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Report No. 157

1.12. Right to Property in the Constitution of India.-

Realising the man's natural instinct and expectation to enjoy the fruits of his labour, right to property was initially included in the Constitution of India as a Fundamental Right under Articles 19(1)(f) and 31, subject, of course, to certain exceptions carved out therein keeping in view the larger interests of the society. Now, while clause (1) of Article 31 has been shifted from Part III to Article 300A, clause 2 of that article, which dealt with compulsory acquisition of property, has been repealed by the Constitution (44th Amendment) Act, 1978.

Sub-clause (f) of clause 1 of Article 19 which guaranteed the right to acquire, hold and dispose of property has also been deleted by that Act. Newly inserted Article 300A of the Constitution now provides that "no person shall be deprived of his property save by authority of law". The result of these changes, in short, is that the right to property has ceased to be a fundamental right under the Constitution of India but has been retained as a constitutional right under Article 300A.

1.13. Machinery for settlement of disputes. Once a man's right to acquire and hold the property is recognised by the State, need to allow him to enjoy his property without any disturbance, subject to certain well defined exceptions which may be made by the state to protect public interests as also to ensure socio-economic justice, naturally arises therefrom. Unless peaceful enjoyment of property by its owner is ensured by the state, his right to property would be meaningless. In the absence of State protection, ultimately the rule "might is right" would govern the state of affairs.

This may lead to conflicts and tension having tendency to disturb law and order in the society, if no machinery for settlement of such disputes is provided by the State. Therefore, it is the fundamental obligation of every government to provide for mechanism for resolution of such disputes. No government can afford to have their citizens perpetually engaged in finding solutions to their disputes by an unending process. It is a fundamental principle of law that where there is a right there is a remedy - ubi jus ibi remedium.

Keeping in view the paramount importance and need of providing effective means for settlement of disputes, adequate provisions have been made in our country for the purpose not only under our Constitution but also under other laws. Apart from constitutional remedies, in our country a litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in civil court having jurisdiction over the matter unless its cognizance is expressly or impliedly barred (section 9, C.P.C.). The Supreme Court has held-

"There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice."1

It may also appear to be justified in terms of providing simple procedure which may help in fighting the delay in the disposal of disputes simultaneously reducing the cost and making justice effective, inexpensive and substantial in character. Inevitable, it is to conclude that such a forum for resolution of disputes should also be able to resolve the lis of interests arising out of disposition of properties. As observed in the Fifty-Fourth Report of the Law Commission on the Code of Civil Procedure, 1908, procedure is a means to justice and it is the duty of the State to see that its legal system does not leave scope for processes which are likely to hinder or defeat justice (para. 1.B.2. thereof).

1. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126, para. 15.

Section 52 of the Transfer of Property Act, 1882 and its Amendment Back

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