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Right to Property is a Constitutional and Human Right: Supreme Court in appeal filed by Hari Krishna Mandir Trust [READ JUDGMENT]

By Shreedhara Purohit      10 August, 2020 03:54 PM      0 Comments
Right to Property is a Constitutional and Human Right: Supreme Court in appeal filed by Hari Krishna Mandir Trust [READ JUDGMENT]

In an appeal filed by Hari Krishna Mandir Trust in the Supreme Court where the Trust earlier filed an application in which it requested the State Government to correct the wrong entry (as the internal road to the Trust) in the name of Pune Municipal Corporation. 

The Urban Development Department, Government of Maharashtra had rejected the proposal and held that the Pune Municipal Corporation is the owner in respect of the land. The High Court dismissed the writ petition challenging the said order passed by the Government and held that the land in question had vested under Section 88 of the Regional and Town Planning Act. 

Allowing the Trust's Appeal, a bench comprising Justices Indu Malhotra and Indira Banerjee observed that the right to property includes any proprietary/ hereditary interest in the right of management of a religious endowment, as well as anything acquired by inheritance. 

The bench also discovered that the High Court misinterpreted Section 88 of the Regional and Town Planning Act, by reading the same in isolation from the other provisions of the Regional and Town Planning Act. In the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as the property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator, the Court said.

The Court also ordered to delete the name of the Pune Municipal Corporation as the owner of the private road in the records of the Scheme and carry out such other consequential alterations.

The Supreme Court also mentioned that when there are no proceedings for acquisition or purchase, no land belonging to the Trust could have vested in the State. In this respect referring to Article 300A of the Constitution, the bench said “The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with the law.”

The court further observed that Article 300A embodies the doctrine of eminent domain which comprises two parts, (i) possession of the property in the public interest; and (ii) payment of reasonable compensation. Executive cannot deprive a person of his property without specific legal authority. Apex Court further said "The State possesses the power to take or control the property of the owner for the benefit of the public. When, however, a State so acts it is obliged to compensate the injury by making just compensation. The right to property includes any proprietary interest hereditary interest in the right of management of a religious endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law."

The court further added that though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. State seeking to acquire private property for a public purpose cannot say that no compensation shall be paid.

The bench while setting aside the High Court judgment mentioned that High Court Not Only Have Power To Issue Mandamus But Are Duty Bound To Exercise Such Power In Cases where the Government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. The High Court must issue a Writ of Mandamus and give directions to obligate an appropriate and lawful execution based on the discretion conferred upon the Government or a public authority.

The Supreme Court in the matter of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. and others have held that the right of property is now considered to be not only a constitutional right but also a human as well as a legal right. It was observed, “The Declaration of Human Rights of 26-8-1789 enunciates under Article 17, Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid”.

The Supreme Court in the matter of Jilubhai Nanbhai Kachar and others Vs. The state of Gujarat and another has held that right to property under Article 300-A of the Constitution of India is subject to State’s restraints and regulation. It was observed that “Property in the legal sense means an aggregate of rights which are guaranteed and protected by law. it extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. The property, therefore, within the constitutional protection, denotes a group of rights inhering citizen’s relation to a physical thing, as the right to possess, use and dispose of it in accordance with the law. In Ramanatha Aiyar’s The Law Lexicon, Reprint Ed. 1987 at p. 1031, it is stated that the property is the most comprehensive of all terms which can be used, in as much as it is indicative and descriptive of every possible interest which the party can have. The term property has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land, in Dwarkadas Srinivas’s case this court gave extended meaning to the word property. Mines, minerals, and quarries are property attracting Article 300-A.”



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