The companion study of social exclusion and land administration in Orissa considers further aspects relating to encroachment on commons, particularly in relation to the land rights of tribal communities (Mearns and Sinha 1998). For example, Land alienation through indebtedness and the mortgaging of land has long been of concern in scheduled tribal areas, and persists in spite of legislation designed to prevent it. Given the weak bargaining power of tribal communities, the most promising policy options to mitigate some of the practical consequences of these forms of social exclusion concern public awareness-raising and access to information. Some NGOs in Orissa have been effective in pursuing public interest litigation in order to defend the land rights of tribal communities against various forms of encroachment by others.

# **RECORDS OF RIGHTS IN LAND**

The question of records of rights in land has been relatively neglected in contemporary literature on land reforms and agrarian relations in India<sup>29</sup> . Remarks are often made in passing that records of rights in land are inaccurate, out of date, and wilfully manipulated by large landlords with the connivance of rent-seekingpatwaris, but it is rarely regarded as a subject of policy concern in its own right. Successive Five-Year Plans have underlined the need for the updating of land records as mandated by legislation, but implementation has been woefully inadequate, not least because land administration is itself a non-plan activity and therefore receives little investment. Primary records of rights in land are maintained _by patwaris_ at village level, and are usually recorded in local languages and dialects using various and non-standard measures. The physical documents, including village maps, deteriorate over time through continuous handling, and become illegible owing to marginal notations following mutations, to the extent that these are recorded at all. Legislative requirements for regular land settlements and updating of land records are rarely met.

It is widely acknowledged that the costs involved in carrying out land transactions in India are enormous. Under the Transfer of Property Act 1882 a seller of land is obliged to produce documents of title but these are private documents, and are not guarantees of title certified by the state. The Indian Registration Act 1908 provides for the registration of deeds in the case of transfers of immovable property. However, such registration is voluntary rather than compulsory and the validity or otherwise of the documents to be registered is not the concern of the registering officer (Wadhwa 1989). As a result, any person wishing to purchase land is more than likely to incur substantial costs in obtaining notaried copies of documents, in land valuation and conveyancing fees (e.g. stamp duty), in associated transport costs, in bribes to patwaris and others, and in legal fees, either to investigate title in the property in advance of purchase or in litigation costs thereafter, since documentary evidence of title is so often defective or forged. It is by no means uncommon for a buyer to find that 'their' land has already been purchased by someone else, particularly in urban areas where information asymmetries between buyers and sellers are high. Court cases over land disputes frequently drag on for decades, and seriously over-burden the judicial system. Probably the bulk of all pending court cases concern land disputes, both in civil courts and in assault or public order cases<sup>30</sup> .

29 This is not true of literature based on historical research, however; see Smith (1996) in particular.

- 30 A similar situation is reported for Sri Lanka where, in addition, it is claimed that three quarters of all murder cases - in a country which suffers one of the highest murder rates in the world - result from land disputes (Lynn Holstein, BTO, November 6, 1997).

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