JAMMU AND KASHMIR: On Friday, a bench comprising Justices Tashi Rabstan and Wasim Sadiq Nargal in the Jammu and Kashmir and Ladakh High Court observed that even though the Right to Property is not a Fundamental Right anymore but it continues to enjoy the sanctity of being a Human Right.
Court Said – “No person shall be deprived of his/her property saved by authority of law or procedure established by law as the right to property is a human right and also a constitutional right under Article-300-A of the Constitution of India”.
The Cout made this observation while hearing a plea wherein petitioners had thrown a challenge to the act of sealing off their property vide a notice issued under Section 8 (1) of the Jammu and Kashmir Control of Building Operations Act, 1988.
The petitioners questioned the act on the ground that no such notice was ever served upon petitioners before it was acted upon by the respondents. Further, the petitioner informed the Court that the notice had been issued merely on the assumption as no commercial activity had been started by the petitioners in the said building, as alleged in the said notice.
Further, he informed the Court that the said notice lead to the arbitrary sealing of his building, without giving him an opportunity to be heard which is a violation of the principles of natural justice in India.
In reply, 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 the 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 cleared 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 or fight for his case was given to the petitioners and even no short notice was ever served upon them and consequently, depriving the petitioners of their property without adopting the due course of law amounts to a violation of their Human rights as enshrined in the Constitution of India.
And thus, the Court made it clear that an act of sealing the premises by the respondents without hearing them by virtue of impugned notice amounts to a violation of their constitutional as well as statutory rights.
The Court observed 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 a violation of human rights.
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