IMPACT OF DIGITALISATION OF LAND RECORDS ON THE CONCEPT OF OWNERSHIP - A CRITICAL ANALYSIS AUTHORED BY - N.K. SHARITHIRA & DR. P. BRINDA
IMPACT OF DIGITALISATION OF LAND
RECORDS ON THE CONCEPT OF OWNERSHIP - A CRITICAL ANALYSIS
AUTHORED BY - N.K. SHARITHIRA
LL.M.
Scholar
School
of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University
CO-AUTHOR
- DR. P. BRINDA
H.O.D,
Department of Property Law
School
of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University
ABSTRACT
Land ownership allows the
owner to enjoy the rights affiliated with the land and the ownership of land is
determined using presumptive title system. The digitalisation of land records
have been attempted through various programs and schemes. India is now
determined to enforce the digitalisation of land records programme through the
Digital India Land Records Modernisation Programme (DILRMP). The DILRMP has
certain objectives like adoption of mirror principle, curtain principle, and
conclusive title system for determination of ownership. The digitalisation of
land records aims to provide single window agency for the land records and
guarantees land titles to the owners. The implementation of DILRMP tends to
secure the ownership of the land to the owners and assures their rights. The
execution of DILRMP also comes along with its own challenges and affects the
owners of the land. This article discusses about the determination of land
ownership using the current presumptive title system and maintenance of land
records along with the implementation of digitalised land records and its
outcome on the ownership of the land and the rights associated with it.
KEY WORDS
Land, Ownership, Land
Records, Digitalisation, DILRMP, Presumptive Title System, Conclusive Title
System
I.
INTRODUCTION
Ownership means “the
bundle of rights allowing one to use, manage, and enjoy property, including the
right to convey it to the other”[1].
“Ownership denotes the relation between a person and object forming the subject
matter of ownership. The ownership gives rise to complex of rights, which
stands against the entire world and not just certain individuals. Even if
some of these rights might not exist in some circumstances. The following
instances are indicative of ownership cases: [2]”
1.
Right to Possess: The owner has
exclusive control over the subject matter he/she owns hence the owner has a
right to possess, to the exclusion of others.
2.
Right to Enjoyment: The owner has
the right to enjoy and use their property without interference. This includes
the right to access and use subject matter of ownership as per their desire,
alter it and enjoy the benefits arising out of it.
3.
Right to Manage: The owner has the
right to determine how the subject matter shall be utilised and appoint anyone
on his/her behalf to manage it.
4.
Right to Exclude: The owner has the
right to refrain others from the property and has legal protection against
trespassing or unauthorized entry into the property.
5.
Right to Income: The owner is
entitled to income resulting from the subject matter, unless it is forbidden by
law.
6.
Right to Mortgage: The owner can
use the property as collateral to secure loans or for financial obligations.
7.
Right to Modify and Destroy: The
owner has right to bring changes to the property or destroy the property.
8.
Right to Transfer: Only the owner
can transfer his/her property to other person and a person who is merely
possessing the property cannot transfer its ownership.
9.
Right to Bestow and Revive Rights:
Ownership is residuary in character and the owner can give certain rights to
others and on their extinction, the rights are revived back to the owner.
II. OWNERSHIP OF LAND AND
PRESUMPTIVE TITLE SYSTEM
Land ownership refers to the
owner's right over a certain area or territory, which is a portion of the
Earth's crust that cannot be destroyed or relocated[3].
“Land includes benefits arise out of land, and things attached to the earth or
permanently fastened to anything attached to the earth[4]”
Once a person has acquired ownership over a particular land, then
that particular person is entitled to all rights associated with that land[5].
Establishment of ownership
is essential to own the land and enjoy the benefits arising out of the land.
India follows a Presumptive title system in which the land ownership is determined through a registered sale deed[6].
Other documents that used to establish ownership include the record of rights,
property tax receipts, and survey documents. They provide the information on
who is in possession of land at present along with the records of past property
transaction from one person to another[7].
This led to the development of the system where ownership is ascertained
through present possession of the land. In Bhavnagar Mahanagar Palika
through Municipal Commissioner vs. Heirs of Decd. Virbhadrasinhji
Krushnakumarsinhji Gohil[8], the Supreme Court held that “possession of property provides prima facie
evidence of ownership”.
Land can be transferred
from one person to another through tenancy, mortgage, gift, inheritance or
sale. The right, title, or interest in immovable property should
be transferred by a registered instrument, in accordance with Section 54 of the Transfer of Property Act
of 1882. Land registration is governed by Section 17 of the Indian Registration Act, 1908. The registrar may
not always personally verify the location and characteristics of the land being
sold. The previous transfer of land and the various documents are involved to
claim the ownership hence the land ownership is presumed and subject to
contestation[9].
In P. Kishore Kumar vs. Vittal K.
Patkar[10],
the plaintiff claimed ownership based on a Family Settlement Deed while
Defendant sought better title from an Inamdar under the Mysore (Personal &
Miscellaneous) Inam Abolition Act, 1954. The Court held that “plaintiff could
not establish the entitlement to the property with high probability and revenue
documents are insufficient against the defendant's proof of occupancy rights”.
III. MAINTENANCE
OF LAND RECORDS TO FURNISH OWNERSHIP
If previous transactions are not accurately captured and the government's land
records may have any errors or gaps and it raises the
question related to ownership hence it is integral to capture the accurate land
records. Land records administration means gathering, analysing, and
disseminating data regarding the ownership, boundaries, price, and
use of land. Across the country, different land records management
system are followed by the States based on local customs
and historical development. Land records that are stored and managed
which tend to determine the ownership of the land includes:
1.
The Record of Rights (RoR) includes the landowner's name,
number and size of the plot, revenue rate,
names of all individuals who have obtained certain
rights over the land, type and extend of those rights and loans that have been
taken out on the property[11].
2.
A registered sale deed
includes the information related to buyer and seller, sale taxes, market value
of the property, and information about the previous transactions. To begin the
process of mutation and reflect this change in the records of rights, the
transaction details are forwarded to the tehsil/ taluka office.
Following the transfer, a patta (documentary proof of land
ownership) will be provided by the State government through the tehsil/ taluka
office.
3.
Spatial
land records contain survey documents related to the boundaries
of a property and its surrounding area. It will be attested to the property's
inclusion in official records[12].
IV. DIGITALISATION OF LAND RECORDS
The Computerisation
of Land Records scheme was introduced in 1988–1989 with the goal of
computerising land records. To improve land records and administration, the
Strengthening of Revenue Administration and Updating of Land Records program
was created. In 2008, all these programs were consolidated into the National
Land Records Modernisation Programme (NLRMP)[13].
As a Central
Sector Scheme within the purview of the Digital India program, NLRMP has been
renamed as the Digital India Land Records Modernisation Programme (DILRMP).
When DILRMP was introduced in 2008, it has been viewed as a reform
programme and expected to computerise land records, maintain and update the
records, and validate titles to the owner.
It is also seen as a program that will bring value and
provide a comprehensive database for development planning, policy drafting and
management of regulatory activities by providing conclusive data on land
records data[14].
The major elements of DILRMP include[15]:
1.
Computerisation of existing land
records
2.
Integration of textual and spatial
data and Digitization of maps
3.
Survey, Re-survey, and Update of available
surveys and settlement records and Creation of original cadastral records
(record of the area, ownership and value of land)
4.
Legal Amendments and Program
Management with respect to modernisation of records
5.
Computerisation of Registration and
its integration with the land records maintenance system and modern record
rooms
6.
Development of core Geospatial
Information System (GIS) and Capacity Building.
V. IMPACT OF OWNERSHIP UNDER DILRMP
The establishment of
DILRMP will help to overcome the shortcomings in the current presumptive system
and tend to affect the ownership concept in the following manner.
1. Conclusive and State
Guaranteed Titles:
One of the objectives of
DILRMP is to implement conclusive and State guaranteed titles. In 2009, the Committee
on Financial Sector Reforms[16]
suggested to shift from presumptive to guaranteed titling system.
Under this system, titles are guaranteed by State and if there is any dispute,
the affected party could settle
disputes with the government unlike the presumptive title system where
the affected party will raise the contention against the title holder.[17]
2. Protection of
Ownership:
In the present
system, ownership is presumed on the basis of registered sale deed and
subject to contestation. The presumptive system does not
necessarily ensure ownership though the land transactions are
legitimate. The DILRMP invokes the curtain
principle to decide the ownership of the land. According
to the principle, “title is a conclusive proof of ownership, the record of
title is a true depiction of the ownership status, and mutation occurs automatically after registration.
There is no need to
probe into previous title transactions." This implies
that titleholder will be the absolute owner of the land and secures his ownership
over the land.
3. Reliable Transfer of
Land:
Accessing records in the
presumed system is difficult since one must search through multiple records
maintained by various departments. The buyer’s responsibility to
confirm the property’s prior ownership, places an extra burden on the buyer during the land
purchase.[18]
Buyers hesitate to purchase a land when they could not verify the previous
ownership and this tend to restrict the owner’s right to transfer the land.
But, in the conclusive system it assures that there is no need to thrive into
the past transfers and this builds confidence in buyer and paves way for
reliable transactions of the land.
4. Absolute Enjoyment of
Rights Restricted by Court Proceedings:
Relying on the multiple
documents to determine the ownership causes delay in the Court proceedings. On
an average, it takes around 20 years to settle land disputes involving
legitimacy of land titles and documents as well as legitimate possession.[19] By
the doctrine of lis pendens and in
accordance with Section 52 of Transfer of
Property Act, 1882, the transfer the property which is the subject matter
of the suit pending before the Court is restrained. This curtails the
transferring rights of the genuine owner. Based on the mirror principle, DILRMP aims to register the land titles
accurately and precisely depict the ownership status of the property.
This helps to reduce the litigation related to land titles and ensures the
owner to absolutely enjoy the rights restricted by litigations.
5. Guaranteed Titles for Financial
Opportunities:
Disputed land titles
impacts the sectors and development projects that are dependent on the disputed
land and creates uncertainty in the minds of investors to invest on the land.
The litigated land affects the owner's ability to profit from the land.
The owner’s right to pledge or mortgage the property[20]
is also affected. For instance, the farmers utilise land as collateral for
seeking loans but the availability of financing and capital for agricultural
land is hampered by uncertain land titles and disputed lands.[21] The
digitalisation of land records increases the confidence on the guaranteed land
titles retained by the owners and assures the creditors or investors to make
the payment or investment. The DILRMP ensures the financial opportunities
arises out of the land and thereby protects the owner’s right to benefit from
the property.
6. Prevention of Delayed and Fraudulent
Transfers:
In India, land records are frequently fragmented across several government departments
at different levels, outdated and erroneous.[22].
The establishment of comprehensive single agency to handle land record ensures
fair, efficient and transparent land record management system by digitizing
them and linking them to spatial data and other databases. This confirms the
security of ownership[23]
against delayed and fraudulent transfers.[24]
In S.Kanniammal @ Mangai vs. The State
Of Tamil Nadu[25] the Court held that “it is highly impossible
to register a fraud document under Star 2.0 project which computerises the
registered land documents”.
7. Compensatory Relief to Disputed Claimant:
In the presumptive system,
if the disputed claimant proved his entitlement on the land, then the previous
titleholder will lose the ownership. The agricultural economist T.
Haque, suggested that in the conclusive system the titleholder will
not be in any danger of losing ownership. The government provides compensation
to disputed claimants[26]
since government is responsible for recording the land titles.
VI. CHALLENGES IN IMPLEMENTING DILRMP
AND ITS IMPACT ON OWNERSHIP
The benefits of DILRMP could be utilised only if it has been implemented
appropriately and the crucial changes has to be made to harness the benefits.
If it is not implemented properly it brings unfavourable outcomes in the
ownership concept. Furthermore, adopting single window agency, mirror
principle, curtain principle, conclusive title system and titular insurance
without certain changes might worsen the current scenarios. Therefore, the
implementation of modernisation of land records has to take place in a right
manner but the implementation has following challenges.
1.
Exhaustion of Resources:
All existing
land records have to be accurate and updated to ensure that they are free from any encumbrances. Capturing
inaccurate land records or neglecting any records while updating through survey
will lead to mismatch between spatial and textual records. The integration of
cadastral maps with textual data[27] is
a resource intensive process.
2. Time
Consuming Process:
Information on
land records which are currently wide spread across multiple departments have
to be consolidated[28]. Integration of information
across different departments and verifying the records against past
transactions would be time consuming. Delayed digitalisation of land records
creates an inconclusive decision with respect to ownership. In Amar
Nath Pandey vs. State of Bihar[29],
the Patna High Court held that, “the unsurveyed land’s nature is not identified
and hence not concrete”. This establishes that unsurveyed and not updated land
records might push the owner’s claim in a doubtful position.
3. Acceptance
of Legal Amendments and Guidelines:
The Central
and State laws which governs registration and land transfers have to be amended
and a unified legal guidelines have to be framed. The amendments and guidelines
ensure government guaranteed land ownership through digitalisation of land
records. The new legal rule may not be
accepted by the Civil Courts. For instance, the Civil Courts in the USA
held that registration of title can be done only by the order of the Civil
Court not by the registration officer. In England, Civil Courts declared that
land register correction orders operate against the conclusiveness principle[30].
4. Enforcement
of Administrative Changes:
The essential
administrative changes at the Central and State level for collection and
maintenance of land records could bring the envisioned objectives of
modernisation of land records. The bureaucrats
are vested with high responsibility to implement the digitalisation of land
records into action. The powers to examine and update the land documents
will deploy the registrar and other
bureaucrats in a formidable position. The misuse of
administrative powers by corrupt officials or execution of administrative
changes in an inefficient manner will cause inconvenience to the citizens.
5. Requirement
of Technical Support:
All transactions
related to land though registration is mandatory or not [31]
have to be recorded for effective
utilisation of modernisation of land records. All relevant information related
to transactions has to captured and monitored using a unique identification
number.[32]
The online documentation of land records have to be linked with other
departments and Court registries of the corresponding District or the State,
through which a buyer can easily access any relevant information and pending
litigations with regard to the property[33].
This requires immense technical support.
6. Prone to Cyber Attacks:
The technical support has to be extended without any interruption and the
deficiencies in the technical support increases the chances of cyber attacks
and errors. The cyber attacks will
infringe the data privacy of the citizens and brings down the confidence of
government backed digital land records and land titles of the owner. The
attacks may alter the land records which will affect the main objective of
modernisation of land records to rely on digital records for ownership
determination. The cyber attacks and errors will disrupt the services and
undermine the reliability of the digital records which will lead to delayed and
fraudulent transfers.[34]
7. Lack of Remedial Measures:
The remedial
measures for a genuine owner have been not discussed properly if the entry in
the digital records turns out to be incorrect. Though the insurance is guaranteed to the genuine
owners, the relief may not be sufficient since the genuine owners will be
deprived of their land. A proper insurance claim mechanism has not been drafted
and places the genuine owner in an impaired condition.
8.
Pendency of
Lawsuits:
The genuine owners losing their land without any
fault would approach the Court for compensation if the insurance claim
is not awarded. The genuine owner may raise dispute over the awarded
compensation if it does not equate the market value of the property[35].
This would result in litigation filed by claimants for compensation before the
Court and the pendency of cases would increase.
VII. CONCLUSION
The DILRMP aims for a
structured and reliable land record system that safeguards the ownership of the
property and ensures the rights of the owner. The implementation of digitalisation
of land records requires coordination from the different stakeholders which
includes legal and administrative entities, logistic and technical supporters,
policy drafters, program monitors, capacity builders and well informed
citizens. Despite this the digitalisation of land records may come along with
its own technical, legal, administrative and practical difficulties which tend
to affect the absolute enjoyment of the owner. Many developed countries like
England and Australia have over riding effect over the title system.
India follows the sale
deed system which handles multiple documents under different department. The
multiplicity of documents and the Courts interpretations may have created
doubts regarding the authenticity of this system and protection of rights of
the owner. The system may have shortcomings but a large number of developed countries in the world are using the deed
registration system successfully with specific requirements. For
instance, Netherlands has made certain changes in the law to give protection to the bona fide buyer[36].
India could follow a dual
system like Australia and New Zealand[37],
instead of adapting to a system with certain difficulties in it. The efficient
factors from both the systems could be adopted for effective land record system
which will protect the interest of the parties involved. The digitalisation of
land records should be mandatorily enforced and the deed system should be made
in par with the digital era in order to complement each other. In Tamil Nadu,
the Deeds Department has mandated the submission of GPS-enabled photo documents[38].
This establishes that cohesive integration of digitalisation and deed system is
possible.
The multiple documents
under various departments could be interconnected and all relevant information
related to land should be maintained. The owner of the land could be determined
using the sale deed which is similar to the identification of owner using
government guaranteed registered land titles. On rare occasions, based on the
complexities of the case, the other documents maintained by the government
should be traced back for ownership establishment. This is possible when the
land records are accurately recorded and updated regularly.
The Bhoomi project in Karnataka, e- Dhara Land Records Management system[39]
in Gujarat, Land Records Programm in Odisha and Rajasthan Urban Land
(Certification of Titles) Act, 2016[40]
have successfully implemented the digitalised land record system by assessing,
designing and updating the land records suitable for that particular region.
The respective States have taken necessary measures by overcoming the legal and
technical difficulties, reforming the legal and administrative frameworks,
enforcing appropriate institutional changes and launching citizen awareness
programs.[41]
Considering the fact that the Indian land history differs from one region to
another, local customs and sentiments affiliated with land and operation of
land transfer system differs from one State to another, it is viable to implement
a digitalised system which ensures protection of rights of the owner.
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PRIMARY SOURCES
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2.
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2.
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3.
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4.
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[28] Mathew, Babu , Guaranteeing Title to Land by DC Wadhwa,
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[29] C.W.J.C.No.906 of 2014
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[31] The First Law Commission of India,
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