Legal document with property rights, symbolizing ownership and law

Rights in Property Law

Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.

The concept, idea, or philosophy of property underlies all property law. In some jurisdictions, historically all property was owned by the monarch and it devolved through feudal land tenure or other feudal systems of loyalty and fealty.

The rights over the land passed on from one generation to another and became a birthright. This kind of land came to be known as janmam land, and the people who had the ownership right over those lands as janmis. Such birthrights, when transferred from one generation to another, are commonly known in terms of janmam rights in property law.

What is Property Law?

Property law governs ownership of both tangible and intangible objects. Tangible objects include property such as personal belongings, vehicles, buildings, and land. Intangible objects include investments, bank accounts, copyrights, and trademarks. Ownership of property also gives you the ability to use it as you like, and to sell or give it to someone else. The right to transfer property is a key right of property ownership.

Property ownership is a foundational right, one that defines a person’s independence and wealth. Ownership of property is such an important concept that it is protected by the 5th and 14th Amendments to the U.S. Constitution.

The 5th Amendment Takings Clause—“Nor shall private property be taken for public use, without just compensation”—protects individuals when the government takes their private property in order to benefit the public good. This process, called “eminent domain,” is legal in some circumstances, but the government must pay the property owner “just compensation” for the property loss. An example of this “eminent domain” is the government providing compensation to a landowner whose property is needed to expand a public roadway.

While this protection of property rights has been established since the very inception of the U.S., the Takings Clause is open to interpretation. Consider the case Kelo v. City of New London, where the Supreme Court ruled in 2005 that private property could be seized for redevelopment by a private company because the public would benefit from increased tax revenue and jobs.

Judgment of the Supreme Court on Right to Private Property

The question of interpreting the "compensation" promised by the Constitution under Article 32(2) arose for the first time in the case of State of West Bengal v. Mrs. Bela Banerjee and Others, which involved a West Bengal law that sought to compensate the owners based on the market value of their land at some distant date in the past.

In this case, the Supreme Court rejected the socialist arguments of the State; the SC laid down that the compensation should be "a just equivalent of what the owner has been deprived of." However, the Government realized that due to a lack of resources, it would be impossible to pay the full market value of the property acquired, and thus the National Planning and Development undertaken by the Government immediately after the country's independence would be hampered.

Hence, the Parliament came forward with the Constitution Fourth Amendment Act of 1955. The Act provided for compensation for property acquired or requisitioned and either fixed the amount or specified the principles on which it was based. Further, how the compensation was to be determined or given could not be challenged in any Court on the grounds that the compensation provided by the law needed to be increased.

Later, on January 8, 2020, a Supreme Court bench comprised of Justices Ajay Rastogi and Indu Malhotra ruled in the case of Vidya Devi v. The State of Himachal Pradesh & Ors that the Right to Property is a human right.

The Supreme Court issued the verdict in a case in which the Government of Himachal Pradesh had forcibly taken 3.34 hectares of private land to build a road. This incident happened in 1967, at a village in Tehsil Nadaun, Hamirpur district, in Himachal Pradesh. Justice Malhotra highlights how the Himachal Pradesh government took advantage of Ms. Devi’s illiteracy and failed to compensate her for 52 years.

The Supreme Court exercised its extraordinary jurisdiction under Articles 136 and 142 of the Constitution to order the Himachal Government to compensate the woman one crore rupees. Similarly, the Supreme Court Bench referred to an earlier decision in the State of Haryana v. Mukesh Kumar & Ors case (2011), in which the Supreme Court ruled that the right to property is a constitutional or statutory right as well as a human right.

Further, in its ruling, the Supreme Court ruled that the State cannot seize a person’s private property without following the due procedure of the laws.

What are the Landmark Cases Related to Right to Property?

  • A K Gopalan v. State of Madras (1950):
    • This case, heard by the Madras HC, was one of the early instances where the court grappled with the conflict between the right to property and the state’s power to regulate it.
    • The court upheld the constitutionality of the Madras Maintenance of Public Order Act, 1949, which authorized the state to take possession of any property for public order.
  • Kesavananda Bharati v. State of Kerala (1973):
    • This case is often referred to as the "basic structure doctrine" case.
    • While not directly related to the right to property, it is crucial in understanding the constitutional context.
    • The Supreme Court, in a historic decision, held that while the Parliament has the power to amend the Constitution, it cannot alter its basic structure.
    • This case indirectly influenced the subsequent amendment that transformed the right to property into a legal right.
  • Minerva Mills Ltd. v. Union of India (1980):
    • In this case, the Supreme Court struck down parts of the 42nd Amendment Act, 1976, which gave Parliament unbridled power to amend the Constitution.
    • The court, while upholding the amendment abolishing the fundamental right to property, emphasized that even though the right to property is no longer a fundamental right, it continues to be a constitutional right.
  • Jilubhai Nanbhai Khachar v. State of Gujarat (1995):
    • The Supreme Court held that the Right to Property is not a part of the Basic Structure Doctrine of the Constitution.

Doctrine of Adverse Possession

In India, the term "adverse possession" refers to a trespasser or stranger taking exclusive, continuous, and uninterrupted possession of the property for a set period of time. It is usually 12 to 30 years consecutively, depending on the type of ownership (private or public).

Article 65 of the Limitation Act of 1963 states that a person’s rights are extinguished if he does not take appropriate steps to reclaim his property from the person in possession within 12 years. However, the State or Government cannot trespass into the private property of a citizen and then claim ownership of the land in the name of adverse possession.

Conclusion

Originally, the Indian Constitution enshrined seven fundamental rights. In 1978, the 44th Amendment Act of the Constitution removed the right to private property from the list of Fundamental Rights. It is now a legal and human right.

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