page8
If items 1to 5 are not complied with, it will be non compliance with item6, which in effect will negate the concept of notice to third parties(especially BFPs and other persons who may have interest or right in the relevant lands, causing a fatal infirmity in the relevant acquisition procedure)
Even if one of the answers to the first 3 questions supra is ‘No’, sec,3.(explanation1) of ToPA,1882 would beviolated and the concept of notice to BFPs would be compromised resulting in fatal procedural lapse in the acquisition, making it invalid.
If even Rule 143(or the corresponding ‘EC’ rule for states other than TN) alone of item 5 is not complied with, the Registrars issuing such erroneous ECs would be guilty and liable for the patent negligence*(refer NCDRC Revision Petition no..1444 of 2004) under item 7 which would per se lead on to the quashing of the underlying acquisition for chronic and fatal defect.
If items 2 to 6 are not complied@ with, such non-compliance will constitute absolute and thorough violation of items 7, 8 & 9
Excerpts from the NCDRC judgment:( NCDRC Revision Petition no..1444 of 2004)Annexure3
*Further, it held that no constitutional system can, either on State necessity or public policy condone negligent functioning of the State or its officers and negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. [N.Nagendra Rao Vs. State of Andhra Pradesh, reported in AIR 1994 SC 2663 and Common Cause Society Vs. Union of India (1999) 6 SCC 667]. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do some thing which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.
“Therefore, if the encumbrance certificate does not contain the complete list of encumbrances affecting the property, then, it would be defective certificate and to that extent it amounts to deficiency in service by the concerned officers.”
“the Registration Rule specifically prescribes what type of precaution should be taken for search and it imposes a duty on the concerned officers”
“The aforesaid Rules, therefore, require strict vigil by the Registration Officer before issuing Encumbrance Certificate and it specifically provides that Encumbrance Certificate should contain complete list of all encumbrances affecting the property in question. If that is not done, it would certainly amount to deficiency in service or patent negligence in discharge of duty which is in the nature of rendering service.”
contd.....
