TO own property in Delhi is an aspiration that cuts across social classes. The sufficiently ‘heeled’ attempt ownership in an array of plotted colonies developed by private players, failing which the choice falls on housing schemes developed by the city’s master plan and development authority and, of late, even group housing societies. The ‘have not’s’ attempt such ownership through various routes of unauthorized and illegal occupation in anticipation of ‘legalization’ and ‘regularization’. There is, however, an important sense in which those who have private property in the city may not really own it – a consequence of the ‘absence’ of property titling laws in the city, a fair and transparent system intrinsic to any legal regime of private property.

This article, both in a historical and contemporary sense, contextualizes the system of private ownership as it currently obtains in the city, and argues that the absence of clearly defined property titling laws has encouraged a variety of disputes and shadow operations where ‘possession’ is considered nine-tenths of the law. Notwithstanding the Indian state’s clear averment of its socialistic inclinations, maintaining a fair regime of private property remains a key responsibility of the state. It further argues that given the variety of conditions that obtain in the Indian federal system, it is appropriate and preferable for state government’s to enact their own titling laws, rather than follow a ‘one-size fits all’ national approach as espoused in recent urban reform proposals.

The article then discusses various attempts by various governments in Delhi to establishing titling laws – attempts at policy reform that were truncated midway, an outcome of the special status of the city wherein the central government enjoys overriding powers in matters relating to land. Nevertheless, irrespective of these outcomes, having a policy vision of establishing a fair regime of private ownership is important. It is a necessary precondition to any attempts at urban renewal, including improving access to basic services to all, and not merely an asymmetrical benefit restricted to the ‘haves’.

Delhi is a historic city, one which claims a continuous existence as the seat of governance ever since the establishment of Shahjahanabad in 1648 by Mughal Emperor Shah Jahan. Private property has existed in Delhi since the Mughals. Thereafter, new private properties were carved out of the extant villages for the growing city – first by the British and subsequently by the large number of refugees who came to Delhi after independence and partition in 1947. There was a huge demand for urban property from refugees and their resettlement of was managed by the Department of Rehabilitation of the central government.

 

This apart, city development was also influenced both by private developers and the state. Probably the most significant measure taken by the state was the enactment of the Delhi Development Act, 1957 (enforced in 1962), following which the entire development of urban Delhi was taken over by the Delhi Development Authority (DDA). The DDA’s role, of formulating the city’s master plan, is illustrative of the state’s hold over the ‘commanding heights’ of urban development. Section 6 of the Act entrusted the DDA:

‘To promote and secure the development of Delhi according to the plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property…’

These rules, however, had not laid down any guidelines about preserving the existing structures. Expectedly, in the absence of any policy for redevelopment of the walled city, many localities with old properties that had decayed were declared as slum areas under the Slum Areas (Improvement and Clearance) Act, 1956. This effectively meant that unless the DDA or a local municipal body formulated a scheme for redevelopment, the ‘old city’ structures would remain frozen in time. This situation has only become more complicated over time, due to contestations over inheritance and complex tenancy arrangements, and the sale and transfer of properties through a system of power of attorney.

The process of transition from the ruler (as in the Mughal era) or the state (as under British colonial rule) as the ultimate owner of all constructed property in urban areas to a recognition of private property titles has thus been both irregular and uneven. As a consequence, in leased properties where either the state, or the development authority, or the municipality is the ultimate owner, endless disputes have become the norm. Even here different types of leases exist, leading to debates such as on the scope and nature of a ninety-nine year long lease – whether it gives absolute right to free use of property by the lessee or imposes fetters on the exercise of such property rights.

Then there are a number of ‘unauthorized’ colonies where transfer and sale is carried out on the basis of a power of attorney. These colonies remain in a state of limbo, in anticipation of ‘regularization’ by the government – this is commonly announced prior to elections, though the actual process may take years. For example, the announcements for regularization (of unauthorized colonies) in 1974 by Indira Gandhi took nearly another 25 years to be completed. It should be stressed that regularization by the government does not imply the granting of individual titles; the latter is meant for individual households whereas regularization is an act of recognition of entire colonies.

 

As a consequence of the multiple pathways to property ownership, nine different types of property arrangements can be identified in Delhi – each demanding/requiring a specific form of action by, or protection from, a ‘Titling Authority’. First, leased properties of the DDA and those that have been granted freehold conveyance deeds can easily be granted titles. Second, there are group housing properties developed on large plots allotted by the DDA in areas like Mayur Vihar, Dwarka or Rohini with large common areas; these need a separate set of regulations to define the property title. Third, leased properties in the Lutyen’s Bungalow Zone, some of which have been allowed to be ‘densified’ by the New Delhi Municipal Corporation by creating multiple properties without splitting the plots, as well as existing bungalows. Fourth, properties constructed on small plots allotted by the Ministry of Rehabilitation as well as colonies like Karol Bagh and Paharganj which came up after Partition to accommodate refugees. The nature of titles of these properties requires a separate set of rules that need to be defined.

 

Fifth, we have the plotted colonies developed by real estate developers post-Partition like Defence Colony, Greater Kailash, South Extension. Sixth are the unauthorized colonies that have come up on mainly government land, and encroached/created by property developers since the 1950s, which are proposed to be regularized by the government. Seventh, properties in the walled city that came up organically since the creation of Shahjahanabad like Chandni Chowk and its numerous katras. Many of these are locked up in long-drawn out litigation between owners and tenants and remain virtually frozen pending the final settlement of the court cases. These will need a separate set of rules to settle the disputes before granting titles and providing compensation to losers in order to unencumber the titles. Eighth, slums located in different parts of Delhi where the key question is whether to relocate them or grant them some sort of title to enable in situ redevelopment. And finally, commercial properties of different types – from large malls, local shopping centres, small municipal shops, as well as established markets such as Karol Bagh, Chandni Chowk – which require separate rules to determine the nature of titles.

It is evident from this enumeration that the growth of Delhi, including New Delhi, has historically been varied and no meaningful property titling law can ignore the organic growth of the metropolis. Fortunately, the city has now access to a well established geographical spatial system under a state government company known as ‘Geo-spatial Delhi’, which provides digitized records for all of Delhi – rural and urban. The newly proposed Delhi Municipal Corporation Act also mandates a scientific system of naming and numbering all municipal properties. Hence, the recording of titles based on digitized records and municipal numbering can be done right away and does not need the creation of a new authority.

 

Today we commonly hear about fraudulent property transactions – one property being sold to multiple persons; loans taken by mortgaging the same property many times; lack of safety of tenure and ownership for widows; fraud wills being presented to challenge ownership and old women being deprived of property by unscrupulous property dealers, and so on. With an increase in the value of properties the scope and tendency for fraudulent transactions has also increased. There is thus an urgent need for a property title registry to maintain a record of titles and status of all properties and encumbrances on it. This is the best way for the ownership to be secured and mortgages verified. Only a law which gives state guarantee for property ownership, establishes a process for easy and quick verification, and provides compensation for any wrong done, can ensure the required security.

Even though the Indian Constitution does not guarantee its citizens a fundamental right to property, Article 300 does create a legal right in this regard, committing the state to maintaining a regime of private property through a framework of appropriate laws and rules of implementation. Further, no person can be deprived of his/her property save by authority of law as per Article 300. Overall, the broad objective of such a regime is to secure ownership in the hands of nameable individuals (or entities). Further, by virtue of such ownership, the individual or entity has a right to own, exclude, transfer, bequeath (or inherit) in a fair manner.

 

In rural India, property rights are both recognized and determined by ensuring proper entry in the revenue records and grant of proper document recognizing the holding of agricultural land. States such as Gujarat and Karnataka have already digitized these records and thus done away with the role of the patwari. Unfortunately, since urban India has no such record, the person claiming ownership has to voluntarily register the transaction before the sub-registrar and such transactions or inheritance, if challenged, need to be proved in a court of law. Note that the onus of proof is on the owner, not on record keeping by the government. This explains the plethora of court cases dealing with disputes on urban property which have clogged the judicial courts, created immense delays in settling disputes and furthermore, resulted in uncertain titles. In the absence of clear laws, and lack of timely institutional redress, people have an incentive to settle out of court, even if by illegal means. It is common to hear of fraudulent wills, illegal evictions and so on, often with the connivance of police and municipal authorities. This is not only a denial of the constitutionally guaranteed legal right to property, but a fraud perpetrated on tenable rights of people.

The mere registration of title deeds is no guarantee of ownership title to a property. Though a registered deed is better than an unregistered one, the registration itself can be challenged or a fraudulent registration can be done. Duplicate wills are a major source of property disputes. Registration is a repository of the document, but does not guarantee title. It does not even explain the nature of the title and is not a security against another document of a similar nature produced by another challenger. The payment of property tax to the municipal body too is no proof of ownership of property. The only way to settle such disputes is through a legal process which may take decades if not generations to settle.

 

A title deed granted by a competent authority serves as an authentication of title ownership and is a legally recognized document. Many countries in Europe, China, Thailand, Sri Lanka, CIS countries, to name a few, have established title registration systems which are upheld by the state based on a legally defined system of granting such titles. However, the existence of a legal system is no guarantee of the efficient working of the title registration process. This requires a commitment to the objective of providing a simple, reliable, prompt, affordable, and well suited process which keeps its focus on the people and does not get bogged down in procedural and bureaucratic red tape since all laws need an accountable, transparent, time bound and an appealable system.

Such a system would reduce litigation and free the courts to perform other important judicial functions; help urban planning and improve collection of municipal revenues. It would create an efficient land market and promote the mortgage industry which can make property transactions more secure and trustworthy, apart from providing a census of the nature of titles and transactions done at various periods of time. Most important, it would encourage the use of modern techniques like information technology, cadastral surveys, digitization of information, creating accuracy of land information based on accurate measurements, and thus reduce remove doubts about the nature of the transaction. Land is a limited resource and a title registration system creates a scientific basis of wisely utilizing a vital and scarce resource. It is an essential part of much needed urban reforms like property tax reforms, creating vital infrastructure like water, power, transport, education and waste management and preserving the urban environment.

 

Way back in 2010 the Ministry of Urban Development had constituted a working group whose report titled ‘National Guidelines for Implementing Guaranteed Title to Land and Property’ underscored the urgent need for a title guarantee system to replace the deed registration system in the country. A Draft Bill for the entire country called ‘The Guaranteed Titling for Land and Property Bill, 2010’, renamed ‘Land Titling Act, 2011’ was also prepared. The report emphasized the need for a national level digitized land management system. However, to assume that a single law can encompass the entire process of historical urbanization in different states in a vast and varied country appears unwarranted. There is thus a need for states to enact their own title registration systems within a framework of principles. Some states like Rajasthan have already moved ahead.

The Delhi government has been examining the complex problems created by the simultaneous and overlapping operations of central and state agencies, given its status as the national capital. There are central agencies dealing with land use planning like the Delhi Development Authority. The three municipal corporations in Delhi, along with the New Delhi Municipal Council, are also involved in property development. After studying these aspects for over five years, and taking account of the history of Delhi, ‘The Delhi Survey, Registration and Recordal of Title of Immovable Properties in Urban Areas Act, 2009’ was drafted. The reason behind this long title was the need to create a clear distinction between title to property and title to land, since land as far as Delhi is concerned is a subject reserved for the Union government, whereas property registration is the domain of the state government. This draft bill intended to set up a ‘Titling Authority’ entrusted with the task of maintaining records in a digital format. The authority shall conduct surveys of properties and maintain accurate records in unique identification numbers to be synchronized with the municipal property numbers. There exists a process for recording provisional title before granting final title.

 

Such a system will need an alteration in existing laws, like the Registration Act 1908, to make registration compulsory. There will also be a need to amend the Transfer of Property Act, 1882, to enable the new law to be enforced. The authority shall maintain a Register of Titles to keep a permanent record of properties and transactions so that the history of its changing status will remain on permanent record. Since disputes over property are bound to arise, there needs to be an Indemnity Fund to compensate people who lose property due to bonafide/incorrect decisions or court orders, depending on the nature of such orders. Today these are settled and adjudicated though the courts of law. Decisions in such cases takes many years and there is no certainty about when the case will be decided.

Under the new proposed law, all property related disputes will be settled by a Titling Tribunal which has to give time bound decisions. Such a tribunal shall develop expertise in the matter of deciding titling disputes and thus be able to give quicker decisions. There is also a provision of appeal against the orders of the Tribunal by approaching an Appellate Tribunal headed by a retired judge of the Supreme Court or retired Chief Justice of a High Court. Thereafter, the final appeal shall lie before the Supreme Court of India. There is also a provision in the proposed act for indemnification of the title holder in the event of any legal challenge. There shall be a Property Titles Indemnity Fund which shall be administered by the Tribunal. In keeping with the emergence of new information technologies, the records shall be maintained in electronic format.

 

India’s rapid growth is in turn driving rapid urbanization. Asia is expected to outgrow other continents in this process with China and India being the leaders. Whereas China seeks to control and guide urban growth through the hukou system, which controls in-migration from rural to urban areas, growth in India is more organic and seemingly unorganized. But the people who migrate to cities have similar aspirations, namely to earn a higher income than in rural areas, acquire better housing, improve access to health, education and job opportunities and thus ensure a brighter prospect for their children.

These aspirations cast a huge responsibility on city managers and governments. The need to provide vital infrastructure of health facilities, educational opportunities, water, power and transport are all directly linked to an efficient property titling system, which provides vital data for efficient planning. It not only settles many questions of ownership, but also allows for long-term investments in creating infrastructure for the metropolis. In addition to a saving of time and cost in deciding property disputes, there will also be greater clarity in the nature of titles prevailing in the various properties. Today, in the absence of proper property titling, slum dwellers are often evicted and have to resort to seeking illegal protection. A well regulated property titling system should make it possible for slum dwellers to seek better protection through legal recognition to their occupation of properties in which they reside. It should also ensure that encroachments are prevented and properties would not be subject to illegal and forcible dispossession due to the existence of a legal guaranteed title.

The state has so far avoided taking on the responsibility to guarantee title to property, in part because there is no fundamental right to property. Hence a system of registering property transactions and informing the registering authority about the physical possession of a property as a way to circumvent property titling, was followed. But such a practice has resulted in extraordinary disputes in property ownership and huge delays in getting the issues decided judicially. Finally, the Government of India seems to have realized that a property titling system guaranteed by the state is vital to remove a major bottleneck to urban reforms and growth. However, since existing legal systems have no provision for such a process, it may be necessary to both draft a new law as also amend other existing laws to make that possible. A property titling law and setting up of a legally tenable property titling authority is vital for the future growth of Delhi.