Registration deficiency syndrome

Registration Deficiency Syndrome (RDS):

Chapter 1

The following is my theory of a phenomenon I have observed in India. I have analyzed various aspects of the phenomenon and verified empirical evidences in the form of documents pertaining to the relevant cases and symptoms detailed below. Everyone is welcome to examine the presentation and give feedback both in respect of empirical support or falsification (if any) by referring to any instance of the numerous cases that have been affected by the syndrome in the past 100 years.

This is a systemic social disorder found in government systems, especially in India (and likely to be found in Pakistan, Bangladesh, Sri Lanka and Myanmar extrapolating the effect of the ‘Lansdowne plate-flaw’*), manifested by a characteristic set of antisocial but identifiable symptoms or signs.

 This presentation is probably the first ever attempt to describe and prove methodically the above-said phenomenon as a curable disorder, born out of human error. The fact remains that till this moment no individual or authority, has identified/reported the logical link between certain apparently unlinked human actions or inactions and functions or malfunctions,   in order to figure out that there is a thoroughbred, fully grown and anonymous disorder silently at work in the very core of the government system.

The syndrome undermines the efficiency and judiciousness of the host system and causes grave, imperceptible and injudicious economic injury, especially to innocent citizens, whoever comes in to its vicious ambit. Its causative factors are found in the legislative or executive branches of the government. Although the curative powers exist with the judiciary branch of the government, they have not been applied so far in India, because of the fact that the syndrome remains undetected and undefined till now. If detected, the syndrome could be cured judiciously. Lack of deep and investigative reasoning, failure to detect the root cause, lack of awareness of relevant laws, inefficient advocacy, erroneous rationes decidendi and resultant erroneous judicial precedents for many decades have resulted in the syndrome establishing itself like a normality or order rather than getting condemned and blacklisted as a disorder. The syndrome manifests itself in   certain typical issues relating to land especially between Government and the registered owners in respect of one and the same land.

The abbreviations used in this presentation:

EC         : Encumbrance Certificate

LA         : Land Acquisition

LAO      : Land Acquisition Officer

L A Act : Land Acquisition Act

LD         : Legislative Deficiency

*-Landsdowne Plate-Flaw: Refer article in lawyersclubindia.com

RDS      : Registration Deficiency Syndrome

RLA       : Return of Lands Acquired under the L A Act.

SR         : Sub-Registrar

SRO      : Sub-Registrar’s Office

S.O       : Standing Order

SN         : Statutory Negligence

ToPA    : Transfer of Property Act. 1882

TN        : Tamil Nadu

TNHB   : Tamil Nadu Housing Board

u/s       : under section

UDHR  : Universal Declaration of Human Rights

UoI      : Union of India

The identifiable causes of the syndrome are:

1.      Legislative Deficiency in terms of  absence or insufficiency or ambiguity in respect of laws to effectively prescribe for the compulsory registrability of land related documents/instruments that intend or purport or  imply or operate or tend to create or declare or  assign or limit or extinguish or cancel or revoke or modify or rectify or encumber or impede or cloud or affect, whether in present or in future, any right, title or interest or value, whether vested or contingent,  in immovable property;

2.      Statutory Negligence in failing to comply with such appropriate laws (constituting breach of duty imposed upon a person by such laws) where they are in place or effect.

 

The common and identifiable causers of the syndrome are:

1.      In respect of cause 1 cited above, the responsible causer in general is the legislative branch of the relevant government.

2.      In respect of cause 2 cited above, the responsible causer is the person who commits the guilt of statutory negligence by failing to act as prescribed by such laws, where they are in place or effect(e.g. the LAO/SR in the Chennai Petro case and the infamous Sholinganallur Neighbourhood Scheme cases )

The usual victims of the syndrome are the citizens, especially innocent buyers of land.

Basic types of the Syndrome: 

I have so far identified two main strains of this syndrome (with numerous substrains) viz.,

1.      RDS strain 1(LD): Legislative deficiency in respect of prescribing for the effective registrability of crucial documents pertaining to land is the cause of this strain of the syndrome and therefore named after such cause.

2.      RDS strain 2(SN)  : Statutory Negligence in failing to register such documents as required by law where such laws exist or are in place, is the cause of this strain of the syndrome and therefore named after such cause.

I have been observing and recording a multitude of substrains of these two main strains throughout India with tens of thousands of victims affected by such strains and substrains. I am detailing RDS-strain2 (SN)-substrain 1-(RLA), in this presentation( because of the fact that heavy casualties currently being observed/reported are due to this particular substrain )which is based on case studies relevant to Tamilnadu State.

RDS- strain 2(SN)-substrain 1(RLA) (evolved  after 28.06.1949 in Tamilnadu):

Classical  symptoms and features: (till date of publication of this presentation)

1.      Victim (vendee) would have obtained an EC from the registrar on a specific land, showing nil encumbrances and would have proceeded to buy the relevant land from the vendor through a registered sale deed accompanied by delivery of possession. The vendee would subsequently have obtained necessary mutation in respect of title of the land in the relevant revenue records. After some months or years or decades, some Government body would claim ownership of the land in the possession of such vendee, under the premises of L A proceedings stated to have been undertaken prior to the date of purchase of the land by the vendee.

2.      As in the case of a land, not under acquisition, the EC issued on a land under acquisition also would not reflect the facts of LA proceedings relevant to that land even after decades after notification, declaration, award and possession( which is a mockery of TN Registration Department S.O 927(iii) which purports that the EC on a land under acquisition by the government should reflect all essential details of such acquisition, upon registration of the relevant RLA).This is the most misleading feature of the syndrome.

3.      The acquiring authority or its beneficiary would claim the land from the vendee and would even accuse that the vendee encroached upon its acquired land.

4.      The acquiring authority would state that the land had been taken possession after following mandatory procedures. But it would not state as to who gave delivery of possession and would not explain as to whether the possession was given by the notified person with consent or as to whether the possession was obtained through Magistrate enforced surrender u/s 47 of the LA Act (which are the statutory modes of taking possession contemplated by the L A Act). But the land in fact would be in the physical possession of the vendee from the date of his/her purchase through the time of the litigation.

5.      Subsequently or concurrently, (even after many years or decades after date of notification), the same SRO which registered the vendee’s sale deed would refuse to register (which is an ex facie or plain vanilla violation of  TN Registration Department S.O 664) any transaction on the vendee’s land citing the objection(arbitrariness of state action starts right at this point) of an acquisition authority or its beneficiary that the land had been acquired under the LA Act long back, even before the vendee purchased the land. The relevant SR would not question such objecting acquisition authority as to whether the latter filed the RLA as required by TN Regn Rule 21(ii). The relevant SR would not reveal the fact as to whether he filed such RLA as required by Rule 11(1)(d). (Every acquisition authority or the relevant requisitioning body should explore as to why the need for instructing an SRO not to register any transaction on a notified land arose? It was because of the statutory negligence of the relevant LAO in failing to register, within the stipulated time, the RLA as required by Rule 21(ii). But for which there would not have been a need to inform the SRO that the relevant land had been acquired under L A Act, because the SRO would be already aware of such fact through the RLA filed in his File Book1 and through the corresponding entries in his own registers and indexes.)

6.      The matter would go to court and the acquiring authority would state in court that the land had been duly acquired by/after following all mandatory procedures of the L A Act. The court would then  declare that the land legally belonged to the acquiring authority as per proceedings under the L A Act and the vendee would be deprived of his land.(e.g., 1996 AIR 3377- TNHB vs. VISWAM, WRIT PETITION.NO.7153 OF 1997 of the Madras High Court(Hosur case),

WRIT APPEAL NO.419 of 2006   and WAMP.No.895 of 2006 of the Madras High Court   (The Chennai Petro case)).

7.      As in the case of Chennai Petro case (as well as in all other similar cases of this syndrome), the subsequent buyers would stand deprived of their lands at the end of the judicial process in the name the L A Act, 1894. If a person is to be deprived of his land in the premises of the L A Act, 1894, without violating articles 14(“Equality before law and equal protection of laws”) & 300-A (“No person shall be deprived of his land save by authority of law”) of the Indian Constitution & article 7 (“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.) & 17(ii) (“No one shall be arbitrarily deprived of his property.”) of the UDHR, he/she must have been at least served a notice u/s 4(1), given a hearing u/s 5A and given a compensation u/s 11.

But the petitioners of the Chennai Petro case and every other similar case under RDS-strain2(SN)-substrain1(RLA) would have never

A) Either received a notification u/s 4(1)

B) Or been given a hearing u/s 5A

C) Or been paid a compensation u/s 11.

Yet tens of thousands such innocent subsequent buyers in India have been getting deprived of their valuable lands since 1894 till date without notice, hearing and compensation in the name of law after a so-called “judicial process.” How can anyone with a reasonable level of judiciousness, reason or logic digest or approve this act of  social destruction(although unintended) by the government and its officials in a country proclaimed to be run under rules of law and proclaimed to be a signatory to various international human rights conventions.

Therefore camouflaged unconstitutionality and human rights violation is the hallmark of this strain of the syndrome and impalpable contravention of the UDHR is its crownjewel.

Articles 14 of the Indian Constitution and Article 7 of the UDHR are about Equality before law and equal protection of laws. In the event of direct acquisition from a notified person, such person is deprived of his land, but in the process of such deprivation, such person  is given a notice, a hearing and a compensation which is in perfect compliance with Article 300-A of the Indian constitution and article 17(ii) of the UDHR which are about depriving someone  of his land under rule of law and without arbitrariness in the process. Whereas in the Chennai Petro case and all other similar RDS- strain 2(SN)-substrain 1(RLA) cases, the person who is deprived of his land is not the notified person, but the subsequent buyer . The process of deprivation of land of such subsequent buyer happens without a notice u/s 4(1), a hearing u/s5-A and a compensation and that is where lies the fallacy of the  taken –for-granted argument of  constitutionality  in all such cases  and that is where the camouflage of unconstitutionality and the grave but imperceptible human rights violation gets exposed. Under which law the deprivation of lands of  thousands of innocent subsequent buyers in the past 100 years was carried out? Why the inequality in the treatment to the notified landowner and the subsequent buyer. The subsequent buyer purchases the land only because of the statutory negligence of the LAO/SR in failing to impart notice as defined by sec.3 of the ToPA, 1882. It is no fault of his. It must be  realized that the innocent subsequent buyer is denied equality in treatment because of the statutory negligence of the relevant LAO/SR, but for which such buyer would and could not have purchased such notified lands and would not  have been subjected to such unconstitutionality.

There would be neither a contention from anyone nor an explanation either from the acquiring authority or the judiciary as to why the victims should be or how they could be deprived of their property, without being served a notice or given a hearing and due compensation. No person or authority has till date dared to explain any rationale as to why such innocent subsequent buyers of land should be deprived of their lands year after year since 1894, in the name of law. What crime they did in order to deserve such a punishment which would not be meted even to worst possible criminals in any democratic society.  Should compulsory land acquisition become inevitable in certain cases and considering the equally inevitable mandatoriness of constitutionality in every state action and the international necessity for strict adherence to the UDHR provisions  in the syndrome affected cases, the relevant land acquisition proceedings should be declared null and void for the violations supra and fresh project assessment should be undertaken and if found feasible, fresh L A notifications could be issued in accordance with law and  without repeating the errors of the past.

 

7. If the vendee’s counsel prayed for reconveyance( inappropriate and erroneous prayer; the appropriate and right prayer should have been as to whether the acquisition was constitutionally valid and as to who had the right to the property concerned) of the land to the vendee, the court would direct the vendee to approach the acquiring government in that regard. The acquiring Government would say that the acquisition was complete and since the land was needed for the project, it could not be reconveyed.( e.g.,  WPMP NO.37608/05 and  numerous other similar cases of the Madras High Court under the Sholinganallur Neighbourhood Scheme).

8. In the relevant cases, the acquiring authority would not state as to whether it followed all the statutory procedures to be followed in respect of registration of instruments/documents pertaining to the very same acquired land under the Registration Act, 1908 and the Rules made under it or under the ToPA, 1882.

9. To be precise, the acquiring authority would not state as to whether it presented the RLA (Return of lands acquired under the LA Act) as required by TN Registration Rule 21(ii) (or corresponding rule in other states for similar cases) while it would state that it complied with all provisions of the L A Act in respect of the acquisition.

10. The counsel of the vendee and even the Hon. Judges relevant to the cases (due to lack of awareness of the very existence of the relevant registration rules or their crucial applicability in the relevant cases or their strategic importance and relevance to the potential outcome of the dispute or rather the impending judgment on the case) would not raise the same point as to Registration as a question of either fact or law. The Hon. Judges would not have raised the same question, even for their own clarification (e.g. the Chennai Petro case) as to confirm compliance of the acquisition authority to sec.3 of the ToPA, 1882 to constitute valid notice to a subsequent buyer.

11.If a person applied with the relevant registrar, for a certified copy of the RLA as provided by S.O 993(d), the SR would not be able to provide it( against TN Registration Department S.O 993(d)) , since the RLA would have never been filed.

       12. The details of the LA Award by the LAO would not have been indexed as required by S.Os 929

              (p)(i),(ii),(iii) & (iv) in spite of the meticulous specifications and caveats inscribed therein.

 

Critical symptoms and diagnostic tests

Symptoms 1 and 5 are critical because they are the evidence of claim of title of a registered land by someone other than the registered owner. In the event of any one of these two symptoms showing up, the vendee should apply to the relevant SR, for an EC (for a period starting from the date of L A notification to the date of EC application) for the land in dispute and for a certified copy of the RLA pertaining to Rules 11(1) (d) and 21(ii) as provided by TN registration S.O 993(d). If the SR is unable to provide the certified copy and issues an EC which does not reflect the facts relevant to the acquisition proceedings, that will confirm presence of RDS-strain2-substrain1(RLA) in the executive branch of the relevant Government system.

Causes of the disorder(RDS-strain2-substrain1(RLA))

1.      Statutory Negligence of the LAO

2.      Statutory Negligence of the Sub-Registrar

Effects: The most serious, direct and concerning effect is the unconstitutional, unexplained, illogical, illegal, arbitrary and atrocious deprivation of valuable property of the person who comes in to the infectious ambit of the syndrome.  Such deprived person would not have been served the notice u/s 4(1), would not have been given a hearing u/s 5A or compensation u/s 11 of the L A Act, 1894 and yet he would stand deprived of his land in the name of ‘law’.

Treatment:

On confirmation of RDS-strain2-substrain1 (RLA), the relevant Government/ Court of law should confirm   from the concerned LAO as to whether he/she presented, within the time stipulated by the Registration Act, 1908, the RLA for registration in respect of the relevant acquisition as required by TN registration Rule 21(ii). If the answer of the LAO is negative, there we have the cause (type1) of the syndrome and the LAO should be held guilty of statutory negligence and the relevant acquisition should be revoked/withdrawn/dropped or declared null and void.

 

Proof of Statutory Negligence in RDS- STRAIN 2- SUBSTRAIN1/RLA

 

                                                                    917- to take special care in preparing indexes because they are the

property.

both as claimants and executants;

 

 

 

929(p)(iv) The name of the owner of property affected by an award shall be indexed both

The Duty

The relevant duty (imposed by statute) of an LAO is to present in time, the RLA for Registration in the manner prescribed by law as cited below. It is the duty(imposed by statute) of the SR to register it , endorse it, make relevant entries, carry out the cross-referencing and indexing and  reflect all  relevant details of the land acquisition proceedings in the EC as prescribed by  the relevant rules and standing orders cited below.

Registration Act, 1908 sec.88:

Registration of documents executed by government officers or certain public functionaries

(2) Any instrument executed by or in favor of an officer of government or any other person referred to in sub-section (1) may be presented for registration in such manner as may be prescribed by rules made under section 69.

(3) The registering officer to whom any instrument is presented for registration under this section may, if he thinks fit, refer to any Secretary to Government or to such officer of government or other person referred to in sub-section (1) for information respecting the same and, on being satisfied of the execution thereof, shall register the instrument.]

Sec.69:Power of Inspector General to superintend registration offices and make rules:- (1) The Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government, and shall have power to make rules consistent with this act;-

(gg): regulating the manner in which the instruments referred to in sub-section (2) of section 88 may be presented for registration:

(h) Declaring particulars to be contained in Indexes nos.I,II,III and IV, respectively:

(2) The rules so made shall be submitted to the State Government for approval, and after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act.

TN Registration Rules, 1949 made u/s 69 of the Registration Act, 1908:

21(ii): A document referred to in sec 88(2) may be  presented through a messenger with a covering letter signed by the Government officer or other person concerned referred to in sec.88(1) of the Act.

(iii) A document shall not be accepted if transmitted by post.

11(i): A file book shall be maintained in each registration office corresponding with BOOK 1. In this shall be filed

(d) returns of lands acquired under the Land  Acquisition Act;

90(ii): The endorsement of presentation made on a document presented under rule 21(ii) shall mention the number and date of the covering letter with which it is presented and the designation of the Government Officer or other person concerned.

114(ix): When a document is registered under this rule, a note of its registration in the file book shall be entered in the register book in which it would otherwise have been registered. This No……filed in the book…… volume……

116-A: On the registration of a document, which revokes, or cancels or rectifies an error in or modifies the terms of a document previously registered in the same class of register book or of a return of lands acquired under the Land Acquisition Act or of a document received and filed u/s 89 of the Act, vide Rule 11 supra or on the receipt of a communication from a revenue officer or from a Court which intimates a similar revocation, cancellation, rectification or modification, a note shall be entered at the foot of the entry of the latter document or communication as under-

“This document/communication revokes (cancels, rectifies or modifies) the document No………of 19….. Copied/filed/the return filed at pages … volume…. Of book/File book/File Book 1” and

At the foot of the previous entry or of the document previously registered or filed a note shall be entered as shown below:-

“This document/return has been revoked(cancelled, rectified or modified) by document No…..of 19…copied/document  filed /the return filed at pages volume…… of book/File Book/File Book 1”

(b) When the revocation, cancellation, rectification or modification is of a document relating to immovable property, a corresponding note shall be entered in Index No.II and when it relates to the rectification of any particulars entered in Index I,II,III or IV, a note of rectification shall also be entered in the respective index against the particular item rectified.

143: A certificate of encumbrance shall contain a complete list of all acts and encumbrances affecting the property in question.

TN Registration Department Standing Orders:

902-notes under 116(a) to be signed by registering officer.

only guide for tracing documents and encumbrances affecting title to

918(a)doc to be indexed as soon as it is filed in a register.

927(ii) instructions in rule 116 framed u/s 69 of the Regn Act should be followed in entering the notes regarding the  communication.

927(iii)Entries relating to these communications in the indexes should also be included in the Encumbrance certificates  Issued.

929(p)(i)In the following cases the names of all the persons whose rights are affected by a document(executed by or in  favour of Government) shall be indexed929(p)(i)(2) an award under the Land Acquisition Act;

929(p)(ii) the designation of the Court or the Collector or Revenue or other Officer shall be indexed as executants

929(p)(iii) In the case of awards under the L A Act, the name of the person or body or the department of Government (and not simply"Government(Arasu)" for whose benefit the lands may be acquired shall be indexed as claimant.

as executants and claimants.

940(a) the return to be indexed in the indexes of the year of receipt of the return

940(b)In the column, 'date of execution' shall be entered the date on which the document was signed.

940( c ) In the column date of presentation, shall be entered the date of receipt of the document

(d) In the case of an application for a certified copy of a. return of land acquired

under the Land Acquisition Act referred to in Registration Rule 11 (1) (d) relating to

several items of properties owned by different individuals, a. single search and copying fee

shall be levied.

 

                                                                                 The Breach

The LAO did not present the RLA for registration.  Therefore the SR could not and did not register it, or endorse it, or make entries, or do the cross-referencing, or do the indexing especially of the details of the award, or reflect any detail of the Land acquisition proceedings in the EC. Simply put nothing was done by any Government officer concerned as prescribed by sec.3 of ToPA, or sec.88 (2), (3) of the Registration Act or as prescribed by any TN Registration Rule or S.O listed above. Such omission or breach constitutes not only statutory negligence but also constitutional negligence in the context of Article 300-A, in depriving  a person of his property  without following specifically prescribed laws, rules and orders.

 

The Causation

The breach of duty by the LAO and/or the SR, led the subsequent buyer who applied for EC, to believe that there was no impediment in buying the land in respect of which a Nil EC (or EC without any detail of the completed or pending proceedings of the relevant L A) was issued by the SR. Had the EC contained any detail in respect of the Acquisition proceedings, the person (the subsequent buyer) who applied for EC, would not have gone ahead to buy such land. Had he not bought such land, he would not have to lose it as happened in the case of Chennai Petro or any other similar case for that matter. For an analogy, as in the case of UoI vs. Hindustan Lever,( AIR 1975 P H 259) had the gate-keeper not kept the gate open and had he not showed the green signal before the arrival of an impending train , the truck driver would not have dared to cross the level-crossing and the accident would not have happened at all.

The But for test: But for the negligence of the LAO /SR, the subsequent buyer would have had knowledge of the L A  pending or acquired status of the land  through the EC and would not and could not have purchased the land and lost it as  it happened in the Chennai Petro case and every other similar case since 1949 till date.

·        The economic injury that happened to the subsequent buyer who purchased a land unaware of the LA proceedings pending behind a land was undoubtedly caused by the breach of duty of the LAO/SR.

                      

                                      

                                                                    The Damages

“So, negligence is a breach of duty to take care resulting in damage to one whether in person or property. The said duty to take care may be imposed by statute or it may arise due to relation in which one may stand to another,”

“When negligence is breach of duty to take care imposed by law, it may be called statutory negligence, and when it is breach of duty to take care arising out of circumstances of a particular case, it may be termed as actionable negligence.”

“'composite negligence' would arise when negligent acts or omissions of two or more persons, have caused damage to a third person. In such a case, the said third person does not contribute to the mishap or to the damage and, as such, he is entitled to sue all or any one of the negligent persons for damages. It is no concern of his, whether there is any duty of contribution or indemnity as between the negligent persons.”

“In the case of statutory negligence, the same having arisen out of breach of statutory obligation, neither the defence of contributory negligence nor that of composite negligence, can be open or available to the wrong-doer.”

“I am supported in this view by Bailey v. Geddes, (1938) 1 KB 156, and Caswell v. Powell Duffryn Associated Collieries Ltd., (1940) AC 152.”

“When a railway crosses a public carriage road, the authorities owning the Railways are under obligation to erect and maintain good and sufficient gates across the road and must employ proper persons to man the same, so as to keep it open for the traffic and the vehicles to pass when no train is likely to pass and to shut the same when a train is approaching.”

“"The gates or chains of these exempted level crossings may normally be kept open to road traffic but must be closed and securely fastened across the road for the passage of a train or trains or for other railway operations."

“The omission on the part of Kewal to close the gates of the level crossing constituted breach of duty imposed upon him by S. R. 229/3 (b). reproduced above. As such, he was clearly guilty of statutory negligence. The principle that a master is liable for the negligence of his servants, if committed in the course of his employment, is well recognised. If a servant is doing negligently something which he was employed to do carefully, the negligent act would be taken as having been committed in the course of his employment and the master is liable for its consequences. The statutory negligence, referred to above, arising out of the omission on the part of Kewal gateman to close the gates of the level crossing was admittedly committed by him during the course of his employment and, as such the appellant (Union of India), being his employer or master, was undoubtedly liable for the consequences, i.e., for the damages resulting to the plaintiff due to the aforesaid negligence.”

“when the gates of the level crossing were being open and showed green or yellow lights on both sides of the road, indicating signal to the driver of the truck to pass through the level crossing, he cannot be said to be guilty of any negligence.”

“as found above, the accident was mainly due to the negligence shown by Kewal gateman in not closing the gates of the level crossing.

It, thus, follows that the accident was due to the negligence of the servants of the appellant and the findings of the trial Court on issues No. 2 and 6 are correct and the same are affirmed.”

The position of the innocent buyer of a land (as in the Chennai Petro case and in all Sholinganallur cases and all other similar cases (RDS strain2-substrain1/RLA) involving the subsequent buyers), who is unaware that such land is under LA notification/award is akin to that of the driver of the truck who drives through the open gates of a level-crossing after being shown green lights. Therefore, such buyer of a land cannot be held guilty of any negligence. On the contrary the relevant LAO/SR should be held guilty of statutory negligence and the relevant acquisitions should be declared unconstitutional (and therefore void) for not complying with procedures laid down by sec.3 of the ToPA, 1882 and sec 88(2) of the Regn. Act, 1908 and TN Regn. rules 1949 and the TN Regn. Department S.Os (corresponding Regn. rules and S.Os in other states).

If the logic and text of the judgment supra are applied to the Chennai Petro case, Sholinganallur cases and all cases of this substrain of the syndrome, it would read:

 

“The omission on the part of the relevant LAO to file the RLA and the consequent omission on the part of the SR to register and index it and from thereon  to refuse registration on such notified land constituted breach of duty imposed upon the two government officials by T.N Registration Rules and Standing Orders, Sec.3 of ToPA, 1882 and sec.88(2) of the Registration Act, 1908 reproduced above. As such, they were clearly guilty of statutory negligence. The principle that a master is liable for the negligence of his servants, if committed in the course of his employment, is well recognised. If a servant is doing negligently something which he was employed to do carefully, the negligent act would be taken as having been committed in the course of his employment and the master is liable for its consequences. The statutory negligence, referred to above, arising out of the omission on the part of the LAO and/or the SR was committed by them during the course of their employment and, as such the T.N Government being their employer or master, was undoubtedly liable for the consequences, i.e., for the damages resulting to the such subsequent buyers due to the aforesaid negligence.”

 

Examples of cases impacted by the syndrome:

1.      WRIT APPEAL NO.419 of 2006 and WAMP.No.895 of 2006 of the Madras High Court.  

2.      1996 AIR 3377-TNHB vs.A.Viswam

3.      WRIT PETITION.NO.7153 OF 1997 of the Madras High Court

Excerpts from … as a good example of condemnation of arbitrariness:

“Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and it therefore violative of Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

21. In Suman Gupta Vs. State of J & K reported in (1983) 4 SCC 339 the Supreme Court followed the principles laid down in Menaka Gandhis Case (supra) and reiterated that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.

22. The concept of equality before law means that among equals the law should be equal and should be equally administered, and that like should be treated alike. There must not be discrimination among equals unless there is reasonable classification. When something is to be done within the discretion of the authorities, it must be done according to the rule of reasons and justice, and it should not be according to the whims of the authorities.

 

A list of all cases affected by this strain of the syndrome is under preparation for submission to the Government. Any affected person or relevant counsel or anyone else may communicate such relevant case details to the author.

Sincerely in pursuit of justice for the innocent victims of RDS,

Baskaran Kanakasabai

Social Activist and Logician

P.S: If the legislature errs, the bureaucracy can find, report and correct such errors. If both err, the judiciary should correct. If all three err, I am reminded of the UDHR clause that alludes to “the right to revolt”* : “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.

 

*THE RULE OF LAW IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Mary Ann Glendon