Why Madras High Court struck down Section 77A of Registration Act

The Madras High Court recently struck down Section 77A of the Registration Act of 1908 as unconstitutional, on finding that it gave District Registrars in Tamil Nadu unfettered powers to cancel land-related documents on suspicions of fraud [M Kathirvel v. Inspector General of Registration and Others]..The judgment was delivered on a batch of over 200 writ petitions that challenged the constitutional validity of certain amendments introduced by the Registration (Tamil Nadu Second Amendment) Act, 2021, which came into force in August 2022.Among the provisions introduced by this amendment was Section 77A, which has now been declared unconstitutional by the High Court on the ground of excessive delegation of powers to the executive."This Court holds that Section 77-A confers uncanalised, unbridled and unfettered power to decide jurisdictional issues involving complex issues on law and facts and hence, violative of Article 14 of Constitution," the Court ruled..In the August 2 judgment, Justices SS Sundar and N Senthil Kumar also found that this provision usurped some functions of the courts. The Court concluded that it has no hesitation to strike down Section 77A for being contrary to the principle that judicial powers to decide on substantial rights and complicated issues of facts and law that could result in serious legal implications on property rights, cannot be delegated to executive authorities..Section 77A empowered District Registrars to cancel registered documents if any fraud or forgery was suspected, after issuing notice to all concerned parties and considering their reply. The Court observed that although the Section 77A may come to aid of a few innocent land owners, it was likely to cause hardships for lakhs of others whose property transactions may be unsettled on suspicions.The Court explained that District Registrars cannot be expected to delve into complex questions of fraud or forgery and cancel documents on such grounds without any guidelines to carry out such an exercise."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. The District Registrar is not competent to decide complicated issues involving questions of law and facts," the Court said.The Court pointed out that without any guideline in place, the Registrar may cancel the registration of a document without even assigning any reason.Conferring such power without statutory guidelines will lead to corruption and blackmailing by land grabbers, the Court opined further. "This Court is of the view that by permitting the executive to decide such complicated contentious issues … without guidelines or limitations, it will lead to chaos ... This Court will not be surprised if erratic orders are passed by the District Registrar which is even beyond the scope of his power and jurisdiction under the Registration Act particularly, Section 77-A," the Court added.Criticising the State's failure to lay down any guidelines, the Court further commented,"This Court finds lack of legislative wisdom in bringing the amendment introducing Section 77-A of the Act.".The Court also highlighted that Section 77A would improperly vest judicial responsibilities in the executive, and thereby affect the separation of powers. "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. The impugned legislation is nothing but an attempt to create a forum which is parallel to the judiciary and to confer such wide powers with the executive to resolve issues beyond its competence," the Court said.The Court further pointed out that District Registrars cannot be expected to be independent decision making authorities in all cases."The District Registrar is not independent and as a Government servant, he is expected to show favoritism while dealing with dispute where the Government or revenue is making the rival claim," the Court explained. Therefore, it concluded that it cannot permit the grant of unfettered powers to cancel documents to District Registrars."We are of the view that the impugned legislation is nothing but creation of a new forum in the place of Civil Court. This cannot be permitted by constitutional Courts to protect the rights of parties to the documents," the Court said. .[Read Judgment]