The Executive Must Take a Non-Majoritarian Call on Adverse Possession – Published in The Wire

Gyanvapi Adverse Possession

Adverse possession is essentially a public policy issue that also happens to cover matters relating to places of worship. Given the law commission’s recent report on the issue, it is time the executive takes an appropriate stand.

Recently, the law commission of India submitted its report saying that there was no need to change the legal position on the concept of adverse possession and the rights flowing therefrom.

Adverse possession means that if somebody possesses a property in a continuous manner, with the knowledge of the public at large and without any competing claim to it for a period of 12 years, the possessor becomes the title holder of the property. After this period, the real owner’s right to access the court for repossessing the property expires by an efflux of time as prescribed in the law of limitation.

The concept of adverse possession of property has not been defined in our legislation. However, as a common law concept, our court system has developed this way of acquiring the title to an immovable property as a substantive law.

Generally, in our country, possession is treated as an asset. Hence, holding uninterrupted possession over an immovable property itself is treated like a ‘property’, as the law respects possession. Accordingly, the right acquired by adverse possession is also a heritable and transmissible one.

After reiterating this concept-driven right of a possessor to their property, a 2019 judgment of the Supreme Court said that it was desirable that this right should not accrue in favour of a private person on land that is reserved for public utility, and for it to be made clear that the law of limitation does not apply to claiming public land through adverse possession.

For government land, this period is 30 years.

In an earlier exceptional judgment, the Supreme Court had doubted this process of acquiring titles through adverse possession, calling it harsh for the true owners and saying that the concept was “irrational, illogical and wholly disproportionate”. It proceeded to term adverse possession as placing a “premium on dishonesty”.

Many a times, the government instrumentalities have taken benefit of this principle to claim ownership of a citizen’s property. In State of Haryana v. Mukesh Kumar and Others, the court called this practice a “black mark upon the justice system’s legitimacy” and an “archaic law”, and found it imperative for the parliament to give it a re-look.

Consequentially, the law commission of India recently had to give its report on the subject. But the commission missed one aspect of the matter – which is pending in different courts – relating to places of worship that are sought to be dislodged after hundreds of years. In its Babri Masjid judgement, the Supreme Court recorded that the title to the land cannot be based on “archaeological findings arrived at by [the] ASI”. It said that the title must be decided on legal principles and by applying evidentiary standards.

This being the position in law read with the Places of Worship Act, 1991, the Court placed duties on the state to preserve and protect the equality of all faiths as an “essential constitutional value”, reflecting India’s commitment to treat all religions equally. At the same time, the Court rejected the plea of adverse possession in favour of the mosque against the Ram temple. This finding is in contrast to the plea of adverse possession of a gurdwara against a masjid in the Shaheed Ganj case of Lahore, decided in 1940 by five Lord Justices of the privy council in England.

In this case, the privy council applied the concept of adverse possession to the mosque, and as a result, the mosque lost its legal battle to the gurdwara.

But the five judges of the Supreme Court in the Ayodhya case, on facts, held adverse possession to be inapplicable to the mosque constructed in 1528, and this mosque also lost its legal battle, but in this instance to the Ram temple.

Despite the Supreme Court’s assurance that the Places of Worship Act, 1991 is to “[preserve] the character of places of public worship” and that “history and its wrongs shall not be used as instruments to oppress the present and the future”, the Act became the subject matter of a challenge in the same Court, where the Union Government is yet to take its stand.

In its recent report, the law commission has referred to a Canadian professor and stated that:

For understanding the role of [an] adverse possessor from the perspective of the morality of adverse possession, one needs to adopt a new analogy that views such an adverse possessor not as a land thief nor as a deserving labourer, but rather as something akin to the leader of a bloodless coup d’état. It goes further to record that a social order necessitates that someone wield the authority of ownership, and, in a way, “adverse possession solves the moral problem of agenda-less objects, i.e., owner-less property”.

Finally, the commission has stated that the concept of adverse possession “addresses the law’s most pressing concern, which is not [about] who is [the] owner, but rather that the office of [the] owner is filled instead of lying vacant”. Accordingly, the commission is of the view that there is no reason to change the law on this issue, and that the time period for a title to become adverse to the real owner may remain 12 years for private property and 30 years for government property.

Essentially, this is a public policy issue. The policy relating to places of worship is already in place. As per the 1991 Act, the religious character of places of worship has to be preserved as it existed on August 15, 1947.

However, in view of the law commission’s report, the executive has to take a call on the issue of adverse possession. The matters relating to places of worship are also covered by this issue.

The government should consider an appropriate stand on the issue, which is required on affidavit in the Supreme Court. The executive must see that its decision does not fall foul to the constitutional guarantee. The government’s policy on this issue must not be majoritarian in nature, but uphold the basic fundamentals of our constitution and avoid societal disorder.

This article was published in The Wire on July 6, 2023



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