Adverse possession: Law Commission says it is for benefit of public; Law Ministry members say it enables land mafia

The Law Commission of India has supported the law on adverse possession in its 280th report, while its ex-officio members representing the Union Law Ministry have dissented.

Adverse possession in India is a legal principle that enables persons to gain ownership of a property by possessing it openly and continuously, despite the fact that someone else may be its legal owner.

Article 65 to Schedule I of the Limitation Act provides for a timeline of 12 years within which an aggrieved person claiming to be the real owner can file a suit for recovery of possession of immovable property. For government land, the same is 30 years. These time periods are the minimum number of years necessary for any claim of adverse possession.

In its latest report, the Law Commission has recommended that no changes be made to these limitation periods.

The Commission, headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi, has opined that the law is for the benefit of the public at large and cannot be termed colonial.

"If the executing or controlling agency of Government lands is not acting promptly and properly to prevent any encroachment, it does not mean that the law itself is bad. Removing the law of adverse possession in respect of Government lands would lead to a chaotic situation, leading to a lot of instability as the people will not be able to crystallize their rights, with generation after generation living under the threat of eviction."

The report came after a reference by the Supreme Court in its 2008 decision in Hemaji Jat, where it had asked the Union government to have a relook at the law. Pursuant to the same, the Law Ministry had that year asked the Commission to conduct a detailed study.

The 19th Law Commission then dealt with the question and voiced its opinion in a note in favour of the law, but did not submit a final report with recommendations.

The Commission, on examining the legal provisions in question with respect to the notion of morality, stated that the law on adverse possession in its current form ensures that there is always an owner or claimant to contentious land.

"[It] ensures that there is always someone in charge of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor's claims by showing that he continues to be in charge of the property."

On the issue of compensation to be paid to landowners, the Commission stated,

"It is also not advisable to make any provision for compensating the owner by the adverse possessor. After coming into wrongful possession, the adverse possessor may be interested to retain the land even after paying compensation to the owner. The process of fixing compensation may provide an opportunity to him to question the quantum of compensation and to protract the litigation to the prejudice of the owner who lost possession and who wants to recover possession of his land."

Law Ministry representatives dissent

The Secretaries of the Department of Legal Affairs and the Legislative Department, who are ex-officio members of the Commission, expressed their reservations with the report and how its findings were arrived at.

"The Commission has not consulted the relevant Ministries of the Government of lndia and States from where useful inputs could have been received. ln the absence of the inputs of the Ministries of Government of lndia and the State Governments the benefit of broad-based deliberation have been avoidably curtailed."

Pertinently, the members noted that adverse possession is prone to misuse by powerful builders and mafias.

"To claim that adverse possession protects the rights of the poor ignores the abuse of the law by land mafias, builders and powerful interest groups who are not disqualified to claim adverse possession under the present law.. it is an appropriate moment to strike off this provision of adverse possession from the Law of Limitation."

The law is in 'glaring opposition' to the Directive Principles Of State Policy calling for a welfare state and an egalitarian social order, the dissenting members added.

"lf plea of adverse possession succeeds against the State, common good suffers since adverse possession does not set limit on the extent of land nor its purpose nor the income level of the occupant claiming adverse possession of Government land."

It was stressed that empirical data from judicial records shows that the law has not promoted the cause of the adverse possessor, and serves no purpose.

"Courts have seldom ruled in favour of adverse possession because of the contradictory requirement of the nature of possession to be peaceful as well as hostile and notorious. However, because of the mere existence of such a law the true owners have been subjected to avoidable and expensive litigation running over generations by unscrupulous persons who are not averse to fraud and forgery."

Title suits arising out of the law have "saddled the already over-burdened machinery of the courts with avoidable work to the misery of the litigants," it was stated.

Further, any reliance on morality is not just contradictory but 'ridiculous', since abolition of the law will neither hinder anybody's right nor cause negligence of land resources as the Commission alleges.

"We cannot be oblivious of the fact that today land prices are sky rocketing in the country both in rural and urban areas without any respite for the land buyers. ln such a situation any argument that land is not put to proper use by the landowners does not have any merit, since land can be easily monetized. So, neither the morality argument nor the proper use argument warrants the continuation of the law of adverse possession."

The dissenting members underscored that the the law of adverse possession promotes false claims that ultimately do not stand judicial scrutiny.

The claim that the law helps protects the rights of the poor was refuted with the point that all states have laws for the welfare of the landless.

[Read the report and notes]