RIGHT TO PROPERTY UNDER INDIAN CONSTITUTION:

INTRODUCTION:

The right to property being a controversial subject matter, however is one of the
foremost rights of a common man. After the Indian Independence, when the
Constitution of India came into force on 26th January, 1950, the right to
property was included as a ‘fundamental right’ under Article 19(1)(f) and Article
31 in Part III, making it an enforceable right. In order to achieve a socialist
pattern of society, this right was repealed by 44 th amendment act, 1978. Now,
the right to property is available only as a constitutional right. In State of
Haryana v. Mukesh Kumar, the court held that the right to property is not only
a constitutional or statutory right, but also a human right.

Article 19 1 (f) of the Indian Constitution:

Under Article 19(1)(f), the protection of which extends only to citizens which
confers the right to acquire, hold and dispose of property affirmatively subject to
reasonable restriction under clause (5) Article 19 i.e., in the interest of general
public and schedule tribes.

FIRST AMENDMENT ACT, 1951:

The first amendment was introduced for protecting various land legislations from
attack on the ground of violation of Article 14, 19 and 21 of Constitution. The
case which led to the First Amendment to the constitution was West Bengal vs.
Bela Banerjee, It raised the question of constitutionality of the law which
provided acquisition of land for public purposes but limited the value of
compensation. As a result, the First Amendment Act inserted two new articles,
Article 31A and 31B. Article 31 A states that any law,

▪ made regarding the acquisition of any estate or right by the government or

management of any property, or
▪ creates a merger of any two or more companies
▪ receives the benefit of any agreement or lease or license;
 ▪ Or extinguishment or modification of rights of treasurers, managing
directors, secretaries etc

will not be void or null until it has received the assent of the President.

In Ambika Mishra v. the State of U.P, Uttar Pradesh government put a ceiling
on a large number of permissible landholdings under the Land Holdings Act,
1960. Also under Section 3(17) of the land acquisition act, only the ‘male’ was
considered as the landholder and owner whereas ‘unmarried female’ or ‘woman
whose husband is the landowner’, wasn’t considered as the owner of the land.
Apart from the acquisition part, many people have also looked at this
discriminatory side of the Act. The court upheld the constitutional validity of
Article 31(1)(a).

Article 31-B protects legislations in the ninth schedule from being challenged on
the ground that they are inconsistent with the fundamental right. In Wamen
Rao v union of India, it was held that the amendment made to Acts which
already placed in the ninenth schedule are not automatically immunized from
legal challenge. In Prag Ice and Oil Mills v. Union of India, held that Orders
and Notifications made under acts included in the Ninth Schedule are not
entitled to get protection under Article 31B. In Kesavananda Bharati V. State
of Kerala, All acts and regulations made under ninth schedule shall be valid
only if it does not affect the basic structure of the Constitution.

4th AMENDMENT ACT, 1955:

This amendment substituted Clause 2 and inserted clause 2-A in Article 31

which in turn, it further brought clarity with the question of adequacy of
compensation non-justiciable. The obligation to pay compensation arises only
when the ownership or possession is transferred to the state.

7th AMENDMENT ACT, 1964:

This amendment further made a special provision in Article 31 A regarding
compensation of land acquired from small farmers, which should not be less
than market value of the land.

TWENTY-FIFTH AMENDMENT ACT, 1971:

R.C.Cooper V Union of India (Bank Nationalisation Case) has led to the

introduction of 25th amendment act which came into force in 1972. In this case,
the court held that the constitution guarantees the right to compensation and
that it must be equivalent to the right to property. Thus, amount of compensation
became justiciable. In order to overcome this decision, the 25 th amendment
substituted clause 2 and introduced clause 2-B and Article 31 C. This
amendment replaced the word “compensation” with the word “amount”.

Article 31 C empowered the parliament and the state legislature to enact laws
towards securing directive principles contained in Article 39 (b) and (c). Clause
2 of Article 31C does not permit the judicial review of the laws enacted under
Article 31 C (1).

In Sanjeev Coke Mfg. Co v. Bharat Coking Coal Ltd., (1983) 1 SCC 147, The
court pointed out in this case, that the fundamental rights and the directive
principles of state policy should be companions and amplify each other.

In Kesavananda Bharati vs.State of kerala, declared the second provision of

Article 31 C as unconstitutional and invalid on the ground that judicial review
is a basic feature of Indian constitution and it cannot be taken away.

42ND AMENDMENT ACT, 1976:

This amendment expanded the scope of Article 31 C by including within its

protection any law to implement any of the directive principles specified in Part
IV of the constitution and not merely in Article 39 (b) or (c). However, this
extension was declared as unconstitutional and invalid in Minerva Mills
Limited V Union of India.

44th AMENDMENT ACT, 1978:

This amendment gave a final blow to private property and repealed Article 19(1)(f)
and Article 31 from Part III and made right to property a legal right under Article
300-A.

In Indian Handicraft Emporium v. Union of India, the Supreme Court held

that the executive cannot deprive a person of his right to property without the
authority of law.

REASON FOR THE ABOLITION OF RIGHT TO PROPERTY AS A

FUNDAMENTAL RIGHT:

The immediate objective of the government after independence was the agrarian
reforms. A series of legislations were enacted to increase agricultural
productivity, abolition of zamindaries, ceiling of landholdings, to promote social
and economic justice by redistribution of surplus lands to the landless. In
order to achieve a socialistic pattern of society, the Government tried to regulate
the right to property of individuals in various ways. This led to the removal of
property as a fundamental right and led to the introduction of Article 300- A as
a legal right.

CONCLUSION:

As the right to property was no longer a fundamental right but only a legal right,
a person did not have a right to file a writ in the Supreme Court under Article 32
for infringement of such right. He could either file a suit against the Government
or file a writ under Article 226 to the High Court. This had led to the enactment
of the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.