Private property can be a human right: SC

It is evident in the history that the right to property was a fundamental right which was abolished after the amendment of the 44th amendment of 1976. The 44th amendment has changed the whole context with this a new provision, Article 300-A, was added to the constitution, which provided that “No person shall be deprived of his property save by authority of law”. Thus, if a legislator makes a law depriving a person of his property, there would be no obligation on the part of the state to pay anything as compensation.

The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by aggrieved citizens. Now the main question arises regarding the personal property which can be taken by the government under the land acquisition act in the name of public purpose.

Land acquisition in India is governed by the Right to fair compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) and which came into force from 1 January 2014. Till 2013, land acquisition in India was governed by the Land Acquisition Act of 1894. On 31 December 2013, the President of India promulgated an ordinance with an official mandate to “meet the twin objectives of farmer welfare; along with expeditiously meeting the strategic and developmental needs of the country”. An amendment bill was then introduced in Parliament to endorse the Ordinance. Lok Sabha passed the bill but the same is still lying for passage by the Rajya Sabha. On 30 May 2015, President of India promulgated the amendment ordinance for the third time.

Union Government of India has also made and notified the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 under the Act to regulate the procedure. Under the report of the law commission, the major emphasis was put on the definition that what includes public purpose so as define the criteria on which the land is acquired by the government.

Private property can be a human right: SC

Recently in the case of Vidhyan vs state of Himachal Pradesh, there arose the question that right to property is a human right and the adverse possession cannot subtract the right of the party in the land. 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 right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare state, and a Constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A.

Private property can be a human right: SC

In the case, K.T. Plantation Pvt. Ltd. & Anr vs State Of Karnataka on 9 August 2011 the SC has explained that public purpose is a pre-condition for deprivation of a person from his property under Article 300A and the right to claim compensation is also inbuilt in that Article and when a person is deprived of his property the state has to justify both the grounds which may depend on scheme of the statute, legislative policy, object, and purpose of the legislature and other related factors.

In the Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P SC explained that Right to Property in terms of Article 19(1)(f) of the Constitution stood deleted from Chapter III of the Constitution, vide 44th Constitutional Amendment, 1978, Article 300A of the Constitution was added by the same Constitutional Amendment, mandating that `no person shall be deprived of his property save by authority of law’. This indicates that the Constitution still mandates that the right to property may have ceased to be a fundamental right, but it is still protected by the Constitution and is a Constitutional right. Constitution also provides that deprivation of that right cannot be brought about save by authority of law.

It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property.

Private property can be a human right: SC

“Property must be secured, else liberty cannot subsist” was the opinion of John Adams. Union of India v.Sankalchand Himatlal Sheth & anr., [(1977) 4 SCC 193]. At page 240 of the report, Justice Bhagwati, as His Lordship then was, in a concurring opinion held that words in a statute cannot be read in isolation, their color and content are derived from their context and every word in a statute is to be examined in its context Hindustan Petroleum Corpn. Ltd vs Darius Shapur Chenai & Ors on 20 September 2005.

Having regard to the provisions contained in Article 300¬A of the Constitution, the State in the exercise of its power of “eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation, therefore, must be paid.

Private property can be a human right: SC

In N. Padmamma v. S. Ramakrishna Reddy, this Court held that: If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with the law. Article 300¬A of the Constitution protects such rights. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300¬A of the Constitution of India, must be strictly construed.

Now all the cases in some manner have a common judgment affecting that right to property still exists as the human right and when the govt opt to take away the land of the person under land acquisition act then it is necessary to act in the authoritative power and they need to follow the proper procedure from the consent of the person to the compensation.

In my opinion, SC issuing of such verdicts throws a major light that the acquisition of the land under the context of the development must not be such that it is violating its legal as well as an authoritative duty of the bodies present. It must also not lead to harassment of the citizen in name of public purpose.

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