The Chhattisgarh High Court recently (WPC No.306 of 2017 Narayan Prasad Vs State of
Chhattisgarh) held that right to
property is not only a constitutional right, but also a human right, that
no person can be deprived save and except by and in accordance with law.
In the present case the petitioners are brothers and owners of a land in Bilaspur which is included within the area known as Arpa Special Area Development Authority, Bilaspur.They made an application before Arpa Special Area Development Authority, Bilaspur (respondent No.2) for 'No Objection Certificate' for sale of their lands which has been rejected by respondent No.2 by the impugned order dated 4.2.2016.
Feeling aggrieved against that order, the present writ petition under Article 226 of the Constitution of India has been filed by the petitioners herein stating inter-alia that right to property is a constitutional right as envisaged under Article 300-A of the Constitution of India and respondent No.2 has no authority and jurisdiction to restrict transfer of land by the petitioners and therefore, the impugned order rejecting their application for 'No Objection Certificate, is unsustainable and bad in law and deserves to be set aside.
On the other hand, the learned counsel appearing for Arpa Development Authority, oppose the writ petition and submit that the petitioners' land has been included in development of Arpa (Sada) Area and therefore, the petitioners' lands are required and needed for the said scheme and the petitioners have no right and authority to transfer the said land to other person without valid 'No Objection Certificate' granted by respondent No.2.
Hearing both the parties the Court found it relevant to quote Article 300-A of the Constitution of India which reads as under:-
“300A. Persons not to be deprived of property save by authority of law.-No person shall be deprived of his property save by authority of law.” and observed
" Thus, right to property is a constitutional right, though right to property is no longer a fundamental right and constitutional protection continues inasmuch as without authority of law, a person cannot be deprived of his property. Right to property is a human right as well as a constitutional right (Indian Handcrafts Emporium and others Vs.Union of India and others (2003) 7 SCC 589). "
" Thus, 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."
" Arpa Development Authority, has been constituted under Section 16 of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973 by notification dated 25.10.2010 and Arpa Planning Area [Development Plan – 2033] has been published, but under Section 50(7) of the Act of 1973 town development scheme has not been yet notified and as such, no town planning scheme is in existence and therefore, Section 53 of the Act of 1973 is not at all attracted to the facts of the present case as preparation of town development scheme is condition precedent for applicability of Section 53 of the Act of 1973."
In deciding the present case Justice Sanjay K. Agrawal found it relevant to refer several judgements of the Supreme Court
The Supreme Court in the matter of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. and others(2007 8 SCC 705) has held that right of property is now considered to be not only a constitutional right but also a human as well as a legal right.
The Supreme Court in the matter of DLF Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana and others (2003) 5 SCC 622) has held that right to transfer the land is incidental to right of ownership of the land and cannot be taken away without authority of law.
The Supreme Court in the matter of Jilubhai Nanbhai Kachar and others Vs. State of Gujarat and another (1995 Supp (1) SCC 596) has held that right to property under Article 300-A of the Constitution of India is subject to State's restraints and regulation.
In the matter of Bishambhar Dayal Chandra Mohan and others Vs. State of Uttar Pradesh and others (1982) 1 SCC 39) the Supreme Court has held that the “law” within the meaning of Article 300-A of the Constitution of India would mean the law enacted by competent legislature
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 ( Delhi Airtech Services (P) Ltd. Vs. State of U.P (2011) 7 SCC 354 )
Then the Court observed that
" Thus, in the light of principles of law laid down by the Supreme Court in the aforesaid judgments (supra), if the facts of the present case are examined, it is quite vivid that town development scheme has not been notified at present under Section 50 (7) of the Act of 1973, therefore, no restriction can be made to the owner's right to transfer the land under Section 53 of the Act of 1973."
" Likewise, there is no law enacted by competent legislature restraining the right of owner of land to transfer his land and as such, right to transfer the land can be restricted only by a statute enacted by competent legislature. In absence of law prohibiting transfer, no restriction to transfer the land can be directed by Arpa Development Authority, as right to property under Article 300-A of the Constitution of India is not only constitutional or legal right, but it is also human right and a person can be deprived of that right only by authority of law."
" As a fallout and consequence of the above-stated discussion, the impugned order dated 4.2.2016 passed by Arpa Special Area
Development Tribunal,
Bilaspur refusing to grant 'No Objection Certificate' to the petitioners is
hereby quashed "
