Vijaya Sharma v. C.B.S.E. & Anr

S. RAVINDRA BHAT, J

NAJMI WAZIRI, J MAY 20, 2013 /vks/

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % DECIDED ON: 20.05.2013 + LPA 251/2009, CM APPL.8032/2013 MAMTA SHARMA ..... Appellant versus C.B.S.E. & ANR. ..... Respondents LPA 252/2009, CM APPL.8031/2013 VIJAYA SHARMA ..... Appellant versus C.B.S.E. & ANR. ..... Respondents Present: Mr. R.K. Saini with Ms. Minal Sehgal, Advocates for appellants. Mr. Amit Bansal, Advocate for Resp-1/CBSE. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) CM APPL.8032/2013 (early hearing )IN LPA 251/2009 & CM APPL.8031/2013 (early hearing) IN LPA 252/2009 In view of the submissions and averments made in the applications, the same are allowed. Applications stand disposed of. LPA 251/2009 & LPA 252/2009 1. Issue Notice. Mr. Amit Bansal, Advocate accepts notice. With Page 2 consent of counsel, the appeals are taken up for final disposal. 2. By these appeals, a common judgment and order of a learned Single Judge dated 18.04.2009 dismissing the two writ petitions, i.e., W.P. (C) 3819/2008 and 3820/2008 filed by the present appellants - Ms. Vijaya Sharma and her sister Ms. Mamta Sharma - has been questioned. 3. The petitioners have sought for directions that the respondent/CBSE should correct their date of birth in the certificates issued by it. 4. It was contended that the Vijaya Sharma's correct date of birth is 26.01.1969 and that of Mamta Sharma is 05.06.1972. The appellants had placed considerable reliance upon the enquiry proceedings of Sub Divisional Magistrate (SDM) which culminated in an order stating that the date of birth previously recorded - and entered into CBSE records - were not correct and the respective date of birth of the said appellants were 26.01.1969 and 05.06.1972. 5. Learned counsel for the appellant Mr. R.K. Saini submits that the previous order of this Court in two proceedings on 06.12.2004 had taken into consideration all the factors, especially enquiry proceedings by the SDM. The learned Single Judge, it is emphasized, even took note of the affidavit filed by one Kartar Singh, the then SDM who went on the record to state that he had duly conducted the enquiry as well as materials taken into account by him to direct correction of the date of birth. It was contended that the order setting aside that judgment - of the learned Single Judge - was premised upon two decisions of the Karnataka and the Madras High Courts (H. Subbarao v. The Life Insurance Corporation of India and Anr., AIR 1979 Karnataka 231 and G.V. Vijarangan v. The State Bank of India, 1987 (1) MLJ 82). The Court, it is submitted, merely stated that the order of the Page 3 SDM under Section 13 was not conclusive but was conceded to be an important piece of evidence. 6. It is argued that the learned Single Judge fell into error in completely ignoring the SDM's report in the present case and holding that the reliefs sought were not admissible having regard to the circumstances of the case. The learned counsel placed reliance on the judgment of the Supreme Court in Cidco vs. Vasudha Gorkhnath Mandevlekar (2009) 7 SCC 283, wherein it was held that the entries in the rolls maintained under the Birth and Death Register and the Rules framed under it were presumpted. It was also argued that the Birth and Death Register ordinarily result in presumption of correctness as to the entries which are admissible as evidence under Section 35 of the Indian Evidence Act. Counsel submitted that the learned Single Judge, in the present case, fell into error in overlooking this important position in law. 7. The impugned order - as a facial reading - took note of the SDM's order which led to the entry in the Birth and Death Register. Learned Single Judge also placed the history of these two cases in the previous order and the rationale which persuaded the Division Bench to set aside the learned Single Judge's earlier determination. The Court then took into consideration the judgment cited by the present appellan