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E-registration procedure and practice
An conceptual analysis and empirical study of registration process of Karnataka; with special reference to Sub-registrars office in Mysore.
By
Shivashankar.K.R Bsc .LLm
Advocate
Introduction
Cyber jurisprudence was uncalled prior to computers, invention of computers led to a chain of reactions and one such concept that evolved with it was cyber jurisprudence. This sphere of cyber jurisprudence in India hit its mark with the promulgation of INFORMATION TECHNOLOGY ACT 2000 by the Indian parliament in 17/10/2000. Thus all matters pertaining to computers were brought into the purview of information technology Act 2000.
A revolutionary step was taken by government of Karnataka to update the century old system from manual records to electronic and the entire registration process coming under the Registration Act 1908 changed from manual to electronic. This process includes electronification of documents like sale deeds, mortgage deed, gifts, wills, release deeds, etc.
Position prior to the Registration Act 1908
Prior to the registration Act of 1908 which was promulgated by British, the transactions pertaining to immovable property including adoptions was by equity and good conscience. Village headman who was known as “Shanubhog” used to maintain a record which was the source of title tracing of an immovable property. As the British administration entered into all spheres they brought a system of maintaining a permanent record which was made compulsory and would prevail for ever, both in respect of land and dwelling house. With this vision another revolution came in pipeline Promulgating the Transfer of Property Act 1908 and other enactments. Under this Transfer of Property Act various types of immovable properties was specified and the rights attached to it were enlisted and the transferable right and interest of the vendor and the vendee that should possessed was enumerated. It was for first time that law made it compulsory to register all sale deeds whose consideration is above RS 100 COMPULSORILY. This was followed by transferring “Katha” on the basis of registered document in the name of the purchaser thus affirming the title.
It is not out of context to mention here that simultaneously the British government started the land Revenue Act, and thus identified the existence of various types of agricultural lands, and the khata number,phod, kharab land, records of RT’s and index of lands came into being, which is permanent even today. Thus the vision of British was rational and practical in approach.
Scope of registration Act 1908
The registration Act 1908 was gazetted on 1-1-1909 Pt.V.P. 325 made applicable to the whole of undivided India. The purpose of the legislation was to consolidate the enactments relating to the registration of documents.
The Act in chapter I deal’s with the preliminary and definition clauses and the description of the properties and minors representation through guardian.
Part II of the Act enumerates the registration establishment’s i.e, establishing of district registrars in each district and the chief controlling authority at the H.Q. i.e, Inspector general of registration. Under this part the duties and responsibilities of each and every officer and their respective statutory powers is listed.
Part III, IV, and V pertains to the registrable documents i.e., the documents which are compulsorily registrable such as, sale, mortgage, gift, lease, etc and the other category to which registration is optional i.e., WILL and other documents which are opposed to public policy. The time of presentation of documents and the place of registration of documents is also listed.
Part VI and VII deals with presenting documents for registration and of enforcing the appearance of executants and witnesses. This is a very important because both old system and in the changed new electronic mode of registration the appearance of parties presenting the document and the witnesses is made compulsory. The idea behind this is to preventing impersonation by cheating.
Part VIII and part IX deals with presenting of wills and deposit of wills. As will is a privileged & secret document the Act makes special provision for its deposit with conditions.
Part X refers to the effects of registration and non registration.
Part XI being the elaborate chapter pertaining to the details of procedure regarding registration, maintenance of registers, indexing the documents, classification of records, maintaining of thumb impression register and entry of each document in the respective books.
Procedure under the Un amended registration Act 1098
The procedure that was followed prior to electronic form of registration was
1. Book I: Contains verbatim reproduction and copying of all the sale deeds, agreements, lease, mortgage etc.
2. Book 2: Documents which are refused of registration
3. Book 3: Wills
4. Book 4: General power of attorney
These books are permanent records; it is only after the entry into these books the original would be returned to the parties. Even if the original parties want to take a certified copy they have to apply for it and get it. [1]
Information technology Act 2000 and the registration Act 1908
With the enactment of information technology Act government of India has taken the decision to electronify the existing system for a better E-governance. Government of Karnataka has also resolved to bring the revolutionary change into the registration Act also. In this direction the following provisions of registration Act 1908 amended part XI-A has been inserted by adding to section 70, 70-Ato D by Karnataka amendment Act no 32 of 2001 with effect from 1-10-2001. The amended Act reads as follows
Registration of documents by means of electronic or other devices:
Sec 70-b definition: in this part process of registration of documents by means of electronic or other devices shall mean and include
Section 70-c: Process of registration of documents by means of electronic or other device in the areas notified by the state government.
Section 70-d: Application of Act to areas notified under 70-c: in any district or sub-district in respect of which notification has been issued under section 70-C the following provisions of the principal Act shall for the purposes of this part be subject to the following modifications namely:
a. In clause (2) of section 2 the words and the information storage devises like floppy disk hard disk or compact disk etc, micro film and micro fiche shall be inserted at end
b. In section 16 for sub-section (1) the following shall be substituted namely
1. The state government shall provide for the office of registering officer the books and the information or the image processing and storage devices like micro film or scanners along with the software prescribed for the same.
2. Accordingly the definition clause “book” is replaced by storage in the electronic or other storage device and the word copied is changed as stored in the electronic or other storage devices. Thus in the appropriate places wherever the common legal terminology is used it is being replaced with the computer terminologies.
Section 70-E: Evidentiary value of copies of certain documents registered by means of electronic or other process of registration:
A copy of any document registered thorough the process of registration by means of electronic or other devices or by any other method of certified or attested by the registering officer in charge of the office shall also be received in evidence of any transaction as is described in the said document.
Thus by virtue of this section the legal presumption is given to the registered documents using electronic device. The courts have to draw the initial presumption that the deeds registered are prima facie proof of documents. This is strengthened by making amendment to section 65 by incorporation section 65-B to the Indian evidence Act.
Section 70-F: Provides SAVING under this clause if there is any break down of electronic or other devices duly incorporated into the system, the same may be restored in the manner specified in the rules by the inspector general of registration.
Section 70-G: Powers of state government under this chapter:
Thus by making the above amendments to the Registration Act the provisions have been strengthened with electronic speed. The old system is given a go by and now the whole state of Karnataka, Registration authorities works on computer media only. The manual system of maintaining books in volumes I to V is now abolished; this is achieved by computerizing the entire offices of the sub registrar district registrar with the controll maintained at the H.O i.e, the I.G.R in Karnataka.
From 2003 January, Controlling unit stationed at HQ operates by means of CENTRALIZED DATA MAINTAINING through the offices of the IGR in Karnataka which is called the “STATE DATA CENTRE”.
Allover Karnataka registered document will be preserved at data centre. Operating this the government is shortly obtaining a lease line form BSNL and when this is done access will be through internet and copies of document could be obtained easily by paying the necessary fees.
The government has entered a contract with the ECI (Electronic Corporation of India) for the automation and maintenance. The entire hardware and scanner are being supplied and installed and maintained by employing operators and experts by ESI. The department has provided space power and the storage media. The entire software is designed by CDAC based at “Poona”(Maharastra). The investment of the government is minimal and the cost of expenses will be met by charging per page scanning of the document at Rs 60 out of which Rs30 is being paid to ECI.
Formerly the LTM of the parties and the witnesses was being taken manually. Now it is being taken form the thumb impression extractor and the photos of the parties will be taken through a digital camera. The said photo of the executants and the signature of the witnesses along with other details will be printed upon a separate page (page No.2, 3 and 4). Thus the executant once accepts the execution of the document he cannot deny the execution at all nor plead fraud, coercion, undue influence or threat.
Advantages if the electronic media registration:
The registered document will be scanned on the spot and the document will be stored in CD and 4 copies will be preserved in different CD’s out of which
1. Two copies will be retained in the sub-registrars office
2. One copy will be retained in the district registrars office of each district
3. One copy will be preserved in the IGR office and a CD library will be maintained
When once the document is registered and stored in the CD no overwriting is allowed, and even if the Sub registrar wants it to be modified or changed he cannot do it.
The preservation of old records by manual operation was capable of destruction due to natural calamity whereas the CD is more secure to that extent.
In old system the delivery of document used to take not less than one to two months. Whereas now within thirty minutes from the time of registration the document will be delivered to the party which speaks of immediate transfer of the title from hand to hand exfacie visible in the document to the naked eye thereby satisfying the parties.
With effect from the date of registration through the computer the encumbrance register is also simultaneously entered in the system which facilitates the parties to obtain EC.
The electronic mode has reduced the man power and errors in making copies of the documents from books is thereby reduced.
The traditional system of preserving the records in bulky volumes and maintaining it is discarded. One document takes 2 MB and for preserving 300 documents 600Mb is required which will be hardly a storage space of a CD and preserving of CD will not only save space but also with indexing will provide an easy access.
Preservation of old record by scanning it into electronic media:
Right from 1908 as narrated supra the records were maintained in books which have now become old and fragile and incapable of withstanding of regular usage, therefore steps have been taken to convert all the documents into MICROFILMS and then stored into CD. The process of microfilming is used due to the fragileness of the records. Such books which are capable of using are directly scanned and stored in electronic form. Thus the entire process of maintaining records is electronic.
Issuing certified copies vis-à-vis section 65-B R/W sec 2(3) of information technology Act:
Formerly the issuing of certified copies was through copying of books and certifying by sub registrar with necessary fees. After photocopying came into operation the records were photocopied and certified. Now the computer printout will be obtained and it will be again attested as the copy by the sub registrar upon necessary fees.
Now the question is whether a computer generated recorded or an electronic document requires further authenticity by the authority. If so what is the evidentiary value of it and the presumption attached to it under information technology Act.
Section 4 of the information technology Act 2000 deals with recognition of electronic records.
Where any law provides that information or any other matter shall be in writing or in typewritten or printed form, then notwithstanding anything contained in such law such requirement shall be deemed to have been satisfied if such information or matter is in
a. Rendered or made available in an electronic form and
b. Accessible so as to be usable for a subsequent reference.
This is in view of the crystal clear provision contained U/S 4 of the IT Act. Since the copy of the CD generated registered document is an electronic document is deemed to have been duly signed and authentic document. However the sub registrar office is continuing the old practice which has to be tuned in accordance with the information technology Act,
Section 65-B of the Indian evidence Act reads:
Notwithstanding anything contained in this Act any information contained in an electronic record which is printed on a paper, stored recorded or copied in optical or magnetic media, produced by a computer (herein after referred to as computer output). Shall be deemed to be also a document if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings without further proof production of the original as evidence of any content as of the original or of any fact stated therein of which direct evidence would be admissible.
This within the meaning of section 65-B of the Indian evidence Act, all computer generated statements are having the presumptive value as if it is the original/primary evidence. The courts have to believe it to be genuine and it carries the legal presumption. This is based on the legal presumptions and the electronic documents under the Information technology Act 2000.
But in reality the sub registrars office is not complying with this legal requirement even today the electronically generated document is being certified as certified copy compared with the original and it bears the signatures and seal and the date of issue by the subregistrar. (Copy Enclosed)
It is submitted that from the legal presumption point of view of the computer generated or electronic document is concerned the applying of the centuries old procedures so far as the granting of certified copies is to be changed. The registration Act is amended in conformity with the information technology Act 2000 and Indian evidence Act. Hence to keep the legal sanctity of the statutes the computer generated statements such as the E.C copies of all the registered documents and search reports should not be subject to attestation.
Advantages of electronic system of registration:
The office of sub registrar is the source for preserving the titles of all the immovable properties of their respective jurisdiction of the citizens in the country. When the entire world is moving to the CYBER SPACE and accepted the cyber technology in their daily life, the decision of the government of Karnataka in evolving the project called KAVERI (Karnataka valuation and E-registration) A business process reengineering and E-governance model for realizing 100% automation of registration process and speedy delivery of registered documents to the citizens of Karnataka.
This noble scheme has ensured on spot service to the citizens who can walk away with their title deeds within one hour, thereby the traditional method of waiting for months together to receive their valuable title deed is given a go by. The inordinate delay in taking the finger prints of the executants on the register and the register document and causing physical discomfort to the aged people is put to an end by adopting scanning which hardly takes few seconds.
The storing of documents in the CD and building up of a CD library at the state HQ to ensure safety of the documents is highly laudable as the ancient documents preserved in books are exposed to natural calamity. The simplified procedure for issue of copies of registered documents and the EC referred to supra is also mile stone in the galloping IT world. Thus the advantages are more compared to the disadvantages; the registration module developed is apt. so as to suit the convenience of the natives.
Conclusion:
To conclude the reformation of 100% automation in the registration process and speedy delivery of the registered documents to the citizens of Karnataka is a progressive step in the direction of E-governance. The sub registrars office thorough out the state are computerized on the principle of public private participation on a BOT basis. The government of Karnataka has fixed the scanning charges per page of each document as Rs60 put of which Rs30 will be paid CADC and its associates for maintaining the system. Thus the government is not incurring any investment expenditure and instead has been building the necessary infrastructure in the IT world. It is desirable that the state takes all necessary initiatives to keep up with the dynamics of the cyber world and meet the upcoming challenges in future.
Bibliography:
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Online resources:
Annexure:
