ORDER
Srinivasan, J.
1. This is a shocking case which
may not find a parallel anywhere in the world
of a married woman obtaining a certificate of
widowhood from a Revenue Official in the
lower echelons’ by fraudulently invoking the
presumption under Section 108 of the Evidence
Act, knowing fully well that her husband is
alive with a view to secure admission in a
Government Medical College under the quota
reserved for widows.
2. According to the affidavit of the writ petitioner she was given in marriage on 11-9-1975 to one R. L Selvaraj of Bhavani, who was at that time a Final Year M.B.B.S. student in Rangaraya Medical College, Kakinada. The affidavit proceeds to state that the husband had demanded huge sums of money and jewellery gold and diamond, vessels-silver, brass and stainless steel, besides furniture wooden and steel, and that her father spent more than Rs. three lacks for the marriage. , According to her, within a few days after the marriage, the husband started ill-treating her both physically and mentally. Admittedly, a female child was born to them in 1976. In the affidavit, the petitioner has not clearly stated as to when she got separated from her husband. But there is an averment that right from 1976 his whereabouts were not known. In the same paragraph the petitioner states that suddenly in 1982 her husband made his : appearance and feigned very repentant and hurled promises to keep a happy matrimonial house and suggested that setting up a matrimonial house needed lot of money and again ‘beguiled her parents to part with huge cash of nearly Rs. 75,000 and also gold jewellery worth 85 sovereigns.” It is stated further that he brought her to Madras and made her stay with him for about ten days but never treated her as his wife. It is not necessary to dilate further on the allegations made by the petitioner against her husband.
3. The petitioner, with a view to join the Medical Colege, applied to the Tahsildar, Coimbatore, for a certificate of widowhood making a representation that her husband was not heard of for about ten years. The Tahsildar issued a certificate on 26-7-1986. It is staled in the certificate that the petitioner had not heard of her husband for about ten years, and under Section 108 of the Evidence Act, if a person is not heard of for over seven years, then he is deemed to be dead, and that the petitioner was, therefore, a widow and she had not remarried. Utilising the said certificate, the petitioner got, admission in the Coimbatore Medical College. Her husband got scent of the petitioner’s activities and filed an application before the Sub Collector, Coimbatore, on 1-4-1987 for cancelling the certificate issued by the Tahsildar. The Sub Collector conducted an enquiry in” which the petitioner, some witnesses, the Village Administrative Officer, who recommended the grant of certificate by the Tahsildar, the Special Revenue Inspector and the Tahsildar, were examined and at the conclusion of the enquiry, the Sub Collector found that the certificate was issued by the Tahsildar only on the basis of the affidavit of the petitioner and the evidence of two persons known to him, and that the Tahsildar did not enquire the parents of the petitioner, or the parents of her husband, before granting the certificate. The Sub Collector found that as the husband was alive and as there was no proper enquiry by the Tahsildar, the certificate was not valid. Consequently, the Sub Collector cancelled the certificate of widowhood issued to the petitioner by order dated 18-6-1987.
4. It is that order which is challenged in this writ petition by the petitioner. The prayer in the writ petition is for the issue of a writ of certiorari calling for the records of the second respondent, the Sub Collector, Coimbatore, in his proceedings in No. Ka. No. 7067/87/A4/dt. 18-6-1987 and quashing the order passed by him.
5. The State Government has filed a counter-affidavit in which it is stated that the Sub Collector conducted proper enquiry in which the petitioner also took pan and that the Sub Collector being the higher authority to the Tahsildar, was competent to cancel the certificate as it was found to be false.
6. Learned counsel for the petitioner argues that the Sub Collector had no power to entertain an application from the husband on 1-4-1987 against the grant of the certificate by the Tahsildar on 25-7-1986. According to learned counsel, the Sub Collector is not an appellate authority and that the orders passed by the Tahsildar cannot be interfered with by the Sub Collector. Learned counsel submits that there is no rule or provision of law empowering the Sub Collector, to entertain any application against the order of the Tahsildar and that too beyond a particular time limit and cancel the same. Learned counsel also relies upon a decision of a Bench of this Court in Jacob v. Madurai University, for the purpose of substaining the petitioner’s admission in the Medical College though the prayer in the writ petition is confined to the quashing of the order of the Sub Collector.
7. The contentions put forward by learned counsel for the petitioner cannot be accepted for the following reasons — First, there is no rule or provision of law as such enabling the Tahsildar to issue a certificate of widowhood My attention is drawn to the provision in the Annexure to the Prospectus issued by the . Government for admission into MBBD/BDS/B. Pharm Courses 1986-87 in Tamil Nadu. The reservation categories are found in Annexure I. Category No. 2 relates to ‘widow’. It is stated in the Annexure that a certificate should be produced from the Tahsildar of the respective area to the effect that the candidate is a wodow and not remarried at the time of application. It is only pursuant to this provision in the Annexure, the petitioner is said to have applied for a certificate to the Tahsildar, even though at the time of applying for the certificate she was quite aware that her husband was alive, she made a false representation to the Tahsildar, that her husband was not heard of for about ten years. Even assuming that the averments made in the affidavit filed in support of the writ petition regarding the cruel treatment by her husband are true, it is clear that the petitioner was with her husband til! 1976 and again for about ten days in 1982. Hence, by no stretch of imagination, the petitioner could say that her husband was not heard of for seven years at the time when she approached the Tahsildar. Under Section 108, Evidence Act, presumption of death could be made only if it is proved at the time when the presumption is sought to be raised that the person concerned was not heard of for seven years by those who would naturally have heard of him if he had been alive. The petitioner having admittedly lived with her husband in 1982, was not entitled to claim the benefit of the presumption in 1986. In any event, she court not have invoked the provisions of Section 108, Evidence Act. That section is only a rule of procedure to be followed when the question arises before a Court whether a person is alive or dead. No person can make use of the presumption under the section and request the Registrar of Deaths and Births to make an entry in the Register that the person concerned is dead. Under the provisions of the Registration of Births and Deaths Act 1969, only actual deaths , can be registered and the informant should give the date and cause of death besides other particulars. Similarly, the Revenue Officials cannot issue certificates of death or widowhood based on presumptions. The prospectus issued by the Government for admission into Medical Colleges did not confer any such power on the Tahsildar. The provision for production of a certificate of the Tahsildar was made so that he could verify the factum of death of the husband after due enquiry and certify the widowhood of the applicant
8. Secondly, the Sub Collector is the authority to whom appeals are provided against the orders of the Tahsildar under the Tamil Nadu Registration of Births and Deaths Rules 1977. Under S.O. 95-A of the Board Standing Orders, it is the duty of the Tahsildar to report promptly to the Collector of any casualty among the parties to any litigation to which the Government is a party. Under B.S.O. 138, the Collector is the authority to appoint Tahsildars and Deputy Tahsildars from a list approved by the Board of Revenue. Under the same B.S.O. Collectors are competent to transfer a Tahsildar or a Deputy Tahsildar to a ministerial appointment on equal pay. By virtue of the Madras Subordinate Collectors and Revenue Malversation (Amendment) Regulation 1828, a Subordinate Deputy or Assistant Collector in charge of a particular division of a district shall ex officio have authority to exercise within the division under his charge all the powers granted to Collectors. Under Section 9 of the Madras Collector’s Regulation 1803, Collectors have authority to superintend and control all persons employed in the executive administration of public revenue. Thus, there can be no doubt that the Sub Collector is the superior officer having power of superintendence and control over the Tahsildars. I have no hesitation in holding that the Sub Collector is entitled to cancel the certificate issued by the Tahsildar. It is admitted that the husband of the petitioner is: alive and the certificate based on a presumption is wholly invalid. It is stated in the affidavit of the petitioner that the Tahsildar could have himself cancelled it When that is the admitted position, the contention that the Sub Collector has no power to do so is absurd. The moment any official comes to know that the certificate is factually erroneous (to say the least) he must see to it that the certificate is cancelled so that it cannot be used in any forum.
9. Even assuming for argument’s sake, that the Sub Collector has no jurisdiction to cancel the certificate of the Tahsildar, this Court will not interfere with the order of the Sub Collector. Article 226 of the Constitution is not an asylum for cheats and defrauders. Persons with sullied hands cannot find their haven in this Court in its exercise of the extraordinary jurisdiction, the Court will in its wise judicial discretion refuse to help perpetuation of fraud. The effect of a writ, if issued, as prayed for by the petitioner, would be to revive a false certificate fraudulently obtained Such a catastrophe would never be allowed to take place by this Court Even on the averments found in the affidavit of the petitioner, the writ petition deserves nothing but a dismissal
10. The ruling cited by learned counsel for the petitioner has no application here as the facts in that case bear no resemblance to the facts herein.
11. In the result the writ petition fails and is dismissed with costs. Counsel’s fee Rs. 2,000/-.