Hyderabad: The Andhra Pradesh Land Titling Act, 2022 (Act 27 of 2023) came into force on 31.10.2023 with the passing of G.O.Ms.No.512, Rev., (Lands.I), Dept., Dated: 01-11-2023. Shortly thereafter Advocates practicing in the District Judiciary (previously referred to as Subordinate courts) have been boycotting Court work since it profoundly changes and damages the present justice dispensation system by removing the jurisdiction of the civil courts and hands over these functions to revenue authorities who are a part of the executive wing of the government.
It has been pointed out by Niti Aayog that 66% of the civil cases in the Courts of the country are related to land disputes. In order to alter this and with the support of IMF and World Bank land titles and their digitization has been pushed as important component of Ease of Doing Business. The Niti Aayog had recommended a model act in 2019.
The Model Bill and the AP law are against the letter and spirit of the constitution and risk bringing about disputes, land grabbing and litigation on a scale hitherto never seen in the country in the past. “Right to Property” was a fundamental right under Article 30 of the Constitution of India till 1978 and by the Constitution Forty-Fourth Amendment Act, 1978) it was removed as a fundamental right and instead became a Constitutional Right under the present Article 300-A of the Constitution. History shows us that the removal of right to property as a fundamental right was a big mistake.
Salient Features
The supposed intention of the Model Bill was to create a one stop record of conclusive land records and a system for registration of title which inter-alia will provide fast, secure transactions in property and guarantee the title. To meet this objective the Act proposes the establishment of a Andhra Pradesh Land Authority (APLA).
APLA will prepare a tentative record of title over all immovable property in the state and issue notification and invite all persons with any claims over the property to file claims, if any. It is claimed that since under the present Registration Act, 1908 the registering authority cannot seek to verify the title of the person who bring a document for registration, there are a number of claims on the same piece of property.
This is a mistaken view since Registration Act, 1908 is only procedural and does not confer any substantiate powers. Instead, issues like validity of title are those that are under the ambit of Transfer of Property Act, 1882 and Hindu Succession Act, 1956 as the case may be. Section 7(3) of AP law provides for a wide and expansive definition of what constitutes a claim and it includes any right, title or interest in any charge on any immovable property and includes in its scope leases, GPAs, easementary claims, agreements with or without possession and even in any existing GPAs, suits or appeals pending, insolvency proceedings.
Even more shockingly it includes in its ambit a writ proceeding (which means it impacts even the constitutional courts like High Courts and Supreme Courts). If these claims are not registered then those claims are not enforceable and even worse, any pending proceedings in a court of law will lapse and transactions void (Section 56).
Even more worrisome is that the time limit for any sort of remedial action by an aggrieved party is unreasonably short – usually 7 to 15 days. Unfortunately, taking certified copies and appealing a decision takes far longer than that and any condonation delay for most provisions itself is restricted to at most 7 to 15 days which is simply not sufficient – except those who are well connected or have the means.
The Act lays down that all those with any claims on a piece of immovable property have to register their claim with the APLA and the maximum time limit for this compulsory registration is two years. If there is a dispute then that property is entered in a “register of disputes”. Practically such a provision is worrisome for various reasons: If by any chance, if the claim is registered by another claimant and the original holder of the claims has not information and no dispute is raised then irrespective of the genuineness of the claim of person registering it will attain finality.
In fact all disputes of title including cases in Civil Court, High Court and Supreme Court have to be reported to the APLA thereby increasing compliance cost to already troubled individuals. While reporting itself is not an issue, this reporting will require the payment of filing documents and payment of fees.
There is no assurance anywhere that the fees will be nominal. Thus, it is likely that governments will start considering this as the goose that lays golden eggs and will keep increasing the fees chargeable - just like the manner in which registration costs are being increased.
Changes: Problems and Issues
One important change that has largely gone unnoticed is that unlike the Contract Act, 1872 which permits oral contracts, the new law in practical terms excludes oral contacts and defines document to include any matter “expressed or described on any substance” thereby excluding oral contracts. The consequence of this is that at one stroke the complete responsibility for registration of claims and follow is shifted to the property owner and any failure to meet the deadlines will lead to foregoing of their right to enjoy the property.
In fact, there is nothing in the act that will facilitate “Ease of Doing Business”. Hence, instead of decreasing litigation it will only delay settlement of issues and will increase the cost of litigation for parties and even worse will increase the cost of ownership of the property and will make compliance of norms even more cumbersome.
A mistaken justification is that since there large number of court cases pending in the civil courts, the act is necessary. According to National Judicial Data Grid (NJDG) there are 1.097 civil cases pending in Civil Courts. Hence this is a shocking claim because 95% of rural households and 65% of Indian households own property.
Hence, NITI Aayog may be using data that is convenient rather than one that is more analytical in nature because there are different types of civil disputes. But this does not justify an act that may lead to more dislocation in the immovable property segment by claiming that there are some disputes. Further, there is nothing in the act that assures that litigation will decrease.
Rather, those who are not aware of the provisions, which in a country like India would include about 80% of the population will be gullible and victims of more rather than less litigation. Any person can acquire details of another person’s property and can engineer a dispute and Section 61 says “any interested person” can seek the record details but does not define who is any interested person thereby leaving arbitrary powers with the hands of the registering authority, i.e., the Revenue official.
Section 16 of Model NITI Aayog Model Bill clearly states that notwithstanding anything contained in any other law, an appeal lies with High Court on any order passed by Land Titling Appellate Tribunal. However, shockingly, the AP law vide Section 16 says “not withstand anything in any other Act or any other law for the time being in force, an application for revision shall lie to the High Court…”.
This is important difference because there is a sea of difference between a revision and an appeal. A Revision is on very limited grounds. In fact the NITI Model law recommends a special designated benches to deal with appeal of orders of the Land Titling Appellate Tribunal (LTAT). Hence, the AP Law tries to restrict the constitutional right to constitutional remedies.
The Supreme Court in various judgments has clearly laid down that an aggrieved person cannot be left with a remedy as it will be in the case of AP Act. Interestingly, Kerala which passed a similar law in 2021 has not tinkered with this important aspect of Appeal. In practical terms, it means that Andhra Pradesh High Court will be flooded with people who have no other remedy other than filing a Writ under Article 226 of the Constitution because as per Hon’ble Supreme Court of India no provision of law can take away the powers of a High Court for judicial review of an administrative decision and since there is no remedy of appeal it is likely that section 16 of the AP Act is ultra vires of the constitution; but, this is a question of law that can be decided later.
More importantly, according to Hon’ble Supreme Court decision in L Chandra Kumar versus Union of India (1997) a tribunal like the LTAT can only perform supplemental functions and cannot interpret the constitutionality or legality of a particular rule. Even more shockingly, the AP law has completely overlook important principle of jurisprudence related to powers of parliament and State Legislature.
There is a clear delimitation of legislative powers among the Parliament and State Legislatures as laid down under Article 246 of the Constitution and these powers are listed in detail in the Seventh Schedule of the Constitution. Parliament passes laws in Central list or List I, while State Legislatures pass laws in State List or List II and Parliament and State Legislatures can pass laws in List III or Concurrent List.
Important question of law that is raised is that under Article 254 of our constitution is unambiguous and lays down that incase of inconsistency between a law passed by parliament and State Legislature, the laws passed by Parliament shall prevail – unless the legislation concerns a subject that is in the State List as per Seventh Schedule (Article 246).
Thus, provisions of the Central laws will prevail in subjects under List III or concurrent list. Unmindful of these provisions, AP law vide provisions in Section 20 to 25 will gain precedence over various provisions of the Contract Act, 1872, Transfer of Property Act, 1882, Registration Act, 1908, Hindu Succession Act, 1956 and Insolvency and Bankruptcy Code 2016 by claiming that unless the provisions of AP law like title registration and certification are completed, Central laws will not be enforceable and this is ultra vires of the Constitution as the State legislature has no power to make such laws.
Another important problem in the AP law is that by the above changes the powers of adjudication of disputes are shifted en masse to the revenue authorities from the present civil courts. In other words, there is rampant “tribunalisation” of justice delivery mechanism, which is harmful for our democracy since it tends to undermine the concept of independent judiciary.
Tribunal members are appointed by the Executive Wing and most often these members are either not versed in intricacies of legal interpretation or puppets of the government. Thus, the lack of a judicial member and the fact that all the members will be bureaucrats is a cause for concern since the history of the past five years shows that the bureaucracy is not more the “steel frame” that was envisaged by people like Sardar Vallabhai Patel; rather it has become plaint to the powers that be and has been actively aiding the taking of decisions that undermine public interest and democracy since based on recent actions there is no guarantee that the bureaucracy will be protect the property of citizens especially when it comes to protection against the politically powerful.
The rampant occupation of public lands and the bureaucracy turning a blind eye in recent years does not instill much confidence.
