Bindu B.S. and Arch Rohini v. State of Kerala and Kerala State Road Transport Corporation and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943`** ## **`WP(C) NO. 1304 OF 2022`** ## **`PETITIONERS:`** ``` 1BINDU B.S., AGED 46 YEARS D/O. SARASAMMA, SIVASAILAM, T.C. 20/2277, AYANIKKAD, PUTHENVILA, KUDAPPANAKUNNU P.O, PEROORKADA, THIRUVANANTHAPURAM - 695043. ``` ``` 2ARCHA ROHINI AGED 20 YEARS D/O. BINDU, SIVASAILAM, T.C. 20/2277, AYANIKKAD, PUTHENVILA, KUDAPPANAKUNNU P.O, PEROORKADA, THIRUVANANTHAPURAM - 695043. BY ADV A.S.SHAMMY RAJ ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. ``` - `2 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM - 695023.` ``` 3MECHANICAL ENGINEER, KERALA STATE ROAD TRANSPORT CORPORATION, CENTRAL WORKSHOP, PAPPANAMCODE P.O, THIRUVANANTHAPURAM - 695018. ``` ``` WP(C) NO. 1304 OF 2022 ``` ``` 2 ``` - `4 SUB DIVISIONAL MAGISTRATE OFFICE OF THE SUB DIVISIONAL MAGISTRATE, CIVIL STATION, KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM - 695043.` - `5 REGISTRAR OF BIRTH AND DEATH, KUDAPPANAKUNNU ZONAL OFFICE, CORPORATION OF THIRUVANANTHAPURAM, KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM - 695043.` - `6 TALUK THAHASILDAR THIRUVANANTHAPURAM TALUK OFFICE, EAST FORT, FORT P.O, THIRUVANANTHAPURAM - 695023.` ``` SRI AS DHEERAJ GP ``` ``` SRI DEEPU THANKAN, SC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1304 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Aggrieved by the refusal on the part of the 6th respondent in declining to issue a legal heirship certificate to the petitioners, they have approached this Court with this Writ Petition. 2. Brief facts are as under: The petitioners are the wife and daughter of Sri. A. Jayapalan, who used to work as a Tyre Retreader in the Main Depot of the 2nd respondent Corporation. Jayapalan went missing on 30.4.2011 and has not been seen by persons who would naturally have heard of him had he been alive. 3. When he was found missing for a week or so, the petitioners approached the Mananthala Police Station and lodged a complaint on 7.5.2011 based on which, Crime No. 158/2011 was registered under section 57 of the Kerala Police Act. Despite a proper investigation by the police, they were not able to trace out his whereabouts. Exhibit P2 is the certificate issued by the Circle Inspector of Police, wherein it is stated that no clues could be obtained about the whereabouts of the missing person. 4. Armed with Ext.P1 and P2, the petitioners approached the 2nd ``` WP(C) NO. 1304 OF 2022 ``` ``` 4 ``` respondent seeking family pension and by Ext.P3 order dated 16.5.2015, the same was sanctioned. 5. The petitioners then approached the 4th respondent and filed an application seeking grant of a declaration that Sri. A. Jayapalan was missing from 30.4.2011. After obtaining a report from the subordinate officers, Ext.P4 declaration dated 6.11.2019 was issued by the 4th respondent. Under the cover of Exts.P2, P3 and P4, the petitioner approached the 2nd respondent and filed Ext.P5 application seeking compassionate employment under the Dying-in-Harness Scheme. The 3rd respondent on receipt of Ext.P5, issued Ext.P8 directing the petitioner to produce a legal heirship certificate in order to enable them to process the application. In the said circumstances, the petitioner approached the 6th respondent and submitted an application for issuance of legal heirship certificate. It is contended that the 6th respondent refused to process the application and directed the petitioner to approach the Civil Court and obtain a succession certificate. 6. According to the petitioner, it was on the basis of Ext.P10 report of the Village Officer, Kudappanakkunnu, that Ext.P4 declaration was issued by the 4th respondent. It is pointed out that in Ext.P10, the Village Officer has clearly ``` WP(C) NO. 1304 OF 2022 ``` ``` 5 ``` stated that the petitioners are the legal heirs of Sri. A. Jayapalan. According to the petitioners, in view of Section 108 of the Indian Evidence Act, if a person has not been heard of for more than 7 years by those who would have naturally heard of him if he had been alive, in the absence of any material to show that he is alive, he can be presumed to have been dead. It is contended that based on the afore provision, the 6th respondent was bound to issue the legal heirship certificate on the basis of Ext.P4 declaration made by the 4th respondent. It is on the above pleadings that the petitioners are before this Court seeking the following reliefs: - “i) That a writ of mandamus or other order be passed directing the respondents 2 and 3 to consider Ext.P5 application submitted by the 2nd petitioner and to grant compassionate employment to the 2nd petitioner under dying-in-harness scheme, on the strength of Exts.P3, P4, P7 and P10 documents. - ii) That a writ of mandamus or other order be passed, directing the 6th respondent to consider Ext.P9 application and to issue legal heirship certificate to the petitioners on the strength of Ext.P4 declaration of the 4th respondent and Ext.P10 report of the Village Offfcer.” 7. Sri. A. Shammi Raj, the learned counsel appearing for the petitioners submitted that a learned Single Judge of this Court in judgment dated 22.5.2017 in W.P.(C) No.8107/2010 had occasion to consider the implications of Section 108 ``` WP(C) NO. 1304 OF 2022 ``` ``` 6 ``` of the Indian Evidence Act and following the law laid down in **Indira K. V. Union of India and Ors.** [ILR 2005 (3) Ker. 801] had occasion to observe that if a person went missing and has not been heard for seven years, the consequence of presumption under Section 108 of the Indian Evidence Act would follow, meaning thereby that the legal heirs of the missing person should be given all benefits presuming that the person is dead. Reliance is also placed on the law laid down in **Rohini S.T. v. Tahsildar, Aluva East and Ors.** [2021 (4) KLT 743] and it is submitted that even in a case where FIR had not been lodged reporting the missing of an individual, the denial of legal heirship certificate would be arbitrary so long as the competent authority does not affirm that the husband of the 1st petitioner is alive. The learned counsel submits that for the time being, the petitioners are not pressing relief No. (i) and they would be satisfied if the relief No.(ii) as prayed for is granted. 8. I have heard the learned Government Pleader and have considered the submissions. 9. In the case on hand, Sri. A. Jayapalan, the husband of the 1st petitioner has not been heard of from 30.4.2011. Ext.P1 is the FIR dated 7.5.2011 registered under Section 57 of the Police Act under the caption “man ``` WP(C) NO. 1304 OF 2022 ``` ``` 7 ``` missing”. Ext.P2 certificate issued by the Circle Inspector of Police reveals that the whereabouts of Sri. Jayapalan is not known. Later, on the strength of Ext.P1 report issued by the Village Officer, Kudappanakkunnu, Ext.P4 declaration has been issued by the Sub Divisional Magistrate declaring that the whereabouts of Jayapalan is not known since 30.4.2011. The respondents have no case that Jayapalan has been traced out thereafter. 10. Section 108 of the Indian Evidence Act states that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would have naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. The enquiry conducted by the revenue authorities as well as the police favours the contention of the petitioner that Jayapalan has been missing from 30.4.2011. As held by this Court in the precedent cited by the petitioners, if it is reasonably certain that the person went missing and he has not been heard for more than 7 years, he shall be presumed to have been dead. In that view of the matter, there is no justification on the part of the 6th respondent in not issuing the legal heirship certificate to the petitioners. 11. Resultantly, this writ petition will stand partly allowed and the 6th ``` WP(C) NO. 1304 OF 2022 ``` ``` 8 ``` respondent is directed to consider Ext.P9 application and issue legal heirship certificate to the petitioners on the strength of Exts.P1, P2, P4 and P10. The entire exercise shall be completed expeditiously, in any event, within a period of two weeks from the date of receipt of a copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/24/1/2022 ``` WP(C) NO. 1304 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 1304/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE F.I.R. IN CRIME NO. 158/2011 OF MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ``` ``` Exhibit P2TRUE COPY OF THE CERTIFICATE ISSUED BY THE CIRCLE INSPECTOR OF POLICE, PEROORKADA, ON 17.07.2012. ``` ``` Exhibit P3TRUE COPY OF THE ORDER DATED 16.05.2015 ISSUED BY THE 2ND RESPONDENT. ``` ``` Exhibit P4TRUE COPY OF THE DECLARATION ISSUED BY THE 4TH RESPONDENT DATED 6.11.2019. ``` ``` Exhibit P5TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P6TRUE COPY OF THE COVERING LETTER DATED 1.1.2021 APPENDED TO EXHIBIT P5 APPLICATION. Exhibit P7TRUE COPY OF THE CONSENT LETTER GIVEN BY THE OTHER LEGAL HEIRS OF LATE SRI. JAYAPALAN, WHICH WAS PRODUCED ALONG WITH EXHIBIT P6. ``` ``` Exhibit P8TRUE COPY OF THE REPLY NOTICE DATED 31.08.2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P9TRUE COPY OF THE APPLICATION DATED 3.2.2020 FILED BEFORE THE 6TH RESPONDENT. Exhibit P10TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, KUDAPPANAKUNNU, DATED ``` ``` WP(C) NO. 1304 OF 2022 ``` ``` 10 ``` ``` 24.06.2019. ``` ``` Exhibit P11TRUE COPY OF THE APPLICATION DATED 14.9.2021 FILED BEFORE THE 5TH RESPONDENT. ``` ``` Exhibit P12TRUE COPY OF THE LETTER DATED 7.10.2021 ISSUED BY THE 5TH RESPONDENT. ```