Article 11 ICCPR & India

INTRODUCTION

This project derives its main source from the landmark judgment of Krishna Iyer J. in Jolly George Varghese and Anr. v The Bank of Cochin. This judgment involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicized pre-occupation has forsaken the civil debtor whose personal liberty is imperiled by the judicial process itself.

           From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights. The Article reads:

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

          An apercu of Article 21 of the Constitution of India, 1950 throws sufficient light on  the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expounded and expanded by a chain of rulings of the Supreme Court beginning with Maneka Gandhi v. Union of India MANU/SC/0133/1978 Article 21 reads:

“Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.”

             Under international law, human rights standards that are both treaty based and part of customary international law, and that are applicable in times of both peace and war establish standards for the propriety of detention. These standards, recognized in nearly all major human rights instruments, include the prohibition of “arbitrary” arrest or detention.^[1] Thus, this project throws light upon the fact that how carefully the draftsmen of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights had taken into account all the possible circumstances where the rights of an individual might be affected and has at its best tried to protect them by imposing a negative obligation on the State and its instrumentalities.

                              

ARTICLE 11 OF ICCPR AND THE ROLE OF HUMAN RIGHTS

The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. Because the Universal Declaration of Human Rights contained both first-generation civil and political rights and second-generation economic, social, and cultural rights, it could not garner the international consensus necessary to become a binding treaty. To solve this problem, two binding Covenants were created instead of one: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

The International Covenant on Civil and Political Rights (ICCPR) mandates: “No one shall be subject to arbitrary arrest or detention.”[2] Additionally, the human right to freedom from arbitrary arrest or detention is part of a more general right to liberty and security of person. As noted in the ICCPR, a concomitant human right prohibits deprivation of liberty “except on such grounds and in accordance with such procedures as are established by law.”[3] Thus, detention of terrorist suspects and others must not be “arbitrary,” there must be legal grounds for such detention, and detention must be in accordance with procedures established by law. Freedom from “arbitrary” detention is a relative right, however. Whether or not detention of an alleged terrorist or direct supporter of terrorism is “arbitrary” has to be considered in context and with reference to various interests at stake, such as the detainee’s rights to liberty and security, the rights of others to liberty and security,[4] and the interests of the government in maintaining law and democratic order. [5]Under human rights law, therefore, detention will not be deemed “arbitrary” if it is reasonably needed under the circumstances.

The International Covenant on Civil and Political Rights in its Article 11 (quoted above) bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens ret apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A.H. Robertson [6]rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. This position has been spelt out correctly in our native law in the decision of Kerala High Court in Xavier v. Cenara Bank Ltd. [7] on the crucial point. In that case, a judgment-debtor was sought to be detained under Order 21, Rule 37 C.P.C, although he was seventy and had spent away on his illness the means he once had to pay off the decree. The observations there made are apposite and may bear excerption:

“The last argument which consumed most of the time of the long arguments of learned Counsel for the appellant is that the International Covenants on Civil and Political Rights are part of the law of the land and have to be respected by the Municipal Courts. Article 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment-debtors.”

The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a by-product of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." Viewed in this progressive perspective we may examine whether there is any conflict between Section 51 of C.P.C and Article 11 of the International Covenant on Civil and Political Right. As already indicated, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfil the obligation. Section 51, however, also declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under Section 51 of the Code, but this does not violate the mandate of Article 11. However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment. The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or ‘proprio vigore’ has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the operational protocol. The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member-States; but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority.

SECTION 51 OF THE CODE OF CIVIL PROCEDURE, 1908

 Section 51 of the Code of Civil Procedure runs as:

 Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

 Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation - In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

Consistent to this provision, it is necessary to read also Order 21 Rule 37 which states: 37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention is the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court op. a day to be specified in the notice and show cause why he should not be committed to the civil prison:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

ARTICLE 21 OF THE CONSTITUTION OF INDIA

In this regard, equally meaningful is the import of Article 21 of the Indian Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, r/w Articles. 14 and 19 obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case[8] as developed further in Sunil Batra v. Delhi Administration[9] lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, is no crime and to 'recover' debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation that is put on the Proviso to Section 51 of C.P.C and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.

                 The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently.

CONCLUSION

The detention of debtors—such as persons who are unable to settle their debts—is unlawful under international human rights law.   Article 9 of the ICCPR provides that everyone has the right to liberty and security of person and “[n]o one shall be subjected to arbitrary arrest or detention.”  Detention is considered arbitrary if it is illegal or if manifestly disproportionate, unjust, discriminatory or unpredictable. [10]

More specifically, article 11 of the ICCPR states: “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.” This provision prohibits the deprivation of personal liberty for failure to pay a debt either by a creditor or by the state. States have an obligation to enact laws and other measures to prevent the state and private creditors from limiting the personal liberty of their debtors who cannot fulfill their contracts.[11]

The ICCPR lays out the right to humane treatment in detention. Article 10 states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. In its General Comment, the Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, has made clear that this article applies to:

[A]ny one deprived of liberty under the laws and authority of the State who is held anywhere or on camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.[12]

BIBLIOGRAPHY

·        http://www.geocities.com/mhchumanrights/USICCPRarticle.html

·        http://www.ohchr.org/english/law/ccpr.htm

·        http://www.manupatra.com

·        Steiner, J. & Alston, Philip ‘International Human Rights in Context: Law, Politics, Morals’ Oxford: Clarendon Press(1996)

·        Davenport, Christian ‘State Repression and Political Order’ Annual Review of Political Science(2006)

---

[1] Thus, human rights law applies during an armed conflict. See, e.g., Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 239 (July 8)

[2] ICCPR, supra note 6, Art. 9 (1)

[3] Similar provisions exist in other human rights instruments. See, e.g., African Charter, supra

note 6, Art. 6; American Convention, supra note 5, art. 7(2); European Convention, supra note 5,

Art. 5(1).

[4] The need to accommodate interests of others is also reflected indirectly in Article 5(1) of the ICCPR, which states that nothing in the covenant “may be interpreted as implying for any . . . group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation.” ICCPR, supra note 6, Art. 5(1). See also African Charter, supra note 6, art. 27; American Convention, Art. 32(2); European Convention, Art. 17.

[5] Although not addressing international law as such, dicta in U.S. cases recognize that governmental or national interests in security should also be weighed by the judiciary. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690, 696 (2001)

[6] Human Rights- in National and International Law": Pg -13

[7] 1969 K.L.T. 927 at 931, 933

[8] [1978] 1 S.C.R. 248

[9] MANU/SC/0184/1978: Also See Sita Ram and Ors. v. State of U.P. MANU/SC/0244/1979

[10] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, 1993), pp. 172-73.

[11] Nowak, U.N. Covenant on Civil and Political Rights, pp. 193-96.  This provision does not apply to criminal offenses related to debts such as fraud and failure to pay maintenance.

[12] General Comment No. 21. Forty-fourth session, 1992, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument

Registration Laws in India

INTRODUCTION

It is widely held that for a country to progress, that is to improve its economy, its living standards and its national well-being, it needs some method of recording what parcels of land exist in the country, or region, and who owns it.  

Further, to encourage foreign or even local investment in real estate, there needs to be some form of title to evidence the various interests permitted in that land, and to give some measure of security to the owner of that interest. This in turn is recognized as an incentive for more economical use and maintenance of a property, and hence better land-use planning. Secure title is more likely to attract overseas investment in real estate and thus generate more employment and wealth for the local inhabitants. 

Another important advantage of a land registration system is in the ability for it to be used as a base for the application of an equitable tax levy, according to people's ability to pay. That same system can act as a preventive measure against people avoiding their rightful obligation to their society. 

It is also commonly held that there are two main systems of land registration in the world. The one named after its founder and introduced in South Australia, The Torren’s Title system and the other, based on the old English system of Registration of Deeds. 

In India, the State does not certify a title to housing or land property. The revenue records are not documents of title, and ownership is established only by the sequence of earlier transfers. Thus, the fundamental question of title has often led to enormous litigation. At present there are three legislations which have a bearing on property transactions involving transfer of ownership of proprietary interest. These are the Transfer of Property Act, the Indian Registration Act and the Indian Evidence Act. An examination of the provisions of these Acts reveals a number of inadequacies.

In this project, I have tried to bring forth the inadequacies in the present system and what steps are necessary to revivify the system so as to minimize any chance of defective title so as to assure indefeasibility of title.

1. Registration system in India:

The Indian registration system is based on the archaic Deeds Registration System (DRS) that was the first system of land registration.  Registration under this system does not create an interest over the property in any way, but only provides notification to all future- takers of the land that such dealing existed.

History of the DRS:

Until the 19^th century, many efforts to set up a general system of registration throughout England were unsuccessful. In 1825, New South Wales adopted a system known as the Deed Registration System pursuant to a Deed Registration Act, 1825. A similar system was adopted in Victoria Queensland and Tasmania. The DRS was set up as a system for the registration of all deeds and instruments affecting land; registration under this system was not compulsory. It was developed with the specific aim of setting up a system for organizing, structuring and prioritizing registered interests according to their date of registration.

The Deed Registration system is therefore a system whereby an interest or estate which is expressly created for instrument is capable of being registered ad gaining priority if the interest or the estate holder desires it is not necessary that the instrument actually notes a specific transaction; the instrument may effect a conveyance or it may simply note an interest importantly. Registration under this system does not create an interest or alter the instrument in any way but rather provides notification of the effect of the instrument and confers priority upon the holder against other specified holders.

2. DRS in India:

In India, the concept of DRS is incorporated in the Indian Registration Act, 1908. Indian registration Act is an Act to consolidate the enactments relating to the registration of documents. Registration means recording of the contents of the document. The object of registration is conservation of evidence and title.

Registration is done after the parties execute the document. The agreement should be registered with the Sub-Registrar of Assurance under the provisions of the Indian Registration Act, 1908 within four months from the date of execution of the document. However, if due to any unavoidable circumstances, the document is not registered within the time limit, and then the document can be registered only on making an application to the Sub-Registrar of Assurance within a further period not exceeding four months and on payment of appropriate fine.

The following sections of the Indian Registration Act, 1908, mainly govern the registration system in India:

Ø  Sec.17 of the Act deals with the documents that are compulsory to be registered.

Ø  Sec.18 deals with those types of properties whose registration is optional, i.e., it depends on the will of party whether to get the deed registered or not.

Ø  Sec.34 states the enquiries that are to be made by the registration official prior to the registration of a deed.

Ø  Sec. 35: This section lays down the procedure which is to be followed by the registering officer while registering and dismissing an application of registration. This section lays down the conditions when can a deed presented for registration, be registered and when can it be rejected.

Ø  Sec.51 enumerates on the various types of books that are to be maintained by the officials in Registration office.

Ø  Sec. 52 deals with obligations and duties of the officials.  The officials who are engaged in the registering of the deed are under certain statutory obligations, which are to be satisfied by them, prior to and after the registration of a deed. Only after fulfilling these formalities, the registration is deemed to be completed. These obligations or duties of the registering officers are mentioned in Sec.52. This section also deals with the duty of registering officers regarding maintaining and authentication of records.

The procedure:

The transfer which is to be made through a deed is first of all, written on the stamp-papers of prescribed value. Thereafter, the executant puts his signature and two attesting witnesses attest the execution. The document which is now duly executed and attested is presented before the Sub- Registrar or Registering officer having appropriate jurisdiction. The Sub-Registrar, after taking the statements of the executants and the identifying witnesses and also the thumb impression of executants on appropriate register admits the deed for registration. The registration-fee prescribed under the law is also charged. The document is then recorded in the prescribed register. After these formalities, the Sub-Registrar certifies on the back of the deed that the document has been duly registered on the date and time mentioned by him. After affixing the office seal, the deed is returned to the parties concerned. It may be noted that the deed is deemed to be registered not on the date on which it was admitted for registration. It is deemed to be duly registered on the date and at a time which is mentioned by the Sub-Registrar under his certificate. It is also to be noted that registration must have been completed in all respects strictly according to the provisions of the Act. However, once a document has been duly registered, the Registering Officer has no authority to modify or delete any entries made in any of the books of record relating to validity of that document. Therefore, on a subsequent date he cannot delete or modify any entry made in the encumbrance certificate except where it relates to a specific error.

3. Lacunae in the DRS:

Improper Registration:

Section 17 of the Act provides for optional registration. An unregistered document will not affect the property comprised in it, nor be received as evidence of any transaction affecting such property (except as evidence of a contract in a suit for specific performance or as evidence of part-performance under the Transfer of Property Act or as collateral), unless it has been registered. Thus the doctrine of part performance dealt with under Section 53 A of the Transfer of Property Act and the provision of Section 49 of the Registration Act (which provide that an unregistered document cannot be admissible as evidence in a court of law except as secondary evidence under the Indian Evidence Act)

Together protect the buyer in possession of an unregistered sale deed and cannot be dispossessed.

The net effect has been that a large number of property transactions have been accomplished without proper registration. Further other instruments such as Agreement to Sell, General Power of Attorney and Will have been indiscriminately used to effect change of ownership.

High Stamp Duty:

There is a direct link between Registration Act and Stamp Act. Stamp duty needs to be paid on all documents which are registered and the rate varies from state to state. With stamp duty rates of 13 per cent in Delhi, 14.5 per cent in Uttar Pradesh and 12.5 per cent in Haryana, India has perhaps one of the highest levels of stamp duty. Some states even have double stamp incidence, first on land and then on its development. In contrast the maximum rate levied in most developed markets whether in Singapore or Europe is in the range of 1-2 percent. Even the National Housing and Habitat Policy, 1998, recommended a stamp duty rate of 2-3 percent. Most of the methods to avoid registration are basically to avoid payment of high stamp duty.

Fallout of high stamp duty rates is the understatement of the proceeds of a sale. This is also linked to payment of income tax and capital gains tax. When registration has not been affected, a transfer is not deemed to have taken place and hence capital gains tax can be totally avoided. Thus, the present provisions in various laws and their poor implementation have led to a situation where there is considerable financial loss to the exchequer on account of understatement of sale proceeds, non-registration and consequent non-payment of stamp duty and avoidance of capital gains tax.

Time consuming:

A manual search through thousands of pages of records of over twelve years is an extremely laborious, time-consuming and expensive task with a high risk of oversight. Moreover as the records are written manually in an illegible, unprofessional manner, anybody having to search through such massive records could miss out on essential data.

The records are also prone to tampering. It is not uncommon for the selling party to tear- off relevant pages from the records and thus hiding any claims in the property from the purchasers. The pages also tend to deteriorate with time resulting in risks to the accuracy and availability of information.

Limited powers of Registrar:

The Indian Registration Act confers very few powers on a Registrar making him toothless. He has no powers for verification of the title and is bound to entertain every applicant and grant them registration. It was held in the K. Eshaque[1] case that even when the registrar knows that the title of land is bad he has no powers to refuse its registration. Thus there is absolutely no check over fraudulent attempts of registration.

        

So, in totality, we can see that there is lack of indefeasibility of title and state guarantee as the state has kept very limited responsibilities upon itself and so, in case of fraudulent claims and transfers, the individual alone will be responsible and accountable.

4. TORRENS SYSTEM OF REGISTRATION

The Torrens System of Land Registration used by Alberta since 1887 stipulates that a government office has custody of all original land titles and all original documents registered against them. This system is also used by Saskatchewan, Manitoba, British Columbia, Northwest Territories, some areas of Ontario, State of Iowa, South Dakota etc.

A brief history:

The Torrens System originates from the shipping registry. The Torrens system was developed by Sir Robert Richard Torrens (1814-1884), an Australian customs officer and reformer of Australian land laws, who observed that the title registration and the title history of ocean-going vessels were orderly, accurate and complete, while real estate titles and ownership histories were in chaos. Very simply, Torrens adapted the shipping registry methods to land registry.  He subsequently became a Registrar of Deeds.  Sir Torrens was looking for five qualities: reliability, simplicity, low cost, speed and suitability. In the system Torrens introduced, no claim of title or claim against a title is valid unless written and duly registered. The purpose of the system is to simplify the transfer of real estate. It is a system for registration of land under which, upon the landowner’s application, the court may, after appropriate proceedings, direct the issuance of a certificate of title. In the “Torrens system” the certificate of title is the title.  

The procedure:

A tract index of all the details about a title is kept on a register page. Government staff in the Land Titles Offices examines and register the documents on this page. A copy of register page, called certification of title is then given to the owner creating title. On subsequent voluntary transfer, a certificate of title plus the vendor’s deed has to be produced. Then, a new register page with obsolete entries removed will be opened. The government then guarantees the accuracy of the title and as a result, anyone who suffers a loss due to an error on the title or even as a result of a fraudulent transaction is entitled to compensation from the government. The liability associated with this potential compensation is funded through the collection of assurance fees.

The Torren’s system is based upon three principles:

Curtain principle: Current certificate of Title contain all the information about the title, therefore, historical search to verify the title is unnecessary Therefore, a curtain is drawn on a particular date and all transactions which took place prior to the date of drawing curtain will become irrelevant.

Mirror principle: The title record prepared and maintained, accurately and completely reflect the situation of ownership and enjoyment, as they exist in the filed.

Insurance principle: An insurance indemnity fund is established to compensate those who lose interest because of error of the registering officials.

5. DRS v. TORREN’S:

• It would be more convenient and a relatively quick process.
• It would be open to the public  (indeed the public were expected to "search" the title before entering into any dealing otherwise they may jeopardize their rights).
• The title would reflect all charges, encumbrances and liens that affected it.
• Registration and not the document confer title.
• Once registered, the proprietor of an interest would have an indefeasible title.
• Providing third parties dealt with the registered proprietor they too would receive an indefeasible title.
• No-one would be required to "go behind the face of the title" i.e. to enquire about the registered proprietor's authority to deal with the land.
• The creation of specialized conveyance personnel, called Land Brokers will be licensed to complete land transactions.
• State guarantee- Due to the liability upon the State to compensate the registration- holder, there is a greater duty upon the Registrar to verify the credentials of the title with due- diligence. The registrar has adequate powers to verify the title, make any enquiries thereof and to even refuse to grant the registration if he is not satisfied with the title of the property.

6. THE NEW SYSTEM:

With the introduction of the Registration and Other Related Laws (Amendment) Act, 2001, India has also incorporated the Torren’s system with certain other improvements. This Act has proposed the compulsory registration of documents relating to part performance of contracts concerning immovable property (covered by Section 53A of the Transfer of Property Act), in order to prevent loss of revenue to the states. The Act also seeks to curb the practice of avoiding registration of deeds by transferring property through power of attorney and agreements of sale. Though this Act has received the assent of the President and has been notified in the official gazette, it will come into force only from a date to be notified by the Government.

 This Act is based on the Integrated Land Information System which has been prepared after detailed study of the existing system in our country as well as the system of maintaining of land records in a number of countries like Thailand, Canada, Australia, U.K. etc., have been done. Key features of the system are:

I.Conclusive Titles: The emphasis on land record creation and maintenance would be shifted from generating revenue to maintain a clear and conclusive record of title of all private properties in rural and urban areas covering agricultural, residential, commercial and industrial properties for giving absolute title security. Absolute title security will be achieved by creating a Register of conclusive titles. In the Title Register proposed to be prepared under ILIS, curtain and mirror principles alone will be included.

II.Title Registration: The present system of deed registration will be replaced by title registration system, wherein it would be the legal responsibility of the registrar to verify the title of the owner before allowing transaction on property. The crux of the system is, only the legal owner will be entitled to transfer the property.

III.Integration of services & creation of a single Dedicated Agency: The present system of multiple Government departments maintaining land records would be replaced by a single dedicated agency, which will create, maintain and deliver all property related services like survey, subdivision, maintenance of title records, registration of property transfers and maintaining property tax records in rural and urban areas.

IV.Digitization & Auto-updating: All records will be maintained in digital form and processes will be designed in such a way that as transactions occur, records will be updated automatically. Entire data will be maintained in a central repository and accessibility will be multi point. Therefore record will be an integrated, transparent one, which is easily accessible to everybody.

V.Self-sustaining Revenue model: It will be a self-sustaining system so as not to depend on government funding for maintenance and updating. Land information will be priced for sale and appropriate user charges regime will be introduced.

CONCLUSION

So, we can observe that by replacing the ‘Registration by title’ system to ‘Title by Registration’ and by introducing new technology to the whole system of Registration of land, we can enable proof of title and make dealings with land simple so that a legal title passes to the transferee. This system will remove the defects of the deed system by providing more secured land tenure. This process would enable the land purchasers to buy the land from the legal owner. It means, the present system of deed registration will be replaced by title registration system and the legal responsibility of the registrar to verify the title of the owner before allowing transaction on property. Thus, the emphasis would shift to maintain clear and conclusive record of title of all properties from the existing system of land record creation and maintenance. This would provide absolute title security to all rural and urban land covering agricultural, residential, commercial and industrial properties.

Titles to land have become necessary for more efficient handling of land title documents, to provide greater security of tenure for those in occupation of land, to keep pace with the greater demand for re-conveyance, for better support for mortgaging and investment, to face the steady increase in the number of private and public users who make routine enquiries about land ownership.

There is an urgent need to ensure compulsory registration of land deeds and also to computerize such records so as to create a database. The Andhra Pradesh experience is a good example to begin with where registration of sale of land/property is achieved within a month. The Tenth Plan Working Group on Information Technology for Masses has recommended computerization of land records all over the country with computerized land/property documents being available to the public at all levels, including in villages, by 2005. Through online documentation of land records, hyper links with court registries of the district or the State can be developed, so that the unwary buyer can get immediate information of any pending litigations.

The time to implement the system is sooner rather than later since the total costs involved will only continue to rise and the effects of no system or an inefficient system will increase rapidly.

BIBLIOGRAPHY

BOOKS

ü  Adhikari, S., “Commentary on The Registration Act, 1908”, 1^st edn. (1998), Vishal Book Centre, Nasik.

ü  Sinha, R.K., “Transfer of Property Act, 1882”, Central Law Agency, Allahabad, 7^th Ed., 2003.

ü  Hepburn, Samantha J., “Principles of Property Law”, Cavendish Publishing, Sydney, 2000.

ü Dukeminien, J, “Property”, 4^th Edn.,  Aspen Publications , 1998.

ü  Property Law-I, Text Material for VI^th Trimester

ACTS

Indian Registration Act, 1908

WEBSITES REFERRED

unisa.edu.au 

www.ncmp.com

www.enrich.nic.in

www.dolr.nic.in

www.crisp.nic.in

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[1] 2001 AIR 138 Ker