Allowed

Joji Thomas v. State Ofkerala

Kerala HC13 Feb 2012WP(C)/2914/2012

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting an application to correct a birth register entry. Citing Section 15 of the Births and Deaths Act, 1969, the court held that subordinate legislation cannot restrict the Registrar's plenary power to correct erroneous entries in birth or death registers.

What did the court decide?

The impugned order was quashed. The 4th respondent was directed to consider the correction application afresh within two weeks, adhering to formalities under Rule 11.

Joji Thomas Vs State Ofkerala — Writ and Judicial Review | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933

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WP(C).No. 2914 of 2012 (L)

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PETITIONERS:

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1. JOJI THOMAS, AGED 47 YEARS S/O. THOMAS, EDAMPURATH (H) KARIMKUNNAM P.O., THODUPUZHA

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2. THOMAS J. EDAMPURAM AGED 20 YEARS, S/O. JOJI THOMAS, EDAMPURATH (H) KARIMKUNNAM P.O., THODUPUZHA

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BY ADVS.SRI.K.S.HARIHARAPUTHRAN

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SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.DIPU JAMES

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RESPONDENTS:

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1. STATE OF KERALA

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REPRESENTED BY SECRETARY

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LOCAL SELF GOVERNMENT DEPARTMENT

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SECRETARIAT, TRIVANDRUM-695001.

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2. DIRECTOR OF PANCHAYATHS

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DIRECTORATE OF PANCHAYATHS, VIKAS BHAVAN

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THIRUVANANTHAPURAM-695001.

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3. ETTUMANOOR GRAMA PANCHAYAT REPRESENTED BY SECRETARY KOTTAYAM TALUK-686631

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4. THE REGISTRAR OF BIRTHS AND DEATHS ETTUMANOOR GRAMA PANCAHAYAT, KOTTAYAM TALUK-686631.

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BY ADV. SRI.S.SHANAVAS KHAN, SC BY GOVERNMENT PLEADER SRI.MUHAMMED SHAFI M.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-022012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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STK

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WP(C).No. 2914 of 2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: TRUE COPY OF THE BIRTH CERTIFICATE DATED 19.10.1992 OF THE 2ND PETITIONER.

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P2: TRUE COPY OF THE S.S.L.CERTIFICATE OF THE 2ND PETITIONER.

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P3: TRUE COPY OF ORDER NO.A4-10132/11 DATED 20.09.2011

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P4: TRUE COPY OF JUDGMENT DATED 02.11.2011 IN W.P.(C) NO.25578 OF 2011.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

P A TO JUDGE

STK

C.K. ABDUL REHIM, J.

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W.P.(c) No. 2914 OF 2012-L

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DATED THIS THE 13^th DAY OF FEBRUARY, 2012

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J U D G M E N T

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The 2^nd petitioner is the son of the 1^st petitioner. The 2^nd petitioner through the 1^st petitioner had applied for correction in Ext.P1 Birth Certificate, to the extent of the discrepancy in his name entered in the Birth Register as “Thomaskutty” instead of “Thomas J. Edampuram”. In support of the application seeking correction the petitioners have produced the Secondary School Leaving Certificate which indicates the name of the 2^nd petitioner as “Thomas J. Edampuram”. But the application was rejected by the 4^th respondent through Ext.P3 stating the reason that the correction cannot be allowed since the application is submitted after joining of the 2^nd petitioner in the school, which cannot be permitted as per Circular No.20741/2009 dated 08-12-2010 issued by the Director of Panchayat.

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W.P.(c) No. 2914/2012

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-2-

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Petitioners seek to quash Ext.P3 and is also seeking directions to the respondents to effect necessary correction in the Birth Register as applied for. This court in the decision reported in Shipna Jose V. Registrar (2010 (2) KLT 978) had considered validity of the Government Circular issued in this regard (Circular No.68413/RD3/09 dated21-01-2010). Considering the contents of the said circular, this court observed that such a circular was issued based on a decision rendered by this Court in Girijan V. Registrar of Births and Deaths (2003 (2) KLT 22) . But it was found that in the said judgment this court has not ordered to issue any clarification with respect to correction in the entries in the Birth Registers. It is observed that, the reported judgment was wrongly relied upon while issuing the Circular in question. Therefore it was held that circular will not stand in the way Registrars considering the application for correction of name in the Birth register. Referring to the decision in Chalakudy Municipality V. Malavika (2009 (4) KLT 714 (DB) it was observed that, power under Section 15 of Births and Deaths Act, 1967

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W.P.(c) No. 2914/2012 -3-

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allows the Registrar to correct any wrong entries in the Birth Register. In the decisions in Vargheese V. Director of Panchayats (2008 (2) KLT 278 and Sivanandan V. Registrar of Births and Deaths (2007 (3) KLT 721) , referring to Malavika's case this court observed as follows.-

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“The law does not contemplate a person to have a wrong name in the register or a mistaken identity in the register or to have wrong particulars regarding the date, place etc. in the register of birth or death. It is also to be noted that the Registration of Births and Deaths Act, 1969 does not create or extinguish any right; the Act is intended only to regulate the process and procedures of registration of births and deaths and the correction of any such entry. Once the Act permits such correction either in form or substance, the Rules are intended only to regulate the procedure and not to prohibit such correction.”

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On the basis of the dictum as above, referring to

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Girijan's cases (cited supra) and the Government circular dated 21-01-2010, this court observed that the power vested on the Registrar under section 15 cannot be fettered

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W.P.(c) No. 2914/2012 -4-

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in any manner. In Malavika's case (cited supra) this court held that subordinate legislation by way of rules, notifications, circulars etc. cannot restrict the scope of the plenary legislation and the scope of Section 15. Once the Act permits such correction either in the form or substance, it can only enable such correction and not to prohibit. Section 15 only contemplates that the Registrar should be satisfied as to the mistake in the entry. The Section clearly states that such correction can be made either in the form or substance. Rule 11 would also indicate that once the Registrar is moved for correction of any entry in the Register of Birth and Deaths, it is mandatory on his part to enquire into the matter and once he is satisfied that the entry is erroneous, the rule mandates that the correction should be made as required under Section 15. Rule 11 also prescribe the procedure and enables the party seeking such correction to a substantiate the mistake through specific method contemplates under sub Rule (2).

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Considering the legal positions stands settled as above, I am of the view that Ext.P3 will not stand the text of

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W.P.(c) No. 2914/2012

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-5-

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legal sustainability. Hence the same is liable to be quashed. Therefore the writ petition is allowed and Ext.P3 is hereby quashed.

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The 4^th respondent is directed to consider the application afresh and to allow the correction sought for, if there is convincing materials to the effect that the 2^nd petitioner was living in the name as “Thomas J. Edampuram” and if the name of the 2^nd petitioner in the official records is shown as “Thomas J. Edampuram”. The 4^th respondent can also insist compliance of formalities as contemplated under Rule 11 (2), in this regard. The disposal of the application shall be made at the earliest possible, at any rate within a period of 2 weeks from the date of receipt of a copy of this judgment, if necessary after affording an opportunity of personal hearing to the petitioners.

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Sd/- C.K. ABDUL REHIM, JUDGE.

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AMG

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True copy

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P.A to Judge

Joji Thomas v. State Ofkerala

Case brief

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Joji Thomas v. State Ofkerala

Case brief

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