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By - Yash Jauhari
What is Property?
The term property is taken from the Latin word ‘proprietary’ and the French word ‘proprious’ which means ‘a thing owned’. As per the judgement of Apex Court, the word property has been interpreted in the article 31 of the Indian Constitution as such: the word “property” should be given a liberal meaning and should include all certain type of interests which have the feature of property right. The word Property in article 300A restricted not only to land alone, it comprises of both corporal and incorporeal rights of the people.
The word property is used also to express the proprietary rights of a man as opposed to his personal rights. It includes the land of a person, his house, his shares in a business, etc. The concept of property and ownership are having close relation to each other. These both are mutually interdependent, here one implies the existence of the other. There is no significance of property without ownership and ownership without property. There are four important modes of the acquisition in case of property. They consist of Possession, Agreement, Prescription and Inheritance.
44th Amendment
Article 300A was inserted in the constitution of India by the 44th amendment in the constitution. It states that no person shall be deprived of his property and the state cannot deprive any person right to property without justifiable application of law. “Right to property is just a constitutional right under Article 300A of the Constitution of India, but not a fundamental right. The deprivation of this right can only be in justification with the procedure established by law and such source of law has to be necessarily traced in the constitution.
Is Right to Property a Fundamental Right?
After the enforcement of Constitution of India in 1950s, right to property was considered as a fundamental right, but now the Indian Constitution does not recognize property right as a fundamental right. In 1977, by the enactment of the 44th amendment in the Indian Constitution, the right to acquire, retain, hold, were disposed of property as a fundamental right. Article 31 and article 19(1)(f) of the constitution safeguards the right to property of the people. Article 31 clause (1) reads as, No person should be deprived of his property which is justiciable by law.
A person can file a suit in Apex court if his right to property is getting violated. Although it is necessary to understand that government is having the eminent power to take and use the private property in the public use. One legal maxim is applicable here- Salus Popluli Est Suprema Lex which means that public welfare is on supremacy.
INTELLECTUAL PROPERTY- RIGHTS IN RE PROPRIA IN IMMATERIAL THINGS
Proprietary rights include both material and immaterial things. Material things are physical or tangible objects whereas all other things which may be subject-matter or intangible are immaterial things.
Intellectual rights are referred as incorporeal property rights. The justification in accepting these types of property is based on the fact that what a man produces belongs to him and the immaterial product or a person’s intellect may be valuable with same relation to other material property. Examples are patents, literary, artistic, musical and dramatic copyrights and commercial goodwill etc.
Right of Lien
According to the section 70 and 71 of the Indian Contract Act 1872, the finder of the goods has the right to retain the goods till the time he does not receives compensation from the bailor (who delivers the goods) or any necessary expense done by him on those goods. Right of lien only gives the power of possession of the goods to the bailee (to whom goods are delivered) but not the ownership or the authority to sell those goods in bailment contract.
Case Laws
Guru Dutt Sharma V. State of Bihar, Apex Court held that it is a bundle of rights and when there is a case of tangible property then it also includes the right of possession, the right to enjoy and right to retain the property.
Hindu Religious Endowment V. K. Lakshmindra, Supreme Court stated that there is no justification why the word ‘property’ as used in Article 19(1) (f) of the constitution should not be given a liberal and wide interpretation and should not be extended to those some recognised types of interests which have the feature of proprietary rights.
Jilubhai Nanbhai Khachar v. State of Gujrat, it was stated that right to property is not a basic structure of the constitution, it is only considered as a constitutional right under article 300A of the constitution.
Hari Krishna Mandir v. The State of Maharashtra and Others, Apex court stated that the plaintiff cannot restricted to use his strip of land which was a private road, without the authority of law, otherwise it will be a violation of the article 300A of the constitution.
K.T. Plantation Pvt. Ltd. v. State of Karnataka, it was held by the Supreme Court that for achieving the public purpose, the law can take use of a private property. This judgement was specifically based on the maxim: Salus Populi Est Suprema Lex.
In 2020, in recent case of Vidhya Devi v. The state of Himanchal Pradesh and Ors, it was stated by the Apex Court that Right to own private property is considered as a human right and cannot be restricted. The defendant party depriving one’s right to property must have the valid authority of law. In this case the plaintiff was given compensation by the state of Himanchal Pradesh for wrong acquisition of plaintiff’s land.
Criticism
Right to property has been a major controversial issue in the country since the formation of the constitution. Initially it was a fundamental right but it became only a constitutional right after the 44th amendment in the constitution. Once it also resulted in conflict between the Supreme Court and the Parliament.
It was the reason in several constitutional amendments: 1st, 4th, 7th, 25th, 39th, 40th, and 42nd Amendment of the Indian Constitution. Articles 31A, 31B, and 31C were added to constitution and changed over time to nullify the effect of Supreme Court judgments and to safeguard some laws from being challenged on the basis of violation of Fundamental Rights.
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