The High Court dismissed a petition by the G.T. Bar Association seeking leave to file a review petition against an order transferring jurisdiction over birth and death registrations from judicial magistrates. The Court rejected the plea as frivolous.
Leave to file review petition denied; Review petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2017
CORAM :
THE HONOURABLE MR. JUSTICE P.N. PRAKASH AND THE HONOURABLE MR. JUSTICE N.AUTHINATHAN
W.M.P.No.20034 of 2017
in Rev.Aplw.No.SR.45175 of 2017
in W.P.No.420 of 2017
G.T.Bar Association
rep by its President
Mr.Karunakaran
Chennai ... Petitioner
Vs.
1.Thoothai Muniyasamy
2.The Principal Secretary to
Government of Tamil Nadu
Department of Health and
Family Welfare, Secretariat
Chennai 600 009 ... Respondents
Prayer :- Petition filed under Article 226 of the Constitution of India to grant leave to the petitioner to file Review Petition against the judgment dated 13.04.2017 made in W.P.(MD).No.420 of 2017.
For Petitioner : Mr.T.Mohan for Mr.P.Munusamy For R1 : Mr. R.M.Arun Swaminathan For R2 : Mr.Vijay Narayan Advocate General
2
O R D E R
(Order of the Court was made by P.N. PRAKASH J.)
Dismissed. That is the word we uttered and decision we made
today/13.09.2017 upon hearing this frivolous petition seeking review of a serious order dated 13.04.2017 made in WP (MD) No.420 of 2017. Truth to tell, that word may more than suffice, as we may be legitimizing an otherwise unfortunate attempt to assail the order at the instance of the G.T. Bar
Association, by pronouncing a detailed verdict. On the eve of the 125th anniversary celebrations of the Madras High Court Building, the averments made in the affidavit are an anachronism we have to face in the law of today. What a fall my countrymen, what a fall? Too precipitous for words and therefore, it is more to ventilate our agony and anguish that we deem it fit and proper to expound on the reasons that impelled us to say 'Dismissed'. Of course, institutional integrity and judicial discipline commend us to pass a speaking order. Here it goes.
2. In the much quoted Book - “Law and Lawyers” - which even our
younger generation of lawyers may be exposed to, as English Text in the early years of their law course, Mahatma Gandhi said:
“Throughout my career at the Bar, I never once departed from the strictest truth and honesty. The first thing which you must always bear in mind, if you would spiritualize
3
the practice of law. is not to make your profession subservient to the interests of your purse, as is unfortunately but too often the case at present, but to use your profession for the service of your country”.
of a blatant exercise in pursuing ‘the interests of your purse’ by the
community of advocates-who belong to a noble profession. In a candid
confession, which is deeply disturbing, it is averred in the affidavit dated 5th
June, 2017 as under:
“I state that, due to the said impugned order the Advocates who were practicing exclusively in the jurisdiction of the Magistrate Courts under the Tamil Nadu Registration of Births and Deaths Act, 1969 has lost their briefs and this caused great loss and hardships to the advocates who are practicing in the Magistrate Courts… I state that, since the advocate members of our association are directly affected by the impugned order we seek leave of this Hon’ble Court to prefer a Third Party Review against the Judgment made in W.P.(NP) No.420/2017”
has affected the commercial interest of the lawyers and prejudiced their practice as professionals, to make ends meet and therefore, they were seeking review of the order. We are truly shocked at one level and not so surprised at another level. If the Mahatma spoke of ‘falling standards’ in his days in 1917 - what to say a century later. The building where the G.T. Court is housed is also
a Heritage Building rivalling the majesty of this Court itself. And now to have http://www.judis.nic.in
4
the spectacle of the G.T. Bar Association espousing its personal cause over the ‘fiefdom’ they enjoyed till now, which this Court accidentally discovered and put an end to the pernicious practice, makes sad reading.
premise, this Court had rather poignantly, if not presciently, noted in its order dated 13.04.2017:
“8. Over a period of time, the legal fraternity has evolved Birth and death jurisprudence and some members have even carved out for themselves a monopolistic niche, in the Magistrate Courts and would allow none to venture into their territory.”
additional affidavit dated September, 2017 (a clear afterthought, if ever there
was one) would reveal that the petitioner does not so much as, make even a
whisper as to what was the supposed ‘error apparent on the face of the record’ which warrants this petition. Obviously, therefore, the petition filed
itself suffers from the serious vice of ‘error apparent on the face of the record’ and deserves dismissal with costs for wasting valuable judicial time. Nevertheless, we refrain from imposing any costs in deference to the role of
the Bar which is a vital cog in the judicial wheel, that too on the eve of the
125th celebratory environment.
5
to be brutally honest, per chance, hit upon the extraordinary phenomenon – captured by us in these words:
“8. We came across similar claims by others on the same fashion which aroused our suspicion. Therefore, we directed the Registrar (Judicial) to collect statistics from all the Judicial Magistrates in the State as to the number of applications filed and ordered under the Registration of Births and Deaths Act, 1969 for the period from 1.1.2014 to 30.9.2015. The Registrar (Judicial) produced the statistics called for by us and on perusal of the same, we were alarmed. We found that a total number of 4,13,751 applications have been ordered by various Magistrates in the State of Tamil Nadu for the period from 1.4.2014 to 30.9.2015. We were told that this includes Registration of deaths also. It may be appropriate to set down the statistics in respect of some of the districts:
| Cuddalore | .. | 22,579 |
|---|---|---|
| Pudukkottai | .. | 23,927 |
| Ramanathapuram | .. | 24,777 |
| Sivagangai | .. | 20,691 |
| Thanjavur | .. | 25,092 |
| Tiruchirapalli | .. | 20,800 |
| Tirunelveli | .. | 32,893 |
| Villupuram | .. | 25,865 |
| Virudhunagar | .. | 23,689 |
Rule 9 (3) of the Tamil Nadu Regulations of Birth and Death Rules, 2000,
thoughtlessly enacted, the Judicial Magistrates were exercising a power which
did not truly belong to them. A power which belonged to the Executive
Magistrates, as rightly understood and mandated in the Union Territory of http://www.judis.nic.in
6
Puducherry – vide G.O. Ms. No.191/LAD, Local Administration Department dated 29.08.1983, in Tamil Nadu, it was being exercised and exploited before Judicial Magistrates.
the correctness of the decision dated 13.04.2017. They do not so much as even advert to what legal error had crept in and how, if at all, any of the findings
was mistaken or misplaced. The additional affidavit has come to be filed only
7
upon realization that affidavit dated 5th June, 2017 was too much of a giveaway and therefore, in a clear afterthought, the petitioner has averred as under:
“If the said power is vested with an administrative authority the same would greatly affect the interest of people at large as there is no proper procedure or process”.
The averment is as vague as what vagueness could be and lacks factual and legal credibility.
8
in the grant of certificates under the RBD Act and found that it was not an
adversarial proceeding where serious search, enquiry and examination was called for. It was more of an inquisitorial exercise where the authority had to be satisfied whether the applicant was entitled to the remedy prayed for. It
may suffice for us to refer to paragraph no.29 from the order dated
13.04.2017, which reads thus:
“29. That apart, the verification contemplated by Section 13(3) of the RBD Act is not predicated on adversarial procedure, but, on an inquisitorial methodology. Strangely, a system of procedure got fossilised, under which, the claimant would make an assertion that he was born on a particular date at a particular place in an area; would make the Commissioner of the Corporation/Municipality/Tahsildar of that area as a party respondent in the petition filed under Section 13(3) of the RBD Act; and aver that his birth was not registered within one year. He would apply for a certificate from the Commissioner/Tahsildar and file an application before the jurisdictional Magistrate to the effect that such a birth has not been registered in their office. Naturally, the authorities would issue such a certificate negativing the claim. Since the Commissioner/Tahsildar would have no interest in the lis, they would remain ex parte. Based on the paper publication and the sworn statement of the claimant that he was born on a particular date and that the same was not registered within one year, the Magistrate would issue a direction to the authorities to make necessary entries in their record. This spurious procedure, pointed out by the learned Advocate Commissioner in his report, has camouflaged an ordinary executive function to make it look as if it is a judicial act.”
It is this fossilized “process and procedure” that the petitioner is seeking to
legitimize. Hence, we reject the claim that the order which is sought to be reviewed, was not ‘in the best interest of the public at large’ as is sought to be casually averred without so much as a whit of basis or evidence.
9
the purpose of litigants and that the advocates have got no role to play in the matter of location of Benches” – as quoted in V. Subramnian –vs- Union of India dated 08.10.2004 in WP No.20038/2004 – in the context of creation of the Madurai Bench.
10
the legal fraternity openly seeks hegemony over the jurisdiction, as if a closed shop meant for their well being and practice. It is most unfortunate that the previous dispensation of virtual oligopoly – which a group of lawyers enjoyed, is sought to be perpetuated. The very thought is inconceivable to sustain. We say
no more. We hope and trust the Bar, at large, would refrain from pursuing its ‘personal interest’ camouflaged as ‘public interest’ and waste valuable judicial time, in such hopeless causes. The Bar owes it to the profession and society at
large to let the noble profession stay noble.
review petition against the judgment dated 13.04.2017 made in W.P.(MD).No.420 of 2017 is dismissed.
Further, in view of the dismissal of this W.M.P., the review petition
also stands dismissed at the SR stage itself. No costs.
(P.N.PRAKASH, J.) (N.AUTHINATHAN, J.) 13.09.2017
gms
To
The Principal Secretary to Government of Tamil Nadu Department of Health and Family Welfare, Secretariat Chennai 600 009. http://www.judis.nic.in
11
P.N. PRAKASH, J.
and
N.AUTHINATHAN, J.
gms
W.M.P.No.20034 of 2017
in Rev.Aplw.No.SR.45175 of 2017
in W.P.No.420 of 2017
12
13.09.2017
3 issues framed by the court
Whether a petition for review against an order transferring jurisdiction in birth and death registrations should be allowed.
Whether the petitioner can challenge the earlier order based on commercial interest of advocates.
Whether the review petition has any error apparent on the face of the record warranting a detailed verdict.
Colour shows how this judgement treated each authority
Federation of Bar Associations in Karnataka vs. Union of IndiaReferred¶78
Federation of Bar Associations in Karnataka vs. Union of India [2000 (6) SCC 715] · Who else cites this
V. Subramnian vs. Union of IndiaReferred¶79
V. Subramnian –vs- Union of India dated 08.10.2004
3 provisions across 2 enactments
G.T. Bar Association
1. Thoothai Muniyasamy
2. The Principal Secretary to Government of Tamil Nadu
P.N. PRAKASH
N. AUTHINATHAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
