Kerala High Court
Kochutreesa R vs The Secretary on 15 July, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942
WP(C).No.3981 OF 2020(W)
PETITIONER/S:
KOCHUTREESA R, AGED 33 YEARS
W/O.JOSEPH ANTONY, MULAKKARA HOUSE,
CHANGANATTAZHIKOM, ERAVIPURAM, KOLLAM
DISTRICT, PIN-691011.
BY ADVS.
SRI.PRATHEESH.P
SMT.S.REKHA KUMARI
SMT.S.SEETHA
SMT.ANJANA KANNATH
RESPONDENT/S:
1 THE SECRETARY, KOLLAM CORPORATION
KOLLAM DISTRICT-691001.
2 THE KOLLAM CORPORATION,
CORPORATION BUILDING, KOLLAM DISTRICT-691001,
REPRESENTED BY ITS SECRETARY.
3 THE REGISTRAR OF BIRTHS AND DEATHS,
KOLLAM CORPORATION, KOLLAM, PIN-691001.
R1-3 BY SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM
MPT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.07.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
W.P.(C). No. 3981 of 2020
JUDGMENT
The petitioner, who is a resident of Eravipuram at Kollam District, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to consider and issue birth certificate to the petitioner based on Ext.P1 Secondary School Leaving Certificate issued by the Board of Public Examination, Kerala; Ext.P2 marriage certificate dated 09.10.2009 issued by the Registrar of Marriages (Common), Kollam Corporation; and Ext.P3 Indian Passport bearing No.M8148121. The petitioner has also sought for a writ of mandamus commanding the 3rd respondent Registrar of Births and Deaths, Kollam Corporation to issue birth certificate in a time bound manner, enabling the petitioner to go for higher studies, without any hindrance.
2. On 12.02.2020, when this writ petition came up for admission, the learned Standing Counsel for Kollam Municipal Corporation took notice on admission for the respondents and sought time to get instructions.
-3-W.P.(C). No. 3981 of 2020
3. On 25.02.2020, when this writ petition came up for consideration, this Court passed the following order:
"Sri.M.K.Chandramohan Das, the learned Standing Counsel for Kollam Municipal Corporation has taken notice for all the respondents. Service complete.
2. The 3rd respondent-Registrar of Births and Deaths of the Kollam municipal Corporation, Kollam will immediately apprise this Court, as to whether the birth of the petitioner has been registered in the register of births and deaths maintained by the said 3rd respondent in the Kollam Municipal Corporation and if not, as to whether the application has now been received for registration of the birth of the petitioner as referred to in Ext.P-5 receipt dated 07.12.2019 and also as to the present stage of the consideration of the said application. Factual instructions on the abovesaid aspects should be clearly provided by the respondents by the next posting date.
List on 03.03.2020."
4. Going by the averments in the writ petition, the date of birth of the petitioner entered in Ext.P1 SSLC certificate is 15.05.1987. The said date of birth finds place in Ext.P2 marriage certificate, Ext.P3 passport and Ext.P4 PAN card. After completing B.Sc. Nursing, the petitioner applied for -4- W.P.(C). No. 3981 of 2020 higher education abroad. The petitioner was directed to produce the birth certificate issued by the Local Self Government Institution. The petitioner approached the 3 rd respondent for birth certificate and remitted search fee, as evident from Ext.P5 receipt dated 07.12.2019. Since the petitioner was required to produce entry from the birth register maintained at the Government Victoria Hospital, Kollam, she had approached the Superintendent of that hospital. The petitioner was informed vide Ext.P6 communication dated 13.01.2020 that the birth of a child born to Rocky (Jose)/Sinitha couple on 15.05.1987 is not recorded in the hospital register.
5. A counter affidavit has been filed on behalf of the respondents, in which it is stated that the application made by the petitioner for birth certificate was received in the office, on 07.12.2019. Since the birth registration mentioned in the application could not be located, search was carried out from three years prior to the date of birth mentioned in that application, after collecting search fee. No entry could be -5- W.P.(C). No. 3981 of 2020 found that a baby girl was born to Rocky (Jose)/Sintha couple on 15.05.1987 at the Government Victoria Hospital, Kollam, as mentioned in the application for issuance of birth certificate. As per clause (b) of sub-section (1) of Section 8 of the Registration of Births and Deaths Act, 1969, it is the responsibility of the hospital authorities to report all births and deaths to the concerned local authority. Therefore, vide letter dated 28.12.2019, the Superintendent of Victoria hospital was requested to provide necessary documents relating to the birth of the petitioner, since her birth has taken place at that hospital. Based on that request, the petitioner obtained Ext.P6 reply from the Superintendent of that hospital, as per which, her birth is not recorded in the hospital register. In such circumstances, the 3rd respondent is not in a position to issue a birth certificate.
7. The Registration of Births and Deaths Act, 1969 was enacted by the Parliament to provide for the regulation of registration of births and deaths and for matters connected therewith. The said Act came into force in the whole of the -6- W.P.(C). No. 3981 of 2020 State of Kerala, with effect from 01.04.1970. Section 8 of the Act deals with persons required to register births and deaths. As per sub-section (1) of Section 8, it shall be the duty of the persons specified in clauses (a) to (f) to give or cause to be given, either orally or in writing, according to the best of their knowledge and belief, within such time as may be prescribed, information to the Registrar of the several particulars required to be entered in the forms prescribed by the State Government under sub-section (1) of section 16. As per clause (b) of sub-section (1) of Section 8, in respect of births and deaths in a hospital, health centre, maternity or nursing home or other like institution, the Medical Officer in charge or any person authorised by him in this behalf shall give information to the Registrar of the several particulars required to be entered in the prescribed form. As per sub-section (2) of Section 8, notwithstanding anything contained in sub-section (1), the State Government, having regard to the conditions obtaining in a registration division, may by order require that for such period as may be specified in the order, any person -7- W.P.(C). No. 3981 of 2020 specified by the State Government by designation in this behalf, shall give or cause to be given information regarding births and deaths in a house referred to in clause (a) of sub- section (1), instead of the persons specified in that clause. Section 9 of the Act deals with special provision regarding births and deaths in plantation. As per Section 12 of the Act, the Registrar shall, as soon as the registration of a birth or death has been completed, give, free of charge, to the person who gives information under Section 8 or Section 9 an extract of the prescribed particulars under his hand from the register relating to such birth or death.
8. Section 13 of the Act deals with delayed registration of births and deaths. As per sub-section (1) of Section 13, any birth of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. As per sub- section (2), any birth or death of which delayed information is given to the Registrar after thirty days, but within one year of -8- W.P.(C). No. 3981 of 2020 its occurrence, shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. As per sub-section (3), any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. As per sub-section (4) of Section 13, the provisions of this Section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.
9. Section 17 of the Act deals with search of births and deaths register. As per sub-section (1) of Section 17, subject to any rules made in this behalf by the State Government, including rules relating to the payment of fees -9- W.P.(C). No. 3981 of 2020 and postal charges, any person may cause a search to be made by the Registrar for any entry in a register of births and deaths; and obtain an extract from such register relating to any birth or death. As per the proviso to sub-section (1), no extract relating to any death, issued to any person, shall disclose, the particulars regarding the cause of death as entered in the register. As per sub-section (2) of Section 17, all extracts given under this Section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in Section 76 of the Indian Evidence Act, 1872 and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates. Section 23 of the Act deals with penalty. As per sub-section (5) of Section 23, notwithstanding anything contained in the Code of Criminal Procedure, 1898 an offence under this Section shall be tried summarily by a Magistrate.
10. In exercise of the powers conferred by Section 30 of the Registration of Births and Deaths Act, 1969 and in -10- W.P.(C). No. 3981 of 2020 supersession of the Kerala Registration of Births and Deaths Rules, 1970 the Government of Kerala, with the approval of the Central Government, made the Kerala Registration of Births and Deaths Rules, 1999. Rule 5 of the Rules deals with form, etc., for giving information of births and deaths. As per sub-rule (1) of Rule 5, the information required to be given to the Registrar under Section 8 or Section 9, as the case may be, shall be in Form Nos.1, 2 and 3 for the Registration of a birth, death and stillbirth respectively (to be collectively called the reporting forms). Information if given orally, shall be entered by the Registrar in the appropriate reporting forms and the signature/thumb impression of the informant obtained. As per sub-rule (2), the part of the reporting forms containing legal information shall be called the 'Legal Part' and the part containing statistical information shall be called the 'Statistical Part'. As per sub-rule (3), the information referred to in sub-rule (1) shall be given within twenty-one days from the date of birth, death and stillbirth.
11. Rule 9 of the Rules deals with authority for delayed -11- W.P.(C). No. 3981 of 2020 registration and fee payable therefor. As per sub-rule (1) of Rule 9, any birth or death of which information is given to the Registrar after the expiry of the period specified in Rule 5, but within thirty days of its occurrence, shall be registered on payment of a late fee of rupees two. As per sub-rule (2), any birth or death of which information is given to the Registrar after thirty days but within one year of its occurrence, shall be registered only with the written permission of the officer prescribed in this behalf and on payment of a late fee of rupees five. As per sub-rule (3), any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order of a Magistrate of the First Class or a Presidency Magistrate and on payment of a late fee of rupees ten.
12. Rule 13 of the Rules deals with fees and postal charges payable under Section 17 of the Act. As per sub-rule (1) of Rule 13, the fees payable for a search to be made, an extract or a non-availability certificate to be issued under Section 17, shall be as follows; (a) search for a single entry in -12- W.P.(C). No. 3981 of 2020 the first year for which the search is made - Rs.2/-; (b) for every additional year for which the search is continued - Rs.2/-; (c) for granting extract relating to each birth or death
- Rs.5/-; and (d) for granting non-availability certificate of birth or death - Rs.2/-. As per sub-rule (2), any such extract in regard to a birth or death shall be issued by the Registrar or the officer authorised by the State Government in this behalf in Form No.5 or, as the case may be, in Form No.6 and shall be certified in the manner provided for in Section 76 of the Indian Evidence Act, 1872. As per sub-rule (3), if any particular event of birth or death is not found registered the Registrar shall issue a non-availability certificate in Form No.10. As per sub-rule (4), any such extracts or non- availability certificate may be furnished to the person asking for it or sent to him by post on payment of the postal charges therefor.
13. The State Government issued G.O.No.124/72/ Home dated 02.08.1972 on the allocation of powers under the Kerala Registration of Births and Deaths Act and the Rules -13- W.P.(C). No. 3981 of 2020 made thereunder. As per the said order, the jurisdiction under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969 and sub-rule (3) of Rule 10 of the Kerala Registration of Births and Deaths Rules, 1970 shall be vested with the Executive First Class Magistrate (Revenue Divisional Officers) and that under Section 23 of the Act, shall be allocated to the Judicial Magistrates.
14. Section 3 of the Criminal Procedure Code, 1973 deals with construction of references. As per sub-section (4) of Section 3, where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or -14- W.P.(C). No. 3981 of 2020 cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
15. Chapter VI of the 'Handbook on Civil Registration in Kerala' published by the Chief Registrar, Kerala contains 'Quarries and Clarifications issued by the Registrar General of India'. On Querry No.48, the Registrar General of India has clarified that, in view of clause (b) of sub-section (3) of Section 4 of the Criminal Procedure Code, 1973 the functions under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969 can be exercised by an Executive Magistrate. On Querry No.56, the Registrar General of India has clarified that, in view of clause (a) of sub-section (3) of Section 4 of the Criminal Procedure Code, 1973 the power under sub-section (5) of Section 23 of the Registration of Births and Deaths Act, 1969 shall be exercisable by a Judicial Magistrate. Quarry Nos.48 and 56 (at pages 160, 161 and 164) read thus;
"48. Query: After coming into operation of the Criminal -15- W.P.(C). No. 3981 of 2020 Procedure Code, 1973 with effect from 1.4.1974 the Government of West Bengal has requested that the authority to exercise power under sub-rule (3) of Rule 10 of West Bangal Registration of Births and Deaths Rules, 1972 be given to Executive Magistrate. As only a First Class Magistrate or a Presidency Magistrate is specified in sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969 the authority can now be exercised only by a Judicial Magistrate of the First Class or a Metropolitan Magistrate and not by an Executive Magistrate. It is also for advice whether it would require amendment of the Registration of Births and Deaths Act, 1969, itself or only an amendment in sub-rule (3) of Rule 10 of the West Bengal Registration of Births and Deaths Rules, 1972 would serve the purpose of specifying the appropriate Magistrate allowed by the Criminal Procedure Code, 1973.
Clarification: Sub-section (3) of section 13 of the Registration of Births and Deaths Act, 1969 provides that in case of delay of registration of birth or death beyond one year of its occurrence the same shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the corrections of birth or death and on payment of prescribed fee. This function of verifying the corrections may involve the appreciation or sifting of evidence or -16- W.P.(C). No. 3981 of 2020 the formulation of a decision but that decision will not expose to any punishment or penalty or will not have the effect of sending any person for a trial so as to bring this function within the meaning of clause (a) of sub-section (4) of section 3 of the Criminal Procedure Code, 1973. At the most, it may be said to be quasi- judicial function. Under the Registration of Births and Deaths Act, 1969, the function under sub-section (3) of Section 13 of the said Act is treated as administrative or executive in nature. Clause (b) of sub-section (3) of Section 4 of the Criminal Procedure Code, 1973 provides that the functions which are administrative or executive in nature exercisable by a Magistrate under any law other than the Code shall be exercisable by an Executive Magistrate. In view thereof the functions under sub-section (3) of section 13 of the Registration of Births and Deaths Act, 1969 can be exercised by an Executive Magistrate."
"56. Query: section 23 of Registration of Births and deaths Act, 1969 deals with the penalties. Sub-section (5) of this Section states that an offence under this Section shall be tried summarily by a Magistrate. The point has been raised whether a case in this connection is to be launched in the court of an Executive Magistrate or of a Judicial Magistrate.
Clarification: Sub-section (4) of Section 3 of the Criminal Procedure Code, 1973 provides that where the -17- W.P.(C). No. 3981 of 2020 functions exercisable by a Magistrate under any law relate to matters which involve the appreciation, or reading of evidence or the formulation of any decision which expose any person to any punishment or penalty or detention in custody pending investigation or enquiry or trial would have the effect of sending him for trial before any court, they shall be exercisable by a Judicial Magistrate."
16. In view of clause (b) of sub-section (3) of Section 4 of the Criminal Procedure Code, 1973 the functions exercisable by a Magistrate of First Class or a Presidency Magistrate under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969, which is executive in nature, has to be exercised by an Executive Magistrate (Revenue Divisional Officer).
17. In the instant case, the birth of the petitioner is not registered with the 3rd respondent Registrar of Births and Deaths, as per the statutory mandate of sub-section (1) of Section 8 of the Registration of Births and Deaths Act, within the time limit prescribed under the provisions of the Rules made thereunder. Section 13 of the Act deals with delayed -18- W.P.(C). No. 3981 of 2020 registration of births and deaths. In view of the provisions under sub-section (3) of Section 13 of the said Act, read with sub-rule (3) of Rule 9 of the Kerala Registration of Births and Deaths Rules and clause (b) of sub-section (3) of Section 4 of the Criminal Procedure Code, the birth of the petitioner, which has not been registered within one year of its occurrence, can be registered only on an order made by the Executive Magistrate (Revenue Divisional Officer) after verifying the correctness of the birth and on payment of the prescribed fee. Similarly, in order to obtain non-availability certificate, the petitioner has to submit a request before the 3rd respondent Registrar of Births and Deaths, invoking the provisions under sub-section (1) of Section 17 of the Registration of Births and Deaths Act, after remitting the fee payable under clause (d) of sub-rule (1) of Rule 13 of the Kerala Registration of Births and Deaths Rules.
18. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145], a Three-Judge Bench of the Apex Court held that a writ -19- W.P.(C). No. 3981 of 2020 of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.
19. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and -20- W.P.(C). No. 3981 of 2020 others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.
20. In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.
21. Admittedly, the birth of the petitioner is not registered with the 3rd respondent Registrar of Births and Deaths, under sub-section (1) of Section 8 of the Registration of Births and Deaths Act. In view of the provisions under sub- section (3) of Section 13 of the said Act, the birth of the -21- W.P.(C). No. 3981 of 2020 petitioner, which has not been registered within one year of its occurrence, can be registered only on an order made by the Executive Magistrate (Revenue Divisional Officer) after verifying the correctness of the birth and on payment of the prescribed fee. Before the said authority, the petitioner has to produce the non-availability certificate in Form No.10 and other relevant documents, so as to enable that authority to conduct a proper enquiry. In the absence of any such order, the petitioner cannot seek a writ of mandamus commanding the 3rd respondent Registrar of Births and Deaths to issue certificate of birth in consonance with Exts.P1 to P3, since no mandamus can be issued to direct the 3rd respondent to do something which is contrary to law. In order to obtain non- availability certificate, the petitioner has to submit a request before the 3rd respondent Registrar of Births and Deaths, invoking the provisions under sub-section (1) of Section 17 of the Registration of Births and Deaths Act, read with sub-rule 3 of Rule 13 of the Kerala Registration of Births and Deaths Rules, after remitting the fee payable under clause (d) of sub- -22- W.P.(C). No. 3981 of 2020 rule (1) of Rule 13.
22. The learned counsel for the petitioner would place reliance on a decision of this Court in Registrar of Births and Deaths v. Thomas Jacob [2011 (3) KLT 461]. The said decision of a Division Bench of this Court was in the context of Section 15 of the Registration of Births and Deaths Act and Rule 11 of the Kerala Registration of Births and Deaths Rules, which deals with correction or cancellation of entry in the register of births and deaths, and not delayed registration of births and deaths governed by Section 13 of the said Act, read with Rule 9 of the said Rules.
23. The learned counsel for the petitioner would submit that the petitioner shall submit a proper application before the concerned Revenue Divisional Officer for registration of births and deaths, invoking the provisions under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, read with sub-rule (3) of Rule 9 of the Registration of Births and Deaths Rules.
In such circumstances, this writ petition is disposed of by -23- W.P.(C). No. 3981 of 2020 directing the petitioner to approach the concerned Revenue Divisional Officer for registration of her birth, by submitting a proper application under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, read with sub-rule (3) of Rule 9 of the Kerala Registration of Births and Deaths Rules, within one month from the date of receipt of a certified copy of this judgment and pursue that application in accordance with law.
Sd/-
ANIL K.NARENDRAN JUDGE das -24- W.P.(C). No. 3981 of 2020 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE SSLC CERTIFICATE OF THE PETITIONER IN THE YEAR 2002.
EXHIBIT P2 THE TRUE COPY OF THE MARRIAGE
CERTIFICATE ISSUED BY THE 2ND
RESPONDENT DATED 09.10.2009.
EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PAGE OF
THE PASSPORT BEARING NO.M8148121
ISSUED TO THE PETITIONER.
EXHIBIT P4 THE TRUE COPY OF THE PAN CARD BEARING
NO.FBOPK3961A.
EXHIBIT P5 THE TRUE COPY OF THE RECEIPT DATED
07.12.2019 ISSUED FROM THE 2ND
RESPONDENT.
EXHIBIT P6 THE TRUE COPY OF THE LETTER NO.MRL
70/2020 DATED 13.1.2020 ISSUED BY THE
SUPERINTENDENT, GOVT. VICTORIA
HOSPITAL, KOLLAM.