What is missing in the public discussion about the rajakaluves (storm water drains – SWDs) encroachments is the status of ownership of these lands. The sale deed is not a deed of title but only a deed of registration. A person can sell Vidhana Soudha to a gullible soul and the sub-registrar will register the sale deed if the correct stamp duty is paid.
It is not the duty of the sub-registrar to ascertain the ownership of the property being sold, according to the courts. So is the khata given by the BBMP which is only an account for property tax determined. Neither the sale deed nor the khata nor the master plan of land use become proof of ownership.
To ensure an accurate land-title system, the British government sent Sir Robert Richard Torrens in the 1850s to Australia who established the system of registration of title instead of the prevalent system of registration of deeds in England. Under the Torrens system, an inquiry is made into the ownership of the land or property being sold by giving due public notice and hearings and then the ownership is registered. Once such a register of title is prepared, it becomes proof of ownership and challengeable only if there was a fraud.
In Bengaluru, a great havoc is being caused by builders, officials of BBMP, BDA, Revenue Department, political leaders and many avaricious citizens themselves, in grabbing government land due to the high value of land. False entries in government records, creation of bogus records and disappearance of original records are common in the city where land value has gone up by 400 times in 40 years. It is not as if this degeneration cannot be rectified.
In the Greed and Connivance: Report of the Task Force for Recovery of Public Land and Its Protection (2011), the need for introducing Torrens system by having a detailed city survey in Bengaluru and other urban areas in Karnataka has been spelt out.
Such Urban Property Ownership Rights (UPOR) can be done without amending the Central Registration Act since it can be implemented under Chapter XII of the Karnataka Land Revenue Act and Rules. But till now, the UPOR project is not implemented. There are 22 lakh properties in BBMP area alone. The property owners willingly pay Rs 1,000 for a UPOR-Certificate conferring proof of ownership. This will earn over Rs 200 crore which will cover the cost of the project.
However, the government is not interested in implementing or even understanding the importance of such a project and is demolishing the properties built on the SWDs. It is noteworthy that huge commercial and IT complexes built inside the tank beds (to the extent of 1,200 acres in 937 tank beds) as verified in the Greed and Connivance Report of 2011, are left alone till this day while the small fish on rajakaluves are being targeted. One such example is the 6.5 acre encroachment by a leading real estate-politician which has come up in city’s C V Raman Nagar.
Much is said about the ‘outdated 1907 revenue maps.’ These maps are quite legal. All of today’s Bengaluru has evolved from revenue villages of yester years. The rajakaluves exist ever since the 1,000 lakes were constructed and connected with each other. The century-old and subsequent revenue maps only faithfully record the existence of these channels.
Even in 2007 when the then BMP’s jurisdiction expanded from 225 km2 to the present BBMP of 775 km2, it was done by adding 110 villages besides seven CMCs and one TMC. It is not just the village maps but a host of other documents such as akar bandh, tippani, grant registers etc, which are available with maps showing what is within each survey number which is the original survey unit.
No legitimacy
In these maps, even in private patta survey numbers, the location of kaalu daari (walking track), bandi daari (cart-track), nalla (streams), A-kharab (cultivable waste which can be sold to the landholder-pattedar), B-kharab (rocks, hillocks, gravel, small ponds etc, which belong to government and cannot be claimed by the landholder), are mapped in detail.
The sale deed registered by the sub-registrar only shows the four boundaries over the land or plot being sold and does not show the public nature and extent of each physical feature inside the land. The much publicised A khata and B khata are only enabling documents for collecting property tax and are not proof of ownership or title to land.
The time-honoured legal principles since the Roman empire are: ‘caveat emptore’ –―let the buyer beware; ‘nemo dat quod non habet’ –―no one gives what he does not have; ‘ignorantia juris non excusat’ – ignorance of law excuses no one; ‘ratio decidendi’ – the reason for the court decision is binding; and, ‘obiter dicta’ – the observation of the court in passing is not binding.
Therefore, however innocently the householder has in good faith obtained the NOCs and approvals of the BDA, BBMP etc, though given dishonestly by rogue-officers of these organisations, they unfortunately do not legitimise the resultant encroachments.
The only recourse for citizens is to sue the dishonest public officials, including elected representatives, for civil damages. Admittedly, this takes decades in our decadent judicial system which favours the deep-pocketed and not the middle class or poor property loser. It is amusing that the very political leaders who are behind the corrupt officials are now shedding crocodile tears.
It is time the public anger is directed against these corrupt officials and their political godfathers for civil and criminal liability. More importantly, the UPOR project must be implemented soon under the Torrens system so that the continuing agony of the citizens and the loss of rajakaluves, lakes and flooding can be halted. If this is not done, half of Bengaluru will have to be evacuated within 10 years.
(The writer is former Additional Chief Secretary, Government of Karnataka)
Published 16 August 2016, 18:33 IST