Right To Property May No More Be A Fundamental Right, But Its Sanctity As Human Right Is Still Intact: J&K&L High Court

A bench comprising Justices Tashi Rabstan and Wasim Sadiq Nargal observed:

"No person shall be deprived of his/her property saved by authority of law or procedure established by law as right to property is a human right and also a constitutional right under Article-300-A of the Constitution of India".

The bench was hearing a plea wherein petitioners had thrown challenge to the act of sealing of their property vide a notice issued under Section 8 (1) of the Jammu and Kashmir Control of Building Operations Act, 1988. The petitioners inter alia questioned the act on the ground that no such notice was ever served upon petitioners before it was acted upon by the respondents.

The petitioner further submitted that the notice impugned had been issued merely on assumption as no commercial activity had been started by the petitioners in the said building, as alleged in the said notice. He further contended that the said notice lead to the arbitrary sealing of his building, without affording an opportunity of being heard which is in grave violation of the principles of natural justice.

Adjudicating upon the matter the bench observed that from a conjoint reading of Sections 7 and 8 of the said Act, it is manifestly clear that Section 7(1) of the Act provides for issuance of show cause notice and Section 7(3) of the Act provides for passing the demolition order, if the show cause notice is not replied or the reply is not satisfactory. However, the power of sealing the premises under Section 8 of the Act is directly related to power under Section 7 of the Act and can be exercised only when mischief under Section 7 of the Act is attracted, the bench clarified.

The court further observed that the record clearly reveals that while issuing notice under Section 8(1) of the Act with regard to the sealing of the premises of the petitioners, no opportunity of being heard was given to the petitioners and even no show cause notice was ever served upon them and consequently, depriving the petitioners from their property without adopting due course of law amounts to violation of their rights as enshrined in the Constitution of India and, thus, the act of sealing the premises by the respondents without hearing them by virtue of impugned notice amounts to violation of their constitutional as well as statutory rights.

Delving deep into the law on the subject the bench further noted that the State cannot dispossess a citizen of his property except in accordance with the procedure established by law. To forcibly dispossess a person of his private property without following due process of law, would be violative of human right, as also the constitutional right under Article-300-A of the Constitution of India, Justice Nargal for the bench underscored.

While dealing with the subject the bench found it worthwhile to record the observations of supreme court in Tukaram Kana Joshi v. MIDC, (2013) and K. T. Plantation (P) Ltd. v. State of Karnataka, wherein SC observed.

"The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law".

Allowing the petition and setting aside the notice impugned the bench directed to de-seal the premises of the petitioners with immediate effect. In a democratic polity governed by the rule of law, the State by no stretch of imagination can deprive a citizen of his/her property without the sanction of law, the bench concluded.

Case Title: Meenakshi Chouhan & Ors Vs Jammu Muncipal Corporation & Ors

Citation : 2022 LiveLaw (JKL) 85

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