Yashwant Rao Khogal v. Jahoorbi — 1995 DIGILAW 511 (MP)

JUDGMENT This second appeal was admitted by this Court on 18.3.1987 on the following substantial question of law :- "Whether Afzal Khan's continuance of possession since November, 1960 extinguished plaintiff's title despite pendency of earlier suits and the plaintiff's title had extinguished in principles in Rajendar Singh v. Santa Singh ( AIR 1973 SC 2537 )?" The question contains the word "extinguished". Section 27 of the Limitation Act, 1963 is as extracted below:- "27. Extinguishment of right to property,- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." Under Article 19 in chapter III of the Constitution, a right to property was made a fundamental right and the duty of the protection of the fundamental right was that of the State and the fundamental right was not to be disturbed by the State except as provided under the Constitution. Article 12 of the Constitution has provided the definition of the "State". Article 19 (1) (f) provided that "All citizens shall have the right to acquire, hold and dispose of the property." Holding of the property was a fundamental right. By the Constitution 44th Amendment Act, 1978, clause (f) of Article 19 (1) was deleted as well as Article 31 of the Constitution which provided for compensation and sub-clause (1) of the said Article was to the following effect : "(1) No person shall be deprived of his property save by authority of law." By means of the Constitution (44th Amendment) Act, 1978, a new Chapter IV-A was inserted in the Constitution wherein Article 300-A was inserted and the language of the said Article is to the following effect:-- "300-A. No person shall be deprived of his property save by authority of law." Article 19 (1) (f) and Article 31 were contained in Chapter III of the Constitution but by the Constitution (44th Amendment) Act, 1978, the subject matter of the articles remained no more a fundamental but by introduction of Article 300-A which is couched in the language as stated above and is synonymous to the language of sub-clause (1) of Article 31 of the Constitution. Article 300-A of the Constitution has made the right to property a constitutional right as is stated in AIR 1995 SC 142 Jilubhai Nanblwi Khacha; v. State of Gujrat. Article 300-A of the Constitution has made the right to property a constitutional right as is stated in AIR 1995 SC 142 Jilubhai Nanblwi Khacha; v. State of Gujrat. In para 30, the Supreme Court has said to the following effect : "Thus it is clear that right to property under Art. 300-A is not a basic feature or structure of the Constitution. It is only a constitutional right." This only means that the amendment will not affect the constitutional validity on the ground that it has changed the basic feature of the basic structure of the Constitution. The Supreme Court, in the same context, has said that it is only a constitutional right. This is the position as is settled under Article 300-A of the Constitution. Article 300-A makes the right to property as a constitutional right. The question arises for consideration as to whether a constitutional right can be robbed away by virtue of section 27 of the Indian Limitation Act. Article 300-A of the Constitution speaks that no person shall be deprived of a property save by authority of law. Section 27 of the Limitation Act does not speak for deprivation of property but speaks for extinguishment of the right. There is much difference between the words "deprivation of a right'' and "extinguishment of a right". That, an important question arises further as to whether section 27 of the Limitation Act is violative of the provisions of Article 300-A of the Constitution, as it extinguishes the right to property instead of deprivation of a right to property. Provision of section 27 of the Limitation Act per se seems to be unconstitutional, and for consideration validity of section 27 of the Limitation Act the interpretation of Article 300-Aof the Constitution will be necessary. The preamble and the entire scheme of the Constitution is directed for creating a healthy and peaceful society based on principles and morality. The preamble of the Constitution ensures a dignity to an individual and if a person is robbed of the property by extinguishing his right or his right is allowed to be extinguished by any provision of statutory law, then, it is inconsistent with the provision of Article 300-A of the Constitution as a statutory law cannot extinguish person's constitutional right. The preamble of the Constitution ensures a dignity to an individual and if a person is robbed of the property by extinguishing his right or his right is allowed to be extinguished by any provision of statutory law, then, it is inconsistent with the provision of Article 300-A of the Constitution as a statutory law cannot extinguish person's constitutional right. The adverse possession is something which is more or less advancing dishonesty and prompt a person to be dishonest and therefore anti-social element is leading to the encouragement of the theory "might is right" which is against the basic feature of the Constitution, as under the Constitution, "right is might". The existing conditions in the society also cannot be given a go-bye, as the law is serving for the society and for making the society happy by process of law. Anti-social activities have crossed all limits. Graving of property and holding of the property under threat to life is not uncommon in the society which detracts the holder of the property approach the Court and such mode, if allowed for extinguishment of right, then, it will work havoc in the society, leading to lawlessness. Thus, by no process anyone can be allowed to suffer by extinguishment of his constitutional right to property. Interpretation should be such which may make the rule of law to run with rule of life of peace living. The question of interpretation of Article 300-A of the Constitution simultaneously also involve determination of the validity of the provision of section 27 of the Limitation Act. In view of the provisions of Order XXVIIA Rule 1 CPC I consider it proper to issue notice to the Attorney General of India. Let the notice be issued to the Attorney General of India, returnable within one month. The case may be posted for hearing alongwilh the office report regarding the service of the notice immediately thereafter.