"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, October 2, 2011

SC Once Again on Adverse Possession: "Where law does not meet justice"


Indian SC had highlighted the need to reform the law relating to adverse possession in 2009 (See the blogpost). Yesterday it spoke again in the same language; one could in jest say that almost in the same sentences. The court took the exact same path of Hemaji Waghaji, locating the right to property within Human Rights and taking lead from European Court of Human Rights decisions. A gloss over English and American decisions and understandings augments court's conclusion that in adverse possession, law does not meet justice.

While dismissing the petition with exemplary cost for unnecessary litigation, the court once again sends the decision to Secretary of Law, Ministry of Law Justice to prompt the parliament to change the law through a legislative process. This time but the court gives two suggestions to be considered while the law is re-looked.

1. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12.

2. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in questionWhile it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.

4 comments:

Siddhant said...

Hi,
Can you please give the citation or name of the case in which the recent pronouncement (on October 1) was made?

Jasmine Joseph said...

State of Haryana ...Petitioner
v.
Mukesh Kumar & Ors. ...Respondents

PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 28034/2011
(Arising out of CC 9038/2010)

Date of Judgment 30 Sept. 2011

Already send the text of the judgment to your email

Siddhant said...

Thank you. And your blog is very helpful.

Mr.P.Soni ngo.rights@yahoo.com said...

READ AND UNDERSTAND THE TRUE INTENSION OF OUR PARLIAMENT
interest of the public as already decided by the parliament of India in regard to the law of adverse possession .
2 The said law is existing all over the world as it reduces litigation due to the said parameters in the limitation act of India .
3 If this law of adverse possession is changed or abolished it would be unconstitutional would undermine the honorable Parliament of India will facilitate unnecessary litigation which were already barred by The limitation act of India ,
4 it would also facilitate crime as criminals would be hired by the post owner’s who already lost there title by adverse possession to take possession from the current owner ,
5 it would also harras lacks of people/family’s in India who have bought properties on oral agreements , part agreements in olden days by just paying money and taking over possession due to High illiteracy rate buying property by virtue of receipt’s or just taking over possession not hiering advovates due to money shortage and just ending up making documents if at all which were not completely recognized , authorized by state and did not / were not entitled to get their names mutated in various government recoards as morally, constitutionally these transactions were genuine but were not documented as per the current law