Right to Property, not only a constitutional right but also a human right

Chhattisgarh High Court: Recently, High Court was hearing a petition from two brothers who were owners of a land which they wanted to sell to one person and for the same, had approached the Arpa Special Area Development Tribunal seeking No Objection Certificate, but denied by the authority for the reason that the said lands have been included in planning area and are required for construction of road under PPP project. The petitioners had approached the High Court under Article 226 challenging the rejection.

The petitioners contended that the right to property is a constitutional right under Article 300-A of the Constitution of India and there is no law prohibiting such transfer by the petitioners and respondent by its executive instruction cannot restrict the petitioners’ right to transfer their immovable property.

The Bench of Sanjay K Agrawal, J. observed that the town development scheme had not been notified under S. 50 (7) of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam 1973 and therefore, no restriction could be made to the owner’s right to transfer the land under S. 53 of Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973.

The Court after utmost circumspection of the records observed that right to property is a human right as well as a constitutional right referring to Indian Handcrafts Emporium v. Union of India, (2003) 7 SCC 589. Thus, it held that the right to acquire, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or constitutional right that no person can be deprived of his property save and except by and in accordance with law and further explained that the word “law” under Article 300-A of the Constitution of India would mean a validly enacted law meaning thereby a just, fair and reasonable law referring to Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 . The Court finally directed the tribunal to grant NOC to the owners of the land within three weeks. [Narayan Prasad v. State of Chhatisgarh,  2017 SCC OnLine Chh 1226, decided on 26.10.2017]

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