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  • 13 January, 2020

  • 3 Min Read

Right to property

Syllabus subtopic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Prelims and Mains focus: about the SC judgement; Constitutional provisions related to right of property

News: A citizen’s right to own private property is a fundamental right. The State cannot take possession of it without following due procedure and authority of law, the Supreme Court held in a judgment on January 8.

About the case

  • The court was hearing a plea filed by Vidya Devi, a widow, whose four acres of land was taken over by the Himachal Pradesh government in 1967.
  • The appellant (Ms. Devi) being an illiterate widow, coming from a rural background, was wholly unaware of her rights and entitlement in law, and did not file any proceedings for compensation.
  • When Ms. Devi, 80, learnt about her rights in 2010 from her neighbours, who had also lost their property, she approached the Himachal Pradesh High Court. However, when the HC asked her to file a civil suit in the lower court, she moved the Supreme Court.

Details of the SC judgement

  • The State cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’, the court said, adding that grabbing private land and then claiming it as its own makes the State an encroacher.
  • In a welfare state, right to property is a human right, said a Bench of Justices Indu Malhotra and Ajay Rastogi.
  • A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens.
  • The SC ordered the State to pay her Rs.1 crore in compensation,

Constitutional provisons regarding Right to property

  • Before 1978, ‘right to private property was still a fundamental right’ under Article 31 of the Constitution.
  • Property ceased to be a fundamental right (and made a legal right under Article 300A) with the 44th Constitution Amendment in 1978.
  • Nevertheless, Article 300A required the State to follow due procedure and authority of law to deprive a person of his or her private property.

Exception of 44th amendment for classes who still enjoy right to property

  • If the property acquired belongs to an educational institution established & administered by minority, state must offer full market value as compensation.

  • If the state seeks to acquire land cultivated by the owner himself & such land which does not exceed statuary ceiling, then state must offer full market value as compensation.

Fundamental Rights V/S Legal Rights

  • Legal rights are protected & enforced by ordinary law of land whereas FRs are protected & guaranteed by written constitution

  • In violation of legal rights, one can file suit in subordinate court or by writ application in High court whereas in violation of FRs one can directly approach Supreme court

  • Legal rights can be changed by ordinary process of legislation whereas FRs cannot be amended without amending the constitution itself (i.e. by special majority)

  • FRs provides protection only against state action not against a private individual except rights pertaining to abolition of untouchability & rights against exploitation

Six Fundamental Rights in India

Article 14 – 18 Right to Equality

Article 19 – 22 Right to Freedom

Article 23 – 24 Right against Exploitation

Article 25 – 28 Right to Freedom of Religion

Article 29 – 30 Cultural & Education Rights

Article 32 – 35 Right to Constitutional Remedies

Source: The Hindu

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