Kerala High Court
P.Sivagami vs State Of Kerala on 3 October, 2018
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
WP(C).No. 32930 of 2016
PETITIONER/S:
P.SIVAGAMI
AGED 64 YEARS, D/O.LATE PONNUSWAMY, 4/365,
IIIRD MAIN ROAD, 16TH CROSS STREET,NEELANKARI,
CLRI NAGAR, CHENNAI-600 115.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.V.P.POULOSE
RESPONDENT/S:
1 STATE OF KERALA
REP.BY SECRETARY,
DEPT. OF LOCAL SELF GOVT.,
SECRETARIAT, TRIVANDRUM - 695 001.
2 THE PERUMBAVOOR MUNICIPALITY
MUNCIPAL OFFICE, PERUMBAVOOR,
REP.BY ITS SECRETARY, 695001.
3 REGISTRAR OF BIRTH & DEATH
O/O HEALTH INSPECTOR,
PERUMBAVOOR MUNICIPALITY,PERUMABVOOR 683 321.
4 THE EXECUTIVE MAGISTRATE
SUB DIVISIONAL MAGISTRATE,
(THE REVENUE DIVISIONAL OFFICER),
MUVATTUPUZHA -683 621.
5 THE CHIEF REGISTRAR KERALA
(UNDER THE REGISTRATION OF BIRTHS & DEATHS ACT),
O/O THE DIRECTOR OF PANCHAYAT,TRIVANDRUM 695 001.
BY ADVS.
SRI.V.M.KURIAN, SC, PERUMBAVOOR MUNICIPALITY
SRI.SUNIL KURIAKOSE(GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 32930 of 2016
2
JUDGMENT
Petitioner claims that she submitted Ext.P3 application before the 3rd respondent requesting for a non availability certificate with respect to registration of her birth. Petitioner is 64 years old. She had been residing in Chennai. In order to join her daughter who is settled in USA, petitioner requires permanent visa for which she has to submit application along with Birth Certificate.
2. According to the petitioner, her birth is not registered, though the birth occurred in Perumbavoor. Petitioner claims that her mother was also born in Perumbavoor, though Father was born in Tamil Nadu and they were settled in Tamil Nadu. In Ext.P1 passport of her mother, which was valid from 16.03.2005 to 15.03.2015, the place of birth is shown as 'Peruvamboor', Kerala. In Ext.P2 Passport bearing No.J2478146 issued to petitioner, from Chennai, in 2010, her place of birth is recorded as Perumbavoor. WP(C).No. 32930 of 2016 3 Though petitioner has produced Ext.P5 Secondary School Leaving Certificate issued by Government of Madras, there is no provision to enter the place of birth. Ext.P3 application was submitted on 27.10.2014 along with Ext.P4 affidavit sworn to by petitioner's mother on 27.10.2014, in which she has given the names of her 5 children all born to her at Perumbavoor and petitioner with date of birth on 24.07.1952, is the 2nd child among those 5 children. The affidavit is in the proforma for registration of birth in which petitioner's mother requested to register the name of the petitioner. In the application Ext.P3, the address of petitioner's parents (Late Ponnuswami and Lakshmi Ponnuswami) at the time of her birth was given as "Ponnuswami(Late), Ramakrishna Nivas, Ward No.22, (Present), A.M. Road, Perumbavoor.".
3. But the 3rd respondent as per letter dated 07.11.2014, requested the petitioner to produce any document which shows that birth occurred within the area of jurisdiction of the Municipality. In Ext.P9 WP(C).No. 32930 of 2016 4 letter dated 12.02.2015 also he informed that the place of birth of the petitioner in the given address could not be verified in the enquiry conducted by the office with people residing in the vicinity of the address furnished by the petitioner, and also in the enquiry conducted through the Sub Inspector of Police, who submitted his report on 18.12.2014. In Ext.P9 letter the 3rd respondent stated that the petitioner did not produce any document even after letter dated 05.01.2015 was issued to her. It was also stated that as per para 3.3 of the circular dated 08.12.2010 and the revised guidelines issued on 03.10.2013 by the Director of Panchayath, applications for non- availability certificates shall be accompanied by documents to prove the residential address at the time of birth and ration card, extract of admission register of school, mark list of Senior Secondary exam, voters list or voters ID card can be accepted as proof. It was stated that the guidelines do not provide that passport can be accepted as proof of WP(C).No. 32930 of 2016 5 place of birth. It was stated that the documents are insisted to prevent multiple registration of birth/death after getting non-availability certificate, furnishing incorrect data.
4. Petitioner's case is that her birth was not registered and therefore she is entitled to get her birth registered under the provisions of Section 13 of the Registration of Birth and Deaths Act, 1969. According to petitioner, when an application for registration of birth which occurred before more than one year, has to be referred to the Sub Divisional Magistrate as provided in Section 13(3) of Act 1969 and Rule 9(3) of the Kerala Registration of (Birth and Death) Rules, 1999. The application has to be scrutinised and processed after getting a non- availability certificate from the Registrar of Birth and Deaths. Petitioner claims that the non- availability certificate should have been issued on the basis of the passport in which her place of birth is recorded as Perumbavoor.
WP(C).No. 32930 of 20166
5. The learned counsel for the petitioner points out that when she had produced passport which is one of the documents recognised by the Election Commission of India as valid proof of identity and when she submitted an affidavit, the respondents ought to have issued a certificate to the petitioner.
6. In Ext.P7 circular issued by the Director of Panchayath on 07.02.2015, revised guidelines are issued with respect to registration of birth and death. Paragraph 3 deals with delayed registrations. Paragraph 3.1 provides that the births and deaths which are not reported within 30 days can be registered only with the permission of the R.D.O after the expiry of one year. In case the death or birth is not registered in accordance with Rule 13(3) of the Kerala Registration of (Birth and Death) Rules, 1999, a non-availability certificate shall be issued by the Registrar of Births and Deaths. It further provides since registration shall be done only in the unit of registration under which the birth or death occurred, WP(C).No. 32930 of 2016 7 the non-availability certificate shall not be issued from any other Registration unit. Clause 3.2 deals with the documents which can be accepted as proof in support of the application for registration of birth or death in order to ensure that there is no duplication of registration or multiple registrations and such certificates/documents in proof of the same shall be produced by the applicants. It is stated that ration card, school records, voters list, election identity card etc would be accepted as proof. It provides that in case the applicant is unable to produce any document to prove the birth place, non- availability certificate shall be issued only after enquiry through Police. The registrar shall, on being satisfied that the birth occurred within the jurisdiction of the Panchayat/Municipality, shall issue a non-availability certificate. Clause 3.6 provides that the person who was responsible to get the birth registered, shall file an affidavit attested before a notary public or an authorised officer. Apart WP(C).No. 32930 of 2016 8 from that the applicant shall explain the delay in registration along with the details regarding the birth, duly attested before the Notary public or a gazetted officer in State service.
7. The 3rd respondent has not filed any counter affidavit. The learned Counsel for the 3 rd respondent argued that passport can be accepted as proof of identity only and not for place of birth and that certificate was not issued since no details could be verified from the address given by the petitioner.
8. It is also pertinent to note that the place of birth of petitioner's mother is recorded as Peruvamboor in Ext.P1 and that of petitioner as Perumbavoor.
9. The learned Counsel for the petitioner submits that the request of the petitioner is for a non- availability certificate. It is her case that her birth is not registered with the Municipality or anywhere else. Petitioner has studied in Tamil Nadu as her family was settled there. The school records do WP(C).No. 32930 of 2016 9 not provide for any entry as to place of birth.
10. On consideration of the contentions raised on both side, it is seen that the reasons for delay in registration are not explained in Ext.P4 affidavit or in a separate affidavit as provided in clause 3.6 of Ext.P7 circular. Therefore, when the Municipality could not find that petitioner's birth is not registered with it or that it is registered with any other unit, there cannot be any impediment in issuing a non-availability certificate, after getting an affidavit from petitioner as to the non-registration of birth explaining the delay in registration, as well as non-availibilty of any documents like voters list, ration card, etc.
11. In the above circumstances of the case it is not necessary to go into the question whether passport can be accepted as valid proof towards place of birth.
12. Therefore petitioner shall see that an affidavit as provided in clause 3.6 of Ext.P7 circular is filed before the 3rd respondent, explaining the WP(C).No. 32930 of 2016 10 delay as well as the fact that the birth is not registered any where else.
On receipt of such an affidavit, the 3rd respondent shall issue a non-availability certificate to the petitioner within a further period of three weeks.
This writ petition is disposed of,
accordingly.
Sd/-
P.V.ASHA
JUDGE
ww
WP(C).No. 32930 of 2016
11
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT-P1: TRUE COPY OF THE RELEVANT PAGE OF THE
PASSPORT OF THE MOTHER OF THE PETITIONER. EXHIBIT-P2: TRUE COPY OF THE RELEVANT PAGE OF PASSPORT OF THE PETITIONER.
EXHIBIT-P3: TRUE COPY OF THE APPLICATION GIVEN BY THE PETITIONER.
EXHIBIT-P4: TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE MOTHER OF THE PETITIONER ON 27.10.2014. EXHIBIT-P5: TRUE PHOTOSTAT COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE ISSUED BY THE GOVT.OF MADRAS.
EXHIBIT-P6: TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 06.02.2015.
EXHIBIT-P7: TRUE PHOTOSTAT COPY OF THE CIRCULAR NO.B1/4356/2015/TVM DATED 07.02.2015. EXHIBIT-P8: TRUE PHOTOSTAT COPY OF THE ORDER DATED 15.06.2015 OF THE ELECTION COMMISSION OF INDIA.
EXHIBIT-P9: TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 12.02.2015.
EXHIBIT-P10: TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 23.02.2015.