J.B Pardiwala, J.:— By this writ-application under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 02.09.2014 passed by the learned 3rd Additional Sessions Judge, Surat in Criminal Revision Application No. 214 of 2013, by which, the learned Judge rejected the Revision Application affirming the order passed by the learned Judicial Magistrate First Class, Municipal Court, Surat dated 30.08.2013 in Misc. Application No. 459 of 2013 filed under Section-13(3) of the Registration of Birth and Death Act, 1969.
2. The petitioner before me is a 75 years old lady. She applied for the registration of death of her father late Shri Maganbhai Karshanbhai Patel, who, according to her, passed away on 11.05.1970 It appears that immediately on demise of the father of the petitioner, the death was not registered. After almost a period of 45 years, the daughter applied under Section 13(3) of the Act, 1969 and prayed before the Court that an appropriate order be passed as regards the death of her father.
3. Section-13(3) of the Act, 1969 reads thus:-
13. Delayed registration Births and deaths.
(1) XXX
(2) XXX
(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) XXX
4. It appears on plain reading of the Section-13(3) of the Act that if any birth or death is not registered within one year of its occurrence then the same can be registered only on an order made by the Magistrate or the Presidency Magistrate after verifying the correctness of the birth or death on payment of the prescribed fee. The object appears to be that if there is a delay then in such circumstances, appropriate inquiry should be conducted and only thereafter, the same should be registered. The legislature has thought fit to assign this duty to a Magistrate of the First Class. It appears that the learned J.M.F.C rejected the application substantially on the ground of delay and lack of adequate materials in support of the prayer made by the petitioner.
5. The Revisional Court confirmed the findings recorded by the learned J.M.F.C In view of the concurrent findings recorded by the two Courts below, the petitioner has come up with this application.
6. It appears that the Courts below have relied upon a decision of this Court in the case of ‘Karimabibi Wd/o. Gulam Mohammad v. Ankleshwar Municipality’ reported in AIR 1998 Gujarat 42. The relevant observations made by this Court in the said judgment reads thus:-
“Admittedly the application filed by the respondents Nos. 2 and 3 was under sub-section (3) of Section 13 of the said Act. If the above provision of sub-section (3) of Section 13 are considered, then it would be quite clear that it is the duty of the learned Judicial Magistrate to verify the correctness of the date of birth before allowing the application filed before him. When the law expects that he has to verify correctness of the birth, it is expected from him that he must hear the persons who would be interested in disputing or supporting the said application. No doubt the said Act of 1969 does not lay down any procedure as to how and in what manner the application is to be presented by the petitioner to the learned Judicial Magistrate.
Not only that, the said Act 1969 is not making any provision for the proceeding for filing such an application, but no procedure is also laid down by any rules framed under the said Act or by any other specific provisions of any Act. Therefore, in these circumstances, when any application is presented under Section 13 of the said Act after a period of 1 year from the date of birth or date of death, it would be incumbent on the applicant to state the reasons/grounds in his application as to why the earlier entry in the death or birth register could not be made and why he could not give the information regarding the same to the competent authority. He must justify his late action in filing such an application by making necessary averments in his petition. It is also further necessary for him to state the purpose of which he wants the entry in the birth register or the death register. He must also state in the said application as who are likely to be affected by the said entry in the birth register or death register”
7. It has been further held as under:
When all the above stated details are given in the application, it is also incumbent on the Magistrate to issue notice to those persons who are likely to be affected by his order. He should also insist on issuing a proclamation as is required while issuing a succession certificate. Without following the above stated procedure the Magistrate should not proceed to dispose of such an application because the granting of such relief is going to create a right in favour of the applicant and obligation against certain persons. When the obligations are created against such persons, they must have a reasonable opportunity to challenge the said Act of the petitioner.”
8. Mr. Gohil, the learned Advocate appearing on behalf of the petitioner submits that at the relevant point of time, when the application was filed, his client was not in possession of the adequate materials in the form of relevant evidence as regards the exact date of the death of the father. He submits that other family members have also agreed to depose in her favour for the purpose of inquiry under Section-13(3) of the Act.
9. With a view to give one opportunity to the petitioner, it shall be open for her to file a fresh application before the Court concerned with the necessary evidence and other cogent materials in support of her application. If such application is filed, the same be considered and disposed of in accordance with law. I do not express any opinion in that regard.
10. In the result, both the orders are quashed and the matter is remitted to the learned Judicial Magistrate First Class, Municipal Court, Surat.
11. With the above observations and direction, this petition is disposed of. Direct service is permitted.