Executive cannot deny registration

The right to property is seen as central to the bouquet of rights enjoyed by the citizens. It is perceived by a majority as inalienable and fundamental to the rights of the citizen. The acres he buys or the small piece on which he builds his dreams and constructs a one room dwelling place-nay sometimes the tin shed for his existence as a euphemism of a home is the ‘property’ he owns.

Thus is precious a sheet of paper that registers this ownership and title to the property. While on the one hand the common man holds this document precious and close to his heart, there are growing stories of sham documents and instances that reflect the growing ingenuity of land sharks to grab property.

Caught in the crossfire the government makes some moves, even inelegant ones to ensure that properties do not move to private hands without the authority of law. However in recent times numerous instances of the government stepping in to declare unilaterally that the property is question does not belong to the citizen have raised its head. It is in this and allied contexts that a recent verdict of Justice SV Bhatt becomes important.

Justice SV Bhatt while dealing with a batch of writ pleas on the power of the authorities under the Registration Act to refuse registration of such documents. In a 116 paragraphs verdict, the judge declared, “Refusal to receive or take up a document presented for registration amounts to abdication of functions assigned to the Registration Department under the Act.

The court went into the various legal provisions, the pronouncements on various aspects of the matter including related legislations and faulted the manner in which authorities under the Endowments Act and Wakf Act safeguard the properties. The lack of effort in protecting the properties held by institutions is matter of introspection and necessary steps are taken in accordance with law on case to case basis.”

The court was dealing with a batch of writ pleas questioning the orders of the authorities prohibiting registration of documents of properties enlisted. Certain portions of the properties were claimed to be properties of the Hattiramji Mutt. Aware of the growing branch of the litigation where citizens are forced to invoke the courts extra ordinary jurisdiction, Justice Bhatt decided to step in with an authoritative pronouncement and authoritative indeed it is.

He labours to take in the sweep of various legislations and judgements on the issue and also culls out the crux of the issue from the constitutional perceptive. In a verdict totally devoid of frills or gloss he takes a near mathematical approach of placing the statutes in perspective and arrives at the conclusions leading to the directions that the authorities cannot in abdication of their statutory duty take umbrage of communications on title and deprive.

Justice Bhatt even before dissecting the provisions in the context of the lis states through earlier verdicts that the real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected.

Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of section, its non-registration is no bar to its being admitted in evidence. He copiously details the various documents that could fall within the prohibited area of registration as also the various legislations that could parallel protect properties.

He caveats his pronouncement with precision when he says, “No judicial review is undertaken to conclude whether Section 22-A of the Act is a bane or boon in addressing the mischief of preventing illegal transactions or alternatively opened up flood gates for premature litigation, adjudication of rights of institutions etc., under the Article 226 of the Constitution of India etc., in the writ petitions filed complaining refusal to receive or to register a document.”

He then delivers the punch, “From the reported and unreported decisions in this behalf, this court is constrained to take judicial notice of growing inconvenience to citizens in the registration of documents, the permeating visible and invisible corruption, suffered in silence by the citizens arbitrary and unauthorized preparation of details by the departments concerned.

The net effect of these acts is failure of the rule of law and Article 300-A of the Constitution. From the statement of objects and reasons or the literal meaning or purposive meaning of Section 22-A, it can be concluded that the Legislature never intended to derail the procedure of rule of law on proprietary rights of citizens vis-à-vis Government/Endowment/Wakf etc.”

Finality cannot be attached to decision of executive when such things are in exclusive domain of judiciary. “If Section 22-A is treated as prohibition for registration of documents covered by the list submitted by Endowments/Wakf/Government, then in the considered view of this Court, the lists communicated by the departments are denying alleged proprietary right of a claimant of the property without adjudication by a competent Court/Tribunal and contrary to the procedure stipulated by law.”

By L Ravichander