"This order will certainly push the Government to notify the long pending Amendment to Sec 22 A (2) of the Registration Act, 1908 which permanently refrains registration of unapproved plots."
Facts of the case:
The High Court has observed that Agricultural Lands are being covered into residential or other use without any specific provisions in any Act / Rules / Regulations. The matter has been adjourned since March 2016 and the State Government sought further time to notify the same.
Owing to the delay in notifying the Amendment to the Registration Act, 1908, the writ sought an interim relief by forbearing “The Inspector General of Regtration” from registering the unapproved plots & building.
The High Court directed that no Registering Authority shall register any sale deed in respect of any plots in unauthorized layouts or any flats/buildings constructed on such plots. This order becomes necessary to prevent further development of unauthorized layouts and conversion of agricultural lands for non-agri usage in an unplanned manner and simultaneously giving time to the Government to come forth with the necessary policy documents and Legislative changes.
Listed for 21st Oct, 2016.
The Tamilnadu Government passed the The Registration (Tamilnadu Amendment) act, 2008 in the year 2008 and the accent from the President was obtained on 29th January 2009.
The Act amended Section 22-A of the Registration Act, 1908 incorporating the following:
Notwithstanding anything in this Act, the registering officer shall refuse to register any of the following documents
1. instrument relating to the transfer of immovable properties by way of sale, gift, mortgage, exchange or lease,—
i. belonging to the State Government or the local authority or Chennai Metropolitan Development Authority established under section 9-A of the Tamil Nadu Town and Country Planning Act, 1971;
ii. belonging to, or given or endowed for the purpose of, any religious institution to which the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is applicable;
iii. donated for Bhoodan Yagna and vested in the Tamil Nadu State Bhoodan Yagna Board established under section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958; or
iv. of Wakfs which are under the superintendence of the Tamil Nadu Wakf Board established under the Wakf Act, 1995, unless a sanction in this regard issued by the competent authority as provided under the relevant Act or in the absence of any such authority, an authority so authorised by the State Government for this purpose, is produced before the registering officer;
2. instrument relating to the transfer of ownership of lands converted as house sites without the permission for development of such land from planning authority concerned:
Provided that the house sites without such permission may be registered if it is shown that the same house site has been previously registered as house site
Thus Section 22 A (2) clearly restricts the Registering Authority from accepting documents relating to transfer of ownership of lands which are unapproved.
Whilst the Gazette notification was published as early 2009 itself, the effective date of implementation was not notified by the Government and hence the amendmeded Sec 22 A (2) is yet to be implemented.
This resulted in flood gates of writs in various courts across the State including Writ Petition No: 2071 of 2016 which sought the Government to take immediate and urgent steps to notify the date of enforcement of the newly substituted provision of Sec 22 A of the Registration (Tamilnadu Amendment) Act, 2008.
While hearing the aforesaid Writ on 22-03-2016, the Court disposed of the petition based on the Government’s submission that
The process is over and approval from the Cabinet has to be obtained for the date of notification. In view of the impending elections, it is stated that the matter be adjourned for compliance beyond the date fixed for completion of the election process.
Despite the new Government getting formed, the amendment was not notified.
The High Court while hearing Writ Petition No: 19556 of 2015, granted a consequential relief by forbearing the “Inspector General of Registration” from accepting instruments to register unapproved plots or flats/plots constructed there on.
Subsequent to this relief, the Sub-Registrars are now refusing to register any document pertaining to un-approved plots or flats.
The Explanation II of the Amended Sec 22A (2) clearly defines the word “Planning Authority” as follows:
‘Planning authority’ means the authority constituted under section 11 of, and includes the Chennai Metropolitan Development Authority established under section 9-A of the Tamil Nadu Town and Country Planning Act, 1971;
The Authority constituted under Sec 11 of T & CP Act, 1971 are
Regional Planning Authority – Sec 11(1)
Local Planning Authority – Sec 11 (3) and
New Town Development Authority – Sec 11 (4)
Unless amended, a development approved by any authority apart from the above would be considered as unapproved. This would include the local bodies like Panchayat President etc.
However, the proviso to Sec 22-A (2) permits registration of an unapproved plot if it were previously registered as a house site.
We are informed that the Sub-Registrar’s office located across the state are now insisting on submission of approval letter / NOC from CMDA or DTCP before registration of plots.
A powerful and much needed relief granted by The High Court of Madras. This has taken us closer than ever before to the notification of amended Sec 22 A (2) of the Registration Act. While the Real Estate Regulation and Development Act provides to regulate larger developments, the amended Sec 22 A (2) will ensure discipline even in smaller developments.
The objective of both the amendment and the “Consequential Relief” recently ordered by The High Court are to prevent the mis-use of Agricultural lands. Well development non-agri lands will not be impacted by this order.
Though the High Court has restricted the registration of “Sale Deeds” only, we can assign a larger meaning to this and interpret to include other documents which purports to transfer ownership in an unapproved property viz Settlement Deeds or Release Deeds or Partition Deeds or Gift deeds etc. All other documents including Memorandum of Deposit of Title Deed or Mortgage Deed will not be impacted by this order.
Unapproved lands already sold and registered as residential plots, will not be affected by the amended Sec 22 A (2) inturn protecting the interest of the people who have already purchased such plots.
The additional documents sought by the Registrar’s post the HC Order are likely to get streamlined once a Departmental Circular is released in this regard.
(These are the personal views/opinions of the Author and readers are requested to seek formal legal advice prior to acting upon any of the information provided herein. This update is not intended to address the circumstances of any particular individual or corporate body.)