In my previous post today, I described eleven ways in which corruption happens in land related transactions. A friend, Madhu Kopparam described a twelfth scenario and I quote him below: A owns a piece of land, B & C are people with no connection to A or his land. B goes to court against C saying that C has encroached upon his land (which actually belongs to A). C counters by saying the land is actually his and B is the one who is encroaching. The court of course takes its time to process the case which once done can be bumped up to a higher court which means a possible wait of up to 20 years. A has no idea what is hitting him - he cannot do anything with his own land because it is now under litigation. B & C come back to A with a proposition: theyll buy the land off A at a huge discount or fight each other out in court. A has no choice but to take the cheaper option: sell. B & C now have As land at a song, and now sell or develop on their own and share profits. Madhus example is very very important. This scenario happens all to often and it is directly related to the absence of a land titling system in India. I am therefore elaborating on that issue here as a separate post. What is it that makes land dealings so corruption prone? In India we do not have far to look for the reason. Hold your breath, in India, no citizen in India has a title to any land. This might sound dramatic, but is true; India does not have a system that guarantees title to land. Now you will throw up your hands and say, but don’t I have a sale deed? Don’t I have a Khata? I pay property taxes too, what about the receipts? Don’t they mean that I have a title to my land, or flat? Sorry, each of these documents, or even a combination of all, does not amount to a conclusive and formal recognition of property rights; they merely constitute a presumption as to who might own land. Some of the reasons are historical, others are more recent. India did not have a legacy of maintaining land records because our colonial rulers did not concentrate as much on ownership of land, as they did on determining who the taxpayer was. All land survey and records were built with just that one purpose in mind, to determine the tax capacity of the property and pinpoint who should pay up. The fundamental right to property instituted in the Constitution at independence did not survive very long; it was relegated to a lower status of a legal right through the 44th Amendment to the Constitution in 1978. This further underscored what was already quite apparent, that reforms aimed at establishing the legal title of land ownership was not considered a major priority in development. The outcome of this neglect is that policies and systems for improved land use regulation and management are dealt with through several central and state laws. We do not have a conclusive single document that contains a guaranteed assertion of the ownership of land. For instance, if you have a sale deed, it only means that you have paid tax on the transaction of sale. It is not conclusive proof that the land sold was owned by the seller. Similarly, the Khata only proves that your name is registered in the City Corporation office as the payer of property tax. Yes, so I can sell you the Taj Mahal, have the document registered and if you pay the right bribes, you can also get the Khata for the property transferred from Shah Jahan to your name in the Agra Municipality. What we have in India is a presumed ownership to land and property that can be challenged on multiple fronts, which include ownership, extent of boundaries, sub-divisions, clauses of transaction, financial encumbrances and inheritance. Another big reason for corruption in land transactions is the accumulated backlog of land measurements. We neglected to update the survey maps for decades; therefore they have no relationship with the actual enjoyment of land. With the registration department more concerned as to who is selling and buying land rather than the extent and other details of the properties sold, there is no pressure to maintain update these survey drawings either. What can be done? People have begun to recognize that things are not running well. Following liberalization of the economy in the 1990s, it is clear that the absence of a land titling system is a severe brake on the economy, which affects both poor and rich alike. Uncertainty over rights and titles over lands and property underlies most conflicts, sparing neither individuals and corporates, nor State and Union Governments. It clogs the overburdened civil courts with property disputes and is a drain of peoples’ productive effort, money and time. Even if there is no conflict, any prospective buyer has to undertake a time consuming and expensive review of all the documents that provide evidence of ownership. At the end of it all, this might lead nowhere. In order to solve this problem, we need to have a comprehensive Land and Property Titling System. A guaranteed land title certification (GLT) system, which assures owners of their land and property rights can reduce land related litigation, encroachments and land grabbing and facilitate effective urban planning. Above all, it can dramatically reduce opportunities for corruption and patronage arising out of ambiguous land titles. The greatest benefit from a GLT system would be for the poor. Today, squatters in slums account for 30 per cent of India’s urban population. The poor have no asset base, because they have no rights to the lands that they might have occupied for decades. They have little access to essential public services such as electricity and water, because they have no property records. For the same reason, they face difficulties in obtaining ration cards and other identity certification. Above all, as homeless people living in shanties, they lack status. They are vulnerable to exploitation by mafias at whose mercy they occupy their temporary residences. They are condemned to a life of poverty, without property. The implementation of a GLT system would enable them to put their feet on the first rung on the ladder to climb out from poverty. However, there are many problems to be tackled while moving from the current system to a new GLT system. We have to update existing land surveys as also examine the multitude of existing documents before the slate can be wiped clean and a fresh guaranteed land title be given to the owner. Any mismanagement of this process of transition would intensify the problem, not diminish it. All States have agreed under the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) to introduce a Property Title Certification System, but were not very sure about how to go about it. India Urban Space Foundation, a non-profit that works on issues of urban policy and planning. With support from the IDFC, IUSF initiated a dialogue with the central ministry of Urban Development in July 2010 and signed a Memorandum with it to initiate project PLATINUM (Partnership for Land Title Implementation for Urban Management). IUSF provided technical guidance to the Ministry under Project Platinum to develop a detailed framework and guidelines for States to take the necessary steps to establish and administer a GLT system in urban areas. A National Working Group for Project PLATINUM, went into the various implications of establishing a GLT system. I was involved with this project as a legal expert and worked on designing the draft framework law that forms part of the report. Its major recommendation is to enact a law that establishes a legal and institutional framework for surveying land and issuing guaranteeing land titles. It recommends that each State constitutes a Land Titling Authority (LTA) which would be the apex body that undertakes surveys of all land, make the required enquiries and issue land titles thereafter. The LTA will be the custodian of the registers of titles issued and it will administer a system of indemnification of the titles issued against errors. What is the implication of all this legalese? Well, let us imagine that your ward is selected for implementation of a guaranteed land titling system. The first thing that will happen is that the LTA will undertake a survey of all the properties in your ward. Watch out for a surveyor, who will come to your house and take measurements of your property. In the case of your flat or villa in a gated community, they will take a measurement of the entire property and will accept any survey drawing or plan of the building or villa, as proof of the dimensions of your property. They will assign a unique property index number (UPIN) to each land parcel during the survey. Once the survey is completed, there will be a public notice stating this fact. That is the signal for you to apply to the LTA for your title. There is no compulsion on anybody to obtain a Title compulsorily. It is left to individuals to apply at their convenience for a Title under the Act. When you apply for a Title, the LTA must consider your application within a specified time frame and after an enquiry process, award a provisional Title to the property. Following a two year gap, to enable the consideration of any other fact that might come up for consideration, the provisional title is converted into a permanent guaranteed land title. Now, after you have received a Guaranteed Title, if you want to sell your property, the buyer is assured of the fact that you own your property; so there is no tension In order to ensure that giving a guaranteed title is a one-way street, all further sales of your property will require the seller to produce the Title certificate issued by the LTA. Only then will the sale be registered. With this, over time, we will gradually transit from the current system into a titling system. Sadly, the PLATINUM report does not seem to be available on the internet. It used to be at urbanindia.nic.in/programme/lsg/Project_Platinum.htm, but that link is dead The two action steps recommended in the report were: • The Framework Law for Guaranteed Land Title should be enacted by Parliament at the earliest, so as to apply to Union Territories. This law would represent a framework for the guidance of States to enact guaranteed title. • The Framework Law may be piloted in one Union Territory and in a city within a State that evinces interest in implementation of the system. Chandigarh could be taken up as the union territory pilot. The groundwork of surveying and mapping in the city may begin at the earliest, pending enactment of the Law by Parliament. However, to my knowledge, these steps have not been followed up by the Ministry of Urban Development in Delhi!
Posted on: Thu, 21 Aug 2014 13:06:44 +0000
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