Jesinlal James and Mary Dasi Manuel v. Revenue Divisional Officer Kollam; Registrar of Births & Deaths Kollam Corporation; Secretary Perayam Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **WP(C) NO. 29149 OF 2021** ## **PETITIONERS:** 1 JESINLAL JAMES AGED 46 YEARS S/O.JAMES, BISNU NIVAS, KARIKKUZHI, PADAPPAKKARA P.O., MULAVANA VIA., KOLLAM - 691 530. 2 MARY DASI MANUEL AGED 73 YEARS W/O.JAMES, BISNU NIVAS, KARIKKUZHI, PADAPPAKKARA P.O., MULAVANA VIA., KOLLAM - 691 530. BY ADVS. SRI ANIL SIVARAMAN SMT.RAJI VINCENT ## **RESPONDENTS:** 1 REVENUE DIVISIONAL OFFICER KOLLAM, CIVIL STATION, KOLLAM - 691 503. 2 REGISTRAR OF BIRTHS & DEATHS KOLLAM CORPORATION, KOLLAM - 691 501. 3 SECRETARY PERAYAM GRAMA PANCHAYATH, MULAVANA P.O., KOLLAM - 691 503. R1 BY SRI. B.S. SYAMANTHAK, GOVT.PLEADER R2 BY ADV. SRI M.K.CHANDRAMOHANDAS ADV SRI M.R.SASITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO.29149 OF 2021** 2 ## **T.R. RAVI, J. -------------------------------------------WP(C) No. 29149 OF 2021 -------------------------------------------Dated this the 10[th] day of January, 2022** ## **JUDGMENT** The writ petition has been filed by the mother and son requesting for either a birth certificate or a certificate showing non availability of the details regarding the birth. Ext.P7 would show that the Kollam Corporation had addressed the Perayam Grama Panchayat stating that on searching the birth registers between 1970 and 1976, they could not find any registration regarding the birth of a boy child to Smt.Mary Dasy and Sri.James residing at Bisnu Nivas, Karikkuzhi, Padappakkara, on 05.01.1973 in Kollam Bensigar Hospital. It is however stated that a couple named James and Daisy James residing in Bunglavill at Kanjirakkod had a boy child on 05.01.1973 and the same was in Kollam Bensiger Hospital and that the said fact has been registered. By Ext.P8, the Perayam Grama Panchayat addressed the 2nd petitioner stating about the information received from the Kollam Corporation and directing her to file an application with the request for correcting the name of the mother from Daisy to Mary Dasy. 2. Ext.P7 letter issued by the Sub Registrar of Births and **WP(C) NO.29149 OF 2021** 3 Deaths, Kollam Municipal Corporation to the Registrar of Births and Deaths/Secretary of the Perayam Grama Panchayat says that there is no entry in the register of the Municipality regarding the birth of a boy child to Sri James and Smt.Mary Dasy residing at Bisnu Nivas, Karikkuzhi, Padappakkara on 5.1.1973. The letter further says that there is an entry regarding the birth of a boy child on 5.2.1973 to one James and Daisy James residing at Bunglavil House, Kanjirakkod. The above letter cannot be the basis for arriving at any conclusion that the entry above said relates to the birth of the 1st petitioner. The name of the mother is different and the address of the parents is also different. 3. Section 13 of the Registration of Births and Deaths Act 1969 (hereinafter referred to as the Act) and Rule 9 of the Kerala Registration of Births and Deaths Rules, 1999 (hereinafter referred to as Rules), which are the relevant statutory provisions read as follows: ## “ **S.13-Delayed Registration of Births and Deaths.-** (1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within 30 days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is **WP(C) NO.29149 OF 2021** 4 given to the registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority 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. (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 the 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. (4) The provision 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 therefore and any such birth or death may be registered during the pendency of any such action.” ## **“Rule 9. Authority for delayed registration and fee payable therefor:-** (1) 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 fee of rupees two. (2) Any birth or death of which information is given to the registrar after thirty days but within one year of its **WP(C) NO.29149 OF 2021** 5 occurrence, shall be registered only with the written permission of the officer prescribed in this behalf and on payment of late fee of rupees five. (3) Any birth or death which has not been registered within one year of its occurrence shall be registered only on an order of Magistrate of the first class or a Presidency Magistrate and on payment of late fee of rupees ten.” 4. Section 13(3) facilitates delayed registration of birth, on the basis of an order of the Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth. The manner in which the verification has to be carried out is not stated in the section. Rule 9 also does not lay down the procedure to be followed. The verification required is the factum of the birth and not regarding the "date" on which the birth took place. The function is purely executive in character and is not an adjudication of the correctness of the date of birth stated in the request for registration. **[** See **Velu v. Madathi (AIR 1992 Madras 224)]** ). In **Kausalya P.K. v. Secretary, Kaiparambu Grama Panchayat and others [ILR 2019 (3) Ker 225]** , this Court held that it is for the Magistrate of the First Class/Presidency Magistrate to make necessary verification of the correctness of birth or death. Such power and duty entrusted with the Magistrate can be exercised **WP(C) NO.29149 OF 2021** 6 only by the Magistrate. Neither the Act nor the Rules confer a power or casts a duty on respondents 2 and 3 in the writ petition to make a factual adjudication on birth or death of any person, which is sought to be registered on or after one year of the birth/death. 5. A counter affidavit has been filed on behalf of the 3rd respondent producing a report dated 16.7.2021 and circulars dated 29.4.2016 and 10.5.2017, whereby guidelines have been issued with regard to issuance of non-availability certificates. It can be seen from the report that the 1st petitioner was born to the 2nd petitioner and James on 5.1.1973 as per the records kept in the Kanjirakkod St.Antony's church. The circulars produced will show that the non-availability certificate can be rejected only if a registration which is similar as to the details in the application have been made in any of the registration units. Except for a remote likelihood of the name of the mother and the address of the parents being wrongly entered at the time of registration, there is absolutely no material to arrive at any conclusive finding that the registration relates to the birth of the 1st petitioner. 6. Since the entry referred to in Ext.P7 does not relate to the 1st petitioner, the petitioners had requested for the issuance of **WP(C) NO.29149 OF 2021** 7 a Non availability certificate stating that there are no entries regarding the registration of the birth of the 1st petitioner in the records of the respondents 2 and 3. Since the petitioners specifically contend that the birth took place in Perayam Panchayat and as the petitioner has submitted an application for Nonavailability Certificate, such application will have to be acted upon by the respondents. There is no reason to refuse grant of Non availability certificate if there are no entries that match the identity of the petitioners. The petitioners cannot be directed to apply for correction of an entry in the register to suit their convenience. In the facts and circumstances of the case, the writ petition is disposed of directing respondents 2 and 3 to issue a Nonavailability Certificate to the petitioners since the birth claimed by them is not seen registered with the 2nd respondent. The Certificate shall be issued within three weeks from the date of receipt of a certified copy of this judgment. Sd/- **T.R. RAVI JUDGE** dsn **WP(C) NO.29149 OF 2021** 8 ## **APPENDIX OF WP(C) 29149/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ONLINE SEAR RESULT FOR THE BIRTH CERTIFICATE OF THE PETITIONER. Exhibit P2 A TRUE COPY OF THE 1ST PAGE OF THE SSLC BOOK OF THE 1ST PETITIONER. Exhibit P3 A TRUE COPY OF THE LETTER FROM THE US CITIZENSHIP AND IMMIGRATION SERVICES DATED 1/12/2021. Exhibit P4 A TRUE COPY OF THE APPLICATION DATED 9/5/2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P5 A TRUE COPY OF THE LETTER DATED 16/06/2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P6 A TRUE COPY OF THE LETTER DATED 30/6/21, SUBMITTED TO THE 3RD RESPONDENT BY THE 2ND PETITIONER. Exhibit P7 A TRUE COPY OF THE LETTER FROM THE KOLLAM CORPORATION DATED 29/07/2021. Exhibit P8 A TRUE COPY OF THE LETTER FROM THE 3RD RESPONDENT DATED 10/08/2021. Exhibit P9 A TRUE COPY OF THE LETTER SUBMITTED BY THE 2ND PETITIONER DATED 27/08/2021 TO THE 3RD RESPONDENT. RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE ENQUIRY REPORT SUBMITTED ON THE BASIS OF ENQUIRY CONDUCTED DATED 16/07/2021 Exhibit R3(B) TRUE COPY OF THE CIRCULAR ISSUED BY THE PANCHAYATH DIRECTOR IN CIRCULAR NO. B134679/12 DATED 29/04/2016 Exhibit R3(C) TRUE COPY OF THE CIRCULAR NO. B115343/2017 ISSUED BY THE DIRECTOR OF PANCHAYATH TRIVANDRUM ON 10/05/2017