Land Classification and Ownership

UNIT-I: Classification of lands —

Ownership of Land........

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Ashwini Dalal

Dear Students Hi there…

Hear are the detailed notes on Unit 1,

earlier provided you audio lectures on

classification of land and ownership…if you

have any doubts of the concepts let me know

by your feed back…..actually we have already

discussed these topics in the class also….

So… be safe…take care of your near and dear

one and keep studying….

4/16/2020

Ashwini Dalal

2

LAND AND MAN



 Land is not only a resource, but also a resource

base by itself.



It is the place over which man lives and interacts.



Man is basically a terrestrial animal.



For many centuries man has been utilizing this

resource extensively and became the master of

the earth



 The socio-cultural and technological growth of

human societies leave deep imprints more on

land than any other resource base.

LAND AS A BIOLOGICAL ENTITY

LAND AS AN ECONOMIC ENTITY

LAND AS A PHYSICAL ENTITY

LAND AS A SPATIAL(Local) ENTITY

There are varied combinations of physical,

socio-cultural and economic parameters.

Hence land possesses innumerable

permutation combinations and their

arrangement over the space is a matter of

great importance for the advancement and

sustenance of human society

CONCEPT OF LAND USE

Land use is the surface utilization of all

developed and vacant land on a specific point, at

a given time and space. According to the Food

and Agriculture Organization of the United

Nations (

FAO

), 

land use defines the human

activities which are directly related to land,

making use of its resources, or having an impact

on them. 

In that context the emphasis is on the

function or purpose for which the land is used

and particular reference is made to “the

management of land to meet human needs”

FACTORS OF LAND USE



The land use pattern of a region is an outcome of

natural and socio – economic factors which decide the

utilization of land by man over time and space.



It is basically a function of four variables land, water, air

and man. Each plays its own role in composing its life

history.



The efficient use of land depends on the capacity of

man to utilize the land and to manage it.



Land use may vary in nature and in intensity according

to the purpose it serves – whether it is food production,

recreation, or mining – and the biophysical

characteristics of the land itself.



The use of land has intensified with the increase of

population, method and technology.

LAND USE CLASSIFICATION SCHEMES IN INDIA

Land utilization statistics provide the area figures showing the

distribution of the total geographical area of the country into its

various uses. Detailed statistics of land utilization which mainly give

area of land put to different uses are almost continuously available

since 1884. In the year, ‘the returns of Agricultural Statistics of

British India”, gave details of area cultivated and uncultivated, crops

cultivated and irrigated. Separate statistics of land cropped and

under current fallows, land available for cultivation and of area

under forests were also collected.

The geographical coverage of land use statistics has

continuously increased up to 1884-85 to 1922-23, but there has

been no substantial change during the subsequent years, until after

the World War II. Due to the continuous increase in the coverage as

also changes in the territory comprising India on account of

separation of Burma, the partition and subsequent reorganizations

of the State from time to time, comparable figures of land utilization

are not available over a long period of time

The Indian Council of Agricultural Research ICAR NINE FOLD CLASSIFICATION

(1951

)

 Out of the total geographical area of 328 million hectares, the land-

use statistics are available for roughly 306 million hectares, constituting 93

percent of the total.

Before 1950-51, in India, the land utilization statistics were available

under five categories. They were:

(i)

Forest

(ii)

Area not available for cultivation

(iii)

Other uncultivated land excluding current fallows

(iv)

 Fallow land and

(v)

Net area sown.

This fivefold classification was merely a broad outline of land use in

the country. It was found to be insufficient to meet the needs of

agricultural planning. The States were also finding it difficult to present

comparable data according to this classification owing to the lack of

uniformity in the definitions and scope of classification covered by these

five broad categories.

To remove the non comparability and to break up the broad categories into smaller

constituents for better comprehension, the Technical Committee on Co-ordination of Agricultural

Statistics was set up in 1948 by the Ministry of Food and Agriculture. They classified the land use

into the two basic types – agricultural and non agricultural land uses.

Agricultural

Agricultural land use

includes Permanent pastures

and other grazing lands, Land

under miscellaneous tree

crops, Cultivable waste,

Fallow other than Current

fallow, Current fallow and

Net area sown.

Non Agricultural

Non

 agricultural uses

are classified as Forest,

Land put to non-

agricultural uses and

Barren and uncultivable

land.

Thus the committee recommended a ‘Nine fold’ land use classification

and also put forward standard concepts and definitions for each land use class to

be followed by all States in the country. This nine fold classification was widely

used in all scientific studies in the last century

Before classify the nine fold land, lets discuss the

definition of land as define in the LA Act,1894 and

MLRC,1966

Section 3(a)of the land AquisationAct,1894- the

expression "land" includes benefits to arise out ofland,

and things attached to the earth or permanently

fastened to anything attached to the earth.

The definition of land includes fishery rights and things

attached to the earth. Even under the Transfer of

Property Act. the expression 'land' includes building,

standing trees and crops.

Further as per the Maharashtra land Revenue code

section 2 

(16) 

"land"

 includes benefits to arise out of

land, and things attached to the earth, or permanently

fastened to anything attached to the earth, and also

shares in or charges on, the revenue or rent of villages,

or other defined portions of territory;

Nine-fold classification of Land Use

GOI Technical committee created a 9 fold classification of land and it was

adopted by all states . Out of a geographical area of 329 million hectares (reporting

area) statistics are available only from 305 million hectares (non-reporting area),

which makes some areas to the extent of 7% still not covered or classifiable under

the nine-fold classification.

For the purpose of assessment all land shall be classed with respect to its

productive qualities. The number of classes and their relative value is done in the

rupee scale, and reckoned in terms of soil units in the areas, shall be fixed under

the orders of the Director with reference to the circumstances of the different

tracts of the country to which the survey extends and to the nature of the

cultivation.

The reporting area is classified into the following  nine categories:

1.Forests:

This includes all lands classed as forest under any legal

enactment dealing with forests or administered as forests, whether

state-owned or private, and whether wooded or maintained as

potential forest land. The area of crops raised in the forest and

grazing lands or areas open for grazing within the forests should

remain included under the forest area.

2.Area under Non-agricultural Uses

:

 This includes all lands occupied by buildings,

roads and railways or under water, e.g. rivers and canals

and other lands put to uses other than agriculture.

3.Barren and Unculturable Land

:

 includes all barren and un-culturable land like

mountains, deserts, etc. Land which cannot be brought

under cultivation except at an exorbitant cost, should be

classed as un-culturable whether such land is in isolated

blocks or within cultivated holdings.

4.Permanent Pastures and other Grazing Lands

:

 includes all grazing lands whether they are

permanent pastures and meadows or not. Village

common grazing land is included under this head

.

5.Land under Miscellaneous Tree Crops, etc

. :

This includes all cultivable land which is not included in ‘Net area sown’ but is

put to some agricultural uses. Lands under Casurina trees, thatching grasses,

bamboo bushes and other groves for fuel, etc. which are not included under

‘Orchards’ should be classed under this category.

6.Culturable Waste Land

:

This includes lands available for cultivation, whether not taken up for

cultivation or taken up for cultivation once but not cultivated during the current

year and the last five years or more in succession for one reason or other. Such

lands may be either fallow or covered with shrubs and jungles, which are not put to

any use. They may be assessed or unassessed and may lie in isolated blocks or

within cultivated holdings. Land once cultivated but not cultivated for five years in

succession should also be included in this category at the end of the five years.

7.Fallow Lands other than Current Fallows

:

This includes all lands, which were taken up for cultivation but are

temporarily out of cultivation for a period of not less than one year and not more

than five years.

8.Current Fallows

:

This represents cropped area, which are kept fallow during the current year.

For example, if any seeding area is not cropped against the same year it may be

treated as current fallow.

9.Net area Sown

:

This represents the total area sown with crops and orchards. Area sown more

than once in the same year is counted only once.

Ownership of Land — Absolute and limited

ownership (tenancy, lease etc.)

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Right to property.

In India the right to  property has been the cause of a long period of conflict

since (1950 -1978) between the  parliament and the judiciary. During this conflict,

judges were accused of class  bias because they struck down legislation intended

to expropriate land from  landlords with large holdings, paying little or no

compensation, and to redistribute the land to  tillers whilst protecting the tenants

The conflict between the two branches of government could not be on

account of different ideologies. Prime Minister Nehru believed that landlords who

had exploited  their tenants, had extravagantly pompous life-styles and were also

agents ( an intermediary) of  the British Raj, deserved to have less protection for

their property, whereas the  tenants or tillers to whom the state redistributed the

land ought to have their  property protected in greater measure. The tendency to

shift blame and  responsibility for the failure of land policy reached its high point

in 1975 when a state of  internal emergency was imposed by Prime Minister Indira

Gandhi. The suspension of fundamental rights was defended by the government

with the claim,  among others, that judicial review of agrarian legislation

obstructed redistribution of surplus land and other egalitarian measures.

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The Constitutions Forty-Fourth Amendment was intended to make it difficult

to suspend fundamental rights and impose emergency rule, as was done on

grounds of  internal disturbance in 1975. But this Amendment also removed the

right to property from the list of fundamental rights. Property is now recognized as

a legal right in Article 300A of the constitution: No person shall be deprived  of his

property save by authority of law.

Farmers whose land is generally acquired by the  government for public

purposes have little knowledge about their constitutional  and legal rights.

Recognizing that such injustices have become rampant, Indias parliament, passed

the Right to Fair  Compensation and Transparency in Land Acquisition,

Rehabilitation, and Resettlement Act (LAAR), 2013. This Act intends to safeguard

the interests of indigenous people (tribals) and stipulates norms for fair

compensation, resettlement and rehabilitation of persons displaced on account of

land acquisition. It has new provisions for social impact analysis and recognition  of

non-owners as affected persons, and it prescribes some norms of free, prior

informed consent of people affected by land acquisition. From the point of view of

inclusiveness, a dozen laws that affect vulnerable  and marginalized people

continue to be in force. Nearly 90 percent of the central governments land

acquisition in mineral-rich region has been carried out under these other laws, and

it may be the case that the new and more progressive land  acquisition legislation

will not be used very extensively.

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Ownership of land

Land is a unique asset because it is immovable; its value

depends on its location; and with growing population its demand

keeps increasing, while its supply is limited. Access to land (or land

rights) has a wide-ranging impact on livelihoods, and industrial,

economic, and social growth. People with land rights are found to

be better off than the landless, due to better access to markets and

other economic opportunities that come with such rights.

Land ownership is broadly determined by access to a land title,

a document that states such ownership. Having a clear land title

protects the rights of the title-holder against other claims made by

anyone else to the property. In India, land ownership is determined

through various records such as registered sale deeds, property tax

documents, and government survey records

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

The concept of ownership is one of the fundamental juristic concepts common to

all systems of law.



The idea of possession came first in the minds of people and it was later on that the

idea of ownership came into existence.



Ownership is a complex juristic concept which has its origin in the Ancient Roman

Law. In Roman law ownership and possession were respectively termed as

‘dominium’ and ‘possessio’.



The term dominium denotes absolute right to a thing while possessio implied only

physical control over it. They gave more importance to ownership .



In English law the concept of ownership developed much later than possession.



The earlier law gave importance to possession on the misconception that

possession includes within it ownership as well.



Holdsworth observed that the English law accepted the concept of ownership as an

absolute right through the gradual development in the law of possession.



The concept of ownership consists of a number of claims such as liberty, power and

immunity in regard to the thing owned.



Ownership is thus a sum-total of possession, disposition and destruction which

includes the right to enjoy property by the owner.



The owner has to side by side abide by the rules and regulation of the country.

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DEFINITION OF OWNERSHIP

Jurists have defined ownership in different

ways. All of them accept the right of ownership as

the complete or supreme right that can be

exercised over anything. Thus, according to

Hibbert ownership includes four kinds of rights

within itself.

1. Right to use a thing

2. Right to exclude others from using the thing

3. Disposing of the thing

4. Right to destroy it.

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Austin’s definition 

Austin while defining ownership has focused on the

three main attributes of ownership, namely, indefinite user,

unrestricted disposition and unlimited duration which may be

analysed in detail

1.

Indefinite User: 

By the right of indefinite user Austin means that

the owner of the thing is free to use or misuse the thing in a way

he likes. The pawner of a land may use it for walking, for building

house or for gardening and so forth. However Austin was cautious

enough to use the term “indefinite”. He did not use the thing

owned infamy way he likes. His use if the thing is conditioned by

requirements or restrictions imposed by the law. The owned must

not use the things owned as to injure the right of others. The

principle is the foundation of the well known maxim ‘sie utere tero

ut alierum non laedas’ the meaning of the maxims is that to use

your own propertys  not to injure your neighbour’s right. Again the

use of property may be restricted voluntarily

e.g. town planning act, slum clearance act, 1955  etc.

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2. Unrestricted Disposition: 

What Austin implies by unrestricted disposition is that the

power of disposition of the pawner is unhampered by law meaning thereby that

he is absolutely free to dispose it to remove it to anyone This is incorrect. In case

of lease of thousand years, servitudes and restricted, covenants, plenary control of

a property is not possible. Moreover, in the law of the some of the western

countries there is rule re relegitima portis which means that the person cannot

dispose of his entire property. He has to keep a certain portion of the property for

the members of his family. Under mohamdan law a similar rule prevails namely a

person cannot dispose and delaying creditors would be set aside. As under Hindu

law government by mitakashara law can’t alienate ancestral immovable property

without the consent of other coperceners except for legal necessity.

3. Unlimited Duration: 

It is incorrect since almost under every legal system the

state possesses the power to take over the property of any person in public

interest. The abolition of Zamindari system India , the abolition of privy purses,

nationalization of Bank etc. are some example of the fact that the ownership can

be cut short by the state for public purpose and its duration is not unlimited.

Austin’s definition has been followed by Holland. He defines ownership as plenary

control over an object. According to him an owner has three rights on the subject

owned: .

1. Possession 2.Enjoyment 3.Disposition

Plenary control over an object implies complete control unrestricted by any

law or fact. Thus, the criticism levelled against Austin’s definition would apply to

that given by Holland in so far as the implication of the term “plenary control”

goes.

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Salmond’s Definition:

According to the Salmond - ownership vests in the complex of rights which he exercises to the

exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in here

resides in an individual. Salmond’s definition thus point out two attributes of ownership:

1.Ownership is a relation between a person and right that is vested in him

2.Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring

ownership which may be broadly classed under two heads, viz,.

1.

Original mode: 2.

Derivative mode:

1.Original mode:

The original mode is the result of some independence personal act of the acquire himself.

The mode of acquisition may be three kinds

a) Absolute: 

when a ownership is acquired by over previously ownerless object.

b) Extinctive: 

 which is where there is extinctive of previous ownership by an independence adverse act on

the part of the acquiring. This is how a right of easement is acquiring after passage of time

prescribed by law.

c) Accessory

: that is when requisition of ownership is the result of accession. For example, if three fruits,

the produce belongs to the owner unless he has parted with to the same.

2.Derivative mode:

 When ownership is derived from the previous version of law then it is called derivate

acquisition. That is derived mode takes place from the title of prior owner. It is derived either by

purchase, exchange, will, gift etc.

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Kinds of Ownership

There are many kinds of ownership and

some of them are

I. Corporeal and incorporeal ownership;

2. Sole ownership and co-ownership;

3. Legal and equitable ownership;

4. Trust and beneficial ownership; .

5. Vested and contingent ownership; and .

6. Absolute and limited ownership;

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Absolute and Limited Ownership

That is, it may be exclusive or limited. Ownership can be

limited by agreements or by operation of law.

When in a person all the rights of ownership (i.e. Possession,

enjoyment and disposal) vested without any restriction (except that

imposed by law in the interest of society), his ownership is absolute

ownership. But when there are limitations on user, or duration or

diposal, the ownership is limited ownership.

e.g.of limited ownership in English law is life tenancy when an

estate is held only for life. In Hindu law (before 1956), women’s

estate was a limited ownership.

If a hindu women inherited property from a male or female, it was

called women’s estate. She held the property only for her life and

had only a limited power of disposal. After her death, the property

went to the heirs of the last holder of the property.

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 Tenancy, lease etc

.

Tenancy refers to the possession or occupancy of lands, buildings or other property by title

through a lease or on payment of rent. In other words is the right to use property for specified

amount of time, as granted by the owner. Tenancy right means that you do not need to own the

property in order to use and benefit from it

CONCEPT OF A LEASE –

1. Definition of Lease:

‘Lease’ of an immovable property is defined and detailed under Chapter V of the Transfer of

Property Act, 1882. Section 105 of the Act defines the term ‘lease’, ‘lessor’, ‘lessee’, ‘premium’ and

‘rent’.

Section 105 of the Act - “a lease of immovable property is a transfer of a right to enjoy such

property, made for a certain time, express or implied, or in perpetuity, in consideration of a price

paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered

periodically or on specified occasions to the transferor by the transferee, who accepts the transfer

on such terms.

Lessor, lessee, premium and rent defined: The transferor is called the lessor, the transferee is called

the lessee, the price is called the premium, and the money, share, service or other thing to be so

rendered is called the rent.”

2. Essential Ingrediants of a Lease:

(a) 

Transfer of right in the property 

– An interest in the subject property is to be created in favour of

the ‘lessee’ by the ‘lessor’.

(b) 

Duration of a lease 

– Interest created in the property could be for a specified period (either

expressedor implied) or even in perpetuity. Parties to the lease are at liberty to decide the duration

of the said lease.

(c) Consideration 

– A valid consideration needs to be paid, periodically or on specified occassions by

the lessee to the lessor.

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3. Term of a Lease: 

Section 107 of the Act provides

that a lease of an immovable property for a term

exceeding a  year can only be made by a

registered instrument . In the event, the same is

not made through a registered instrument, then,

contrary to what is mentioned in the said lease,

the duration of the lease will be assumed to be of

a month, and the same may be terminated by

either party by providing a fifteen days’ notice .

However, in case the term is less that a year, then

the said lease may be made either by oral

agreement accompanied by delivery of

possession of the immovable property, or by a

registered instrument.

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4. Determination of a Lease: 

Section 111 of the Act details

the events/ means by which a lease may be determined.

“A lease of immovable property determines-

(a) by efflux of the time limited thereby,

(b) where such time is limited conditionally on the happening

of some event-by the happening of such event,

(c) where the interest of the lessor in the property terminates

on, or his power to dispose of the same extends only to,

the happening of any event-by the happening of such

event,

(d) in case the interests of the lessee and the lessor in the

whole of the property become vested at the same time in

one person in the same right,

(e) by express surrender, that is to say, in case the lessee

yields up his interest under the lease to the lessor, by

mutual agreement between them,

(f) by implied surrender,

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(g) by forfeiture; that is to say,

(1)

in case the lessee breaks an express condition which provides that, on breach

thereof, the lessor may re-enter; or

(2)

 in case the lessee renounces his character as such by setting up a title in a third

person or by claiming title in himself; or

(3)

the lessee is adjudicated an insolvent and the lease provides that the lessor may

re-enter on the happening of such event; and in any of these cases the lessor or

his transferee gives notice in writing to the lessee of his intention to determine

the lease,

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to

quit, the property leased, duly given by one party to the other.” Thus, it may be

clearly understood that a lease may be determined on occurance of any of the

events as mentioned under Section 111 of the Act.

5. Effects of Determination of a Lease By Efflux of Time

: Upon determination of a

lease by efflux of time, all rights, title and interest of the lessee under the lease,

cease to exist, and the lessee is bound to put the lessor into possession of the

property. “If the lessee continues to remain in    possession of the property,

without the consent of the lessor, such  possession becomes wrongful from the

date of the termination of the lease, and the lessee is a mere  trespasser and has

no right to remain in the property, and the lessorhas a right to enter upon the

property immediately after the expiration of the term without any further notice.”

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Doctrine of Eminent Domain — Doctrine of

Escheat - Doctrine of Bona Vacantia

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Eminent Domain

The power to take property from the individual is

rooted in the idea of eminent domain. The doctrine of

eminent domain states, the sovereign can do anything, if

the act of sovereign involves public interest. The doctrine

empowers the sovereign to acquire private land for a public

use, provided the public nature of the usage can be

demonstrated beyond doubt. The doctrine is based on the

following two Latin maxims,

(1)

Salus populi suprema lex (Welfare of the People Is the

Paramount Law) and

(2)

(2) Necessitas publica major est quam (Public Necessity Is

Greater Than Private Necessity).

In the history of modern India, this doctrine was

challenged twice (broadly speaking) once when land

reform was initiated and another time when Banks were

nationalized.

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The Constitution of India originally provided the right to

property (which includes land) under Articles 19 and 31.

Article 19 guaranteed that all citizens have the right to acquire,

hold and dispose of property.

Article 31 stated that "no person shall be deprived of his

property save by authority of law." It also indicated that

compensation would be paid to a person whose property has been

taken for public purposes .

The Forty-Fourth Amendment of 1978 deleted the right to

property from the list of fundamental rights with an introduction of

a new provision, Article 300-A, which provided that "no person shall

be deprived of his property save by authority of law" (Constitution

44th Amendment, w.e.f. 10.6.1979).

The amendment ensured that the right to property‟ is no

longer a fundamental right but rather a constitutional/legal right/as

a statutory right and in the event of breach, the remedy available to

an aggrieved person is through the High Court under Article 226 of

the Indian Constitution and not the Supreme Court under Article 32

of the Constitution.

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State must pay compensation at the market value for such land, building or

structure acquired (Inserted by Constitution, Seventeenth Amendment) Act, 1964,

the same can be found in the earlier rulings when property right was a

fundamental right (such as 1954 AIR 170, 1954 SCR 558, which propounded that

the word "Compensation" deployed in Article 31(2) implied full compensation, that

is the market value of the property at the time of the acquisition.

The Legislature must "ensure that what is determined as payable must be

compensation, that is, a just equivalent of what the owner has been deprived of".

 Justice, Reddy, O Chinnappa ruled (State Of Maharashtra v. Chandrabhan

Tale ) that the fundamental right to property has been abolished because of its

incompatibility with the goals of "justice" social, economic and political and

"equality of status and of opportunity" and with the establishment of "a socialist

democratic republic, as contemplated by the Constitution. There is no reason why a

new concept of property should be introduced in the place of the old so as to bring

in its wake the vestiges of the doctrine of Laissez Faire and create, in the name of

efficiency, a new oligarchy. Efficiency has many facets and one is yet to discover an

infallible test of efficiency to suit the widely differing needs of a developing society

such as ours" (1983 AIR 803, 1983 SCR (3) 327).

The concept of efficiency has been introduced by Justice Reddy, O

Chinnappa, very interestingly coupled with the condition of infallibility

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In India, with this introduction of ‘social’ elements to

the property rights, a new phase had begun. K. K. Mathew,

justice of Kesavananda Bharati vs. State of Kerala  stated

this precisely: "Property in consumable goods or means of

production worked by their owners were justified as

necessary condition of a free and purposeful life; but when

property gave power not only over things but through

things over persons also, it was not justified as it was an

instrument of servitude rather than freedom“

Eminent domain doctrine has been widely used

in India since the era of Independence, with over 21.6

million people in the period of 1951-90. They have been

displaced with large-scale projects like dams, canals,

thermal plants, sanctuaries, industrial facilities, and mining

These occurrences are generally categorized as

"development-induced displacement".

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There have been a rising number of political and social protests

against the acquisition of land by various industrialists. They have

ranged from Bengal, Karnataka, and Uttar Pradesh in the recent

past. The acquisition of 997 acres of land by Tata motors in Bengal in

order to set up a factory for the cheapest car in India was protested

(Singur Tata Nano controversy).At least a decade before the Singur

episode similar events occurred in West Bengal, although the

opposition parties and other civil society organisations remained

silent at that time. Similarly, the SardarSarova Dam project on the

river Narmada was planned on acquired land, though the project was

later canceled by the World Bank

The Land Acquisition Act of 1894 allowed the government to

acquire private lands. It is the only legislation pertaining to land

acquisition which, though amended several times, has failed to serve

its purpose. Under the 1894 Act, displaced people were only liable

for monetary compensation linked with market value of the land in

question, which was still quite minimal considering circle rates are

often misleading

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Doctrine of Escheat or bona vacantia in India

The Doctrine of bona vacantia or Escheat was declared

to be a part of the law in India by the Privy Council as early

as in 1860 in 

Collector of Masulipatam v. Cavary Vancata

Narrainappah

, (1859-61) This case also held that the

General Law of universal application and that General Law

was that “private ownership not existing, the State must be

the owner as the ultimate Lord”.

Article 296 of the Constitution of India provides that

any property in the territory of India which would have

accrued to the ruler of an independent State by escheat or

lapse or as bona vacantia for want of a rightful owner shall

if it is the property situate in a State, vest in such State, and

in any other case in the Union of India.

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Definition of escheat

Black’s Law Dictionary defines ‘escheat’ as:

1. The reversion of land ownership back to the lord when

the immediate tenant dies without heirs.

2. Reversion of property (especially real property) to the

state upon the death of an owner who has neither a

will nor any legal heirs.

3. Property that has so reverted.

Thus we see that Doctrine of Escheat is a common

law doctrine which transfers the property of a person

who dies without heirs to the crown or the state. It

serves to ensure that property is not left in ‘limbo’

without recognized ownership.

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The concept of bona vacantia has its origins from the common

law. The maxim Bona vacantia is used for the situation in which

property is left without any clear owner. The owner of the goods or

property is not known.

If no ownership is claimed over those goods or property then

the goods or the property goes to the government and the

government serves as the custodian of those goods or property. The

government has to take such goods and act as their owners for

perpetuity. The cases of such ownership arises when the goods or

the property are being abandoned when the person dies without

any living heirs. Such situation can also arise when a business or

unincorporated association is dissolved the assets thereof are not

distributed appropriately. Other process how such situation arises

are when a trust in the path of failing or when the property owner in

nowhere to be found and does not any information about its

whereabouts.

 In other words it is a property without any claim. Bona

vacantia is used for those goods and property which does not have

any ownership. Ownership and property are two interrelated

concepts. There cannot be any ownership without any property and

also there can be any property without ownership.

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In the case of Sita Ram Jaiswal and others v State of U.P. and others

(

2016 (118) ALR 146

)it was observed by the court that the right of the King

to take property by escheat or as bona vacantia was recognized by

common law of England. Escheat property was the lord’s right of re-entry

on real property held by a tenant dying intestate without lawful heirs. It

was an incident of feudal tenure and based on the want of a tenant to

perform the feudal services. On the tenant dying intestate without leaving

any lawful heirs, his estate came to an end and the lord was in by his own

right and not by way of succession or inheritance from the tenant to re-

enter the real property as owner.

In most of the cases the land escheated to the Crown as the lord

paramount, in view of the gradual elimination of intermediate or mesne

lords since 1290 AD. The Crown takes as bona vacantia goods in which no

one else can claim property. “it is the right of the Crown

to bona vacantia to property which has no other owner.” The right of the

Crown to take as bona vacantia extends to personal property of every

kind. Giving a notice at this stage that the escheat of real property of an

intestate dying without heirs was abolished in 1925 and the Crown cannot

take its property as bona vacantia.

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The Supreme Court in the case of Narendra Bahadur Tandon v

Shankerlal

 (AIR 1980 SC 575) observed that if the company had a subsisting

interest in the lease on the date of dissolution such interest must necessarily

vest in the Government by escheat or as bona vacantia. In India the law is

well settled that the property of an intestate dying without leaving lawful

heirs and the property of a dissolved Corporation passes to the Government

by escheat or as bona vacantia.

In the case of State of Gujarat and Another v Shri Ambica Mills Limited

Ahmedabad and Another

 (AIR 1974 SC 1300) it was observed it is only if no

claim is made for a period of 4 years from the date of the publication of the

first notice, or, if a claim is made but rejected wholly or in part, that the State

appropriates the unpaid accumulations as bona vacantia. It is not as if unpaid

accumulations become bona vacantia on the expiration of three years. They

are, no doubt, deemed to be abandoned property under section 6(A)1, but

they are not appropriated as bona vacantia until after claims are invited in

pursuance to public notice and disposed of.

At common law, abandoned personal property could not be the subject

of escheat. It could only be appropriated by the sovereign as bona vacantia

The Sovereign has a prerogative right to appropriate bona vacantia. And

abandoned property can be appropriated by the Sovereign as bona vacantia.

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Ashwini Dalal

Maintenance of land records and issue of Pattas a

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Ashwini Dalal

The Definition of Land Record 

has been

elaborated in Section 2(18) of MLRC,1966

Accordingly,  

"land records"

 means records

maintained under the provisions of or for the

purposes of, this Code and includes a copy of

maps and plans of a final town planning

scheme, improvement scheme or a scheme of

consolidation of holdings which has come into

force in any area under any law in force in the

State and forwarded to any revenue or survey

officer under such law or otherwise.

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Ashwini Dalal

The evolution of land records

Prior to independence, land was mostly concentrated with the

landlords or zamindars, who had permanent property rights.  The

zamindars collected land rent from a given territory, and paid a fixed

sum as land revenue to the government.  This land revenue formed a

key source of government income.  However, the rent that was to be

paid by the cultivator tenants was unregulated, and was subject to

the discretion of the landlords.  This allowed the landlords to make

profits by charging rents in excess of the amount to be paid as

revenue.

Since the landlords were primarily interested in maximising rent

collection, a system of land records was created and maintained to

facilitate this process.  These land records furnished information

important for land revenue assessment such as, area of the property,

and details of the person in possession of the property.  Post-

independence, the zamindari system was abolished, but land

ownership continued to be determined through a combination of

these records.

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Post-independence, the responsibility for land administration was

transferred to states.  All the records were collected and maintained

manually by the respective revenue department.  Further, with the

abolition of the zamindari system, a few land reforms were

implemented.  These included policies on redistribution of land, and

tenancy reforms.

The land redistribution reforms sought to put a cap on the amount of

land a person could hold, and consolidation of such extra land with the

government.  These were known as land ceiling laws, which were later

repealed in urban areas (mostly because they were not successful, and

resulted in unused land banks with the government).

The tenancy reforms broadly aimed at:

(i)

conferring security of tenure on tenant cultivators (to provide them

some form of land rights), and

(ii)

fixing fair rents for tenants.

However, these were also mostly unsuccessful.  Currently, most states

have either legally banned or imposed restrictions on agricultural land

leasing, which has led to informal tenancy across the country.

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Ashwini Dalal

LAND AS A VALUABLE ASSET

Land ownership is broadly defined by the access to a

land title.  Land title is a document that determines the

ownership of land or an immovable property.  Having a clear

land title protects the rights of the title holder against other

claims made by anyone else to the property.  In India, land

ownership is determined through various records such as

sale deeds that are registered, property tax documents,

government survey records, etc.

However, land titles in India are unclear due to various

reasons such as legacy issues of the zamindari system, gaps

in the legal framework, and poor administration of land

records.  This has led to several legal disputes related to

land ownership, and affected the agriculture and real estate

sectors.  Such issues have further highlighted the

importance of having clear land titles, and a well organised

land records system.

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Legal framework

The current system of land records was inherited from the pre-

independence days i.e. zamindari system, and has not changed much since then.

These land records provided, in addition to other details, information on who is in

possession of land, and not who the owner is.  This has resulted in a system, where

ownership is established based on who is in current possession of the land.  Such

possession is determined through a sequence of past transactions of the land or

property in question.

The transfer of land or property between a buyer and seller is recorded

through a sale deed, which needs to be registered according to the current legal

framework.  Therefore, such registration of land refers to the registration of the

transaction, and not the land title.  Such registration does not guarantee the title

by the government.  This implies that even bonafide property transactions may not

always guarantee ownership as an earlier transfer of the title could be challenged.

Currently, land can be transferred from one party to another through sale,

purchase, gift, inheritance, mortgage, and tenancy.  The Transfer of Property Act,

1882 provides that the right, title, or interest in an immovable property (or land)

can be transferred only by a registered instrument.  The Registration Act, 1908, is

the primary law that regulates the registration of land related

documents.  Therefore, currently, all sale deeds relating to land or immovable

property transfer are registered under the Registration Act, 1908.

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As per the Registration Act, 1908, when registering a property sale deed, the

identity of the buyer and the seller needs to be checked, and whether the last sale

deed was registered.  While the identity of the buyer and the seller is verified

through various identity proof documents, the physical location and attributes of

the land being sold may not always be cross-checked physically by the registrar

(district official responsible for registration).  Further, only checking the identity of

the sellers may not necessarily mean that they are the rightful owners of such land

or property.

Registration of a sale deed makes the document of transfer a permanent

public record.  From these records, any person interested in purchasing that

property can verify in whose name the deed was last registered.  If a deed of land

transfer for which registration is compulsory under the Registration Act, 1908 is

not registered, then it is not admissible as evidence of ownership in courts.

The onus of checking the validity of the title (or rightful ownership of the

property) is on the buyer, and not on the government.  Such verification requires

delving into past ownerships and transactions to establish non-encumbrance.  It is

difficult to carry out this process if past transactions are not recorded properly and

there are gaps between the records with the government and the actual state of

land ownership.  Gaps or mistakes in old land records also make it easier to

question the ownership.

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The Committee on Financial Sector Reforms (FSRC)

in 2009 had recommended moving from a presumptive

to a conclusive titling system.  Conclusive titles are

state guaranteed titles, where the state guarantees the

title for its correctness and provides for compensation

in case of any disputes. The central government’s

scheme on modernisation of land records (Digital India

Land Records Modernisation Programme, (or DILRMP)

also seeks to create a system that will help move

towards conclusive titling.  The FSRC had also

recommended providing reasonable rules to allocate

the liability for any loss or damage caused by an error

in the administration of the registration and record

search system.

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Maintenance of land records

Land administration essentially involves recording, processing and

dissemination of information about the ownership, value, and use of

land.  The system of land records management varies across states,

depending on factors such as historical evolution and local

traditions.  Broadly, such information can be classified as details of the

property (such as tax documents, rental documents), spatial records (such

as maps, boundary limits), and transaction records (registered sale deeds).

Today, land ownership can be determined through a set of

documents.  These include:

 (i) the record of rights (RoR), which captures details such as the name of the

land holder, the number and size of the plot area, and revenue rate (for

agricultural land),

(ii) the registered sale deed to prove that the property has been sold from

one person to the other, and the taxes on the sale have been paid,

 (iii) survey documents to record a property’s boundaries and area, and prove

that the property is listed in government records, and

 (iv) property tax receipts.

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Ashwini Dalal

Land Records

Land records are a combination of three types of data records: (i) textual

(RoR), (ii) spatial (maps), and (iii) transaction details (sale deeds).  Three different

state departments are responsible for each of this data on land records.  In the

presence of multiple agencies responsible for registration and maintenance of

records, it is difficult to ensure that survey maps, textual data, and registration

records match with each other and are updated.  In addition, citizens have to

approach several agencies to get complete information on land records

Typically, across states, these land records are stored and managed in the

following manner:

Sale deed:  

At the time of purchase of an immovable property (land or property),

both the seller and buyer sign a sale deed (a non-judicial stamp paper of a

prescribed amount).  Typically, a sale deed contains details of the property, market

price of the property, and details of past transactions on the property.  The sale

deed is registered under the Registration Act, 1908.  It is registered on a stamp

paper, and the value of the stamp paper is known as stamp duty.

Once the deed is registered, details about the transaction are sent to the

tehsil/taluka office to start the process of mutation (recording the transfer or

change of title of a property in the land records) and reflect this change in the

record of rights.  Once the mutation/transfer comes into effect, the state

government (through the tehsil/taluka office) provides documentary evidence of

right over land in the form of a patta.  This patta is then provided to the buyer as

an evidence of land right.

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Land patta is a legal document that states that the person in

whose name it is registered is the owner of the land. The revenue

record is maintained at the office of the concerned Tahsildar, and is

issued by the Registrar of land holdings.

A patta signifies the lawful possession of the land, and is

therefore an essential document required property transactions.

Patta establishes the lawful ownership and possession of a property.

In case of disputes between the government and a land holder, or a

third party and a land holder, the patta acts as a safeguard for the

interests of the legal owners in whose name it is issued.

Further, in case the government acquires the land, the patta

holder receive a compensation as he or she holds the first right over

that property. Patta also bears important details regarding the

extent of the property and its measurements.

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Pattas are normally transferred in

instances of sale of property, gift, or death of

the patta holder(s).In the case of death of the

owner, the legal heirs of the deceased person

are entitled to transfer the land patta in their

names. If the deceased has left a will, the

patta can be transferred to the beneficiary,

provided that the immediate heirs of the

deceased person do not object 

A patta is one

of the most important legal documents

pertaining to land.

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The sale deed only captures information on the transfer of

ownership, and few property details such as the area and cost of

land.  Other information related to land, property records, and related

transactions is collected and maintained across various documents.  These

include:

Record of Rights (RoR):

  The RoR is the primary record that shows how rights

on land are derived for the land owner, and records the property’s

transactions from time to time.  The structure of the document, and the

information it provides differs across states.  Typically, it provides

(i)

names of all persons who have acquired some rights with regard to the

land,

(ii)

 the nature and limits of their rights, and

(iii)

 the rent or revenue to be paid by them.

These rights could be ownership, long-term lease-holds, or tenancy

related.  The RoR may also capture information regarding loans taken by

the occupant, details on the rights of the owner or occupant of the land,

and any community or government rights on the land.

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Spatial land records:

Spatial land records

contain details of a property sketched on a

map.  These include land boundaries, plot

area, connectivity with roads, presence of

water bodies, details of surrounding areas,

land use (agricultural, residential, commercial,

etc), and land topology.  The property-level

sketch must be updated every time a new

entry is made in the RoR document.  Periodic

surveys by the Survey and Settlement

department are used to update these spatial

land records.

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Typically, the information mentioned above is

documented and maintained primarily across three

departments.

The Registration Department is responsible for

registration of sale deeds, and collection of stamp duty.

The Sub-Registrar’s office is responsible for carrying out

the process of registration.

The Revenue Department is responsible for maintaining

the RoR and mutations register (any changes in titles).

It also maintains tax registers for collection of revenue

from land.

While the Survey and Settlement

Department maintains spatial data (through maps) and

executes surveys to collect land related data, and

updates the maps.

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Poor maintenance of land records

Historically, land registration, and the maintenance of records has

been done manually.  Documents are usually kept with the Revenue

Department and are not easily accessible to the public.  This makes it

difficult and cumbersome to access land related data when trying to

engage in a property sale.  An individual has to go back several years of

documents, including manual records, to find any ownership claims on a

piece of property.  Such a process is inefficient and causes time

delays.  While programs to digitise land records have been around since

late 1980s, the progress has been slow due to the large volume of land

records .  The Committee on State Agrarian Relations and the Unfinished

Task of Land Reforms (2009) observed that the average age of

village/cadastral maps in most states is more than 50 years, and most of

them were prepared during the British regime.

The FSRC (2009) had recommended providing remote and easy

access to registration procedures and to land records.  It had noted that

the use of internet kiosks to access land records had proved very useful in

increasing transactions in states where it had been tried, such as Andhra

Pradesh.  In addition, it was suggested that online documentation of land

records can be linked with court registries of the corresponding district or

the state, through which a buyer can get immediate information of any

pending litigations with regard to a property.

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Ashwini Dalal

Challenges to establishing clear land titles

Several committees have suggested that conclusive

titling system will help to focus on the issues of unclear

land titles.  The Ministry of Rural Development has

undertaken a land records digitisation and modernisation

scheme, the National Land Records Modernisation

Programme (NLRMP) which seeks to move to a

conclusive system of titles.  While moving to a conclusive

land titling system is desirable, it poses several

challenges.



Firstly, it would require ensuring that all existing land

records are accurate and free of any

encumbrances.  Currently, land records are incomplete,

inaccurate and do not reflect the position on

ground.  Cross checking all these records against all past

transactions, and with the existing position of ground

would be time consuming, and resource intensive

process.

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

Secondly, it would require that all information around land is

available through a single window.  Currently, land records are

dispersed across various departments.  Changes in land records in

one department are not always reflected in the records in the other

departments.  Integration of information across departments would

require integrating such information, updating these records, and

ensuring that the information across the departments matches. It

would also require creating systems where any new information is

recorded and updated through a single window, and that gets

reflected across all the departments. In municipal areas, some

property related data is also stored in other departments such as

electricity, and water supply.  These would also need to reflect the

updated property information.



Thirdly, with regard to the legal framework, land, registration of

documents, and contracts are regulated across both centre and

states.  For the purpose of conclusive titling  require amendment in

these central and state laws, and thereby creating a unified legal

framework that provides for government guaranteed land

ownership.

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Stay at home and be safe…..

Thank You….

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