RIGH TO PROPERTY IN INDIA

INTRODUCTION

According to Blackstone dictionary, the right of property is that sole and despotic dominion
which one man claims and exercises over the external things of the world, in total exclusion
of the right of any other individual in the universe. The right to property can be considered a
natural human right in some ways. It is a hugely contentious issue that affects many countries
including the European Union. The right to property was originally regarded as a
fundamental right in India, but by the 44th amendment of the Indian Constitution, under the
provision of Article 300(A), it was reduced to merely a constitutional right. Though it appears
to be straightforward, the right to property under the Indian Constitution has a unique history
that can be described as a long conflict of provisions between India’s legislature and the
judiciary.

MEANING OF THE TERM PROPERTY

Property is defined as follows under Section 2(c) of the Benami Transactions (Prohibition)
Act, 1988: “Property” means “any sort of property, whether movable or immovable, tangible
or intangible, and includes any right or interest in such property.” Property is defined as
follows under Section 2 (11) of the Sale of Products Act of 1930: “Property” denotes the
general property in goods, not just a special property.

According to the Supreme Court in Commr. Hindu Religious Endowment v. Swamiyar 1 , the
term “property” as employed in Article 31 should be given a broad interpretation and should
include all well-known categories of interests that bear the insignia or characteristics of a
property right. It encompasses both corporeal and incorporeal rights as observed
in Dwarakadas Srinivas v. Sholapur Spinning and Weavingg. Co. Ltd2 . It comprises money,
contracts, property interests such as an allottee’s interest, licensees, mortgages, and property
lessees. An identifiable interest in the property is the Mahantship of a Hindu Temple as
identified in Commissioner of Hindu case (Supra) and stockholders with Interests in the
Company as stated in State of Bihar v. Kameshwar Singh3 .

1
1954 AIR 282, 1954 SCR 1005
2
1954 AIR 119, 1954 SCR 674
3
AIR 1952 Pat 417, 1952 21 ITR 382 Patna
PRE 1978 – FUNDAMENTAL RIGHT TO PROPERTY

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.

However, during the first decade of independence era, it was felt that the right to property as a
fundamental right was a great impediment in ushering a just socio-economic order and a source
of conflict when the State was to acquire private property for public purposes, particularly,
expansion of rail, road and industries etc.

In order to get rid of this hurdle, the Supreme Court in the historic case known Fundamental
Rights Case – Keshvanand Bharti V Sate of Kerela 4 held that the right to property is no part of
the basic structure of the constitution and therefore, Parliament can acquire or take away private
property of persons for concerned good and in the public interest.

Thereafter, Parliament passed the Constitution 44th Amendment which made right to property
an ordinary legal right under Article 300-A.

However, the Supreme Court in one of the cases has made it clear that the executive cannot
deprive a person of his right to property without the authority of law. The State can acquire a
person’s property for public purpose on payment of compensation, which need not be
necessarily just equivalent of the value of the property so acquired, but such compensation
must not be illusory and irrationally disproportionate.

The latest position with regard to property in India is well expressed by the Supreme Court of
India in Indian Handicraft Emporium v. Union of India5, wherein the Court observed that right
to property is a human right as a constitutional right under Article 300-A, but it is not a
fundamental right. It is indeed a Statutory right but each and every claim to property would not
be property rights.

4
(1973) 4 SCC 225; AIR 1973 SC 1461
5
AIR 2003 SC 3240
The infamous Government of India Act of 1935 granted the power to possess and dispose off
the property before independence. Section 299 of the 1935 Act guaranteed the protection of
this right to all people, whether they were zamindars or peasants. This protected the people
and ensured that their property would not be exploited or abused without sufficient
compensation. Furthermore, the Act enabled the government to exploit private land only for
public reasons.

The Constitution (First Amendment) Act of 1951 added the Ninth Schedule to the
constitution, together with two additional Articles 31A and 31B, to make laws granting
zamindars unchallengeable in the courts.

Article 31 dealing with the right to property was changed in numerous ways by the Fourth
Amendment Act of 1955. The goal of these changes was to give the government more power
over forced acquisition and requisitioning of private property.

During this time, the Supreme Court was generally of the opinion that land reforms should be
sustained, even if they directly conflicted with the right to property, however, the Court
was dubious of how the government used its administrative power in this area. The Court was
adamant that administrative discretion to appropriate or infringe on property rights must be
based on law, not on a simple fact. During the period of nationalization, however, the court
genuinely struggled with the socialist administration, when the court admirably stood up for
the right to property, albeit in a limited way, against the communist state’s overreach.

The court in this Bank Nationalisation case – R.C. Cooper V. Union of India 6 has clearly
stated the following two observations at this point:

1. The right to compensation equal to the monetary value of the property acquired by
force is guaranteed by the Constitution.

2. The expropriate owner must be compensated for the worth of their property,
according to the Constitution (the reasonable compensation for the loss of the
property).

6
AIR 1970 SC 564
POST 1978 POSITION – THE CONSTITUTIONAL RIGHT TO
PROPERTY

The object behind the (Forty-fourth Amendment) Act, 1978, was to reduce the right to
property from the status of fundamental right to that of a legal right. This right to property
secured under Article 300-A, will be available against the executive interference and not
against the legislative action. It has been held to be a human right and a constitutional right.

Referring to Article 17 of the Declaration of Human Rights, 1789, the Apex Court
in Chairman, I.V. Pradhikaran v. Puri Industrial Cock and Chemical Limited 7,
observed that the right of property, being inviolable and sacred, no one might be deprived
thereof, unless the public necessity, legally ascertained. Property, the Court ruled, while
ceasing to be a fundamental right, would, however, be given express recognition as a legal
right. The procedure laid down for deprivation thereof must be scrupulously complied with.

Article 300-A does not permit deprivation of property in a manner unknown to law. Where,
there is utter lack of legal authority for such deprivation, it is held in State of U.P. v.
Manohar8, that the Court may not only grant compensation but also impose exemplary cost
on the State authorities. Therefore, merely on the basis of some Government Order, the
property of a person cannot be taken over by the Government. Such a procedure has been
said to be high-handed action of the State, wholly illegal and violative of Article 300-A.

Likewise, in Alok Mohan Das v. State of Bihar9, the Patna High Court quashed the notice
issued by the Nagar Parishad to the petitioner, the owner of land, to not to sell the land as it
was used by general public in the form of road. It was held to be violative of the right
conferred under Article 300-A.

Likewise, Section 69(2-A) introduced by the Maharashtra Act, 1984 in the Partnership Act,
1932 to the effect of depriving the unregistered firm to dissolve the firm or recover the
property of the dissolved firm, has been held arbitrary and unreasonable and hence
unconstitutional. It is held violative of Articles 14, 19(1)(g) and 300-A.
The Supreme Court in Bishamber Dayal Chandra Mohan v. State of U.P.10 explained that
the term law in the context of Article 300-A, meant an Act of Parliament or of a State
Legislature, a rule or a statutory order, having the force of law, that is positive or State-
made law.

In State of Maharashtra v. Basantibai11 upholding the validity of the Maharashtra Housing

and Area Development Act, 1976 under Article 300-A. The Supreme Court, said that the
impugned law could be upheld even by the standards of eminent domain as applied in the
United States. The Court further held that a law under Article 300-A, relating to acquisition
0f property, need not satisfy the requirements of Article 21.

7
AIR 2007 SC 2458.
8
AIR 2005 SC 488.
9
AIR 2009 Pat. 64
10
AIR 1982 so 32. Also in Ashak Kumar v. State of U.P., AIR 2005 A11. 44
11
AIR 1886 so 1466
The word property used in Article 300-A must be understood in the context in which the
sovereign power of eminent domain is exercised by the State. It is held to include an
undertaking which is a going concern. The expression right to property includes the right to
use /enjoy/manage/ consume and alienate the same.

The expression deprivation of the property must equally be considered in the fact situation of
a case. It means different things under different situations. It
includes confiscation, destruction, seizure of goods, or revocation of a proprietary right. It
has been held that deprivation for the purposes of Article 300-A means acquisition or taking
possession of property for public purpose, in accordance with the law made by Parliament or
a State Legislature, a rule or a statutory order having force of law. Deprivation by any other
mode is not acquisition or taking possession under Article 300-A.

Taking over the management of the property by a legislation permitted under Article 31 A (1)
(b), is held to be outside the purview of Article 300-A. It has been held that each and every
claim to property would not be property right within the meaning of Article 300-A.

However, acquisition of land, in the exercise of its power of eminent domain, by the State is
subject to conditions that there exists public purpose and reasonable compensation is offered.
The Land Acquisition Act, 1894 fulfils these criteria. It, however, lays down the detailed
procedure there for. It further imposes restrictions/conditions for acquisition of land for the
benefit of the land owner. It has, thus, been ruled that the State must scrupulously comply
with all these procedural safeguards.

In Jilubhi Nanbhai Khachar v. State of Gujarat 12, the Supreme Court held that acquisition
of property by law made in furtherance of the Directive Principles of State Policy was to
distribute the material resources of the community including acquisition and taking
possession of private property for public purpose. It would not require payment of just
compensation or indemnification to the owner of the property expropriated. Payment of
market value in lieu of acquired property has been held as not sine qua non for acquisition.

The Madras High Court has held that the legitimate rights of a citizen to have his property
restored or its market value reimbursed could not be denied on the plea that there was no
specific statutory provision for such restitution or reimbursement. The right of a citizen, in
this regard, the Court said, was secured under the Constitution in the form of guarantee under
Article 19 (1) (g) and Article 300-A. Relying on these observations, the Madras High Court
in Lakshmi Rice Mills v. Dist. Officer, Madurai13, directed the respondents to pay the
value ascertained in terms of their prevailing market value of the goods seized illegally under
Section 6-A of the Essential Commodities Act, 1955.

Likewise, illegal seizure of forest produce has been held deprivation of property, violative of
Article 300-A. As also, recovery of debts due to Banks or seizure of vehicles, done by hiring
recovery agents, musclemen, has been held violative of Article 300-A.

In Ajay Kumar v. 0.S.F.C.14, the Orissa High Court held that arrears of consumption charges
of electricity by previous owner was not charge on immovable property and that these could
12
AIR 1995 sc 142
13
AIR 1998 Mad 22
14
AIR 2007 Ori. 37
not be recovered from subsequent purchaser of property. It would be illegal deprivation of
property violative of Article 300-A.

In Ram Nayan Singh v. State of U.P15, the petitioner was deprived of his land without his
consent or agreement and without following the due procedure under the Land Acquisition
Act, 1894. The Allahabad High Court held him entitled to claim possession or compensation
based on market value along with solatium and interest.

Following independence, the mood was to continue Prime Minister Jawahar Lal Nehru’s
socialist policies and to remove zamindars and other rural intermediaries who had earned
rights to enormous swaths of land during colonial authority. When the government attempted
to dismantle these institutions, it was challenged in court under the Constitution’s Right to
Property section in a series of challenges. As a result, the government decided it would be
best to stay out of legal wrangling while attempting to execute its socialist principles of
limited private land ownership to avoid wealth concentration and government control over
the property as a method of achieving dispersed development.

The backlash against Articles 19(1)(f) and Article 31 of the Constitution as Fundamental
Rights began almost immediately after it was enacted in 1950. After multiple court battles
over this sensitive issue, the Janata Party government introduced the 44th amendment, which
eliminated the right to property as a fundamental right and replaced it with Article 300A,
which reduced it to a legal right.

The owners of Minerva Mills (Bangalore), an ailing industrial concern nationalised by the
government in 1974, contested the Forty-second Amendment in the Supreme Court less than
two years after the restoration of Parliament’s amending powers to near unlimited terms. In
the Minerva Mills v. Union of India16 and later in the Waman Rao v. Union of India17, the
basic structural theory was reinforced which was first introduced in the famous Kesavananda
Bharati v. State of Kerela where despite the court’s finding that Parliament cannot violate
fundamental rights, the amendment that abolished the fundamental right to property was

15
AIR 2009 (NOC) 787 (All.)
16
1980 AIR 1789
17
(1981) 2 SCC 362
preserved. The court decided that the change would not violate the Constitution’s “basic
structure” in spirit.

IMPLICATIONS OF 44th CONSTITUTIONAL AMMENNDMENT ACT

 The Right to Property would no longer be a fundamental right, but rather a

constitutional right and a human right (as held in various court decisions such as State
of Haryana v. Mukesh Kumar18.

 Only the High Courts, not the Supreme Court, can now challenge the legislation that
violates the fundamental right to property.

 With the repeal of Article 31, the government no longer had to pay anyone whose
land had been taken under the authority of a statute passed by Parliament.

18
AIR 2012 SC 559,
JUDICIAL APPROACH REGARDING CONSTITUTIONANL RIGHT TO
PROPERTY

Article 19(1)(f) and Article 31 read with the under noted entries gave rights that were so
intricately woven into the fabric of our Constitution that they could not be taken out without
leaving a jagged hole and broken threads. To harmonize with the rest of the Constitution, the
hole must be repaired and the broken threads must be replaced. The task is difficult, and
courts have been called upon on several occasions to resolve issues far more difficult than
those brought by Article 31 after it was changed several times. After the 1980s, the court has
done a better job of protecting our country and people than the legislature.

Soon after the Fundamental Right to Property was abolished, the Supreme Court recognized
the value of the Right to Property as a Fundamental Right in Bhim Singh v. Union of
India19 (1981). In the absence of this Fundamental Right to Property, it relied on the second
Fundamental Right of Equality, namely the idea of reasonableness under Article 14, to
invalidate certain provisions of the urban land ceiling legislation.

Though the right to property is not a fundamental right, it is a valuable constitutional right,
according to the Supreme Court in the case of B. K. Ravichandra v. Union Of India (2020),
which ordered the Centre to return the land to its owners. The Supreme Court’s decisions and
the history of the right to property reveal that, while its primacy as a fundamental right has
been questioned, it is nonetheless protected by the rule of law. This court’s expanding
jurisprudence also demonstrates that it is a valuable right that guarantees basic liberties and
economic liberty. Article 300-A’s wording is crucial, and its resemblance to Articles
21 and 265 cannot be overlooked—they are, after all, a guarantee of the supremacy of the
rule of law.

In a more recent case of Bajranga v. State of Madhya Pradesh 20 (2021) “right to property is
still a constitutional right under Article 300A of the Constitution,” the Supreme Court has
ruled in a case where the government took ownership of surplus land even though there was
none. The deprivation of a right can only be done in conformity with the legal procedure.”

The courts have also acknowledged the State’s interference in the citizen’s right to property.
It was held in Ravindran v. The District Collector, Vellore District (2020) that the
government has no authority to interfere with a citizen’s right to property unless it is done in

19
AIR 1986 Sc 494
20
2021 SCC OnLine SC 27
compliance with the law which was later on reiterated in Jayalakshmi & Ors. v. State of
Tamil Nadu21 (2021). Recently, the Madras High Court in the case of Jayalakshmi and Ors v.
State of Tamil Nadu made a noteworthy statement, saying that under Article 21 of the Indian
Constitution, the Right to life has a close nexus with right to property.

21
(2007) 4 MLJ 849
 RIGHT TO PROPERTY AS A HUMAN RIGHT

The Supreme Court recognized in State of West Bengal v. Haresh C. Banerjee22 (2006) that,
even though the right to property was no longer a fundamental right after the repeal of Article
19(1)(f) and Article 31 (1) of the Constitution by the Constitution (Forty-Fourth Amendment)
Act, 1978, w.e.f. June 20, 1979, it was still a constitutional right, as provided in Article 300A
of the Constitution. The right to a pension was viewed as if it were a right to property. The
High Court of Judicature of Bombay in Purushottam Kashinath Kulkarni and others v. State
of Maharashtra and others (2016) and the High Court of Chhattisgarh in Ramlal Sharma v.
State of Chattisgarh (2015), relying on D.S Nakara and others v. Union of India23 (1982),
concluded that pension payments could not be postponed. Like the property, it is thus a hard-
won benefit of an employee. This was reiterated by the Apex court in Dinavahi Lakshmi
Kameswari v. State of Andhra Pradesh24 (2020) where it was also observed that “ according
to a liberal interpretation of these two clauses (Article 300A of the Constitution and Article
25(1) of the Universal Declaration on Human Rights (UDHR), the goal is to safeguard
owners of mobile and immovable property merely from Executive fiat, laying minor
constraints on the State’s power. This contrasts sharply with the terminology used in the
Indian Constitution.”

The right to property under Article 300-A of the Indian Constitution is not only constitutional
or legal, but also a human right, and it can only be taken away by the authority of the law as
observed by the High court in Narayan Prasad v. State of Chhattisgarh25 (2017). “Article
300A declares that a person’s property cannot be taken away only based on presidential fiat
without any explicit legal authority or the support of a competent legislature’s statute.
Although the right to property is no longer a fundamental right, it is nonetheless protected by
the Constitution as a Constitutional and a human right”, reminded the Allahabad High court
to the government. in the case of Gayatri Devi v. the State of UP (2019).

Although the right to property is no longer a fundamental right, it remains a constitutional

right under Article 300A and a human right, as this Court noted in Vimlaben Ajitbhai Patel v.
Vatslaben Ashokbhai Patel and Others26 (2008). According to Article 300A of the Indian
Constitution, no one’s property can be taken away from them unless they have legal

22
(2006) 7 SCC
23
1983 AIR 130
24
(2021) SCC Online SC 237.
25
2003 7 SCC 589
26
(2008) 4 SCC 649
authorization to do so. The appellant trust’s property cannot be taken from it unless it is done
in conformity with the law. This was observed by a 2 judges bench in a recent case of Hari
Krishna Mandir Trust v. State of Maharashtra27 (2020).

CONCLUSION

Now, it is categorical that property rights and their protection has been the talk of the town
from the ancient period and is not a de novo concept and hence, the act of switching right to
property from a fundamental right to a legal right was towards saving the rights of people
along with curtailing the accumulated rights of zamindars. So, while the right to property as a
fundamental right is no longer valid, the constitutional right to property must continue to
exist for the sake of justice. Since the right to property is not a part of the basic structure, it
can be amended.

27
AIR 2020 SC 3969