Madras High Court declares Section 77-A of the Registration Act unconstitutional

Justices S.S. Sundar and N. Senthilkumar hold that it confers “uncanalised, unbridled and unfettered” power on District Registrars to cancel any immovable property document

The Madras High Court has said Section 77- may come to the aid of innocent land owners only in a few cases wherein a person or entity would be able to get quick remedy from the District Registrar.

The Madras High Court on Friday declared as unconstitutional Section 77-A of the Registration Act, 1908, on the ground that it conferred excessive quasi-judicial power on the District Registrars to cancel documents related to any immovable property in the State if they were found to have been registered through fraud or on submission of forged revenue records.

Justices S.S. Sundar and N. Senthilkumar said Section 77-A, introduced to the Central enactment by way of a 2022 State amendment, may come to the aid of innocent land owners only in a few cases where a person or entity would be able to get quick remedy from the District Registrar instead of undergoing the long-drawn process of civil court proceedings.

In other instances, “it will cause unimaginable hardship and irretrievable damage to real owners of property in lakhs of cases with the unfettered, unguided and unlimited power conferred on the District Registrars under Section 77A to unsettle transactions. It will make properties litigious, thereby affecting substantial rights of owners of properties,” the judges said.

The Division Bench pointed out that Sections 22-A and 22-B of the Act empower Registration Department officials to refuse registration of certain documents and Section 77-A empowers them to cancel documents registered in contravention of those two provisions. Disputes that arise over such actions had all along been decided by civil courts by following due procedure.

“The power is now given to the District Registrar whose qualification cannot be compared with a judicial officer... The District Registrar who is not even a law graduate or acquainted with legal principles but bound by circulars rather than precedents is now supposed to adjudicate disputes on title... This court is unable to imagine the damages that are likely in the process,” the Bench wrote.

The judges also said the introduction of Section 77-A was “nothing but an attempt to create a forum which is parallel to the judiciary and to confer wide powers on the executive to resolve issues beyond its competence. It is to be noted that the District Registrar is not independent and as a government servant, he/she is expected to show favouritism while dealing with disputes where the government is making the rival claim.”

Authoring the 426-page verdict on a huge batch of around 200 writ petitions, Justice Sundar pointed out that though the power conferred on the District Registrars to cancel registration of documents could lead to invalidation of the transactions, such cancellation would still not be absolute or complete and that the aggrieved person could approach the civil court challenging the cancellation.

“Therefore, no finality is attached to the order passed by the District Registrar under Section 77-A... We fail to understand any bona fides or wisdom behind the legislature’s intent in introducing Section 77-A to invalidate transactions by assuming jurisdiction of a civil court to decide serious issues on title, without attaching finality to such a decision,” the Division Bench remarked.

The Bench also said: “The object of the Registration Act is only to maintain public record in relation to immovable properties. Merely because a document executed by a person without title is registered, that does not affect the title of true owner. In other words, the question of title cannot be decided merely on the basis of registered documents of conveyance, even though such documents may be considered as evidence of transactions.”