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Tripura High Court · body

2020 DIGILAW 119 (TRI)

Tanushree Nandi Bhowmik v. State of Tripura

2020-10-16

AKIL KURESHI

body2020
JUDGMENT 1. The petitioner has prayed for a direction to the respondent No.4 to enter an information regarding the death of her father Khokan Nandi who died on 8th January, 2020 at ILS Hospital, Kolkata, on the basis of application filed by her on 14th February, 2020. 2. Brief facts are as under : Petitioner is the daughter of one Khokan Nandi who was an ordinary resident of Agartala. For his treatment, he was taken to ILS Hospital at Kolkata where he expired on 8th January, 2020. The hospital authorities issued a medical certificate of cause of death dated 8th January, 2020. The deceased was cremated at Kolkata. A cremation certificate was issued by the Kolkata Municipal Corporation dated 8th January, 2020. The petitioner submitted an application to the respondent No.4, the Registrar of Birth and Death, Agartala Municipal Corporation, for registration of the death of her father and for issuance of a certificate of registration on 14th February, 2020. 3. Petitioner points out that the deceased left behind moveable and immoveable properties which are situated in Tripura and he is survived by his wife and daughter. The respondent No.4 is refusing to register the death of the father of the petitioner and issue death certificate on the ground that the death did not take place within the limits of the jurisdiction of the said authority. 4. Learned counsel Mr. P Roy Barman for the petitioner submitted that Section 7 of the Registration of Births and Deaths Act, 1969 for registration of the death nowhere requires that the same should have occurred within the jurisdiction of the registering authority. The registering authority is duty bound to record the factum of the death and issue a certificate after carrying out such inquiry as he finds necessary. In support of his contentions, learned counsel relied on certain decisions reference to which will be made at a later stage. 5. The respondents have appeared and filed reply. It is stated that previously a notification was issued by the Government on 25th April, 2008 in which it was provided that Registrar of Births and Deaths of a concerned area may register the information of the death occurring away from the usual residence during travel and halting/staying at any place from the usual residence for any purpose, on receipt of an affidavit to the effect that the same has not been registered elsewhere. However, by a subsequent notification dated 17th April 2018, the earlier notification has been withdrawn. Accordingly, the respondent No.4 rightly did not register the death of the father of the petitioner which had taken place at Kolkata. 6. In order to provide for regularization of registration of births and deaths and for matters connected therewith, the Registration of Births and Deaths Act, 1969 (hereinafter to be referred to as "the said Act of 1969") was enacted. Chapter - II of the said Act pertains to Registration Establishment. Section 3 contained in the said chapter envisages appointment of a Registrar General across the country. Section 4 pertains to Chief Registrar which the State Government may appoint. Under Section 5, it is open for the State Government to divide the territory into such registration divisions as it thinks fit. Section 7 of the Act of 1969 pertains to Registrars and reads as under : "7. Registrars (1) The State Government may appoint a Registrar for each local area comprising the area within the jurisdiction of a municipality, Panchayat or other local authority or any other area or a combination of any two or more of them : Provided that the State Government may appoint in the case of a municipality, Panchayat or other local authority, any officer or other employee thereof as a Registrar. (2) Every Registrar shall, without fee or reward, enter in the register maintained for the purpose all information given to him under section 8 or section 9 and shall also take steps to inform himself carefully of every birth and of every death which takes place in his jurisdiction and to ascertain and register the particulars required to be registered. (3) Every Registrar shall have an office in the local area for which he is appointed. (4) Every Registrar shall attend his office for the purpose of registering births and deaths on such days and at such hours as the Chief Registrar may direct and shall cause to be placed in some conspicuous place on or near the outer door of the office of the Registrar a board bearing, in the local language, his name with the addition of Registrar of Births and Deaths for the local area for which he is appointed, and the days and hours of his attendance. (5) The Registrar may, with the prior approval of the Chief Registrar, appoint Sub-Registrars and assign to them any or all of his powers and duties in relation to specified areas within his jurisdiction." 7. As per Sub-Section (2) of Section 7, every Registrar would enter in register maintained for the purpose all information given to him under Section 8 or 9 and would also take steps to inform himself carefully of every birth and death which takes place in his jurisdiction and to ascertain and register the particulars required to be registered. Relevant portions of Sections 8 and 9 read as under : "8. Relevant portions of Sections 8 and 9 read as under : "8. Persons required to register births and deaths - (1) It shall be the duty of the persons specified below to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16,-- (a) 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), the head of the house or, in case more than one household live in the house, the head of the household, the head being the person, who is so recognized 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 relative of the head present in the house, and in the absence of any such person, the oldest adult male person present therein during the said period; (b) in respect of births and deaths in a hospital, health center, maternity or nursing home or other like institution, the medical officer in charge or any person authorized by him in this behalf; (c) in respect of births and deaths in a jail, the jailor in charge; (d) in respect of births and deaths in a choultry, chattram, hostel, dharmasala, boarding house, lodging house, tavern, barrack, toddy shop or place of public resort, the person in charge thereof; (e) in respect of any new-born child or dead body found deserted in a public place, the headman or other corresponding officer of the village in the case of a village and officer in charge of the local police station elsewhere : Provided that any person who finds such child or dead body, or in whose charge such child or dead body may be placed, shall notify such fact to the headman or officer aforesaid; (f) in any other place, such person as may be prescribed. 9. 9. Special provision regarding births and deaths in a plantation - In the case of births and deaths in a plantation, the Superintendent of the plantation shall give or cause to be given to the Registrar the information referred to in section 8: Provided that the persons referred to in clauses (a) to (f) of sub-section (i) of section 8 shall furnish the necessary particulars to the superintendent of the plantation. Explanation . In this section, the expression "plantation" means any land not less than four hectares in extent which is being prepared for the production of, or actually produces, tea, coffee, pepper, rubber, cardamom, cinchona or such other products as the State Government may, by notification in the Official Gazette, specify and the expression "superintendent of the plantation" means the person having the charge or supervision of the labourers and work in the plantation whether called a manager, superintendent or by any other name." 8. Section 10 of the said Act imposes a duty on certain persons such as midwife, medical or health attendant etc. to notify any birth or death to the Registrar. As per Section 12, the Registrar would provide a copy free of charge to the person who has given the information under Section 8 or 9 as soon as the registration of a birth or death has been completed. Section 29 provides that nothing in the Act shall be construed to be in derogation of the provisions of Births, Deaths and Marriages Registration Act, 1986. Section 31 of the Act which is a repeal and saving provision provides that subject to the provisions of Section 29, from the date of coming into force of this Act, in any State or part thereof, so much of any law in force as relates to the matters covered by the Act, shall stand repealed. 9. Similar situation as obtaining in the present petition has come up for consideration before various Courts. The provisions of Sub-section (2) of Section 7 of the Act of 1969 are split in two parts and certain Courts have taken a view that it is only with respect to the later responsibility of the Registrar to take steps to inform himself carefully of every birth and death, that the question of the jurisdiction can be raised. The provisions of Sub-section (2) of Section 7 of the Act of 1969 are split in two parts and certain Courts have taken a view that it is only with respect to the later responsibility of the Registrar to take steps to inform himself carefully of every birth and death, that the question of the jurisdiction can be raised. With respect to the first portion of Sub-section (2), of his responsibility to enter in the register all information given to him under Sections 6, 8 or 9, no such concept of territoriality can be brought in. 10. Before adverting to such decisions, we may recall that Sub-section (1) of Section 8 imposes a duty on certain persons such as the head of the household when birth or death takes place in a house, on the medical officer in charge when the birth or death takes place in hospital, health centre, maternity etc.; a jailor in charge of the jail when such event takes place in jail and so on, to inform about the same to a Registrar providing prescribed particulars. Section 9 makes special provision regarding birth and death in a plantation. 11. Similar issue arose before Gauhati High Court in case of Kanai Mallik v. State of Tripura and Ors., WP(C) No.305/2006. The facts in the said case were, the father of the petitioner who was an ordinary resident of West Tripura District was taken for treatment to a hospital at Kolkata where he died on 3rd Mach, 2006. The petitioner thereupon filed an application before the Registrar at Tripura for registering and issuance of death certificate in prescribed format. The Registrar refused to issue the certificate on the ground that the death had not taken place within his territorial jurisdiction. In this context, the learned Single Judge analyzed the provisions contained in the Act of 1969, and in particular, Sections 7, 8, 9, 10 thereof and held and observed as under : "* * * It must also be kept in mind that Legislature while enacting Section 7(2) has conferred two distinct and different responsibilities on the Registrar by separating the whole sentence with the words "and shall also". The use of the words 'and shall also" in the context is significant. The use of the words 'and shall also" in the context is significant. The plain meaning that one could give to the Legislative intent by use of such words in the statute is that two distinct kinds of responsibilities are thrust on the shoulder of the Registrar. In the second part, the Registrar has to collect information on his own and naturally Legislature did not intend that he would collect information in respect of events happening beyond his territorial limits. But as regards his functioning on the basis of information provided, the Legislature has deliberately not indicated that said functioning is to be confined to events happening within the territorial limits of the Registrar and accordingly, this Court is of the opinion that the words appearing in Section 7(2) of the Act envisage two distinct functions of the Registrar to be exercised in two distinct context. * * * 11. Accordingly, this Court is of the opinion that the Registrar while discharging his functions by acting on information given under Section 7(2) of the Act, is competent to act on informations irrespective of the territorial limits of his functioning, provided that the informations relate to a person who was a resident during his life time within the territorial limits of the said Registrar. 12. Having concluded thus, it is considered appropriate to direct the respondent No. 2, Registrar to act on the informations provided by the writ petitioner as well as the Medical Officer BINR hospital, Kolkata and enter the information given to him about the death of the deceased Nityananda Mallik, in the register maintained for the purpose. The Registrar is also directed to issue the death certificate to the writ petitioner in respect of death of his father in terms of Section 12 of the Act. With the above direction, the writ petition is allowed. No cost." 12. In case of N Vedantam v. Executive Officer, Town Panchayat, Perungalathur and Ors., W.P. No.18187/2010 the learned Single Judge of Madras High Court considered a similar issue. Petitioner was the permanent resident of Chennai. His wife was travelling from New Delhi to Patna. In transit, she died due to heart attack. Her body was brought to Chennai where her last rites were performed. Petitioner was the permanent resident of Chennai. His wife was travelling from New Delhi to Patna. In transit, she died due to heart attack. Her body was brought to Chennai where her last rites were performed. The petitioner thereupon approached the Executive Officer, Town Panchayat, for registration and issuance of death certificate which was refused on the ground that the death had not taken place within his jurisdiction. The learned Single Judge referred to Sections 7 to 10 of the Act of 1969 and also the decision of Gauhati High Court in case of Kanai Mallik(supra) and observed as under: "34. A conjoint reading of Sections 8 and 9 makes it clear that it is the mandatory duty of the persons specified in the said Sections to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, under the Act or the Rules framed thereunder, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under Sub-section (1) of Section 16. 35. The words "and shall also" take steps to inform himself employed in Section 7(2) of the Act, has to be read disjunctively and not conjunctively. Whenever, an intimation is given by the persons authorised under Sections 8 and 9 or Rule 6 of the Rules made thereunder, the Registrar has to enter the particulars in the register maintained for the purpose and if any information is received by the Registrar, either through the above said persons or others, he may either orally or in writing, require any person to furnish any particulars, within his knowledge in connection with the Birth or Death in the locality, within which, such person resides and after ascertaining the correctness of the particulars furnished, register the same under the Act." 13. Similar view is expressed by a learned Single Judge of Kerala High Court in case of Tessy P. Das v. Secretary, Paippadu Grama Panchayat, W.P(C) No.13194/2017. It was a case in which the petitioner was a resident of Paippadu Gram Panchyat in Kerala. Her husband died at Madurai in Tamil Nadu. Petitioner applied for registration of the death and for issuance of death certificate which was rejected on the ground that the death did not take place within the jurisdiction of the said authority. It was a case in which the petitioner was a resident of Paippadu Gram Panchyat in Kerala. Her husband died at Madurai in Tamil Nadu. Petitioner applied for registration of the death and for issuance of death certificate which was rejected on the ground that the death did not take place within the jurisdiction of the said authority. The learned Single Judge referred to the provisions contained in the said Act of 1969 and observed as under : "9. It appears to me that the respondent has read the two limbs in Section 7(2) i.e. the first limb of the Registrar making entries of information received by him under Section 8 or Section 9 and the second limb of the Registrar taking steps to inform himself of death taking place within his jurisdiction conjunctively and taken the view that he is bound to register only those information received in respect of deaths taking place within his Jurisdiction. The first limb in Section 7(2) and the second limb therein in my view, are to be read disjunctively and not conjunctively. The Registrar will have an obligation under Section 7(2) to register particulars regarding births or deaths, regarding which information is given to him, under Sections 8 or 9 wherever death or birth takes place. Such an interpretation is to be given to Section 7(2) as otherwise provisions like Section 8(e) obliging village headmen, police officers and authorised persons like Parish priests to convey information to registrars will become otiose." 14. No decision taking a contrary view is brought to my notice. In view of such several decisions of different High Courts, I have no hesitation in holding that the respondent No.4 is incorrect in not registering the death of the father of the petitioner and issuing necessary death certificate. Reference to Section 29 of the Act of 1969 will not change his position. It only refers to the provision of the said Act being not in derogation to the previous law. Nothing in the earlier Act of registration of death and birth, is in derogation to the present position discussed above. Further, the Government notifications cannot alter the correct statutory position. In fact, the earlier notification dated 25th April, 2008 seems to be more in consonance with the statutory philosophy contained in the said Act of 1969. Nothing in the earlier Act of registration of death and birth, is in derogation to the present position discussed above. Further, the Government notifications cannot alter the correct statutory position. In fact, the earlier notification dated 25th April, 2008 seems to be more in consonance with the statutory philosophy contained in the said Act of 1969. We may recall, the said notification provided that in case of death occurring away from the usual residence during travel, halting or stay at a place other than usual residence, the same may be registered by the authority on a declaration being made that the death is not registered elsewhere. The subsequent notification dated 17th April, 2018 issued by the State Government withdrawing the previous notification, cannot govern the statutory interpretation. 15. In the present case, the father of the petitioner was a permanent resident of Agartala and he has left behind moveable as well as immovable properties situated within the State. He died in Kolkata while under treatment in a hospital. 16. In the result, respondent No.4 is directed to process the application of the petitioner, for registration of the death of her father and after making such inquiries as found necessary, register the death and issue a necessary certificate of such registration to the petitioner. This exercise shall be completed within a period of 2(two) months from today. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.