Krishnan C. v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 ``` ## **`WP(C) NO. 34455 OF 2022`** ## **`PETITIONER:`** ``` KRISHNAN C., AGED 65 YEARS S/O. LATE T.CHANDU NAIR, RESIDING AT SUNILAYAM, INIYANNI, IRVANNI POST. MULIYAR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT - 671 542. BY ADVS.T.MADHU C.R.SARADAMANI SHAHID AZEEZ RESHMA SANTHOSH ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL DEPARTMENT, SELF GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.` - `2 THE CHIEF REGISTRAR OF BIRTHS AND DEATHS KERALA/THE DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYATS, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 695 033.` - `3 THE DISTRICT REGISTRAR OF AND BIRTHS DEATHS, KASARAGOD/DEPUTY DIRECTOR OF PANCHAYATS, KASARAGOD, CIVIL STATION, VIDYANAGAR P.O., KASARAGOD DISTRICT - 671 123.` - `4 THE KASARAGOD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KASARAGOD MUNICIPALITY, KASARAGOD POST, KASARAGOD DISTRICT - 671 121.` - `5 THE REGISTRAR OF BIRTHS AND DEATHS, KASARAGOD MUNICIPALITY, KASARAGOD P.O., KASARAGOD DISTRICT - 671121. SC MATHEW B. KURIAN FOR R4 AND R5. GP JIMMY GEORGE` ## **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** WP(C).No.34455/2022 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.34455 of 2022** **---------------------------------------------Dated this the 28[th] day of October, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: i. Issue a writ of certiorari and quash Exhibit P4 notice dated 10/3/022 and also the Exhibit P6 notice dated 16/6/2022 issued by the fifth respondent, so as to secure the ends of justice. ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing the fifth respondent to conduct enquires on Exhibit P3 application for correction of entries in the Birth Register of the petitioner's son Sudheesh Kumar B.K. and to correct the date of birth of the petitioner's son Sudheesh Kumar B.K. as 3/11/1985 instead of 4/11/1985, add the initials of the petitioner's son to make it appear as Sudheesh Kumar B.K instead of Sudheesh Kumar and add the initials of the father's and mother's name to make it appear the father's name as Krishnan C and the mother's name as Bhavani V in the birth register as expeditiously as possible and within a time frame fixed by this Honourable WP(C).No.34455/2022 **3** Court, so as to secure the ends of justice. iii. Such other relief's as this Hon'ble Court may deem fit and proper in the circumstances of the case. **==> picture [36 x 12] intentionally omitted <==** 2. This writ petition is filed challenging Exts.P4 and P6 issued by the 5[th] respondent Municipality. As per Ext.P4, certain documents are directed to be produced by the Municipality for considering the application for correction of date of birth of the petitioner’s son. The petitioner produced the relevant documents including Ext.P2, which is the certificate issued by the General Hospital, Kasaragod in which it is stated that the office of the hospital is not able to issue the documents applied for as the documents pertaining to the birth of the baby boy born on 03.11.1985 has become unusable because of its old age. Thereafter Ext.P6 was issued by the 5[th] respondent stating that since no document from the hospital is produced, the correction of date of birth cannot be considered. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned Standing Counsel appearing for respondents 4 and 5. WP(C).No.34455/2022 **4** 4. The counsel for the petitioner submitted that in the light of Ext.P7 judgment, the directions in Ext.P6 will not stand. The Standing Counsel for the Municipality supported Ext.P6 order. 5. This Court considered the contentions of the petitioner and the respondents. A perusal of Ext.P2 will show that the hospital authority clearly stated that the records are not available. The Division Bench of this Court considered a similar issue in Ext.P7 judgment. The relevant portion of the judgment is extracted hereunder: “11. In this case, it is the case of the 1 st respondent that a mistake has been committed in recording the date of birth of his son Sri. Joshwa Thomas Jacob. To substantiate his case, he has produced Ext.P1 baptism certificate, Ext.P2 SSLC Book and Ext.P3 passport. Inspite of it, taking note of the requirements of Rule 11 (2), the learned Judge directed the 1 st respondent and his wife, being the parents of Sri.Joshwa Thomas Jacob, to submit a declaration in the form of an affidavit. The appellant has no case that the persons who are ordered to be given affidavits are not credible persons as contemplated in Rule 11 of the Rules. On the other hand, in Ext.P11, the only insistence of the appellant is that a report should be made by the WP(C).No.34455/2022 **5** hospital on whose report the birth was registered. A reading of Ext.P11 also shows that even according to the appellant, the Hospital is not functioning now. Therefore, it is virtually impossible to comply with the requirements of the circular relied on by the appellant. That apart, Section 15 of the Act and Rule 11 lays down the manner in which an application for correction is to be made. It is the settled position of law that the prescriptions in a statutory rule cannot be modified by an executive order and if a statute requires something to be done in a particular manner, it shall be done in that manner alone. Rule does not require any report from the hospital as is insisted by the Chief Registrar of Births and Deaths in the circular, and therefore, the insistence on the production of a report from the hospital, which is defunct, in the facts of this case, is a requirement which is not only illegal but also impossible of compliance and the net result would be that the respondent is deprived of his statutory right to get the mistake corrected. Therefore, in our view, the learned Judge has rightly issued the directions about the manner in which declarations are to be made and the correction is to be carried out. 12. As far as the judgment in **Registrar (Births and Deaths) v. Jayakrishnan** (2003(2) KLT 701) relied on by appellant is concerned, a reading of the judgment shows that the particulars WP(C).No.34455/2022 **6** shown in the report from the hospital did not support the request in the application for correction. It was in those circumstances that this Court rendered the judgment upholding the contention of the appellant therein, the Registrar of Births and Deaths. We are satisfied that on the facts of this case, the said judgment is of no assistance to the appellant. 13. We do not find any illegality in the judgment under appeal. Writ appeal is only to be dismissed and we do so.” 6. In the light of the above observation by the Division Bench, I think Ext.P6 will not stand and the application is to be reconsidered by the Municipality in the light of Ext.P7. Therefore, this writ petition is allowed in the following manner: 1. Ext.P6 is set aside. 2. The 5[th] respondent is directed to reconsider the application submitted by the petitioner in the light of Ext.P2 and also in the light of the observations in Ext.P7 judgment, as expeditiously as possible, at any rate, within one month WP(C).No.34455/2022 **7** from the date of receipt of a copy of this judgment. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.34455/2022 **8** ## **`APPENDIX OF WP(C) 34455/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1THE TRUE COPY OF THE BIRTH CERTIFICATE DATED 29/9/2022 ISSUED BY THE FIFTH RESPONDENT. ``` ``` Exhibit P2THE TRUE COPY OF THE COMMUNICATION DATED 18/11/2021 ISSUED BY THE SUPERINTENDENT, GENERAL HOSPITAL, KASARAGOD TO THE WIFE OF THE PETITIONER ALONG WITH THE ENGLISH TRANSLATION. ``` - `Exhibit P3 THE TRUE COPY OF THE APPLICATION DATED 4/3/2022 SUBMITTED BY THE PETITIONER AND HIS WIFE BEFORE THE FIFTH RESPONDENT FOR THE CORRECTION OF ENTRIES IN THE BIRTH REGISTER OF THEIR SON SUDHEESH KUMAR B.K ALONG WITH THE ENGLISH TRANSLATION.` - `Exhibit P4 THE TRUE COPY OF THE NOTICE DATED 10/3/2022 ISSUED BY THE FIFTH RESPONDENT ALONG WITH THE ENGLISH TRANSLATION.` - `Exhibit P5 THE TRUE COPY OF THE APPLICATION DATED MAY THE FIFTH 2022 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT ALONG WITH THE ENGLISH TRANSLATION.` - `Exhibit P6 THE TRUE COPY OF THE NOTICE DATED 16/6/2022 ISSUED BY THE FIFTH RESPONDENT ALONG WITH THE ENGLISH TRANSLATION.` ``` Exhibit P7THE TRUE COPY OF THE JUDGMENT DATED 28/6/2011 IN W.A.NO.648/2011 ON THE FILES OF THIS HONOURABLE COURT. ```