Implanting Utility Models in The Indian IPR Landscape:

Issues and Challenges

(By Dr.Raju Narayana Swamy, IAS)

Utility model has been defined by WIPO as “an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the patented invention without his authorisation for a limited period”. The African Regional Industrial Property Organisation Protocol on Patents and Industrial Designs (Harare Protocol) defines utility models as “any form, configuration or disposition of elements of some appliance, working tools and implements as articles of everyday use, electrical and electronic circuitry or other object or part thereof in so far as they are capable of contributing some benefit or new effect or saving in time, energy or labour or improving the hygienic or socio physiological working conditions by means of a new configuration, arrangement or device or a combination thereof and are industrially applicable.” It is not a clearly defined legal concept within the IP paradigm, but is a generic term which refers to alternate IP protections (viz) lesser forms of patents which exist in many countries of the world together with patents and which protect incremental innovations on existing inventions which do not fulfill the strict patentability criteria. Sometimes referred to as petty patents or second -- tier protection, these patent systems are known as innovation patent in Australia, utility innovation in Malaysia, utility certificate in France and short term patent in Belgium.ⁱ The theoretical rationale for utility models derives from the fact that most social welfare-enhancing inventions are cumulative in nature and that a great deal of them are sub-patentable.

The utility model patent was first developed by Germany in 1891. Many countries such as Japan, Brazil, China, Greece, Hungary, Italy, Mexico, Poland, Russia and Korea have incorporated utility patent law. In fact, there are currently approximately 75 countries which provide in some form or another utility model protection. Significant among countries which do not have a utility model regime are US, UK and Canada. However the US is still reviewing the possibility of introducing second-tier patent systems to address several issues in the current patent system. In East Asian countries such as Japan and South Korea, a combination of relatively weak IPR protection and the availability of utility models has encouraged technological learning.

Utility models tend to protect the functional aspects of a product (such as toys, watches, optical fibres and machinery). They refer to subject matter that hinges precariously between that protectable under patent law and sui generis design law.ⁱⁱ There common features include short term protection, waiving off the requirement of non-obviousness and inventive step as well as simpler application procedure as compared to patents.ⁱⁱⁱ  But there are some major points of difference too across countries – subject matter under protection, granting procedure, substantive criteria and duration of protection made available, to name a few. For instance, as regards duration of protection, Austria, China, the Czech Republic, Finland, Germany and Italy provide upto ten years of protection for their utility models from the date of filing whereas France provides up to six years of protection for its utility certificates.

It is worth mentioning here that the utility models are said to be advantageous for SMEs (Small & Medium Enterprises) in the less industrialised nations of the world because in these industries copying of ideas and designs is prevalent and cumulative innovation is the law.^iv The speed with which utility models can be obtained may be beneficial for some start up firms. Countries that are net importers of new technology such as Australia could benefit from a utility model system that aids the absorption and/or adaptation of such technologies by local firms. It also needs to be mentioned here that the World Bank has documented case studies in the farm machinery sector in Brazil where utility models allowed domestic producers to adapt foreign innovations to local needs and conditions.^v LDCs can experiment with utility models so as to use IPRs as a tool for industrial transformation of their economies. However the impact of such efforts will crucially depend on development of managerial practices about IPRs and on availability of low cost and simple procedures to register innovations and enforce the rights conferred. A word of caution is needed here. Most firms in LDCs rely on mature technologies and on imported equipments and are unlikely to be active in the kind of improvements that utility models may protect. Moreover the system is not without its drawbacks. Arguments are galore that if we provide second and third tier rights for inventions that fail to meet the traditional standards of novelty, inventive step and originality/distinctiveness thereby allowing insufficiently inventive works to get protection through the back door, we are undermining both the public – private boundary and the integrity of existing IPRs and their doctrines. Larger market players may use utility models as a means of circumventing the more stringent criteria under the patent system and overuse the system in ways that make it hard for SMEs to compete. For instance in Europe, utility model systems in some countries have created problems so great that the systems were ultimately abolished. Due to the amount of legal uncertainty caused by the lack of substantive examination for the short term patent system in Netherlands, it was done away with in 2008. Similarly in Belgium due to the legal uncertainty caused by lack of novelty search for the small patent before granting, the entire system was abolished in 2009. Add to these the fact that utility model protection is not as strong a form of IPRs as patents and that they are harder to enforce and the picture is complete.

The basic difference between utility models and patent system is summarized in the following table.^vi

Table 1

Difference between patents and utility models

The main factors identified as explaining the composition of a utility model system include technological, historical, interpretational and policy diffusion. The advantages and disadvantages of utility models are broadly as follows:-

Table 2

Advantages & Disadvantages of utility models

The International Regime

Utility models are recognised by Article 1(2) of the Paris Convention (to which India is a member since 7th December 1998) as objects of industrial property together with patents. But Paris Convention does not demand that signatories thereof implement utility model laws.^vii The Patent Co-operation Treaty (PCT) which came into force in 1978 (and of which India became a signatory and member in 1998) also permits to file Utility Model application through national phase utilising the priority date and flexibilities provided therein as applicable for patent. The provisions of this treaty enable the inventors or the applicants filing of an international application for the grant of patent claiming priority based on the utility model application. In fact, Article 2(1) of the PCT stipulates that “application” means an application for the protection of an invention; references to an “application” shall be construed as references to applications for patents for inventions, inventors’ certificates, utility certificates, utility models, patents or certificates of addition, inventors’ certificates of addition, and utility certificates of addition. Thus Article 2 makes it crystal clear that the references to patent would include utility patents.

Mention must also be made here of the International Patent Classification (IPC) as provided by the 1971 Stratsbourg Agreement which facilitates retrieval of patent documents in order to conduct effective novelty searches and determine the state of the art. Article 1 states that the IPC covers not just “patents for invention” but also “inventors’ certificates, utility models and utility certificates.” However the TRIPS agreement requires all countries to maintain minimum substantive standards for all IP regimes and does not explicitly mention any second-tier patent system. In other words, member countries are left free to formulate it for themselves. But Article 2(1) of TRIPS^viii allows member nations to adopt more extensive protection which is required in their law and comply with Article 1(2) of Paris Convention. This still does not require WTO members or signatories to the Convention to provide utility model laws. However, it needs to be mentioned here that TRIPS Agreement as opposed to patents does not contain any minimum standards on the protection of utility models.

Experiences across the Globe

The general experience across the globe has been that the degree to which inventors in countries seek utility model protection typically depends on the differences in the standards of inventiveness required for patent protection and utility model protection. The narrower the difference in standards, the more likely it is that agents will file for patent protection since patents provides stronger protection than utility models. Evidence suggests that utility model protection stimulates the kind of minor, adaptive inventions that are important in the early to middle phases of technological development. They are a source of data on innovative activity. However the one-size fits all approach does not apply and it should be on a case by case basis. Experiences from a few countries across the globe are summarized below:

1. Germany (Gebrauchsmuster utility model)

Conceptually the German system was not a supplemental patent regime, rather the utility model protection was introduced as a supplement to the 1876 legislation protecting copyrights and designs. In addition to the usual excluded subject matter under patent law (discoveries, scientific theories etc), the utility model law additionally excludes inventions relating to processes and biotechnological inventions. Moreover, non-obviousness under utility model law is easier to meet than under patent law as the former refers to “inventive step” unlike the latter which requires “inventive activity”. The country has a relative novelty for its utility model. The allowance found in Germany that an invention patent and utility model do not necessarily have to be filed on the exact same day in order for the utility model to be branched off from the invention patent is accommodating both to the applicants and to the patent office. Moreover Germany allows not only parallel findings but also double granting of a utility model and invention patent.

The German utility model system continues to be a popular one. The number of utility model applications has however fallen from the 1999 peak, but the drop is insufficient to indicate that the use of the system is declining. However, the utility model system in Germany is not really serving one of its primary purposes (viz) spurring innovation through SMEs. The second tier patent system seems to function more as a strategic tool for protecting innovations until a patent is granted.

2. European Union (apart from Germany)

In EU member states, there is wide disparity in the amount of applications made within each country and this in turn correlates to the nature of utility model protection. There is currently no consistent policy for utility model protection across EU member states. The countries with and without utility models in the EU are tabulated below:

Table 3

Countries with and without utility models

It needs to be mentioned here that the French law despite terminology is not really a utility model system, but is a quick reservation system for patent applications and offers protection akin to the standard patent law. In fact, utility certificates in France are relatively unattractive to patentees given the legal uncertainty inherent in the unexamined right. The grant of utility certificates in that country has fallen over the last several years. The Italian system however despite usage of the word “patent” is more similar to the traditional utility model regime. Denmark, Finland, Greece and Portugal adopt a three dimensional paradigm.

3. China

Three types of patent protection are available in China – invention patents, utility models and design patents. Several studies focus on the usefulness of the utility model system in China - in particular to stimulate competitiveness and incremental innovation. China is the largest user of utility model patents in the world. Growth in utility models is found to have increased labour productivity in that country. Individual inventors and SMEs in particular, as well as large companies to some extent, have benefitted from learning opportunities afforded by using utility models which can enable innovation. It needs special mention that computer programs cannot be protected by utility models in China.

Out of the patent applications that are made to China about two-fifths are utility models, of which almost all are local applications.^ix  The usage of utility models relative to invention patents is considered as a useful indicator of the optimality of the technological trajectory of China. However there are criticisms too. For instance, some experts are of the view that many utility models are being granted to local “inventors” for inventions imported from overseas. Put it a bit differently, counterfeiters are now employing the utility model to claim protection for their modified versions of goods and products which are protected only under foreign patents. The system has produced huge numbers of useless and worthless rights. To make matters worse, utility model owners are threatening to take legal actions against the true inventors – who are often foreign companies seeking to expand their commercial activities in China. Arguments are also galore that the utility model system in China is being abused since no examination as to substance is made either at the grant stage or even at the infringement stage. 95% cases for invalidation are filed for patent rights for utility models and more than 60% of these requests have ended in invalidation of the granted
right.

4. Malaysia

Under the Malaysian Patents Act 1983, two types of protection are available – the first is through the grant of a patent and the second is through the issue of a certificate for a utility innovation.^x   A bird’s eye view of the Malaysian utility innovation regime is as follows:

a)  No requirement for inventive step (this being specifically excluded by the Act)

b)  The application can contain only one claim

c)  Duration of protection is for twenty years (Though a certificate for utility innovation expires 10 years from the filing date, an application for extension can be made for 2 additional five year periods. Thus the total possible length of protection is 20 years which is the same period available for a normal patent)

d)  Need to show that the invention is in commercial or industrial use in Malaysia.

e)  Not subject to compulsory license

f)  Lower registration and maintenance costs

Utility innovation system does have a place in the IP regime of Malaysia. The percentage of Malaysian innovators who make use of the system is high vis-a-vis the patent system. Highest number of utility innovations encompass those relating to human necessities (foot wear, furniture, agriculture, jewellery etc) followed by performing operations and transporting. Moreover the percentage of individual innovators (compared to companies/institutions making use of the utility innovation system) is very much high as compared to the use of the patent system. It is however worth mentioning that the utility model system does not offer any cheap or quick alternative to patent protection. The reduced costs of obtaining utility models and lower thresholds for protection may be attractive, but the long examination period and limitation to one claim only makes it quiet unattractive in practice.

5. Japan

Japan used to be a good example which has successfully established the utility model system and used it to promote domestic, industrial and technical progress. However the system is no longer attractive. The Japanese Utility Model Law (which was based on the German Law and was enacted in 1905) was adopted in response to a situation wherein patents were largely held by foreigners, most of the applications from Japanese nationals with far lower technical level than the western standard were refused and it was impossible to protect small inventions with the patent law. For a long time the model worked well. In the days when innovative capacity of Japan was lower than western countries, utility model system helped the Japanese industry to save money on importing technology. However with the growth of domestic creativity leading to a situation wherein patent system becomes more attractive, utility model applications declined gradually. A sharp drop appeared in 1993 because of the revised Utility Model Law of that year.^xi The 2004 amendment however prolonged the protection term and thus brought in a little increase of applications. Since 2000, the number of applications for utility models has never exceeded 3% of that for patents. As things stand today, the Japanese domestic industry is competitive enough in the world and therefore overprotection brought in by the utility model would do harm to further development of technology. Moreover, giants from foreign states would utilize the system to expand its territory fenced by exclusive right and then harm the interest of Japanese industry. To put it a bit differently, the reasons advanced against the utility model systems are:

1) The Utility Model Law has already completed its mission and has become obsolete

2) Protecting petty inventions that are potentially achievable by engineers serves only to encourage technology which is not internationally competitive.

3) Increase of utility model registrations only presents problems for companies and harms industrial development.

4) Large companies utilize the Utility Model Law only to defend themselves from an attack by small and medium size companies.^xii

It is also worth mentioning here that a provision on conversion has been introduced in Japan since the first Utility Model Law in 1905. An applicant could thus try to apply for a patent first and if it fails, then turn to get a utility model.

6. Taiwan, Province of China

In Taiwan, utility model patent is defined as a creation or an improvement which has been made in respect of form, construction or fitting of an object. The first Patent Act which was introduced in Taiwan on 1st January 1949 included invention patents, utility models and design patents. The latest version of the Act came into effect in July 2004. The purpose of the utility model is to protect smaller inventions. The fundamental differences between patents and utility models are:

a)  Patents cover method, substance or device whereas utility models protect shape, structure or device.

b)  Duration of patents is 20 years whereas utility model protection lasts for 10 years.

c)  Compulsory licensing is available only for patents and not for utility models.

d)  Utility model applications will not be substantively examined whereas patent applicants have to request a substantive examination within 3 years from filing date.

In 2003, the utility model provisions were revised in three major ways:

i) Substantive examination was abolished.

ii) The concept of Technical Evaluation Report was introduced.

iii) The level of inventive step required between a patent and a utility model was differentiated.

Statistics show that nationals are using utility models heavily as compared to foreigners. Thus utility model patents appeal to Taiwan because 98% of the country’s businesses are small and medium sized enterprises with very diverse R&D capability. The top domestic industry applications for utility models include transporting, basic electronic elements, pharmaceuticals and entertainment. Innovators prefer this type of patent as they are rapidly granted.

7. South Korea

South Korea has had a utility model law since 1961 and the current law is the Utility Model Act 1st July 1999. The Korean experience is interesting in that its domestic sector is active both in utility model and patent filing. Of course, compared to utility models, foreign patenting activity takes place at a much higher rate.

8. Ethiopia & Uganda

Ethiopia is the most populous LDC in sub-Saharan Africa. One of the main reasons behind the enactment of utility model protection in this country is to foster local innovation. It is noteworthy that the Ethiopian Patent Law does not clearly define the kinds of inventions that are eligible to be protected by utility model certificate. The Proclamation stops at defining it as a certificate given to a minor invention which fits to practical use.

As regards Uganda, it is a poor country that depends on transfer of foreign technology for its economic and social development. Its utility model protection is poised to become a tool to stimulate the country’s capacities towards adaptation and new uses of existing technologies. The Patent Law of Uganda was repealed in 1991 by the Patents Act. The Act recognises patents granted under the Harare Protocol which is administered by the ARIPO and in respect of which Uganda is a designated state. This Act also governs the grant of utility model certificates u/S.41. These certificates are permitted where the invention does not fulfil patentability – a requirement that is difficult to meet in Uganda’s socio-economic situation.

The question that naturally arises is – does utility model protection foster local innovation activities ? Data from EIPO and URSB show that the answer is in the affirmative. For instance, according to the Ethiopian office there is an increasing number of utility model applications year after year. Moreover, Ethiopians are the major beneficiaries of the Utility Model System and filed more than 99% of the applications. A breakdown of total minor inventions into the field of technology shows that the largest filing took place in the agriculture sector and chemicals which is formally in line to the strategic development direction of the country. Evidence further suggests that the inventive activities focus on the basic national problems of eradication of extreme poverty and hunger, improvement of health standards and ensuring environmental sustainability. In fact, utility model has contributed to development of a national technological database. However, it needs to be mentioned that low level of awareness on the importance of IPR is standing in the way of utility model protection.

9. Australia

A vast majority of the innovation patents in Australia are granted to Australian applicants. In fact only one out of six innovation patents are granted to foreign applicants. The innovation patent system in the country has been used by less knowledge – intensive industries and SMEs and has served the interests of domestic innovators. But there have also been concerns over the abuses of the system. In fact, some applicants use this system for tactical purposes rather than for protecting lower level inventions.

10. India

The concept is not unknown in India as the country runs on Jugaad - creating new things with ordinary resources. But India still does not have any laws protecting intellectual rights on utility patents despite being a signatory to various international treaties and conventions wherein utility patent system is well recognised.

Should India go in for utility models? 

In the context of India where almost 81% of the economy is informal, the existing patent regime is full of costs and uncertainties. Utility models may serve to remedy the shortcomings of the patent system provided that they are enforced within a legal structure conducive to innovation (i.e.) complemented with certain restrictions envisaged in the relevant IP legislation and conditioned by effective enforcement of antitrust laws.^xiii Arguments are hence galore that the country needs an effective legal protection system to bridge the gap between invention and innovation. Coexistence of the utility patent system may help in identifying the limitations of the patent system and offer to find a solution for them. Utility patents are affordable, simpler and faster and will if it comes through be used to the fullest extent by Indians who are always better at finding solutions to ease our work by making minor modifications to existing machines (like the engine operated sugarcane juice cart)- inventions which fall short of patentability, but that make life convenient. If laws on protection of Utility Protection Rights are legislated in India, our country will also progress in the ranking of the international IPR index and the Global Innovation Index which in turn will enhance the economic development of the nation as utility models are conducive to innovation and growth. This is all the more true in the context of the country’s MSME (Micro, Small and Medium Enterprises) sector.^xiv  SMEs account for more of breakthrough and incremental innovation than MNCs, but are hesitant to file patents as it has complex procedures and is costly. Hence utility patents are the solutions for them^xv. Add to these the fact that there are close to 51million MSME units in the country and the picture is complete. The utility patent system will definitely help them in sectors as diverse as electronics and electrical, computers and robotics etc. and will invigorate the “Make in India” initiative of the Government of India.

However, before implanting the said model to the Indian IPR landscape, the following questions need to be answered:-

a)  Should we leave sub-patentable inventions((ie) inventions which show little or no inventiveness) unprotected?

b)  Should we lower the inventive step threshold under the standard patent law so that more inventions become patentable?

c)  Should we seek to create alternative legal means of protection such as a tort or misappropriation law or a hybrid property right system such as design rights?

d)  Is the adoption tailored to respond to the country’s industrial structure?

e)  Should we go in for an accretion approach or an emulation approach?

The following features can go a long way in improving the impact of a utility model system:-

a)  Universal novelty standard

b)  A renewal based term of protection with tiered fees

c)  A non-examination system for the first term of protection followed by a compulsory examination for the second stage

d)  Government action to increase awareness of utility model protection

e)  Compulsory licensing

f)  The utility model law should comprise a detailed list of excluded subject matter which must mirror the exclusions under patent law. It is worth considering excluding some types of inventions as dictated by public policy (such as chemicals or pharmaceuticals or biological material)

To summarize, the lengthy procedure, patentability criteria, examination formalities and fees have made it very difficult for creative grass root innovators to get their inventions patent and utility model should step in here as a saviour. If implemented with necessary safeguards, it is worth taking the risk as it could lead the country along a path of inclusive, nay sustainable growth.

References

  1.Suthersanan U., Utility Models: Do They Really Serve National Innovation Strategies? Josef Drexl (ed),The Innovation Society and IP, Northampton, 2018.

  2.Grosse Ruse Khan H., Utility model protection in Pakistan – An option for incentivising incremental innovation, A study for WIPO, 2013.

  ⁱ    Boztosum N, Exploring the utility of utility models for holstering innovation, Journal of Intellectual Property Rights, 15(2010),429-439.

  ⁱⁱ     STRAUS, Implications of the TRIPS Agreements in the Field of Patent Law in
BEIER/SCHRICKER(Eds) From Gatt to TRIPS,160(1996) and U. Suthersanan,”Would Singapore benefits from the Utility Model Regime?”(2005).

  ⁱⁱⁱ   http://www.wipo.int/sme/en/ip-business/utility-models/utility-models.htm

  ^iv    Goutam Sharma & Hemanth Kumar Exploring the Possibilities of Utility Models Patent Regime for Grassroots Innovations in India, Journal of Intellectual Property Rights, 23(2018)pp119-130.

  ^v    World Bank(2002), Global Economic Prospects and Developing Countries, Oxford Univer-sity Press, Newyork.

  ^vi  Ibid

^vii. The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.

^viii  In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).

  ^ix    By contrast, the majority of standard patents are constituted by foreign applications

  ^x    A utility innovation is defined in the Act as “any innovation which creates a new product or process or any new improvement of a non product or process, which is capable of industrial application and includes an invention.”

  ^xi    In the 1993 amendment, a non-examination system was introduced and the term of protection was significantly reduced. The amendment was not a successful trial.

  ^xii   Kenichi Kumagai and Japan Patent Office, Asia Pacific Industrial Property Center JIII, Supra note 16 at 5.

  ^xiii  Boztosum N, Exploring the utility of utility models for holstering innovation, Journal of Intellectual Property Rights, 15(2010),429-439.

  ^xiv  Section 7of the MSMED Act defines Micro,Small and Medium Enterprises

  ^xv   Joseph Aristotle S.and S. Shanthakumar, Significance of Utility Patents in the Economic Development of India, GLS Law Journal, Vol.1 issue 2, July 2019.

Free Surrender under Panchayath Raj Act and Municipalities Act,
Read with Kerala Relinquishment Act of 1958 --
A Critical Study with Reference to Case Law

(By P.B. Menon, Advocate, Palakkad)

At the outset, what I would like to emphasis by this Article is as to whether free surrender referred to in the Panchayat Raj Act and Municipalities Act amounts to dedication in its real sense.

What is meant by dedication and what is the quintessence of that expression is well settled with reference to very old decisions which still hold the field. See 2011 (1) KLT SN 17 (C.No.19) (SC) approves (1903) 13 MLJ 364 and AIR 1927 Mad.676 (F.B.) overruling 1944 Nag 33.(1888) ILR 12 Bom.247 also lays down the same position. Sri B.K.Mukerjee on Hindu Law of Religious and Charitable Trusts (5th Edn by Sri A.K.Sen) is quoted with approval and is referred to in (2004 (8) KLT OnLine 1246 (SC) = (2005) 1 SCC 457).

In all these cases, what is stated is that when a property is dedicated for a particular purpose, the property itself, upon which is impressed, is raised to the category of a juristic person, so that the property which is dedicated would vest in the person to created. B.K.Mukerjee’s commentary says that the said property belongs to nobody. Being dedicated to general public use of such property itself is raised to the category of a juristic person. But when such dedication is in favour of an idol or religious trust the same vests with it. One can say it is owned by idol or such trust. It is said that when you say God’s property it is only a figurative expression (See AIR 1968 Cal.551).

When we come to the expression “free transfer” in the above Acts the view taken by the courts to the effect that such free surrender is dedication is hardly acceptable. The free surrender is to the Panchayat or Municipality or Corporation concerned for formation of a road or widening the road or renovation of a tank etc., meant for the use of the general public. The land so surrendered is to the Panchayat or Municipality or Corporation who is the owner of the same after such free surrender and not the general public for whose use it is so surrendered. The concerned authority enters the same in their property register and spent money to renovate the same or to form the road and maintain them regularly, as such authority are the owners after free surrender. Then how could such free surrender be considered as dedication. It is nothing but a free gift to which T.P. Act and Registration will apply. True Rule 5 made in 2005 makes provision for free surrender to Grama Panchayath, such provision Municipality Act also. But will that improve the situation; can those rules prevail over T.P. Act and Registration Act.

Before I come to the decision of our High Court, let me refer to the Kerala Land Relinquishment Act, 1958, which generally deals with such free surrender by concerned owner of property to the Government. Can that Act apply to such transaction of free surrender to Grama Panchayath or Municipality certainty not, for as between these Acts, Kerala Relinquishment Act is a general Act, whereas the other two are special Arts relating to surrender to Panchayat or Municipality specifically.

Now see the Kerala decisions which are noted below, about which I have no further comments.

This is a case of free surrender to Municipality u/S.214.

1990 (2) KLT 721 which holds the correct view

But see 2012 (4) KLT 919; 2013 (1) KLT 846 (D.B.); 2021 (4) KLT 318 (D.B.); 2021 (6) KLT 853.

Environmental Rights are Wider in Dimensions than Human Rights

(By P. Leelakrishnan, Professor Emeritus, Cochin University School of Law)

HIistory is replete with struggles and even with gruesome battles for recognition and protection of human rights. Fostered by the ideals of democracy and freedom, human rights found expression in the Universal Declaration of Human Rights (UDHR) 1948 and in later Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Many of these rights are now incorporated in the Constitution of India. Besides those declared in the Fundamental Rights, humane working conditions, raising the level of nutrition and public health and special care for development of the weaker sections of people are concepts germane to protection of environment explicitly mentioned in the directive principles. The judicial Interpretations will illustrate, in different contexts, how these rights are assimilated for protection and improvement of the environment. A wide spectrum of human rights is thus intertwined with the needs for a healthy environment.

Environmental rights

Characterized as rights to a healthy environment, environmental rights remained dormant throughout the centuries of man’s relationship with nature. They assumed significance with the UN conference on the human environment at Stockholm in 1972 when the world began to realize that the planet earth was being degraded continually after the Industrial Revolution. Creating universal awareness and emphasizing that the natural and man-made environments are essential to the enjoyment of the basic human rights, even to the right to life[1] the conference addressed the nations to exert common efforts for the preservation and improvement of the human environment.[2]

Indisputably, development helps fashioning human protection and progress. The question is how to reconcile values of ‘development’ with those of ‘environment’. In sum, how can development efforts be environment-friendly? This dilemma worried the world for a few years after Stockholm. In 1987, the World Commission on Environment and Development (WCED), popularly known as the Brundtland Commission, made a comprehensive study and proposed a paradigm of ‘sustainable development’ that reconciles and allows economic growth without destroying the base of available resources and livelihood. Natural resources must be used wisely; production integrated with resource conservation and enhancement. Thus, WCED defined sustainable development as one that ‘seeks to meet the aspirations of the people of the present generation without compromising the ability to meet those of the future’[3]. Sustainable development reinforces the view that all human beings have fundamental rights to environment adequate for their health and well-being. The United Nations Conference on Environment and Development at Rio in 1992 approved these strategies and declared that human beings, the centre of concerns for sustainable development, are entitled to a healthy and productive life in harmony with nature.[4]

The Indian legislation

Though late, India responded to the Stockholm message by enacting the Environment Protection Act 1986 (EPA).[5] The definition of environment is quite eloquent. It says ‘environment includes water, air and land and the inter­relationship which exits among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property’[6]. It becomes so clear that without the basic rights to clean water, air, and land and without the co-existence with other animate and inanimate things, human rights can never be realised. At this level, obviously, environmental rights find a wider range of significance than human rights.

The judicial approach to environmental problems

A year after Stockholm, the Supreme Court of India had to meet a challenge that a legislation vesting the State with the ownership of private forest would lead to deforestation resulting in eco-imbalance, especially soil erosion and silting up of streams and rivers. Turning down the plea, the Supreme Court upheld the law as its intention was to rehabilitate the landless labourers, tribal people, and other proletarian groups.[7]

In 1978, it was a remarkable turning point in the philosophy of fundamental rights in the Constitution. Setting aside outmoded precedents, the Supreme Court revisited the provisions[8] in Article 21 as generating procedural justice and due process.[9] This was the finest hour in the ethos of interpretations of fundamental rights as the court subsequently read many substantive rights[10] into the right-to-live concept embodied in Article 21. Initially, the Apex Court was chary to extend this judicial renovation to environmental rights forthrightly, but the High Courts displayed an active stance.[11]

Nonetheless, convinced of the absolute need for the protecting environmental health, the Apex Court took to a different route and revived the old strategy[12] of applying the concept of nuisance with human rights flavour.[13] Such an instance arose when an executive magistrate, applying the law in Section 133 of the Code of Criminal Procedure, had demanded a municipality to construct drainage and public conveniences within a limited period of six months. Declaring decency and dignity as non-negotiable facets of human rights[14] the Apex Court enthusiastically supported the order to save the residents from the environmental hazards of open drains and public places used for primary needs.[15] During the 1980s, in one case,[16] the Apex Court could have applied the right to life doctrine to deal with indiscriminate mining that hampered the ecology of Mussoorie, a popular holiday destination. On the other hand, the Court had cautious steps as they applied the concept of ‘sustainable development’ and waited for phasing out the mining operations while the workers were rehabilitated, and the miners got work elsewhere. In the group of MC Mehta cases[17] relating to pollution, the Court was not enthusiastic to apply the new jurisprudence of Article 21, although in one case[18] they formulated the doctrine of absolute liability, free from clutches of the common law exceptions, for the harm caused by inherently dangerous and hazardous industry.

The scenario changes

The next decade witnessed active position on environmental rights.[19] It was in Bangalore Medical Trust v. B.S.Muddappa,[20] the Supreme Court struck down a scheme to establish a private hospital in an open space. Being the lung space for urban sprawl, open space is an essential ingredient of area development schemes. In the court’s view, the constitutional mandate of individual freedom and dignity is a guarantee for attainment of a quality of life which a healthy and clean environment demands.[21] Remarkably, within five years, in Consumer Education and Research Centre v. Union of India,[22] the Court extended the ‘right to life’ concept to social security and to humane conditions of work and health. In extraordinary situations like those in asbestos industry, workmen may fall victim to the occupational disease of asbestosis. It may sometime happen that the symptoms are diagnosed only after retirement. Manifestly, in such cases, the court held, the right to medical care and social security should continue even after retirement.[23]

In Indian Council for Enviro-Legal Action v. Union of India,[24] the Apex Court had to deal with a terrible incident when a few industries, even in a trial run to produce H-acid, flung the people, children, cattle, trees, and streams in the village into a siege of pollution. The damage to the biotic and non-biotic objects, caused by the poisonous wastes, was huge and thus, left the whole eco­system of in peril. Appallingly, without taking up immediate corrective measures, the industries literally ran away leaving behind the sludge and muckin the operation. Further, the industries made deliberate and vicious efforts not to pay compensation[25] and protracted proceedings for a very long period of fifteen years. In 2011, holding these intolerable attempts as instances of unjust enrichment, the Supreme Court directed the ‘rogue’ industries, as they were called, to pay compound interest along with the unpaid compensation.[26]

Could it be justified to locate red category of polluting industries, listed as such by the Ministry of Environment, Forests and Climate Change, within the prohibited zone of ten kilometres from the lakes supplying drinking water to the neighbouring cities? Initially, the State Government imposed a ban but later removed it to the disapprobation of the State Pollution Control Board who took the matter further. The appellate authority and the High Court disagreed with board. Seized of the matter, the Apex Court was in a real dilemma.[27] Candidly admitting their limitations to analyse the technical problems involved, the Court referred the issue to various experts and expert bodies. Basing on their opinions the Court disapproved the siting of the industries in the zone. In the context of emerging human rights and environmental jurisprudence alike, and the inability and incompetence of courts to decipher technicalities, the Supreme Court laid emphasis on the need for environmental tribunals[28]. Significantly, court held that that the concern for both environment and human rights is to be traced from Article 21 dealing with fundamental rights to life and liberty.[29] While the environment concerns ‘life’, human rights aspects concern ‘liberty’.

Conclusion

The trend of widening the scope of environmental rights is fairly reflected in the judicial approach on rehabilitation of those affected by development projects. Leaving aside other controversies, the Apex Court’s view in Narmada was that suitable rehabilitation with facilities better than those in their original habitat would not result in violation of the fundamental rights of the displaced humans.[30] Positively speaking, since they lose their exclusive rights in their lands for the benefit of others, the project affected people (PAPs) are entitled to a fundamental right to rehabilitation with facilities, if not better, equal to those of their original habitat. However, in many cases, rehabilitation proceedings go berserk with several disruptions and logjams. An agonising spectacle is often seen with the PAPs, the living martyrs of development but helpless refugees from their own home, often wandering around and screaming for rehabilitation. Provision for rendering suitable rehabilitation or fair compensation before the commencement of major development activities is the desideratum and the only plausible remedy to solve the dilemma. Those who lose the rights to their habitat and suffer the woes of development should get better and timely treatment before others go to reap the benefits.

The right-to-live concept, coupled with the eco-provisions of the Constitution, adds strength and vigour to the environmental rights that take in several species of human rights. The Constitution[31] points to the duty of every citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living resources’ and thus, propounds an eco-centric philosophy that recognizes the intrinsic values of other living and non-living beings, like humans, with distinct roles to play in the ecosystem. Essentially, to protect and improve the environment, as often held by the courts, there is a duty to conserve the rare plant species like red sandalwood,[32] to preserve green buffer zones for water bodies while an industrial project is established in the vicinity[33] and to behave in a humane and compassionate manner with ‘other living beings’ such as the wild elephants[34] passing through their natural corridors, Asiatic buffaloes[35] wandering in Chandigarh forests and the birds 36 with freedom to fly up into the blue sky.

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Foot Note:-

1. Declaration of the UN Conference on the Human Environment, paragraph 1.

2. Ibid.Paragraph 7.

3. Ibid, p.40.

4. Declaration of UN Conference On Environment and Development, Principle 1.

5. EPA is the country’s basic law at present with an abundance of delegated legislation as well as with a plethora of powers delegated from the Union Government through the State Governments down to the grass root local self-governments.

6. Section 2(a), EPA.

7. State of Kerala v. The Gwalior Rayon Silk Manufacturing (Wvg) Co Ltd. (1973 KLT 896 (SC) = AIR 1973 SC 2734.

8. No person shall be deprived of his life or personal liberty except according to procedure established by law.

9. Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) = AIR1978 SC 597.

10. Rights against solitary confinement and against being handcuffed, rights to live with dignity, free legal aid, speedy trial and to monetary compensation, the rights of the bonded labour to be rehabilitated and the right to know as the ingredient of participatory democracy are some of the rights evolved early. For a discussion, see M.P.Singh, V.N.Shukla’s Constitution of India (Eleventh edition 2008, Eastern) pp 205-211.

11. One High Court disallowed a construction blocking free passage of fresh air in open space (T.Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad (1987 (1) KLT OnLine 1050 (A.P.) = AIR 1987 A.P. 171), another reminded the city fathers of their duties to keep the streets clean and hygienic (L.K.Koolwal v. State of Rajasthan, AIR 1968 Raj.2) and still another wanted the Government to re-examine if tube wells planned for Lakshadweep islands would lead to saline water intrusion later(FK Hussain v. Union of India (1990 (1) KLT OnLine 1016 = AIR 1990 Ker.321).

12. For the old cases, See P.Leelakrishnan, Environmental Law in India (6th edition), pp.16-19, LexisNexis.

13. Municipal Council, Ratlam v. Vardhichand (1980 KLT OnLine 1023 (SC) = AIR 1980 SC 1622 p.1629.

14. Ibid p 1629.

15. Subsequently, in 1986, the High Court of Madhya Pradesh invoked the same law for closing a medicine factory as its booming boilers were disturbing the sleep of those living in the buildings nearby, Krishna Gopal v. State of Madya Pradesh (1986) Cri LJ 396.

16. Rural Litigation Kendra v. State of Uttar Pradesh, 1985 KLT OnLine 1229 (SC) = AIR 1985 SC 652 and 1988 (2) KLT OnLine 1112 (SC) = AIR 1988 SC 2187).

17. M.C.Mehta v. Union of India, (1986 KLT OnLine 1436 (SC) = AIR 1987 SC 965, M.C.Mehta v. Union of India, (1987 (1) KLT OnLine 1011 (SC) = AIR 1987 SC 1086, M.C.Mehta v. Union of India, 1988 (2) KLT SN 44 (C.No. 57) SC = AIR 1988 SC 1037 and M.C. Mehta v. Union of India, 1988 (1) KLT OnLine 1016 (SC) = AIR 1988 SC 1115).

18. M.C. Mehta v. Union of India (1987 (1) KLT OnLine 1011 (SC) = AIR 1987 SC 1086, 1099.

19. Chhertiya Pardushan Mukti Sangarsh Samati v. State of Uttar Pradesh (1990 (2) KLT OnLine 1115 (SC) = AIR 1990 SC 2060 and Subhash Kumar v. State of Bihar (1991 (1) KLT SN 22 (C.No.29) SC = AIR1990 SC 2060.It is true in the two cases the Court declared the right to environment as part of Article 21 but did not get the opportunity to apply the dictum to the facts as the petitioners in both cases, were found to have made false allegations with personal grudge towards polluting companies.

20. 1991 (2) KLT OnLine 1022 (SC) = AIR 1991 SC 1902.

21. Ibid p.1922. One may say that nursing home is also necessary in maintaining health in a locality. However, the maxim ‘prevention is better than cure’ becomes the best environmental policy as it foresees and prevents potential dangers had its sway in the case.

22. 1995 (1) KLT SN 27 (C.No. 38) SC = AIR 1995 SC 922.

23. Ibid pp 941, 942.

24. 1996 (1) KLT OnLine 920 (SC) = AIR 1996 SC 1446.

25. Ibid pp 1467, 1468.

26. Indian Council for Enviro-Legal Action v. Union of India (2011 (3) KLT SN 137 (C.No.141) SC = (2011) 8 SCC 161).

27. Andhra Pradesh Pollution Control Board v. M.V.Nayudu (2000 (3) KLT OnLine 1029 (SC) = (2001) 2 SCC 812. 

28. The later history shows that the Law Commission took up the matter. The Central Government followed it up. The efforts resulted in the establishment and working of the Green Tribunal from 2010. Constituted with experts in technology and law, the Tribunal has enough coercive powers for realizing environmental justice in a pragmatic manner.

29. Andhra Pradesh pollution Control Board v. MV Nayudu (2000 (3) KLT OnLine 1029 (SC) = (2001) 2 SCC 812) p 815.

30. Narmada Bachao Andolan v. Union of India (2001 (1) KLT OnLine 1014 (SC) = AIR 2000 SC 3751), pp 3787, 3804.

31. Article 51-A (g).

32. T.N.Godavarman Thirumulpad v. Union of India (2012 (1) KLT Suppl. 90 (SC) = (2012) 4 SCC 362.

33. Mantri Techzone Pvt Ltd v. Forward Foundation (2019 (1) KLT OnLine 3089 (SC) = (2019) 18 SCC 494.

34. Hospitality Association of Mudumalai v. In Defense of Environment and Animals (2020 (5) KLT OnLine 1171 (SC) = (2020) 10 SCC 589.

35. T.N.GodavarmanThirumulpad v. Union of India (2012) 3 SCC 277.

36. Chief Forest Conservator, Wildlife v. Nisar Khan (2003 (2) KLT SN 96 (C.No.124) SC = AIR 2003 SC 1867.

Adverse Possession: An Evolving Concept

(By Saji Koduvath, Advocate, Kottayam)

Contents in a Nutshell

To invite adverse possession:

1. Mere ‘animus possidendi’ is not enough; there must have animus to ‘dispossess’.

2. Trespasser must know who the true owner is.

Under the provisions of the Limitation Act, 1963, in a suit for recovery, the burden to show 20 years’ or more (adverse) possession is upon the defendant.

But, in Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), our Apex Court held that in the absence of pleading to show that the relief of decree for possession was within the period of limitation, the suit would be dismissed.

Introduction

Adverse Possession is a common law doctrine. The true title holder loses his title by adverse possession; and it is acquired by the ‘trespasser’. Period of limitation, for acquiring adverse possession, under Article 65 of the Limitation Act, is 12 years. It starts, ‘when the possession of defendant becomes adverse to the plaintiff’.

Therefore, the trespasser should have ‘dispossessed’ the true owner by an overt act or by inviting the true owner’s specific attention to attract ‘adverse possession’ (as it was said to be needed in acquiring ‘adverse possession’ against a co-owner, in early times). In other words, intention to dispossess true owner is necessary; or intention to possess property of true owner (mere animus possidendi), not sufficient. The pivotal point that constitutes adverse possession is:

(i) the positive and hostile acts of the trespasser; and,

(ii) not the inaction or acquiescence of the true land owner.

Adverse Possession – ‘Evolving’ Concept

Adverse possession being essentially a judge-made law, and not exhaustively defined in any statute, the concept of adverse possession has been ‘evolving’. It is interesting to note that there were divergent views even with respect to the very fundamentals of ‘adverse possession’.

Earlier view– Inaction of true-owner matters (not overt-acts of trespasser).

At one time it was considered that inaction/acquiescence of the true owner for 12 years brings-in adverse possession. Because,

* Article 65, which speaks of as to limitation of suits (to be filed by the plaintiffs) does not specifically speak as to (i) intention to dispossess title owner or (ii) knowledge on the part of trespasser as to who is the true owner.

* “Nec vi, nec clam, necprecario” does not refer to (or speak as to) ‘hostile’

possession.

* “Animus possidendi” also does not say – hostile possession.

* Inaction, acquiescence etc. of true owner are the material considerations – to become a ‘possession’ adverse to plaintiff.

* Therefore, to attract adverse possession the trespasser need not know the true owner.

Philosophy of the earlier view can be seen from Amrendra Pratap Singh v. Tej Behadur (Para 22 (2004 (1) KLT OnLine 1278 (SC) = AIR 2004 SC 3782).

“What is adverse possession? ………The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. ……… The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. ………..”

Present view– Give prominence to overt and adverse acts of trespasser.

Following are the important decisions to see the present view on adverse possession:

1. Karnataka Board of Wakaf v. Government of India (2004 (1) KLT OnLine 1254 (SC) = AIR 2004 SC 2096).

2. T. Anjanappa v. Somalingappa (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570).

3. P.T.Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC) = AIR 2007 SC 1753).

4. Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) = AIR 2019 SC 3827: (2019) 8 SCC 729).

P.T.Munichikkanna Reddy v. Revamma, (AIR 2007 SC 1753), is the latest decision of the Supreme Court that discussed various views on adverse possession. It is observed in this decision as under:

“Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”

“Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. “

U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) it is stated as under:

“A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham, v. Mrs.Mariamma Itty, (ILR 2016-3(Ker.) 98).

In a nutshell, adverse possession arises from:

1. acquiescence of the owner to the hostile acts; and

2. hostile acts of the trespasser.

Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with the subject, did not put down the term ‘adverse’ in the relevant article concerned with “adverse possession”.

Article 142 of the Limitation Act, 1908 reads as under:

Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.

Article 65 of Limitation Act, 1963: Complete Change in Law of Adverse Possession

Articles 65 of the Limitation Act, 1963 brought-in complete change insofar as the onus of proof is concerned: The new provision casted onus on the trespasser to prove claims of title by ‘adverse’ possession. Adverse possession arises, under Article 65 of Limitation Act, 1963, only ‘by the positive and hostile acts’ of the trespasser; that is, mere possession is not sufficient, but, it must be ‘adverse’ to the true owner.

Article 65 of Limitation Act reads as under:

In T. Anjanappa v. Somalingappa (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570), it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action

Our Apex Court held as under:

“The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.

…The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.”

“…. …. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.”

How to Plead Adverse Possession

It is really a troublesome matter for the advocates. Karnataka Board of Wakaf v. Government of India (2004 (1) KLT OnLine 1254 (SC) = AIR 2004 SC 2096); T. Anjanappa v. Somalingappa  (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570); and P.T. Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC) = AIR 2007 SC 1753), guide us in this field. It may be necessary to plead the following modules.

* The claimant has been in ‘hostile and open, continuous uninterrupted as of right’ possession of the land,

* in denial of the title of the rightful owner,

* adversely to the interest of the owner of the land,

* started with wrongful disposition of the rightful owner,

* exercising absolute rights of ownership in respect of the land,

* on and from .. . .. (Specify date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

* Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;

* or, he made the true owner knew as to his hostile acts or adverse possession (from the inception).

Burden of Proof Sabotaged

Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321)

Is it the burden of the defendant, in a suit for recovery of possession, to plead adverse possession? Or, is it the duty of the plaintiff to show that the suit for possession was within the period of limitation prescribed in the Limitation Act (especially the possible claim of Adverse Possession)?

Supreme Court of India considered hitherto that the burden was fully rested upon the defendant.

But, in Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), the Apex Court held that in a suit for recovery of possession, the plaintiff had to plead the date on which the defendant took possession and in the absence of pleading to show that the relief of decree for possession was within limitation, the suit would be dismissed; for, Section 3 of the Limitation Act barred the institution of any suit after expiry of the period of limitation prescribed in the said Act, even though the plea of limitation had not been taken in defence. It is pointed out in this decision that the presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

It is held in Nazir Mohamed v. J.  Kamala, (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), as under:

“52. The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.

53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.”

After quoting Article 65 of the Limitation Act the Court observed as under:

“55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner…and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.”

Two views on Declaration & Recovery

Can be used as a Shield alone(earlier view):

Declaration cannot be sought for with respect to Adverse Possession was the view taken by certain Jurists and Courts. (See: Gurudwara Sahib v. Grama Panchayath (2013 (4) KLT SN 28 (C.No.26) SC = (2014) 1 SCC 669). This view is followed in Mohini v. Thimmappa (2015 (4) KLT 759). It is held: Extinguishment of the right of real owner is depended on the ‘establishment’ of adverse possession; and the ‘establishment’ of adverse possession comes only when a title suit comes. Therefore, plea of adverse possession is only a shield; and not sword.

It can be pointed out that, in Article 65, the words ‘plaintiff’ and ‘defendant’ are used in a way that adverse possession can be claimed as a ‘shield’.

Can be used as a Sword(present view)

The earlier view in Gurudwara Sahib v. Grama Panchayath (2013 (4) KLT SN 28 (C.No.26) SC = (2014) 1 SCC 669) that declaration cannot be sought for with respect to Adverse possession is overruled by Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC): AIR 2019 SC 3827: (2019) 8 SCC 729) (Arun Misra, J). The Three Judge Bench held in Ravinder Kaur Grewal that once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner.

In paragraph 62 of Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) : AIR 2019 SC 3827: (2019) 8 SCC 729), following has been observed:

“62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is 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 ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”

It is pointed out that S. 27 Limitation Act is an exception to the general rule – limitation bars remedy, not title.

[See also: Sarangadeva Periyamadon v. Ramaswamy (1966 KLT OnLine 1226 (SC) = AIR 1966 SC 1603) 3-Judge-Bench; and Amrendra Pratap Singh v. Tej Behadur (AIR 2004 SC 3782).

Section 27, Limitation Act – Extinguishment of right to property:

Section 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.

Adverse possession confers title under Section 27 (by necessary implication, because extinguished title of real owner,resultantly, vest in wrongdoer; because, rights thereon had already been lost to the true ownerand,as a consequence, it passed over to the ‘possessory’ owner).

Therefore, it is clear that Section 27 is a provision in the Limitation Act that gives a substantial right to a party. In view of Section 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) : AIR 2019 SC 3827: (2019) 8 SCC 729), that the person acquiring title by adverse possession can use it as a sword.

A Discordant Note on 2018 (4) KLT 944

Whether trespasser claiming adverse possession should know true owner and put notice on him?

In George v. Balakrishnan (2014 (4) KLT 788), it is held: YES.

But, in Kurungottu Kandi Rarichakutty  v. Aranda Rarichan (2018 (4) KLT 944), it is held: NO.

The decision in Kurungottu Kandi Rarichakutty v. Aranda Rarichan (supra) is rendered on answering a reference arisen taking note of discordant notes between George v. Balakrishnan (2014 (4) KLT 788), and Kerala State v. Brijit (2018 (2) KLT OnLine 2063).

The Division Bench referred to the Three-Judge Bench decision of the Apex Court, Kshitish Chandra Boss v. Commissioner of Ranchi (1981 KLT OnLine 1002 (SC) = AIR 1981 SC 707), which held that it was not necessary that the true owner must have been identified and specifically put on notice.

But, the Division Bench, in Kurungottu Kandi Rarichakutty:

(i) overlooked the fact that the supreme Court in Kshitish Chandra Boss v. Commissioner of Ranchi (Supra) dealt with a matter that fell under the erstwhile Limitation Act of 1908, because crucial period pertained in Kshitish Chandra Bosswas 1912 to 1957 (as seen in the decision itself); and

(ii) failed to take notice of the changes in the law on adverse possession by the advent of the Limitation Act, 1963, and the Apex Court decisions on its basis. (As stated above, Article 65 of the 1963 Act (a) put down the term ‘adverse’and (b) casted the onus to prove adverse possessionon the trespasser).

Role of Port State Jurisdiction in Esuring Safety of Ships at Port

(By Aliyar M.E., Assistant Professor, Bharata Mata School of Legal Studies, Aluva)

Abstract

Port State control (PSC) is an inspection regime for countries to inspect foreign-registered ships in port other than those of the flag state and take action against ships that are not in compliance.  The evolution of Port State Jurisdiction concept was consequent on the issues confronted with the absolute failures of Flag States’ monitoring and regulating of their own vessels. There were number of incidents of mishaps of vessels causing huge amount of losses. Here a Coastal State having an international port may exercise its PSJ over foreign-flagged ships and to regulate activities beyond national jurisdiction.[1] PSJ includes multilateral agreements intended to protecting common concerns. The agreements in form of MoUs aims to monitor and prevent to use substandard ships even in the case of foreign fishing vessels.[2]

Introduction

Ships that trade internationally have to call at various ports all over the world. Sometime these international trading ships may not reach its home ports due to various reasons and in such cases Ship’s Certificates cannot be renewed or provide for general maintenance. Therefore, in order to avoid such contingencies, ships must be inspected at various ports to ensure compliance with rule requirements as regards safety, maintenance, manning, etc. This control is termed as Port State Control. Port state jurisdiction is not covered by UNCLOS directly, but UNCLOS provisions confirm this practice which is indicative of residual jurisdiction in relation to port state-control.

Port state control (PSC) is an inspection regime for countries to inspect foreign-registered ships in port other than those of the Flag State and take action against ships that are not in compliance. Inspectors for PSC are called PSC officers (PSCOs), and are required to investigate compliance requirements of international conventions, such as SOLAS, MARPOL, STCW, and the MLC. Inspections can involve checking to ensure that the vessel is manned and operated in compliance with applicable international law, and verifying the competency of the ship’s master and officers, and the ship’s condition and equipment.

A port state enjoys limited jurisdiction over a foreign-flagged vessel in its port. When a foreign vessel comes to the coastal state ports they are subject to the coastal state’s criminal laws, civil laws, and regulations. Yet the Coastal State has discretion as to whether jurisdiction will be exercised in each instance. This means it is up to the Coastal State to decide if, how, and when to exercise its jurisdiction (enforcement).

Such types of jurisdictional enforcement powers help to consider Port State Control (PSC). PSC helps port States to inspect and verify that foreign vessels are operated on the basis of international standards for ship condition which includes:-

* Vessel Source Pollution

* Equipment

* Manning

Operations are conducted on three grounds mainly:

* Own initiative

* At the request of the Flag State or another Coastal State

* After a third party complaint

These enforcement powers have reasonable restrictions over foreign sovereign immune vessels such as warships, vessels owned and operated by a sovereign foreign state entity, and vessels which may be controlled, owned, or operated by diplomatic missions.

DIFFERENCE BETWEEN VOLUNTARY AND FORCED ENTRY

When a foreign vessel enters a Port State voluntarily, it has got limited freedom compared to a vessel which entered a port forcefully or due to other conditions of distress such as severe weather, mechanical or structural integrity problems, etc. If the vessel forcefully enters the ports, it should not have an intention to dock in that port. It must not have any pre-conceived plans. In such circumstances Port State grants the vessel limited immunity from prosecution in matters specifically related to the coastal state’s jurisdiction (violations of coastal/port state’s civil laws, and domestic environmental regulations) as the vessel in distress could not take appropriate measures to avoid entering the waters/port and hence avoid non-compliance.

In particular, they are generally considered exempt from non-malicious breaches of marine pollution laws and regulations under extreme circumstances and violations of international regulations. The flag state jurisdiction witnesses failing to take proper action. However, if while the vessel is in port, and the vessel (including members of the crew) violate the laws of the coastal state they may be subject to the jurisdiction of the local authorities (i.e. committing crimes while in port, etc.). this is called the grey area and it is debated often. If the authorities are under the impression the vessel or members of the crew may currently be engaging in activities which violate the laws or regulations of the coastal state they may increase their jurisdiction, including enforcement powers, and even prosecution. Here the Port State may get different types of powers both under PSJ regime and other principles like Universality Principle or Protective Principle.

REGIONAL PORT STATE CONTROL

The first regional arrangement for port States was created in Europe in the year 1982 Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, known as the Paris Port State Control MOU. The Paris Memorandum of Understanding on Port State Control is the official agreement between the 27 participating Maritime Authorities implementing a harmonized system of Port State Control. Later it was followed by Latin American Agreement on Port State Control in the year 1992 and later in 1993 by Tokyo Port State Control MOU, the 1996 Caribbean Port State Control MOU, and in 1997 MOU on Port State Control in the Mediterranean Region. The most recent Port State Control MOU is for the Indian Ocean and East Africa. All the regional port state control arrangements are substantively similar and follow the model of the 1982 Paris Port State Control MOU.

FORMATION OF PARIS MOU

There was a massive oil spill in the year 1978 on the coast of France by an oil tanker named Amoco Cardiz.[3] Due to such spill, twelve European maritime authorities decided to develop a system in order to inspect foreign ships to find defect and deficiencies in  ships docked in their ports.

This resulted in the formation of Paris MOU on Port State Control. Under this MoU each administration decided to inspect at least 25 percentage of foreign ships visiting their ports. The Paris Memorandum of Understanding on Port State Control (Paris MoU),[4] adopted in Paris (France) on 1 July 1982. It consists of 27 member countries as participants.

It was common inspection procedures and centralized recording of all inspections of the ship which are to be stored in the computer database.  After the formation of Paris MOU, it was realized that if neighbouring countries also exercise control on the same ship within short intervals, then this would lead to unnecessary duplication of work.  So with regards to this, a regional co-operation amongst the countries was agreed upon to avoid duplication of work. Under this MoU, it was also decided to share information and tracking of ship movement and previous history of the ships among the maritime countries. As per the information, the inspections can be followed up as required.

Ship Risk Profile (SRP)[5]

The Ship Risk Profile (SRP) is based on the following factors, using details of ship’s inspections in the Paris MoU area in the last 36 months:

* Type and age of ship

* Number of deficiencies

* Number of detentions

* Performance of ship’s flag

* Performance of the Recognised Organisation (RO)

* Performance of the Company responsible for the ISM Management (holder of  Document of Compliance)

Risk Assessment Matrix Determination of SRP:

■ Low Risk Ships are ships which meet all criteria of the low risk parameters

■ High Risk Ships are ships with 5 or more points

■ Standard Risk Ships are ships which are neither LRS nor HRS

Inspection Categories

Under the NIR there are two categories of inspection; Periodic and Additional. For the former, a time window will open after the vessel’s last inspection in the Paris MOU region, the frequency of which will vary according the vessel’s Ship Risk Profile:

■ High Risk Ships – time window between 5-6 months after the last inspection

■ Standard Risk Ships – time window between 10-12 months after the last inspection

■ Low Risk Ships – time window between 24-36 months after the last inspection

It a ship calls at a Paris MOU port within the time window, it will be classified as

Priority II and may be selected for a Periodic inspection. However, if it arrives after the time window it will be classified as Priority I and must undergo a Periodic inspection before it leaves port.

Priority I inspections may, in certain circumstances, be deferred to another port in the same Member State, or a port in another Member State if the latter agrees. Inspections will not be conducted if a port call takes place only at night or if in the judgement of the Port State the inspection would create a risk to the safety of the inspectors, the ship, its crew, the port or the marine environment. However, in the event of repeated port calls at night, special arrangements will be made to carry out an inspection.

Additional surveys are triggered by an “overriding factor” or “unexpected factor”, depending on the severity of the incident. A vessel will be classified as Priority I in the event of an “overriding factor”, irrespective of when its next periodic survey is due. “Overriding factors” include:

* Ships which have been suspended or withdrawn from their class for safety reasons since the last inspection.

* Ships which have been the subject of a report or notification by another Member State.

* Ships which cannot be identified in the inspection database.

* Ships which have been involved in a collision, grounding or stranding on their way to the port.

* Ships which have been accused of an alleged violation of the provisions on discharge of harmful substances or effluents.

* Ships which have manoeuvred in an erratic or unsafe manner whereby routing measures, adopted by the IMO, or safe navigation practices and procedures have not been followed.

* Similarly, an “unexpected factor” will cause the ship to be classified as Priority II. “Unexpected factors” include.

* Ships which have not complied with the applicable version of the IMO Recommendation on navigation through the entrances to the Baltic Sea.

* Ships carrying certificates issued by a formerly recognised organisation whose recognition has been withdrawn since the last inspection.

* Ships which have been reported by pilots or port authorities or bodies as having apparent anomalies which may prejudice their safe navigation or pose a threat of harm to the environment.

* Ships which have failed to comply with the relevant notification requirements.

* Ships which have been the subject of a report or complaint by the master, a crew member, or any person or organisation with a legitimate interest in the safe operation of the ship, on-board living and working conditions or the prevention of pollution, unless the Member State concerned deems the report or complaint to be manifestly unfounded.

* Ships which have been previously detained more than three months ago.

* Ships which have been reported with outstanding deficiencies, except those for which deficiencies had to be rectified within 14 days after departure, and for deficiencies which had to be rectified before departure.

* Ships which have been reported with problems concerning their cargo, in particular noxious and dangerous cargoes.

* Ships which have been operated in a manner posing a danger to persons, property or the environment.

* Ships where information from a reliable source becomes known, to the effect that their risk parameters differ from those recorded and the risk level is thereby increased.

Inspections carried out under the present regime will count for determining when the next inspection is due.

Notwithstanding any of the above, a Member State has the right to inspect a vessel at any time if they deem it to be appropriate.

Inspection Types

Under the NIR there are three types of inspection: initial, more detailed and expanded. Periodic inspections of Low Risk Ships and Standard Risk Ships other than bulk carriers, gas tankers, oil tankers, chemical tankers or passenger ships, older than 12 years of age, will be an initial inspection. However, if clear grounds are found during an initial inspection indicating that the vessel is not complying with particular convention requirements, a more detailed inspection will be carried out.[6]

All High Risk Ships regardless of type, and all bulk carriers, gas tankers, oil tankers, chemical tankers and passenger ships, older than 12 years of age, will be subject to an expanded inspection, together with vessels due to be re-inspected following a ban.

If an Additional inspection is warranted, this will be no less than a more detailed inspection. However, in the case of a High Risk Ship or a bulk carrier, gas tanker, oil tanker, chemical tanker or passenger ship, older than 12 years of age, the Member State may decide to perform an expanded inspection.

Banning and Refusal of Access Criteria

Under the present system only certain ship types may be banned or refused access to EU ports if registered with a flag state appearing on the Paris MoU black list. Under the NIR, this sanction will apply to all vessels regardless of type if registered with a flag state appearing in the Paris MoU black or grey lists.

From 1 January 2011 vessels will be refused access to all ports in the EU region if:

* Registered with a black listed flag state and detained more than twice in the preceding 36 months.

* Registered with a grey listed flag state and detained more than twice in the preceding 24 months.

Bans will also be subject to a minimum duration:

* 3 months after the first ban

* 12 months after a second ban

* 24 months after a third ban

* Permanent after a fourth ban

Any subsequent detention following a second ban will lead to another ban. A vessel banned for the third time must comply with stringent conditions before the 24 month period has elapsed, otherwise it will be refused access permanently. It is important to note that a ban affects a vessel’s EU Port State Control record for life, regardless of any changes of ownership, class or flag.

Reporting

In addition to the current reporting requirements, as from 1 January 2011 the following information must be transmitted for all ships arriving or leaving a port or anchorage within the EU region:

* Pre-arrival notification, at least 72 hours in advance for ships eligible for expanded inspection

* Pre-arrival notification at least 24 hours in advance (or on departure from the previous port if the voyage is less than 24 hours)

* Actual Time of Arrival

* Actual Time of Departure

The requirement for the operator, agent or master of a ship which is subject to an expanded inspection to provide 72 hours’ notice before the expected time of arrival (or before leaving the previous port or anchorage if the voyage is expected to take less than 72 hours) already exists for certain ships. However, as from 1 January 2011 this requirement also applies to:

* All ships with a high risk profile

* Any passenger ship, oil tanker, gas tanker, chemical tanker or bulk carrier, older than 12 years of age

Information on ships eligible for expanded inspection will be made available online.

The 72-hour notification must include at least the following information:

* Ship identification (name, call sign, IMO or MMSI number and flag).

* Planned duration of the call (ETA/ETD).

* For tankers: (a) hull configuration: single hull, single hull with segregated ballast tanks, double hull, (b) condition of the cargo and ballast tanks: full, empty, inserted, (c) volume and type of cargo

* Planned operations at the port or anchorage of destination (loading, unloading, other).

* Planned statutory survey inspections and substantial maintenance and repair work to be carried out whilst in the port of destination.

* Date of the last expanded inspection in the Paris MoU region.

TOTAL NUMBER OF INSPECTIONS AND DETENTIONS PERCENTAGE (7)

INDIAN OCEAN MoU[7]

The Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU), signed in Pretoria (South Africa) on 5 June 1998. It consists of 20 members. The Indian Ocean Memorandum of Understanding (IOMOU) on Port State control (PSC) in the Indian Ocean region was finalized on the basis of the First preparatory meeting held in India in October 1997 and the second meeting in June 1998 in South Africa. The second meeting was attended by Australia, Bangladesh, Djibouti, Eritrea, Ethiopia, India, Iran, Kenya, Maldives, Mauritius, Mozambique, Myanmar, Oman, Seychelles, South Africa, Sri Lanka, Tanzania and Yemen.

A total of 5943 inspections were carried out in 2019. Out of these 5943 inspections, 2852 inspections had deficiencies and the total numbers of deficiencies were 10960. Serious deficiencies noted by the PSCOs led to the detention of 232 ships and needed to be rectified prior to the ships’ departure; the overall detention percentage for the year was 3.9%. There was increase in total number of inspections in 2019, compared with those in 2018; and the detention percentage decreased from 4.42 % recorded in 2018. The average number of deficiencies per inspection in 2019 (1.84) has slightly decreased compared to the previous year (2.07).[8]

References:

1. Introduction: Port State Jurisdiction: Challenges and Potential, Cedric Ryngaert, The International Journal of Marine and Coastal Law 31 (2016) -394.

2. The shaky Foundations of the FAO Port State Measures agreement: How watertight is the Legal Seal against access for Foreign Fishing Vessels? Andrew Serdy, The International Journal of Marine and Coastal Law 31 (2016) 422-441.

3. Amoco Cadiz was a VLCC (very large crude carrier) owned by Amoco Transport Corp and transporting crude oil for Shell Oil. Operating under the Liberian flag of convenience, she ran aground on 16 March 1978 on Portsall Rocks, 2 km (1.2 mi) from the coast of Brittany, France. Ultimately she split in three and sank, resulting in the largest oil spill of its kind in history to that date. (AMOCO CADIZ -IMO-7336422) https://en.wikipedia.org/wiki/Amoco_Cadiz

4. Paris MoU. https://www.parismou.org/The Paris MoU on PSC is an administrative agreement between twenty-seven Maritime Authorities. In 1978 the ‘Hague Memorandum’ between a number of maritime authorities in Western Europe was developed. It dealt mainly with enforcement of shipboard living and working conditions as required by ILO Convention No.147.

5. Ship Risk Profile (SRP). https://www.parismou.org/inspections risk.libraray-flag. A ship’s risk profile is recalculated daily taking into account changes in the more dynamic parameters such as age, the 36 month history and company performance. Recalculation also occurs after every inspection and when the applicable performance tables for flag and R.O.s are changed.

6. Southampton on Shipping Law-Chapter VI-The Liabilities of the Vessel, Richard Shaw and Dr. Michael Tsimplis, (page 156) Institute of Maritime Law-Informa, London (2008).

7. TOTAL NUMBER OF INSPECTIONS AND DETENTIONS PERCENTAGE by Paris MoU. (2012) https://www.parismou.org/inspection-search/inspection-search

8. Indian Ocean MoU. http://www.iomou.org/.Indean Ocean MoU. The Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU), signed in Pretoria (South Africa) on 5 June 1998.