This article has been written by Amit Kuri and Sonali Khatri. The authors are practicing before the Rajasthan High Court. They appear in matters relating to planned development, land acquisition, constructions raised in violation of Building By-Laws, illegal occupation of Public Land etc. The author can be reached at [email protected].
In the State of Rajasthan the ownership of land is with the State Government and the State Government grants rights to individuals to use and occupy land by way of Khatedari (for Agricultural land) and Lease Hold Rights (for residential, commercial, institutional etc.). Before inflowing further, it is relevant to say here that it is “Land”, the most expensive commodity, which you are planning to buy and most of the litigation, be it criminal or civil, originates from land disputes. SO BE AWARE.
Property due diligence is must before purchase of a property and it is done to know if the property, which you are planning to buy can be purchased and the house can be erected over it. In other words, the purpose of this due diligence is to verify the right, interest, title and possession of the seller over the property/land. Before getting into how you can verify the title of the seller, it’s important to look at the kinds/types of seller from whom you can purchase the land in question.
1. From whom are you likely to purchase the property?
There are four possible types of seller:
Local Body (JDA [Jaipur Development Authority] or JMC [Jaipur Municipal Corporation]) itself, which directly allot/auction: Acquired or Government Land. A person who has been issued with a lease deed by the local body (JDA or JMC) for the Plot allotted either by Local Body or by Housing Society (as per his/her claims) and selling the same further or The Housing Society which is allotting Plots to its members in the Housing Scheme formulated by it or A person who has been allotted Plot by the Housing Society and is selling the same further.
Now, depending upon who is the seller, the steps required for verification of title and ownership of the land in question would vary.
2. What are you supposed to do to check the verification of the title of the seller?
a. If you are buying a property which is allotted or auctioned by a Local Body itself
It is safe and is the best mode of purchase, as in this case it is the lawful duty of the Local Body to give you peaceful possession of Land and a clear title.
b. If you are buying property from the person who has a lease deed of the property from Local Body
In order to verify whether the lease deed shown by the seller is actually valid, you should visit the office of the Local Body. Please note that JDA, for better functioning, has divided Jaipur into 18 zones. Therefore, you need to locate the zone in which the property in question falls.
Suppose it falls in Zone 6. In that case, you should specifically meet the JDA employees who are working in Zone 6. (All the officers working, except Prithvi Raj Nagar, for different zones can be found at JDA Office). You are required to check the authenticity of the lease deed (held by the seller) from the concerned officers, to find out if JDA actually has executed such a lease deed. In case you find that the JDA never executed any lease deed to the concerned seller for the property in question, then it’s a RED SIGNAL. It is possible that the seller is trying to fool you by using a forged lease deed. In this situation, a simple piece of advice would be not to proceed with the deal and not to buy that property. However, if you find, after your visit to the JDA Office, that the JDA indeed had issued the lease deed (which your seller has shown to you) for the property in question, then you are good to go.
c. If you are buying property from the Housing Society
In this case, you can verify about the credentials of Housing Society and the title of the Housing Society over the land, about the Scheme to be formulated legally etc. with the help of the following steps.
You need to check the authenticity of the Housing Cooperative Society with the Cooperative Department, Government of Rajasthan [hereinafter, “the Department”]. You need to visit the office of the Department and ask there for the audit reports of the Housing Society [viz., the Housing Society from whom you are purchasing the property in question]. In case, the employees of the Department do not allow you to look into the audit reports, then you can also file RTI to get hold of these audit reports. The audit reports are very crucial to find out if the seller is a genuine housing society. In case there are no audit reports, then you should reconsider the decision to buy the property in question from the concerned Housing Society. After you have received/gotten hold of the audit reports, you need to check for the following in the same:
Check the registration of the Society
Whether the Society has been registered under the Rajasthan Societies Registration Act?
Know about the Scheme
Examine everything related to the scheme which has been floated by the Housing Society, in the audit reports to be sure that the society is not conveying any false information about the scheme to you.
Check the title of the Society
Apart from all of this, the most important thing is to find out whether the society itself is having a valid title and possession over the property in question. It cannot transfer what it does not have. There have been ample cases where the innocent members/buyers had paid money to the housing society hoping that they would be getting property/land in return. However, later on, it emerges that the housing society, itself, did not have the valid title of land over which the so called Scheme is said to be formulated. On account of this, the members do not have any legal right from the allotment by the Society and cannot get any relief from the Courts despite having paid huge sums of money for buying the property. Therefore, the most important piece of advice, at the cost of repetition, we would say is checking whether the Housing Society itself has a valid title over the property in question.
Procedure to check the title
The next legitimate question is how you find out if the Society has title over the land in question. For example, if the Society claims that it has purchased the property in question from the Khatedars/previous owners of the land via a sale deed, then you need to check the document via which this transaction occurred. There are various types of documents which the Society may rely upon to represent to you that it has validly received the legal title of the property in question from the previous owners. However, what you need to look at is if the transfer has happened through a REGISTERED Sale Deed. Please note that if the Society is suggesting that it has bought the property from Khatedars (or erstwhile owners) through an unregistered document or an agreement to sale or through an unregistered Power of Attorney, then you should not buy the property from the Housing Society. As per law, a Khatedar of a Land cannot transfer his title over the property through unregistered sale deed or an agreement to sale.
A Registered Sale deed is must for the transfer of title of the land to the subsequent owners. The sale deed has to be properly registered and stamped. There have been cases where the housing society purchased the Land from the Khatedars through an agreement to sale which was not registered and stamped. The same was in contravention of the provisions of the Registration Act and the Transfer of Property Act. On account of this, the subsequent transfer of the property by the Housing Society to the buyers was not held to be legally valid.
Resultantly, the buyers could not get the property in question despite having made the requisite payments to the Housing Society. To conclude, the buyers are required to check both the documents, the one through which the housing society is selling the property in question to them, and the one through which the housing society received the property in question from the erstwhile/former owners of the property. Those documents have to be registered, stamped and properly executed.
Check the status of the land
You also need to check out what is the status of land in the records. Has it been registered as an agricultural land or an abadi land? You can find answer to this question by looking at the Jamabandi. You can get the Jamabandi from the office of Tehsil. If you find that the land is being shown as agricultural land in Jamabandi, then it’s a RED SIGNAL. The society is trying to sell an agricultural land for housing purposes which is not permissible under law and on account of same the land at the time of conversion sought or even before it, on the report of purported non agricultural use can be resumed in State. The society is required to get the status of the land changed from agricultural to residential. Then only buy the land for residential purposes. In case, the Housing Society has failed to get the status of the land converted from agricultural to residential, then, the allotment/sale of land is illegal and invites consequences, including Penalties and even permanent resumption in State, as the same is hit by the provisions of Rajasthan Tenancy Act, 1955 and Rajasthan Land Revenue Act, 1956.
In one line, buy the property from the Housing Society only if the land, after its purchase has been put before the Authorised Officer for its conversion (I am assuming that you are not buying the property for agricultural purposes). It doesn’t really matter before the court of law that a house was already constructed on the land when you bought it from the Housing Society and there is no valid conversion Order. It does not really matter that the word ‘housing’ appears in the name of the society. What really matters is that the land is or can be got converted from Agricultural to Residential user.
Check the applicability of Section 42 of the Rajasthan Tenancy Act, 1955
Even assuming that the land has been purchased by the Housing Society by a Registered Deed, the next thing to look into is whether the transaction between the Khatedars and the housing society and you as an allottee of the Housing Society is not hit by Section 42 of the Rajasthan Tenancy Act, 1955.
Please note that this section would apply only if the land is/was recorded as an agricultural land in the name of a Person belonging to SC/ST. You can find this out by looking at the revenue records (for example: Jamabandi, mutation records, etc.). If you find that the land, although presently recorded in name of Housing Society but was once an agricultural land and was recorded in name of a Person belonging to SC/ST, then you now need to be cautious, as the transaction between the Housing Society and Khatedars is Void. Why we are saying so is for the reason that Section 42 of the Rajasthan Tenancy Act, 1955 can make life difficult for you. As per this Section, if an agricultural land is under the Khatedari of a person of SC/ST Community, then the buyer of that land has to be a person who is from the SC/ST Community, only.
So, if in your case, the land was once an agricultural land, then please check the status of the Khatedar of the land before you came into the picture. That would help you find out whether a violation of Section 42 of the Act of 1955 was ever committed in the history of the land in question. If you find that the violation, indeed, has been committed, then it’s a RED SIGNAL. You should reconsider your decision to buy the property. This issue, at present, may not seem to be big enough. However, later on, it can create problems against you if the litigation arises over the land in question.
Check if the property has been re-sold
When you are buying the property from the Housing Society, we would advise you to check if the Society has not have already allotted/sold the property to someone else. In such a situation, the Society, under the law, cannot transfer the title of the property to you.
Check the scheme map of the society
You are also required to go to the office of the local body under whose jurisdiction the scheme of the Housing Society falls. There, you are required to find out whether the plot alloted by the Housing Society is not part of an Approved and notified road in approved Plans Viz. Master Development Plan (MDP), Sector Plan, Zonal Plan because if the plot alloted by the housing society falls in the area of road, then the same cannot be regularized. You would not be able to use that area of plot which falls in the area of road despite having paid for it.
Here, it would be correct to advise that you should also check the map of the property in question as given by the Housing Society and compare the same with the approved and notified maps of the area prepared by the local authority (JDA in this case). In case you find that a discrepancy exists between the two, then it’s a RED SIGNAL. The Society might be trying to misrepresent you regarding the proposed user of the land in question. It might be possible that the map prepared by the Society, as shown to you, may not have been approved by the concerned local authority. And, if you buy such a property then you are likely to face legal action from the local authority if at the relevant point of time you are in the possession of the property in question.
d. If you are buying property from a person who was originally allotted the property in question by the Housing Society
In such a situation, you should check the name of that allottee in the audit reports of that housing society available with the Co-operative Department. It is also important for you to find out if the original allottee has already sold the property in question to someone else. If you find out that the property has already been resold by the original allottee to someone else, then, legally, you will not be the owner of the property in question, even if you pay the money for buying it.
When the property in question was allotted to the original allottee, the same was done on certain conditions [the same under the law is known as Conditions of Allotment]. Among many, it includes that the allottee should not raise construction over the property without taking permission from the local authority. As the buyer of the property, you are required to check if there is breach of any such condition by the original allottee. In case you find that there is a breach, then you should reconsider your decision of buying the property in question from the original allottee.
We hope that this information will come handy to you while you are in the process of buying property for your residence.
This article is based on the limited knowledge and experience of the authors. It does not cover all the information which might be relevant for a person before buying property in Jaipur region. The readers of this article are advised to verify the information contained in this article before proceeding to act on the basis of the information in this article. The authors shall not be responsible for any act or omission taken by the reader/s on the basis of information in this article.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: