SANTHI BINU v. THIRUVALLA MUNICIPALITY & Ors.

C.K. ABDUL REHIM, J.------------------------------------WP(C). No. 3069 of 2012 ------------------------------------------Dated this the 13th day of February, 2012JUDGMENTThe petitioner submitted Exhibit P2 application beforethe 2nd respondent seeking correction of an entry in theBirth 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 wasrejected through Exhibit P3 letter issued by the 2ndrespondent stating the reason that, as per Clause 7.10 ofthe Circular of the Chief Registrar (Director of Panchayat)No. B 1 20741/2009 dated 08.12.2010 no correction byexpansion of initials can be allowed.2. Learned counsel for the petitioner relied on thedecision of this court in Chalakkudy Municipality VMalavika 2009(4) KLT 714 wherein it is held that theregistration of Birth and Death Act, 1969 does not create orextinguish any rights but the Act is intended only to WP(C). No. 3069 of 20122regulate the process and procedures of registration of birthand deaths. Once the Act permits correction either in formor substance, the Rules are intended only to regulate theprocedure and not to prohibit such corrections. Anysubordinate legislation by way of Rules, notifications,circulars etc cannot restrict the scope of the plenarylegislation. Conversely they cannot expand the scopeeither, so far as the correction of the entries in the registerof birth or death is concerned. Section 15 onlycontemplates that, the Registrar should be satisfied as tothe mistake in the entry. The Section clearly states that thecorrection can either be in the form of substance. Rule 11would also indicate that once the Registrar is moved forcorrection of any entry in the register of birth or death, it ismandatory on his part to enquire into the matter and oncehe is satisfied that the entry is erroneous, the rule mandatesthat the correction should be made as required underSection 15 of the Act. WP(C). No. 3069 of 201233. The above said decision refers to a circular issuedby the Registrar dated 24.03.1997. In a subsequentdecision of this Court in Shipna Jose V Registrar (2010(2) KLT 978) a similar circular issued by the StateGovernment No. 68413/RD 3/2009 dated 21.01.2010 wasalso dealt with. This Court specifically observed that thesaid circular, which is issued based on the directionscontained in another decision of this Court in Girijan VRegistrar of Births and Deaths (2003 (2) KLT 22), doesnot contain instructions in accordance with the directionsand specifications contained in the judgment, and it is onlyon the basis of a misinterpretation of the directionscontained in the said judgment that the circular was issued. 4. The question to be considered is as to whether anyrestriction can be imposed in the exercise of the powerconferred on the Registrar by virtue of Section 15 of theRegistration of the Birth and Death Act and Rule 11 of theRegistration of Birth and Death Rules. Going by the WP(C). No. 3069 of 20124dictum contained in the above said judgments, it is clearthat the subordinate legislation by way of Rules,notifications, circulars etc, cannot curtail the scope of theplenary legislation. The curtailment of power vested on theRegistrar by virtue of Section 15 and Rule 11, cannot in anymanner be sustained if such restrictions are imposedthrough circulars issued either by the Government or by theChief Registrar. 5. Sri. Subhash Chand, learned standing counselappearing on behalf of the respondents had made availablefor my perusal a copy of the circular referred to in ExhibitP3, and referred to Clause 7.10, thereof. It is contentedthat even if a change of name is effected by publication inthe Official Gazette, the Registrar is not bound to endorsecorresponding changes in the Birth Register. It is on thebasis of the directions issued by the Registrar General ofIndia that such restrictions are imposed. According to himas long as the circular remains valid, the 2nd respondent is WP(C). No. 3069 of 20125bound to comply with, and the change sought for cannot beeffected. 6. On facts, contention of the petitioner is that eventhough the name of her son was included in the Register as'Ben. B. Jacob,' her son had joined the school under thename as 'Ben Binu Jacob' and in all other records his nameis reflected as Ben Binu Jacob. Therefore the entry of herson's name in the Birth Register is erroneous, which needbe corrected. On the basis of the request, it is for theRegistrar to conduct an independent enquiry as to whetherthe official name of the person is different from that of theentry contained in the Birth Register. If through convincingproof it is satisfied to the Registrar that the person inquestion lived and is living in a different name, the entrycontained in the Birth Register can be considered aserroneous, and it is for the Registrar to make suchcorrections. The power vested under the relevantprovisions need be exercised independently based on the WP(C). No. 3069 of 20126enquiry and on the basis of satisfactory proof. In the caseat hand, the application stands rejected only on referringto Clause 7.10 of the circular. Considering the facts inview of the settled legal position, I am of the view that the2nd respondent has not exercised power vested on him in aproper and legal manner, which need be exercisedindependently. 7. Under the above mentioned circumstances, the writpetition is allowed and Exhibit P3 is hereby quashed. The2nd respondent is directed to reconsider Exhibit P2application and to dispose the same, after affording areasonable opportunity to the petitioner to producematerials and evidence in support of her claim. TheRegistrar should conduct a proper enquiry with opportunityof personal hearing afforded to the petitioner, in order toarrive at a conclusion as to whether the entry in questioncontained in the Register of Birth is erroneous or not. Anappropriate decision based on such enquiry shall be taken WP(C). No. 3069 of 20127at the earliest possible, at any rate within a period of onemonth from the date of receipt of a copy of this judgment.Needless to say that the petitioner can be requested tosatisfy the procedural formalities as contemplated underRule 11 (2) for affecting such correction. The conclusion asdirected above shall be taken untrammeled by instructionscontained in any of the circulars and necessary correctionshall be effected if the conclusion of the Registrar is on thepositive. C.K. ABDUL REHIM, JUDGEPn