Representational image. File

New Delhi

12 January 2020 22:45 IST

‘Grabbing private land and claiming it as its own makes the State an encroacher’

A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a judgment.

The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’, the court said.

Grabbing private land and then claiming it as its own makes the state an encroacher.

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In a welfare state, right to property is a human right, a Bench of Justices Indu Malhotra and Ajay Rastogi declared in their January 8 verdict.

Adverse possession

“A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens,” Justice Malhotra, who authored the judgment, laid down the law.

Yet, this is exactly what happened 52 years ago with Vidya Devi, a widow. The Himachal Pradesh government forcibly took over her four acres at Hamipur district to build a road in 1967.

Justice Malhotra highlights how the state took advantage of Ms. Devi’s illiteracy and failed to pay her a compensation for 52 years.

“The appellant [Ms. Devi] being an illiterate widow, coming from a rural background, was wholly unaware of her rights and entitlement in law, and did not file any proceedings for compensation of the land compulsorily taken over by the state,” Justice Malhotra empathised with Ms. Devi, who is 80 years old now.

Moves HC

Ms. Devi first learnt about her right for compensation in 2010 from her neighbours who had also lost their property to the road. Then, in her 70s, she did not lose time to march straight to the Himachal Pradesh High Court, accompanied by her daughter, to join her neighbours in their fight against the state. But the High Court asked her to file a civil suit in the lower court. Disappointed, Ms. Devi moved the Supreme Court.

Ordering the state to pay her ₹1 crore in compensation, the Supreme Court noted that in 1967, when the government forcibly took over Ms. Devi’s land, ‘right to private property was still a fundamental right’ under Article 31 of the Constitution.

Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. Nevertheless, Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.