Unconstituionality
Baskaran Kanakasabai
(Querist) 07 May 2012
This query is : Resolved
“Unconstitutional”
1. In the cases under the category “registered alienation after 4(1) notification” under the LA Act,1894( instances: 1.Wp 3031 of 2004 Bombay High Court. 2. JT 1995(6) SC 274., 3. 1996 AIR 540) the registered title holders of the relevant lands have been deprived of their respective properties.
2. This is in violation of article 300A of the Indian Constitution which says:
3[CHAPTER IV.—RIGHT TO PROPERTY
300A. No person shall be deprived of his property
save by authority of law.]
3. If the ‘law’ referred to in the above-mentioned section of the Indian Constitution includes, the LA Act, 1894( among other less applied Acts that involve land acquisition/deprivation of property), is it not absolutely essential that the person who is so deprived of his property under that Act, is without fail :
A) served a notice(u/s 4(1) of the LA Act, 1894) by the LAO, before such deprivation?
B) given a fair hearing of his view or objections( u/s 5-A of the same Act) by the LAO, before such deprivation.
4. If the above-mentioned argument is right, an analysis of any of the ‘000s of cases of “alienation after 4(1) notification” under the LA Act,1894, in the 118 year history of the Act, (like the instances as shown in the three above-mentioned citations) will reveal that the relevant person( the registered title-holder) in every such case has been deprived of his property, without being served a notice as per the Act and without being heard of his views or objections as per the Act.
5. Therefore my contention is that the deprivation of property of (almost)all persons in all cases of “alienation after 4(1) notification under the LA Act, 1894” is unconstitutional and therefore all judgments that enforce/d such deprivation should be declared unconstitutional and therefore void.
6. Invariably one can understand that it is a case of issuing a notice to Mr.X, hearing him and letting him go and years later sending Mr.Y to the gallows in place of Mr.X. My contention is that such sending MR.Y to the gallows without notice, inquiry/hearing is illogical & unconstitutional. (If the authority wants to hang Mr.Y, it should issue notice to him, hear him and if grounds for sending to the gallows are available still as per the Act, then it can send him to the gallows. That would be logical, legal and constitutional and there is no question or regret about it.)
... The full chapter is posted in the forum section.....
V R SHROFF
(Expert) 07 May 2012
"Therefore my contention is that the deprivation of property of (almost)all persons in all cases of “alienation after 4(1) notification under the LA Act, 1894” is unconstitutional and therefore all judgments that enforce/d such deprivation should be declared unconstitutional and therefore void."
Any recent AIR citation to support it??
Anirudh
(Expert) 07 May 2012
How anybody can say that the affected individual is not being given a notice when the Notification under Sec. 4(1) is being published in news papers?
I think there is basic misunderstanding in this regard that there is no notice to the affected individual.
Baskaran Kanakasabai
(Querist) 07 May 2012
Dear Sri V.C.Shroff
My contention is not based on any AIR citation. It is based on my own logic as described in my query and I placed my logic and argument in this public platform to be cross-examined by experts. One may question any part of the logic or argument and respond with a decisive opinion.
This contention is a continuation of a 1000 page presentation titled "The Flaw in the Law" posted in the Forum section between April and July 2010.
In that presentation I made a contention that the LA Act 1894 is flawed in respect of the registrability of the notification u/s 4(1). The presentation was simultaneously sent to various authorities in India and abroad. The President's Secretariat, New Delhi took cognizance of the subject of the presentation and directed various ministries to take action. Consequently, in about 100 days, the MoRD, came out with the Land Titling bill 2010, later the LARR 2011 incorporating my suggestion that 'hereafter it will be incumbent upon the LAO to compulsorily register the notification u/s 4(1). All details are available in the Forum section. Kindly have a look and let me know your views about my present contention. Alternatively, you may also talk to Sri. R.K. Makkad and Sri. Niranjan who also took very active and constructive parts in that presentation.
Baskaran Kanakasabai
(Querist) 07 May 2012
Dear Sri Anirudh,
Kindly read the reply I have made to Sri.V.C.Shroff. It has some relevant info.
A notification published in the newspaper will not amount to a notice to all. This point I have established before the Govt of India in 2010 July itself. Only after that presentation, MoRD proposed in its amendment Bill that hereafter such notification will be compulsorily registrable with the SRO by the LAO.
So, kindly go through my presentation titled "The Flaw in the Law" posted in the Forun section under property law between 2010 April and July. Then, I believe you can reexamine your questions or rephrase them. For a simple rebuttal, how is a person born in 1990, buying a land in 2012, supposed to be given notice of an LA notification u/s 4(1) published in 1980( which was before his birth)? This was one of my questions to GOI and the world. My suggestion was that had the same notification been registered with the relevant SRO in 1980 that would amount to a notice even after 1000 years. Because when a potential buyer applies for an EC anytime, if a notification had been registered against the relevant survey number any time in the past, that will be reflected in the EC and so it will become notice.
Anirudh
(Expert) 07 May 2012
Dear Mr. Baskaran,
You are not sound on your logic.
The vendor knows that his property is under Acquisition Notification.
Therefore, while selling he is supposed to indicate the same. If he has not done so, then the Vendee has to invoke the indemnity clause that will be contained in all such conveyance deeds and recover the amount from the vendor.
Yes, you may have suggestions. But that will not make any action by the Land Acquisition Collector unconstitutional.
Baskaran Kanakasabai
(Querist) 07 May 2012
Dear Mr.Anirudh,
Here is a case, wherein the vendor is dead by the time the vendee learns that the land he purchased years earlier from such vendor has been under notification. What is the remedy for the vendee?
On hearing from you I will feed subsequent queries to make the discussion simple and clear- 'one at a time'.
Thanks very much for the response.
Anirudh
(Expert) 08 May 2012
If there is an 'indemnity' covenant in the Sale Deed, the vendee will go after the Legal Heirs of the Vendor since the agreement will say that it binds the vendor, his successors in interest, assigns, administrators, executors etc.
Baskaran Kanakasabai
(Querist) 08 May 2012
The vendor is dead and his wife also is dead( both aged above 80 at the time of their deaths) and have no legal heirs in the knowledge of the neighbourhood. The vendee happened to learn about the fact of the land having been notified, only 12 years after the sale and five years after the death of the vendor and his wife.
Anirudh
(Expert) 08 May 2012
It is your FATE!
But certainly not unconstitutional!!
Baskaran Kanakasabai
(Querist) 09 May 2012
Dear Mr.Anirudh
I have given instances/details of cases of victims. The cases are not mine.
What could be connected to my fate is that I am trying to find solution for the problems of known and unknown victims in my available knowledge and capacity.
The reality is , in that process , I have to interact with different sorts of people and authorities like you or Mr.R.K.Makkad,or Sri.Salman Khurshid, the President's Secretariat and umpteen high officials.
Do not assign matters to the fate so quickly. There is a long way to go before that.
Had I felt like that, the MoRD's proposed amendment (stipulating the compulsory registrability of the notification u/s 4(1)) would not have occurred at all). You can check that with Sri.R.K.Makkad or from Dr.Charanjit Singh, Director, DoLR, MoRD, or even from the President of India.
More over, my previous query details are not yet over. I am giving them as follows and you may give your responses if any.
On the side of the vendor, he is illiterate. He was notified. He opposed the acquisition, rejected the LAO’s award, and went on with his livelihood for ten years. Nothing turned up. After ten years, when land prices went up he sold his land after obtaining Nil-Ec from the SRO.
If revealing the fact or detail of a notification( which for an illiterate citizen is a bit of written paper which has come by post once in his life-time among hundreds of marriage invitations, ‘Irangal kadhidhams’ ( white card with black printing- or ‘karumadhi’ cards) invitations for puberty ceremonies, house-warming and valai-kaappu( bangle wearing ceremony for women attaining first pregnancy) he would have received so by post)having been issued on his land ten years ago is a responsibility of a vendor to a vendee,
is it not an equal or bigger responsibility for the Government( which comprises of many officials like the Secretaries, the LAO, the Revenue Officer, the Registrar, who are well-educated and knowledgeable enough about instruments like notifications and the effects of revealing and the repercussions of failing to reveal information about them to relevant people) that issued the notification, to reveal the fact of having issued an LA notification on a land bearing a specific survey number, when a potential buyer applies for an EC for such land.
How can the Government which is supposed to guide people and care for their welfare conceal such vital fact of an LA notification having been issued on a land from the illiterate applicant whose very purpose of application is to know whether the land he is about to buy has got any defects or encumbrances or problems involved? It is not only an act of negligence but also one of conscious mis-guidance to issue a Nil-Encumbrance certificate to such land, leading the illiterate applicant to believe that the title of the land is absolutely perfect according to Government itself and therefore there is no inherent problem involved in the title of the land.
The Government has also collected from such applicant( in the specific –cases on hand) stamp duty equal to an amount three times higher than the original award passed by the LAO, to register the sale deed of a notified land, while it is fully aware that the buyer of the land would eventually lose not only such amount paid as stamp duty, but also the land he is buying, the consideration he paid to the vendor and also the house he is going to build on such land. Is it anything any Government would do to its own innocent citizens.
If someone relieves somebody of his money, land and house and throws him and his family to the street for no known fault of his, what term to use to define such action?
Is it an act worthy of any government? Is it lawful?
Had the LAOs registered their 4(1) notifications with the concerned SROs, and the SROs refused registration of any transaction on notified lands, as is done in many countries of the world, would the thousands of cases like the ones I have cited earlier, have gone to the courts in the last 118 years? Not even one. Would anyone have been deprived of his property as has happened in all the cases of “registered alienation after 4(1) notification” in India? Not even one. There will be no need for vendee suing the vendor.
On the contrary, if the method you have detailed in your response that ‘vendee has to sue the vendor and the notice published in dailies is a notice to all’, even for the next hundred years, the same” alienation after 4(1) notification” will recur, and more and more innocent buyers of notified land will be deprived of their land, evicted and their houses demolished, for no fault of theirs. There will only be more litigations for the lawyers and courts to work on. Justice will not be delivered. Peace will not prevail.
Compulsory registrability of LA notification has been strictly followed in many countries, even since 1930s (Ref:”The Flaw in the Law” for details). In those countries if notification is not registered, the relevant acquisition is void. Transferee or vendee is not on notice. A notice served on the vendor is not binding on the vendee unless and until such notice is registered. No land transactions are valid unless and until they are registered. A notice is a notice to all only when it is registered.
The population of Mauritius is under 1.3 million. The number of lawyers in India is more than that.
The law of Mauritius says that the Notification under land acquisition is “a deed of transfer” and therefore it is compulsorily registrable and non-registration will render it void. Notified land cannot be bought or sold. In India the government will not register the notification. It will issue a nil-EC on notified land. It will allow the notified person to sell and the registrar to register such sale deed. The courts will allow the notified person to deal with the notified land as he likes, but penalize the innocent buyer of the notified land and deprive him of his land without him being served a notice under the act or given a hearing under the act.
What is the comparative quality of law and justice in this respect in India?
Baskaran Kanakasabai
(Querist) 09 May 2012
Moreover. kindly note that I am not seeking solution for one problem of one individual but only a permanent solution to one type of a problem/injustice faced by unknown number of people from the entire society.
Thanks for your responses.
Anirudh
(Expert) 09 May 2012
Dear Mr. Baskaran,
No one says that one should not try and change the situation in the light of the difficulties/real life experiences that you cite.
BUT ALL THAT I AM SAYING IS THAT IN NO WAY SECTION 4(1)(A) NOTIFICATION CAN BE CALLED 'UNCONSTITUTIONAL' - that is what you started with. Nothing more nothing less.
As a dispassionate person, I am able to draw my line where it has to be drawn.
Baskaran Kanakasabai
(Querist) 09 May 2012
Dear Mr.Anirudh,
My contention is that the deprivation of property of a person in contravention of article 300A of the Indian Constitution by failing to serve notice u/s 4(1) and failing to hear the view/objection of such deprived person u/s 5-A of the LA Act, before such deprivation is unconstitutional?
To that you made a point as to holding the vendor responsible through the indemnity covenant in the sale deed. For argument it holds good in some cases. But in practice it may not. Because in cases like the one I have cited, where the vendor is dead and without legal heirs, there will not be a remedy. Therefore, my point is as to why the government can not be held guilty of contibutory negligence, (besides the vendor) in failing to inform the important fact of a notification pending on a land through its Registrar to the deprived person in contention when such person applied for an EC on such deprived land,before buying such land itself, which act of the government would have prevented such deprivation?
The vendor is also guilty of negligence, but he can bring his illiteracy and lack of legal knowledge to his defence. But the state cannot do so. In this regard I have cited a case of an altogether different nature but involving a comparable logical dilemma in forum-posting and to CJI et al. in 2010.( AIR 1975 P H 259- UOI vs Hindustan Lever). Please have a look and give your response if you please.
Baskaran Kanakasabai
(Querist) 10 May 2012
Union Of India (Uoi) vs Hindustan Lever Limited And Ors. on 8 April, 1974
Equivalent citations: AIR 1975 P H 259
Author: M Verma
Bench: M Verma
Excerpts from the Judgment:
“ 6. 'Negligence' may be defined as omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the human affairs, would do, or something which a prudent and reasonable man would not do.”
“So, negligence is a breach of duty to take care resulting in damage to one whether in person or property. The said duty to take care may be imposed by statute or it may arise due to relation in which one may stand to another,”
“When negligence is breach of duty to take care imposed by law, it may be called statutory negligence, and when it is breach of duty to take care arising out of circumstances of a particular case, it may be termed as actionable negligence.”
“'composite negligence' would arise when negligent acts or omissions of two or more persons, have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and, as such, he is entitled to sue all or any one of the negligent persons for damages. It is no concern of his, whether there is any duty of contribution or indemnity as between the negligent persons.”
“In the case of statutory negligence, the same having arisen out of breach of statutory obligation, neither the defence of contributory negligence nor that of composite negligence, can be open or available to the wrong-doer.”
“When a railway crosses a public carriage road, the authorities owning the Railways are under obligation to erect and maintain good and sufficient gates across the road and must employ proper persons to man the same, so as to keep it open for the traffic and the vehicles to pass when no train is likely to pass and to shut the same when a train is approaching.”
“"The gates or chains of these exempted level crossings may normally be kept open to road traffic but must be closed and securely fastened across the road for the passage of a train or trains or for other railway operations."
“The omission on the part of Kewal to close the gates of the level crossing constituted breach of duty imposed upon him by S. R. 229/3 (b). reproduced above. As such, he was clearly guilty of statutory negligence. The principle that a master is liable for the negligence of his servants, if committed in the course of his employment, is well recognised. If a servant is doing negligently something which he was employed to do carefully, the negligent act would be taken as having been committed in the course of his employment and the master is liable for its consequences. The statutory negligence, referred to above, arising out of the omission on the part of Kewal gateman to close the gates of the level crossing was admittedly committed by him during the course of his employment and, as such the appellant (Union of India), being his employer or master, was undoubtedly liable for the consequences, i.e., for the damages resulting to the plaintiff due to the aforesaid negligence.”
“when the gates of the level crossing were King open and showed green or yellow lights on both sides of the road, indicating signal to the driver of the truck to pass through the level crossing, he cannot be said to be guilty of any negligence.”
“as found above, the accident was mainly due to the negligence shown by Kewal gateman in not closing the gates of the level crossing.
It, thus, follows that the accident was due to the negligence of the servants of the appellant and the findings of the trial Court on issues No. 2 and 6 are correct and the same are affirmed.”
Anirudh
(Expert) 10 May 2012
You are moving from 'unconstituionality' of a provision to now 'negligence'.
Whereas I stick to my stand that the provision is not by any means 'unconstitutional'.
Baskaran Kanakasabai
(Querist) 10 May 2012
The unconstitutionality behind the deprivation is the basic charge and negligence is indicated as the root cause of such deprivation and by itself such negligence becomes an additional charge.
Anirudh
(Expert) 10 May 2012
WISH YOU ALL THE BESTS.
