Text-Book Example of Arbitrariness

This article is part 48 of my continuous presentation titled "The Flaw in the Law" and deals with a text-book example of arbitrariness in a current land-mark case.

The Flaw in the Law- part 48:

Text-Book example of Arbitrariness in the Sholinganallur Neighbourhood Scheme:

The letter of the EE, TNHB informing the SRO, Neelankarai to stop registration of transactions on a given list of lands located in the Sholinganallur Neighbourhood Scheme and the act of refusal of registration by the SRO, Neelankarai, in respect of such lands and  similar acts by  every other officer  performing such similar act, elsewhere in India  is arbitrary and therefore unconstitutional and ultra vires.

The LAO or other relevant TNHB official should have filed, (under Rule 11(i)),with the concerned SRO, the return of lands acquired under the LA Act, 1894, within 4 months from the date of execution of such return. That would have been intra vires and  in compliance with rule and procedure. Failing to do so, constitutes statutory negligence. On the contrary, instead of doing what the rule prescribes, doing something else after 17 years, and claiming title is precisely an act of arbitrariness, which is what is unconstitutional. If the EE could ask the SRO to stop registration of transactions on an already registered land  at any time he desires, where is the need for a registration law or rule. If the return had been filed in time, the EE would not have to write the impugned letter at all and he would not have to ask the SRO to stop registration, and the victims would not have bought the lands at all at the first hand, because the filed return would have reflected in the File Book1, Book1  and the indexes and therefore  the EC would have reflected the LA proceedings as an act/encumbrance and therefore the potential buyer would have got informed about the LA proceedings pending on the land and would have gone in for buying some other land without such impediments. The present dispute would not have arisen at all.

On the contrary without following the prescribed Regn.Rule even though exempt from fees and trying to enjoy the benefit of registration and claiming title, through a  time-barred letter that by-passess the prescribed procedure, is nothing but a precise text-book example of arbitrariness. Such act, is not only outside law but also infringes upon the right of the victims who have diligently  followed the same Regn. Act in obtaining an EC and in registering their sale deeds as per various procedures prescribed by various sections of the Act , also in the process paying substantial fees and charges for the services.  Adherence to Rule of Law bestows upon such adherers the benefits and protection such law envisages or promisses and not to those who neglect such Rule of Law. That is the logic and purpose of law. Therefore the negligence and arbitrariness of the TNHB officials should not  and cannot defeat the diligence and legality of the rightfully registered owners.

Similarly, the Registration Department should have asked the TNHB as to why the LA return was not filed in time and should have referred  the letter to appropriate authority for  clarification and further action . Instead of doing that, keeping that letter at the SRO for five years and unofficially refusing registration to innocent, less-knowledgeable people orally and not recording reasons for refusal in Book 2, and not reporting the facts in the enquiry conducted  in that regard, are acts of arbitrariness. Where in the Registration Act, the SRO is  empowered to evaluate titles?  Such act itself is arbitrary. If an SRO is doubtful about title he could have referred the matter to higher officials immediately who could have even referred the matter to court, if necessary.  Instead of doing that keeping a dispute like this unsolved for two years is heaping insult upon injury on the affected people and such lethargy leaves a huge question mark on the very efficiency of  one of the largest revenue earning departments of the State. Is it because of lack of responsibility or lack of requisite efficiency levels of the officers or because of lack of fear of  rebuke or reprimand or lack of understanding of the laws and rules in respect of Registration. May I suggest the TN Government and the TN  Registration Department to first publish the Regisra tion Act and the Rules in the current form in the TN Government and Registration Department web-sites as is the case in  respect of other states like Kerala and Karanataka, to start with a fresh initiative at efficiency , transparency and enlightenment of citizens.

There are atleast 15 more flaws, I have identified, in the Registration Act, 1908 and few other Acts related to it. We have worked on one only in the last two years. If the authorities desire, I would like to volunteer( as a little contribution to my country)in that direction and  with the assistance of officials the work could be finished in a month, transforming  the Registration  process to a ship-shape condition, eliminating  loop-holes, streamlining the procedures,  filling the lacunae and thereby preventing unproductive and unwarranted disputes and litigations and appeals and refusals.

The following  excerpts from a presentation corroborates the  arbitrariness of the actions of the TNHB and the SRO, Neelankarai, through numerous case studies:

Courtesy: CONSTITUTION, CORRUPTION by NNLRJ INDIA on June 12, 2009

Ref: http://indialawyers.wordpress.com/2009/06/12/arbitrary-actions-of-the-state-are-in-conflict-with-article-14-right-to-equality-of-the-constitution-of-india/

ARBITRARY ACTIONS OF THE STATE ARE IN CONFLICT WITH ARTICLE 14 (Right to Equality) OF THE CONSTITUTION OF INDIA

“Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness”

“Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you’. This is what men in power must remember, always.Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703, at p.7 18-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:”In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (Dicey–”Law of the Constitution”-Tenth Edn., Introduction cx).”

“In Shrilekha Vidyarthi Vs Union of India

“Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlick, (*), “when it has freed man from the unlimited discretion of some ruler … Where discretion is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilker (*), “means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful.” After Jaisinghani’s case (supra), long strides have been taken in several well-known decisions of this Court expanding the scope of judicial review in such matters. It has been emphasized time and again that arbitrariness is anathema to State action in every sphere and wherever the vice percolates, this Court would not be impeded by technicalities to trace it and strike it down. This is the surest way to ensure the majesty of rule of law guaranteed by the Constitution of India.”

Every discretionary power vested in the executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. In United States V Wunderlich (1951) 342 US 98 Law has reached its first finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered .At times it has been his property that has been invaded, at times his privacy; at times his liberty of movement; at times his freedom of thought; at times his life. Absolute discretion is a ruthless master It is more destructive of freedom than any of mans other invention. John Wilkes (1770) 4 Burr 2528 . Discretion means sound discretion guided by law it must be governed by rule not humor; it must not be arbitrary, vague or fanciful. In a state of governed by the rule of Law, discretion must be confined within clearly defined limits. A decision taken without any principle or rule is the antithesis of a  decision taken in accordance with the rule of Law.In a State governed by the rule of law , discretion can never be absolute. Its exercise has always to be in conformity with rules; in contradistinction to being whimsical and should not stand smack of an attitude of “ so let it be written, so let it be done”. It is important to emphasize that the absence of arbitrary powers is the first essential of the Rule of Law upon which our whole constitutional system is based. In a system governed by the rule of law, discretion when conferred by upon executive authorities, must be confined within clearly defined limits. Aeltemesh Rein, Advocate, Supreme Court Of India Vs Union Of India And Others  (AIR 1988 SC 1768)

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.  of  State Policy : The sweep of Article 14 covers all state action .Non arbitrariness and fairness are the two immobile and unalterable cornerstone of a legal behaviour baseline. Every action even a change of policy in any relam of state activity has to be informed fair and non arbitrary. In E. P. ROYAPPA Vs.STATE OF TAMIL NADU & ANR.

An authority, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the provisions of the Act and the statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of legislative, administrative or quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution.    In Neelima Misra Vs Harinder Kaur Paintal And Others (AIR 1990 SC 1402)

In legislations enacted for general benefit and common good the responsibility is far graver. It demands purposeful approach. The exercise of discretion should be objective. Test of reasonableness is more strict. The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose for which it was authorised to be exercised. Dishonesty is discharge of duty vitiates the action without anything more. An action is bad even without proof of motive of dishonesty, if the authority is found to have acted contrary to reason. In MAHESH CHANDRA Vs. REGIONAL MANAGER, U.P. FINANCIAL CORPORATION AND ORS ( AIR 1993 SC 935)

It is now well-settled as a result of the decisions of this Court in E. P. Rayappa v. State of Tamil Nadu,  and ….. the decisions of this Court in E. P. Rayappa v. State of Tamil Nadu (supra) therefore, and Maneka Gandhi v. Union of India, (1978) S.C. 248, that Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: It must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality.The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Art. 14 and it must characterize every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory. In Ramana Dayaram Shetty Vs International Airport Authority Of India And Others (1979 AIR(SC) 1628 ) .

The expression “arbitrarily” means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. In M/S SHARMA TRANSPORT REP.BY SHRI D.P.SHARMA Vs. GOVERNMENT OF A.P. & ORS.(AIR 2002 SC 322)

Any state action executive , legislative  or judicial is void if it contravenes Art 14. In Budhan v State of Bihar (AIR 1995 SC 191)

A statute may expressly make a discrimination between persons or things or may confer power on an authority who would be in a position to do so. Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indiscriminately. In State Of Andhra Pradesh And Another Vs  Nalla Raja Reddy And Others (AIR 1967 1458)

The absence of arbitrary power is the first postulate of rule of law upon which out whole Constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.  In Som Raj vs State of Haryana (AIR 1990 SC 1176)