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Synopsis

The Madras High Court has deemed Section 77-A of the Registration Act, 1908, unconstitutional. This Section was introduced by Registration [Tamil Nadu Second Amendment Act] 2021 and court opined that it granted District Registrars "unfettered and uncanalized power to cancel the registration" of immovable property if it was registered through fraud or with forged revenue records.

The division bench of Justices S.S. Sundar and N. Senthilkumar emphasized that "the power under Section 77-A though may in a few cases come in aid for an innocent land owner to get the registered instrument starring against at him, ineffective without the aid of civil court which may take considerable time, it will cause unimaginable hardship and irretrievable damage to the real owners of the property".

Though Section 77-A contemplates issuance of show cause notice, the unfettered power to cancel registration that falls under Section 22-A or Section 22-B vests with the Registrar, based on his opinion, the court pointed out.

It noted that District Registrars, without even a law degree or acquaintance with legal principles and bound by circulars rather than legal precedents, are now supposed to adjudicate disputes on title, potentially leading to considerable damages.

"The District Registrar is not competent to decide complicated issues involving questions of law and facts. Having regard to the qualification required / prescribed to the post, we cannot expect the District Registrar to have a judicially trained mind," court held.

Court noted that Sections 22-A and 22-B already empower Registration Department officials to refuse registration of certain documents, while Section 77-A allows them to cancel documents registered in violation of these provisions. Traditionally, civil courts have resolved disputes arising from such actions, it pointed out. 

The bench criticized the legislature's intent behind Section 77-A, arguing that it attempts to create a parallel forum to the judiciary and gives undue power to the executive, which is beyond its competence and susceptible to favoritism.

"Independence of judiciary is an important facet of our Constitution and it is recognised as one of the basic structure doctrine. The doctrine can also be paralysed by conferring uncanalized judicial power to the executive to perform what the judiciary is expected to," court said.

The judges reiterated that the Registration Act's purpose is to maintain public records of immovable properties and that registration alone does not determine true ownership. Title disputes cannot be settled solely based on registered documents of conveyance, which only serve as evidence of transactions, it said.

"This Court is of the opinion that the amendment introducing Section 77-A is beyond the scope, purpose and object of Registration Act and hence, unconstitutional," the bench held. 

Justice Sundar, authoring a 426-page verdict on around 200 writ petitions, pointed out that while District Registrars can invalidate transactions, their cancellations are not final, and aggrieved parties can still seek recourse in civil courts.

Case Title: M.Kathirvel v. The Inspector General of Registration and connected matters