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Right to Property
By - Vaishali Pal
ABSTRACT
The “constitutional right to property project” examines the right to property’s tumultuous history under the Indian Constitution, from its inception as a fundamental right in 1950 through its elimination as a basic right and its reinstatement as a constitutional right in 1978. The Fundamental Right to Property had the distinction of being not only the second most contentious provision in the Constitution’s drafting, but also the most amended/edited, and the only fundamental right to be eliminated in 1978.
The right to property can be considered a natural human right in some ways. It is a hugely contentious issue that affects many countries including the European Union. The right to property was originally regarded as a fundamental right in India, but by the 44th amendment of the Indian Constitution, under the provision of Article 300(A), it was reduced to merely a constitutional right. Though it appears to be straightforward, the right to property under the Indian Constitution has a unique history that can be described as a long conflict of provisions between India’s legislature and the judiciary.
RIGHT TO PROPERTY
Property is defined as follows under Section 2(c) of the Benami Transactions (Prohibition) Act, 1988: “Property” means “any sort of property, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.” Property is defined as follows under Section 2 (11) of the Sale of Products Act of 1930: “Property” denotes the general property in goods, not just a special property.
According to the Supreme Court in Comma. Hindu Religious Endowment v. Swamiyar (1954), the term “property” as employed in Article 31 should be given a broad interpretation and should include all well-known categories of interests that bear the insignia or characteristics of a property right. It encompasses both corporeal and incorporeal rights as observed in Dwaraka Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd (1958). It comprises money, contracts, property interests such as an allottee’s interest, licensees, mortgages, and property lessees. An identifiable interest in the property is the Mahantship of a Hindu Temple as identified in the Commissioner of Hindu case (Supra) and stockholders with Interests in the Company as stated in State of Bihar v. Kamesh war Singh (1952). The right to a pension is a form of property as noted in State of Kerala v. Padmanabhan Nair (1985).
Everyone has the right to own property alone as well as in association with others. The object of the right to property as it is usually understood nowadays, consists of property already owned or possessed, or of property acquired or to be acquired by a person through lawful means. “Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.
Supreme Court: The 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari, and Hrishikesh Roy, JJ., has set aside the impugned order of the High Court of judicature at Madhya Pradesh, whereby the High Court had upheld taking over of possession and eviction under MP Land Revenue Code, 1959.
The predecessors of the appellant was Bhumi swami of agricultural dryland measuring 64.438 acres situated in Village Bagadua, MP, which was in excess of the ceiling limit prescribed as per S. 7(b) of MP Ceiling on Agricultural Holdings Act, 1960, whereby the prescribed limit was set at 54 acres. Therefore, the competent authority initiated the process to acquire the surplus land. In furtherance of the aforesaid, the State had initiated the process of taking over possession and eviction under Section 248 of the MP Land Revenue Code, 1959. The appellant, being aggrieved filed a suit for declaration of title and permanent injunction before the Trial Court. The appellant contended that the proceedings were illegal as he was actually left with only 54 acres of land which was within the prescribed ceiling limit in view of the fact that the land measuring 17 bighas and 7 Biswas had been decreed in favor of one Jenobai, who was in possession by cultivation for about 20 years.
The Trial Court had held that the appellant was the original Bhumi swami and the suit with Jinbei was collusive as she was the mother-in-law of the appellant and the endeavor was to prevent the surplus land from being acquired by the State. The appellant filed an appeal before First Appellate Court, which was allowed and the judgment of the trial court was set aside on the ground that the competent authority had failed to comply with the statutory provisions under Section 11(3) and 11(4) of the said Act. However, the said judgment was set aside by the High Court noticing that no information was stated to have been provided to the competent authority giving particulars of the suit of Zenobia. The competent authority was held not to be at fault in the alleged breach of Sections 11(3) and 11(4) of the Act, 1960 as the information germane for the same had not been disclosed.
An heir
The legal position of the concept of heir is quite clear. The Indian law, like most laws worldwide, recognizes the concept of an heir. Heirs include those persons, who are legally entitled to inherit property from their ancestors.
Ancestral property is divided among the legal heirs of the owner under various laws in India. This article will give you an understanding of inheritance, the concept of the heir, and property rights in India.
Ancestral property
Under Hindu law, a property would either be a self-acquired property or an ancestral property. The difference between the two types of property is quite self-explanatory. While a property that the owner acquired using his own resources is his self-acquired property, a property that he inherits from his family members is an ancestral property.
What makes the demarcation between the two types of properties pretty complex is the fact that a self-acquired property becomes an ancestral property after a point. The reverse is also true–an ancestral property can also become a self-acquired property. When an ancestral property is divided among members of a joint Hindu family, it becomes self-acquired property in the hands of a family member. Similarly, the self-acquired and undivided property of a person’s great-great-grandfather becomes an ancestral property eventually.
legal heirs of an ancestral property
An heir is a person, who is legally empowered to inherit the estate of his ancestors, who died without leaving a will (known as intestate). After the demise of such a property owner, matters relating to property inheritance and other claims will need to be taken up by their legal heirs.
It begs mentioned here that the concept of an heir differs from one religion to another. This is also why their property rights in the deceased person’s property might also differ according to the religion they come from.
For example, the Hindus Succession Act (HSA) applies to Hindus, Buddhists, Jain and Sikhs, and those who have converted to any of these religions or are born out of wedlock. The Hindu Succession Act does not apply to Indian Muslims and Christians since they have their personal law to determine how the property would be inherited by their legal heirs. In this article, we will examine the property rights of those to whom the Hindu Succession Act is applicable.
CONCLUSION
The right to property: very wide concept and wide possibilities for the state (very wide margin of appreciation ) to pose a legitimate restriction to this right and to regulate its public finance management, in particular, in tax matters and vis-a-visa austerity measures in time of economic crisis.
But there are some limits: proportionality ( are their cases of extreme hardship is the burden divided equally or is there a small that suffers in particular?)
And the principle of non-discrimination (art.14 ECHR, 12th protocol)
The legislator cannot intervene in pending court cases and has to respect the legality principle in criminal cases ( Art .7 ECHR )
References
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