Invisible boundaries

Details of the amendments are not in the public domain. So, one can only hope that the amendments will finally put in place a system of conclusive title certification. However, this can only happen if they supersede the current litigious system of ?registration of sale deed? that gives states all powers to tax property transactions without guaranteeing their legal sanctity.

Providing a system of title registration will create a win-win-win for the land-owner, the buyer and the state. The owner will get a fair market value for a property with clear title, the buyer is assured that the property ownership and boundary is legitimate, and the state benefits with greater numbers of transactions with all parties wanting to register under the guarantee of title certification.

Land Acquisition Bill, 2011, without system of title?putting the cart before the horse: Over the past several years, India?s development trajectory has been increasingly hampered by the scarce access to land. The controversies over public purpose, equity and transparency over land acquisition resulted in the Land Acquisition Bill that was tabled in Parliament in 2011 by the rural development ministry.

Of all the challenges related to land acquisition, the need for title certification for rights to immovable property is foundational, and is finally reaching fruition in India, after having been debated and resolved across the world over the past several decades.

The Land Acquisition Bill, 2011, cannot succeed without implementing title certification reform. Fair compensation to the farmer begins by conclusive identification of ownership so that the compensation is timely and total, cutting out long delays in receiving compensation and potential middlemen. Similarly, the ability for purchaser to deal directly with the owners requires them to be assured of identifying rightful owners.

Challenges of implementation of title

While government policymakers seem to have consensus that security of tenure through a system of title must be provided, very little has actually been done to implement title. This is because of the complex issues involved. Three in particular merit mention: First, land cuts across a vast spectrum of institutional and policy silos?for example, land is a state subject in India, but title to land and property also depends on changes to central laws that Parliament will need to enact. Second, the debate between two very different means to implementing title?one guaranteed by the state (as in the case of countries like Australia), the other through market-based insurance (as in the case of the US). And third, the lack of a robust system of records management without which the transition to title cannot be implemented. Getting to actual implementation will require rigour and detail on these as well as other such aspects of title.

While the National Land Records Modernisation Programme (NLRMP), 2008, allocated a substantial financial outlay for digitising rural land records, nothing of similar nature has been formulated for managing urban land records. Given the increasing pressure on land in India, especially urban and urbanising land, addressing the issue of title is an urgent necessity.

In contrast to rural areas, transactions in land and property in urban India are large in number, more frequent, and fraught with greater uncertainty and risk, with no guarantee that transactions are legitimate, unencumbered and accurately reflect boundaries on the ground. The documents that are used as proof?a sale deed, a tax paid receipt, listing in government records?can individually and collectively be challenged in a court of law and are not conclusive proof of ownership. There is no system of indisputable title to land and property in India that provides security of tenure to owners.

Land and property title reform by the MoUD

Turning the spotlight for the first time on urban challenges, the ministry of urban development (MoUD) announced the Jawarharlal Nehru National Urban Renewal Mission (JNNURM) in December 2005. One of the mandatory reforms required for states under JNNURM was to implement an urban land and property title certification system.

Of the 30 states that participated in JNNURM, 28 states deferred their commitment on the land title certification reform to the last three years of the mission, and none have so far implemented a system of title certification. Recognising that states needed support, the urban development ministry took some leadership on developing the guidelines for implementation of a system of guaranteed title to immovable property.

Project PLATINUM

An inter-ministerial working group was constituted in 2010 by the ministry of urban development, under Project PLATINUM (Partnership for Land Title Implementation for Urban Management), and included representation from four state governments as well as subject matter experts.

The Project PLATINUM report was submitted to the minister, urban development, in 2011. The report contains detailed guidelines for states to implement a regime of guaranteed land and property title in urban areas. It is now the formal output of the MoUD on the implementation of a system of guaranteed land and property title certification, distributed to all ministries including the rural ministry.

Moving the needle on implementation

While the Model Act drafted in the PLATINUM report provides a robust statutory framework for land and property title both rural and urban land, the implementation challenges are vastly different across rural and urban areas. These differences arise due to the size of holdings and vertical development of properties; the processes of survey; the frequency of land-related transactions; the changes in property valuation; the linkages to urban plans and infrastructure projects and so on.

Moving forward on implementing a regime of property title will require joint policy-level leadership by the rural and urban ministries, but separate implementation tracks for the particular challenges of rural land and urban land.

With the reinforced commitment to title from the rural ministry in reforming registration for land and property, perhaps the needle will finally move beyond talking about title, to actually implementing title.

The author is the chairperson of India Urban Space Foundation, and co-founder of Janaagraha Centre for Citizenship and Democracy