JUDGMENT
G.B. Patnaik, J.
1. Both these writ petitions were heard together and are being disposed of by this common judgment since both are interlinked. Petitioner in O.J.C. No. 865 of 1983 is the tenant in respect of a house belonging to the opposite parties 1 to 9. The petitioners in O.J.C No. 2495 of 1987 are the landlords in respect of the self same house.
2. The tenant-petitioner in OJ.C. No. 865 of 1983 is the son of Sarfuddin who is since dead and brother of Kamruddin (opposite party No. 10). The co-sharer landlords in respect of Holding No. 486 in Ward No. VI of Cuttack Municipality filed a petition for eviction of the tenants, namely Sarfuddin (since dead), Rahimuddin (present petitioner) and Kamruddin (present opposite party No. 1) both on the ground of wilful default in payment of rent as also on the ground of bona fide requirement of the landlords. In the said proceeding, Rahimuddin remained ex parte but his brother Kamruddin as well as father Sarfuddin filed a joint written statement and contested the proceeding. The learned House Rent Controller allowed the prayer of eviction on the conclusion that the tenants wilfully defaulted in payment of rent as well as on the ground that the landlords required the house bona fide for their own use. The prayer for eviction was allowed ex parte against Rahimuddin and on contest against Kamruddin, while the father Sarfuddin died during the pendency of the original proceeding. This judgment of the House Rent Controller is dated 18-9-1975, and has been annexed as Annexure 2 to the writ petition in O.J.C. No. 865 of 1983. This order of eviction passed by the Controller was challenged by Kamruddin in appeal, but the same was dismissed on 3-7-1976. The matter was then carried to this Court in O.J.C. No. 1036 of 1976 at the instance of said Kamruddin and ultimately the writ application was dismissed by order dated 26-11-1981.
Shortly thereafter Rahimuddin preferred an appeal being H.R.C. Appeal No. 49 of 1982 in the Court of the Chief Judicial Magistrate, Cuttack, against the original order of eviction passed by the learned House Rent Controller in H.R.C. Case No. 84 of 1974 on the ground that the order of eviction was not binding against him since he was a minor during the original eviction proceeding and there had been no proper representation of such minor by a guardian in the said proceeding. The learned Chief Judicial Magistrate dismissed the aforesaid appeal by order dated 19-2-1983. The said order of the appellate authority has been annexed as Annexure 5 to the writ petition in O.J.C. No. 865 of 1983 and is being impugned in this writ petition. The learned Chief Judicial Magistrate after scrutinising the materials on record came to the conclusion that there had been due service of notice of the original eviction proceeding on the present petitioner and yet the petitioner did not appear. In the appellate Court, the petitioner had filed an application under Order 41, Rule 27, Code of Civil Procedure, praying therein that the Certificate issued by the Registrar of Births and Deaths indicating the minority of the petitioner on the date when the original eviction proceeding culminated may be taken as additional evidence. This prayer of the petitioner was rejected by the learned appellate authority after coming to a conclusion that the document sought to be marked by way of additional evidence was a highly suspicious one and the pre-conditions for giving additional evidence as laid down in Rule 27 of Order 41, Code of Civil Procedure, had not been satisfied After rejecting the said prayer, the appellate authority then came to the conclusion that there was no basis for coming to a conclusion that the present petitioner was a minor on the date of f ilingof the original eviction proceeding. The appellate authority also rejected the petitioner’s plea regarding non-communication of the order of eviction and held that “the plea of the appellate that the order was not communicated to him and he does not know about the order can never be accepted.” On these conclusions, the learned Chief Judicial Magistrate dismissed the appeal.
3. The sole ground on which the learned counsel for the petitioner assails the order of the Chief Judicial Magistrate under Annexure 5 is that there has been an illegal exercise of jurisdiction in refusing to take evidence with regard to the minority of the petitioner and under Section 13(2) of the Orissa House Rent Control Act, it is the bounden duty of the appellate authority to make further inquiry as he thinks fit. Such refusal of the appellate authority to consider the additional evidence produced by the petitioner has vitiated the ultimate conclusion and accordingly the impugned order under Annexure 5 is liable to be set aside by this Court.
4. In course of hearing of this writ petition, the landlords coming to know that the petitioner has in the meantime obtained a certificate under the provisions of the Registration of Births and Deaths Act, 1969 (Act 18 of 1969) wherein the date of birth of the petitioner has been noted as “3-7-1957” and such date would make the petitioner a minor when the original eviction proceeding was concluded, have filed O. J.C. No. 2495 of 1987 praying therein to quash the said certificate, inter alia on the ground that there has been no due inquiry by the learned Magistrate before passing the order under Section 13(3) of the Registration of Births and Deaths Act and on the ground that such a certificate could not have been obtained in law.
5. If the writ petition filed by the landlords (O.J.C. No. 2495 of 1987) is allowed and the certificate issued by the competent authority under the provisions of the Registration of Births and Deaths Act, 1969, is quashed, then the other writ petition (O. J. C. No. 865 of 1983) filed by the tenant is bound to fail. On the other hand, if the writ petition filed by the landlords fails and is dismissed, then the application filed by the tenant must be sustained and the matter would be remitted back to the appellate authority for
reconsideration. This being the position, we would first take up the writ application filed
by the landlords.
6. It is asserted in the writ petition in O J.C. No. 2495 of 1987 that the Magistrate
has not made any inquiry as required under Sub-section (3) of Section 13 of the Registration of Births and Deaths Act to verify the correctness of the statements made on affidavit and mechanically passed an order which has far reaching consequence and, therefore, such an order should not be permitted to remain, particularly when it is apparent from the facts of this case that it was an attempt to nullify the order of eviction that had been passed in the earlier House Rent Control proceeding on a rather frivolous plea. The learned counsel for the tenant, on the other hand, submits that the certificate in question having been issued on 8-9-1983 and the landlords not having chosen to assail the same till 1987, there has been inordinate delay and, therefore, the application should not be entertained. The learned counsel also urges that there was an alternate remedy available under Rule 12(4) of the Orissa Registration of Births and Deaths Rules, 1970, and the said remedy not having been availed of, the present application should be rejected.
7. Before examining the correctness of the rival submissions, it would be appropriate to note some provisions of the Registration of Births and Deaths Act, 1969. As has been stated in the Statement of Objects and Reasons of the Act, prior to the enforcement of the said Act (Act 18 of 1969) only a very few States in the country had separate legislation in regard to the registration of births and deaths. In other States there were certain enabling provisions in different Municipal Acts and the matter was being governed by either executive orders or bye-laws. The Central Government having felt the need to have accurate countrywide registration data for the purpose of national planning, organising public health and medical activities, as well as for developing family planning programmes for which population is one of the most dynamic factors, the law was passed so that there would be technically uniformity in the methods and standards used in the collection and compilation of data throughout the country. Under Section 8 of the Act it is the duty of the persons specified in Clauses (a) to (f) to give information to the Registrar of the several particulars required to be entered in the form prescribed by the State Government under Sub-section (1) of Section 16. Clause (a) of Sub-section (1) provides that in respect of births and deaths in a house, whether residential or non-residential, not being any place referred to in clauses (b) to (e), in case more than one household live in the house, the head of the household the head being the person, who is so recognised by the house or the household, and if he is not present in the house at any time during the period within which the birth or death has to be reported, the nearest relation of the head person in the house, and in the absence of any such person, the oldest adult male person present therein during the said period, has the obligation to give the information required, to the Registrar. We are not concerned in the present case with other clauses of Sub-section (1) since it is not the case of the tenant that Rahimuddin was either born in the hospital or health centre or in a nursing home or in jail or in a country or he was deserted in the public place or in any other place coming within Clauses (b) to (f). Section 11 casts an obligation on the person who gives oral information to the Registrar to write in the register maintained in that behalf his name, description and place of abode et cetera. Section 13 is the provision for delayed registration of births and deaths. We are concerned in the present case with Sub-section (3) of Section 13 which is extracted hereunder: —
“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.”
It is in exercise of this power the concerned Magistrate has passed an order pursuant to which the competent authority has made entries in form No, IX under Rule 9 of the Orissa Registration of Births and Deaths Rules. It appears from the application on the basis of which the Magistrate passed order under Section 13(3) of the Registration of Births and Deaths Act, which has been annexed as Annexure B to the counter affidavit filed on behalf of the landlords in O.J.C. No. 865 of 1983 that on 9-8-1982, the brother of Rahimuddin, namely, Sk. Kamruddin made the assertion that Rahimuddin was born on 3-7-1957 and at the time of his birth no information had been given to the Register of Births, Cuttack Municipality, and since the Certificate is required for the purpose of obtaining a service, the same may be given. He also filed an affidavit to the effect that his brother Rahimuddin was born on 3rd of July, 1957. That application was registered as a miscellaneous case under orders of the Magistrate dated 9-8-1982 being Misc. Case No. 481 of 1982 and on perusal of the same, the Magistrate passed the order to the effect that he was satisfied about the genuineness of the petition and accordingly a direction be issued to the registering authority. On 3-7-1957, the date on which Rahimuddin is alleged to have taken birth, the age of Kamruddin was hardly three years since according to his own affidavit, he was 28 years on 9-8-1982. It is, therefore, impossible on his part to know the date of birth of his younger brother. Then again, he could not be a person competent to give necessary information relating to date of birth of a child under Section 5(1)(a) of the Registration of Births and Deaths Act. By 1982, Rahimuddin had attained majority. Therefore, if at all, an application was entertainable for exercising power under Section 13(3) of the Registration of Births and Deaths Act, then such an application could have been filed by the applicant himself who had attained majority by then, or by any one of the persons prescribed under Section 8(1)(a) of the Act. There was no reason for the brother, Kamruddin to make the application in question. That apart, subsection (3) of Section 13 casts an onerous duty on the Magistrate to verify the correctness of the birth or death and thereafter pass an order. There cannot be any manner of doubt that an entry with regard to the date of birth of a person confers a valuable right and when such an entry was not contemporaneously made for some reason or the other and can be made only after a Magistrate passes an order after verifying the correctness of the same, the Magistrate must make an inquiry in that respect. Without any inquiry worth the name, and passing an order mechanically on the basis of affidavit filed, would tantamount to passing an order on total non-application of mind and in the eye of law, it would not be a verification as contemplated under Sub-section (3) of Section 13 of the Act. In this view of the matter, in the facts and circumstances of the present case, the conclusion is inescapable that the Magistrate passed the order which has been annexed as Annexure 1 to the writ petition in O.J.C. No. 2495 of 1987 without making any verification and on total non-application of mind, mechanically in a routine manner and such an order cannot be sustained in law. The competent authority of the Municipality who has issued the certificate under Annexure-2 has merely issued the same on the basis of the order passed by the Magistrate under Annexure-1. If the order under Annexure-1 goes, then as a necessary consequence, the order under Annexure-2 also must go.
8. At this stage, it would be appropriate
to consider the two objections raised by the
learned counsel on behalf of the tenant in
opposing the application filed by the
landlords. No doubt, under the Orissa
Registration of Births and Deaths Rules, a
person aggrieved has a remedy of filing an
appeal, but mere existence of an alternative
remedy cannot be treated as a bar for exercise
of our jurisdiction under Article 226 of the
Constitution, particularly when we are
convinced that the tenant having lost in the
House Rent Control case in all forums
including in the writ petition in the High
Court, resorted to the present mode of
obtaining a certificate with regard to the date
of birth of one of the tenants who was also a
party to the original proceeding but remained
ex parte and obtained the certificate with a
date by which the validity of the entire
proceeding has been sought to be challenged.
In our opinion, when no investigation of fact
is involved, as in the present case, and when
interests of justice so require, the Court should
exercise its jurisdiction under Article 226
notwithstanding the availability of remedy
by way of an appeal We would, therefore,
reject the first objection raised on behalf of.
the learned counsel for the tenant.
So far as the question of delay is concerned,
it has been stated in the writ application that
the landlords could know of the issuance of a
certificate only during the pendency of the
appeal filed before the Chief Judicial
Magistrate wherein the tenant wanted to
adduce additional evidence and thereafter
the necessity for challenging the same arose
only when it could be found that unless the
same was challenged, the matter would be
unnecessarily prolonged. In such contingency,
as the present one, we do not think it
appropriate to reject the writ petition on the
ground of delay or laches, more so in a case
like this where the landlords need not bother
about the date of birth of a tenant until and
unless their interest is adversely affected by
such entry with regard to date of birth. We
would, therefore, reject the second ground
of objection raised on behalf of the tenant. Accordingly, we would quash the orders under Annexures-1 and 2 in O.J.C No. 2495 of
1987.
9. Coming now to the other writ application filed by the tenant (O.J.C. No. 865 of 1983), the only ground of attack is that the appellate authority failed to exercise his jurisdiction vested in him in not permitting the tenant-petitioner to take the document as additional evidence. Since the very document which was sought to be adduced as additional evidence has no existence now in view of our order quashing the same in O.J.C. No. 2495 of 1987, the point no longer remains to be considered and the tenant cannot make a grievance for the refusal of the learned appellate authority to permit him to adduce additional evidence. That apart the appellate authority has clearly come to the conclusion that the tenant-petitioner had due notice of the earlier proceeding. It has been further found that the plea of the appellant (petitioner in O.J.C. No. 865 of 1983) that the order of eviction was riot communicated to him and he does not know about the order can never be accepted We have examined the impugned order of the appellate authority which has been annexed as Annexure-5 to the writ petition in O.J.C No. 865 of 1983. We do not find either any jurisdictional error or any other error of law apparent on the face of the same so as to be interfered with by this Court in exercise of its extraordinary jurisdiction. Consequently, the said writ petition fails and is accordingly dismissed.
10. In the net result, therefore, O.J.C,
No. 865 of 1983 is dismissed and O.J.C.
No. 2495 of 1987 is allowed, but in the
circumstances, each party is to bear its own
costs.
Rath, J.
11. I agree.