International council of Jurists
Baskaran Kanakasabai
(Querist) 06 June 2010
This query is : Resolved
Is the matter of disparity of legislation regarding land acquisition laws referred to in my proposed letter worth referring to the International Council of Jurists?
copy of proposed letter:
To
The International Council of Jurists,
Regd. Office: 24, Buckingham Gate, London, SW1E 6LB
Honourable Ladies and Gentlemen,
The following is my legal theory:
“Any law authorizing compulsory land acquisition in any country is said to be flawed if it does not prescribe the compulsory registrability of the LA notification, unless the same prescription is expressly ensured and envisaged by some other law of the same land.
If any such flawed law is in force in any country the constitution of which guarantees justice to all its citizens, then such law is unconstitutional and therefore void.”
I request you to kindly examine it and let me know as to whether the theory is right or wrong after going through the following argument and explanation in favour of the theory.
If any action is intended not to happen, it is the responsibility of the law-makers to expressly prohibit and prevent the happening of such action by legislation.
For instance, if an authority does not want people to enter a particular road, a ‘no entry’ board should be erected at the entry of such road and the road if possible should be barricaded.
On the contrary, if such authority, does not erect a ‘no entry’ board, does not barricade the road and further certifies that the road is good for entry and collects a fee for such certification and allows entry and collects a fee for entering so and later declares such entry as illegal and punishable heavily, there should be something drastically and basically wrong with the very logic of the authority.
If a government does not intend registration of alienation of title of registered lands and registration of mortgages on registered land to happen, after such land is notified under land acquisition, then it is absolutely essential for such government to register its lien on such notified land at the time of such notification itself, in the register of the Registrar to such effect that such notified land is vested with the government by virtue of the land acquisition law of that land and therefore all transactions are expressly forbidden on such land.
In that respect I would like to draw two good examples of registrability.
1. The scent marking behaviour of animals( with faecal remains and urine)on the territory won by the victorious animal after a territorial fight is a fine although, wild example of registration of lien/title on land.
2. The unhoisting of the flag of the loser and hoisting of the flag of the winner done by victorious troops in human battles is another good old example of registration of lien/title on land.
Registrability is an important legislative tool used in the designing of a law of land acquisition. That tool enables the designers of law to incorporate a rule or section (in the LA law) that prescribes that notification under LA is compulsorily registrable. By doing so, they ensure that the title of the last registered owner of the land intended to be acquired is extinguished thereby incapacitating such person from alienating his title to any one else or mortgaging it with anyone else. They also ensure through such registration of notification that the title vests with the government without anymore fresh encumbrance. They also ensure the elimination of the possibility of innocent people (who are unaware of LA proceedings pending behind a land notified under LA) getting trapped in to the vicious ambit of the LA law by buying such notified lands.
Examples of perfect application of such a theory:
1. Mauritius
2. New Zealand
3. South Australia
4. Ohio State(USA)
(These are only few examples, there could be many more countries on either side of the illustration)
In all these three countries and one state of the USA, the respective land acquisition laws prescribe that notification under LA is compulsorily registrable and therefore the possibility of alienation/mortgage of title of registered lands is prevented and innocent people are prevented from purchasing such notified lands.
Example of perfect non-application of such a theory:
1. India
In India notification under LA is not compulsorily registrable therefore the LAA, 1894 is flawed. Innocent people who are unaware of the LA proceedings pending behind a land, happen to buy such notified lands and later their title is declared void by courts thus depriving such innocent buyers of their fundamental right to property without any compensation at all.
When compulsory registrability is not prescribed by an LA law( as in the case of India),
the title of the originally notified person remains unextinguished(even after such unregistered LA notification), leading to alienation of title of lands to innocent people who are unaware of the LA proceeding pending behind such lands. When courts declare such alienations void, such innocent people are deprived of their fundamental right to property without any compensation and are thrown out of their houses built in their lands which is absolute injustice. Thus such flawed laws become unconstitutional and void.
In this respect, the following portion quoted from the Scottish Law Commission’s ‘Discussion Paper on Land Registration: Void and Voidable Titles’ ,February 2004 is very right:
“Title flows from the Register and by definition the Register cannot be wrong”. That effectively means that the Register cannot be wrong as long as every lien or claim is registered.
In this respect it will be very relevant to note the following emphatic and express definitions:
1. Ref: The Hong Kong Land Title Ordinance :
Sec 16:“Entry in Title register constitutes notice to all persons.
All persons are deemed to have notice of every entry in the Title Register.”
2. Ref: The Registration Duty Act of 2007 of Mauritius:
“ a deed of transfer includes a notice witnessing the compulsory acquisition of property under the Land Acquisition Act"
3. Ref: http://codes.ohio.gov/orc/5309
5309.71 Proceedings in eminent domain.
When registered land, or any interest therein, is sought to be taken in the exercise of the right of eminent domain, notice of the proceedings, shall be filed with the county recorder, and a memorial made on the last registered certificate of title of the lands sought to be appropriated.
5309.34 Transferee of registered land not on notice or inquiry.
Such transferee shall not be affected with notice, actual or constructive, of any unregistered trust, lien, claim, demand, or interest. The knowledge that any unregistered trust, lien, claim, demand, or interest is in existence shall not of itself be imputed to such transferee as fraud.No unregistered estate, interest, power, right, claim, contract, or trust shall prevail against the title of a registered owner.
4.Ref: Public Works Act 1981, of New Zealand:
(7) A copy of the notice under subsection (1)(b) of this section shall be lodged with the District Land Registrar and he shall register it without fee against the certificate of title affected.
5.Ref: The Land Acquisition Act, 1969 of South Australia:
14—Notice where land is under the Real Property Act
(2) The Authority shall cause a copy of each notice of intention to acquire land to be
served upon the Registrar who shall thereupon enter a caveat upon the title to the
subject land forbidding all dealings with the land without the consent in writing of the Authority
Whereas in India, there is no requirement of compulsory registration of notification u/s 4 (1) of Land Acquisition Act,1891. The Act is preserved like an antiquity with the original flaw and without an amendment to rectify the flaw for the last 116 years. Notification is not registered, alienation is registered by the government even 40 years after notification and courts declare such unregistered notification as valid and registered alienation as void , 10 years after such alienation and thousands of innocent citizens are delivered injustice in the name of a flawed law year after year for over a century, making a mockery of the theory of Registration and the very theory of justice by almost proving the inverse ratio of Sir William Blackstone through judgments.
Now ladies and gentlemen, kindly examine the aspect of registrability of notification of LA in the LA laws of the five lands listed above and kindly let me know as to whether my theory is right or wrong.
If found right, kindly initiate steps to promote uniformity of the legislation and of the judicial decisions in all civilized nations in respect of Land Acquisition laws, since it happens to be one of the main objectives of your organization.
Thanking you!
Sincerely,
Baskaran Kanakasabai
N.B: Kindly note that this is a little contribution from a layman for the cause of true justice.
Raj Kumar Makkad
(Expert) 06 June 2010
Your arguments are worthy and important and I find these as accurate
Baskaran Kanakasabai
(Querist) 06 June 2010
Dear Sir
Thank you very much for your observation.Irrespective of whether my objective of obtaining necessary justice gets achieved or not, i must express my gratitude to you for continuously supporting what you find as just and reasonable.
Daksh
(Expert) 07 June 2010
Mr.Baskaran Kasnaksabai,
I appreciate your concern and objectivity by which you have expressed your viewpoint but would like to add that the Notifications enamating qua the Land Acquisition are "being the policy matter" are given vide publicity in the print media and the local administration is also party to the same as such in so far purchasing the land without making adequate enquiry is a risk which needs to be looked by the prospective buyer.
On the contrary in my view point our emphasis should be the "MISUSE OF PUBLIC UTILITY PHRASE - what stops the Government to formulate the schemes for those who are tilling the land for ages to form cooperatives and collectively fulfill the planned objectives (which otherwise are sought to be forged in alliance with SEZ LOBBY) at the cost of helpless farmer.
The other issue which comes to my mind is have ones and have not. I would like to bring to your notice the fact of allowing change of land use even after LA notification by private players who form cartel outbid individual land owners in the name of development of commercial property making the local inhibitants as second class citizens in the name of development. The moot point is that in the name of development we are making the price of land more and life of individuals pathetic.
Best Regards
Daksh
Baskaran Kanakasabai
(Querist) 07 June 2010
Dear Sir
Thanks for your response.
The following paragraph is part of my presentation titled "The Flaw in the law"-part 4-
"After grinding the LAA1894 inside my head for about 2 weeks, I am now of the view that no country which has this ACT in place in its current form, can be truly categorized as a democracy in the true sense of the word."
There are numerous areas in the LAA,1894, like the ones you have mentioned, which are matters of grave concern to citizens. I have concentrated on just one of those areas.
I am sure that will be a soothing answer to the points you have raised in the 2nd and 3rd paragraphs of your response.
As far as your observation regarding notification is concerned I believe that there is no better way of publicising a notification than registering it.
In this respect the definition of the Hong Kong Land Title Ordinance which says in
Sec 16:“Entry in Title register constitutes notice to all persons.
All persons are deemed to have notice of every entry in the Title Register.”
is the most perfect logic regarding the subject of registrability of an instrument like notification under LA, I have seen so far.
I have raised strong objection to the observation of the Honourable Judge in the case of SC 1996 AIR 540 in Part 9 of my presentation as follows:
“2. The object of publication of the
notification under Section 4 [1] is notice to everyone that
the land is needed or is likely to be needed for public
purpose and the acquisition proceedings points out an
impediment to anyone to encumber the land acquired
thereunder.” Is it right or wrong?
My view is- such publication of the notification will not amount to notice to everyone. What will amount to notice to everyone is nothing but registering such notification under 4(1) in the registers of the ROD.
Since LAA 1894 lacks such a crucial section or provision, that is the Flaw in the Law, which I have tried to show-case all through the 9 parts of my presentation.
That is why I contend that the law with the flaw, LAA1894,is unconstitutional. That is why I contend that the innocent buyer who bought the land unaware of the notification under(1) is not guilty and that the fault lies with the acquiring Government which failed to register any of the following: notification, declaration, award, inspite of the law exempting it from stamp duty.
In this respect I would like to quote once again:
The legal encyclopedia American Jurisprudence says the following in regard to constitutionality:
“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)”
In a large country like India with a billion plus population, publishing the notification in two dailies for one day or publishing in the gazette or affixing the copy of such notification in the notice boards of the Collector or Tahsildar( or even for that matter in the notice board of the SRO concerned also will hot help- ref:WP7153 of 1997 Madras HC)or beating of the Tom Tom will not suffice and will not amount to notifying the entire population of this country permanently and perfectly.
What will amount to such a perfect notification and what will constitute a notice to all is nothing but registering such notification in the book1 of the SRO against the survey number of the land intended to be notified to be acquired.
That is what is the Flaw in the Law I have been trying to show-case all through the 13 parts of my presentation.
That is what is not prescribed by our LAA,1894 and that is what is prescribed by similar LA laws of Mauritius, New Zealand, Australia and Ohio.
Thank you!
I can cite the pathetic example of a case where the buyer of a land has on his own initiative enquired with the Collector, the Slum clearance Board and the Fisheries Department about any pending LA notification or proceedings on the survey number which he has intended to buy. The colector and the Board have replied that there are no such proceedings and the Fisheries Dept, has not replied to the buyer's enquiry for more than a year. The buyer, 18 months after making his enquiry feels that it is safe to buy that land and proceeds to buy it and registers it.
Years later the Fisheries Dept claims that the land has been acquired 40 years ago and the court has declared the purchase after such notification as void.
I think that will substatiate the need for compulsory registrability of the notification under 4(1).
Moreover, there are millions of citizens holding registered title to lands. What Guarantee is there to ensure that on one fine morning any such land owner will not be served a notice by any department of the Government informing that the land bought by such a person has been notified by the govt under an act like the LAA,1894 or the Evacuee Property Act or Enemy Property Act or the Defence of India Act or any other Act through which such a notification could have been issued or publicised before the buyer was born.
Therefore there can be no end if a buyer is to conduct an enquiry about possible encumbrances. There comes the need for the Govt to register compulsorily whatever notice or instrument through which it lays a lien or claim or right or interest in such land by virtue of any Act whatsoever it may be.
That is what precisely and concisely is meant by the Hong Kong Ordinance-"
Entry in Title register constitutes notice to all persons.
All persons are deemed to have notice of every entry in the Title Register"
Which will effectively mean that no person shall be said to have notice of any instrument or transaction if such instrument or transaction is not registered,unless such instrument or copy of such transaction is served on the very same person conerned legally and in manner provable at any time.
This is almost what is said in the Transfer of Property Act,1882 as follows:
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
PROVIDED that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act."
Thank You!
