Abstract –

In India, owning a piece of land has been associated with the societal reputation of a person since ages. After getting freedom from the British, the constitutional experts included provisions that guaranteed some rights related to land and property ownership to the citizens. Further, immediately after the independence, the state government enacted laws to abolish the Zamindari, Jotedari, Ryotwari etc. systems. But soon, these laws were dragged into the court on the basis that they violated the fundamental rights to property of the Zamindars under article 19 and 31. Consequently, the first amendment of the constitution was passed that amended the constitution and secured the constitutional validity of zamindari abolition laws passed by states. The constitution of India has included the Land reform in State subjects. The Entry 18 of the State List is related to land and rights over the land. The state governments are given the power to enact laws over matters related to land.

 

Part IV of the Directive Principles of State Policy also indirectly mandates the government to take measures for land reforms to achieve an egalitarian society.

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INTRODUCTION

        The Constitution of India being a supreme law of the country, every citizen should abide by it. It lays down various principles through Fundamental Right and Directive Principle of State Policy to provide basic amenities to its subjects. It is said to be the lengthiest written constitution in the world. The said constitution was adopted from the Constituent Assembly of India.

The foremost aim of this study is to focus on the constitutional validity of land acquisition in India. Land acquisition is a process where the Government acquires the private property of an individual to fulfil certain public purpose. In today’s scenario land acquisition is consider to be a most problematic issue. The recent issue in land acquisition that comes to our mind is the Chennai to Salem Highway Project, it created huge predicament situation to affected families and also to the Government. It is an essential requirement for every individual to know about law relating to land acquisition because right to property is consider as a most basic right of everyone.

At once the property right was considered to be a Fundamental Right under Part III of the Constitution under Article 19(1) (f). But after 44th Constitution Amendment Act the property right became a constitutional right. This article predominantly highlighted various constitutional provisions relating to property. The right to property can be differentiated as before and after 44th Constitution Amendment Act. This amendment removed Article 31 and replaced it under 300A.

Whether acquisition of property by the Government is valid or not, in spite of destroying the basic property right of individual is an impenetrable question which cannot be made clear. The solution to this question is given in the study. The Constitution empowers the State to acquire land by paying compensation to the affected family only if it is necessary for public purpose. The issue relating to acquisition of land was dealt under Land Acquisition Act 1894 but later on replaced by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. This manuscript also emphasizes on compensation, rehabilitation and resettlement to the affected families under LARR Act.

The ‘Right to property’ was a fundamental right until 1978? The fundamental Right to property was changed to a constitutional right through the 44^th Constitutional Amendment Act, 1978. Other than this, there are a series of important provisions related to land in the Indian constitution. In India, owning a piece of land has been associated with the societal reputation of a person since ages. After getting freedom from the British, the constitutional experts included provisions that guaranteed some rights related to land and property ownership to the citizens of India. 99acres.com has compiled a list of significant provisions related to land, which found a place in the statute book.[1]

 

WHAT IS FUNDAMENTA RIGHTS?

           Fundamental rights are those rights which are essential for intellectual, moral and spiritual developments of an individual. These are enshrined in part III [Article 12 to 35] of Indian constitution. These includes individual rights common to most such as equality before the law, freedom of speech and expression, religious and cultural freedom, freedom of assembly(peaceful assembly), freedom of religion. Fundamental rights apply universally to all citizens irrespective of race, birthplace, religion, caste or gender. The IPC and other laws prescribe punishment for the violation of these rights, subject to the discretion of the judiciary.

 

There are 6 Fundamental Rights recognized by the Indian Constitution: –

1. Right to Equality (Article 14-18)
2. Right to Freedom ( Article 19-22)
3. Right against Exploitation ( Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32-25)

RIGHT TO PROPERTY

            Right to property is a natural and inherent right of an individual. Most of the modern constitutions except those of communist countries have recognized the right to private property. Therefore, citizens have right to own and possess the property. The Right to property was a fundamental right under Article 19 (1) (f) and Article 31 of the Indian constitution. This Article guaranteed to the Indian citizens a right to acquire, hold and dispose of the property. Article 31 categorically said that no person shall be deprived of his property by the authority of law.

Pre 1978 Amendment Act	Article 19(1) (f)
Post 1978 Amendment Act	Article 31A, 300A

     However, by the 44^th Constitutional Amendment Act, 1978, the Right to property was changed to a constitutional right, and a new Article 300A was introduced. It was done to discourage the zamindari system and to redistribute land to the landless people of India. The amendment expands the power of the state to appropriate property for social purpose.

 

According to Devendra Sharma, lawyer and owner of B & D Law Associates, Jaipur, says, “The right to property’’ was already subject to some conditions that the land can be taken by the authority in accordance with the law or in public interest. However, the 44^th amendment changed its nature from fundamental to legal and explicitly took it out of the fundamental rights.”

There is some misapprehension on the scope of the right to property conferred under our constitution. Right to property is so entrenched in our constitution that it is not possible without amendment to enforce the directive principles. Article 14, 19 (5), 31, 32, 39(b) and (c), 226, 265, 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. The exercise should be reasonable and in accordance with the public interest. The conflict between the citizen’s right and the state power to implement the said principles are reconciled by putting limitations both on the right and the power. The said right is not absolute.

 

After the constitution of India came into force, the following agrarian reforms were introduced: –

1. Intermediaries were abolished.
2. Ceiling was fixed on the land holdings.
3. The cultivating tenant within the ceiling secured permanent rights.
4. In some states, the share of the landlords was regulated by law.

These reforms certainly implement the Directive principle of the state policy. All these agrarian reforms could have been introduced within the framework of the original constitution.

 

THE FIFTH SCHEDULE

The fifth schedule of the constitution covers regions in 10 States via Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odessa, and Rajasthan. These States have large indigenous and tribal population. The provision gives them the power to administer their land and resources, in accordance with their customs. This was a right which authorities have sought to dilute, saying the land is needed to develop the industry to generate jobs and income in underdeveloped areas.

 

THE SIXTH SCHEDULE 

            The sixth schedule of the constitution covers the four northeastern States (Assam, Meghalaya, Tripura and Mizoram) that have a large indigenous and tribal population and grants them rights over their land and resources. It allows the formation of Autonomous District Council. Recently, the Supreme Court of India has ruled that indigenous people of Meghalaya (which is covered under the law) have full rights over the land and all its resources and that only the indigenous people can grant permission for the mining activities.

         A clause under Article 371 of the Indian constitution applies to the northeastern State of Nagaland. It protects the customary laws and practices of the indigenous Naga people. It also protects their right to ownership and transfer of land and resources. A separate clause extends similar protections and privileges to the aboriginal Mize people of Mizoram.[2]

THE PESA ACT

The Panchayat (Extension to Scheduled Areas) Act (PESA), 1996, gives power over land and other resources to village councils in the 10 Indian States covered by the fifth schedule and recognizes their customary laws, rituals and practices. The consent of village councils is mandatory for land acquisitions by the State, mining licenses and other development project.

 

CONCEPT AND DEFINITION OF PROPERTY

           The term property till now does not have a proper legal definition under any statute. The important Act that deals with the property is Transfer of Property Act 1882 which does not have a conventional legal definition for property.

 

But there are some Acts that define the term property are as follows:

• Property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property;

• Property means the general property in goods, and not merely a special property.

 

Right to Property

           The Constitution of India under the head “Right to Freedom” guarantees certain Fundamental Right to citizens of India in the form of Article 19, 20, 21A and 22. Right to Property is one among them. The property right can be viewed in two different perspectives that are before and after 44th Amendment.

The Constitution of India guarantees property right as a Fundamental Right under Part III of the Constitution. Article 19(1) (f) confer this right to every citizens of India. Article 19(1) (f) was repealed by 44th Constitutional (Amendment) Act, 1978. So Right to property is not a Fundamental Right after this amendment and Article 31 was also repealed and replaced by Constitution 44th (Amendment) Act to Article 300A. Therefore the right to property became a statutory right in India.

 

RIGHT TO PROPERTY AS A FUNDAMENTAL RIGHT

SCOPE OF ARTICLE 19 (1) (f)

Article 19(1) (f) guarantees fundamental right to property by ensuring that every citizen has a right to acquire, hold and dispose of the property as they wish without any restriction because property right is said to be most basic right available to every class of people without any discrimination with respect to religion, race, caste and sex. It further provide that, if any property has been acquired by the appropriate Government for any public purpose the said Government is under an obligation to pay adequate compensation to the affected person for the loss caused to them.

Though the Constitution guarantees property right to every citizen it also imposes certain restriction under Article 19 (5). By virtue of this Article the State has a power to impose reasonable restrictions on the right confer to the citizen under Article 19 in the interest of general public or in order to protect the rights of Schedule Caste and Schedule Tribe.[3]
This was the situation followed till the Forty-Forth Constitution (Amendment) Act 1978. After this amendment, Article 19 (1) (f) was omitted and now Right to Property is not a Fundamental Right it is merely a legal right in India.

In Indian Handicrafts Emporium and others v. Union of India and others,[4] the Court held that the right to acquire, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or constitutional right that no person can be deprived of his property save and except by and in accordance with law. Further the Supreme Court in the matter of Chairman, Indore Visas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others[5] it was held that right of property is now considered to be not only a constitutional right but also a human as well as a legal right.

Scope of Article 31:

              Article 31 of Indian Constitution deals with “Compulsory Acquisition of Property”, the said Article has undergone various amendments and finally repealed and replaced to Article 300A. This amendment does not have a retrospective effect so the validity of this law made prior to the amendment can be challenged only on ground of violation of Article 14, 19 and 31(2).

               In Dwarkadas Srinivas v. Sholapur Spinning and Weaving Co Ltd,[6] the Chief Justice has laid down certain postulates regarding acquisition under Article 31 of the Constitution, any deprivation of the property should be:

(1) Authorized by law; (Article 31 clause 1)

(2) Necessitated by a public purpose; (Article 31 Clause 2)
(3) Subject to payment of compensation.

Article 31(2) of the Constitution provides that, a property can be acquired by the Appropriate Government only if the property acquired is wholly used for any public purpose as may be specified under the Act.

The State is responsible to pay compensation for the property acquired even though it is not used for acquired purpose. So deprivation of property is enough to make the State liable to pay compensation to the affected person but it must be a substantial deprivation. Article 31(1) and (2) have to be read together while making acquisition. In State of West Bengal v. Subodh Gopal Bose[7] it made it quite clear that the obligation of paying compensation arose only where the state action resulted in the substantial deprivation of private property of the individual. The Supreme Court held that the abridgment of right was not amount to substantial deprivation of the right to property within the meaning of Article 31.

The 17^th amendment act, 1964 by which the state extended the scope of Article 31-A and 9^th schedule protect certain agrarian reform enacted by the cereal and madras states. The word esate in Article 31-A now included any jaggier, inam, mauf or any other right in state of kerela, madras and also ryotwari lands.

Supreme Court in Srimathi Sitabai Devi v. State of West Bengal[8] held that Article 31(2) i.e the provision relating to the acquisition and requisition of land was not subject to article 19(5). In famous R.C. Cooper’s case[9] popularly known as Bank Nationalization case, held that the compensation under Article 31(2) implied full monetary equivalent of the property taken from the owner that is its market value at the date of the acquisition. The Court observed: “Art 31(2) before and after it was amended guaranteed a right to compensation for compulsory acquisition of property and that by giving to the owner, for compulsory acquisition of his property, compensation which was illusory or determined by the application of principles which were irrelevant. The constitutional guarantee of compensation was not complied with”.

The Constitutional (Amendment) Act 1978 came up with important twists and turns in the area of property right. After this amendment there were only four Articles that deal with the right to property such as Article 31A, 31B, 31C and 300A. Though these four articles were placed under Part III as fundamental right but they do not confer the fundamental right in real scenario.

The Constitution (1st Amendment) Act, 1951 inserted Article 31A and Article 31B with retrospective effect and Article 31C was inserted through 25th Constitution Amendment Act, 1971. The purpose of these provisions is to provide immunity with regard to restriction on property rights.

ARTICLE 31A – RELATING TO ACQUISITION OF ESTATES

After the independence, the Government of India decided to abolish the Zamindari system in order to acquire all the properties vested with the zamindari and rich people, and paid compensation to them for acquisition of their property. But an important issue faced by Government is regarding payment of compensation, they felt difficult to compensate the zamindari from the Government treasury and there was no explicit definition or amount of compensation specified in any statute for payment of compensation to aggrieved party.

Articles 31(2) of the Constitution contain provision for compensation but it does not have any adjectives like “just” or “reasonable” to determine a limpid compensation. This Article has been challenged frequently before the Court to look at the word “compensation”. The Supreme Court finally interpreted the term compensation as “just compensation”.

Analogously, Article 14 and 19(1) (f) was also challenged on the ground pertaining to land laws and made various land legislations invalid. The Bihar Land Reform Act 1950 was also one among them which was held unconstitutional on violating the provision of Article 14 of the constitution, on the ground that, it classified the zamindari in a discriminatory manner for the purpose of compensation. Owing to this issue the Central Government came up with amendment to insert Article 31A because there was an apprehension that the entire Zamindari Abolition Program would have been held invalid under Article 14.

Further Article 31A provide that, the State shall acquire any estate or shall modify any right associated with such estate even without paying any compensation but the only possibility is that the power exercised by the State should receive the assent of the President to make it constitutionally valid.

One of the predominant object of Article 31A (1) (a) is to promote the agrarian reform in order to improve agricultural economy. The term “Agrarian Reform” mean a process where the Government redistribute the agriculture land to the farmer and to frame certain reform to develop the agriculture sectors. The Supreme Court held that, Article 31A (1) (a) does not protect legislation which has no relation to agrarian reforms.

The Constitution through Seventeenth amendment in 1964, added second proviso to Article 31A by enlarging the scope of the term ‘estate’ and it imposes certain limitation to acquire an agriculture property. It provides that the State cannot acquire land from any person who holds the land for his personal cultivation if it is within the ceiling limit specified by the Government, in spite of this, if the State wants to acquire any land they have to pay compensation which shall not be less than the market value of the property. This mainly protects the small cultivators who have small acre of land for their own cultivation.

CONSTITUTIONAL VALIDITY OF ARTICLE 31A

In Minerva Mills v. Union of India,[10] the Court held that the whole of Article 31A is unassailable on the basis of stare decisis, a quietus that should not allowed to be disturbed.
The Supreme Court upheld the constitutionality of clause (a) of Article 31A (1) on the test of basic structure.

In Waman Rao and I R Coelho case, the First Amendment in which the Article 31A was introduced and Fourth Amendment which substituted new clauses to this Article has been held constitutional. Based on the judgment of Minerva Mills, I R Coelho and Woman Rao we shall emphasize the constitutional validity of Article 31A of the Constitution.

 

 

ARTICLE 31B – RELATING TO VALIDATION OF ACTS AND REGULATION SPECIFIED UNDER NINTH SCHEDULE

The main object of inserting Article 31B to the Constitution is to validate the Acts and Regulations specified under Ninth Schedule. The Article was inserted by way of first Constitution (Amendment) Act, 1951. The Article states that, any Act or Regulation made under the Ninth Schedule cannot be questioned or challenged on any ground before any Court of law that is it void or inconsistent with any provision of Fundamental Right.

ARTICLE 31C – RELATING TO SAVING OF LAWS GIVING EFFECT TO CERTAIN DIRECTIVE PRINCIPLES

Article 31C of the Constitution gives validity to those laws that are made under the policy of Directive Principle laid down under Part IV of the Constitution. This Article was added by 25th Constitution (Amendment) Act 1971. The position prior to the amendment was that Fundamental Rights were considered primacy over the Directives Principle of State Policy. But this did not prevailed for a longer period of time and the position was changed after the said Constitution amendment. After the amendment the position was that directive principle was given more important than the fundamental rights. The Article also imposed more significant on Article 39(b) [20] and 39 (c) [21] rather than Article 14, 19 and 31 of the Constitution.

The Forty-Second Constitution (Amendment) Act 1976 widens the scope of Article 31C. In Keshvananda Bharati’s case,[11] the validity of Article 31C of the Constitution was questioned before the Supreme Court. The Court in this case upheld the constitution validity of the said Article except the “declaration part “and also gave primacy to Directive Principle of State Policy over Article 14, 19 and 32 under the Fundamental Rights.

A contravention decision regarding the validity of extended part of Article 31C was questioned In Minerva Mills’ case, the Supreme Court in this case stuck down the validity of the extended portion of Article 31C by holding that the Parliament has enacted the provision beyond the power conferred to it under Article 368 of the Constitution and further held that by giving primacy to Directive Principle than the Fundamental right would affect the basic structure of the Constitution.

While in Waman Rao v. Union of India,[12] the Supreme Court upheld the constitutional validity of Article 31C as given in the Kesavanath Barth case. But in Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Company Ltd,[13] the Supreme Court struck down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the “basic features” of the Constitution. The goal set out in Part IV has to be achieved without abrogating the means provided for by Part III. Thus there should be no conflict between the directive principles and the fundamental rights. These are meant to supplement one another. The Court has upheld that Article 31C as originally introduced by the 25th Amendment is constitutionally valid.

In Bhim Singh v. Union of India,[14] the Urban Land (Ceiling and Regulation) Act, 1976 was held to be covered and protected by Article 31C, as much as the purpose of the that law was to inhibit concentration urban land to sub serve the common good, and that said Act was intended to achieve and implement the purpose of the Article 39(b) and (c). Though Article 31A, B and C are under Part III of the Constitution as a Fundamental Right they do not confer[15] Right to property as a Fundamental Right to every citizen of India.

INTERNATIONAL CONVENTION ON RIGHT TO PROPERTY

Right to property is one of the Human Right conferred to every person. The property right is recognized at the international perspective under Universal Declaration of Human Rights.
Article 17 of Universal Declaration of Human Rights, states that:

(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.

It is very difficult to understand the property right in international perspective neither International Covenant on Civil and Political Rights nor International Covenant on Economic, Social and Cultural Rights has not included any controversy regarding the definition and interpretation of property right.

 

LAND ACQUISITION

          Land Acquisition is a process by which the Central Government or the State Government acquires the private property of an individual for any public purpose. The acquired property should be used only for public purpose as may be specified under the law. The individual from whom the property has been acquired have to be compensated for such acquisition along with a proper rehabilitation and resettlement. The process of land acquisition was governed by Land Acquisition Act, 1894. In Somavanti v. State of Punjab,[16] the Supreme Court held that object of the Land Acquisition Act was to empower the government to acquire land only for public purposes or for a company. Where it is for a company the provisions of part VII should be complied with, only after the government is satisfied that the purpose of the company is directly connected with or for the construction of some work which is likely to prove directly useful to the public land, could be acquired.
But later on the said Act was replaced by Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement 2013. At present this Act is governing all the procedure for acquisition of land.

 

 

CONSTITUTIONAL VALIDITY OF LAND ACQUISITION:

The Right to Property became a Constitutional Right after the Forty-Forth Constitution (Amendment) Act 1978. This amendment removed Article 31 and replaced it under Article 300A. The Constitution assures that “No person shall be deprived of his property saved by the authority of law”.

The 44th Constitution Amendment came up with two important implications:

1. After this amendment Right to Property was considered as a Constitutional Right and it is no more a Fundamental Right. Any legislation challenging the constitutional right to property can be made only before the High Court and the issue cannot be challenged before the Supreme Court directly under Article 32 of the Constitution.

   2. The State is under an obligation to pay compensation for the land acquired by the Government for any public purpose, but this position has been changed after 44th amendment by deleting Article 31of the Constitution and the State is no longer liable to compensate the affected family for such acquisition.[17]

The Constitutional Right under Article 300A is not the basic feature or structure of the Constitution. In State of Maharashtra v. Chandrabhan,[18] the Supreme held that, after the 44th amendment property right is ceased to be a Fundamental Right under the Constitution and considered as legal as well as human rights.

 

POWER OF EXECUTIVE AUTHORITY TO INTERFERE WITH RIGHT TO PROPERTY

The right to property is said to have universal recognition in almost all democratic countries. In USA also the same principles has been reaffirmed and it can be witnessed in Youngstown Steel and Tube Co v. Sawyer,[19] the US Supreme Court held that the acquisition of steel mill by President Decree in the absence of any appropriate provision under the law was said to be unconstitutional.

The Article 300A of the Constitution permits the Executive authorities with the power to acquire lands from the individuals when there is an express provision which authorize them to deprive the property of that individual.

In State of West Bengal v. Vishnunarayan & Association,[20] the State Government of West Bengal undertook eviction of some of the tenants from its property by force, therefore the Supreme Court held that possession can be resumed by the State Government only in the manner known to and recognized by the law but not otherwise. This Article has a close nexus with the concept of Eminent Domain specified in Entry 42 of List III of the Seventh Schedule of the Constitution.

 

OTHER IMPORTANT LAWS RELATED TO THE PROTECTION OF LAND RIGHTS

           The hilly State of Himachal Pradesh restricts the sale and transfer of farming land to non-farmers without the consent of State government authorities. This law was devised in a bid to conserve the scarce resource in the hilly terrain. A British-era law in the State of Jharkhand protects indigenous land from being sold or transferred to non-tribal people. Recently, attempts by the State to amend the law led to violent protests from the tribal people.

            The “Disturbed Areas Act” (1991) of Gujarat covers more than six cities and restricts the sale or 0transfer of property without permission of the local authorities. While aimed at preventing haphazard sale in places[21] affected by civil unrest, critics say the law has led to ghettoization (pockets) of minority communities. The law was amended recently to give authorities greater power, including preventing clustering of communities on the basis of religion. The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished in 1978. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements. In line with the tenets of democratic socialism, the Constituent Assembly sought to transition to a liberal democratic legal order, which guaranteed rights of liberty, equality, and property, while simultaneously endeavoring to achieve social and economic transformation premised on land reform and redistribution of resources.

 However, the inherent contradiction between conserving existing property rights and ushering in a more egalitarian society through redistribution of land led to intense debate within the Constituent Assembly, ending in an uneasy compromise between competing interests. As ultimately adopted, Article 19(1) (f) of the Constitution guaranteed to all citizens the fundamental right to ‘acquire, hold and dispose of property’. This right was however subject to reasonable restrictions by the union and State legislatures in the public interest, stipulated in Article 19(6). Moreover, Article 31 of the Constitution provided that any State acquisition of property must only be upon enactment of valid law, for a public purpose and upon payment of compensation. Certain laws were exempted from these requirements. The paradox implicit in guaranteeing a fundamental right to property, while simultaneously embarking on a developmental project of land reform and State planned industrial growth, predictably resulted in tensions between the legislature and the executive on the one hand, that sought to implement this development agenda, and the judiciary on the other, which enforced the fundamental right to property of those affected. In the decades that followed, judicial enforcement of the property clause resulted in the invalidation of several laws seeking to bring about social and economic reform including land reform legislation, provoking several parliamentary amendments to the constitution. [22]

              The Forty Fourth Constitutional Amendment, 1978, deleted Articles 19(1) (f) and 31 from Part III, the chapter on Fundamental Rights in the Constitution. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby depriving the ‘right to property’ of its ‘fundamental right’ status. The Fundamental Right to Property in the Constitution, 1950 and section 299 of the Government of India Act, 1935: Shifts and continuities the controversy surrounding the guarantee of a fundamental right to property had centred chiefly on the wording of Article 31.

            Surprisingly, the wording of Article 19(1) (f) and (5) attracted little debate even though no such provision had existed in the Government of India Act. ‘Acquisition and requisitioning of property’ was included as a subject in the Concurrent List enabling both Parliament and the State legislatures to enact laws on the subject.4Article 31 was taken almost verbatim from section 299 of the Government of India Act 1935, but with certain key differences that greatly strengthened the protection of certain kinds of property rights in post independent India and weakened those of others. Section 299in turn gave ‘constitutional’ or ‘entrenched’ status to restrictions on the State’s power of compulsory takeover of land that had been enshrined in a series of colonial legislation starting from the Bengal Regulation I 1824 and culminating in the Land Acquisition Act 1894. Section 299 of the Government of India Act had provided in relevant part:

(1)  No person shall be deprived of his property in British India save by authority of law

(2)  Neither the federal nor a provincial legislature shall have the power to make any law authorizing the compulsory acquisition for public purposes of any land,

(3)  No bill or amendment making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in either chamber of the Federal Legislature without the previous sanction of the Governor General in his discretion, or in a chamber of provincial Legislature without the previous sanction of the Governor in his discretion.

  Clause (1) embodied the fundamental principle of the common law that the executive may not extinguish property rights without the authority of the legislature. Clause (2) was intended to apply only to the compulsory acquisition of land and undertakings. This was done ostensibly so as not to compromise laws relating to taxation.8 Clause 3 safeguarded certain vested interests, including zamindari9 and grants of land or tenure of land free of land revenue or subject to remissions of land revenue like talukdaris, inamdaris and jagirdaris. Aston these ‘particular classes of property’, there was a requirement that the Governor General (or the Governor of a province) give his previous sanction for any legislation that would transfer such property to public ownership or extinguish or modify the rights of individuals ignite It was precisely this colonial legacy that the Constituent Assembly tried to reverse in the drafting of Article 3.

 

The Constituent Assembly debate on the drafting of Article 31 had centered on the following aspects of the provision:

1. How do we balance the individual right to property with social and economic reform?
2. Whether the meaning of ‘public purpose’ should be restricted to government purpose or could also include within its ambit broader social purposes?
3. What constitutes an ‘acquisition’ or ‘deprivation’ of property that would justify payment of compensation?
4. What do we mean by ‘compensation’ and ‘fair’, ‘equitable’ and ‘just’?
5. Who would be the ultimate arbiter of the quantum of compensation and the form in which it would be paid?

 

As finally adopted, Article 31 provided as follows:

 

(1) No person shall be deprived of his property save by authority of law

(2) No property, movable or immovable, including any interest in, or any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorizing the taking such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

(3) No such law as is referred to in clause (2), made by the legislature of a State shall have effect, unless such law, having been reserved for the consideration of the President, receives his assent.

(4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called into question in any court on the ground that it contravenes the provisions of clause (2). (5) Nothing in clause (2) shall affect;

1. The provisions of any existing law other than a law to which the provisions of clause (6) apply
2. The provisions of any law which the State will hereafter make
3. For the purpose of imposing or levying any tax or penalty, or
4. For the promotion of public health or the prevention of danger to life or property, or

iii. In pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India or the Government of India and that of any other country, or otherwise, with respect to property declared by laws evacuee property.

(6) Any law of the State enacted not more than 18 months before the commencement of the Constitution may within 3 months of such commencement be submitted to the President for his certification; and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provision of clause (2) of this article or that it has contravened the provisions of clause (2) of section299 of the Government of India Act, 1935. Clauses (1) and (2) of Article 31 were taken almost verbatim from section 299(1) and (2) of the Government of India Act 1935 with two differences. First, section 299 was restricted to cases of ‘compulsory acquisition of property’ but under Article 31, the protection for property also extended to ‘taking possession’ of property for public purposes. Thus, Article31 mandated the payment of compensation even in cases where there was no transfer of title to the government.

      Second, Article 31(2) implicitly allowed legislatures to provide for compensation in some form (egg in bonds) other than monetary ‘payment’ as required under section 299(2) of the Government of India Act. Clauses (4) and (6) were specially designed to protect land reform legislation. They created exceptions to the protection for property rights guaranteed in clauses (1) and (2) but these exceptions were not substantive, insofar as they did not define the property rights or interests that were exempted from the protections of Article 31. Instead they referred to periods of time, laws enacted during which, would be exempt from the requirements of Article 31(2).Thus, clause 4 exempted laws enacted from bills that were pending at the time that the Constitution went into effect. Clause 6 exempted laws that were enacted eighteen months before that date. Laws of both types needed the assent of the President, in effect that of the union executive.

     Within the Constituent Assembly, there was a consensus on treating major land reform programmes on a different footing from other kinds of State acquisition of property. There was however no consensus on the exact terms on which such land reform should be carried out. Zamindari and other intermediary tenures were to be abolished upon the payment of ‘some’ compensation though not ‘just’ or ‘market value’ compensation. 11 Cases of ‘individual’ acquisitions were justifiable even though many believed that the legislators who represented the interests of the people should be the ultimate arbiters.12 when it came tactual drafting however, the only enactments protected from judicial review were those covered by the express provisions of Article 31(4) and (6). Ultimately, these clauses proved to be inadequate for the purpose of protecting land reforms throughout India, in part because the enactment and execution of all the State land reform laws took much longer than was perhaps anticipated. This in turn created the need for further amendments to the Constitutional a later date.

      There were two other important differences between section 299 and Article 31. First, Article31 (5) (b) (ii) to which there was no corresponding provision in the Government of India Act1935 enabled the State to make laws for the protection of public health or the prevention of danger to life or property and stipulated that such laws even if they ‘acquired’ or ‘took possession’ of property within the meaning of clause (2), would be exempt from the requirement of compensation contained in that clause. Zoning laws that limit constructi0n an individual owner’s land or property, or laws requiring the destruction of dangerous structures are examples of laws that would be saved by clause 5(b) (ii).

     Second, the inclusion of Article 19(1)(f) in the Constitution, for which there was no corresponding provision in the 1935 Act meant that not only must any deprivation of property take place after a validly enacted law, but the law must satisfy the requirements of Article 19(5) insofar as it affected the property of a citizen. From the very outset, there was considerable litigation with respect to the constitutional property clause. Significantly, almost all of the cases where laws were challenged on grounds of violation of property rights also involved a challenge on the basis of the Article 14guarantee of the right to equality. In the following sections, I will review the most important Supreme Court and High Court cases that outlined the doctrinal framework for interpretation of the property clause, at least until such time this framework was superseded by subsequent constitutional amendments. Agrarian Reform and the First, Fourth and Seventeenth Amendments [Article31(4) and (6), Articles 31A and 31 B] Even before the Constitution was adopted in January 1950, seminars challenged the constitutional validity of the Bihar, Madhya Pradesh and United Provinces 13 zamindari abolition laws as violating the property and equality guarantees of the Constitution. These challenges were made even though the drafters had sought specifically, though not expressly, to protect these laws through the adoption of clauses (4) and (6) in Article 31.In each of these cases, the petitioners claimed that the impugned acquisition law served no ‘public purpose’, did not adequately compensate them within the meaning of Article 31(2) of the Constitution and impermissibly discriminated against certain landlords in violation of Article 14 of the Constitution.

     While the Allahabad and Bhopal High Courts upheld the constitutional validity of the Upend MP laws, the Patna High Court invalidated the Bihar law for violating the right toequality. The Patna High Court held that Article 31(4) only protected laws against judicial review under the compensation provisions of Article 31(2) but not under the provisions of other fundamental rights contained in the Constitution. All three decisions were appealed before the Supreme Court but before the Court could give its decision, the Constitution was amended to nullify the effect of the Patna High Court decision in the Kameshwar Singh case v. State of Bihar.[23]

      The Constitution (First Amendment) Act 1951, enacted Articles 31Aand 31B and also introduced the Ninth Schedule in the Constitution. Through the adoption of these provisions, the amenders sought to do what had not been attempted in the original Article 31, namely to define the kinds of interests that should be placed beyond the protection of the compensation requirement in clause (2) of Article 31 and also of the other fundamental rights contained in Articles 14 and 19. Article 31A (1) provided that ‘no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights’ would be deemed void on grounds of inconsistency with the fundamental rights contained in Part III. Clause 2 defined the expression ‘estate’. Clause 2(a) defined ‘estate’ to have the ‘same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area’ and stated that it ‘shall also include any jaggier, imam or mafia or other similar grant’. Clause 2(b) defined ‘rights, in relation to an estate’, to include ‘any rights vesting in a proprietor, sub- proprietor, under-proprietor, tenure-holder, or other intermediary and any rights or privileges in respect of land revenue’.

     The First Amendment also introduced Article 31B and the Ninth Schedule into the Constitution. Article 31 B stipulated that no provision of any law in the Ninth Schedule ‘shall be deemed to be void, or ever to have become void, on the ground that [it]… is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part’, that is, the Fundamental Rights. In other words, Article 13(1), which provided that any law inconsistent with the fundamental rights was invalid to the extent of that inconsistency, was in effect repealed so far as laws listed in the Ninth Schedule were concerned. Thirteen laws were listed in the Ninth Schedule including the Bihar Land Reform Act.

     The seminars of Bihar then attacked the validity of the First Amendment in Shankari Prasad Doe v Union of India[24] but the Supreme Court upheld it.18 The Court then went on to decide the appeals from the Patna, Allahabad and Bhopal High Courts. In State of Bihar v Kames war Singh the Supreme Court upheld the constitutional validity of the Bihar Land Reforms Act 1950, but by a majority of3:2, found two provisions of the Act to be unconstitutional. Barred from considering the law against the requirements of Fundamental Rights in Part III, in a clear stretch on judicial reasoning, the Court found that these provisions offended against (a) an inherent need in eminent domain that an acquisition be for a ‘public purpose’ and (b) against Entry 42 in the Concurrent List, which mentioned ‘principles on which compensation for property acquired or requisitioned…is to be given’.

      For almost a decade after the First Amendment, the High Courts and the Supreme Court were involved in the resolution of cases involving zamindari abolition. Yet despite its controversial pronouncement in the Kames war Singh case, in all subsequent cases, the Supreme Court upheld zamindari abolition laws in their entirety. While the Court emphasized that payment of compensation for acquisition of property was a fundamental right under Article 31(2) of the Constitution, it recognized that judicial review of laws infringing this fundamental right was excluded in the case of zamindari abolition laws in accordance with the Provisional Parliament’s intent as expressed through the enactment of the First Amendment to the Constitution. But although the question of zamindari abolition was fairly settled, the question of what else was covered by the definition of ‘estate’ in the First Amendment was not, when Parliament enacted the Constitution (Fourth Amendment) Act, 1955. Described in greater detail in the next section, the Fourth Amendment made many changes to Article 31 and inserted Article 31 (2A). Significantly, the Fourth Amendment also substituted clause (1) of Article 31A,20and amended Article 31A (2) (b) to add the terms ‘radiates’ and ‘under radiates’ to the list of those whose ‘rights’ in an estate were removed from the protection of Articles 14, 19(1) (f) and 31.Apart from facilitating the abolition of intermediary tenures in the non-zamindari areas, the jagirdari, mahalwari, rotary and other miscellaneous land tenures, the Fourth Amendment also sought to facilitate the next stage of land reform involving imposition of land ceilings and redistribution of holdings. Again it fell to the courts to delineate what kinds of land revenue arrangements constituted ‘estates’ and ‘rights in relation to an estate’ within the meaning of the amended Article 31A(2)(a).

    From 1955 to 1964, the Supreme Court interpreted this term expansively to uphold the constitutional validity of laws involving the abolition of intermediary rights in non-zamindari areas, including intermediary rights in jagirdari tenures in Rajasthan, 21 alienated and unalienated lands in the State of Bombay,22 and mahalwari tenures in Punjab.23 In Atman Ram State of Punjab,24 the Court interpreted the expression ‘rights’ in relation to an estate to have an all-inclusive meaning comprising both horizontal and vertical divisions of the estate. Thus, the expression included not just the interests of proprietors or sub proprietors but also lower grade tenants, like riots or under ryots. Nevertheless, by fashioning the ‘agrarian reforms’ test in KK Cohune v State of Madras, the Supreme Court made it clear that the ouster of judicial review on questions of compensation was limited only to cases where the proposed acquisition of land had a connection with a scheme of agrarian or land reform. In all other cases, compensation payable under Article 31(2) should be market value compensation.[25]

             Moreover, in Karimbil Kunhikoman v State of Kerala,[26] the Supreme Court held that lands held under ryotwari27 tenure in the State were not estates within the meaning of Article 31A(2)(b). Rancho J speaking for the court held that a ricottas not really a ‘proprietor’ but a ‘tenant’. This was because a riot could sell, mortgage, passion to his heirs, or give away his holding, and he could not be evicted from the land except in case of his failure to pay the land revenue. But in theory, and for Rancho J this was the deciding point; the riot could relinquish or abandon his land in favour of the government. As a result, even though the Kerala Agrarian Relations Act 1960, was a law of agrarian reform, the petitioners’ lands were not ‘estates’ within the meaning of Article 31A and therefore in its application to the petitioners’ estates, the Act was subject to be tested on the anvil of Fundamental Rights. Here, like the Patna High Court’s decision in the Kameshwar Singh case, the Supreme Court struck down the law for violating the petitioners’ fundamental right to equality and not their fundamental right to property because of the graduated scale of compensation payable for lands acquired over the ceiling. Wanchoo J’s highly conceptualistic approach to the question of whether rotary lands were ‘estates’ within the meaning of Article 31A(2)(a) and consequent conclusion that a riot was merely a tenant, and not the owner of the land, and therefore rotary lands were not covered by Article 31A,appears rather unconvincing in light of the actual practice of rotary tenures. By indicating that rotary lands did not fall within the meaning of Article 31A, an interpretation that receives some support from the Parliamentary Debates on the First Amendment, the Court’s pronouncement in Kunhikoman threatened land ceiling laws and agrarian reform in much of southern India. The Cohune and Kunhikoman decisions led Parliament to amend the constitutional property. The Seventeenth Amendment made three important changes to the constitutional property clause. First, it inserted a proviso in Article 31A (1) which enabled the State to acquire land over and above the prescribed land ceilings in each State at less than market value compensation. Second, it amended the definition of ‘estate’ in Article 31A (2) (a) to specifically include lands under rotary settlement. Moreover, the term ‘estate’ now also included, all lands ‘held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forestland, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans’. Finally, the Amendment added forty-four laws tithe Ninth Schedule thereby shielding them from judicial review on grounds of Articles 14, 19and 31.Once it became clear that land reform statutes could not be challenged on the basis of Articles 19(1) (f) and 14, the questions of controversy shifted to the interpretation of the terms of Article 31(2) that had also been contentious before the Constituent Assembly. These included the meaning of the words ‘compensation’, ‘acquisition’ and ‘taking possession’.

 

EMINENT DOMAIN AND POLICE POWERS

           The relationship between Articles 19 and 31 and the Fourth Amendment (1955) Parliamentary Assembly Debates on the Constitution (First Amendment) Bill 1951, Provisional Parliament, in any social system that recognizes private property, the State restricts property rights in the exercise of powers inherent in the State’s sovereignty. In countries that have a written Constitution, these restrictions are often expressly embodied in the constitutional text. Broadly, these powers are classified as police powers, eminent domain and taxation. Distinguishing between these powers becomes important because even though State action in the pursuance of each of them may involve restrictions on existing property rights, the obligations on part of the State in each instance are different. Police power has been defined as the power of promoting the public welfare by restraining and regulating the use of liberty and property. In this chapter, we will confine our discussion of police powers insofar as they restrain or regulate the use of property.

             The power of eminent domain, in the broadest sense, may be understood simply as the power of the sovereign to take property for public welfare, without the owner’s consent. When the State acquires property in the exercise of its eminent domain powers, the economic loss inflicted on the private owner is accompanied by a corresponding economic gain to testate or to someone nominated by the State. Here, the State does not attempt to regulate these of the owner, but, on the contrary, replaces him and deals with the property as if the State itself were the owner of the property. Where the State regulates property in exercise of its police powers, the State does not make any economic gain to itself or its nominee, although, as a consequence of the regulation an economic loss is inflicted on the owner. The State deals with the property not as the owner, but as a sovereign having power over the owner and his property, directing the owner to observe the State’s instructions in the use and enjoyment of his property. In India, the key concepts used in Articles 19, 31(1) and (2) were ‘restriction’, ‘deprivation’, and ‘acquisition’ respectively. The Supreme Court’s interpretation of these terms involved two main questions. The first question concerned the interpretation of the terms ‘deprivation ‘in clause (1) and ‘acquisition’ in clause (2) of Article 31 to determine whether they concerned the same or two different exercises of State power. The second question concerned the interplay of Article 31 with Article 19 (1) (f).

ARTICLE 31(1) (2) POLICE POWER – EMINENT DOMINANT

           However, another interpretation championed by Satyr CJ was that Article 31, clauses (1) and (2) should be read together as stating three requirements for acquisitions pursuant to the exercise of the State’s powers of eminent domain. Article 31(1) stated the general principle that there shall be no taking or deprivation of property without a valid law, whereas Article31 (2) elaborated upon this principle by stipulating the requirements of a valid law, including the existence of a public purpose and the provision of compensation. The adoption of one or the other interpretation would differentially impact the extent of protection of private property under the Constitution. Adopting the first interpretation meant the State could take actions short of acquisition or taking possession of the property that substantially deprived the owner of the benefits of ownership without the requirements of public purpose and just compensation stipulated in Article 31(2). Under Article 31(1), the law authorising such deprivation was also not required to be ‘reasonable’ as contained in the requirement for reasonable’ restrictions under Article 19(1) (f).Curiously, none of the judges found a basis for the exercise of the State’s police powers in Article 31(5) (2) (b)(ii) even though it is the most likely encapsulation of the same .

Satyr CJ took the view that Articles 19 and 31 were mutually exclusive. Article 19 merely referred to a citizen’s capacity to own property. This provision had no reference to the property that was already owned by him, which was dealt with in Article 31. In other words, Article 19 forbade the State from denying particular individuals or classes the right to own property or to carry on business, but did not protect a citizen’s interest in a particular piece of property from State interference. Satyr CJ noted that since Article 31, which was headed by the caption ‘right to property’, already protected property rights of citizens as well as non- citizens, whereas Article 19(1) (f) only protected the rights of citizens, any other interpretation would make Article 19(1) (f) redundant.

But if Articles19(1)(f) and (5) were understood as dealing only with the capacity to acquire, hold and dispose of property in general, this distinction made sense. In that case, it would be justifiable to exclude aliens from such capacity, as had been done in several countries for the benefit of nationals, particularly with respect to rights in land. This interpretation finds some support from the Constituent Assembly Debates, particularly the statement of TT Krishnamachari, later Finance Minister. But even on Krishnamachari’s statement, the right did not merely protect the capacity to acquire, hold and dispose of property but some concrete though basic property entitlements. In contrast, other judges on the Court including SR Das and Jagannadhadas JJ took the view that Article 19(1) (f) applied both to abstract and concrete property rights. Jagannadhadas Construe Article 19(1) (f) and (5) as not having reference to concrete property rights and restrictions on them would enable the legislature to impose unreasonable restrictions on the enjoyment of concrete property (except where such restrictions can be brought within the scope of article 31(2) by some process of construction.

 

 

 

 

REFERENCES

1. http://www.legalserviceindia.com/legal/article-708-constitutional-validity-of-land-acquisition-in-india.html
2. https://shodhganga.inflibnet.ac.in/bitstream/10603/48090/9/09_chapter%202.pdf
3. http://www.99acres.com/articles/constitutional-provisions-related-to-land-and-property.html

4.https://www.advocatekhoj.com/library/bareacts/constitutionofindia/index.php?Title=Constitution%20of%20India,%201949

5. www.lawcorner.com
6. https://lawshelf.com
7. www.thehindu.com

[1] V.N. Shukla – Constitution of India

¹³⁸ http://www.legalserviceindia.com/legal/article-708-constitutional-validity-of-land-acquisition-in-india.html

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

[4] AIR 2003 SC 3240

[5] Decided on 15/5/2007 by Hon’ble Supreme Court

[6] AIR 1954 SC 74

[7] AIR 1952 SC 587

[8] Decided on 1^st December, 1961  by the Hon’ble Supreme Court

[9] AIR 1970 SC 564

[10] AIR 1980 SC 1789

[11] AIR 1973 SC 1461

[12] (1981) 2 SCC 362

[13] AIR 1983 SC 239

[14] Decided on 6^th May, 2010  by the Hon’ble Supreme Court

[16] AIR 1963 SC 151

[17] AIR 1963 SCR(3)774

[18] AIR 1983 SC 803

[19] 343 US 579 (1952)

[20] AIR 2002 SC 1493

[21] Case No.1999

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

[23] AIR 1952 SC 252

[24] AIR 1951 SC 458

[25] AIR 1951 SC 458

[26] AIR 1962 SC 723

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525, Issue 22 ,Vol. 7

SHAFIYA SHANAZ GHANI

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