Legal Question in Real Estate Law in India

Honourable Ladies and Gentlemen,

The following is a universal legal theory of mine.

"Theory of compulsory registrability of notification under compulsory land acquisition":

�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 the theory 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 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 a 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 proceedings 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 the Register, by definition cannot be wrong�. That effectively means that the Register cannot be wrong as long as every valid 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,1894. The Act is preserved like a priceless antiquity with the original flaw and without an amendment to rectify the flaw for the last 116 years. Notification is not registered, but 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.

I would like to quote at this juncture the following from the legal encyclopedia, American Jurisprudence 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)�

Honourable Ladies and Gentlemen,

I request you to examine the theory and let me know your valuable views, observations and comments. If the theory is valid, it will help in identifying quickly as to the LA laws of which countries of the world are flawed and as to which are all not flawed and which are all valid and which are all void in respect of the registrability of the notification under LA.

Thanking you!

Sincerely

Baskaran Kanakasabai

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