Right to property

The term property is derived from the Latin word ‘propertietat’ and the French equivalent ‘proprious’ which means ‘a thing owned’.


The concept was known to ancient Greeks, Hindus, Romans, Jews etc.


The concept of property occupies an important place in human life because it is virtually impossible to live without the use of material objects which constitute the subject matter of property.


The concept of property and ownership are very closely related to each other. The two are mutually interdependent and correlative. One necessary implies the existence of the other. There can be no property without ownership and no ownership without property.


In modern times, apart from its common use, ‘property’ is used in a wider sense also. In its widest sense, it includes all the rights which a person has. Thus a person’s life, liberty, reputation and all other claims which he might have against other persons is his property.


The term property is used also to denote the proprietary rights of a man as opposed to his personal rights. In this sense, it means a person’s land, house, his shares in a business concern etc.


It is used in a third sense also, that is, to mean proprietary rights in rem. Salmond takes the term in this sense. He says: “The law of property is the law of proprietary right in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage, a freehold or leasehold estate in land, or a patent or copyright is property: but a debt or the benefit of the contract is not.”


There is also a fourth and the narrowest sense in which the term ‘property’ is used. In this sense, property includes nothing more than the corporeal property or the right of ownership in material things. Bentham has preferred to interpret the term property in this sense.


According to Ahrens, property is “a material object subject to the immediate power of a person.”


Supreme Court’s View

Defining the property as a legal concept, the Supreme Court in Guru Dutt Sharma V. State of Bihar, observed that it is a bundle of rights, and in the case of tangible property, it would include the right of possession, the right to enjoy, the right to retain, the right to alienate and the right to destroy.


The Supreme Court has said in Commissioner, Hindu Religious Endowment V. K. Lakshmindra, that there is no reason why the word ‘property’ as used in Article 19(1) (f) of the constitution should not be given a liberal and wide connotation and should not be extended to those well recognised types of interests which have the insignia or characteristic of proprietary rights.


It was due to the reason of giving such a wide meaning to ‘property’ that in one case (Shantabai V. State of Bombay) it was held that a bare contractual right unattended with any interest in property is property.


The modern judicial trend to interpret right to property in the light of Article 21 of the Constitution dealing with personal liberty also deserves mention at this place. The Apex Court in a number of cases has expressed the view that Article 21 in its widest magnitude covers a variety of rights which constitute the personal liberty of a man.


Therefore, despite the fact that the right to property as a fundamental right has been abrogated and repealed, this right may still be interpreted by the Court as an aspect of personal liberty under Article 21.


Right to Property in India

After the Indian Independence, when the Constitution of India came into force on 26th January, 1950, the right to property was included as a ‘fundamental right’ under Article 19(1)(f) and Article 31 in Part III, making it an enforceable right.


However, during the first decade of independence era, it was felt that the right to property as a fundamental right was a great impediment in ushering a just socio-economic order and a source of conflict when the State was to acquire private property for public purposes, particularly, expansion of rail, road and industries etc.


In order to get rid of this hurdle, the Supreme Court in the historic case known Fundamental Rights Case held that the right to property is no part of the basic structure of the constitution and therefore, Parliament can acquire or take away private property of persons for concerned good and in the public interest.


Thereafter, Parliament passed the Constitution 44th Amendment which made right to property an ordinary legal right under Article 300-A.


However, the Supreme Court in one of the cases has made it clear that the executive cannot deprive a person of his right to property without the authority of law. The State can acquire a person’s property for public purpose on payment of compensation, which need not be necessarily just equivalent of the value of the property so acquired, but such compensation must not be illusory and irrationally disproportionate.


The latest position with regard to property in India is well expressed by the Supreme Court of India in Indian Handicraft Emporium v. Union Of India, wherein the Court observed that right to property is a human right as a constitutional right under Article 300-A, but it is not a fundamental right. It is indeed a Statutory right but each and every claim to property would not be property rights.


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