issued to petitioner No.2 without following the provisions of the Act and the Rules.
12. In compliance to this order the District Magistrate Kanpur filed an affidavit dated 17th November, 2014 making vague averments.
13. Under the circumstances this Court passed order dated 17th November, 2014 directing the District Magistrate Kanpur Nagar to file his personal affidavit clearly stating that:
"(i) Whether Sri Kishor Kumar Beria (Administrative Officer) is a first class Magistrate under Section 13 (3) of the Act;
(ii) Under what authority or power under the Act and the Rules he has issued the alleged letter dated 6th September, 2014 condoning the delay;
(iii) Whether any order for issuing the alleged birth certificate dated 8th September, 2014 of the petitioner No.2 was issued by the competent authority, i.e. the S.D.M. under Section 13 (3) of the Act read with Rule 9 of the Rules;
(iv) If an order was passed by the SDM as required under Section 13 (3) of the Act then whether the SDM has complied with the mandate of Section 13 (3) with regard to verification of the correctness of the birth."
14. In compliance to the aforesaid order dated 17.11.2014, the District Magistrate, Kanpur Nagar filed an affidavit on 21.11.2014 in which she stated that Sri Kishore Kumar Beria is not a Ist Class Magistrate under Section 13 (3) of the Act. The letter dated 6th September, 2014 was not issued by him under any provisions of the Act or Rules, no order for issuing the alleged birth certificate dated 8th September, 2014 of the petitioner No.2 was passed/issued by the competent authority i.e. S.D.M. under Section 13 of the Act read with Section 9 of the Rules and the Sub Divisional Magistrate has not issued any order/letter under the Act or the Rules.
15. The relevant provisions for the purposes of delayed registration of birth or death are the provisions of Section 13 of the Registration of Births and Deaths Act, 1969 and Rule 9 of the U.P. Registration of Birth and Death Rules, 2002 which are reproduced below:
"Section 13. Delayed registration of births and deaths- (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefore, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed.
(2)Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorized in this behalf by the State Government.
(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.
(4)The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefore and any such birth or death may be registered during the pendency of any such action."
"Rule 9. Authority for delayed registration under Sec. 13 and fee payable therefor-(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified in Rule 5, but within thirty days of its occurrence, shall be registered on payment of a late fee of rupees two.
(2) Any birth or death of which information is given to the registrar after thirty days but within one year of its occurrence, shall be registered only with the written permission of the Additional District Registrar (Deputy Chief Medical Officer for Urban Areas and District Panchyat Raj Officer for Rural areas) and on payment of a late fee of rupees five.
(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order of Sub-Divisional Magistrate and on payment of late fee of rupees ten."
16. Sub Section 3 of Section 13 of the Act specifically provides 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 Ist Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of a prescribed fee. Sub Rule 3 of Rule 9 specifically provides that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order of Sub Divisional Magistrate and on payment of late fee of Rs. 10.
17. In the affidavit filed on 21st November, 2014 the District Magistrate, Kanpur Nagar has admitted that neither any order was passed by a Magistrate of Ist Class/SDM for delayed registration of birth of petitioner No.2 nor any verification of the correctness of the birth was made by a S.D.M. Even the prescribed fee of Rs. 10 was deposited on 15th October, 2014 while birth was registered on 8th September, 2014 and certificate was issued on the same day. Thus the birth certificate of petitioner No.2 of 8th September, 2014 was issued by the Birth/Death Registrar Kanpur Nagar Nigam, without following the due procedure of law. No verification of the correctness of the birth was made by the authorized officer i.e. S.D.M. Even the prescribed fee was deposited about a month after the birth certificate was issued. The application for issuing birth certificate was allegedly moved by the petitioner No.2 before an unauthorized officer on 4th September, 2014 and the certificate was issued in haste by an unauthorized officer. Thus the birth certificate dated 8.9.2014 of the petitioner No.2 is a complete nullity. The authorities have acted unlawfully and in complete defiance of the provisions of the Act and the Rules. Even after filing of the affidavits no action has been taken by the Birth/Death, Registrar, Kanpur Nagar Nigam to delete immediately the entry of alleged birth recoded on the basis of the alleged birth certificate of the petitioner No.2 dated 8th September, 2014. The manner in which the authorities acted to issue birth certificate of petitioner No.2 shows that the delayed birth certificates are issued by the authorities on mere asking. This not only violates the provisions of Section 13 (3) of the Act and Rule 9 of the Rules but also may facilitate misuse of birth certificates.
18. The age of the petitioner No.2 is extremely doubtful inasmuch as different age or year of birth were mentioned before different authorities. In his alleged application dated 18th August, 2014 petitioner No.2 stated his age to be 19 years while in the application for alleged birth certificate he stated his year of birth to be 1991. The birth certificate was managed by the petitioner No.2 to give an impression as if he attained marriageable age. Even copy of the school leaving certificate was neither filed by him nor it was disclosed that which date of birth is recorded in the records of the schools where he studied. The name of the institution where he allegedly studied has not been disclosed in the writ petition. Thus the writ petition has been filed suppressing the material facts of the case. The petitioners have made misrepresentation.
19. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, JT 2000(3)SC.151, considering the fact of fraud, Hon'ble Supreme Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judegment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702).
20. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, 2004 (6) SCC 325, Hon'ble Supreme Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 and 13 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
19. In Derry V. Peek (1889) 14 AC 337 it was held: "In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."
21. In the case of Ram Chandra Singh Vs. Savitri Devi and others, 2003(8) SCC 319, Hon'ble Supreme Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
22. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, AIR 1994 SC 853, the Hon'ble Supreme Court held in para 7 as under :
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
23. In the case of Jainendra Singh Vs. State of U.P., 2012 (8) SCC 748, Hon'ble Supreme Court considered the fact of appointment obtained by fraud and held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 Purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
24. In view of the above discussions, the writ petition is dismissed. Looking into the facts and circumstances of the case, the arguments advanced by the learned counsel for Nagar Nigam Kanpur and the averments made by District Magistrate, Kanpur Nagar in her affidavits, following directions are issued:
(i)delayed registration of birth or death be made only on an order of the prescribed authority and strictly in accordance with the provisions of Section 13 of the Act and Rule 9 of the Rules.
(ii) The prescribed authority for the purposes of sub Section 3 of Section 13 of the Act read with Rule 9 (3) of the Rules is the Sub Divisional Magistrate of the area concerned and only he can pass an order for delayed registration of birth or death which has not been registered within one year of its occurrence. He can pass order for registration of birth or death only after verifying the correctness of the birth or death and on payment of the prescribed fee.
(iii)Chief Secretary of the State Government shall issue strict instructions to all the District Magistrates, Sub-Divisional Magistrates and Local Bodies in the State for compliance of the above directions.
25. In result the writ petition fails and is hereby dismissed with the directions mentioned above.
26. Let a copy of this judgment be sent by the Registrar General of this Court to the Chief Secretary of the Government of U.P. for strict compliance of the directions given in para 24 above.
Order Date: 21.11.2014 MT**