Right to Property in Real Estate: All You Need to Know

The real estate industry has evolved by leaps and bounds over the years, with the government striving to organise the sector, beginning with introducing the National Real Estate Development Council (NAREDCO) as a self-regulatory governing body in 1998. While the laws differ from state to state, there are some crucial Acts that every buyer looking to enter into a transaction should know, such as the RERA Act (2016), Transfer of Property Act (1882), and Registration Act (1908).

As the government continues to protect the buyers' interests, let’s look at one of the principal rights of an individual planning to invest in properties. Known as the Right to Property, the law gave the public a fundamental right to their property. Instituted in the constitution, assuring Indian citizens the right to buy, sell, and hold family properties.

However, an amendment in 1978 removed the ‘fundamental’ title from the right, but it remained a human right. The primary reason was that the government began facing hurdles in acquiring land/properties for the public interest. 

Why doesn't the Right to Property act no longer enjoy fundamental status?

Here are some main reasons why the title of fundamental seized to exist from the Right to Property act. 

• Adopting a holistic view meant tending to public needs over private ones. 
• Adhering to social responsibilities and equilibrium in the economy.
• Providing essential services like water supply, roads, sanitation, street lights, public spaces, and other civic amenities.
• Keeping the bigger picture in mind by having the interests of the public first.

Is the ‘Right to Property’ a constitutional right?

Also known as human rights, these are universal, irrespective of you’re nationality, colour, caste, and creed. On the other hand, a fundamental right is every citizen’s right guaranteed by their respective country. 

Now classified as a human right, the Right to Property states barring the state government or legal authorities, nobody has any control over the owner's property. Transferring powers to the hands of the state government, the law of the land does necessarily guarantee compensation to the owner.

Though the state government has the power to seize control over an individual’s property, there must be a purposeful reason, which should be valid. For example, a property acquired to build civic amenities. The 44th amendment of the Indian constitution in 1978 caused this change.

The Importance of Right to Property (Buyer's Perspective)

1. Legal Protection: The right to property protects property owners in India. It ensures that the ownership and possession of the property are legally recognised and protected from unlawful encroachment or seizure.

2. Investment: Property ownership is a significant investment for most buyers in India. The property right ensures buyers can invest in properties without fear of being dispossessed or deprived of their ownership rights.

3. Inheritance: The right to property also ensures that buyers can pass on their property to their heirs through inheritance. This is particularly important for families who rely on property for income or livelihood.

4. Economic Growth: The right to property plays a crucial role in promoting economic growth and development in India. It encourages individuals and businesses to invest in real estate, increasing employment opportunities, infrastructure development, and economic growth.

5. Social Status: Property ownership is often seen as a symbol of social status and prestige in India. The right to property allows buyers to own properties that reflect their social and economic status, giving them a sense of pride and identity.

The code of conduct to be followed by the government in case of land acquisition

The government appoints an official known as the Land Acquisition Collector, who acts as an administrator. When the concerned legal authorities decide to acquire land, they must issue a notification under Section 4. The notice allows government officials to enter the premises and ensure the land serves their purpose. Before the collector pays a visit to the site, the official must give the landowners notice of seven days, a mandatory exercise.

In case of any property damage, the collector must reimburse all costs. Post all the inspections, and the official will submit a report to the government, which has the final say. If the council agrees to proceed with the acquisition decision, they must issue a one-year notice period under section 4 to the owners.

The Supreme Court’s Judgement

According to the Supreme Court of India, the government of India cannot seize any property without following the necessary legal formalities. The ruling stated that under no circumstances shall the government be allowed to break into the private property of an individual and claim ownership under adverse possession.

Can a citizen challenge the law?

The answer is no, as the state has the ultimate authority in this case. Nevertheless, the citizen is provided with sufficient compensation unless it is unusual.

Hopefully, the above blog has educated you about the Right to Property Act, explaining the amendments and their reasons.