Real estate
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This article is written by Neha Jayantilal Shah who is pursuing a Certificate Course in Real Estate Laws from LawSikho.

Introduction

India is a country where 91% of its area is covered by land, making land as the most valued possession of any individual in India. The need for a system ensuring proper maintenance of land records can be gauged from the fact that today land prices in India runs in crores of rupees and a small mistake in maintenance of land records can lead to a huge monetary loss to the parties involved. This article seeks to undertake a detailed investigation on the top five issues involved in maintaining the land records in India and ways to resolve these issues.

Land records as commonly perceived doesn’t consist merely of registered sale deeds, but it encompasses within its ambit textual documents (as for instance the 7/12 extract, the Record of Rights, Jamabandi), spatial records (consisting of maps and diagrammatic representation of the property) and registered transactional documents (as for instance sale, gift, exchange).  These records are maintained by different departments in each state, and the same might vary from state to state. Amidst this multiplicity it is strenuous to ensure that all such records in all the departments are updated and the details mentioned in one department exactly correspond to the details mentioned in other departments. This inconsistency in maintenance of land records in turn has a negative impact on the Indian Real Estate market and in many cases makes the land a subject matter of never litigation. Realizing the inherent problems in our system of maintenance of land records, the Parliamentary Standing Committee has prepared a report on Ease of Doing Business (2015) and has highlighted the following issues emerging out of long talks with various stakeholders:

  1. Need for Establishment of a central online database for land records. 
  2. Digitisation of all remaining land records so that the entire data for the past 30 years is available to the public for online search. 
  3. Integration of land records data base in a manner so that all mortgage data against these lands can be seen online. 
  4. Creation of a unique property identification code by linking city survey numbers to municipal bodies so that all data in context of a particular property is available on an online basis. 
  5. Provision for mandatory verification of records before registration and transfer. This would eliminate wrong practices and subsequent litigation. 
  6. Determining extent of discrepancies and development strategies for bringing a spatial and textual component of all land data through use of technology.
  7. Complete ban on manual records and computerisation of Record of Rights (RoR) and making them available online. 
  8. With specific reference to Delhi, all developmental agencies integrate the database available with all agencies mainly MCD, DDA, NDMC, Gram Panchayats so that all the information is made online.
  9. Reduction of stamp duty to 2% so that cost of transfer of property is reduced.

Decoding the top 5 issues in maintaining land records

  • SPACE CONSTRAINTS 

The first thing that one visualizes when one thinks about the land records in India, are those huge heaps and piles of papers stacked one above the other in a dark room which has barely any place left to walk. If this is what you visualize, then bang on, you are absolutely correct. All our registration departments and offices are required to maintain a physical record of each and every original registered document since the date the Registration Act, 1908 came into force. Maintaining a record of documents as old as a century old is an arduous and laborious task requiring a lot of manpower, gigantic store rooms, huge offices and an extensive capital. 

Thus, in this time where land costs are reaching all time high and real estate is considered as the most valued asset, dedicating such huge spaces to store documents, would not be considered as an optimum utilization of space. Further storing documents in such huge places comes with its own drawbacks like time consuming manual recording requirement, fright of loss or damage to original documents, substantial capital investment.

Digitalization of all documents, data and information and making these digitized information available to the public would go a long way in eliminating all the prevailing hardships in maintaining and accessing the land documents. Furthermore, digitization of land records would free all the space currently occupied to store documents and the space can be utilized for any other capital generating venture.

  • FRAUD IN LAND REGISTRY

In India all the deeds and documents pertaining to real estate are registered under the Registration Act, 1908. However, it is seldom observed and noticed that even though the Registration Act provides for mandatory registration of title and documents pertaining to property, there is no concept of registration of title or ownership under the Act. Thus, the title derived by placing reliance on such registered deeds and documents is merely presumptive and not confirmative. This shortcoming has opened floodgates for instances of fraudulent land registry. Absence of definitive proof of ownership makes the land registry more vulnerable and prone to fraud. Thus simultaneously with maintaining the land records, the registry will have to make all efforts to eliminate the instances of fraud in the land registry.

The government’s initiative of computerization of land records is one of the first steps towards eliminating fraud from the land registry. However, a more uniformity in maintaining land records throughout India and a change in the system of maintaining and recording the registered documents would act as a speed breaker to the constantly increasing instances of fraud in the land registry.

  • LACK OF SINGLE WINDOW TITLE VERIFICATION AND INVESTIGATION SYSTEM

In India, the presumption of land ownership is drawn from multiple documents and records which are maintained by multiple departments, making it a very long and cumbersome process of title investigation. For instance, the registration department would maintain a record of all the registered documents pertaining to the property, the cadastral maps are found in the survey department, revenue documents are found with the tehsildar. Quite often it is found that the documents maintained with these departments are either not updated or have missing documents or the documents are in such condition that it barely can be read, leading to discrepancy. Thus if one undertakes a title investigation for a particular property one has to go through all the documents pertaining to the property right from its inception or at least resort to a 30 years title search, visit various departments, collect all data, assimilate all information, draw a title flow, point out any title flaws and finally draw a conclusion, which together is a tedious process. 

The only way to eliminate the above hardships is the establishment of a single window title verification and investigation system, easily accessible to the professionals as well to the general public, making the public documents, “public” in real sense.

  • LACK OF UNIFORMITY AND POOR MAINTENANCE OF LAND RECORDS

Each state in India has its own ways, means and rules to maintain and manage the land records in India. Furthermore, each state has its records maintained in their own respective state language. Different states and different languages make it difficult for an individual not understanding the regional language of that state, to obtain and to decipher the contents of the documents. For instance, a person belonging to north India who has never known any south Indian language would find it really difficult to understand the land documents which are already technical in nature if the same are maintained in any south Indian language. 

Poor maintenance of land records and a neglect in updating the land records have resulted in discrepancies in the actual land details as compared to the recorded details

To eliminate the above hardship, it would be recommended that if along with digitalizing the land documents, the central and state governments take initiatives to maintain the land documents in one nationwide understood language, for instance English language. Further necessary amendments will have to be brought in the state acts and rules to change the proforma of various documents and forms in which the land records are maintained. For instance, in Maharashtra the village form no. 7 and village form no. 12, commonly known as the 7/12 extract is maintained in Marathi and is a very technical document to understand.

  • FEAR OF DESTRUCTION OF RECORDS BY FORCE MAJEURE EVENTS

Maintaining physical copies of all original land documents always comes with a fear of them getting lost, stolen, damaged, torn, misplaced or destroyed due to any Force Majeure event like fire, tempest, flood, and earthquake. For instance, after the floods of 2005 in Mumbai, many offices reported partial destruction of registered documents. In such circumstances, if there is no backup of these documents maintained in soft copies, destruction of documents would mean a complete wipe out of the presumptive evidence of ownership for a particular property. 

To avoid the destruction or loss of documents as stipulated above, the first step should be the easy and ready access of all these documents verified as original to be uploaded on the designated software of the registrar’s office. Next step is to obtain the relevant insurances and to put adequate security in place, to ensure the safety of the documents.

Conclusion

In India, the land records are being maintained since the British Era and in the manner set by the British. With the change in times, progress in technology, increase in literacy and the advent of the age of automation and computerization, it is imperative for the government and its departments to walk with the time and adapt to the new change. The practice of maintaining the land records in India is no doubt ancient and has been tested at various occasions and levels, but incorporating the above suggested recommendations would only add to the improvisation of the system of maintaining land records, and would make it a full proof, defect free system of maintain land records and would set a precedent for all other developing countries. 


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