Madras High Court Strikes Down Section 77A Of Registration (Tamil Nadu Second Amendment) Act As Unconstitutional

The bench of Justice SS Sundar and Justice N Senthilkumar held that through the amendment, the registering authority was given an unfettered, unguided, and unlimited power which may end up causing irretrievable damage to the real owners of the properties and affect their rights.

“This Court with its judicial propreitory and wisdom is of the opinion that the power under Section 77-A though may in a few cases come in aid for an innocent land owner to get the registered instrument starring against at him, ineffective without the aid of Civil Court which may take considerable time, will cause unimaginable hardship and irretrievable damage to the real owners of the property in lakhs of cases with the unfettered, unguided and unlimited power under Section 77-A to unsettle transactions and to make properties litigious thereby affecting substantial rights of owners of properties,” the court observed.

Section 77A was introduced pursuant to the Registration [Tamil Nadu Second Amendment Act] 2021. Through this Section, the District Registrar was conferred with the power to cancel the registration of a document that was made in contravention of Section 22A and Section 22B. As per the Section, The District Registrar was to issue notices to all concerned parties, whose rights might be affected by the cancellation to explain why the instrument should not be canceled and if the Registrar was of the opinion that there was fraud involved, he/she could cancel the instrument.

The court noted that though the Section contemplates issuance of notice, the Registrar could cancel the instrument without even assigning any reason. The court noted that the power given to the Registrar was without restriction or a guideline which may lead to corruption and blackmailing by land grabbers resulting in serious injury to bonafide purchasers who would be deprived of their right without a statutory remedy.

Attempt To Create Forum Parallel To Judiciary

The court also noted that the amendment was introduced without any wisdom or bonafide and that the legislation was nothing but an attempt to create a forum that was parallel to the judiciary by conferring wide powers to the executive to resolve issues which were beyond its competence.

The court noted that the purpose of the Registration Act was to merely provide a method pf public registration of documents to give information to the people regarding their legal rights and obligations arising or affecting a particular property and to perpetuate documents that may be of legal importance. The court added that issues such as fraud were to be raised before the Civil court which was equipped to deal with complex issues like title.

The court observed that through the amendment, a District Registrar, who was not acquainted with legal principles was made to decide on issued such as title. The court added that when such judicial powers were given to executives who lacked the legal acumen, damages were likely in the process.

“The power is now given to the District Registrar whose qualification prescribed cannot be compared with a judicial officer who is trained to decide any contentious issue judiciously. The District Registrar who is not even a law graduate or acquainted with legal principles but bound by Circulars rather than precedents, is now supposed to adjudicate disputes on title. The District Registrar is not competent to decide complicated issues involving questions of law and facts. Having regard to the qualification required / prescribed to the post, we cannot expect the District Registrar to have a judicially trained mind. When the power of Civil Court is alternatively given to an executive authority without any guidelines to seek parallel remedy, this Court is unable to imagine the damages that are likely in the process,” the court said.

The court also remarked that when qualified and trained judges were available, providing a parallel remedy before the executive to decide the legal sanctity of a registered document was unconstitutional. The court added that as per Article 14 of the constitution, every person had a right to get their rights adjudicated by a Forum/Tribunal which exercised judicial power in an impartial and independent way and by giving these powers to the executive, the fundamental rights were affected.

The court pointed out that, unlike judges, the District Registrar was not an independent authority but a government servant and as such it was possible that the District Registrar would show favoritism while dealing with disputes where the Government or revenue was making a rival claim. The court also remarked that when the executive authority was given unguided power, it could also be misused to invalidate even genuine transactions in the absence of guidelines. Thus, the court held that giving these quasi-judicial powers to the executive would also hamper with the independence of the judiciary, which is an essential feature of the Constitution.

Thus, the court held that the Section was unconstitutional.

Citation: 2024 LiveLaw (Mad) 299

Case Title: M Kathirvel v The Inspector General of Registration

Case No: WP.Nos.10291/2022 etc batch