interpretation of an observation of a judge
Baskaran Kanakasabai
(Querist) 07 June 2010
This query is : Resolved
If a citizen of India wants the observation of a judge( H/c as well as S/c) to be interpreted or explained by the same judge, can a citizen contact the judge directly and seek a clarification or explanation?
Is there anything illegal about it?
example:SC 1996 AIR 540
The honourable Judge has observed as follows:
“2. The object of publication of the
notification under Section 4 [1] is notice to everyone that
the land is needed or is likely to be needed for public
purpose and the acquisition proceedings points out an
impediment to anyone to encumber the land acquired
thereunder.”
and I as a citizen want to seek a clarification from the judge as to how a notification u/s 4(1) can become a notice to everyone.
I would like to present my view in that regard as follows:
My view is- such publication of the notification will not amount to notice to everyone. What will amount to notice to everyone is nothing but registering such notification under 4(1) in the registers of the ROD against the survey number intended to be acquired.
And in support of my view I would like to quote the Hong Kong Land Title Ordinance which defines as follows:
Sec.16 of Hong Kong Land Title Ordinance:
"Entry in Title register constitutes notice to all persons.
All persons are deemed to have notice of every entry in the Title Register"
and I would like also to quote in support of my view, the Transfer of Property Act, 1882, which says:
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
PROVIDED that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act."
and I would like to add that whether an instrument is required by law to be registered or not is to be decided by legislations and therefore a citizen can be said to have notice of an instrument only when it is registered in the registers of the Registrar, irrespective of whether it is required by law to be registered or not.
If the Government intends all persons to have notice of an instrument then it should get such instrument registered.
Raj Kumar Makkad
(Expert) 07 June 2010
I have various times shown my complete acceptance of your point of view. So far as public notice is concerned, definitely it requires modification in LA Act.
Baskaran Kanakasabai
(Querist) 08 June 2010
Dear Sir
Thanks very much for your concurrence.
But if the honourable judge who made such observation and judgment is let known about the current developments and discovery regarding the LA Act and if he is convinced that he has erred, that will facilitate the early amendment of the Act.
Thats why I queried about the legality of a citizen contacting the same judge and seeking a clarification.
Raj Kumar Makkad
(Expert) 08 June 2010
There is no provision in law allowing common man not party to the decided suit/petition to contact the same judge and to seek his clarification over his delivered judgment.
