Registration deficiency syndrome-chapter 5

RDS-Chapter 5: “If reason prevails, Constitution will prevail and Justice will prevail.”                                           

In an attempt to trace the evolution of a massive bundle of misconceptions  prevalent in the Indian legal and judicial community which has resulted in an injudicious black hole of  erroneous rationes decidendi that has nurtured  RDS for over a century, instead of eradicating it in a matter of days, I am submitting herein, the following references containing homogeneously erroneous  logical conclusions/derivations / statements/ quotations/ views/standpoints/interpretations/constructions/ logical deductions for examination, analysis and confirmation by the world in general as to their correctness/erroneousness.

In this context, I am reminded of the perfect relevance of the great observation of Mr.Justice Jackson of the U.S Supreme Court, which is as follows: "Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversal of State Courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final."

May I request every reader to check section 3 of ToPA, 1882 and section 88(2) of the registration act, 1908, sec.12 of the LA Act, 1894 and the following Registration Rules (in effect since 1949 onwards in various Indian states) made under sec.69 of the Registration Act, 1908 and also Articles, 14 and 300-A of the Indian constitution and Articles 7 and 17(ii) of the UDHR and confirm the correctness or otherwise of the portions highlighted in red in the references quoted below:

 

1)Ref: https://www.ebc-india.com/lawyer/articles/9807a2.htm

Author: Sri.K.C.Jain

There is substance in the above recommendation of the Standing Committee and deserves acceptance. It also needs to be mentioned that a pertinent difficulty, often faced by intending purchasers, is lack of knowledge of pending acquisition proceedings. The problem arises because authorities under the Registration Act are not required to keep any record of the proceedings; the revenue records of such land also do not indicate anything about the LA Act notifications. There is merit in the suggestion that an amendment in the LA Act should make the Collector duty-bound to send a copy of the notification to the registering authority for registration, notwithstanding any other law to the contrary. An entry of such a notification should also be required to be made in the revenue records. It would then caution bona fide purchasers and check unwarranted land transactions after notification, unless a transferee opts for such at his own peril.

	Regn Rules of various states corresponding to that of T.N
State/U.T	Enacted	Rule1	Rule2	Rule3	Rule4	Rule5	Rule6	Rule7	Rule8
T.N-	1949	11(1)(d)	21(ii)	21(iii)	90(ii)	114(ix)	116(a)	116(b)	143
Kerala	1958	16(d)	29(ii)	29(iii)	105(iii)	127 A (i)(ix)	138(a)	138(b)	171
A.P	1960	13(1)(d)	25(ii)		93(ii)	115(ix)	118(a)	118(b)	143
			63(iii)
Maharashtra	1961	10(1)partIV	39(1)				32,33	31(1)
			39(3)
Gujarat	ditto as Maharashtra
Karnataka	1965	17(i)(b)	40(ii)	40(iii)	102(ii)		123(i)	123(ii)	151
					204			126(xii)
Pondicherry	1969	12(1)(d)	23(2)	23(3)	90(2)	112(9)	114(1)	114(2)	138
			60(3)
Orissa		ditto as Kerala
U.P	1942				384 B(6)

Counter: A perusal of the registration rules supra along with respective Departmental Standing Orders(as in the case of T.N) wherever they have been in effect, will prove that the authorities under the Registration Act and the Rules made under are absolutely required to keep many records  of the LA proceedings including the details of the award and the names of the landowners affected by the award and are also required to reflect all such details of the L A proceedings in the relevant Encumbrance certificates issued on such lands under acquisition. That goes on to prove the statement highlighted above as absolutely erroneous. In fact it also proves that the problem referred to by the author arises not because of legislative deficiency or lacuna in not requiring authorities under the Registration Act to keep any record of the proceedings but because of the statutory negligence by such relevant authorities in failing to keep the records of the L A proceedings as required by the registration rules.

2)  Ref: Supreme Court of India

Tamil Nadu Housing Board vs A. Viswam (Dead) By Lrs on 9 February, 1996

JT 1996 (2), 549 1996 SCALE (2)418

BENCH: RAMASWAMY, K., G.B. PATTANAIK (J)

“The single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premises that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the appellant. These circumstances are wholly illegal and unjustified. Section 12 [3] of the Act itself exempts registration of the land acquired under the Act. The District Judge had obviously ignored the statutory provisions.”

Counter: There is neither a section numbered 12 (3) in the LA Act, 1894 nor does any other section of that Act contain such a sweeping or generalized prescripttion. Section 11 (4) of the Act, exempts from registration, only the agreement defined under section 11(2). Section 51 of the Act exempts any award or agreement made under the Act only from payment of Stamp Duty and fees. On the contrary T.N Registration rules 1949 -rules 21(ii), 11(i) (d), 90(ii), 116(a) and S.O 940 (a) in conjunction with other relevant rules and S.Os prescribe for the meticulous registration of the RLA (Return of Lands Acquired under the L A Act) and the precise indexing of all details of the award and reflection of all such details in the EC as well.

3) Ref: WRIT APPEAL NO.419 of 2006   

and WAMP.No.895 of 2006 of the Madras High Court

THE HON'BLE MR. JUSTICE P. SATHASIVAM         AND 

THE HON'BLE MR. JUSTICE J.A.K. SAMPATHKUMAR  

13.  The grievance of the petitioners is very pathetic.  If the

petitioners were aware of the land acquisition  proceedings  at  the  time  of

purchasing  lands  from  their  vendors,  they  would not have purchased same.

Therefore,  if  the  land  acquisitioning  body  sent  the  land   acquisition

proceedings to the concerned Registration Department immediately after Section

6  Declaration,  necessary  entries  would  have  been  made in the respective

records relating to Encumbrance and on  verification,  the  petitioners  might

have come  to  the fact of acquisition proceedings.  Therefore, the failure in

entering necessary information in regard to the acquisition proceedings in the

relevant records  of  the  Registration  Department  led  the  petitioners  to

purchase  the  lands  without  knowing  the  fact  that the lands were already

acquired by the Government and this would also give scope for the  vendors  to

deceive  the  intending  purchasers  in  selling  the lands by suppressing the

acquisition proceedings.

 

        14.  In such circumstances we are of the view that it is  but  proper,

whenever  acquisition proceedings are initiated, atleast after the issuance of

declaration under Section 6 of L.A.  Act, necessary intimation  is  issued  to

the  Registration  Department  (Sub-Registrar  having jurisdiction of the land

under acquisition concerned), it would be useful for the intending purchasers.

If the  Land  Acquisition  Officer  or  Government  intimate  the  details  of

acquisition  to  the  Sub-Registrar concerned and when the intending purchaser

applies  for  encumbrance  certificate,  the  fact  that  the  land  is  under

acquisition will  be  known  in the certificate.  If any such communication is

received from the Land Acquisition Officer or any other officer concerned with

the Land Acquisition by the Sub Registrar of  the  area  concerned,  the  same

shall  be  entered  in  the registers that are being kept in the office of the

concerned Sub-Registrar.  In that event, if  anyone  applies  for  encumbrance

certificate to ascertain the title of the land, the SubRegistrar is duty bound

to refer the said fact in the encumbrance certificate applied for.  If this is

followed  it  would  save  the plight of several purchasers, who purchased the

land under acquisition.  We hope and trust the Government will make  necessary

provisions  in  the Land Acquisition Act and Rules and also issue instructions

to all concerned.

 

In reference one and three, the authors have believed that there are no existing rules that provide for the registrability of the documents/instruments pertaining to the land acquired under the L A Act, whereas in reference two, the author has believed that the LA Act explicitly exempts the lands acquired under the LA Act from Registration. The rationes decidendi of all relevant cases (RDS, strain2 cases) have been constructed in this kind of set up of erroneous beliefs and mistaken deductions and derivations.

Excerpts (relevant to the subject of this chapter of RDS) from the speeches of Hon.CJI Sri. P.Sadasivam:

Ref: https://www.hcmadras.tn.nic.in/cji-speeches.pdf

 

Maxim “Falsus in uno falsus in omnibus”

(i) “Falsus in uno falsus in omnibus” is not a rule of evidence in

criminal trial and it is duty of the Court to engage the truth from

falsehood, to shift grain from the chaff.

Judge’s power to put questions or order production (Section 165)

The Judge may, in order to discover or to obtain proper proof of

relevant facts, ask any question he pleases, in any form, at any time, of

any witness, or of the parties, about any fact relevant or irrelevant, and

may order the production of any document or thing; and neither the parties

nor their agents shall be entitled to make any objection to any such question

or order, not, without the leave of the Court, to cross-examine any witness

upon any answer given in reply to any such question:

Provided that the Judgment must be based upon facts declared by

this Act to be relevant, and duly proved :

Provided also that this section shall not authorize any Judge to compel

any witness to answer any question, or to produce any document which

such witness would be entitled to refuse to answer or produce under

Sections 121 to 131, both inclusive, if the questions were asked or the

documents were called for by the adverse party; nor shall the Judge ask

any question which it would be improper for any other person to ask under

Section 148 or 149; nor shall he dispense with primary evidence of any

document, except in the cases hereinbefore excepted.

 

Human Rights – Two simple words but when put together they

constitute the very foundation of our existence. Human Rights are

commonly understood as “inalienable fundamental rights to which a

person is inherently entitled simply because she or he is a human being”.

India being a diverse country with its multicultural, multi-ethnic and

multi-religious population, the protection of human rights is the sine qua

non for peaceful existence. It is indeed impossible to give an inclusive

definition of Human Rights owing to its vast nature, however, the

legislators have tried their hands in defining Human Rights as “the rights

relating to life, liberty, equality and dignity of the individual guaranteed by

the Constitution or embodied in the International Covenants and enforceable by

courts in India” under the Human Rights Act, 1993.

It is implicit from the definition that Human rights are omnipresent

in all legislations in our country and it is the duty of the Judges to read

between the lines and enforce these rights for the betterment of the

society. In precise, our judgments should be articulated in such a manner

to accommodate human rights whenever it is required.

Active Role of Judiciary:

Of course, all legal rights are human rights but it is unfortunate that

all human rights have not become legal rights as on date. This is because

the law follows the action, as a consequence, it is not possible to codify

all probable laws in anticipation for protection of human rights, and this

is when the due procedure of law or the principle of natural justice plays

an active role in protecting the rights of the people when there is no

legislation available.

As I have mentioned earlier, the magnificence of human rights is

that it is all pervading, the trick lies in the successful execution of the

same. Fundamentally, the basic motive of all the three wings of the

democratic government, namely, the executive, the legislative, and the

Judiciary revolves around the protection of human rights. They strive

together and separately to uphold the human rights of the people in the

country.

The Judiciary with no doubt has played a vital role in protection of

Human rights over the decades. Some of the most unpleasant violation of

human rights like Sati, Child Marriage, Honor Killings, Slavery, Child labour

etc., have been abolished wholly owing to widespread awareness and

strict implementation measures taken by the Judiciary.

The status of human rights is fairly high under the Constitution of

India which makes provision for fundamental rights and empowers Supreme

Court of India and High Courts to enforce these rights. Equally important

is the fact that India is a signatory to international conventions on

economic, social, cultural, civil and political rights, with certain conditions.

These rights are partly contained in Part III of the Constitution of India

including the right to equality in Article 14, right to freedom of speech and

expression in Article 19(1)(a), the right to protection of life and personal           

 liberty in Article 21 and the right to religious freedom in Article 25 etc.

In Part IV of the Constitution, the Directive Principles of State Policy

i.e. the duties of the State or the socio-economic rights, have been envisaged

which are non justiciable in any court of law but complementary to the

fundamental rights in Part III. It directs the State to apply policies and

principles in the governance of the country so as to enhance the prospects

of social and economic justice. For instance, Article 43 directs the State to

secure for workers a living wage, decent standard of life and social and

cultural opportunities. On a different note, the society should be changed

in a positive way by the State, enlighten and place every human being in

a society where their individual rights can be protected as well as upheld.

The Indian judiciary with its widest interpretation in observance of

Human Rights has contributed to the progress of the nation and to the

goal of creating India as a vibrant State. The definition of Human Rights

can be found under Section 2(d) of the Protection of Human Rights Act,

1993 as, “The rights relating to life, liberty, equality and dignity of the

individual guaranteed by the Constitution or embodied in the International

Covenants and enforceable by the Court of India.” So it is evident that

Courts have a major role to play in enforcing the rights. 

  As a consequence with the expansion of scope of human rights, the

ambit of safeguarding the rights also increases, as a result, the judiciary

should toil more to prevent the violation of human rights. Judiciary is the

only organ which can translate these rights into reality; which is not possible

without the help of the judicial officers of the respective courts. 

Conclusion: The intriguing aspect of RDS is as to how not even a single person  from the million strong legal and judicial community of India in the last six decades  raised  the question of statutory compliance of the relevant government officials  in respect of registrability in any of the relevant cases. Had the relevant LAOs presented for registration(as required by sec.88(2) of the Registration Act, 1908),  the relevant RLAs( as required by TN Regn Rule 21(ii) and other corresponding rules in respect of cases pertaining to other states) promptly  in all the cases cited above and below, for instance and the  relevant SRs registered and indexed the details of those  RLAs as defined by  sec. 3 of ToPA, 1882 and required by T.N Registration Rules 11(1) (d), 116(a) 143 etc., no subsequent buyer  in any of the cases referred to would  have been able to purchase the relevant notified lands. But for the statutory negligence of the LAO and /or the SR in all these cases, none of the subsequent buyers would have been deprived of their lands especially without notice, hearing and compensation as had happened in all those cases. In fact the question or case or chapter of alienation after 4(1) notification would not have appeared in Indian Jurisprudence, had the RLAs been filed promptly and synchronous with the publication of the notification.

Therefore, to put it simply, ‘if reason prevails, Constitution will prevail and Justice will prevail.” 

Sincerely,

Baskaran Kanakasabai

Social activist and logician.

Sample list of cases involving  RDS-strain 2(SN)-substrain 1 (RLA) :              

    

RDS- STRAIN2(SN)- substrain1 (RLA)- cases
1	M.K.Ayyanar vs The State Of Tamil Nadu, Rep on 10 December, 2008
	W.P.Nos.5020 to 5039 of 1998
	JUSTICE K. CHANDRU
2	Chithra Rangachari vs State Of Tamil Nadu on 13 September, 2002
	W.P.No.2610 of 1995 and W.P.No. 2611 of 1995 and W.P.No. 2615 OF 1995
	Justice V.S. SIRPURKAR
3	L.Jegannath vs The Land Acquisition Officer on 21 January, 2011
	WRIT PETITION Nos.4048 & 4049 of 2003
	JUSTICE P.JYOTHIMANI
4	The Chairman And Managing ... vs Sakunthala Chodhary, State Of ... on 13 September, 2006
	ref: Indian Kanoon - https://indiankanoon.org/doc/685566/
	Bench: D Murugesan, V Ramasubramanian
5	S. Jaya Mohan vs State Of Tamil Nadu on 16 December, 2010
	W.A. No. 331 of 2008		&	M.P. Nos. 1 and 2 of 2008
	JUSTICE D. MURUGESAN			JUSTICE B. RAJENDRAN
6	K.R.Saminathan vs The State Of Tamil Nadu on 20 April, 2011
	Writ Petition No.7682 of 2011			M.P.Nos.1 and 2 of 2011
	JUSTICE R.SUDHAKAR
7	R. Radhakrishnan vs The Secretary To Government Of ... on 1 August, 2012
	W.P.No.20141 of 2011			and M.P.No.1 of 2011
	JUSTICE VINOD K.SHARMA
8	The Chairman And vs Bhagavathy Subramaniam on 14 June, 2006
	Writ Appeal No.226 of 2005			and Writ Appeal Nos.,to 231 & 425 of 2005; 254, 255, 456 & 457 of 2006 and
	WAMP Nos.376 to 381 & 744 of 2005; 554 to 557, 969 & 970 of 2006
	Justice P.SATHASIVAM			J.A.K.SAMPATHKUMAR
9	M.K.Ayyanar vs The State Of Tamil Nadu, Rep on 10 December, 2008
	JUSTICE K. CHANDRU
	W.P.Nos.5020 to 5039 of 1998
10	The Administrative Officer vs V. Chandrasekaran on 24 January, 2012
	Mr. M.Y. EQBAL, CHIEF JUSTICE			Justice T.S. SIVAGNANAM
	Writ Appeal Nos.805 and 806 of 2011
11	B.Hanifa vs The District Collector on 10 September, 2013
	JUSTICE P.R.SHIVAKUMAR
	W.P.No.18696 of 2007
12	K.Karuppayammal vs The Govt. Of Tamil Nadu on 28 October, 2009
	JUSTICE R.S.RAMANATHAN
	W.P.(MD)No.5606 of 2009			M.P.(MD)Nos.1 to 3 of 2009
13	Shanthilal M. Thakker And Ors. vs The State Of Tamil Nadu And Ors. on 31 August, 1990
	Bakthavatsalam, J.
	(1991) 2 MLJ 284
14	A.N.Muthusamy vs The State Of Tamilnadu on 16 April, 2009
	JUSTICE P.JYOTHIMANI			JUSTICE ARUNA JAGADEESAN
	WRIT APPEAL NO.1428 of 2008
15	Gnanaprakasam vs State Of Tamil Nadu on 8 February, 2011			..	MADURAI BENCH OF MADRAS HIGH COURT
	JUSTICE M.VENUGOPAL
	Writ Petition (MD) No. 2482 of 2008
16	Seethalakshmi Ammal vs The State Of Tamil Nadu And Anr. on 5 December, 1991
	Mishra, J.
	(1992) 1 MLJ 606
17	G.S.Gopalakrishnan vs 3 The Tamil Nadu Small Industries on 11 August, 2006
	JUSTICE D. MURUGESAN			JUSTICE V. RAMASUBRAMANIAN
	WRIT APPEAL No.63 of 2004			W.A.M.P. No.75 of 2004
18	Murugesa Naicker And Two Others vs The Special Tahsildar, Land ... on 30 July, 1998
	?
	1998 (3) CTC 293

             The lawmen relevant to the cases supra and all other similar cases since 1949 would be most welcome to clarify as to whether they were aware of the existence of the registration rules cited above at the time of handling the relevant cases. The relevant LAOs should state as to whether they presented for registration the relevant RLAs and the relevant SRs should state as to whether they registered and indexed the details of those RLAs as required by the statutes and reflected those details in the relevant ECs. The answers from these three entities referred to above, will provide the base to construct the right ratio decidendi and thus Justice itself for all the relevant RDS cases from 1894 till date.