The mess of title verification of lands can be simplified with political will. And there have been welcome initiatives of late
Had he not derided me, there would have been no article. His blunt question was, “If land records merely have presumptive value, then why examine them at all?” With his naiveté he stirred a hornet’s nest. It’s established law that revenue records/ records of right do not determine what’s rightfully yours and what isn’t. The supreme court has time and again confirmed that they are not title documents.
However, they do play a pivotal role in title due diligence. Dating back to the Mughal era for its origins, in Maharashtra, a simple form called ‘7/12 Extract’ reflects (i) the tenure of the land – whether it’s freehold or restrictive in nature, (ii) its area and survey number, (iii) name of the owner, (iv) mortgages, (v) third-party rights created by the owners under various agreements/ memoranda of understanding, (vi) easements, (vii) other encumbrances, (viii) actual use/ assessment, and (ix) crop pattern.
There are instances when a purchaser may have to rely entirely on these records in order to ascertain the title. Often, in case of family properties going back several generations, title documents are not available. Another instance is that of land redistributed among farmers in the wake of agrarian reforms. The problem is compounded when searches at the office of the property registry do not yield positive results. The real challenge lies in the mofussil and remote areas, rather than urban centres.
In spite of the importance of land records, the state of affairs in this arena is disappointing. They are hardly updated, and frequently handwritten. The survey & settlement department, property registry, and revenue authorities are barely integrated. Many courts have been digitized, but the online data is not indexed against the litigated property. Even vigilant litigants do not bother to file a notice of lis pendens with the property registry or the sub-registrar of assurances in relation to any suit affecting their immovable property. These challenges make a simple task like title verification an adventure rather than an assignment.
Ascertaining the real owner of land in India is an esoteric art. On this account our global business ranking for ease of doing business has suffered for years. Worse, lenders are never sure of what surprise may sprung upon them at the time of mortgage enforcement, purchasers find themselves wrangled up in litigation so on and so forth.
Around 1988, the central government started computerisation of land records. Various schemes in this direction have, from time to time, been introduced. The project received fresh impetus under Digital India Land Records Modernisation Programme (DILRMP). Besides logistical objectives of digitisation of records and integration of the three wings of land administration (survey, registry, and revenue), DILRMP aims at shifting from the existing system of presumptive titles to conclusive and state guaranteed titles. This perhaps is the most audacious and laudable of its objectives. However, on all fronts, we are lagging behind.
The World Bank in its report, aptly titled ‘Doing Business’, on a yearly basis studies 190 economies on the anvil of ease of doing business. While talking about ‘making it easier to register property’, it mentions Belarus, Indonesia, Guyana, Kenya, Senegal, Uzbekistan, Rawanda, Zambia, but not India.
The task ahead is uphill and ridden with challenges. Immovable property is a state subject under the Constitution of India. At best, the centre can propose a model law. The union legislature’s Land Titling Bill, 2011 can just be the panacea that we are looking for. A dedicated land titling authority, title registration office, district land titling tribunal, and state appellate are envisaged. Plots shall be surveyed and given unique identification numbers. An entry in the Register of Title (RoT) shall vest title in the party named therein as the owner. The RoT has been given the status of a public document and shall be accessible to anyone. It shall also contain details regarding devolution of the title in favour of the party named as the owner, easements, mortgages and other charges (including equitable mortgages by deposit of title deeds), power of attorneys, built-up area, vacant area, disputes, family settlements, succession certificate/ probate/ letters of administration, appointment of receiver, attachment order, etc. If adopted, not only shall it be incumbent upon a litigant to have the disputes entered into the ROT but on resolution get the same recorded. And, of course, the ROT shall be in electronic form. A system of biometric encryption shall ensure that the records are foolproof and secure.
Now, it is for the states to muster enough political will and put the house in order. Rajasthan leads the field with the Rajasthan Urban Land (Certification of Titles) Bill, 2016. As evident from the name, rural areas, where the real mess is, are not within its ambit. Nevertheless, Rajasthan has got the ball rolling. In order to keep up with the Jones, others are quickly following suit. Last month, Maharashtra came up with its draft Land Titling Bill with plans afoot of setting up of a titling authority.
A common law, applied and understood evenly throughout India, is really not a mirage. The Real Estate Regulation and Development Act, 2016 is a good example in this sphere. Incidentally, the liability of a promoter of a project towards title, under this Act, is so onerous that the law of limitation is not applicable and he can be hauled up anytime, no matter how distant, for a defective title. If private entities are expected to bear such a heavy burden, then with proper checks and balances, the state can certainly guarantee title.
A uniform regime at the pan-India level will encourage real estate investment within the country. However, it would really help if the records can be maintained in both the vernacular along with English or Hindi. In all matters pertaining to rural properties the use of the state language simply cannot be dispensed with. But an effort can be made to introduce either Hindi or English along with the state language. This will break another barrier for free flow of investment in real estate. A natural bonus will be an efficient system brought about by nothing lost in translation.
For the time being, however, we need a reminder, in Robert Frost’s words:
The woods are lovely, dark and deep,
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.
Malcolm is a principal associate with the Mumbai office of Kochhar & Co., a law firm. The views expressed are her own.
(The article appears in October 31, 2018 edition)