BENGALURU: The Karnataka High Court quashed a notification by the state government to amend the Karnataka Registration of Births and Deaths Rules against the Registration of Births and Deaths Act to take away the powers of magistrates and to give them to assistant commissioners (sub-divisional magistrates).
“The power conferred under the Act is neither quasi-judicial nor administrative, it is ‘judicial’. If Section 13 of the Act confers certain judicial powers upon a magistrate, it is trite that the Rules cannot take it away by going beyond or deviating from what is mandated under the Act... If the amendment Rule of 2022 is not obliterated, it would be permitting the tail to wag the dog”, said Justice M Nagaprasanna, quashing the notification dated July 18, 2022.
Any birth or death not registered within one year shall be registered only on an order of a magistrate of the first class or a presidency magistrate under Section 13(3) of the Act and on payment of a late fee of Rs 10. The state government has brought an amendment to Rule 9, particularly to Rule 9 (3), by the July 18, 2022 notification, to give powers to assistant commissioners.
This was challenged by Sudarshan V Biradar, an advocate from Kalaburagi district, alleging that by this amendment Rules, the state government takes away the power of the magistrate of he first class and places it at the mercy of the assistant commissioner.
The court said the amended rule would lose its legal legs, as it is not intra vires the Act, but ultra vires; if it is ultra vires the parent Act, it cannot but be held to be illegal and a nullity. All actions taken in furtherance of the said notification are declared to be nullity in law, the court said.
It observed that the mandate of the Act is tinkered with by the amendment Rule which runs counter to the Act. The amendment to the Rule, a delegated legislation is to the effect that the parent Act itself is amended. This power is unavailable to the state government in the exercise of its power under Section 30 of the Act. A delegated legislation cannot travel beyond the parent Act. It is trite law that the Rule making power conferred upon by the parent Act cannot travel beyond the mandate of the parent Act, the court added.