Commissionerate System

Right to Private Property

News Excerpt

Recently, the Supreme Court in its judgment held that a citizen’s right to own private property is a human right. Therefore, the statecannot take possession of private property without following the due procedure and authority of law.

 

Doctrine of Adverse Possession

Under the doctrine, a person who is not the original owner becomes the owner of a property because of the fact that he has been in possession of the property for a minimum of 12-years, within which the real owner did not seek legal recourse to oust him

Reasoning of Court

  • The court opined that the state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’
  • Grabbing private land and then claiming it as its own makes the state an encroacher
  • A welfare state cannot be permitted to take the plea of adverse possession. 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 citizen

Right to Property in India

  • Initially, Right to Property was a part of the Fundamentals rights under Article 19(1) and Article 31. However, certain restrictions were provided to safeguard the public welfare and interest of a Scheduled Tribe. Further, it made an obligation on the State to provide appropriate compensation before acquiring a private property.
  • Later, the government found it difficult to implement its socialist agenda such as Land reforms & agrarian reforms which are often found themselves in legal quagmire.
  • To counter these the government brought several amendments such as Article 31A, 31B, 31C to push forward its agenda. Finally, through the 44th Amendment Act of 1978 abolished the right toproperty as a Fundamental Right by repealing Article 19(1)(f) and Article 31 from Part III.
  • The Act inserted a new Article 300A in Part XII underthe heading ‘Right to Property’. It provides that no person shall be deprivedof his property except by authority of law. Thus, the ‘right to property’ remains a legal right or a constitutional right, though no longer a fundamentalright.
  • It is not a part of the basic structure of the Constitution.
  • The right to property as a legal right has the following implications:
    • It can be regulated i.e., curtailed, abridged or modified without a constitutional amendment by an ordinary law of the Parliament.
    • It protects private property against executive action but not against legislative action.
    • In case of violation, the aggrieved person cannot directly move to the Supreme Court under Article 32 (right to constitutional remedies including writs) for its enforcement. He can move the High Court under Article 226.
    • No guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

Conclusion

In a democratic polity governed by the rule of law, the state cannot deprive citizens of their property without the sanction of law. Hence, it has been held that the right to property is now considered to be not only a constitutional or statutory right but also a human right.