Assignment on Land reforms
Dr. Dhaval Patel, IAS
1. Name of the offices, departments involved with land administration in the state
a. Government
i. Revenue minister
ii. Principal secretary, revenue department
iii. Special secretary, revenue (appeals)
iv. Principal secretary and commissioner land reforms
v. Relief commissioner
vi. Gujarat Revenue Tribunal
b. Directorate
i. Settlement commissioner and superintendent general of land records
c. District
i. Collector (for urban lands)
ii. District development officer (for rural lands)
iii. Superintendent of land records
iv. District inspector of land records
v. City survey superintendent
vi. Land acquisition officer
vii. Deputy collector - rehabilitation
viii. Deputy town planner
ix. District panchayat
d. Subdivision
i. Assistant collector / deputy collector
e. Taluk
i. Mamlatdar
ii. Taluka panchayat
f. Village
i. Talati (patvari)
ii. Gram Panchayat
iii. Maintenance surveyer (equivalent of talati in city survey area)
iv. Municipality
2. A brief note on history of settlement with mention of classification of land - Grouping of Crops - Levy of assessment
a. The survey and settlement was done at the time of Britishers.
b. Though it has been specifically stated in the Survey and Settlement Manual that the resettlement should be done at the interval of 30 years, no resurvey or resettlement had been done till recently.
c. The process of resurvey is ongoing in the districts of Jamnagar and Gandhinagar right now.
d. the survey in force was done with the help of cross staff - chain method which was a crude method and didn’t reflect true area of the land.
e. The land had been divided in three major classes: Jirayat (dryland), Bagayat (orchard) and Kyari (paddyfields).
f. The assessment was the highest for Kyari and lowest for Jirayat
g. The Jirayat land is unirrigated, and suitable for crops requiring less water
h. There are 8 types of fault classified in the Settlement manual. The lands which have these faults are assessed lesser than usual.
i. The rates of land revenue have not been revised from the date they came into existence. In earlier days, rs. 1 used to be big amount but even today the assessment is around rs 1/acre only and the government has already waived the land revenue. The only thing the agriculturists have to pay is education cess and Panchayat cess.
j. At the time of assessment there were surveyors and classers who did the whole survey and settlement procedure.
3. A note on the peasant struggle in the state after independence - not applicable
4. a brief note on the Abolition of estates and introduction of land reforms.
a. The following are the land reforms act in Gujarat
i. Bombay tenancy and agricultural land act, 1948
ii. Bombay tenancy and agricultural land act (extension to Kutch and Vidarbha region)
iii. Saurashtra Barkhali abolition act
iv. Saurashtra Estates abolition act
v. Saurashtra land reforms act
vi. Saurashtra Gharkhed ordinance
vii. Gujarat agricultural land ceiling act
viii. Gujarat urban land ceiling act - has been repealed
ix. Gujarat devasthan inam abolition act
x. Gujarat inam abolition act
b. The Bombay tenancy act applies to the part of Gujarat which was earlier part of Bombay province and Kutch, whereas the Saurashtra area of Gujarat is governed by different set of acts as aforementioned
c. The Bombay land revenue code of1989 is the principal act governing all the land transactions as well as land revenue collection, settlement. Even the post of collector and assistant collectors is created under this act.
d. Gujarat land revenue rule 1972 is the revised set of rules made under the Bombay LRC.
e. The tenures of Gujarat and Maharashtra need a special mention -
i. Old tenure - it is land held by the holder without any restriction
ii. New tenure (impartable) - this is the tenure of land given under ceiling act or government land given by auction or revenue free, which is not partable without previous consent of the Collector and without payment of a premium fixed by the Collector.
iii. Inam tenures -there were 7 types of Inams granted to the sevants of state or Britishers. The Inams were revenue free land granted in lieu of services rendered. All the Inams were gradually phased out by various land reform acts. The last to be phased out was "Devasthan Inam". The village which I studied was a Devasthan Inami village.
iv. Tenancy act s.43 restriction - these lands were given to the tenants under tenancy act. These lands can't be transferred or sold without previous sanction of collector and can't be converted to nonagricultural use without payment of premium.
v. Bombay LRC s.73AA restriction (tribal) - Bombay Land Revenue Code stipulates in s.73AA that the land of tribal will not be sold to non tribal without previous sanction of the collector.
vi. Bhoodan lands
f. The main difference in the implementation of land reform acts in Gujarat and other states is that at the time of implementation, the land reforms act was implemented in the true spirit of the act. Therefore it is extremely rare to find a big Jagirdar in Gujarat. The maximum land held by the holders is about the magnitude of 25 to 40 acres and that too in dry / barren areas.
g. The other main difference is that according to the Bombay Tenancy Act, no agriculturist can transfer his land to a non agriculturist without previous sanction of the collector. And the restriction placed in the rules is that such transfer will not be made if the annual income of the non agriculturist exceeds rs 5000/ annum. Thus effectively there cannot be any transaction of land from Agriculturist to non agriculturists. This provision is made to prevent the speculating in lands by big businessmen.
h. I would take the Bombay tenancy act as the example. The acts of Saurashtra region are almost similar.
i. The Bombay tenancy act prescribes one day as 'tillers' day'. Those whosoever had the physical occupation of the land on the tillers' day was to be given the land title
ii. The act also forestalled the sale/ transfer of lands which are under the occupation of the tenants by declaring all the transactions made in respect of the land operated by the tenants from the date of the placement of the draft on the floor of the legislature, null and void.
iii. Then both the tenant and the landlord were given a hearing and if found true, the tenant was given the title of the land held by him.
iv. The landlord was allowed to retain the land under his personal cultivation and for homestead purpose.
v. The tenant was to pay the landlord the occupation price for the land handed over to him. This was a minimal amount - about 6 times the assessment of the land.
vi. Even then some tenants were not able to pay the amount to the landlords. The government didn’t make those tenants suffer. The government paid all the money to the landlord on tenant's behalf and entered the amount in the land record as the arrears of land revenue and asked the tenants to pay it back in installment (known as Tagavi). Thus even the poor could get the land in land reforms and the landlords were also given some remuneration (even though meager).
i. The agricultural land ceiling act:
i. The Gujarat Agricultural land ceiling act was enacted to take the excess land from the big landholders and to distribute them to small holders.
ii. The act provided the maximum extent of land as could be held by a family.
iii. It also held transfers of lands after the placement of the bill in legislature invalid so as to defeat the purpose of the unscrupulous landlords.
iv. The land which was declared finally surplus was given to the landless, small and marginal holders as per the norms on New and Impartable tenure.
5. What are the problems encountered by the state with respect to tribal land alienation?
a. According to the s.73AA of Bombay Land Revenue Code, a tribal cannot transfer his land to a tribal or non tribal without previous sanction of the government. It would be "BREACH OF CONDITION " (known as Sharatbhang). If such breach of condition is found, the land is transferred to government account.
b. But the act also foresees a situation in which the tribal is forced by monetary crunch to sell it to non tribal under the pressure from non tribal. In that case if the tribal applies to the Collector, the collector can take the land from the non tribal and give it back to the original owner
c. Any transfer of tribal land (even though by registered document) without Collector's consent is considered illegal.
d. The implication of this restriction is that no one wants to buy tribal land because they will have to go to the collector and get the permission and pay all the dues on the land and pay premium to the government according to 50% of market price for agricultural use and 80% of market price for non agricultural use. Therefore the actual cost of buying a tribal land for non agricultural use is 180% of market value.
e. Therefore now the situation is that even though the lands of tribal is in the same location as of other lands, it fetches less prices as the buyer has to pay the premium to the collector.
f. Thus it is a major problems for tribals who have lands near cities or towns. Neither the lands are easily saleable nor does it fetch good value vis a vis non tribal land.
g. The encroachment of tribal land by nontribal land is considerably small because the non tribal cannot get the land in his name. Usually the tribal lands are on the hill and not suitable for non agricultural use. And for agricultural use, non tribal lands cost cheaper than tribal land (including government premiums)
h. Thus there is a need to amend the act as far as it pertains to lands in the vicinity of a municipality of big villages (let's say 5000 population) and allow tribals to sell to non tribals
6. How the Common Pool Resources (Land, water, forests) utilized by the natives and are there any legislation supporting or resisting the usage?
a. There was no law recognizing the rights of the natives over the land, forest or water sources.
b. But after the enactment of the Forest Rights Act 2006, their rights are being recognized by the government
c. This act provides for the individual as well as community rights of the tribals over the land they have been cultivating in the forest as well as forest produce and many other forest resources, subject to the condition of sustainable use.
d. There are so many claims before the FRC (Forest rights committee), SDLC (subdivisional level committee) and DLC (District level committee) to consider and settle their rights and issue the "Letter of Right" to them.
e. Even some of the tirbals who were in legal battle with the forest department have been given the rights which they deserved.
7. measures taken by the government prohibiting encroachment on natural resources such as water courses, forests, mineral wealth containing land, hills etc.?
a. As far as the water course in agricultural land is concerned, there is a Bombay Riparian Right act which recognizes the rights of the riparians over the water passing nearby their fields. And as far as the water course in the forest land is concerned, the forest rights act provides for it. Anybody who is adversely affected in enjoyment of right to water can bring it to the notice of revenue authorities or the court and get his grievance redressed.
b. The encroachment on forest and forest produce were controlled by the Indian Forest act and wildlife preservation act. But since the forest rights act has been enacted, the previous encroachments have to be regularized and there is incentive for more encroachment on forest land in anticipation of regularization. There should be some penalty in the Forest rights act for such mischievous fellows who want to grab more and more forest lands. The forest officials are also more averse to the idea of penalizing the encroachers because sooner or later the government starts regularizing the encroachments and the fine slips issued by the forest department is used against the forest department to show that particular person was cultivating the forest land of such and such extent and finally it is regularized.
c. The encroachments on mineral wealth is controlled by the Indian mines and minerals act and Gujarat Minor Minerals rules. The D.M issues leases and permits for minor minerals and mining commissioner issues leases and permits for major minerals. But the leases or permits issued are not upto the need of the day and therefore there is always a theft of minerals and evasion of royalty. The lease holders also don't allow opening up of new leases near their lease and therefore there is always an artificial shortage in minerals and therefore the theft never stops.
8. How does the record of enjoyment of land by individuals, groups, institutions both Private and Public maintained by the Government? Mehods? Specify the forms, records in use
a. Records of rights in Gujarat are maintained in the formats known as form no 6, 7/12, and 8A. (the number refers to the number ascribed to the formats in the Manual of Revenue Accounts as prescribed by Anderson).
b. The landholder has a duty to inform the government about any transaction of land he might enter into.
c. As and when any land holder informs the e-dhara Deputy mamlatdar (the officer in charge of the computerized land records at taluk level), deputy mamlatdar issues notices to concerned interested parties to invite any objections which might exist in the entry
d. If no objections are received and there is no violation of any law for the time being in force, the entry is certified and the change in the land record is made absolute by competent authority.
e. If objections are received, Mamlatdar hears the case and decides the dispute on merit and by speaking order disposes the entry as either certified or rejected, and the land records are changed accordingly.
9. How are the land records maintained in the state? What are the records? Registers maintained for village land administration? How entries are made? Name them and write a short not on the formats used.
a. The land records in the state has been computerized. The record of rights are computerized to the major extent and Khatauni (known as 7/12 and 8A in Gujarat) is available from computerized print
b. The following are the records to be maintained at the village level for revenue administration
i. Form 1 - records information regarding the area, class of soil, details of cultivable, noncultivable land and assessment thereof (agricultural land)
ii. Form 1A - records information regarding the forest land (maintained in villages where more than 5 survey numbers are declared as forest)
iii. Form 2 - same as form 1 but for non agricultural land
iv. Form 3 - Inami land register (details of Inami lands - this is obsolete as Inams have been abolished
v. Form 4 - the book of miscellaneous income - this is the book in which all the unpredicted incomes such as fine or the revenue generated from leasing out of government land is recorded
vi. Form 5 - the register of final revenue accouts - this register has the details of all the land revenue to be collected from village holderwise and the details of various kinds of land types.
vii. Form 6 - Record of rights - in this register all the mutation entries are made. The entries are given a unique number and this number is written in the 7/12 for reference if the entry is certified. Earlier the entries were made by talatis, but now the entries are made in computer. The entries after 2005 are computerized.
viii. Form 7/12 is a joint form which has two parts - form 7- this is a very important document which the farmer needs for all kinds of transaction including taking loan from bank. In this form the details of field, its tenure, the name of the holders, the area of the field, its assessment, the reference to the entries made in village form 6 with respect to this particular survey number (from which you can trace the entries in the form 6). This data is fully computerized. (it shows details of the holders of a particular survey number)
ix. Form 8A - this is the Khata register - it gives details of all the survey number held in name of a khata (it shows all the survey number in which the holder has a title). In deciding the total land revenue to be taken from a Khatedar, the total revenue claim of the khatedar as per the form 8A is calculated.
x. Form 8B - form of the revenue to be recovered from the khatedars
xi. Form 8C - register of education cess
xii. Form 9 - the cashbook register
xiii. Form 10 - the receipt of acknowledgement of land revenue
xiv. Form 11 - the calculation of the revenue claim from individual Khatedar
xv. Form 12 - it shows the cropping pattern and the person who is having physical occupation of the land at the time of inspection. After computerization the inspection has been stopped and the form is not updated as per the field reality.
xvi. Form 13 to 18 are not related to the land revenue
c. The form no 6.7/12 and 8A are directly related to record of rights.
d. Form no 1/2/3 are under the control of the Settlement commissioner and district inspector of land records. As and when there is a change in the area of a survey number, the change is measured and entered in the village form 1/2/3 as per the report of the survey department. They are also being computerized. Once they are computerized, it will be linked to the records of rights. (e.g. when 1 acre of survey number 124 is acquired for canal, it will be surveyed by survey department and the department will give the order to change the area of original survey number to be decreased by one acre, its assessment will also be decreased accordingly. And the same 1 acre will be entered in the revenue records as survey number 124/1and transferred in name of the irrigation department. Currently this is done as and when the order of the change (kami - jasti patrak ) is received by patvari or mamlatdar. But once both systems are fully connected, as soon as the survey department gives the thumb impression all the entries will be made in respective record of rights also without any human interference.
10. not applicable
11. how do the landed properties get transferred from one owner to another? How the change is incorporated in Government Records?
a. For properties transferred by order of revenue officials or court and descent, there is no need to get a registered document made.
b. But for other properties, registered document is necessary.
c. The person who gets any interest in a piece of land by any means is under obligation to report the same to the revenue officials
d. When they apply for change, the entry is made without any scrutiny and notices are sent to the interested parties.
e. If no objections are received and the deal doesn’t violate any land related law, the entry is certified and changes are made in the records of right accordingly.
f. If objections are received, the parties are heard and the case disposed off on merits
12. What are the trends of Land Market? How land value is determined by the Government and Market? Is the value fixed by the Government coincides with Market value with which transactions occur?
a. The real estate is on the growth.
b. At the same time the pressure over the agricultural land is also increasing.
c. The prices of land is on the increase. Also because of Narmada canal, the land which was earlier barren and not of much value have also started fetching good remuneration
d. Land value determination by Government - the government usually takes the following factors into consideration while deciding the value of the land - the fertility of land, facility of irrigation, vicinity to the urban area, vicinity to the road, whether the land is agricultural or non agricultural, the land transactions in the nearby locality in last 5 years, opinion of revenue officials, valuation according to the town planner, the valuation according to the Jantri (basic valuation register made up by taking data of land prices on regular intervals) etc. the stamp duty has to be paid according to Jantri. there can be no registered document of transfer of land below Jantri price. The district level committee headed by the Collector decides the valuation of land.
e. The markets take into consideration the factors of demand and supply over and above the factors mentioned above.
f. The value decided by the government never corresponds to the market value. The main cause is that he registered documents are usually of lower value to evade stamp duty. And the government takes into account the figures of sale of last five years in the same locality therefore the valuation of government is always on a lower side.
13. Do the local bodies play a role in Land Administration?
a. The local bodies play a role in land administration
b. The non agricultural use permission is granted by the Taluka Panchayat in case of rural land <2 acres and for villages having population < 5000.
c. For >2 acres or villages with population > 5000, the District Panchayat gives N.A permission
d. The local authority also give letter of consent to start any non agricultural activity (after checking that the holder pays all the village panchayat or municipality dues)
14. How can 'Jamabandhis' make a positive impact on Land Administration?
a. There has been no resettlement or fresh survey and settlement in Gujarat after independence even though the settlement manual lays down that the survey and settlement should be carried out at interval of 30 years. Gujarat government has also waived agricultural land revenue.
b. Therefore I am not in a position to comment how the Jamabandhi would affect land administration
c. But theoretically jamabandhi establishes the records of rights of all the holders and therefore the disputes can be minimized.
d. As the boundaries of fields are set up freshly in survey operations, the boundary disputes may be settled amicably.
15. Description of the village (Nani Sarsan):
Santrampur is the block of which the study village is a part. This block is Scheduled area as well as one of the backward blocks. The study village (Nani Sarsan) is situated west of the Block headquarter of Santrampur. The history of the village is very interesting. The priest of the temple in the village held whole of the land of this village at the time of Santrampur princely state. This land tenure is known in Gujarat as "DEVASTHAN INAMI TENURE". Under this tenure, the kings used to give priests or administrators of a temple whole right to collect land revenue from the tenants and didn't take any revenue from the priest or administrator (c.f. Jagirdari - kings used to take the revenue from Jagirdars). The land revenue accrued to the priest was for his maintenance and the maintenance of the temple expenditure. Around 1960s the "Gujarat Devasthan Inami Tenure Abolition Act" was implemented and the land was given to the tiller.
16. the methodology of the field study:
a. the data was obtained from record of rights for the land declared surplus and distributed
b. the whole village was Devasthan Inami. Therefore all the landholders of village who were interviewed in the household schedule were also asked about the effect of the land reforms. But majority of them didn't know that the land has been given as a measure of land reforms because not many of the elderly were available.
17. analysis of data obtained from the villages on each of the items of land reforms, e.g. land ceiling, Benami landholder, tenancy, distribution of Government land and status of Land records and Tribal situation
a. ceiling land redistribution of land
i. land covered under the Devasthan inami tenure abolition
1. land initially declared surplus - 231.27 ha.
2. land finally declared surplus - 231.27 ha
3. land released - 231.27 ha
4. land pending under litigation - 0 ha
ii. group status of landowners covered under the law
Number of beneficiaries Area in hectare
SC 9 15.68
ST 7 19.85
OBC 7 13.81
Other castes 59 181.93
iii. land ceiling and distribution
1. land declared surplus -231.27
2. land taken possession by the Government -231.27
3. land distributed - 231.27
4. land under cultivation - 231.27
5. no. of beneficiaries who got possession of land - 82
iv. Classification of beneficiaries who got possession of land (Area in ha.)
Number of beneficiaries Area
SC 9 21.30
ST 7 20.49
OBC 7 13.81
Others 59 181.93
The change in the land holding of SC and ST is because of another inam abolition - service inam under which the land was given to the Patel of the village revenue free. When the abolition act came into existence, the tillers got the land
v. Land area under litigation - nil
18. recommendations: legal and administrative measures for implementation
a. The survey department has less staff, and the land transactions are on the increase. Therefore the changes in the records of right get delayed because of delay in the survey and final Kami Jasti Patrak. There should be more surveyors maybe on contractual basis.
b. The s.73 AA of Bombay land revenue code has to be amended as far as it pertains to tribal land which are situated nearer to the towns or cities so that they can sell the land without hassle
c. The new tenure lands should be converted to the old tenure land. These lands were given to the farmers for self tilling. But after passage of 2 or 3 generation, it is not fair on part of state governments to levy premium if such land is to be sold to somebody. It should be without restriction
d. The non agricultural use permission is with the Taluka Panchayat and District Panchayat for rural lands. These should be restored back to Collectors. Nowadays the rural lands near the cities or towns are as good as urban lands. And there are too many extraneous considerations going on in local bodies. It is not fit to give them such a responsibility.
e. There should be fresh survey and settlement - the survey and settlement is done according to the chain and cross-staff method of land survey. Now the value of land is on the increase therefore the land measurements have to be perfect. In fact resurvey operations are on in the Jamnagar district of Gujarat with use of Differential GPS system and Electronic Total Station survey equipments so that the measurements are perfect.
19. complete bibliography
a. Anderson's Manual of Revenue Accounts
b. Gordon's Survey and Settlement manual
c. The records of rights held by Talati
d. The entries of record of right by which the land were transferred from the name of the administrator of the temple to the tillers.
e. Data filled in the village schedule.
f. Computerized formats of records of rights
Showing posts with label revenue. Show all posts
Showing posts with label revenue. Show all posts
Thursday, June 24, 2010
Disappearing Common Plots: an urban management issue
Urban Management Issue:
Disappearing Common Plots
Dr. DHAVAL PATEL
A-41, PHASE II 2008 BATCH
Index
| Chapter number | Subject | Page number |
| 1 | Introduction | 3 |
| 2 | Problem | 4 |
| 3 | Origin of the problem | 5 |
| 4 | Modus operandi | 16 |
| 5 | Manifestation | 20 |
| 6 | Solutions | 22 |
CHAPTER 1
Introduction:
I was posted in Panchmahals district of Gujarat for my district training. During my district training my collector gave me an enquiry into a complaint regarding the illegal construction and sale of the illegal building which was constructed in the common plot area. While investigating the case I came to know about this problem which is so rampant in most of the cities.
By “Disappearing common plots” I intend three things: (1)Sale of the common plot, (2) illegal construction over the common plot or (3) retaining of the common plot with the promoter while at the same time taking consideration from the society members for the common resources.
The problem is very rampant in my district in all 6 municipalities. The problem seems to be so rampant that people have a kind of “It’s okay” or “why only punish me - Everybody is doing this” kind of approach about this problem. Therefore I would like to elaborate on this issue and its importance in developing cities over a long run. As compared to other issues of the urban scenario where the blame is usually transferred to the local body or the officers of local body, this is an area in which the revenue department and the Collectorate is also equally involved along with the Town planning department. So, it is of utmost direct relevance to all of us who are going for the field posting in the near future.
CHAPTER 2
The Problem:
When we see all around us in any urban area, we see a jungle of cement concrete. There is not a speck of green to be seen. According to the Town Planning scheme and Development and Control rules, the builders / developers are supposed to provide roughly 50 to 55% of the total residential area as Common Plot or roads (Non Built Up area). But practically speaking only 20 - 25% land is there for common plots or roads. This results in congested surrounding. Also there is a scarcity of parking lot. There is no recreational place for children. And the environmental problem is the biggest of all. If all the societies in urban areas start stealing 30% of open space, soon there is great amount of felling of trees and less space to grow new trees. I have come across this problem in my district because of an application pleading to vacate some of the illegal constructions in a society where the developer had not left even an inch of common plot. He had sold off practically every inch of the land available except roads.
CHAPTER 3
How has the problem come about:
A. The administrative problem:
1. Multiplicity of the agencies involved in Urban Management
The authorities involved in giving the permission of using a premises as a non agricultural activity are as follows – district collectorate, Dy. Town planner, the Municipality and the City Survey Superintendent. Let’s understand the procedure which is followed by the promoters or the builders.
2. Maps are passed by Town Planning Department.
1. First of all the builder gets a map of the proposed site made by an authorized architect and submits it to the town planning department.
2. Then the Dy. Town planner passes the map keeping in view the provisions of parking space, floor space index, the mandatory margins of land on all the sides of the proposed building, the norms of the construction specification, the drainage and internal connectivity, the continuity of road with the adjacent piece of land in T.P scheme so that the right of way is not obliterated and so on an so forth.
3. There is usually a G.D.C.R. which specifies the General Development Control Rules and which has the technical specificiies which has been prescribed by the competent authority.
4. The Dy. Town Planner has to pass the maps produced keeping in the mind the provisions of Development Plan, Town Planning Scheme and G.D.C.R.
3. Non Agricultural permission is given by the Collector
1. The applicant gives application to the Collector in a prescribed format.
2. The Collector seeks the information from various departments like R&B / National highways for violation of Ribbon development rules / line control rules, Health department for the health related issues, From the tehsildar regarding any land revenue due / premium on new tenure land and the law and order situation, from the local body regarding the No objection certificate and so on and so forth.
3. The departments are to give their own comments withing timelimit prescribed.
4. Time limit prescribed by the Bombay Land Revenue Code is 90 days for this purpose.
5. If within 90 days the consent or disconsent is not conveyed to the applicant, the non agricultural permission is deemed to be given at the end of 90 days.
6. Here this provision has been entered to protect the citizen’s right to get his work done in a reasonable time period.
7. but the provisions are misused by our own staff.
8. The files which have something fishy are put for signature on 85-89th day, so as you may not dig deep.
9. Even the responses from the line departments are sometimes delayed knowingly.
10. Thus the Collector who is busy with so many responsibilities somehow clears or denies the file.
11. The non agricultural permission granted by the Collector specifies some conditions on which this condition is granted. Most notable of these are reproduced below
§ For every 100 sq. mtr of land converted to N.A., 2 trees will be raised
§ The construction has to be according to the map passed by the Dy. Town Planner.
§ In case of any change in construction, the map has to be revised by the Dy. Town Planner and the Non Agricultural permission also has to be revised from the Collectorate.
§ There will be one water harvesting system for 1 unit of building.
§ The occupant will get his land measured by the District Inspector of land records (in rural areas) or the City Survey Superintendent (in urban areas) within 1 month of the permission, failing which the permission is voidable.
12. The Collector passes such kind of orders but there is not enough manpower to check that the work is carried out accordingly or not
4. Building use permission is given by the Municipality
1. The developer has to get consent from the Municipality (with its incidental cuts along) three times before he can actually sell the land
2. The first instance is the time when he files a non agricultural use permission application in the Collectorate. At that time they have to attach a no objection certificate from the municipality regarding the conversion of the said land from agricultural to non agricultural purpose
3. The second instance is after he has got the N.A. permission. The construction of the buildings can start only after the “Construction Permission” from the Municipality.
4. The third instance is after the building is over. At that time they have to get a “Completion certificate” from the Municipalities stating that the construction has been completed following the conditions of the order and according to the plan passed by the competent authorities.
5. Usual practice in the Municipalities is that there will be one “Construction Committee” which will meet periodically and dispose of all the applications in the above mentioned three cases. In some Municipalities, the General Body itself presides over this proceedings instead of Construction Committee.
6. According to the Bombay Municipalities act, the Collector has the power to review and quash any of the resolution of the Municipalities if found contrary to law. So all the municipalities have to send the copy of the resolution passed by them to the Collector for scrutiny.
7. Therefore the Municipalities have found a smart way out. They pass a resolution that the power to sanction these things is given to the President. Thereafter the President himself passes all such application without passing a resolution, by simply passing an order on file noting. Thus any hanky panky case never comes to the notice of the Collector. And the Collector can not be expected to check each and every file of the Municipalities in his jurisdiction.
8. Sometimes the Municipalities pass a resolution that the plan revision can be done by the Municipality or the president. It is actually wrong. The only authorized authority to revise the passed plans is the Collectorate and the Dy. Town Planner.
9. In such cases the plan revision is passed by the president of the municipality. Even the chief officer of the municipality is not informed about this.
10. Such kind of illegal plan revision give the shelter to the offender in legal suit.
5. City Survey Superintendent:
1. The City Survey Superintendent has to get the land surveyed at the cost of the applicant within one month of passing or Non Agricultural use permission order by the Collector.
2. It is very important to do so, so that there are no border disputes later on.
3. It is all the more important to get the land surveyed if the land is being sold as plots.
4. The City Survey number has to be partitioned and all the plots have to be recorded as a separate subdivision of the original City Survey number.
6. There is not much correspondence between the abovementioned authorities once the map is passed and the nonagricultural permission is given
1. It is very necessary that these institutes remain in constant touch with one another throughout the execution of the building rather than ending the relations till passing of the N.A. permission.
2. The execution of the order on the field is the most important. The Collectorate is grossly overlooking this issue. Sometimes even the copies of the N.A. order passed is never given to Tehsildar or Talati (Patwari) who are cutting edge functionaries of Revenue Department and who are to supervise that the order is executed properly or not.
7. There is a rapid conversion of land from agricultural use to non agricultural especially at the periphery of cities
1. that the authorities are usually not able to give due attention to individual schemes - how they are implemented.
2. There has to be a separate system to look into the construction of new building coming in the land which have been given N.A. permission.
3. The revenue administration is too rural oriented. It has to change its attitude towards the problems of urban areas.
8. The maps passed are in the exclusive control of the Authorities sanctioning it and the developer.
1. The buyer never comes to know about it ever.
2. It is the buyer who is at loss, if he doesn’t get the proper land for which he paid the money.
3. Sometimes it so happens that the buyer is genuinely kept in dark by the developer, and given the common plot.
4. These plans have to be in public domain so that everybody can see it and check whether the piece of land which has been allotted to him is legal or illegal.
5. Nowadays all the maps are prepared using computerized systems. If the person applying for the N.A. permission is asked to give a soft copy of the plan along with the submission, it can be easily uploaded on the website of the collectorate once the plan is passed.
6. Thus we can bring greater transparency in the system.
9. Lack of functional societies:
1. Usually in the urban setting the residential buildings are constructed in the name of a housing society registered under the Societies registration act.
2. It is the society’s business to see that the common resources like roads, parks, common plots, parking space etc. are utilized giving maximum benefit to its share holders.
3. Nowadays the societies are non functional
4. sometimes the societies are handed over the possession of the society land without common plots. Thus even the society doesn’t know that something of this kind even exists on paper.
5. The problem is more acute where there is no formation of the societies. E.g. in the current day urban residential scenario, the developer usually sells open plots to the buyer and the buyer himself develops the property. Let us say there is a piece of land of 1000 sq. meters. According to the GDCR he has to keep 400 sq. meters as open space. What the developer would do is that he would keep only 100 sq. meters of roads and sell off 9 plots of 100 sq. meters of plots to the buyers. In this case the buyer is paying for only 100 sq. meters. Therefore he is not even aware that the lay out plan has something like common plot of 300 sq. meters which has been sold off to him.
B. Judicial problem
1. There is no clear demarcation between what is revenue jurisdiction and what is a civil jurisdiction.
2. Therefore taking advantage of this legal ambiguity, the miscreants file a civil suit in matters which are exclusively in the purview of the revenue authorities or the Municipalities.
3. Even the civil courts pass the orders which are not in their jurisdiction.
4. There are a lot of cases in which the disputes have been decided by the local courts and appeal has been preferred all the way upto the high court. Once again there is some change in the party and a minor variation in the pleading and the case is instituted as a fresh civil suit in lower court.
5. When it comes to demolition of these illegal structures, the judiciary is the biggest hurdle.
6. There has been an increasing tendency to grant stay order even if the party is not even specifying the exact description or the way by which he had acquired a right in the said property.
7. There has been writ of Mandamus in the high court asking to direct the municipality to give the builder “no objection certificate”.
8. Even if the courts may not pass any adverse order or stay order in such kind of cases, there is a hurdle in the mind of the functionaries that anything over which there is a judicial case is a holy cow and nobody wants to take risk.
9. Because of frequent Contempt petitions, the civil servants have started to take the court cases as something which should not be meddled with.
10. I have also seen a very horrifying decree of a local civil court, which had not been surprisingly challenged. In that case, there was a dispute between the buyer and the land developer that the developer had started construction in the common plot area and therefore the petitioner had moved the court. The case was compromised. The decree was passed that there would be so and so facilities and easement rights for the petitioner and then the developer can build the building. Surprisingly the court forgot to take into account that there are other stakeholders who should have been heard. The Government has passed its plans. Now only because there is a consent between two parties, the decree can not be passed allowing the developer to build a building in the place where there is supposed to be a common plot according to Government records. Even then such horrific orders are passed and this order became a headache for me.
11. As there are so many agencies involved in this, the unscrupulous dealer has some or the other document to prove some of his right in the illegal property. E.g. there may be revised plan by the Municipality, No objection certificate by the municipality or the building use permission signed by Municipality President or some vague City survey map. When these things are placed before the court the courts are more than happy to give the stay order and thrash all the government officials. Thus the Government pays the price of being a concept rather than a real individual.
12. The public prosecutor is also not that greatly involved in defending the case of the government.
C. Record of right issue
1. There are two authorities involved in the maintenance of record of right in the urban area and the peripheral rural area.
a. In urban area proper, it is the city survey superintendent who has to maintain the records of right in form of “Property Card”. In urban area the survey work has also been entrusted to the same officer
b. In the peripheral rural area it is the duty of Talati (Patwari) to get the mutation entry done including the entry of the N.A. permission and thereafter entry of all the subsequent buyer of the land. Whereas in the case of rural lands, the survey and measurement is done by the District Inspector of Land Records.
2. We will take the City survey area first and understand the problems faced in this.
i. In the City survey area the property card system is followed.
ii. In which usually the name of the housing society is entered as the occupant of the land and all the share holders’ names are entered in the column of the other rights.
iii. E.g. one person has 1000 sq. meter of land and he has to keep 300 sq. meters as common plot and 100 sq meter as roads. Whenever the land is sold off to anybody, according to record of rights his name has to come into his name.
iv. But the survey manual lays down that the property card can not be bifurcated without the proper measurement and survey of the land.
v. Now the unscrupulous builder never gets the land measured by the City Survey Superintendent.
vi. He keeps on adding the name of the buyers in the “other rights” column instead of into the “occupant’s column”.
vii. Here if the builder gets the land measured and property card divided, the common plot area would go to the Society’s name and he can not meddle with this.
viii. If he keeps the land in his name and goes on selling the land of 100 sq. meters to let’s say 9 people, there is nothing wrong on the face of revenue record. Because out of 1000 sq. meter he has sold off only 900 sq. meters (the rest 100 sq. meters as roads – thus embezzling the whole common plot of 300 sq. meter).
ix. Here the City survey superintendent has an incentive not to measure rather than to measure. He doesn’t have to work and still may get the cut for not measuring.
x. The standard answer we get when the Collector or the Assistant Collector asks the City Survey Superintendent to measure a particular piece of land is “according to the rules the owner of the land has to deposit some amount of money as the survey fee and then only survey can be done. The private party has not paid the fee and therefore we cannot measure his land”.
xi. Also there is no measurement of land after division. Thus on map it is still a single piece of land. Now when any subplotting is done, the subplots can’t be measured because the original plots have not been measured.
xii. Thus the maps with the City survey superintendent are not updated and whenever any boundary dispute arises between subplots, there is practically no way to settle the dispute based on map records.
xiii. After some time, the situation becomes uncontrollable.
xiv. One more problem with Survey is that according to the Survey Manual, the survey has to be carried according to the physical possession on the land (whether it is legal or illegal), and not according to the plan passed by the Collectorate.
xv. Now even in the cases where the City survey superintendent has measured the land after the N.A. permission is granted, he will measure the plots according to the possession. Even if the 300 sq. meters of common plot according to the passed plans is sold off, he will survey it and give the split property card to all 9 buyers of 100 sq. meters. (this is a more legalized way of doing the stealing)
xvi. But these are lame excuse on the part of City survey superintendent, because as a collector we can collect the fees for survey along with the premium paid for the N.A. use. There is practically no problem in asking him to deposit the survey fees before issuing the final N.A. order.
3. In rural areas, the situation is the same or even more worse. In urban areas you have to only one office (that is of the City survey superintendent) to get land surveyed and the mutation entry to be made.
a. Whereas in the rural areas the works are divided. The mutation entry part is done by Talati (Patwari) and the survey is done by the District inspector of land records.
b. Here also the problem faced is more or less like the urban counterpart.
c. The extra problem faced is that in the rural record of rights, it is usually designed for only ground level land occupation.
d. There is no way in which you can show 1st or 2nd story flat in the record of right except noting it in the other rights (which is possible in property card method).
e. So it makes it more complicated to maintain the land records in the rural areas which are at the periphery of urban area.
CHAPTER 4
Modus Operandi of stealing common plots:
1. Whenever the non agricultural use is granted for a particular revenue survey number, let's say r.s. no 123, the developer gets it fragmented in 123/1 having the built up area and 123/2 having the common plot in revenue records when implementing the non agricultural permission of the Collector. After the lapse of some time when everybody has forgotten that 123/2 is a common plot of 123/1 (123/2 is reflected as agricultural land in revenue records and 123/1 is shown as non agricultural use), they will propose a new society and ask for non agricultural permission in 123/2 afresh. There is no data management system existing in the current process which will tell the authorities that 123/2 is a Common Plot and non agricultural permission should not be granted to it.
123/2/1 Residential Part 123/1 residentital part
123/2 Common Plot 123/2/2 Common Plot
2. The plans passed by the competent authorities are never shown to the buyer. He is only shown the information brochure prepared in a glossy paper. The information brochure of the developer already shows building at the sites where the common plot was passed by the authorities. The information brochures are not a part of the contract between the buyer and the seller. Therefore the buyer should not be trusting such brochures but as we all know only thing the buyer sees before investing is the brochure. The next problem is that we never measure area of Common Plot before buying the house. Therefore even though the plan may say we have a Common Plot of 1000 sq. meters, physically it maybe of 500 sq. meters and the remaining 500 sq. meters are subdued with houses (of course illegally)
3. Revised Plan strategy:
§ Many developers resort to a still sharper strategy for cheating
§ They get two plans passed from the authorities. One the Original Plan and the second the Revised Plan as shown below
§ 
Original Plan Revised plan
§ For the buyers of the unshaded area of original plan, the developer shows Original Plan. And for the buyers for the shaded area of original plan, the developer shows Revised Plan.
§ Thus the common plots according to both the original plan and revised plans are sold out and none remains on ground.
§ Once the plan is revised, the old one gets quashed. But the developers don’t inform the buyers about the alteration in the plans.
5. The most illegal way:
§ Encroachment in the Common Plot-
§ Usually the builder himself makes shopping centre in the Common Plot (fully illegal), sell it to the buyers and goes away. The consequences are for the buyers to face.
§ The Builder or Developer is never booked for any offence because there is nothing on paper which can prove his involvement whatsoever with the scheme. (The land is held in name of the farmer from whom the land was purchased. The application for non agricultural permission, map passing and building use permission is asked in the name of the farmer only and the registered sale deeds are also executed between the farmer and the buyer. There is not a letter in black and white which shows that the builder or the contractor had anything to do with the scheme).
§ This is done to evade the responsibility and also for the evasion of Stamp Duty. There is transaction of land directly from the farmer to the buyer on paper, therefore stamp duty applies only once. In reality the farmer sells it to the builder and the builder sells it to the buyer. Thus the stamp duty has to be paid twice.
6. Encroachments on internal roads:
§ We all have one question in common - why the road in my society is such a small one.
§ But this is not due to lack of will on part of the Government or the Municipalities, it is mainly due to lack of knowledge on part of the buyers.
§ When originally passed the road maybe of
§ Gradually there is an increase in the number of vehicles / capita. In this case the less width of the road becomes extremely crucial.
§ All it takes is the collective will of all concerned to take back their verandah willingly
CHAPTER 5
How has the problem manifested itself:
1. Congested residential areas, with no space for recreation for the persons living there
2. Cheating of the buyers who pay for the open space, but never get to use that common space. And at the same time the builder sells it to somebody else and mints money. Therefore there is a sense of being cheated in the mind of the persons buying the property. There come a very significant number of such cases in the grievance redressal meetings.
3. Usually these illegal constructions are made in the places in the area which is the natural flow of water. Once you have buildings in the water way, there is not proper drainage and the buildings get flooded at the time of monsoon.
4. The buildings being illegal, there is sometimes some problem in getting the electricity connection, water and sewerage connection for such kind of buildings and the quality of the life of the persons buying such property goes down for no fault of his.
5. The land records and records of right problem. It is not possible for the illegal houses to get proper recognition of their rights in the revenue records and therefore there is a lot of hassles when he wants to sell the property.
6. A lot of revenue cases and civil suits, leading to draining of money and no fruitful outcome.
7. As a government authority I would also like to bring out the problems which the government has to face because of this menace. There are a lot of litigation against the Collector’s office, City Survey Superintendent and the Municipalities regarding these disputes. Only because of negligence on our part to ensure the execution of our order, the government has to bear the expenditure even in case of private party suits.
8. The most painful outcome is the plight of the bona fide purchaser, who might have put all his life’s money in his dream house and one fine morning we go to his house and say that it is illegal and raze it down.
9. There are not enough parking space for the vehicles in the common plot. This is a very serious issue which we all are facing now in view of the increase in the number of the vehicles in current times.
10. The G.D.C.R.s are violated and therefore the development plan for the city cannot be materialized. Therefore, the whole purpose of planned development of a city is defeated.
CHAPTER 6
Solutions:
1. The maps passed in a city should not be in parcels of a survey number, but should be in a complete mosaic, so that the surroundings can be checked beforehand before granting non agricultural permission
2. Computerization of maps passed for N.A use. Now most of the maps are prepared in Autocad, therefore there is no problem in getting the soft copy from the architect and storing it in the government records in soft copy. The computerization helps to process and retrieve the data more effectively than manual data.
3. The plans passed by the authorities should be superimposed on the satellite imageries obtained from Google Earth or Wikimapia or ISRO imageries while the construction work is going on. If any substantial deviation from the plan is noticed, the non agricultural permission should be immediately withdrawn.
4. By doing so, we will be saving the bona fide purchasers from the frauds of the developers. Once the buildings are sold, the punishment shifts from the builders to the purchasers who might have paid the developers market price and still face the music, and the actual offenders are not brought to the books.
5. Make a public display of the Non agricultural maps passed by the competent authorities. The maps can be pasted on the website of the Collectorate or Town planner. The fact that the maps are available online should be made public by posters and press notes. Bringing the maps in public domain brings out more transparency than surprise checks.
6. To avoid the mischief as mentioned in the modus operandi 1 and 3, the current strategy employed by my Collector is that he has added one condition in the N.A. permission that the Common Plot should be resigned in favour of the State Government and the Internal Roads should be resigned in favour of Local Authority (municipality or Village Panchayat). Suppose the developer wants to convert the revenue survey number
a. This has helped a great way to stop cheating as mentioned in modus operandi 1 and 3.
b. And the better outcome is that there is a lot of open space available in the name of Government and Municipality, therefore they can build gardens / walkways or other recreational facilities as and when required. Earlier the municipality had no open plots. Now the Godhra Municipality has around 4 to 5 hactares of open plots in its name.
c. The other benefit of this is that the encroachments no longer remain private encroachments - they become encroachment on Government property, therefore easier to remove. Internal encroachments otherwise would have been a civil dispute between the society and encroacher (not between the government and encroacher)
d. but the flip side of this intervention is that we are foregoing land revenue on the land which is resigned in the name of the state government and the local bodies which otherwise would have been paid by the members of society. But now it is a time to rethink our strategy whether we want to stick to the old logic of collecting meager 100 rs / 200 rs more strictly or whether we want our cities to be having open spaces and breathing space.
e. It is highly likely that an audit objection will be raised when they come to know the clause inserted in the N.A. permission leading to loss to the state government. Let’s hope for the better.
7. Regarding the issue of payment of fees for survey, it can be collected along with the premium for the non agricultural use, so that there is no excuse from the City survey superintendent or District Inspector of Land Records regarding non survey on basis of non payment of fees. In this case there is a win win situation for both the builder and the surveying agency in not measuring or surveying. Therefore this has to be enforced strictly.
Thus these are the solutions which I think can help us come over the crisis of missing Common Plots. Let's hope for greener cities.
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