RDS-Chapter 2
A postmortem analysis of RDS-strain2-substrain1/RLA cases
An analysis of cases pertaining to the substrain referred above confirms the existence of the following features in the relevant cases:
1. The victims had been deprived(or attempted to be deprived) of their property without a notice u/s 4(1), a hearing u/s 5A and a compensation u/s 11, which effectively constituted contravention of Articles 14 & 300-A of the Indian Constitution and 7 &17(ii) of the UDHR.
2. The acquiring authority had not presented for registration the RLA as required by TN Regn Rule 21(ii) and/or the relevant SR had not registered relevant RLA as required by Rule 11(d), which effectively constituted composite statutory negligence on the part of the Government officer/s concerned, while on Duty.
4. An EC obtained under Rule 143 pertaining to the allegedly acquired land subsequent to the relevant notification/declaration/award/alleged “possession” did not reflect any detail of the relevant acquisition contrary to the prescripttion envisaged by such Rule, which constituted blatant violation of rule of law and that causative factor triggered a chain of events which culminated in the ultimate deprivation of lands of the victims.
5. Such EC did not reflect any detail of the relevant award under L A, blatantly contrary to S.Os 927, 929 and the relevant subsections.
6. The relevant SR was not able to issue a certified copy of the relevant RLA as required by S.O 993(d).
7. The victims did not have notice of the facts of the proceedings of the LA pending or completed on the relevant land at the time of purchase of the respective lands, as defined by sec.3 of the ToPA, 1882.
8. The victims had registered their relevant sale deeds pertaining to their lands as required u/s 17 of the Registration Act, 1908 in spite of a requirement to pay a significant stamp duty.
9. The Government officer concerned did not register any document pertaining to the acquired land violating the requirement of sec 88(2) of the Registration Act, 1908, in spite of an exemption from payment of stamp duty and fees and in spite of an exemption from personal appearance.
The proof of the pudding is in the eating: The relevant court of law should order for production of the relevant Registers and Indexes in the court from the relevant SRs and other relevant documents from the relevant LAOs and examine such records to ascertain the post mortem report detailed above. That will reveal as to how many rules and Standing Orders have been thoroughly violated or neglected by relevant officers and for how long. If a huge iceberg of negligence or arbitrariness is detected, it would not be surprising to me, at least.
Close scrutiny of the dynamics of the syndrome will reveal how the vice of arbitrariness gets established like a rule right from the manner of taking possession(panch-nama) of an acquired land and in the context of outright negligence in respect of registration of crucial registrable documents pertaining to the acquired land and in the matter of manner of handling the fact of unlawful and grave economic injury ( by way of deprivation of property) meted out to numerous innocent citizens for many decades continuously.
To understand the extent of seriousness with which arbitrariness is dealt with in various parts of the world, the following few references will help:
1. "Article 330. Arbitrariness". The Criminal Code Of The Russian Federation. "Arbitrariness, that is the unauthorized commission of actions contrary to the order presented by a law or any other normative legal act," Article 330 of the Russian penal code defines 'Arbitrariness' as a specific crime, but with a very broad definition encompassing any 'actions contrary to the order presented by a law’.
2. Article 9 of the Swiss Federal Constitution theoretically overrides even democratic decisions in prohibiting arbitrary government action.[
3. Article 17(2) of the UDHR: No one shall be arbitrarily deprived of his property.
4. Article 300-A of the Indian constitution: ‘No person shall be deprived of his property save by authority of law’.
LAW RESOURCE INDIA
ARBITRARY ACTIONS OF THE STATE ARE IN CONFLICT WITH ARTICLE 14 (Right to Equality) OF THE CONSTITUTION OF INDIA
Posted in CONSTITUTION, CORRUPTION by NNLRJ INDIA on June 12, 2009
It is now too well-settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua lion to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case.
An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. 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 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 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. 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)
The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. In KASTURI LAL LAKSHMI REDDY Vs. STATE OF JAMMU AND KASHMIR & ANOTHER
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 stricter. 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 )
A case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. In AP Aggarwal vs Govt of NCT of Delhi (AIR 2000 SC 3689)
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 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 )
Thus it is needless to say that arbitrariness is the lifeline of the syndrome supra. If that is detected, condemned and the underlying acquisition quashed, the affected victim will be cured absolutely. If there is cure for a disorder even after a postmortem, it is none other than in respect of the Registration Deficiency Syndrome and the relevant victims, because it may not be possible to bring back to life the dead but it is possible to nullify injustice done by delivering justice afresh.
