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M J Antony: Relics in law books

If a person squats on your land for a sufficiently long time, the property becomes his under certain conditions

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Our law-makers have had little time in 62 years to remove “Her Majesty” or the definition of British colonies from some statutes. They remain in the books, forgotten like anna coins that had rolled under the carpet. Fortunately, they are not as harmful as some other legal relics that are sanctimoniously followed in the country.

The Supreme Court, last month, pointed out the absurdity of following one such doctrine in its judgment in State of Haryana vs Mukesh Kumar. It is couched in the phrase “adverse possession”. The judgment called it a “testament to the absurdity of law and a black mark upon the legitimacy of the justice system.”

According to this principle, if a person squats on your land for a sufficiently long time, the property becomes his under certain conditions. This is a rule developed in 13th-century Britain and carried to all the lands along with its flag. In the land of conception, the rule has been considerably diluted, but the courts in this country dare not do it. Parliamentarians don’t care for it. The writes judgments pointing out the injustice, but it is hardly heard by anyone.

The present judgment began with this remark: “People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorised by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property.”

The dispute in this case arose in a typical case of land grabbing, by no less than the protectors of citizen’s property. The Haryana police raised a wall across a large tract of vacant land. The owner claimed that it was his; the police department asserted that the property had been in its possession for 55 years. The owner showed his title in the trial court. It rejected the police claim. However, the government appealed to three courts above, failing all the time.

The final appeal in the Supreme Court was dismissed with cost and stunning rebuke. The petition, said the judgment, is “totally frivolous, wasting the time of the court and demonstrating its evil design of grabbing properties of lawful owners in a clandestine manner.”

The court used this occasion to once again remind Parliament to update the law regarding possession of land. It pointed out that the right to property has now been raised to the level of a human right in several international conventions. Even some recent Supreme Court judgments have painted this right in the colours of human rights jurisprudence.

However, if a trespasser can hold on to the disputed property for 12 years by committing wrongs or crime, he can gain legal title to it. The courts are helpless in the face of such law. The judges could only wonder, as in this judgment, “how 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon the conduct that the ordinary Indian citizen would find reprehensible.” This is the closest a Supreme Court judge could echo Mr Bumble who famously said, “If the law supposes so, the law is an ass.”

“In our view,” the judgment said, “there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternative make suitable amendments in the law.”

This is not the first time that the court has called for reforms in the law. In its 2009 judgment, Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan, it was emphasised that a law that ousts an owner on the basis of his inaction for 12 years is “irrational, illogical and wholly disproportionate.”

In a still earlier case, P T Munichikkanna Reddy vs Revamma (2007), the court had outlined the shift in the law regarding adverse possession in most democratic countries. It referred to a case of an English land owner who moved the European Commission of Human Rights alleging that the UK law violated the Convention for the Protection of Human Rights and Fundamental Freedoms. Even an English court has called the rule “draconian to the owner and a windfall for the squatter.”

The present judgment of the Supreme Court could act as a warning to those who have left property in their native places and are working in cities for long periods. Like the Haryana police, the protectors of property could be its grabbers. In one of your home visits, you might see an apparatchik running a mushroom party office in your property, protected by local yahoos or even the cousins of Haryana police.

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