• India
  • Jan 14

Short Takes / Right to private property

In a democratic polity governed by the rule of law, the state cannot deprive citizens of their property without the sanction of law, the Supreme Court held recently.

The apex court ruled that to forcibly dispossess citizens of their private property, without following the due process of law, would be to violate a human right, as also the constitutional right under Article 300A of the Indian Constitution.

What is the case all about?

The court directed the Himachal Pradesh government to pay compensation to an illiterate widow within eight weeks with all statutory benefits, whose land it had acquired in 1967-68 for construction of a road between Nadaun-Sujanpur Road in Hamirpur district without following the acquisition proceedings.

It deprecated the state administration for claiming adverse possession as it has been in continuous possession of the land for more than 42 years.

The court said the petitioner could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation.

“In the present case, the appellant being an illiterate person, who is a widow coming from a rural area, has been deprived of her private property by the state without resorting to the procedure prescribed by law. The appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century,” the court said.

What did the SC say about rights?

A Bench of Justices Indu Malhotra and Ajay Rastogi in its verdict said the state being a welfare state governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

“In a democratic polity governed by the rule of law, the state could not have deprived a citizen of their property without the sanction of law,” the court said.

The Bench referred to an earlier verdict to say 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.

“The state being a welfare state, cannot be permitted to take the plea of adverse possession, which allows a trespasser - a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years,” it said.

The Bench added that 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, as has been done in the present case”.

It said the state cannot dispossess a citizen of his / her property except in accordance with the procedure established by law.

The apex court exercised its extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and directed the state to pay compensation to the woman.

Doctrine of adverse possession

The law on adverse possession is contained in the Indian Limitation Act. Article 65, Schedule I of the Limitation Act says that a person who is not the original owner becomes the owner 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.

Article 136

It deals with special leave petition. Clause 1 says that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

Article 142

It deals with the enforcement of decrees and orders of Supreme Court. Clause 1 says that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

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