Prakash Francis Manjaly vs Secretary
2021 Latest Caselaw 15134 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                   &
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
                           WA NO. 915 OF 2020
 AGAINST THE JUDGMENT IN WP(C) 2925/2020 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

            PRAKASH FRANCIS MANJALY,
            AGED 30 YEARS,
            S/O. FRANCIS M.D., MANJALY HOUSE,
            SOUTH THANISSERY, THANISSERY DESOM,
            IRINJALAKUDA P.O., THRISSUR DISTRICT-680 121.

            BY ADV SHEEJO CHACKO


RESPONDENTS/RESPONDENTS:

    1       SECRETARY,
            REGISTRAR OF BIRTHS AND DEATHS,
            KUZHOOR GRAMA PANCHAYAT, KERALA, PIN-680734.

    2       ASSISTANT SECRETARY AND SUB REGISTRAR OF BIRTH AND
            DEATH, KUZHOOR GRAMA PANCHAYAT,
            KUZHOOR P.O., PIN-680734.

    3       KUZHOOR GRAMA PANCHAYAT,
            KUZHOOR P.O., REPRESENTED BY ITS SECRETARY, PIN-680734.

            BY ADVS.SRI.SIJI ANTONY
                    SRI.K.M.FRANCIS


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.915 of 2020
                                        2




                                  JUDGMENT

Dated this the 20th day of July, 2021

S.Manikumar, C.J.

Instant writ appeal is directed against the judgment in W.P.

(C)No.2925 of 2020 dated 3.02.2020, by which the writ court declined to

quash Exhibit P9 order dated 29.11.2019 passed by the Assistant

Secretary and Sub Registrar of Births and Deaths, Kuzhoor Grama

Panchayat. Writ court also declined to direct Secretary, Registrar of Births

and Deaths, Kuzhoor Grama Panchayat, respondent No.1, to reconsider

Exhibit P5 application submitted by the appellant/writ petitioner dated

28.11.2019 and to issue birth certificate, correcting the name of the writ

petitioner, in terms of Exhibit P7 gazette notification, Exhibit P2 passport

and Exhibit P4 Aadhaar card respectively.

2. Short facts leading to the filing of the writ petition are as

hereunder:

Petitioner filed Exhibit P5 application before the Secretary, Registrar of Births

and Deaths, Kuzhoor Grama Panchayat, respondent No.1, for correcting his

name as "Prakash Francis Manjaly" instead of "Prakash Francis" in Exhibit P1

birth certificate. Name of the petitioner is shown as "Prakash Francis

Manjaly" in Exhibit P2 passport, Exhibit P3 Pan Card and in Exhibit P4 Aadhar

Card.

W.A.No.915 of 2020

Moreover, petitioner has published Exhibit P7 gazette notification, in

addition to the affidavit attested by jurisdictional Magistrate and notarized

affidavit of the parents. The future career prospects of the petitioner will be

severely affected, if correction is not carried out, as prayed in Exhibit P2

application. As a matter of fact, petitioner is married a lady working at

Switzerland. For processing visa of the petitioner to Switzerland, the entries

in Exhibit P1 Birth Certificate and Exhibit P2 passport should tally each other.

Hence this writ petition.

3. Grounds, based on which the impugned judgment is assailed,

are as hereunder:

A. The learned single judge lost sight of the fact that the Exhibit P5 application was filed jointly by father and mother and there is no circumstance to suspect the bonafides of the request of the petitioner especially when it is published in Kerala Gazette as evident from Exhibit P7.

B. Due weightage was not given to the Exhibit P8 affidavit sworn before jurisdictional magistrate and P6 notarized affidavit filed by the appellants.

C. The Registrars are given powers to make necessary corrections after ensuring that this provision has not been misused. The Registrar has got powers to make corrections on the basis of material documents produced before him by the appellant. D. There cannot be 2 types of certificates with the appellant, one with an erroneous entry and other with a corrected entry.

E. Exhibit P5 application for correction ought to have been allowed, when it is proved to the satisfaction of the Registrar by producing Exhibit P2 to P4 and P6 to P8 explaining the nature of error and W.A.No.915 of 2020

true facts of the case.

F. The law does not contemplate the person to have wrong name in the register or a mistaken identity in the register. G. The facts are not disputed for seeking a declaration before the civil Court and authentic records are produced to carry out a correction.

H. It reminds an established fact that the appellants name is Prakash Francis Manjaly and Same is shown correctly in the Exhibit P2 passport, Exhibit P3 Pan Card and Exhibit P4 Aadhar Card of the Appellant.

I. The appellant has duly produced the Exhibit P7 gazette notification published in Kerala Gazette on 8/10/2019 and it has been duly published declaring that the change will come into effect in all records related to the appellant.

J. The learned single judge should have noted that the pleas for correction are genuine and bonafide and the 1 st respondent should have been guided by the golden rule by exercising his discretion by following the well known principles of justice, equity and good conscience.

K. The reasons stated in judgment for refusing the prayer are not legal and same is only to be set aside.

L. The law laid down in 2009 (4) KLT 714 was not considered. The principle laid down in pars 4 is as follows:- '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 Registration of births and deaths. It is also to be noted that the Registration of Births and Deaths Act, 1969 does not create or extinguish by right; the Act intended only to regulate the process and procedures of registration of births and deaths and the correction of any such W.A.No.915 of 2020

entry. Once the Act permits such correction earlier in form or substance, the Rules are intended only to regulate the procedure and not to prohibit such correction.

4. Earlier, when the matter came up for hearing, we directed the

learned counsel for the appellant to produce the copy of the application

submitted for carrying out the correction. Responding to the above, the

appellant has filed I.A.No.1 of 2021 to accept the additional document,

"application submitted for correction, produced as Exhibit P10". We are

satisfied with the reasons assigned in I.A.No.1 of 2021. Therefore

I.A.No.1 of 2021 is allowed and application dated 31.1.2019 is taken on

record as Exhibit P10.

5. Heard Ms.Laya Simon, learned counsel for the appellant and

Mr.Siji Antony, learned counsel for the respondents.

6. From the material, it could be deduced that in the Birth

Certificate issued on 7.12.2018 under Section 17 of the Registration of

Births and Deaths Act, 1961 and Rule 13 of the Kerala Registration of

Births and Deaths Rules, 1999 and in the passport issued on 26.10.2019,

the name of the appellant is shown as "PRAKASH FRANCIS". The name

of the appellant, as entered in the Aadhaar Card is "Prakash Francis

Manjaly".

7. Before the Registrar of Births and Deaths, Kuzhoor Grama W.A.No.915 of 2020

Panchayat, the appellant has submitted Exhibit P5 application dated

28.11.2019, which reads thus:

"Application submitted before the Hon'ble Registrar of Births and Deaths, Kuzhoor Grama Panchayat by Francis M.D., S/o. Devassy residing at Chalakudy Taluk, Kakulassery Village, Kakulassery Desom, Manjali House along with his wife Reetha.

My son Prakash Francis Manjaly was born on 25/1/1990 at Thanissery and his birth was registered as Register number 1/1990 dated 3/2/1990 and his birth certificate was received on 14/2/2019 showing his name as Prakash Francis. As per the documents like Aadhar Card, Passport etc his name is Prakash Francis Manjaly. The gazette publication dated 8th October 2019 No. 40- volume VIII my son's name is notified as Prakash Francis Manjaly. My son's wife Meenu Thattil is employed abroad. He wanted to reside with his wife abroad and also for his visa processing and for future PR, citizenship etc. the birth certificate is necessary. So the name recorded in the birth certificate as PRAKASH FRANCIS has to be changed as Prakash Francis Manjaly as shown in other documents. We Undertake that we will never seek any other further correction in the name of our son. So we humbly request to receive our Application and to correct the name of our son which is wrongly written in his birth Cer-tificate as Prakash Francis to Prakash Francis Manjaly in his birth Certificate as per the other relevant documents.

     South Thanissery                       Yours Sincerely,
                                              Francis. M.D.
                                                 Reetha."

8. Along with the application, he has also filed an affidavit (Exhibit W.A.No.915 of 2020

P6) which reads thus:

"AFFIDAVIT Before the respected Registrar for Births and Deaths, Kuzhoor Grama Panchayat. Application submitted by Francis M.D. S/o. Devassy and his wife Reetha residing at Manjaly house Chalakudy Taluk, Kakkulissery Village, South Thanishery Desom.

Our son Prakash Francis Manjaly was born on 25/1/1990 at Thanishery and his birth certificate was received with registration number 01/1990 dated 3/2/1990. In the birth Certificate received by our son, the name shown in the place of name is written as Prakash Francis. In the Gazette publication number 40 volume VIII dated 8th day of October 2019, my son's name was notified as Prakash Francis Manjaly. My son's wife is employed abroad. To live with his wife abroad, and also for Visa processing and for future PR, Citizenship etc., birth Certificate is compulsory. For the correction of the birth certificate, the name Prakash Francis has to be correct-ed as Prakash Francis Manjaly. No further correction in the name of my son will be sought hereafter."

9. Details of the appellant as entered in the Aadhaar Card bearing

No.4743 2910 8259, are as hereunder:

Prakash Francis Manjaly Address:S/o.Francis M.D., Manjaly House, DOB 25/01/1990 South Thanissery, Near St. Xaviers Church, MALE Iranikulam P.O., Kakkulissery, Thrissur, Kerala, 680 734.

10. Details of the appellant, as entered in the passport bearing

No.T9614583, issued on 26.10.2019, are as hereunder:

W.A.No.915 of 2020

Surname Name of Father MANJALY FRANCIS MANJALY DEVASSY Given Name(s) Name of mother PRAKASH FRANCIS REETHA FRANCIS Nationality Name of Spouse INDIAN MEENU THATTIL Place of Birth Address THANISSERY, KERALA MANJALY HOUSE Place of Issue IRANIKULAM P.O., THRISSUR COCHIN PIN:680 734, KERALA, INDIA

11. Exhibit P7 is the notification issued in the Kerala Gazette dated

8.10.2019, which reads thus:

"NOTIFICATION It is hereby notified for the information of all concerned authorities and the public that I, Prakash Francis, Manjaly House, Iranikulam P.O., Chalakudy Taluk, Thrissur District, Pin-680 734, holder of S.S.L.C. Certificate No. F 274535 with Reg.. No 365053 of March 2006 issued from Board of Public Examinations, Govt, of Kerala, in the Higher Secondary Certificate No. HSE 208762 with Register Number 4162824 of March 2008 issued by Secretary, Board of Higher Secondary Examinations, Government of Kerala, in the Bachelor of Technology Degree Certificate with Register No. 91908134034/RG of April 2013 issued by Vice Chancellor, Anna University, Chennai, Tamil Nadu, in the Birth Certificate with Registration Number 1/1990 date of Registration 3-2-1990 issued on 14-2-2019 issued by Registrar of Births and Deaths, Kuzhur Grama Panchayath, in the PAN Card No. BHWPP8395M issued from Income Tax Department, Govt. of India, in the Driving Licence No. 47/2840/2008 dated 21-6-2008 issued from Assistant Licensing Authority, Kodungallur; in the Erection Identity Card W.A.No.915 of 2020

Number ZLK0412502 dated 20-9-2015 issued by Electoral Registration Officer, Kodungallur Constituency, in the Passport Number R 2288142 dated 25-1-2017 issued by Attache (PS) Embassy of India, Bogota, Colombia also known as Prakash in the Ration Card Number 1875062819 dated 15-3-2017 issued from Taluk Supply Office, Chalakudy is one and the same person. Hereafter I have changed my name as Prakash Francis Manjaly and will sign accordingly. This change will come into effect in all records related to me.

Iranikulam, 13-8-2019. PRAKASH FRANCIS "

12. When the parents of the appellant made an application to the

Registrar of Births and Deaths, Kuzhoor Grama Panchayat (respondent

No.1) extracted supra, the Assistant Secretary and Sub Registrar of Births

and Deaths, Kuzhoor Grama Panchayat has sent a reply dated

29.11.2019, which is impugned in the writ petition, translated version of

the same reads thus:

"KUZHUR GRAMA PANCHAYAT OFFICE KUZHOOR P.O, THRISSUR DISTRICT, PIN- 680 734.

Phone - 0480- 2779751, Email [email protected] Web site- htpp// Isgkerala.in/kuzhurpanchayat

-----------------------------------------------------------------------------

      A3-5438/ 19                                     29/11/2019


      From
              Sub Registrar
              Births and Deaths Registration
 W.A.No.915 of 2020



             Kuzhur Grama panchayat

      To
             Francis M.D. & Reetha
             Manjaly House,
             South Thanissery.

      Sir,

Sub:- Kuzhur Grama panchayat - relating to the correction of birth certificate.

Ref:- Your application No. 5438 dated 28/11/2019. As per the above referred application, the birth certificate of your son was corrected on 14/2/2019 as per the school records. Therefore, you are informed that further correction in the birth certificate cannot be allowed.

Yours Faithfully Sd/-

Gracy K.K.

Assistant Secretary & Sub Registrar of birth and death, Kuzhoor Grama panchayat. "

13. The Registration of Births and Deaths Act, 1969 is an Act to

provide for the regulation of registration of births and deaths and for

matter connected therewith. Section 15 of the Act deals with the

correction or cancellation of entry in the Register of Births and Deaths

and the same is extracted below:

"15. Correction or cancellation of entry in the register of births and deaths.--If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or W.A.No.915 of 2020

improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation."

14. In exercise of the powers conferred by Section 30 of the

Registration of Births and Deaths Act, 1969 (18 of 1969) the Government

of Kerala have framed the Kerala Registration of Births and Deaths Rules,

1970. Rule 12 of the Kerala Registration of Births and Deaths Rules,

which deals with correction or cancellation of entry in the register of

births and deaths, applicable to the case on hand, reads thus:

"12. Correction or cancellation of entry in the register of births and deaths.-

(1) If it is reported to the Registrar that a clerical or formal error has been made in the register or if such error is otherwise noticed by him and if the register is in his possession, the Registrar shall enquire into the matter and if he is satisfied that any such error has been made, he shall correct the error (by correcting or cancelling the entry) as provided in S.15 and shall send an extract of the entry showing the error and how it has been corrected to the State Government or the Officer specified by it in his behalf.

(2) In the case referred to in sub-rule (1) if the register is not in his possession, the Registrar shall make a report to the State Government or the officer specified by it in this behalf and call W.A.No.915 of 2020

for relevant register and after enquiring into the matter, if he is satisfied that any error has been made, make the necessary correction.

(3) Any such correction as mentioned in sub-rule (2) shall be countersigned by the State Government or the officer specified by it in this behalf when the register is received from the Registrar.

(4) If any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under S.15 upon production by that person a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.

(5) Notwithstanding anything contained in sub-rule (1) and sub-rule (4) the Registrar shall make report of any correction of the kind referred to therein giving necessary details to the State Government or the officer specified in this behalf. (6) If it is proved to the satisfaction of the Registrar that any entry in the register of births and deaths has been fraudulently or improperly made, he shall make a report giving necessary details to the officer authorised by the Chief Registrar by general or special order in this behalf under S.25 and on hearing from him take necessary action in the matter. (7) In every case in which an entry is corrected or cancelled under this rule, intimation thereof should be sent to the permanent address of the person who has given information under S.8 or S.9."

15. Main ground of rejection is that birth extract was corrected

once on 14.12.2019 as per school records, and therefore, further W.A.No.915 of 2020

correction in the birth extract cannot be allowed.

16. Going through the relevant statutory provisions extracted

supra, we do not find any restriction in the number of corrections to be

made in the Register of Births and Deaths, as the case may be, if the

request is supported by bona fide records.

17. In the case on hand, the request is duly supported by the

entries in the passport and Gazette notification issued by the Government

of Kerala, wherein the name of the appellant is shown as "Prakash

Francis Manjaly". The request of the appellant is only to add the house

name "Manjaly" along with his name. Statute provides for correction of

date of birth or death respectively, subject to the conditions set forth in

the provisions. We do not find that the request of the appellant falls

within any one of the objectionable conditions.

18. In such a view of the matter, we are of the view that the order

of rejection vide impugned letter dated 29.11.2019 requires to be

interfered with. So also, the decision of the writ court, directing the

appellant to approach the civil court under Section 9 of the Code of Civil

Procedure, for the reason that House name is already mentioned in the

passport and in the Gazette Notification.

19. For the reasons stated supra, the writ appeal is allowed.

Exhibit P9 letter dated 29.11.2019 and the judgment in W.P.(C)No.2925 W.A.No.915 of 2020

of 2020 dated 3.02.2020 are set aside.

The Secretary, Registrar of Births and Deaths, Kuzhoor Grama

Panchayat (respondent No.1) is directed to reconsider Exhibit P5

application and issue birth certificate, correcting the name of the

appellant in terms of Exhibit P7 gazette notification, Exhibit P2 passport

and Exhibit P4 Aadhaar card respectively, within a period of one month

from the date of receipt of a copy of this judgment.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P. Chaly Judge vpv

/TRUE COPY/

P.A. TO JUDGE