Opinion Whose land is it anyway
The proposed Land Titling Bill,2010 will,for the first time,make the government guarantee conclusive title over land...
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The proposed Land Titling Bill,2010 will,for the first time,make the government guarantee conclusive title over land,without having to go through the courts (Govt drafts a new law to guarantee land titles,IE,May 26). I want to elaborate on one of the unintended consequences of the current system.
Much has been written,by way of criticism,about land acquisition for SEZs. The common criticism has been that fertile agricultural land is being acquired at a cheap rate,the bulk of acquired land is being used as real estate,and there is no proper rehabilitation for those whose land is acquired. The problem of land acquisition has,however,two aspects,legal and the socio-economic. The latter has received more attention,the former none. There are legal reasons why business houses do not buy land directly from the farmers and take the help of the government through the route of land acquisition.The earliest judicial pronouncement on the subject of purchase of land from an agriculturist was by a full bench of the Bengal Sadar Diwani Adalat in 1855. They held that a purchaser bought as he thought something; the principle caveat emptor (buyer be aware) strictly applied,and it was for him to look to the certainty of getting consideration for his purchase-money. The principle of caveat emptor is the law of the land in India even today as far as the question of buying land is concerned.
Jitendra Tanti,managing director of Engineering & Construction Ltd. which provides infrastructural services globally for the Suzlon group companies,has set up many wind power equipment manufacturing facilities in different countries. According to a newsreport in Businessworld Some years back,he set out to acquire 1100 acres of land near the New Mangalore Port in Karnataka to build two SEZs. But he has made tardy progress. Farmers own some of this land and are willing to sell,but are not able to. They inherited it from their great grandfathers. But they dont have any records. We have to first help them establish land documents before we can buy it from them,bemoaned Tanti Commenting on a similar situation in the Punjab,the under secretary,Revenue Department,Government of Punjab,wrote to me in 1990 that faced with such an odd situation,the buyer would have to grease the palm of revenue functionaries to the best of their terms for manipulating the mutation or forget and go without mutation.
According to Tanti,when he set up another SEZ-kind of facility in the state of Minnesota in the USA,the land acquisition process took barely 24 hours. Thus,Tanti says that home is the toughest terrain when it comes to buying land. This is exactly what I had said in my report,on the status of record-of-rights in land in India,submitted to the Planning Commission in 1989. I quote: Agricultural land in many areas is still recorded in the name of a person who died long ago and whose legal successors are now the owners but their names are not entered in the records. Under the Torrens System,which was introduced in the state of Minnesota in 1901 and is in force at present,the state guarantees the correctness of the title to land in the land records maintained by it and promises to indemnify the person,to the extent of the loss suffered by him,while relying on the land records maintained by the state. Thus,the entries in the land records in the state of Minnesota are conclusive proofs of those entries.
Unlike in Minnesota,the Indian law,as in force at present,does not provide for state certification of title to land. The revenue laws of all the state governments say that no suit shall lie against the state government or any officer of the state government in respect of a claim to have an entry made in any record-of-rights in land maintained under the provisions of those laws or to have such entry omitted or amended. The entries in such records are not conclusive and are given a presumptive status by land-laws. Thus,whatever be the entry in the record-of-rights in land,it can be challenged in the appropriate court.
Because of the prevalence of the principle of caveat emptor if A sells,mortgages or leases land to B,the question whether A had a good title to the land is a matter to be looked into by B and his solicitor in the interest of B. The state does not come into the picture. It is not uncommon in all parts of the country for a person to sell the same piece of land to several persons through registered deed because the registering authority is not supposed to look into the validity of the document being registered.
Because of the uncertainty of title to land in India and because of the fear of protracted litigation on account of uncertainty of title to land,the business houses intending to setup SEZs are reluctant to buy land directly from the farmers. They adopt a circuitous route,namely,of getting the land acquired by the government to avoid protracted litigation. Section 16 of the Land Acquisition Act,1894,says that When the collector has made an award under Section 11,he may take possession of the land,which shall thereupon vest absolutely in the government,free from all encumbrances.
In this way,business houses get the clear title to land free from all encumbrances acquired by the government and passed on to them. Thus,business houses do not have to fear the sword of caveat emptor which would otherwise always be hanging on their heads if they buy directly from agriculturists. It is hoped that one of the many benefits of the Land Titling Bill,2010 will be to make it easier for business houses to buy land directly,without having to use the government as an intermediatary.
The writer is emeritus professor and former director of Gokhale Institute of Politics and Economics,Pune
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