Kerala High Court
Shyju. N.C vs Tripunithura Municipality on 7 February, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940
WP(C).No. 1431 of 2014
PETITIONER/S:
SHYJU. N.C.,
AGED 32 YEARS,
S/O.CHUMMAR, NJATTUMKALAYIL HOUSE,
KADAYIRUPPU P.O., KOLENCHERRY,
ERNAKULAM DISTRICT, PIN-682 311.
BY ADV. SRI.BENNY VARGHESE
RESPONDENT/S:
1 TRIPUNITHURA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
TRIPUNITHURA MUNCIPALITY,
TRIPUNITHURA, ERNAKULAM DISTRICT-682 301.
2 THE REGISTRAR OF BIRTHS AND DEATHS,
TRIPUNITHURA MUNCIPALITY,
TRIPUNITHURA, ERNAKULAM DISTRICT-682 301.
BY ADV. SRI.V.M.KURIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.1431 of 2014 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
"I. To issue a writ of certiorari to call for the records leading to Ext.P12, and pass an order to quash the same;
II. To issue a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to accept Ext.P1, P3 and P4 together with Ext.P8 to P11 declarations and correct the date of birth of the petitioner in the birth register kept in the office and to issue a birth certificate to the petitioner recording the correct date of birth as 25.05.1981 as recorded in Ext.P1, P3 and P4 certificates; and III. To pass such other reliefs as deem fit and proper in the facts and circumstances of the case."
2. Brief material facts for the disposal of the writ petition are as follows:
3. According to the petitioner, in Ext.P1 Secondary School Certificate, the date of birth of the petitioner is entered as 25.05.1981. So also, in Exts.P3 and P4 Church records also, the date of birth of the petitioner is entered as 25.05.1981. It is the case of the petitioner that, petitioner was born on that day. Petitioner's parents omitted to register the birth at the local body and thereupon, petitioner produced the birth certificate obtained from church and W.P.(C) No.1431 of 2014 3 school records to register the birth before the Aikaranadu Grama Panchayat, and applied for the birth certificate before the Secretary of the Grama Panchayat, and the same was for the purpose of applying for a Canadian Visa. The Secretary of the Grama Panchayat, after perusing the records, found that petitioner's birth was not registered in the office. It was also found by the Secretary that the birth is not registered in the nearby Kizhakkambalam and Thiruvaniyoor Grama Panchayats also. Since the nearby Thiruvankulam Grama Panchayat had ceased to exist, a letter was sent to the 1st respondent Municipality to verify whether the birth of the petitioner had been registered there.
4. The Registrar of Births and Death, Tripunithura Municipality informed the Secretary of the Grama Panchayat that petitioner's birth had been registered there as '31.10.1980'. According to the petitioner, it is a mistake and the correct one is the date shown in the baptism certificate and birth certificate issued by the church, and it can only be a mistake committed by the office of the 2 nd respondent. The baptism of the petitioner was conducted at St. Johns Jacobite Syrian Church, Kanniyatunirappu and the W.P.(C) No.1431 of 2014 4 same was recorded in the register of the above church, evident from Exts.P3 and P4. Since the date of birth entered in Ext.P2 by the 2nd respondent is incorrect, a request for correction of date of birth was made by the parents of the petitioner together, and requested to correct the mistake in accordance with church baptism record, S.S.L.C Book, and the passport. However, Ext.P5 reply was issued on 17.01.2013, rejecting the request, stating that there is a difference of 7 months in the date of birth of the petitioner maintained by the Municipality and the school register, and it is impossible to correct the birth register maintained in the office in accordance with the school records.
5. Ext.P5 was challenged before this Court by filing W.P.(C) No.4136 of 2013, which was disposed of, as per Ext.P6 judgment, with a direction to the respondents that, if the petitioner submits a fresh application in compliance with Section 15 of the Registration of Births and Deaths Act, 1969 and Rule 11 of the Registration of Births and Deaths Rules, 1999, supported by all necessary documents, the same shall be considered by the 2nd respondent and appropriate orders shall be passed within a period of one month from the date of submission of the application. Accordingly, W.P.(C) No.1431 of 2014 5 fresh application was submitted, evident from Ext.P7, and along with the same, Ext.P8 declaration of a nurse who has worked at the Ponnamma's Hospital, Tripunithura, where the petitioner was born, Ext.P9 declaration submitted by the President of the Aikaranadu Grama Panchayat, Ext.P10 declaration of another native who was the Principal of the Higher Secondary School and Ext.P11 declaration of the nurse who had attended the delivery of the petitioner in the hospital, were also submitted. However, the same was also rejected as per Ext.P12, assigning the reason that, no manner of correction is possible taking into account the school register, and also stated that a certificate in accordance with the entry made in the register of birth alone can be granted. It is thus challenging Ext.P12, this writ petition is filed by the petitioner.
6. I have heard learned counsel for the petitioner and perused the pleadings and the documents on record.
7. The sole question to be considered is, whether any manner of interference is warranted to Ext.P12 order passed by the 2nd respondent dated 22.05.2013. Section 15 of Act, 1969 and Rule 11 of the Rules, 1999 W.P.(C) No.1431 of 2014 6 are relevant to the context. They read thus:
"15. Correction or Cancellation of entry in the register of births and deaths.--If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation.
11. Correction or cancellation of entry in the register of births and deaths.--(1) If it is reported to the Registrar that a clerical or formal error has been made in the register or if such error is otherwise noticed by him the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in Section 15 and shall send an extract of the entry showing the error and how it has been corrected to the State Government or the officer specified by it in this behalf.
(2) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Section 15 upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.
(3) Notwithstanding anything contained in sub-rule (1) and sub-rule (2) the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the State Government or the officer specified in this behalf.
(4) It it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or W.P.(C) No.1431 of 2014 7 improperly made, he shall make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under Section 25 and on hearing from him take necessary action in the matter.
(5) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under Section 8 or Section 9."
8. On a reading of Sec.15 of Act, 1969, what I could gather is that, if it is proved to the satisfaction of the Registrar that any entry of birth under the Act is erroneous, in form or substance or has been fraudulently or improperly made, subject to the rules made by the State Government, the same may be corrected or cancelled by making suitable entry in the margin without any alteration of the original entry. Rule 11 of the Rules, 1999, deals with the manner in which the enquiry is to be conducted. Case of the petitioner is that, even though petitioner has produced necessary certificates in order to establish the date of birth put forth by the petitioner, none of the documents are taken into account by the 2nd respondent while passing Ext.P12 order.
9. Learned counsel for the petitioner has also invited my attention to a Division Bench judgment of this Court in 'The Registrar of Births and Deaths v. W.P.(C) No.1431 of 2014 8 Thomas Jacob' [2011 (3) KLT 461]. Paragraph 11 is relevant to the context, which read thus:
"11. In this case, it is the case of the 1 st respondent that a mistake has been committed in recording the date of birth of his son Sri. Joshwa Thomas Jacob. To substantiate his case, he has produced Ext.P1 baptism certificate, Ext.P2 SSLC Book and Ext.P3 passport. In spite of it, taking note of the requirements of R.11(2), the learned Judge directed the 1st respondent and his wife, being the parents of Sri. Joshwa Thomas Jacob, to submit a declaration in the form of an affidavit. The appellant has no case that the persons who are ordered to be given affidavits are not credible persons as contemplated in R.11 of the Rules. On the other hand, in Ext.P11, the only insistence of the appellant is that a report should be made by the hospital on whose report the birth was registered. A reading of Ext.P11 also shows that even according to the appellant, the Hospital is not functioning now. Therefore, it is virtually impossible to comply with the requirements of the circular relied on by the appellant. That apart, S.15 of the Act and R.11 lays down the manner in which an application for correction is to be made. It is the settled position of law that the prescriptions in a statutory rule cannot be modified by an executive order and if a statute requires something to be done in a particular manner, it shall be done in that manner alone. Rule does not require any report from the hospital as is insisted by the Chief Registrar of Births and Deaths in the circular, and therefore, the insistence on the production of a report from the hospital, which is defunct, in the facts of this case, is a requirement which is not only illegal but also impossible of compliance and the net result would be that the respondent is deprived of his statutory right to get the mistake corrected. Therefore, in our view, the learned Judge has rightly issued the directions about the manner in which declarations are to be made and the correction is to be carried out."
10. Taking into account the factual circumstances and law discussed above, it is clear and evident that, W.P.(C) No.1431 of 2014 9 2nd respondent has not taken into account any of the documents produced by the petitioner before passing Ext.P12 order. Therefore, I quash Ext.P12 and direct the 2nd respondent to re-consider the matter taking into account the documents submitted by the petitioner along with the application. Since Ext.P12 order was passed more than five years before, I think it is only appropriate that petitioner is directed to produce copy of the application along with all the documents before the 2nd respondent, within three weeks from the date of receipt of a copy of this judgment, and on receipt of the same, the 2nd respondent shall take into account the observations made above and the judgment rendered by a Division Bench of this Court, referred to above, and attain finality to the same within a month from the date of receipt of the application and the documents from the petitioner.
The writ petition is allowed to the above extent.
Sd/-
SHAJI P.CHALY JUDGE St/-
11.02.2019 W.P.(C) No.1431 of 2014 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE 1ST PAGE OF THE SECONDARY SCHOOL LEAVING CERTIFICATE.
EXHIBIT P2 TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY THE 1ST RESPONDENT TO THE SECRETARY AIKARANADU GRAMA PANCHAYATH DATED 19/12/2012.
EXHIBIT P3 TRUE COPY OF THE BAPTISM AND BIRTH CERTIFICATE ISSUED FROM THE ST.MARY'S JACOBITE SYRIAN CHURCH VALAMBOOR DATED 02/01/2013.
EXHIBIT P4 TRUE COPY OF THE BAPTISM CERTIFICATE ISSUED FROM THE ST.JOHN'S JACOBITE SYRIAN CHURCH, KANNIATUNIRAPPU DATED 17/2/2013.
EXHIBIT P5 TRUE COPY OF THE ORDER REJECTING THE REQUEST OF THE PETITIONER TO CORRECT THE DATE OF BIRTH DATED 17/1/2013.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO.4136/2013 DATED 14/3/2013.
EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE RESPONDENTS DATED 17/5/2013.
EXHIBIT P8 TRUE COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER'S SON DATED 25/3/2013.
EXHIBIT P9 TRUE COPY OF THE DECLARATION SUBMITTED BY THE PRESENT PRESIDENT OF THE AIKARANADU GRAMA PANCHAYATH DATED 20/4/2013.
EXHIBIT P10 TRUE COPY OF THE DECLARATION OF ANOTHER NATIVE NO WAS THE PRINCIPAL OF THE HIGHER SECONDARY SCHOOL DATED 20/3/2013.
EXHIBIT P11 TRUE COPY OF THE DECLARATION OF THE NURSE WHO HAD ATTENDED THE DELIVERY OF THE PETITIONER IN PONNAMMA'S HOSPITAL DATED 8/5/2013.
EXHIBIT P12 TRUE COPY OF THE REJECTION REPORT DATED 22/5/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 22/5/2013.W.P.(C) No.1431 of 2014 11
EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC NO.20432/2013 DATED 19/8/2013 FILED BY THE PETITIONER'S FATHER.
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-