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Law Commission against amendments to law on adverse possession, Law Ministry disagrees

The Law Commission of India has recently released its 280th Report, stating that there was no need to amend the law on adverse possession.  

In India, adverse possession is a legal principle which 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.

As per Article 65 to Schedule I of the Limitation Act, a timeline of 12 years is provided to the aggrieved person claiming to be the real owner, to file a suit for recovery of possession of immovable property. The time limit for a similar government land is 30 years. These time periods are the minimum number of years necessary for any claim of adverse possession.

Releasing the report recently, Chairperson of the 22nd Law Commission, former Karnataka High Court Chief Justice Ritu Raj Awasthi, noted that no changes were required to these limitation periods.

He refused to term the law as colonial, saying that it benefitted the public at large.

Justice Awasthi said that if the executing or controlling agency of Government lands was not acting promptly and properly to prevent any encroachment, it did not mean that the law itself was bad. 

He further said that removing the law of adverse possession in respect of Government lands would lead to a chaotic situation and instability as the people would not be able to crystallize their rights, with generation after generation living under the threat of eviction.

On the other hand, the Ministry of Law and Justice stated that it would only benefit the land mafias, apart from the rich and powerful people, while compromising the common good. 

Refusing to escalate the period prescribed for filing a suit for adverse possession under the Limitation Act, 1963, the Commission said there was no need for the enlargement of the limitation period with reference to the 1908 Act. 

The Limitation Act, 1963 has already inculcated the changes required by decreasing the period of limitation from 60 years to 30 years in case of suit brought for retention of land in public road, street or properties belonging to central/state government, it noted.

It said the law did not provide for any compensation either from adverse possessor to owner or from owner to adverse possessor. While amending the legislation, a wider outlook has to be adopted. In the given context, the enlargement of the limitation period might work against people who trespassed the land with malice intention, but it would also create adverse impact on those who entered the land with good faith, noted the Report.

The Commission, however, proposed one change in the Act. It suggested exclusion of “except Government of state of Jammu and Kashmir” in Article 112 in lieu of removal of “except state of Jammu and Kashmir” from Article 1(2) of the given Act. 

The Report said this suggestion was at par with the modification under the Jammu and Kashmir Reorganisation Act, 2019 after the abrogation of special status granted to J&K under Article 370.

In its 2008 verdict in the case Hemaji Waghaji vs Bhikhabai Khengiabhai and State of Haryana, the Supreme Court had discredited the law of adverse possession, calling it irrational, illogical and harsh to the owner that required Parliament reconsideration.

In the same year, the Law Ministry 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 ensured that there was always an owner or claimant to contentious land.

It further said that it was 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 Report said the process of fixing compensation may provide an opportunity to the adverse possessor to question the quantum of compensation and protract the litigation to the prejudice of the owner who lost possession and wanted to recover possession of his land

However, the Secretaries of the Department of Legal Affairs and the Legislative Department, who are also ex-officio members of the Commission, expressed their reservations with the report. 

They said the Commission did not consult the relevant Ministries of the Union Government and States from where useful inputs could have been received. The government officials said in the absence of inputs from the Union Ministries and the state governments, the benefit of broad-based deliberation has been avoidably curtailed.

They further refuted the claim that adverse possession protected the rights of the poor, claiming that it ignored the abuse of law by land mafias, builders and powerful interest groups, who were not disqualified to claim adverse possession under the present law. This was an appropriate moment to strike off this provision of adverse possession from the Law of Limitation, they added.

The officials further said the law was in ‘glaring’ opposition to the Directive Principles Of State Policy, which called for an egalitarian social order and a welfare state.

Common good would suffer if the petition related to adverse possession succeeded against the State since adverse possession did not set a limit on the extent of land nor its purpose nor the income level of the occupant claiming adverse possession of Government land, they added.

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