Legal Issues Still Hobble Land Titling in India

Land has remained one of the most legally controversial and litigious subjects in India.

The lack of a fool proof system to maintain land records and a failure to provide people with conclusive titles results, has resulted in acrimonious and long drawn legal conflicts.

Some key reasons for this situation are:

• Identifying the undisputed legal land owner is difficult today since registering a land title under Registration Act, 1908 is only an evidence of the transaction and does not grant ownership. Records maintained by the revenue department were said to be a parallel system to this but it has not worked out so.
• Some kinds of land transactions (e.g. gifts) may get included in revenue records but may not be registered under the Registration Act, which creates discrepancies in land records
• In some states like Haryana and Himachal Pradesh the prevailing land ownership system handle only ‘shares’ of particular persons without clearly demarcating physical boundaries.
• Similarly, most land records nationwide do not mirror property ownership at an individual level.
• Further colonial-era system of deed-based registration, along with presumptive title instead of conclusive title, leaves land titles open to challenge , limiting efficient land utilisation in the country.

Under India’s constitution, the maintenance of land related records, land survey and revenue and ‘record of rights’ are placed in the state list.

In the concurrent list, subjects like Registration Act stamp duty, transfer of property etc are present which have a direct effect on land records and on which the government has passed legislation. However legislative and executive systems most often fail to work in tandem.

Legislative Attempts By Central Government

• The central government proposed the Model Land Titling Bill, 2011 as a measure towards rectifying this thorny issue. This bill hopes to create a template for states in their attempts to establish conclusive titles using government notifications.

• The National Land Records Modernizing Program (2008) was also launched to tackle the issue of conclusive land titling.

Challenges Stemming From the Model Bill Provisions

• The 2011 Bill fails to clarify the functioning of the new system with its new authorities and officers vis a vis the existing system.

• Lack of clear land records is also a big issue

• The process of carrying out surveys for executing the ‘mirror’ principle under the Torrens system is unclear. The Torrens system seeks to provide certainty of title and makes the registration of the land conclusive. The mirror principle is aimed at ensuring that the land records reflect the reality of the situation on ground.

• The authorities to manage the system are funded by the central government but function under the aegis of state governments, which also complicates the issue.

Few States Have Attempted To Introduce Legislation

The state governments of Maharashtra and Rajasthan have tried to introduce new systems to prove conclusive titles via different laws.

• Rajasthan’s Rajasthan Urban Land (Certification of Titles) Bill, 2016 is inadequate on many aspects and has not addressed the real issues.

It does not clearly define what constitutes conclusive ‘titles’ or their legal status.  It also does not explain or define ‘rural’ or ‘urban’ property clearly.

• Maharashtra has introduced an amendment to the Maharashtra Land Revenue Code, 1966.

Introduced in 2015, the bill was updated last year.  It proposes  a system of conclusive titling via digital records and proposes the registration of titles to ensure the optimum utilisation of land, so as to reduce litigation and cutting down land-based credit.

It also tries to improve the system of land administration, and ensure the security of land title particularly for new apartments and flats.

Maharashtra Bill Considered A Good Start

Under the bill, four authorities work in parallel – the Maharashtra land titling authority (a fully bureaucratic), land titling tribunal, title registration officer (TRO),  and state land titling appellate tribunal.

Three electronic registers are created – Register of Title, Register of Charges and Covenants and Register of Disputes

The Bill requires a survey procedure in which the state government make the preliminary record of notified immovable property using an indicative map.  The TRO then issues a notification seeking any objections. The TRO registers any claims received in the relevant register.

In case of disputes, the entries in the Register of Titles becomes conclusive only after a final resolution of such dispute occurs.

Some Issues Need to Tackled In Maharashtra’s Bill 

Despite its comprehensive tackling of the issues surrounding the subject, it has a few issues:

• The Bill doesn’t define a new title registration system, stating the authority will set it up via a notification.
• There is no clarity regarding the role of the TRO in conducting the survey and also of state government departments that will be taking up the land survey
• The TRO can be a non-state official, i.e., a private person, which makes the procedure vulnerable to manipulation.
• The documents needed for establishing conclusive titles and to challenge any entry in the registers are not laid down clearly.
• The TRO is not given any discretionary powers regarding dispute resolution.
• The terms ‘report on transaction’, ‘transfer application’ and ‘recording’ are not defined.
• Registration processes under the current Registration Act and this Bill are yet to be worked out.
• There is no mention of compensation and caters to only new disputes and not those sub judice.
• It fails to mention exceptions to the land titling system, for e.g., in case of special economic zones (SEZs) or slum areas
• No penalties are considered for misconducts like furnishing incorrect information or wilful concealment etc.

The Bill makes an effort to address many issues plaguing ‘titles’ in our country but still falls in some areas. The governments in our country – both state and central – need to create an effective legislation that provides clarity and offers sound procedures to detangle this issue at the earliest.