Transfer of Property
Baskaran Kanakasabai
(Querist) 30 May 2010
This query is : Resolved
The process of Transfer of property or alienation of title of land between a buyer and a seller consists of two distinct aspects. One aspect is the extinguishment of the title of the seller and the other is the creation of the title of the buyer or acquirer. Is this explanation right?
krantiveer
(Expert) 30 May 2010
You are right but every transfer is made by a document which has to be registered, and the stamp duty and registration fees have to be paid. Otherwise the transaction will not be recorded in the record of rights.
Y V Vishweshwar Rao
(Expert) 30 May 2010
Yes- the Transaction of Transfer of rights is between the parties and payment of the Stamp duty is the obligation of the purchaser to get the mutation and get it Registered in the SRO Records as public Document and to relflect in the Encumbrances Certificate obtaiend by any other person !
Baskaran Kanakasabai
(Querist) 30 May 2010
Dear Sirs/Madam
Thank you all for your responses.
Let us assume person 'x' is the registered title holder of land with survey number 107 as on 1st Jan,1989.
If an LAO publishes a notification under 4 (1)of LA Act,1894 on 1st Jan, 1990 for the same land bearing survey number 107 and does not register his notification with SRO concerned, the title for that land will remain unextinguished in the name of 'x' unless and until any instrument that purports to extinguish the title of 'x' and simultaneously create a title in the name of the acquiring Government, is registered by the LAO with the SRO concerned,pertaining to land 107.
In that scenario, when the title of land 107 is still remaining unextinguished in the name of 'x', if another person who is unaware of the LA proceedings pending on that land 107, approaches the SRO concerned and applies for an EC on 1st Jan,1993; the SRO concerned, who is also unaware of the LA proceedings pending on land 107(because the notification under 4(1)has neither been served on him nor has been registered), issues a clean EC authenticating that the title of land 107 is vesting with person 'x' and that there are no encumbrances to that title. Based on that clean EC, person 'y' buys that land 107 from person 'x' through a sale deed which is statutorily registrable compulsorily.
In such a case, who is the legally valid owner of land 107. Person 'y' who holds a registered title or the Government which published the notification but failed to register it?
In this respect I would like to quote a portion from the Scottish Law Commission's discussion paper on "void and voidable titles"-
"Title flows from the register and the register, by definition, cannot be wrong.ā€¯
Now your comments and views please, gentlemen!
N.B: As Sri.Y.V.V.Rao has said, person 'y' has paid the stamp duty & regn fees and got the deed registered and got the mutation recorded in the Book1 of the SRO and also got the mutation done on the revenue records of the Tahsildar and the revenue records of the VAO.
Gentlemen kindly note this point as well:
When person 'y' buys the land, he cares to register his title inspite of the fact that it will cost him more than 10% of the cost of the land towards stamp duty and regn fees, whereas
the LAO does not care to register his lien on the land inspite of the fact that he is exempt from stamp duty and fees.
Also kindly note that title of land 107 flowed from 'x' to 'y' through the SRO because of the failure of the LAO in extinguishing it from flowing so, which he could have done free of cost by registering his notification under 4(1). That is where the LA Act, 1894 is flawed. And that is where the LA Acts of NewZealand, Australia and Mauritius are not flawed, because their laws stipulate that notication under LA is compulsorily registrable with the SRO. That extinguishes flow of title of notified land. In India since such flow of title is not extinguished, alienation of title after 4(1) notification happens.
So is it not a flaw in the law that has not provided for procedures to extinguish such flow of title?
If it is a flaw, then how can the judgments be right in following cases:
1. Bombay High Court: WP 3031 of 2004
2. Supreme Court: 1996 AIR 540
3. Supreme Court: 1995 AIR 812
4. Madras High Court: WP 4417 of 1997
where such flow of title has happened because of failure to register the notification under 4(1)?
There are probably 100s or even over 1000 such cases throughout the country where alienation of title has happened after 4(1) notification. If because of a flaw in the law, thousands of people are deprived of their fundamental right to property, is not the law Unconstitutional?
Baskaran Kanakasabai
(Querist) 30 May 2010
To Sri Balasaheb Pawar
As you have said"every transfer is made by a document which has to be registered, and the stamp duty and registration fees have to be paid. Otherwise the transaction will not be recorded in the record of rights",
in the acquisition of land by government from a person who holds a regitered title to such land,the LA Act exempts govt from stamp duty and fees when acquiring land,but what is the document that has to be registered to record the transaction in the record of rights?
Baskaran Kanakasabai
(Querist) 30 May 2010
To
Sri Y.V.V.Rao
You have said
"Yes- the Transaction of Transfer of rights is between the parties and payment of the Stamp duty is the obligation of the purchaser to get the mutation and get it Registered in the SRO Records as public Document and to relflect in the Encumbrances Certificate obtaiend by any other person"
In the case of govt acquiring land from a registered title holder, the govt is exempted from duty and fees under the LA Act1894, but when is the govt supposed to get the mutatation done in the SRO records and through which instrument to reflect in the EC obtained by any other person?
Baskaran Kanakasabai
(Querist) 30 May 2010
To
Sri.R.K.Makkad
Sri.Kamalesh Soni
Sri.Adv.Rajeev &
Smt.Raki Budhiraja
If the concept of extinguishment of title of the seller or transferor and the creation of title of the buyer or acquirer is present in every incident or occasion of transfer of property, the same should apply to the event when govt acquires land from a registered title holder.
In that case, at which stage of the land acquistion, the govt is supposed to
extinguish the title of the person from whom it acquires land and create a title in its own favour and through which document at the SRO in Book1?
Y V Vishweshwar Rao
(Expert) 02 June 2010
Transfer of Tilte !
Vestign of Title -Acquisition of land
Sale /gift /etc -these are the way of transfers
There is deferecne between Transfer of Property or alienation and Acquisition of property by Govt Under LA Act are deferent in nature
Acquistion by Govt is by force and with compensation and also with solatium & interet - it is not sale .
A Notification U/s 4 & Dclaration Us/ 6 will be issued under LA Act
Award Will be passed u/s 11 and Possession will be taken under Sec 16 of the L A Act
By taking the Possesion u/s 16 the Proerty absolutly vests in the Govt free from Encumbrances -this by Statue /Act - not by any individaul transactions
The question of Registrations and entries of Notification & Delaration in the SRO records- it is not finat stage , there is possibility of Withdral of the acqusition and not taking possesion and and not paying paying compensation and notifcation and Declaration will lapse after two years
After taking Possesion the land will vest in the Govt and Necessary mutations will be made by changing the previous owner and the Survy Numbers will be subdivided accordign to the acquistion and there will other procedure conteplated after the Award is passed & Possesion is taken - Once the land is Vested in Govt - it can not be diverted to previous Owner and all these are by Statute - not by any individaiul acts
The copies of the Award will be submitted to Survey andladn Records , Thahasildar and District Collector and then the Acquistion is final - A copy of the Awards is required to be submitted to SRO for making netries in hsi records
In Recent past Govt Disposed the lands under Section 23 of ULC Act and the said disposal GOs orders are being enetered in the SRO and we will get the Govt Transaction of Disposal in the SRO Office in EC
Your suggestion is Good and the Award copy after taking posesion of the land shall be submitted to SRo fro entring in the SRO Records .
There wil be guide lines for this purpose . We will hope the same , these are the Steps to be taken by Local State Govt under its Reules framed for Acqusition- by Commissioner of land Revenue .
Y V Vishweshwar Rao
(Expert) 02 June 2010
However the prevoous Owner having knowledge and having recieved compesation and with out possesion can nto sell the land to Purchasers . The Implication on the Vendros to be considerared .
There will be vide publicty of Acquistion of Land by GO and Papper/s Publciations and TOM TOm in the Vilage , by these things the acquisition is Notified .
However the L A Proeedigns shall be informed to the SRO for his records / Entry to avoid any incorrect sales and purchases .
Y V Vishweshwar Rao
(Expert) 02 June 2010
By Regd Sale Deed the Vendors Rights are extinquished - it is Personal / Individaul Transaction
By Vesting land under L A Act the rights of the Indivual/Person are Extinquished and Vested in Govt by Statutory Provissions -
Y V Vishweshwar Rao
(Expert) 03 June 2010
As per the Govt exemptions for Stamp Duty and Registration Fee ;-
1-All Agricultural Land Mortgages in favour of banks are being entered in the SRO
2-The ULC Land disposals by Govt to indiovidual Persons are being entered in the SRO
3-The LA Acquistion shall be entered in the SRO Records
Baskaran Kanakasabai
(Querist) 03 June 2010
Dear sir
Thanks very much for your reply.
If the LA shall be entered in the SRO records, when is it entered so?
At what stage of the LA?
In which book of the SRO? Book1 or Book2 or Book3 or Book4 or Book5?
Baskaran Kanakasabai
(Querist) 03 June 2010
Dear Sir,
You have said-
"A copy of the Awards is required to be submitted to SRO for making entries in hsi records"
Please indicate as to whether this is the procedure followed in LA cases in India or this is a rule (under which law) that should be followed.
I am trying to confirm this aspect because in the case cited in part1 of my presentation neither the SRO nor the 500 buyers are not even aware of any acquisition at all because they have not been informed of either the notification,or the declaration or the award and the SRO had conducted 500 registration of alienation of title of registered lands which according to the govt had been notified before 17 years.
Baskaran Kanakasabai
(Querist) 03 June 2010
Please note that the present case I am referring to is where the award has been made and not accepted by the interested persons(40 people) and the LAO has proceeded to remit the award money with the court and where the LAO has not informed anything about the acquisition to the SRO( neither the notification nor the declaration nor the award not even the decree) and not registered any of the instruments with the SRO and has not extinguished the titles of the interested persons in the books of the SRO.
Since the titles remained unextinguished in the register of the SRO the 40 originally interested and notified persons split their 45 acres of land in to smaller parcels of 3 to 10 cents each and sold them to over 500 people who were unaware of the LA proceedings and the SRO issued clean ECs to all such 500 lands and registered them during a 15 year period after notification and the beneficiary corporation is informing the SRO 17 years after notification that the lands cannot be alienated like that.
Y V Vishweshwar Rao
(Expert) 03 June 2010
The Date of Award and Date of Taking Possession under Award and the Date of Registrations by original 40 Persons whos lands are affected in L A Proceedigns - to be closly verified for just conclusion.
Baskaran Kanakasabai
(Querist) 03 June 2010
1. Notification u/s 4 (1) :1990
2. Declaration u/s 6 :1991
3. Award u/s 11(1) :1997
Physical possession never taken till date(till today 03/06/2010).
But as per letter of beneficiary corporation that requisitioned the land, possession was taken in 2004. But all 500 people whose lands are reported to have been taken poseession by the Govt in 2004 are in posseession of the land from the date of purchase of the lands (which ranges between 1991 and 2007) till today. All of them have built concrete houses in their lands and all are living in such houses all the time till date.
Date of registrations of the titles of the oiginal 40 persons ranges between 1975 and 1985.
Date of alienation of their titles subsequently to the 500 people ranges anywhere between 1991 to 2007.
Y V Vishweshwar Rao
(Expert) 03 June 2010
U/s 16 Possesion of land is be taken by the LAO in pursuance of the L A Award U/s 11 adn then the Ladn will be vested in Govt
Baskaran Kanakasabai
(Querist) 03 June 2010
Dear Sir
The lands are in possession of the 500 people who hold registered titles and are living in their houses built on such lands with their family members totalling around 3000 people. The question is as to who is the legally valid owner of such lands :
The 500 people who hold registered titles issued by the SRO or the Govt that conducted the Acquisition but failed to register its lien on the lands for 17 years after 4(1) notification?
Y V Vishweshwar Rao
(Expert) 04 June 2010
The date of Taking possession under Section 16 of LA Act to be confirmed/considere . it should be verified with L A Proceedigns/records - not by bencficiary Comapny Letters .
In the given situation , it is better to file a Writ Petition in the High Court to restrain the LAO and the beneficiary Company from interfering with the possession of House/Plot Owners.
Baskaran Kanakasabai
(Querist) 04 June 2010
Dear Sir
Thanks very much for your continued response to my queries.
Baskaran Kanakasabai
(Querist) 04 June 2010
Dear Sir
Pl. refer to the following portion which is part of your second response to my originally posted query:
"After taking Possesion the land will vest in the Govt and Necessary mutations will be made by changing the previous owner and the Survy Numbers will be subdivided accordign to the acquistion and there will other procedure conteplated after the Award is passed & Possesion is taken - Once the land is Vested in Govt - it can not be diverted to previous Owner and all these are by Statute - not by any individaiul acts "
The copies of the Award will be submitted to Survey andladn Records , Thahasildar and District Collector and then the Acquistion is final - A copy of the Awards is required to be submitted to SRO for making entries in hsi records"
Pl. note the following points:
1. You have said "After taking possession necesssary mutations will be made by changing previous owner".
2.You have said" copies of the award will be submitted to Survey and Land Records, Tahsildar, Collector and SRO for making entries"
Kindly let me know as to where these two set of procedures are mentioned or stipulated. I am very specific about these aspects because they are very crucial in identifying the exact point of failure or malfunction in the LA process.
Y V Vishweshwar Rao
(Expert) 22 July 2010
Just for reference in the context of the above case facts of the LA Case the following Judgment of SC may be considered it is with referent facts
Land acquisition Delayed payment of compensation;-
Mahanadi Coal Fields Ltd V/s Mathais Oram -SC - Judgment-dated 19-7-2010 "SLP(C) No;- 6933/2007 orders dt;- 19-7-2010( STPL Law Site)
Baskaran Kanakasabai
(Querist) 22 July 2010
Dear Sir
Thanks very much for your posting.
As rightly pointed out by the Hon.Judge, the task of the SGI is not over but it has only just begun.
