Sudhir Yadav (KIIT School of Law, Bhubneshwar)
Elasha Saha (Army Law School, Pune)
Yash Raj Gupta (Department of Law, CU)
The term property is derived from the Latin word ‘propertietat’ and the French equivalent ‘proprious’ which means ‘a thing owned’. The concept was known to ancient Greeks, Hindus, Romans, Jews etc. The concept of property occupies an important place in human life because it is virtually impossible to live without the use of material objects which constitute thesubject matter of property. The concept of property and ownership are very closely related to each other. The se two are mutually interdependent and correlative.
In India, no fundamental right has given rise to so much of litigation than property right between state and individuals. Though the Supreme Court of India sought to expend the scope and ambit of right to property, but it has been progressively curtailed through constitutional amendments. There are cases that have bought this right into more light.
Post Constitution of India, 1950- to further developments till 44thAmendment
It was in the Constitution that Right to Property was made a “fundamental right”. Since the Constitution came into force in 1951, Article 19 (1) (f) and Article 31 guaranteed fundamental right to property. It became the subject of constant and contentious judicial interpretations and parliamentary interference.
Early decisions of the Supreme Court showed that it adopted two basic conditions namely, public purpose and compensation in regulating the exercise of acquisition under the Constitution. The Court faced two competing rights, a) the power of the state to acquire property, and b) the individual’s fundamental right to property. It adopted a restrictive view on the state’s power of compulsory acquisition and inclined towards protecting the right to property and payment of adequate compensation. This led to a series of decisions of the Supreme Court wherein, it declared unconstitutional several laws and pursuant state actions, in view of the Articles 14, 19 and 31 of the Constitution. On the other hand, the Parliament initiated a series of amendments to cancel the effect of the decisions taken by the Supreme Court against the discretionary powers of the State.
WEST BENGAL VS. BELA BANERJEE,1954 (1)
The case which prompted the First Amendment to the constitution was West Bengal versus Bela Banerjee. It brought up the issue of legality of the law which gave procurement of land to open purposes however restricted the estimation of pay to the degree of the market estimation of the land as was on Dec. 31, 1945. The Supreme Court held that the roof of pay an incentive on to a specific date instead of the market estimation of the land at the hour of procurement was discretionary and abused of the soul of the constitution. Thus, the First Amendment Act embedded two new articles, Article 31A and Article 31B. The Article 31A extensively expressed that, no law which gave securing to the state will be esteemed to be void on the ground, that it is conflicting with or removes any of the rights presented by the Part III of the Constitution.
The legitimacy of this alteration was tested by zamindars in Shankari Prasad Deo versus Union of India (2). Be that as it may, the test fizzled and the Court maintained the legitimacy of the Act.
Afterward, the Fourth Amendment Act was sanctioned in 1954, which looked to bring clearness regarding the understanding of Article 31A and 31B by pronouncing that the courts ought not manage the subject of sufficiency of pay and further, it set down with respect to what is implied by "obligatory obtaining of property (alluding to State securing as it were)".
Significantly, after this Amendment, it was held by the legal executive that a law denying an individual of his property could be judicially analyzed with regard to its sensibility. The Seventeenth Amendment Act, 1964 further made a unique arrangement with respect to pay of land obtained from little ranchers, which ought be not as much as market estimation of the land. This was tested in Sajjan Singh versus State of Rajasthan (3), the court maintained the legitimacy of the said change.
At long last, the legitimacy of first, fourth and seventeenth amendment acts was tested in Golaknath versus State of Punjab (4). The Supreme Court pronounced the above alterations as invalid; be that as it may, the laws made thereunder keep on being legitimate. It further held that the State couldn't remove key rights by instituting laws, either in exercise of their constituent or administrative force.
THE POST 25th AMENDMENT PERIOD TILL THE ACT 2013
Ultimately, the legitimacy of 25th amendment incorporating others was tested in the Supreme Court in Keshavananda Bharti vs. Union of India (5). The Court maintained the legitimacy of all property related alterations, and invalidated the status of property directly as an "essential component" of the Constitution. The option to get "sum" (remuneration) was considered as crucial right. The Parliament, through 44th Amendment Act gave the last hit to the private property and canceled Article 19(1) (f) from Part III, finishing the downfall of right to property as a key right, and proclaimed it only as a protected right under Act. The Parliament, through 44th amendment Act gave the last hit to the private property and canceled Article 19(1) (f) from Part III, finishing the downfall of right to property as a key right, and proclaimed it only as a protected right under Article 300A of the Constitution.
THE CASE OF VIDYA DEVI vs STATE OF RAJASTHAN, 2020 (6)
Around 50 years back in 1967, Himachal Pradesh government coercively took over Vidya Devi's four sections of land at Hamipur region to manufacture a street. Vidya Devi, being an ignorant widow from a rustic foundation, was completely uninformed of her privileges and qualification in law, and in this way, didn't record any procedures for remuneration of the land obligatorily taken over by the state. Later, in 2010, Vidya Devi was educated about her qualification to the pay by the neighbors who had additionally lost their property for the street. Devi, with the assistance of her girl, at that point moved the Himachal Pradesh High Court to request that the pay be paid. High Court requested that her document a common suit in the lower court. Disillusioned, the 80-year-old Vidya Devi went to the Supreme Court.
The court stated that in 1967, when the government forcibly took over Devi’s land, the right to private property was ‘still a fundamental right’ under Article 31, which has since been repealed.
The Constitution of India 1949 contained Article 19(1)(f) as well as Article 31, which provided right of private ownership of property, and freedom to acquire, enjoy and dispose it off by lawful means. This freedom was limited only by ‘reasonable restrictions’ regarding exigencies of public welfare, or protection of the interests of a Scheduled Tribe.
Article 31(1) provided that a person could be deprived of his property only by the authority of law. That is, private property couldn’t be taken away by an executive order.
Article 31(2) stated that the state could take over someone’s private property only for public purposes, and only after payment of compensation as provided for in the law.
These provisions became a roadblock for the Indian government to carry out its programme of centralized planning and development. The measures of agrarian reforms, acquisition of land for public infrastructure often ended up in a judicial quagmire, as people approached the Supreme Court.
This prompted the government to being out several amendments. Article 31A, 31B, 31C were introduced to nullify the effects of certain judgements. Ultimately, 44th amendment completely removed Article 19(1)(f) and Article 31 from the Part III - Fundamental Rights. Instead, it introduced Article 300A in Part XII. Article 300A states that no person shall be deprived of his property except in accordance with law. Therefore, the right to property ceased to be a fundamental right, and can be regulated with the parliamentary law.
The original Constitution of 1950 had safeguarded the right to property, recognized the same under Part III of the Constitution. However, soon after the Constitution of India came into force, a long drawn out battle commenced between the persons who were sought to be deprived of their property and the legislature and executive until its final culmination. Ultimately by the 44th constitutional amendment, right to property as originally envisaged by the 1950 Constitution was deleted and only a small fraction of the right was retained in Article 300-A as a constitutional right. The whole genesis of the dispute over the right to property was the unwillingness of the legislature and executive to pay full compensation or full market value for the property acquired.
The Constitutional obligation to pay compensation underwent massive changes because of the word ‘compensation’ used in Article 31(2). Hence, tussle between the parliament and the judiciary as a result of which series of constitutional amendments to property right raised. Without paying equivalent compensation, no property could be acquired even for public purpose. It was a great hurdle for the state. Therefore, constitutional 4th amendment brought changes in the Article 31(2) i.e., for the property acquired compensation need not be just or equivalent compensation. The 95 very object of 4th amendment exclude the judicial review over ‘compensation’ on the ground of ‘just compensation’ was failed to achieve. Therefore by 25th Constitutional Amendment in 1971 the word ‘compensation’ in Art 31(2) was substituted by the word ‘amount’. By this amendment, some extent battle between judiciary and parliament comes to an end.
Court interpreted the word ‘amount’ something different from word ‘compensation’ these two words are not synonymous and also court held that amount declared for acquisition of property by State must not be illusory or it should not disproportionate to the property acquired. In Kesavananda Bharati v. State of Kerala, the Supreme Court held that the amount which was fixed by the legislature could not be arbitrary or illusory and must be determined by the principle which is relevant for determining compensation. Up to 42nd Amendment Act 1976, the essential parts of Article 31(2) were repealed by pride predecessor amendments finally, 44th Amendment repealed the right to property i.e., Articles 19(1)(f) and 31 altogether from Part III of the Constitution and inserted the Article 300-A into the Constitution (Article 31(1) was reappeared in Article 300-A). However, here the question arises even after repealing Article 31(2), can twin requirements ‘public purpose’ and constitutional obligation to pay ‘compensation’ be survived or can government exercise its eminent domain power arbitrarily irrespective of ‘public purpose’ and ‘compensation’. The rationale of 44th Amendment is losing the fundamental right status and confirm the status of legal right to the property held by individuals. In case of litigation between the state and individual regarding property right, court always tilt towards in favor of protection of property right had been a fundamental right of individuals. Hence land looser or usurper could directly move to the Supreme Court for enforcement of property right. India being a democratic country could not exercise its sovereign power in an arbitrary manner. Therefore governmental interference may occur in the form of 96 expropriations of property rights of individuals when public interest warrants. Expropriation of property must be subjected to some conditions and limitations and it should not be in accordance with the whims and fancies of the government. The moral basis and conditions of expropriation will be the essential condition of eminent domain power. Hence even after the removal of Article 31 altogether, there must be justification for the interference with individual property right by the Government. Hence, compensation must be proportional to the interference, it is evident from the Land Acquisition Act 1894. In the present scenario, property right is looking from the perspective of human right therefore colonial Land Acquisition Act 1894 replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 44th Amendment did not intend to remove the constitutional restraints like ‘public purpose’ and ‘compensation’ on eminent domain power. It can be counter argued that obligation to pay compensation flows from entry 42 of list III of the VII schedule to the Constitution and obligation to pay compensation arise from the doctrine of eminent domain or the right to acquire private property for public purposes which is an incidence of a sovereign state. Major changes after 44th Amendment, repealing the Property right from Fundamental rights, now property right is only legal right, or constitutional right. Unless statute provides, government need not to pay equivalent compensation to the property acquired. But now the court has addressed the compensation requirement in the context of a fair balance test. Accordingly taking of property without payment of an amount reasonably related its value would normally constitute a dis-proportionate interference which could not be considered as justiciable. However, according to the courts observation statute or constitutional provision does not guarantee a right to full compensation in all circumstances (except under second proviso to the Article 31-A(1) even though compensation awarded must be qualify the fair balance test. Nevertheless, forty fourth amendment does not have any effect on the power of eminent domain or the sovereign power of the state, further it smoothen the proceedings of acquisition. At the same time Article 21 cannot be applied to the acquisition proceedings because objective of the 44th 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 97 property right as a fundamental right, the object of the 44th Amendment will be defeated.