Important Points;
The provisions contained in Ext.R1(b) Circular cannot be sustained as far as issuance of non-availability certificates is concerned. Section 13 of the Act, 1969 provides that any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate, after verifying the correctness of the birth or death-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 only by the Magistrate- Neither the Act nor the Rules confers a power or casts any duty on the 1st respondent 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.

The writ petitioner aged 74 years, is wife of Sri.Kesavan who passed away 40 years ago on 23.07.1974. The petitioner seeks to direct the 1st respondent-Secretary to Grama Panchayat to consider her application for issuance of non-availability certificate with respect to the registration of death of her husband.

2. The petitioner states that she is residing in Kaiparambu Grama Panchayat and her husband died 40 years ago. He was cremated within the limits of the Kaiparambu Grama Panchayat. However, the death of her husband has not been registered. On receipt of proper advice, she has initiated steps to register the death of her husband. Since the death has not been registered within one year of its occurrence, it can be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate, after verifying the correctness of the death. For this purpose, the petitioner has applied for a non-availability certificate of registration of death of her husband to the 1st respondent, on 08.01.2015.

3. However, the application submitted by the petitioner has been rejected by the 1st respondent-Secretary to the Grama Panchayat, as per Ext.P1. In Ext.P1, it has been stated that the non-availability certificate cannot be issued since the police has made a report that the husband of the petitioner is reported to have come back in the village during 1993-1994. The petitioner seeks to set aside the said Ext.P1 communication issued by the 1st respondent.

4. The 1st respondent contested the writ petition. A counter affidavit has been filed. The 1st respondent contends that the petitioner has not produced any document to prove that her husband Sri.Kesavan died on 23.07.1974. The 1st respondent requested the Station House Officer, Peramangalam Police Station to enquire about the whereabouts of Sri.Kesavan. The Sub Inspector, by letter dated 01.02.2015, reported that Sri.Kesavan had visited the place during 1993-1994 and thereafter, his whereabouts are not known. In the circumstances, in view of Ext.R1(b) Government Circular, a non-availability certificate cannot be issued to the petitioner, contends the 1st respondent.

5. I have perused the pleadings and heard the learned counsel for the petitioner and the Standing Counsel representing the Grama Panchayat.

6. As per Section 12 of the Registration of Births and Deaths Act, 1969 ('Act, 1969', for short), the Registrar of Births and Deaths shall, as soon as the registration of a death has been completed, give to the person who gives information, an extract of the prescribed particulars under his hand from the register relating to such death. Section 17 of the Act, 1969 provides that any person may cause a search to be made by the Registrar for any entry in a register of births and deaths and obtain an extract from such register relating to any birth or death. In view of Section 17, the petitioner has a right to apply and receive an extract from register relating to births and deaths.

7. It is in order to register death and to obtain such an extract, that the petitioner has sought for a non-availability certificate from the 1st respondent. But, non-availability certificate has been denied to the petitioner by the 1st respondent relying on Ext.R1(b) Circular issued by the Directorate of Panchayats.

8. Ext. R1(b) Circular states that there are many instances where births and deaths are registered giving wrong information. Therefore, in order to avoid such wrong registrations, production of documents relating to the place of residence of the new born, the place of birth, the place of residence of the deceased during the time of death and the place of death may be insisted along with the application. If any applicant cannot provide such documents/proof, non-availability certificate can be issued only after a police enquiry.

9. Considering the provisions under the Registration of Births and Deaths Act, 1969 and the Rules made thereunder, I am of the opinion that the provisions cont