The Mooknayak Explainer: What does the Law State in Terms of Land Ownership in India?

New Delhi: Encroachments have been demolished by the public authorities calling it illegal, but during the process of demolition it is evident in most of the cases that the due course of law hasn’t been followed by the authorities.

On 13^th May a demolition drive was carried out in Dhaula Kuan which left hundreds of poor people homeless, some of them have now rented a place in Naraina Vihar while many others have migrated back to their homelands.

The majority of residents of the demolished site are laborers, working on a daily basis in order to sustain their families. Now these people are hunting new jobs in the new area that they have shifted to because it won’t be possible to commute to the order working site. Children of these poor people won’t be able to go to the same school that they were going to. There are many problems surrounding these people whose houses were bulldozed.

On 18^th May, The Mooknayak reached out to some of the families and found out that these people have the same address as the Dhaula Kuan area that they used to live in. Their Aadhar Card, Voter ID, all of these have the address of the demolished site. Families also showed the electricity bill of their houses in the Dhaula Kuan area. These people have been living there for the past 30-35 years.

Another recent demolition that happened was in the Tuqhlaqabad area. The unfortunate leitmotif of Delhi's development has been the recurring drama of illegal construction demolitions. Ruins near Tughlaqabad Fort are also proceeding according to a script that has been used countless times before. The need for demolition is portrayed as a problem with law and order rather than poor urban planning.

What does the law state about demolition?

According to the municipal corporation statutes, which vary by state, the government has the right to demolish someone's private property if it is an illegal building on public property, a building that encroaches on the property of another, or a structure that is in violation of the law.

In a 2022 judgement on a case Delhi High Court ruled, ‘No demolition action against an unauthorized property should be taken until the owner or resident has had a reasonable opportunity to be heard.’

This was noted in the matter of Ms. Hnunpuii v. Municipal Corporation of Delhi & another, which was heard by a single judge bench under the leadership of Honourable Justice C.Hari Shankar.

'Eligible to get the title of a property by holding it for 12 years'

According to a 2019 ruling by the Supreme Court, a person who has obtained ownership of the property after possessing it for 12 years may bring a lawsuit to reclaim it in the event that the original owner or another party forcibly removes them from it.

The top court made reference to the "doctrine of adverse possession," according to which someone who was not the original owner of the property becomes the owner because they have been in possession of it for at least 12 years during which the true owner did not take legal action to remove them.

A bench of Justices Arun Mishra, S Abdul Nazeer, and M R Shah decided that a non-title holder (original owner) who acquires a right to the property under the idea of adverse possession has the legal right to sue to restore it if he is evicted by others.

The bench ruled that once the 12-year period of adverse possession had passed, even the owner's right to eject him was lost and the possessory owner acquired the right, title, and interest held by the ousting person/owner, as the case may be, against whom he had prescribed.

As a result of the decision, it was stated that "once the right, title, or interest is acquired, it can be used as a sword by the plaintiff as well as a shield by the defendant within the meaning of Article 65 of the Limitation Act" (law dealing with the maintainability of legal actions based on time limits) and that "any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession."

The New Way of Development- Demolition

Since India's independence, demolitions carried out in the name of development have been a common element of Indian city planning. At least 280 slum cluster demolitions in Delhi alone are documented in data gathered by the Missing Basti Project between 1990 and 2020. Activists claim that the true figures are significantly higher.

According to a 2022 report by the Housing and Land Rights Network (HLRN), 36,480 dwellings were destroyed by national and state government officials in India in 2021 alone, leaving close to 2 lakh people homeless. Over 5,000 people were impacted by the demolition of at least 1,123 dwellings in Delhi in 2021.