Madras High Court
Sankaralingam vs The Secretary To State Government on 4 December, 2017
Bench: K.K.Sasidharan, G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.12.2017
Reserved on : 19.09.2017
Pronounced on : 04.12.2017
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.15739 of 2017
and
W.M.P.(MD) No.12457 of 2017
Sankaralingam ... Petitioner
vs.
1.The Secretary to State Government
of Tamil Nadu,
Registration Department,
Chennai.
2.Inspector General of Registration,
Registration Department,
No.100, Santhome High Road,
Chennai. ... Respondents
Prayer : Writ Petition is filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, to direct the
respondents to rectify the defect in the Guideline value of lands in the
website of the 1st respondent Department at par with the records in the
concerned Sub Registrar Offices of Tamil Nadu and a direction to engage
persons with proper training from the Registration Department for creation of
?INDEX? to the documents presented for online registration and a further
direction forbeating the respondents herein from implementing online
registration of documents until the defects in the system and server are
completely rectified.
!For Petitioner : Mrs.Lakhsmi Gopinathan
For Respondents : Mr.B.Pugalendhi, AAG assisted by
Mr.M.Govindan,Spl. G.P.
:ORDER
(Order of the Court was made by G.R.SWAMINATHAN, J.) The petitioner claims to be doing Real Estate business in Sivakasi for the last 30 years. He is aggrieved by the notice affixed by the Sub Registrar, Registration Department, Sivakasi, informing the public that from 01.08.2017 registration of documents will be done only online. This notice is said to be pursuant to the instruction issued by the I.G. of Registration vide RC No.55969/CS1/2013 dated 25.07.2017.
2.The petitioner has given a representation to the second respondent on 31.07.2017. According to him, on account of the insistence on online registration, the number of documents being registered has comedown drastically from 100 to 4 per day. The public are being put to great inconvenience. This is because in the website market value guideline register, there are several wrong entries. In the manually maintained register, the valuation is given differently from what is shown in the website register. Since online registration alone is permitted, the registrants have to mention only the valuation indicated in the website register and pay the stamp duty accordingly. The writ petitioner has enclosed materials in the typed set of papers to demonstrate his contention that there are serious discrepancies in the entries in the matter of guideline value in the register maintained in SRO and in the website. Secondly, the registrants are asked to create the index. Index creation is the statutory function of the registration department and this task cannot be fastened on the registrants. Even though, with much fan fare e-governance has been introduced in the registration department, the staff have not been sufficiently or suitably trained to implement the project. Therefore, the petitioner would pray that till the defects that have been pointed out are rectified, the respondents must be restrained from implementing the scheme of online registration of documents.
3.The respondents have filed a detailed counter affidavit. The respondents have fairly conceded that the SRO, Sivakasi had inadvertently misconstrued the direction issued by the I.G. of Registration. Instead of informing the public that registration will also be done online, the said official had inadvertently worded the notice as if registration will be done only online. The second respondent has clarified that implementation of online registration from 01.08.2017 is only in pilot run.
4.The Registration Act, 1908 is a consolidating enactment relating to the registration of documents. The purpose served by this Statute is well known. It enables the general public to find out whether any particular piece of property with which they may be concerned has been made the subject matter of some obligation. The purpose of the Act is also to prevent fraud. It will be impossible to have any transaction relating to immovable property in any manner like transfer, gift or lease or mortgage without a system of registration of documents. (State of H.P. V. Shivali Agro Poly Products - (2004) 8 SCC 556).
5.Part XI-A was introduced into the Act by Act 50 of 2000 with effect from 25.07.2000. Section 70 B enables the State Government to direct that in any office specified by it, the process of registration of any category or categories of documents may be completed and copying done with the help of the electronic devices like computers, scanners and compact disks and copies preserved on such devices and retrieved when required. Therefore, there is enough and more statutory backing for the efforts taken by the second respondent to introduce e-registration procedure.
6.In the counter affidavit filed by the respondents, it is stated that the software relating to registration procedures and issuance of certified copy of encumbrance certificates were developed under STAR project 1.0. The Government of Tamil Nadu has taken a policy decision to apply information technology in registration department. The Government has accorded administrative sanction and financial sanction vide G.O.Ms.No.143 dated 20.11.2012. TATA Consultancy Services has been selected to implement the said project. They have prepared the software for land registration and the associated modules have been completed. The pilot run commenced from 17.07.2007 in Sub Registrar Offices.
7.According to the respondents, the TNIGR portal developed under Project Team STAR 2.0 allows the citizens to directly log on and create document for required Deeds either in Tamil or English. The programme enables the citizen to create Index also. The process is so simple and more user friendly that the citizens would opt only for online registration rather than offline once they understand the benefits of online registration.
8.The optimism exhibited in the counter affidavit is not shared by the writ petitioner. In fact, in the counter affidavit, the respondents have admitted that there are mistakes in the website entries. On 10.04.2007, the Sub Registrar, Sivakasi had already submitted a report to the I.G. of Registration, Chennai in this regard. The respondents undertake to rectify the mistakes pointed out by the writ petitioner.
9.Thus, two of the grievances expressed by the writ petitioner have already been addressed by the respondents. The respondents have made it clear that online registration is only optional for the present and that it is only in the pilot run stage. It is true that there are certain teething troubles and that they have to be fixed.
10.But, as regards creation of index, the respondents strongly contest the stand of the writ petitioner. It is therefore necessary to find out if the online module synchronises with the statutory scheme.
11.In the counter affidavit, it is stated that the online application provides two methods. One is index creation unsing ?Index Creation of Deed'. Another is automatic generation of Index using ?Document Creation of Deed?. It the citizen opts for the second application, index will automatically get created. The apprehension of the petitioner regarding index preparation is unfounded and magnified. Further, Index is nothing but the abstract of the document. Digital generation of Index through the above applications cannot be said to be handing over to private persons. Creation of Index online is not against the provisions of Section 54 and 55 of the Registration Act. In truth, the citizen gets the opportunity of pre-registration verification which would avoid subsequent rectification deeds. Further, modification in the office is averted.
12.The learned counsel appearing for the appellant contended that this is against the provisions laid down in part XI of the Act dealing with the duties and powers of registering officers. Part XI contains Sections 51 to
70. Section 51 states that in all registration offices Book Nos.1 to 5 shall be kept. What each book shall contain has also been set out. For instance, Book No.1 is the register of non testamentary documents relating to immovable property. Section 54 mandates that in every office in which any of the books herein before mentioned are kept, there shall be prepared current indexes of the contents of such books and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has filed a true memorandum of or a memorandum of the document to which it relates. Section 55 reads as under:
?55.Indexes to be made by registering officers, and their contents. - (1 Four such indexes shall be made in all registration offices, and shall be named respectively Index No.I, Index No.II, Index No.III and Index No.IV.?
(2) Index No.I shall contain the names and additions of all persons executing and of all persons claiming under every document of which a true copy, or a memorandum is filed in Book No.1.
(3)Index No.II shall contain such particulars mentioned in section 21 relating to every such document and memorandum as the Inspector General, from time to time, directs in that behalf.
(4)Index No.III shall contain the names and additions of all persons executing every will and authority of which a true copy is filed in Book No.3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor but not before the names and additions of all persons claiming under the same.
(5)Index No.IV shall contain the names and additions of all persons executing and of all persons claiming under every document of which a true copy or memorandum is filed.
(6) Each index shall contain such other particulars, and shall be prepared in such form, as the Inspector General, from time to time, directs.?
13.Section 57 of the Act makes it clear that subject to the previous payment of the fees payable in that behalf, the Book Nos.1 and 2 and the Indexes relating to Book No.1 shall be at all times open to inspection by any person applying to inspect the same. Copies of entries in such books shall be given to all persons applying for all such copies. Section 57(5) of the Act states that all copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents.
14.As seen earlier part XI bears the heading ?Of the duties and powers of registering officers. (A) As to the Register book and Indexes?. Section 55 bears the heading ?Indexes to be made by registering officers, and their contents?. In the principles of Statutory Interpretation by Justice G.P. Singh (13th Edition at page 167), it is stated that the Headings or Titles prefixed to sections or group of sections can be referred to in construing an Act of the Legislature. The Hon'ble Supreme Court observed in N.C.Dhondial V. Union of India - AIR 2004 SC 1272 at page 1728 that it is a settled rule of interpretation that the section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent. In Tata Coffee Ltd. V. State of Tamil Nadu ? (2008) 3 CTC 614 , this Court observed that Section 55 of the Registration Act mandates the registering officer to prepare index in the form of Index No.I, II, III and IV.
15.In view of the above, we have to hold that creation of Index only is a statutory duty which must be performed only by the officials of the registration department. This cannot be passed on to the document writers or to the registrants. Since the certified copies of index entries will have to be provided to the applicants on demand and on payment of fees, it is necessary that the entries are correctly made. The entries have to be authentic. Therefore, it is the duty of the Sub Registrar to carry out the preparation of the indexes.
16.The introduction and application of technology is absolutely imperative. The registration department must embrace e-governance totally. Initial glitches will be there. The respondents have to respond with speed and alacrity as and when the issues are brought to their notice for remedial action. We therefore dispose of this writ petition in the following terms:
i.The respondents are directed to correct the discrepancies in the website entries at the earliest and without delay as and when pointed out.
ii.The registering authorities cannot decline to register documents offline since online registration is only at the pilot run stage.
iii.The registering authorities cannot refuse to receive the documents for registration by insisting that the registrants must pay stamp duty only as per the guideline valuation shown in the website register.
iv.The statutory function of index creation must be performed only by the Sub Registrar and this task cannot be passed on to the document writers or the registrants themselves.
17.This writ petition stands disposed of in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Secretary to State Government of Tamil Nadu, Registration Department, Chennai.
2.Inspector General of Registration, Registration Department, No.100, Santhome High Road, Chennai.
.