Allowed

Santhi Binu v. Thiruvalla Municipality

Kerala HC13 Feb 2012WP(C)/3069/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing the rejection of an application to correct a child's name in the birth register. The Court held that Government circulars cannot restrict the Registrar's statutory power under Section 15 to correct erroneous entries. It directed the Registrar to conduct a proper enquiry with a personal hearing.

What did the court decide?

Writ petition allowed; Exhibit P3 quashed; 2nd respondent directed to reconsider application with a proper enquiry and personal hearing within one month.

Santhi Binu Vs Thiruvalla Municipality — Civil Procedure and Limitation | 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. 3069 of 2012 (G)

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PETITIONER(S) :

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SANTHI BINU, AGED 36 YEARS , W/O.BINU JACOB, THYKURINJIYIL HOUSE , VADAVATHOOR P.O., KOTTAYAM-10.

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BY ADVS.SRI.SANTHAN V.NAIR SRI.V.GOPIKRISHNA SRI.V.V.MITHUN

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RESPONDENT(S) :

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1. THIRUVALLA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THIRUVALLA. PIN - 689 101.

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2. THE REGISTRAR REGISTRATION OF BIRTH & DEATH, THIRUVALLA MUNICIPALITY - 689 101.

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BY SRI.S.SUBHASH CHAND, SC.THIRUVALLA MUNiCiPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMV

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WP(C).No. 3069 of 2012 (G)

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APPENDIX

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PETITIONER(S) EXHIBITS :

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P1. : COPY OF THE BIRTH CERTIFICATE OF BEN B JACOB. P2. : COPY OF THE APPLICATION DATED 21.12.2011 SUBMITTED BEFORE THE REGISTRAR. P3. : COPY OF THE REPLY DATED 22.12.2011 OF THE REGISTRAR.

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RESPONDENTS' EXHIBITS : NIL

/TRUE COPY/

P.A.TO JUDGE

AMV

C.K. ABDUL REHIM, J.

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WP(C). No. 3069 of 2012

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Dated this the 13^th day of February, 2012

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JUDGMENT

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The petitioner submitted Exhibit P2 application before the 2^nd respondent seeking correction of an entry in the Birth Register of her son, regarding the name of her son. It is stated that the name of her son entered as 'Ben B. Jacob' is erroneous and his real name is 'Ben Binu Jacob', and it need be corrected accordingly. The application was rejected through Exhibit P3 letter issued by the 2^nd respondent stating the reason that, as per Clause 7.10 of the Circular of the Chief Registrar (Director of Panchayat) No. B 1 20741/2009 dated 08.12.2010 no correction by expansion of initials can be allowed.

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Learned counsel for the petitioner relied on the decision of this court in Chalakkudy Municipality V Malavika 2009(4) KLT 714 wherein it is held that the registration of Birth and Death Act, 1969 does not create or extinguish any rights but the Act is intended only to

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WP(C). No. 3069 of 2012

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regulate the process and procedures of registration of birth and deaths. Once the Act permits correction either in form or substance, the Rules are intended only to regulate the procedure and not to prohibit such corrections. Any subordinate legislation by way of Rules, notifications, circulars etc cannot restrict the scope of the plenary legislation. Conversely they cannot expand the scope either, so far as the correction of the entries in the register of birth or death is concerned. Section 15 only contemplates that, the Registrar should be satisfied as to the mistake in the entry. The Section clearly states that the correction can either be in the form of substance. Rule 11 would also indicate that once the Registrar is moved for correction of any entry in the register of birth or death, 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 of the Act.

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WP(C). No. 3069 of 2012

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The above said decision refers to a circular issued by the Registrar dated 24.03.1997. In a subsequent

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decision of this Court in Shipna Jose V Registrar (2010 (2) KLT 978) a similar circular issued by the State Government No. 68413/RD 3/2009 dated 21.01.2010 was also dealt with. This Court specifically observed that the said circular, which is issued based on the directions contained in another decision of this Court in Girijan V Registrar of Births and Deaths (2003 (2) KLT 22), does not contain instructions in accordance with the directions and specifications contained in the judgment, and it is only on the basis of a misinterpretation of the directions contained in the said judgment that the circular was issued.

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The question to be considered is as to whether any restriction can be imposed in the exercise of the power conferred on the Registrar by virtue of Section 15 of the Registration of the Birth and Death Act and Rule 11 of the Registration of Birth and Death Rules. Going by the

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WP(C). No. 3069 of 2012

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dictum contained in the above said judgments, it is clear that the subordinate legislation by way of Rules, notifications, circulars etc, cannot curtail the scope of the plenary legislation. The curtailment of power vested on the Registrar by virtue of Section 15 and Rule 11, cannot in any manner be sustained if such restrictions are imposed through circulars issued either by the Government or by the Chief Registrar.

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Sri. Subhash Chand, learned standing counsel appearing on behalf of the respondents had made available for my perusal a copy of the circular referred to in Exhibit P3, and referred to Clause 7.10, thereof. It is contented that even if a change of name is effected by publication in the Official Gazette, the Registrar is not bound to endorse corresponding changes in the Birth Register. It is on the basis of the directions issued by the Registrar General of India that such restrictions are imposed. According to him as long as the circular remains valid, the 2^nd respondent is

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WP(C). No. 3069 of 2012

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bound to comply with, and the change sought for cannot be effected.

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On facts, contention of the petitioner is that even though the name of her son was included in the Register as 'Ben. B. Jacob,' her son had joined the school under the name as 'Ben Binu Jacob' and in all other records his name is reflected as Ben Binu Jacob. Therefore the entry of her son's name in the Birth Register is erroneous, which need be corrected. On the basis of the request, it is for the Registrar to conduct an independent enquiry as to whether the official name of the person is different from that of the entry contained in the Birth Register. If through convincing proof it is satisfied to the Registrar that the person in question lived and is living in a different name, the entry contained in the Birth Register can be considered as erroneous, and it is for the Registrar to make such corrections. The power vested under the relevant provisions need be exercised independently based on the

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WP(C). No. 3069 of 2012

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enquiry and on the basis of satisfactory proof. In the case at hand, the application stands rejected only on referring to Clause 7.10 of the circular. Considering the facts in view of the settled legal position, I am of the view that the 2^nd respondent has not exercised power vested on him in a proper and legal manner, which need be exercised independently.

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Under the above mentioned circumstances, the writ petition is allowed and Exhibit P3 is hereby quashed. The 2^nd respondent is directed to reconsider Exhibit P2 application and to dispose the same, after affording a reasonable opportunity to the petitioner to produce materials and evidence in support of her claim. The Registrar should conduct a proper enquiry with opportunity of personal hearing afforded to the petitioner, in order to arrive at a conclusion as to whether the entry in question contained in the Register of Birth is erroneous or not. An appropriate decision based on such enquiry shall be taken

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WP(C). No. 3069 of 2012

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at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Needless to say that the petitioner can be requested to satisfy the procedural formalities as contemplated under Rule 11 (2) for affecting such correction. The conclusion as directed above shall be taken untrammeled by instructions contained in any of the circulars and necessary correction shall be effected if the conclusion of the Registrar is on the positive.

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C.K. ABDUL REHIM, JUDGE

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Santhi Binu v. Thiruvalla Municipality

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Santhi Binu v. Thiruvalla Municipality

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