Bangladesh has the lowest land-man ratio in the world, which was estimated by the FAO in 2013 to be 0.06 hectares per person. Land scarcity relative to demand is showing up in rising land prices in most parts of the country. In view of growing pressure of population on land as well as the Islamic law of inheritance, the demand for land and disputes over title will increase further.
Land is a critical economic asset in any economy. Land registration and tilling are the heated issues across developing countries as these help reduce poverty and ensure better growth and development. Inadequate and improper land records increase difficulties in securing land tenure and transfer and hindering investment in Bangladesh. The need for a timely, accurate, safe, simple, secure, and universally accessible system of registering and recording land transactions is a prerequisite for local and overseas investment in Bangladesh.
The present land records system dates back to 1850s.The system of record-keeping was initiated by the British rulers only to maintain record of land tax payers. At that time, tax on agricultural land, an important source of government revenues, required identification of those responsible for paying it. The records were updated to reflect changes of ownership for the sake of revenue collection by the Board of Revenue. Over time, these records had become the principal source or documentation of titles of agricultural lands. These records still constitute the principal documentation of title on land, even though there are problems in accuracy, completeness, and currency of these records.
Unfortunately, the government does not issue a really valid certificate with guarantee that the person mentioned in the record of rights is the true owner. The Transfer of Property Act, 1882 also does not envision that the state will guarantee title to property. The Property Act Sec. 53E paves the way for the government to avoid responsibility. In case of transfer, every instrument of sale, gift, mortgage and declaration of 'heba' of any immoveable property shall be supported by an affidavit by the seller affirming that s/he has lawful title to the property. Section108 has specified the rights and responsibilities of buyers and sellers but evaded the responsibility of the registration authority.
A Registrar, registering a document, records a transaction but does not guarantee that the transaction is valid. The registrar by entering the transaction in the official records only confirms the validity and accuracy of the document but the office does not thereby give any assurance of title to the transferor of the property. The Registration Act envisages registration of documents and not registration of titles. The Registrar is neither empowered nor is required to question the transaction. All the disputes are 'settled' in the court.
The entries in the sales registers for transactions are not viewed as conclusive evidence although these may be viewed as prima facie evidence of ownership. As per law, the courts in Bangladesh maintain that registered land documents or receipts of property tax in the name of the person do not ensure title but only serve as evidence to a title which is taken into consideration while scrutinising the bona fide of a person claiming to have a 'legal' title. Therefore, it is not the concern of the Registrar to establish the validity of a document.
During the registration of sale, the registration office does not go into the question of title, the legality of transactions and the validity of the document. The entries in the records-of-rights can be challenged in courts since there is no guarantee of title envisaged in the law. In other words, if the records were to be proved wrong later, the state could not be taken to court and no suit can be filed against it.
It is Interesting that the policy of land management of the government claims to perform three core functions: (i) record keeping, (ii) registration, and (iii) settlement. The core functions of land administration are maintained by various departments of two ministries the Ministry of Land (MoL) and the Ministry of Law, Justice and Parliamentary Affairs (MLJP). The MoL discharges most of the land-related activities including survey, collection of land development tax, arbitration process while the MLJP mainly records land mutation and transfers. These responsible ministries and their agencies involved for land management and administration work independently with little coordination among them.
The then British law and practice were framed to create a corrupt but loyal administration with a higher social status, so that they helped the rulers, in their own class interest to stay in control of the country. The process of records and settlement were in favour of the powerful and people close to the administration. Moreover, each and every dispute goes to court and takes usually decades to settle with huge loss of both the parties in dispute. The Torrens Act system for land records in some countries has given limited authority to the courts over the records of titles since records are maintained with administrative procedure.
The courts in Bangladesh are overburdened with cases most of which are related to land disputes. Most of the criminal cases also result from land disputes. The courts have long case-log and this burden may be reduced in case of land disputes with proper and correct land records. The whole process of record keeping is manual, laborious and time-consuming. Conventional methods of land survey, preparation and upgradation of land records and maintenance of all related data are full of mistakes due to corrupt practices of the related offices.
Many other countries have already updated land records and got benefits of this. The Torrens System has been adopted in Australia and over 50 countries, including Kenya, Uganda, Tunis, and Syria. Experiences in several Australian states show that the central government has created a database of all pieces of lands and their respective owners. The process of correctness of records is very prompt and user-friendly for the land owners. It also helps to detect many more legitimate tax-payers.
As per the Land Transfer Act, the registered holder is regarded as the sole owner. The difference of the English system from the Torrens System, which is much simpler, is that titles can be corrected in the event of mistake or fraud.
The system in the USA is more dynamic. Each of the 3,600 counties has its own system for recording title transaction. Unlike the Torrens and English systems, the evaluation of validity and quality of the title in the US system is the responsibility of owners using the data in government custody. These changes have made the US system similar to the Torrens and English systems with respect to the convenience it brings to buyers on quality of the title to land.
The government should take immediate steps to frame a national land use policy and digitalise land records and keep information open for all so that the real owners may take steps to correct mistakes or misinformation before a dispute arises. The government may prepare an inventory of khash land and land zoning and marking different zones for various purposes for economic use of scarce lands. It must ensure that the records are correct and documents of ownership of lands are issued to avoid litigation and harassment of citizens for the sake of peace in the society and smooth economic activities.
The writer is a legal economist.