Property Rights and Interlocking Policy Constraints Urban Land

Markets: Reforming Mumbai’s Real Estate Raj

DRAFT

December 2005

This draft report is for discussion purposes. Please do not quote. It is part of World Bank
assistance to the State of Maharashtra to help prepare a Business Plan for the city of Mumbai. It
was prepared primarily by Alain Bertaud, Robert Buckley, and V.K. Phatak. It was prepared
under the supervision of Sonia Hammam and working closely with Sanjay Ubale, Secretary
Special Projects, State of Maharashtra. In the preparation we received significant assistance
from Bombay First, a local civic organization, and SPARC/The National Federation of Slum
dwellers, NGOs. Deepak Parekh of HDFC who is the Chairman of the Chief Minister’s Housing
Subcommittee, Charles Correa, Nasser Munjee particularly, Shirish Patel, Pujit Aggarwal, D.M.
Sukthankar, Billy Cobbett and Rakesh Mohan, all provided helpful suggestions and/or
comments. The Cities Alliance, DFID and USAID also assisted in the Report’s preparation. It
was expertly and patiently prepared by Francis Muraya.
 Table of Contents

Background......................................................................................................................................2
Bibliography..................................................................................................................................16

List of Figures

Figure 1: Mumbai’s Idle Central City Land....................................................................................4

Figure 2: The Effects of Topography of City Structure: Mumbai and Seoul..................................5
Figure 3: Mumbai Land Use and Infrastructure..............................................................................6
Figure 4: Spatial Structure and Connections between Land Masses in Three Cities......................7
Figure 5: Spatial Distribution of Maximum FSI..............................................................................8
Figure 6: Land use on the Eastern side of the trans-harbor bridge................................................14

List of Tables

Table 1A: Regulation of Housing Stock on the Island City............................................................9

Table 1B: Regulation of the Housing Stock in the Suburbs..........................................................10

0
Background. It is now widely recognized that the establishment of clearer, more transparent
and efficient land titling and registration offers potentially enormous benefits for the Indian
economy. There can be no disagreement with this view. The empirical evidence is strong and
extensive. However, as Deininger, Jin, and Nagarajan (2005) show is the case for rural India,
there are also a number of policy distortions that affect and constrain property markets in India’s
cities. The questions this paper examines are: first, what are the sorts of welfare costs implied by
some of these other urban land regulations;; and second, can we say anything about the
sequencing of titling improvements vis a vis other policy reforms in urban areas. In other words,
we address two questions: are reforms worth the candle? Reforms are almost never easy and so
it is important to determine whether they are worth the effort. And second, does it make sense to
undertake titling or the other reforms first?

We focus on the regulations that govern land use in India’s largest city, Mumbai. This
city is of interest because it is one of the largest cities in the world’s, as well as India’s largest
city, and thus its functioning has economy-wide implications. It is also of interest because,
unfortunately, it is also home to the world’s largest slum population. Its residents live in the
world’s most densely populated city on some of the most expensive real estate anywhere. And
finally, Mumbai is of interest because many of the policies adopted there have often been
subsequently replicated in other Indian cities. As a result, in an important sense, land use
reforms in Mumbai can be seen as the spatial equivalent of the liberalization and opening up of
the Indian economy.

To anticipate our results, we believe that the welfare improvements from both improved
land titling and other urban land policy reforms in Mumbai would indeed yield high social
returns. Both types of reforms have much to recommend them. For instance, we estimate that
the returns from just a limited number of reforms would exceed the city’s $1.5 annual budget.
However, we also believe that that return to improved titling would be significantly higher if
other policy reforms were already in place. Moreover, the potential for realizing that higher
return would generate a strong demand for improved titling. Conversely, we argue that if titling
were introduced into an unreformed environment, that there is likely to be considerably reduced,
although still welfare-enhancing, demand for improved titles. Thus, in our view, there is a
preferred sequencing pattern – land use restrictions should ideally be pursued first.

In many respects, our sequencing argument should not be surprising. When regulations
deeply constrain almost all the private uses of land-related assets giving title to those constrained
assets will facilitate transfers, and the ability to encumber and tax the assets. However, if the
assets are not taxed and regulations prohibit the assets from being put to their highest and best
use, it stands to reason that titling and registration will be worth less, indeed probably far less.
So, perhaps the central theme of the paper is that in considering Mumbai’s land and housing
market reforms the analogy to ending of the “license raj” at the national level is very strong. In
other words, the basic perspective is that eliminating the city’s current real estate regulatory
straightjacket, what in effect is its “real estate raj,” would not only help catalyze growth, like the
national policy did, it would also contribute to poverty reduction. Indeed, because the current
system has been so inimical to the interests of the poor, we believe that ending Mumbai’s
controlling environment would have even more desirable distributional effects than did ending
its national counterpart.

History and Geography. Mumbai, in some important ways, faces a unique set of problems. It
is, for example, one of the few developing country cities to undergo a process of de-
1
industrialization which has idled large portions of the central city land area – the Port Trust
and Mill Lands –for more than twenty years. (See Figure 1.) As shown in the Figure, a
considerable area of the “Island City” is accounted for by the bankrupt textile mills. These plants
were the city’s industrial heart at the turn of the 20th century, and are indicated by the pink color.
These mills fell into wide-spread bankruptcy and closure over the 1970s and early 1980s. The
old port, which is near to the mills covers the eastern side of the city, and is indicated by the
black shaded area.

This slow process of redevelopment has meant that more than 15 percent of centrally
located land has been tied up in discussions about how it should be recycled into other uses. This
“freezing” of such an important component of the city’s land has had profound effects on the
city’s development, as well as the high price of real estate in the city.1

Moreover, this freezing of a significant share of central city land occurs in what is among
the most topographically-challenged of the world’s largest cities. (See Figure 2.) The lack of
connectivity across the bay adds significantly to the price of real estate. (See Slide 3.) However,
this already adverse price effect is exacerbated by severe regulatory constraints on land use.
Together these circumstances have lead to the city’s real estate being among both the most
expensive in the world. Cities with such severe topographical constraints on the supply of land
typically compensate for this in two ways: by increasing the height of buildings; and by building
bridges to connect the various land masses. This is why cities located on islands – for instance,
New York, Hong Kong or Singapore – are well known for their skyscrapers while cities located
in flat plains without major water barriers, – like Paris, London and Berlin – are not. (See Slide
4)

Regulations. In contrast to other topographically-constrained cities, Mumbai’s development

has been drastically restricted by the building height restrictions embodied in Floor Space Index
(FSI) regulations. (See Slide 5.). The overall FSI for the city is one-fifth to one-tenth of the level
of other large cities, affecting how people locate and the types of commuting patterns they
follow.2 One of the effects of the low FSI has been that most households in the city have been
unable to translate increased income into additional floor space, so that average floor space
consumption, of about 4 square meters, is about one-third the level achieved by Shanghai, and
less than one-fifth of that of Moscow. It is similar to the level achieved in the former city in the
1
As the Goswami Report on Industrial Sickness (1993), discusses because of the difficulty of restructuring or
shifting away from the “sick industries” of Mumbai’s early 20th century industrial development, the city has not yet
adjusted adjust the land use for the 58 bankrupt textile mills. Nor did it shift away from the use of what in many
ways has become an increasingly obsolete old inner city port. As a result, large portions of the central city land
area – the Port Trust and Mill Lands – have been idle for more than twenty years. This result has meant that the
city became one of the few in the developing world to have experienced de-industrialization on anything like the
scale experienced in many European and North American cities in the 1970s and 1980s.

2
But besides the low overall FSI there is also a lack of variation in FSI across the city, which is depicted in Figure 4.
This pattern is in ever sharper contrast to the situation in most other large cities where even if the overall FSI for a
city is low, it is not low everywhere. For example, it is common for the ratio between the highest FSI value, in the
CBD, to the lowest in the suburbs to be 30 or more. For instance the highest FSI in residential areas in New York is
15 while it is 0.5 in the suburbs, a ratio of about 30. In Mumbai the highest this ratio become is about 4 (2 in Bandra
Kurla, 0.5 in the North West suburb of Gorai. See Figure 4. In fact, however, for 90 percent of the Municipal area
the ratio is only 1.33 (1.33 in the Island city and 1.00 in the suburbs), that is less than 4 percent of the ratio of 30 that
characterizes New York. Hence, the limitations across space are even greater than are the average limitations on
FSI.

2
late 1970s, and Moscow in the early 1950s. In such an environment, it is not that surprising
many of the city’s middle income population, including ten percent of the police force, now live
in the city’s pervasive slums.

Table 1.A shows conditions within the “Island City” – i.e., the part of the city’s core
peninsula which comprises most of non-suburban Mumbai. Table 1.B describes the suburbs. A
comparison of the tables shows that regulations in the former are more binding. Only 10 percent
of the housing stock in the Island City can be described as formal housing that has title to the
property in such a way that the property can be re-developed. The other 600,000 units cannot be
redeveloped without following highly detailed plans which lay out not only detailed development
rights but also very specific entitlements for each of the various actors involved. Tenants in what
are called Cess buildings, for instance, must receive a unit of a specific size which does not vary
with the value of the building site being redeveloped. Such a policy thereby limits the number of
buildings which are attractive to redevelop, and as a result, only a very small portion of the Cess
buildings have been re-developed.

In the suburbs, the formal housing stock still accounts for a small share of the total stock,
only one-third, but even that low figure it is nevertheless considerably higher than is the Island
City’s. The table also shows that two regulations apply to almost all transactions – the Urban
Land Ceilings Act – and the regulations governing building height – the Floor Space Index,
(FSI).

3
 Figure 1: Mumbai’s Idle Central City Land.

Source: Mehotra et al (2002)

4
 Figure 2: The Effects of Topography of City Structure: Mumbai and Seoul

Source: Bertaud (2005).

5
 Figure 3: Mumbai Land Use and Infrastructure.

Source: Bertaud (2005)

6
 Figure 4: Spatial Structure and Connections between Land Masses in Three Cities.

Source: Bertaud (2005).

7
 Figure 5: Spatial Distribution of Maximum FSI

Source: Bertaud (2005).

8
 Real estate redevelopment controls are particularly pervasive in Mumbai where housing
and land markets are among the most heavily regulated in the world. Virtually every property in
the Greater Mumbai Region is subject to at least one development control, such as the
particularly perfidious Urban Land Ceilings Act, and often is affected by multiple controls,
such as the deeply binding rent control which has frozen 30 percent of the Island city’s housing
stock in extremely dilapidated, often dangerous buildings. (See Tables 1 and 2.) These controls
not only limit the incentives to maintain and improve property, they offer disincentives to do so.
Few owners have improved what are often very basic and substandard housing conditions even
though the underlying land value is very high. Indeed, as we will show, despite increasing
incomes most have had to decrease living space, and many buildings have fallen into disrepair.

Table 1A: Regulation of Housing Stock on the Island City

Stock subject to:

Housing Type Units
UCLRA FSI CRZ Rent Control
Yes, if Yes, Extra FSI available Yes, in Yes,
demolished for but as incentive for CRZ II Restrained
Cessed Buildings 400,000 redevelopment providing free housing no extra ownership
must comply with to existing tenants FSI is rights
conditions possible
Yes, if Must comply with 1.33 Some No
demolished for if redeveloped so many
Formal 67,000 redevelopment are physically degraded
must comply with
conditions
Slums 200,000 Yes Yes Some No
 On TDR incentive to
Public develop
No, does not
Land
apply to public
 On Place housing in
land and land
infrastru hazardous area because
100,000 reserved under
cture of lack of alternatives
the master plan
 On TDR only in suburbs if
that cannot be
DP dwellers resettled
built
Reservat
ions
Land owner Redevelopment with 2.5 Yes
 On
neither improves but must hand over land
Private 100,000
nor demolishes free of encroachment
Land
housing

Definitions: of ULCA, FSI restrictions, CRZ restrictions are detailed in the next section. Formal estimates of slum
households on private and public land and infrastructure are not available. The numbers given in the text are
estimates.

9
 Table 1B: Regulation of the Housing Stock in the Suburbs

Subject to:

Housing
Units
Type
Rent
ULCA FSI CRZ
Control

Makes Cannot redevelop at FSI Yes Yes, if

redevelopment higher than 1 even with rented on
Formal 620,000 difficult new infrastructure long term

Yes if land in TDR in locations of Yes No

private ownership lesser land value makes
exceeds 500 aq.m. redevelopment of slums
Slums 1,220,000 in northern parts
financially unviable

The Evolution of the Policy Environment. This highly constrained policy environment has
developed over time, through the accretion of rules and policies, as the scope of public sector
involvement expanded. Often this expansion occurred as policies were introduced to deal with
the adverse side effects of earlier policies. That is, policies have often begotten other policies as
the role of the public sector extended further into the control of housing and land markets. For
instance, the 1969 Building Repairs and Reconstruction Board Act made the city responsible for
the run-down buildings caused by the implementation of binding of rent control legislation
twenty years earlier. However, the city was unable to mobilize the funds to support such a
program, one that applied to the 19,000 buildings and more than 400,000 families, which the law
effectively made a public responsibility. The under maintained buildings which collapsed
following the recent floods were of this type. In such a context of increasing public control over
the use of assets it is not surprising that the usefulness of specific titles and registration was
abrogated.

A second example of the pattern public interventions begetting still more interventions is
the government’s reliance on the inflated value of real estate, made more expensive by other
regulations, to mobilize resources to address the needs of the poor. In this case, the government
used market instruments, tradable development rights, TDRs, to unlock the value of the both
slum-occupied and deteriorating rent control housing. However, the assistance schemes were
built upon the high priced housing created in large part by the highly constrained policy
environment. Like the earlier change in rent control regulations, the new approach did not
address the many fundamental constraints which affected the way the market functioned. Instead
it promised “free housing” to 4 million slum dwellers in what is now widely recognized as an
empty populist creed. Indeed, under the TDR approach, government is able to provide
assistance to the poor only so as long as the existing policy environment continues to

10
severely distort the market. In addition, as a recent Bombay High Court Case, Oct. 2005,
showed, most of the beneficiaries involved with TDRs do so without formal property rights of
the sort that would be provided by registered titles. Moreover, there are usually restrictions on
their ability to resell the properties so that their immediate demand for a title is also reduced. In
short, in the current environment, titles will be of little immediate value to both participants in
assistance programs and the builders who receive increased FSI for providing them units.

In sum, while Mumbai’s non-title policy problems have persisted for many years and the
dimensions of them have long been known, it is now, perhaps for the first time, widely perceived
that the current approach does not work in very basic ways. For most Mumbaikers housing
conditions are certainly not better, and for many they are getting worse. Simply providing them
titles will do little to address this situation. For most of the city’s residents housing conditions
are among the worse in urban India Cumulatively, it has become clear that the free housing
schemes, the expropriation of large private land holdings, and the public maintenance of private
buildings which have had binding rent control for many years, have neither assisted the poor, nor
benefited the city. Indeed, the main effects of the city’s shelter policy has been to make
Mumbai’s housing situation one in which families are more than twice as likely to live in
congested one-room units as is the case in other Indian cities.

But more than regulations and a failed housing safety net constrain the city’s real estate
markets. For instance, allowing some of the city’s most valuable land to sit idle effectively
wastes the imputed “income” that could have been realized from the use of this property. We
estimate that the income from the more than 1800 acres of the port trust, the almost 600 acres of
lands of the long-closed public textile mills, the almost 300 acres of Railway Land, and the
almost 800 acres of BMC land may have exceeded a billion dollars per year, an amount equal
to more than two-thirds of the Municipal Corporation’s budget. Moreover, this income is
foregone at the same time that the return on other real estate assets is severely diminished. For
instance, as many as 500,000 people live on encroached infrastructure, reducing the benefits of
drains, roads, and other infrastructure. Similarly, as much as $6 billion in assets in cess buildings
have been systematically under-maintained to the point where nearly half of this stock is
estimated to be beyond repair. The cumulative costs of such real estate policies almost certainly
exceed the city’s entire budget. At the same time, the city relies upon such weak fiscal
instruments to collect revenue that enormous portions of the city’s income – that from real estate
– lies almost completely outside the tax net.

This all-encompassing web of land use regulations, along with both the on-going, and
seemingly interminable debates about public and previously privately-owned land, and the utter
neglect of real estate-related taxes have created a dysfunctional urban system. It is a system
which, according to one well-known magazine, contributed to the fall in Mumbai’s ranking as
a livable city fell from 26th in 1995 to the lowest of all the Asian cities rated, i.e., 40,th in
1999. During the same period, in contrast, Shanghai improved from 24th to 9th to tie Hong
Kong. In other words, current real estate policies have created a city in which the poor can only
participate in the city’s economy if they are willing to live in the words of the Indian Supreme
Court “compelled by circumstances and ...not guided by choice..” That is, often encroaching on
infrastructure in ramshackle shelter. It is a system that also created a city in which the middle
class can work only if they travel long distances in extremely over-crowded trains, or live in one-
room chawls or even slums; as well as a city in which real estate development is widely thought
of as a corrupt business and a corrosive influence. It is difficult to imagine such an urban system

11
being conducive to the development of new industry and attracting foreign investment. Basic
reform in real estate regulations and practices is fundamental to improve this situation.

The Reforms. The reforms require simultaneous actions changing in the basic rules of operation
so that a market-based system can emerge while simultaneously developing some of the basic
institutions of a market-based economy which are needed if markets are to work.3 The history of
the city’s reforms shows, for example, that there is no point in trying to systematically address
the needs of the poor if the current system which creates such high housing costs is not
fundamentally reformed. It also shows that without basic reforms, the numbers in slums will
increase at a faster rate than assistance can be provided. Similarly, establishing the basic
institutions of a market system will have very little value if regulations continue to prevent
markets from working. Hence, the agenda is a large one. Nevertheless, there are a number of
clear and re-enforcing steps that can be quickly taken.

1. Increase the supply of land and its responsiveness, particularly in the metropolitan area
which is potentially at less than one hour commute from the city center. This involves:

(i) Eliminating the Urban Land Ceiling Act as has been done in most other Indian states, as
has been recommended by the Government of India, and agreed to by the state of Maharasthra in
an MOU with the Government of India.

(ii) Implementing a Common Sense FSI. The recent flooding has created an outcry against
any further densification of the city as some expect would occur if the FSI were to be increased.
In our view, this argument is incorrect. FSI restrictions have already contributed to Mumbai’s
being the world’s most densely populated city. If carefully done increasing FSI on a
neighborhood-by-neighborhood basis would not add to this density. Moreover, most of the
criticisms of increases in the FSI are in fact criticisms of the current TDR/FSI approach which
allows skyscrapers to be developed in otherwise low-rise neighborhoods which do not have
adequate infrastructure to accommodate the isolated high rise buildings. The 1997 Sukhtankar
Committee Report on dilapidated housing presciently warned about the problems that have come
to pass with the current approach. This process could be begun rapidly with the development of
pilot programs in specific wards.

(iii) Recycling of Industrial Land. This is perhaps the most important measure to be taken for
the city’s long term economic health. This is the case because:

 First, changes in the world economy have caused some of the city’s industrial land use to
become obsolete, and these properties occupy centrally located, very value land. The
redevelopment of such large spaces will have a cascading effect on the city’s economy,
and their redevelopment will, quite naturally not be a straight forward process.

 Second, in the Port area are 28 km of what is now virtually inaccessible waterfront on the
eastern edge of Mumbai. Given the proximity of this area – which is more than four
times longer than the much beloved Marine Drive – to the proposed cross harbour bridge
as well as the Mill Lands, this land is critical to in the words of one recent study to “re-
orienting the perception of the city and the region with regard to its own geography.”

3
In our longer paper on Mumbai’s Real Estate Policies we give considerable attention to low income housing policy
issues which we ignore here due to our focus on urban land regulations.

12
However, this development almost certainly requires prerequisite reforms. For instance, to
develop the Mill Lands and the Port requires actions such as clearing the encroached areas, and
eliminating the constraints that the various regulations, ULCA, FSI, and possibly CRZ imply for
their development. More fundamentally, it also requires the time-intensive process of building
up credible forums in which the options for renewal of these spaces can be openly debated.
While these debates are being resolved, more immediate actions can be taken by building upon
the rich analyses of the land use patterns that have already undertaken by local analysts. These
analyses, along with the need to give considerably more attention to the indirect and on-
going costs imposed on the city by the idle public land holdings, would help set the stage for
more productive, fruitful discussions of how to move forward. These costs are often the result of
the actions of central government agencies and their scale is much larger than the recently
budgeted assistance that the GOI has targeted for the city.

(iv) Thus, the GOI could provide Mumbai assistance by simply improving the way it manages
its properties in the city. Better management would have a more important effect than would
be afforded by additional resources. Establishing a system to inventory public lands in the city,
and a method of systemically improving their management would clearly have high returns.

(v) Increase the Supply of Land through infrastructure investments: The infrastructure
investments proposed for the City and supported by the GOI, such as the cross harbour bridge,
have the potential to be high return investments. The fact that tenders are now being reviewed
after more than twenty years of discussion is very encouraging. Nevertheless, important
questions remain about the way the investment is to be financed, the land use planning for
the mainland, ( see slide 6.) and choice of the mode of transport which will be used on the
bridge – rail, car, or bus lane. In many ways, the over-riding goal of transportation infrastructure
should be to enable a large contiguous labor market to function smoothly. It follows that a major
feature of a transport system for such a labor market would be one that allows for low-cost
commuting from places of residence. In this perspective a central question is how would
infrastructure investments lead residents of Mumbai to be able to consume more than the four
square meters they do now without unduly burdening their commuting patterns. In particular, for
people in Mumbai to be able to live in minimally acceptable conditions, the city will need to
move upward (with higher buildings) and outward (with buildings developed on new land). For
those places that are already developed with high levels of density, moving people at even higher
density levels will require the development of more transit lines, such as across the harbour.
(vi) Develop an accessible information base on the functioning of the city’s real estate
markets, as, for example, through the development of a transparent web based system which
provides information on trends and explanations for why, for example, exceptions to
Development Control Regulations are allowed.

(vii) Create a more buoyant and comprehensive real estate-related revenue source, such as
the property tax. A funding system which does not rely on other regulatory taxes such as TDRs
to fund public expenditures is also essential if the system is to move away from being an
interlocking set of distortions. Alternative tax mechanisms could encourage land development
goals without recourse to such blunt instruments as the Urban Land Ceilings Act and would be a
much more cost-effective way to finance many infrastructure investments. This sort of
institution building will necessarily take time and for maximum effectiveness should be dealt
with within a broader City Business Plan.

13
 To sum up, we do not attempt to undertake anything like a formal welfare analysis of the
costs of the current policies or of the gains from improving land titling and registration. Indeed,
one of our points is that the policies are themselves interlocking and cumulative so that it is not
clear that it makes sense to evaluate them in a partial sense. Nevertheless, two pieces of
information provide some sense of just how costly they are. First, despite being the richest city
in India, families in Mumbai are almost twice as likely to live in one-room units as in the rest of
India. Second, for most families, despite a growing economy, sharply declining interest rates,
and rapidly expanding access to housing finance, housing conditions did not improve. Clearly,
having the world’s largest slum population is not an accident. Rather it is a direct product of the
policy environment. Improving the titling systems would improve things but it will not address
the fundamentals that make this such an inhospitable economic environment.

As far as the non-titling reforms, three of the other seven land reform proposals–
eliminating the ULCA, reforming FSI regulations, and developing more accessible information
– can be addressed immediately. Three others – infrastructure investments, the recycling of idle
industrial land, and the creation of a more buoyant real estate related tax -- require greater
institution building efforts. Finally with regard to the proposed reform on GOI land holdings in
the city, the Government of India is now establishing a new set of interactions between central
government and large cities, called the National Urban Renewal Mission. This new approach
envisions the central government providing grant assistance to large cities to both help and
encourage them to undertake more market-oriented reforms. Such an approach has a great deal
to recommend it. However, even our cursory analysis of the costs of central government asset
management in Mumbai suggests that the costs of mismanagement may exceed, and certainly
offset the budgeted assistance that will be provided. Mumbai may of course represent an unusual
circumstance in this regard but even if it is, the scale of the costs in just this city augers for much
greater emphasis being given to central government asset management in the city.

14
 Figure 6: Land use on the Eastern side of the trans-harbor bridge

Source: Bertaud (2005)

15
16
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