Adverse Possession

by Alpana sharma

Introduction

adverse-possession
Adverse Possession

This project is focused on the case analysis of the Adverse Possession. Before moving on to the cases it is necessary to understand the meaning of the word “Possession” which according to the Oxford Dictionary means- The state of having or owing something for a particular time. In general, the possession signify, physical detention coupled with intention to hold the things detained as one’s own to the exclusion of others. So, we can say that possession consist of two elements: (a) Physical control or power over the object possessed called corpus. (b)Intention or will to exercise that power called animus.

Adverse possession, is the possession of property by a person which is adverse to every other person having, or claiming to have a right of possession by virtue of a different title. The law of prescriptive rights is best summed up by the Brocard, ‘nec vi, nec clam, nec precario’, indicating the acquisition of a right by prescription must be in circumstances that exclude ‘force, stealth or licence’. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem. In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, etc.. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished. An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:

Section 27: Extinguishment of Right to Property- 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.

This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.

Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property.

Article 65 deals with cases where the dispute is over title as such also and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff.

Adverse possession of the land is the process by which title to another’s land is acquired without his permission. Adverse Possession is a possession which is opposed to once interest of the real owner of the property. It is possession in denial of the title of the true owner. According to Supreme Court of India, “The law as it exists is extremely harsh for the true owners and a windfall for a dishonest person who had illegally taken possession of the property of the true owner.” In layman language it is called “land grabbing.” Roots of this type of land grabbing lies in the national policy called “Land to the Tiller”. Although the aim of the policy was to abolish of intermediaries between the tiller and Government, some dishonest person used this policy as a license to grab the other person’s land.

Once adverse possession is proved by the person despite by wrong means, the true owner loses his right over the land/property. A person can prove adverse possession if the possession is:

• Actual – Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute.

• Open and Notorious

An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another’s lands does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

• Exclusive

Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

• Hostile

Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner’s rights. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

• Continuous & Uninterrupted – All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”. (In India as per Limitation Act 1963, the statutory period is 12 years)

Case Analysis

Bligh vs. Martin

Facts-An arable field of farmland was included in the parcels of a conveyance in 1945 to the defendant though he did not become aware that this field had been conveyed to him until 1965. The same field was included in the parcels of a conveyance by the same grantor in 1948and the plaintiff’s title rested so far as deeds were concerned on this conveyance. A dispute having arisen in 1966 between the plaintiff and the defendant as to the ownership of the field the plaintiff brought an action in which he claimed title by adverse possession the periods of adverse possession in legal dispute being as events happened, (a) a period from the end of 1954 to Lady Day, 1960, (b) a period from then until Sept, 29, 1960 and (c) the period thereafter until Feb, 16 1961. During the first of these three periods the defendant as contractor under a contractual arrangement made with the plaintiff through the plaintiff’s agents did work of ploughing, sowing and harvesting the field he also turned cattle out on the stubble during the four or five winter months but the plaintiff’s agents did know of this. During the second period the defendant had a seasonal grazing tenancy or licence from the plaintiff of the estate that included the field this being for six months of the year at a rent the defendant continued to put cattle on the field in the winter. The third period was for the legal purpose on the same footing as the winter season immediately preceding that second period. The defendant contended that the field ceased to be in the plaintiff’s adverse possession at some time during the three periods.

Issue- Whether the plaintiff had establish a possessory title by the adverse possession?

Held- The plaintiff had established a possessory title by virtue of the twelve years adverse possession within Section 10 of the Limitation Act, 1939, because as regards the first period the defendant’s user of the field by turning cattle on to it did not amount to dispossessing the plaintiff and did not bring to an end the plaintiff’s adverse possession and during the rest of the year the defendant’s user of the land was as contractor to the plaintiff.

According to the Section 10- (1) no right of action shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run and where under the foregoing provisions of this, Act, any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land. (2) where, a right of action to recover land has accrued and therefore before the right is barred the land ceases to be in the adverse possession, the right of action shall be deemed to accrue unless and until the land is again taken into adverse possession. (3) for the purpose of this section the land in reversion shall b deemed to be adverse possession of the land. It is observed in this case that the twelve year period for the purpose of the statute began on 16, Feb, 1961. This brings in the first summer season of the new arrangement that is the season of 1960.

Possession is a matter of the fact depending on all the particular circumstances of a case. In very many cases possession cannot in the nature of things be continuous from day to day and it is well established that possession may continue to subsist notwithstanding that there are intervals and sometimes long intervals between the acts of user. Plaintiff of his own use the land by turning heifers on to it during winter month falls it seems far short of dispossessing the plaintiff. Possession is from its nature exclusive in this connexion. Both counsel pointed out that where land is subject to a tenancy the landlord and the tenant have each in correct legal parlance possession of the land though in different senses.

So the position as regarding the short period after the summer season of 1960 is the same as that in respect of the winter season immediately preceding that summer season, and no separate argument has directed to the court. For this reasons, the plaintiff has made out a good possessory title.

State of Haryana vs. Mukesh kumar and others

Facts: The State of Haryana had filed a civil suit through the Superintendent of police, Gurgaon, seeking a relief of declaration to the effect that it has acquired the rights by way of adverse possession over the land situated in the revenue estate of Hidayatpur Chhavni, Harayana. The other prayer in the suit was that the sale deed dated 26th March 1990 as well judgement and decree dated on 19th May 1992 passed in civil suit dated 9th March 1992 are liable to be set aside. As a consequential relief, it was also prayed that the defendants be perpetually restrained from interfering with the peaceful possession of the plaintiff (petitioner herein) over the suit land. For the sake of convenience, here, the petitioner is referred as the plaintiff and the respondents as defendants. In the written statement, the defendants raised a number of preliminary objections pertaining to estoppels, cause of action & mis-joinder of necessary parties. It was specifically denied that the disputed property was still lying vacant. However, the plaintiff recently occupied by using the force and thereafter also raised the boundary wall of police line. It was denied in the written statement that the plaintiff right of ownership by way of adverse possession qua property in question. The defendants prayed for dismissal of suit and by the way of a counter claim also prayed for a decree for possession qua suit property be passed.

Issue: 1.Whether plaintiffs become owner of the disputed property by way of adverse possession?

2. Whether defendants are rightful owners of disputed property on the basis of impugned sale deed date 23rd June 1990 registered on 3rd July 1990?

3. Whether defendants are entitled for possession of disputed property?

Overall the main issue of the case is that whether the State which is in charge in protection of life, liberty and property of the people can be permitted to grab the land and the property of its own citizen under the banner of the plea of adverse possession?

The government itself may require land by possession. Fairness dictates and commands that if the government can acquire title to the private land through adverse possession, it should able to lose title under the same circumstances.

Issue No.1 which relates to the adverse possession, according to the trial court the plaintiff has proved to fail the possession over the disputed property because the plaintiff could not produce the documentary evidence to prove this. On the contrary, revenue records placed on the records shows that the defendants are the owners in possession of the disputed property. The trial court observed that possession of the state as claimed in the plaint for a continuous period of 55 years, stood falsified by the documents issued by the officials of the state.

The trial court also observed that despite claiming adverse possession, there was no pleading qua denial of the title of the defendants by the plaintiff, so much so that the specific day when the alleged possession of the state allegedly became the adverse against the defendant has not been mentioned in order to establish the starting point of the limitation could be ascertained. The trail court relied on the judgement of the SM Kaarim vs. Mst. Bibi Sakina wherein the court has laid down that the adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession become adverse. The court also held that long possession is not necessarily adverse possession. The trial court also relied on the decision of the High Court of Punjab And Haryana in the case of Bhim Singh vs. Zile Singh wherein it was establish that no declaration can be sought by a plaintiff woth regard to the ownership on the basis of adverse possession.

The trial court came to specific conclusion that despite the fact that the possession of the plaintiff over the disputed land is admitted on behalf of defendants, issue no. 1 stand decided against the plaintiff. It was held that the suit of the plaintiff claiming ownership by way of adverse possession is not maintainable.

Regarding the issue no. 2 & 3, the trial court observed that once it is held that defendants are the owners of the disputed property, which is presently in possession of the plaintiff without any right, they (defendants) are entitled to its possession.

As a sequel to the findings of this court on the issues mentioned above the suit of the plaintiff stands dismissed, however, counter claims filed by the defendants is decreed with costs to the effect that they are entitled to possession of land situated in revenue estate of Hidayatpur Chhavni.

The plaintiff aggrieved by the judgement of the trial court filed an appeal before the Leaned Additional District Judge, Gurgaon, while deciding they relied on the judgement of the Punjab and Haryana high Court delivered in the case of Food Corporation Of India Vs. Dayal Singh wherein it was observed that it does not behave the government to take the plea of adverse possession against the citizens. They also relied on the case of the Bhim Singh And Kanak Ram vs. Chanan Singh wherein it was held that a person in the adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was not maintainable. Before parting with the judgement the learned Additional District Judge observed regarding the conduct of the plaintiff that the present suit was filed by state of Haryana by then Superintendent of police department is for the protection of the people and property of the citizen and the policed department had unnecessarily dragged the defendants in unnecessary litigation. The appeal was dismissed.

Unfortunately, despite serious decision passed by the court, the State of Haryana did not got satisfied or learned the lessons and preferred a Second Appeal before the high Court of the Punjab And Haryana, Chandigarh against the judgements and the decrees of the two courts.

The High Court, relying on the earlier judgements observed that the welfare state which was responsible for the protection of life and property of its citizen was in the present case itself trying to grab the land/property of the defendants under the garb of plea of adverse possession and hence the action of the plaintiff is deplorable and disgraceful. Unfortunately the State of Haryana was still unsatisfied with three strong judgements by three different forums given against the state quite anxious and keen to grab the property of the defendants in a clandestine manner on the plea of the adverse possession. The revenue records of the state revealed that the disputed property stood in the name of the defendants. It is unfortunate that the Superintendant of the police, a senior official of the Indian Police Service made repeated attempts to grab the property of the true owner by filing repeated appeals before different forums claiming right of ownership by way of adverse possession. The citizens may lose faith in in the entire police administration of the country that those responsible for the safety and security of their life and property are on a spree of garbing the properties from the true owners in a clandestine manner.

Conclusion

In conclusion, one must note that the law of adverse possession is no longer what it used to be, a tool of a powerful squatter buttressed by the lack of awareness on part of the true owner in an ancient law. Today, the law of adverse possession is viewed with great circumspection by the judiciary, and this is a trend that commenced abroad. With the recognition of property as a human right of sorts by the European Court of Human Rights we see the classical conception of the law of adverse possession changing slowly but surely. There, the ECHR held: “The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served.”

 

 

Strict Liability

Strict LiabilityAlpana sharma

Contents

• Introduction of the Strict Liability & importance of it in current scenario

• Facts of the case

• Issue involved in the case

• Evolution of the Strict Liability in India through this case

• Judgment of the case

• Difference between the Strict Liability in India with respect to the principle of it evolved in the Rylands v. Fletcher

• Conclusion

Introduction of the Strict Liability & importance of it in current scenario

Strict Liability is the liability in which the wrongdoer is liable to the acts for which he is not responsible. The need for it was felt in the 19th century, to improve working and safety standards in factories. The doctrine of Strict Liability has formed its foundation in the England’s case Rylands vs. Fletcher in which : The defendant, owned a mill, where he constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn J. held the mill owner to be liable, on the principle that “The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. On appeal this principle of liability without fault was affirmed by the House of Lords but restricted to non- natural users vide. Thus, corporations that handle water, electricity, oil, noxious fumes, colliery spoil and poisonous vegetation are covered by this doctrine. Negligence of the victims is no excuse. The doctrine also operates as a loss-distribution mechanism: The person indulging in such hazardous activities (usually a corporation) being in the best position to spread the loss through insurance and higher prices of its products. However, later decisions in England diluted the principle by introducing several exceptions. The Shriram judgment categorically said that such exceptions would not be applicable in India. The present verdict further emphasises this point and expands its scope.

The doctrine of Strict Liability evolved in India the case of MC Mehta’s where the Supreme Court had imposed the “strict liability” principle on erring industries. It ruled that “if the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overhead”. The court also emphasised that there are no exceptions to the rule of strict liability. Moreover, the amount of compensation would depend upon the capacity of the enterprise and not the earning capacity of the individual victims. In the Union of India vs Prabhakaran, where the Supreme Court had extended its cover to public utilities like the railways, electricity distribution companies, public corporations and local bodies “which may be social utility undertakings not working for private profit”. In this case a woman fell on a railway track and was fatally run over. Her husband demanded compensation. The railways argued that she was negligent as she tried to board a moving train. The Supreme Court rejected this contention and said that her “contributory negligence” should not be considered in such untoward incidents — the railways has “strict liability”. The Supreme Court had applied this doctrine to the electricity mishaps. An electric wire had snapped and fallen on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His widow demanded damages from the electricity authorities, MPSEB vs Shail Kumari, 2002. The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting this contention, the Supreme Court said: “It is no defence on the part of the board that somebody committed mischief by siphoning off energy to his private property and the electrocution was from such diverted line… Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.” The basis of the liability is the “foreseeable risk inherent in the very nature of such activity”.

Strict Liability doctrine can be define as the acts or omissions which are held liable without the mens rea (mental intent). It is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability including the fault in criminal law. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible.

In criminal law, strict liability is liability for which mens rea (Latin for “guilty mind”) does not have to be proven in relation to one or more elements comprising the actus reus (Latin for “guilty act”) although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea. These laws are applied either in regulatory offences enforcing social behaviour where minimal stigma attaches to a person upon conviction, or where society is concerned with the prevention of harm, and wishes to maximise the deterrent value of the offence.

The courts to apply this doctrine must examine the overall purpose of the statute. If the intention is to introduce quasi-criminal offences, strict liability will be acceptable to give quick penalties to encourage future compliance, e.g. fixed-penalty parking offences. But, if the policy issues involved are sufficiently significant and the punishments more severe, the test must be whether reading in a mens rearequirement will defeat Parliament’s intention in creating the particular offence, i.e. if defendants might escape liability too easily by pleading ignorance, this would not address the “mischief” that Parliament was attempting to remedy.

M.C. Mehta And Anr vs Union Of India & Ors on 20 December, 1986

BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH OZA, G.L. (J) DUTT, M.M. (J) SINGH, K.N. (J)

CITATION: 1987 AIR 1086 1987 SCR (1) 819; 1987 SCC (1) 395 JT 1987 (1) 1; 1986 SCALE (2)1188

Facts of the case: The petitioners, in this writ petition under Art. 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Association filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas.

Issue involved in the case

(1) What is the scope and ambit of the jurisdiction of the Supreme Court under Art. 32 since the applications for compensation are sought to be maintained under that Article; (2) Whether Art. 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) What is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1 Excheq- uer 265) apply or is there any other principle on which the liability can be determined.

Issue to be further elaborate here is, “ what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry”.

Evolution of the Strict Liability in India through this case

The rule in Rylands v. Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. The rule evolved, when all the developments of science and technology had not taken place, cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity(1).

The Supreme Court in India said that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. It also said that, it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. Also the Court should not hesitate to evolve such principles of liability merely because it has not been so done in England. In the past years the court has expanded the horizon of the Article 12 and the purpose of it has not been to destroy the raison deter of creating corporations but to advance the human rights jurisprudence.

An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute non-delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. The measure of compensation in such kind of cases must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise.

Indian Courts are not bound by the American exposition of constitutional law, because the social conditions in India are different.

Judgment of the case

Original jurisdiction – Under Article 32 of the Constitution of India.

Justice Bhagwati delivered the judgment that the Bench of three Judge permitted Shriram Foods and Fertiliser Industries to restart its power plant as also plants for manufacture of caustic chlorine including its by-products and recovery plants like soap, glycerine and technical hard oil, subject to the conditions set out in the Judgment. That would have ordinarily put an end to the main controversy raised in the writ petition which was filed in order to obtain a direction for closure of the various units of Shriram on the ground that they were hazardous to the community and the dipute was only, whether the units of Shriram should be directed to be removed from the place where they are presently situate and relocated in another place where there would not be much human habitation so that there would not be any real danger to the health and safety of the people. But while the writ petition was pending there was escape of oleum gas from one of the units of Shriram on 4th and 6th December, 1985 and applications were filed by the Delhi Legal Aid & Advice Board and the Delhi Bar Association for award of compensation to the persons who had suffered harm on account of escape of oleum gas. These applications for compensation raised a number of issues of great constitutional importance and the Bench of three Judges therefore formulated the issues and asked the petitioner and those supporting him as also Shriram to file their respective written submissions. When these applications for compensation came up for hearing it was felt that since the issues raised involved substantial questions of law relating to the interpretation of Articles 21 and 32 of the Constitution.

Shriram is engaged in the manufacture of caustic soda, chlorine etc. Its various units are set up in a single complex surrounded by thickly populated colonies. Chlorine gas is admittedly dangerous to life and’ health. If the gas escapes either from the storage tank or from the filled cylinders or from any other point in the course of production, the health and wellbeing of the people living in the vicinity can be seriously affected. Thus Shriram is engaged in an activity which has the potential to invade the right to life of large sections of people.

The rule in Rylands v. Fletcher was evolved in the year 1866, the liability under the rule is strict and it is no defence that the thing escaped without that person’s willful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. The court said that they no longer need the crutches of a foreign legal order. Although, they can receive light from whatever source it comes but can’t rely fully on them they have to build up its own jurisprudence and cannot countenance an argument that merely because the new law does not recognize the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and responsibilities. An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. Therefore, the court held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher (supra). Also, pointed out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deferent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation pay- able by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.

Difference between the Strict Liability in India with respect to the principle of it evolved in the Rylands v. Fletcher

• The rule in Rylands v. Fletcher requires non-natural use of land by the defendant and escape from his land of the thing, which causes damage. But the rule in MC Mehta v. Union of India is not dependant upon any such conditions. The necessary requirements for applicability of the new rule are that the defendant is engaged in hazardous or inherently dangerous activity and that harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity

• The rule in Rylands v. Fletcher will not cover cases of harm to persons within the premises for the rule requires escape of the thing, which causes harm from the premises. The new rule makes no distinction between the persons within the premises where the enterprise is carried on and persons outside the premises for escape of the thing causing harm from the premises is not a necessary condition for the applicability of the rule.

• Damages awardable where the rule in Rylands v. Fletcher applies will be ordinary or compensatory where as in Methas case the court can allow exemplary damages and the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.

Conclusion

Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.

With the development of the scientific technology the need for the inherently hazardous substance increasing, in order to meet the development program, but, with this simultaneously the law of India is also indulging into the theory of the “welfare state”. So to protect its people the court of India is more stringent & rigorous in its approach to adopt the Strict Liability principle, comparatively to the England. So, in a crime of strict liability (criminal) or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence.

Bibliography

• en.wikipedia.org

• lawmatters.in

• www.business-standard.com

 

 

 

 

 

Impact Of Globalization

ALPANA SHARMA

globalizationWhat is Globalization?

The world dictionary defines globalization as World English Dictionary-(a) The process enabling financial and investment markets to operate internationally, largely as a result of deregulation and improved communications. (b) The emergence since the 1980s of a single world market dominated by multinational companies, leading to a diminishing capacity for national governments to control their economies. (c) The process by which a company, etc, expands to operate internationally

Globalization is a process of interaction and integration among the people, companies, and governments of different nations, a process driven by international trade and investment and aided by information technology. This process has effects on the environment, on culture, on political systems, on economic development and prosperity, and on human physical well-being in societies around the world.

Globalization is not new, though. For thousands of years, people—and, later, corporations—have been buying from and selling to each other in lands at great distances, such as through the famed Silk Road across Central Asia that connected China and Europe during the Middle Ages. Likewise, for centuries, people and corporations have invested in enterprises in other countries. In fact, many of the features of the current wave of globalization are similar to those prevailing before the outbreak of the First World War in 1914.

Though the precise definition of globalisation is still unavailable a few definitions worth viewing, Stephen Gill: defines globalisation as the reduction of transaction cost of trans border movements of capital and goods thus of factors of production and goods. Guy Brainbant: says that the process of globalisation not only includes opening up of world trade, development of advanced means of communication, internationalization of financial markets, growing importance of MNC’s, population migrations and more generally increased mobility of persons, goods, capital, data and ideas but also infections, diseases and pollution.

Merits and De-merits of Globalization

The Merits of Globalization are as follows:

• There is an International market for companies and for consumers there is a wider range of products to choose from.

• Increase in flow of investments from developed countries to developing countries, which can be used for economic reconstruction.

• Greater and faster flow of information between countries and greater cultural interaction has helped to overcome cultural barriers.

• Technological development has resulted in reverse brain drain in developing countries.

The Demerits of Globalization are as follows:

• The outsourcing of jobs to developing countries has resulted in loss of jobs in developed countries.

• There is a greater threat of spread of communicable diseases.

• There is an underlying threat of multinational corporations with immense power ruling the globe.

• For smaller developing nations at the receiving end, it could indirectly lead to a subtle form of colonization.

Introduction

Globalisation is the new buzzword that has come to dominate the world since the nineties of the last century with the end of the cold war and the break-up of the former Soviet Union and the global trend towards the rolling ball. The frontiers of the state with increased reliance on the market economy and renewed faith in the private capital and resources, a process of structural adjustment spurred by the studies and influences of the World Bank and other International organisations have started in many of the developing countries. Also Globalisation has brought in new opportunities to developing countries. Greater access to developed country markets and technology transfer hold out promise improved productivity and higher living standard. But globalisation has also thrown up new challenges like growing inequality across and within nations, volatility in financial market and environmental deteriorations. Another negative aspect of globalisation is that a great majority of developing countries remain removed from the process. Till the nineties the process of globalisation of the Indian economy was constrained by the barriers to trade and investment liberalisation of trade, investment and financial flows initiated in the nineties has progressively lowered the barriers to competition and hastened the pace of globalisation.

Impact on India

India opened up the economy in the early nineties following a major crisis that led by a foreign exchange crunch that dragged the economy close to defaulting on loans. The response was a slew of Domestic and external sector policy measures partly prompted by the immediate needs and partly by the demand of the multilateral organisations. The new policy regime radically pushed forward in favour of a more open and market oriented economy.

Major measures initiated as a part of the liberalisation and globalisation strategy in the early nineties included scrapping of the industrial licensing regime, reduction in the number of areas reserved for the public sector, amendment of the monopolies and the restrictive trade practices act, start of the privatisation programme, reduction in tariff rates and change over to market determined exchange rates.

Over the years there has been a steady liberalisation of the current account transactions, more and more sectors opened up for foreign direct investments and portfolio investments facilitating entry of foreign investors in telecom, roads, ports, airports, insurance and other major sectors.

India is Global

In early 1990s the Indian economy had witnessed dramatic policy changes. The idea behind the new economic model known as Liberalization, Privatization and Globalization in India (LPG), was to make the Indian economy one of the fastest growing economies in the world. An array of reforms was initiated with regard to industrial, trade and social sector to make the economy more competitive. The economic changes initiated have had a dramatic effect on the overall growth of the economy. It also heralded the integration of the Indian economy into the global economy.

The liberalisation of the domestic economy and the increasing integration of India with the global economy have helped step up GDP growth rates, which picked up from 5.6% in 1990-91 to a peak level of 77.8% in 1996-97. Growth rates have slowed down since the country has still been able to achieve 5-6% growth rate in three of the last six years. Though growth rates has slumped to the lowest level 4.3% in 2002-03 mainly because of the worst droughts in two decades. This is major improvement given that India is growth rate in the 1970’s was very low at 3% and GDP growth in countries like Brazil, Indonesia, Korea, and Mexico was more than twice that of India. Though India’s average annual growth rate almost doubled in the eighties to 5.9% it was still lower than the growth rate in China, Korea and Indonesia. The pickup in GDP growth has helped improve India’s global position.

India, an emerging economy, has witnessed unprecedented levels of economic expansion, along with countries like China, Russia, Mexico and Brazil. India, being a cost effective and labor intensive economy, has benefited immensely from outsourcing of work from developed countries, and a strong manufacturing and export oriented industrial framework. With the economic pace picking up, global commodity prices have staged a comeback from their lows and global trade has also seen healthy growth over the last two years. The global economy seems to be recovering after the recent economic shock. The Indian economy, however, was hit in the latter part of the global recession and the real economic growth witnessed a sharp fall, followed by lower exports, lower capital outflow and corporate restructuring. But nevertheless, India’s position is being improved, since 1991, though; India remains a poor country but a fast growing developing country. In the world there is great expectation that India will within a few decades become a developed country, an economic super power by growing rapidly and consistently. At present India’s position of the Indian economy is one of poor country with large population, low per capita income, high corruption, low quality of life, with low productivity but with lot of potential that has just entered the path of high growth.

Globalisation and Poverty

Globalisation in the form of increased integration though trade and investment is an important reason why much progress has been made in reducing poverty and global inequality over recent decades. But it is not the only reason for this often unrecognised progress, good national policies, sound institutions and domestic political stability also matter.

It was in the 1990s that the first economic liberalization policies were initiated by the then Finance Minister Dr Manmohan Singh to encourage the wake of globalization in India. Since then, the economic condition of India has significantly increased. Over the years, India has gradually become one of the fastest growing economies in the world. It has become the 4th largest economy in the world in terms of the purchasing power parity (PPP). It has been expected that the average yearly economic growth will range between 6% and 7 %

Due to the high economic growth, there has been rapid progress in the civic amenities. The per capita income has increased which has improved the standard of living of the masses. As economic growth is a great factor behind the improvement of the poverty, the rise in the economic condition of India had a favorable impact on the reducing the rate of poverty in the country. A major portion of the poverty level in India is from the rural areas whose staple form of income is agriculture and farming. Due to the globalization, Indian agriculture has improved to some extent which has helped to reduce the poverty problems of the rural masses.

Over the years, with the advent of more technology, there has been a significant change in the process of agriculture in the country. Earlier farmers used traditional farming techniques for growing crops. As such, they suffered a lot and the output was affected by a number of factors like pest problems, weather situations and lots more. Due to the globalization and introduction of better equipments, there has been a stark improvement in the techniques of agriculture. Today, farmers are using gadgets like rowers, tractors, electric pipelines and lots more for the cultivation of crops. This has increased the produce in terms of quantity as well as quality. As such, farmers have started earning more and have improved their per capita income and the standard of living.

The government has also taken several positive steps to improve the poverty situation in the rural areas. Irrigational projects have been undertaken, dams have been built and more facilities have been provided to the farmers to increase their agricultural produce. As lots of farmers are poor, they are not in a position to buy expensive equipments. To solve this problem and make them self sufficient, the government also grants financial help and loan to the farmers at very cheap rates. The government has set up the National Bank for Agriculture and Rural Development (NABARD) and various other Regional Rural Banks (RRBs) to financially help the farmers in need. Housing projects are also being undertaken to solve the accommodation problems of the poor.

Also, many of the studies in Globalization and Poverty in fact suggest that globalization has been associated with rising inequality, and that the poor do not always share in the gains from trade. One is that the poor in countries with an abundance of unskilled labor do not always gain from trade reform. Another is that the poor are more likely to share in the gains from globalization when workers enjoy maximum mobility, especially from contracting economic sectors into expanding sectors. Gains likewise arise when poor farmers have access to credit and technical know-how (Zambia), when poor farmers have such social safety nets as income support (Mexico) and when food aid is well targeted (Ethiopia).

The relationship between globalization and poverty is complex, yet, a number of persuasive conclusions may be drawn from the studies in Globalization and Poverty. One conclusion is that the relationship depends not just on trade or financial globalization but on the interaction of globalization with the rest of the economic environment: investments in human capital and infrastructure, promotion of credit and technical assistance to farmers, worthy institutions and governance, and macroeconomic stability, including flexible exchange rates.

Import and export of India

With the growing expansion of free market and influence of globalization, export and import industry has gained momentum in India. Many Indian companies have started becoming respectable players in the International scene. Since Independence, India has made a lot of progress in agriculture in terms of growth in output, yields and area under crops. It has gone through a Green Revolution (food grains), a White Revolution (milk), a Yellow Revolution (oilseeds) and a Blue Revolution (aquaculture). Today, India is one of the largest producers of milk, fruits, cashew nuts, coconuts and tea in the world. It is also well known for the production of wheat, vegetables, sugar, fish, tobacco and rice.

Certain types of agriculture such as horticulture, organic farming, floriculture, genetic engineering, packaging and food processing have the potential to see a surge in revenues through exports. Over the past few years, the government has stressed on the development of horticulture and floriculture by creating vital infrastructure for cold storage, refrigerated transportation, packaging, processing and quality control. If India wishes to optimize the production and export potential of these commodities, then it is essential to improve these facilities, marketing and export networks much further.

In recent years, the Central Government has offered different fiscal incentives for bettering storage facilities in rural areas. It also provides financial assistance to the State Governments for acquiring and distributing food grains at subsidized rates, especially to families with annual income below the poverty line. Today, the improved availability of bank credit through priority lending, favourable terms of trade and liberalized domestic and external trade for agricultural commodities have also encouraged private players to invest in agriculture.

The major thrust of the policies and programmes of the Government of India relating to livestock and fisheries is in the areas of rapid genetic upgradation of milch animals, improvement in the delivery mechanism of breeding inputs, control of animal diseases, creation of disease free zones, increased availability of nutritious feed, development of dairy activities and backyard poultry, development of processing and marketing facilities and enhancement of production and profitability of livestock.

Agriculture exports account for about 13 to 18% of total annual of annual export of the country. Marine products in recent years have emerged as the single largest contributor to the total agricultural export from the country accounting for over one fifth of the total agricultural exports. Cereals (mostly basmati rice and non-basmati rice), oil seeds, tea and coffee are the other prominent products each of which accounts for nearly 5 to 10% of the countries total agricultural exports.

Consequences

The implications of globalisation for a national economy are many. Globalisation has intensified interdependence and competition between economies in the world market. This is reflected in Interdependence in regard to trading in goods and services and in movement of capital. As a result domestic economic developments are not determined entirely by domestic policies and market conditions. Rather, they are influenced by both domestic and international policies and economic conditions. It is thus clear that a globalising economy, while formulating and evaluating its domestic policy cannot afford to ignore the possible actions and reactions of policies and developments in the rest of the world. This constrained the policy option available to the government which implies loss of policy autonomy to some extent, in decision-making at the national level.