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2003 DIGILAW 376 (CAL)

KANAILAL HAZRA v. SSTATE OF WEST BENGAL

2003-07-30

J.K.BISWAS

body2003
J. K. BISWAS, J. ( 1 ) THE petitioner felt aggrieved by a decision dated January 9, 2003 (Annexure-'p8' ). It was given by the competent authority of the West Bengal Board of secondary Education (in short 'the Board' ). ( 2 ) THE petitioner passed the Madhyamik pariksha (Secondary Examination) from the board by appearing at such examination held in the month of March, 1988. On the basis of his own declaration regarding his date of birth, in the concerned certificate the board recorded his date of birth as November 21, 1969. Long thereafter a certificate of birth dated November 22, 1991 was obtained by him from the authority under The registration of Births and Deaths Act, 1969. In this certificate, on November 1, 1991, his date of birth was registered as December 21, 1973. On the basis of such certificate he applied to the Board for correction of his date of birth recorded in the certificate issued by the Board in connection with his passing the Madhyamik Pariksha in the year 1988. By the impugned order the Board rejected such prayer by giving detail reasons. ( 3 ) IT appears that in view of the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969, the petitioner, on the facts of his case, could get his date of birth registered with the registering authority 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 petitioner's case this statutory requirement became necessary because only in 1991 he wanted to get his date of birth registered stating that he was born on december 21, 1973. ( 4 ) BEFORE proceeding further it will be appropriate to reproduce the provisions of sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969. It reads as follows : sec. 13 (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. " ( 5 ) THE petitioner's learned counsel submits that the date of birth was duly registered, as the District Magistrate had passed the necessary order. " ( 5 ) THE petitioner's learned counsel submits that the date of birth was duly registered, as the District Magistrate had passed the necessary order. Besides the fact that no such order has been produced, the contention warrants just summary rejection, as it is totally misconceived. The District Magistrate had no power to pass an order under section 13 (3 ). Such order was required to be passed only by a first class Magistrate, that is, a Judicial Magistrate of the first class and not by any Executive Magistrate. In view of Section 3 (3) (a) of the Code of Criminal procedure, 1973, the reference to a Magistrate of the first class in the Registration of births and Deaths Act, 1969, has to be construed as a reference to a Judicial Magistrate of the first class. The District Magistrate is an Executive Magistrate in terms of section 20 of the Code. Hence he was not the authority to pass the required order under Section 13 (3 ). The admitted position is that the petitioner never applied to any authority for an order under Section 13 (3) of the Registration of Births and Deaths Act, 1969. ( 6 ) IT is therefore clear that the birth certificate on which the petitioner relied is a void document. It is no certificate in the eye of law. It was issued illegally. No reliance can be placed on such an illegal certificate. ( 7 ) MINUS the certificate of birth, which is the main plank of the petitioner's claim that he was born on December 21, 1973, and principally on the basis whereof he requested the Board for correction of his date of birth recorded in the certificate issued by it, there is hardly any other reliable material in support of his claim. ( 8 ) AFTER making investigation into the. matter, the Board recorded the following findings : the petitioner stated that his date of birth was wrongly recorded in the Admission Register of Raskundu High School as 21-11-69. According to him his actual date of birth is 21-12-73. He applied to the Board for alteration of date of birth through the headmaster of the school on 24-1-92 but his prayer was rejected without assigning any reason. He stated also that he had submitted Birth Registration Certificate and affidavit dated 16-1-90 sworn by his father in support of his prayer. He applied to the Board for alteration of date of birth through the headmaster of the school on 24-1-92 but his prayer was rejected without assigning any reason. He stated also that he had submitted Birth Registration Certificate and affidavit dated 16-1-90 sworn by his father in support of his prayer. From the attested copy of the Admission register of Raskundu High School it appears that on 11-1-82 the petitioner was admitted to Class V and his date of birth was recorded as 21-11-69. The Birth Registration certificate submitted in connection with this case is not a contemporary document as the birth was registered on 1 -11 -91, that is just before applying for alternation of date of birth on 24-1 -92 whereas date of birth was recorded in the Admission Register about 10 years ago on 11 -1 -82 and the Birth Registration Certificate is therefore not acceptable. On the same ground the affidavit is not acceptable. That apart change of date of birth will reduce age of the petitioner by 4 years 1 month and his age in Class I would have come down to 4 years 11 days which is below the minimum (6+) requirement of age for Class I on the date of first admission on 2-1-78. Hence after careful consideration of the case the prayer of the petitioner for alternation of date of birth is rejected. " ( 9 ) THE above quoted findings of fact recorded by the Board, in my considered view, need not be questioned by this Court sitting in writ jurisdiction, unless they appear to be absolutely perverse or based on no evidence at all. ( 10 ) TRUE that the certificate of birth could not be rejected by the Board on the ground that it was not a contemporaneous document, and this Court would have been in a position to grant the whole relief to the petitioner, if it were a valid certificate. I have already found that the certificate of birth is absolutely a void document, as it was not issued according to the provisions of law, and hence no reliance whatsoever can be placed on the same. I have already found that the certificate of birth is absolutely a void document, as it was not issued according to the provisions of law, and hence no reliance whatsoever can be placed on the same. ( 11 ) THE other grounds on which the board declined to accept the petitioner's claim that he was born on December 21, 1973, in my considered view, cannot be faulted with, because the claim made by the petitioner being a hopelessly belated one. had no element to inspire any credibility in the same. The Board incidentally recorded a finding that if the petitioner's claimed date of birth were to be accepted, then he would not have been eligible for admission to Class i. The petitioner has, simply, no answer to this piquant observation made by the Board. ( 12 ) FOR the foregoing reasons, I find no reason to Interfere with the decision given by the Board. Hence, the writ petition is summarily rejected. There will be no order as to costs. ( 13 ) LET urgent xerox certified copy of this order be furnished to the parties, if applied for. Petition rejected.