Right to property may not be a fundamental right any longer, but still a Constitutional right: Supreme Court reiterates

In its judgment delivered on Friday, the Supreme Court has reiterated that while the right to property may no longer be a fundamental right, it is still a Constitutional right (Hari Krishna Mandir Trust v. State of Maharashtra and others)..The Bench of Justices Indu Malhotra and Indira Banerjee has reiterated that while right to property is no longer a fundamental right as under Part III of the Constitution, it still enjoys Constitutional protection and is a Constitutional right..This Constitutional right also includes right to manage religious endowments and brings under its ambit acquisitions made through inheritance as well as hereditary interests in the right to management of such religious endowments, the judgment says.."The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.".These findings of the Supreme Court came in an appeal filed by the Hari Krishna Mandir Trust. The Trust had first approached the Bombay High Court seeking the correction of entry in records which showed the Pune Municipal Corporation as having acquired an internal road claimed by the Trust. The High Court had dismissed this petition invoking Section 88 of the Regional and Town Planning Act. This led the Trust to move the Supreme Court in appeal..The Supreme Court allowed the appeal filed by the Trust and held that the High Court had erred in interpreting Section 88 of the Act. The provision ought to have been read in light of the other provisions of the Act. It said that the road, which was admitted not to have been acquired by the Corporation, should have been named in favour of its rightful owner, the Trust..While doing so, the Court also observed that the State cannot deprive any person of their right to property without the mandate of law and without reasonable compensation in return. Moreover, the legal authority of the State can be established in the Court of law, the judgment states..The judgment elaborates that Article 300A of the Constitution embodies a doctrine of eminent domain consisting of two parts - possession of the property by the State in the public interest, and payment of compensation for the same. .When the State acquires private property for a public purpose, it is obligated to pay compensation for the same and cannot skirt this obligation even though the requirement of compensation is not expressly provided for under Article 300A, the Supreme Court said.."...even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid.".High Court duty-bound to exercise power to issue Writ of Mandamus.Commenting on the decision of the Bombay High Court, the Supreme Court added that High Courts not only have the power to issue Writs under their Article 226 jurisdiction but are also duty-bound to exercise such power to pass directions for the State when the State has erred in using the powers conferred on it under any law..In the instant case, the High Court had dismissed the petition filed by the Trust seeking correction in a record entry despite the State's admission that the contentious piece of land never belonged to the Corporation. In this regard, the Supreme Court observed that the High Court was duty-bound to exercise its power under Article 226 to issue a writ of mandamus and direct the State to right the error in records. .The Court said,."The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.".Thus, the Court set aside High Court's decision and allowed the appeal. The Pune Municipal Corporation was ordered to delete its name as the owner of the land in question and make the entry in favour of the rightful owners..Read Judgment:

Right to property may not be a fundamental right any longer, but still a Constitutional right: Supreme Court reiterates

Shruti Mahajan

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