INTRODUCTION

          Property was classified as movable and immovable, corporeal and incorporeal, real and personal. It may mean a thing or a right which a person has in relation to that thing. The expression “property” in the Indian Constitution was given this wide meaning.

           It will be seen from the said definition that the right to property consists of three elements (1) to acquire (2) to own and possess and (3) to dispose of the same. This apparently unrestricted right to property is subject to the laws of social control reflected in the State’s right of “taxation”, its “police power”, and its power of “eminent domain”.

          There is some misapprehension on the scope of the right to property conferred under our Constitution. An assumption by constant repetition has become a conviction in some minds that the right to property has been so entrenched in our Constitution that it is not possible without amendment to enforce the directive principles. A scrutiny of the relevant provisions of the Indian Constitution as they stood on 26-1-1950 will dispel this assumption. They are Articles 14, 19(1)(f), 19(5), 31, 32, 39(b) and (c), 226 and 265.

In India, no fundamental right has given rise to so much of litigation than property right between state and individuals. Through the Supreme Court of India sought to expend the scope and ambit of right of property, but it has been progressively curtailed through constitutional amendments. The Indian version of eminent domain has found in entry 42 List III, which says “acquisition or requisition of property”. Under the original Constitution Article 19(1)(f) and 31 provides for protection of property right and later they were repealed and Article 300A was inserted. Accordingly no person shall be deprived of his property save by the authority of law. However, regarding right to property what is the protection given by the US Constitution under Article 300A. Article 31(2) of the constitution provides for compulsory Acquisition of land. The power of eminent domain is essential to the sovereign government.

The provision of the Fifth Amendment to the constitution of the United States is that private property cannot be taken for public use without just compensation. The principle of compulsory acquisition of property is founded on superior claims of the whole community over an individual citizen, is applicable only in those cases where private property is wanted for public use or demanded for the public welfare. Accordingly, the right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation where the public interest will be in no way promoted by such transfer. The limitation on the power of eminent domain is that the acquisition or taking possession of property must be for a public purpose has been expressly engrafted in clause (2) of Article 31 of the constitution of India.

The gist of the said provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold and dispose of property. A duty is implicit in this right, namely that it should be so reasonably exercised as not to interfere with similar rights of other citizens. The exercise of it, therefore, should be reasonable and in accordance with public interest. The directive principles of State Policy lay down the fundamental principles of State policy, lay down the fundamental principles for the governance of the country, and under the relevant principles for the governance of the country, and under the relevant principles, the State is directed to secure that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

The conflict between the citizen’s right and the State’s power to implement the said principles is reconciled by putting limitations both on the right and the power. The said fundamental right is not absolute. It is subject to the law of reasonable restrictions in the interest of the general public. The State’s power is also subject to the condition that the law made by it in so far it infringes the said fundamental right should stand the double test of reasonableness and public interest. The State also has the power to acquire land of a citizen for a public purpose after paying compensation.

It has the further power to impose taxation on a person in respect of his property. All the laws made in exercise of the said powers are governed by the doctrine of equality subject to the principle of classification. But the question of the validity of the said laws of social control, taxation and acquisition is a justiciable issue. Shortly stated, under the said provisions, the right to property is subject to justiciable laws of social control.

The right to property was initially present in Indian constitution under Part III: Fundamental right, Article 31 but it was abolished by 44th Amendment Act, 1978. Initially it was made a fundamental right so as to provide protection of property and give legality of land to the people living in newly independent India.

But afterwards it was abolished because the Indian government wanted to bring land reforms and encourage social justice (by taking land from landowners who have surplus land and then distributing it to landless farmers). It also aimed to establish equal distribution of resources.

Furthermore it was important for the development of India to abolish it .For example- if Indian government wanted to build a dam or construct a road it had to acquire the people’s property and in return people used to revolt and approach judiciary even though the government compensate them by giving money or land somewhere else for taking their property hence this created problem to the development functions of the government, hence it was abolished. Now it is made a constitutional right under Article 300A which states that no person can be deprived of his / her property except by authority of law.\

Kesavananda Bharti case[1] was decided; its subsequent abolition by the Forty Fourth amendment violated the “basic structure” of the Constitution, and was therefore unconstitutional. In 2010, the Supreme Court dismissed the petition without reaching the merits on grounds that the petitioner was a public interest litigant, not directly affected by the abolition of the fundamental right to property, and that entertaining the petition would lead them to reopening settled constitutional case law on property. In a recent interview with the author, the petitioner indicated that he was considering reviving the petition.

At the same time Article 21 cannot be applied to the acquisition proceedings because objective of the forty fourth amendment shift the concept of property from fundamental right status to legal right status. Therefore, if you say proceedings of acquisition hit Article 21, property right again through back door entry make the property right as a fundamental right, the object of the forty fourth amendment will be defeated.

The topic on property will not be complete without reference to the right to do business. The relevant articles are few in number. Under Article 19(1) (g) all citizens have the right to practise any profession or to carry on any occupation, trade or business.[2] Under Article 19(6), nothing in sub-clause (g) of clause (1) prevents the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the said right or from making any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business or the carrying by the State or by a Corporation owned or controlled by the State, or any trade, business, industries, or service whether to the exclusion, complete or partial of citizens or otherwise. The latter two exceptions were added to clause (6) by the Constitution First Amendment Act, 1951. Articles 301 to 307 deal with freedom of trade, commerce and intercourse within the territory of India subject to certain limitations. Article 305 saves existing laws and laws providing for State monopolies from the provisions of Articles 301 and 303.

It is a complete answer to any challenge under Articles 14 and 19. It protects a law even if it is confiscatory or discriminatory or compensation payable under it is illusory. Thus, tenancy legislation, howsoever drastic, is protected under Article 31-A(l)(a).59 Prima facie, Article 31-A(l)(a) appears to be applicable to all kinds of ‘extinguishment’ or ‘modification’ of estates for whatever purpose. But in Kavalappara Kottaraothil Kochunini v. State of Madras[3] the Supreme Court read down this provision and held that its purpose was to facilitate ‘agrarian reforms’ and, therefore, it would protect only such legislation as had reference to agrarian reform.

The Court held that the justification for conferring protection (not blanket protection) on the IXth Schedule shall be a matter of adjudication, examining the nature and extent of infraction of fundamental right by a statute and such statute sought to be constitutionally protected on the touchstone of the basic structure doctrine as reflected in Article 21 read with Articles 14 and 19. The Court held that Articles 14, 19 and 21 are the basic structure of the Constitution therefore; basic essence of the right cannot be taken away. Essence of the human right (which according to the recent judgments include property rights) would necessarily mean full compensation for acquisition of property right. If the laws affects the basic structure could not be protected even though included in the IXth Schedule.

In Minerva Mills Ltd. & Ors. v. Union of India[4], a Minerva mills was nationalized and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalization) Act, 1974. The petitioners (shareholders and creditors of Minerva Mills Ltd.) challenged the Nationalisation Act on the ground of infraction of Articles 14, 19(1) (f) and (g) and Article 31(2). The Government contended that legislation was protected by amended (scope of Article 31-C was father enlarged by forty second amendment). Article 31-C gives absolute primacy to Directive Principles over Fundamental Rights. “The harmony & balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. However, this harmony (basic structure of the Constitution) is discarded by forty second amendment and accordingly the scope of Article 31-C was enlarged by forty second amendment was declared as unconstitutional.

Referring to Jethmalani’s observations, Bhushan said that “he heard for the first time that Article 19(1) (f) was a charter of the poor”. In Chiranjit Lal’s case[5] it was held that Article 19(1) (f) would continue until the owner deprived of such property by authority of law under Article 31. If there was ‘deprivation’ of property under clause (1) if Article 31 by law, the citizen was not entitled to compensate at all, while he was entitled to compensation if property was acquired or requisitioned under clause (2) upon the point as to what is ‘deprivation’ there was conflict. In Kochunni’s case court made it clear that clause (1) dealt with deprivation of property other than acquisition or requisition as mentioned in the clause (2) and other could be no acquisition or requisition unless there was transfer of ownership or a right to possession to the state or its nominee.

THE IDEOLOGY OF PUBLIC PURPOSE

Under Article 31(2), the state could acquire or requisition property for public purpose only. The concept of ‘public purpose’ connotes public welfare. With the onward march of the concept of socio-economic welfare of the people, notions as to the scope of general interest of the community are fast changing and expanding. The concept of ‘public interest’ is thus elastic and not static, and varies with time and needs of the society. Whatever furthers the general interest of the community as opposed to particular interest of the individuals may be regarded as public purpose. Whether a public purpose existed or not was a justiciable matter as stated by Supreme Court in State of Bombay v. R.S. Nanji[6]. A provision excluding the jurisdiction of the courts from this area, and making decisions of either the executive or the legislature as to the public purpose final and conclusive was held ultravires Article 13(2).

A few example of what held judiciary as ‘public purpose’ for which land could validly be acquired under Article 31 (2) are:

1. Finding accommodation for an individual having no housing accommodation.
2. Housing a staff member of a foreign consulate;

• Accommodating an employee of a road transport corporation – a statutory

         body

1. Accommodating a government servant
2. Nationalization of land
3. Agrarian reform abolishing intermediaries between government and tillers of

         the soil

• Establishing an institution of technical education
• Constructing houses for industrial labour by a company

1. Promoting co-operative housing societies in Delhi to relieve housing shortage
2. Planned development of Delhi

DIFFERENCE BETWEEN ARTICLE 19(1) (f) AND ARTICLE 31(1)

Under Article 19(1) only citizens of India are entitled to claim the right, whereas under Article 31(1) any person irrespective of citizenship not to be deprived of his property without authority of law. Article 19(1) relates to the rights of citizen to acquire, hold and dispose of property though they are not in immediate possession thereof, but under Article 31(1) the person is already in possession of property and then the deprivation is caused by the state. Both these Articles were repealed by the Forty Fourth Amendment Act, 1978.

Reasonableness of Restrictions Article 19(1)(f) guaranteed to the citizens of India a right to acquire, hold and dispose of property. Article 19(5) however, permitted the state to imposed reasonable restrictions on this right in the interest of general public or for the protection of the interests of any scheduled tribe. The[7] expression ‘interest of general public’ in Article 19(5) was held synonymous with ‘public interest’[8]. It did not mean that the interest of the public of the whole of India; it meant interest of a ‘section of the public’. The term ‘public interest’ very broad and it includes public order, public health, morality etc. Whether a piece of legislation was in public interest or not was a justifiable matter. A law designed to abate a grave nuisance and thus protect public health 113 or a law to protect the weaker sections of the public, especially members of low castes 114 was held to be in public interest.

PRINCIPLES LAID DOWN UNDER ARTICLE 300-A

1. The Constitution (after 44th amendment) does not expressly confer the right to acquire, hold and dispose of property. But if a person has acquired and hold the property he cannot be deprived of it without the authority of law. A person cannot be deprived of his property by an executive action or by any other similar device.
2. The protection given to private property under Article 300-A is available to all persons who hold property in India, citizens as well as aliens and natural persons as well as legal persons such as corporate bodies etc.
3. The law authorizing deprivation of property must be passed by the proper authority i.e. by parliament or state legislature.
4. The law empowering deprivation of property must be consistent with all the provisions of the constitution. This means (a) the law must be passed by a competent legislature, and (b) it must not affect adversely any of the rights, fundamental or constitutional – in a manner not warranted by the Constitution. In this behalf, the validity of such law will be examined in the light of the earlier decisions of the Supreme Court.[9]
5. The law authorizing deprivation of property must be fair and just. The approach of the Supreme Court in Maneka Gandhi’s case the term ‘law’ in Article 21 will be the guiding star to the Supreme Court for determining the validity of a law under Article 300A.
6. Such legislation may be challenged as violative of Articles 14, 19, 26 or 30 etc. or other appropriate fundamental rights. It deserves to be noted in this behalf that Article 31-C which is the present form was inserted by twenty fifth amendment specifically confers superiority on directive principles of state policy over fundamental rights conferred by Articles 14, 19 and 31.

NINTH SCHEDULE – A PROTECTIVE UMBRELLA

Article 31-B, does not by itself gives any fundamental right. The Acts and regulations placed under ninth schedule shall not be deemed to be void or ever to have become void on the ground of its inconsistency with any fundamental right.

In Kameshwar Singh case[10], the Supreme Court said that no Act brought under the ninth schedule could be invalidated on the ground of violation of any fundamental rights. With the introduction of the above amendment, it became very easy for the Government to acquire property and to carryout different agrarian reforms. Firstly the acquisition laws under the fear of being challenged were inserted in the ninth schedule by the constitutional amendments and thereby the concerned laws were made immune from challenge against any of the fundamental rights guaranteed under part III of the Constitution. Thus, it was not possible for a citizen to challenge the constitutionality of any acquisition law by which his land has been acquired because, it placed under ninth schedule. Means Article 31-B protected every legislation within the umbrella of the ninth schedule.[11]

Another significant characteristic feature of the Article 31-B is that it is having retrospective effect. As a result of this any legislation earlier declared as void by the Supreme Court on the ground that it violated any of the fundamental rights, revives of such void legislation by inserting the legislation under ninth schedule by constitutional amendment. Supreme Court in State of Uttar Pradesh v. Brijendra Singh[12] held that with this characteristic feature of Article 31-B it became very easy for the parliament to validate any Act already declared as unconstitutional, simply by constitutional amendment putting such unconstitutional Act under the ninth schedule. Once legislation enters into the protective umbrella of the Ninth Schedule its constitutionality cannot be challenged, this position was maintained till the decision of the Supreme Court in Kesavananda Bharati case.

The result of the brief survey of the provisions of the Constitution and the case-law thereon may now be stated in the form of the following propositions:

(1) Every citizen has a fundamental right to acquire, hold and dispose of the property.

(2) The State can make a law imposing reasonable restrictions on the said right in public interest. The said restrictions, under certain circumstances, may amount to deprivation of the said right.

(3) Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not, is a justiciable issue.

(4) The State can by law, deprive a person of his property if the said law of deprivation amounts to a reasonable restriction in public interest within the meaning of Article 19(5).

(5) The State can acquire or requisition the property of a person for a public purpose after paying compensation.

(6) The adequacy of the compensation is not justiciable.

(7) If the compensation fixed by law is illusory or is contrary to the principles relevant to the fixation of compensation, it would be a fraud on power and therefore the validity of such a law becomes justiciable.

(8) Laws of agrarian reform depriving or restricting the rights in an “estate”—the said expression has been defined to include practically every agricultural land in a village—Cannot be questioned on the ground that they have infringed fundamental rights.

The action of the state to assert the Eminent Domain over http subsidiary claims on property and the clash which resulted there from Singur, Nandigram and other parts of India is precisely a manifestation of a clash of cultures. That right to property are basic civil rights has long been recognised. This again would show that if the fundamental right to freedom of speech or personal liberty pertains to basic structure, there is every reason that the fundamental right to property should also pertain to it, as the former set of rights could have no meaning without the latter. Protection of freedom depends ultimately upon the protection of Independence, which can only be secured, if property is made secure.

Hiring A Lawyer To Ascertain Fundamental Rights  

Everybody has fundamental rights according to land laws. But sometimes, people face legal battles because of misunderstandings and conflicts arising from land possession. 

Many real-life stories and news stories about land matters arise as lands become more crowded and commercialized. Families and business partnerships also fight for their fundamental rights in lands acquired through inheritance or personal dealings. 

Land laws encompass a broad legal scope, including personal injury. For example, people may sustain injuries from falling trees on land. If this happens, landowners must be ready to face legal matters. Landowners facing personal injury cases due to tree-related accidents can consult Joe Samnik, a national leader in forensic arboriculture.  

Hiring a lawyer specializing in handling land law cases is important. In that way, landowners and other parties involved in a land-related legal case know their options. Lawyers serve as legal advocates, mediators, and negotiators for all parties to reach an agreement or take the matter to court as necessary. 

But choosing the right lawyer can be challenging, especially one with expertise in land law. It’s crucial to assess the credentials and experience of the attorney before making a final decision. An experienced lawyer can help ensure the property’s security and ascertain their clients’ fundamental rights.

CONCLUSION

Property, as a legal social institution, has different forms in different cultures and legal systems. However, only a definition of constitutional property is common in all democratic countries. Since the state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property.

However, the right to property is a natural and inherent right of an individual. Most of the modern constitutions, except those of communist countries have recognised the right of private property. Therefore, citizens have right to own and possess the property. A person has a right not to be deprived of his property except through due process of law.

[1] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461

[2] https://www.99acres.com/articles/constitutional-provisions-related-to-land-and-property.html

[3] AIR 1960 SC 1080

[4] AIR 1980 SC 1789

[5] Chiranjit Lal Chowdhuri v. UOI And Ors. AIR 1951 SC 41

[6] AIR 1956 SCR 18

[7] https://www.omicsonline.org/open-access/constitutional-battles-on-right-to-property-in-india-2169-0170.1000124.php?aid=26755

[8] http://www.hrcr.org/safrica/property/property_rights.html

[9]https://cprindia.org/sites/default/files/chapters/The%20Fundamental%20Right%20to%20Property%20in%20the%20Indian%20Constitution.pdf

[10] Kameshwar Singh v. State of Bihar AIR 1951 SC 246

[11] https://shodhganga.inflibnet.ac.in/bitstream/10603/48090/9/09_chapter%202.pdf

[12] AIR 1981 SC 636

ANANTA AGGARWAL

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh