LAND LAW ASSIGNMENT

TOPIC: RIGHT TO PROPERTY AS CONSTITUTIONAL RIGHT

SUBMITTED BY
LALIKA PERIYATHARASI B C
123087026
BA LLB(HONS)
V YEAR
 ABSTRACT

The right to property holds the unique distinction of being not only the most contested
alternative provision in the constitution, but also the most amended provision and the only
abcedere right to be permanently abolished in 1978. Unlike the other rights to life, liberty and
equality, which at least can theoretically be considered as inversely valid for everyone, the
particularly contested nature of property rights stems from the fact that the protection of
property rights inevitably leads to the consolidation of an unstable distribution of property
rights. The Forty-Fourth Indigenous Amendment of 1978 deleted Article 19(1)(f) and Article
31, Part III on Fundamental Rights of the Constitution. rather, it reconciled the composition of
300A with the new Chapter IV of Part XII of the Constitution, stripping the "property right" of
its "fundamental right" status. This chapter narrates the evolution of the fundamental right to
property in the Indian Constitution, and outlines the chequered trajectory of its doctrinal
development, following the First (1951), Fourth (1955), Seventh (1956), Seventeenth (1964),
Twenty-Fourth (1971), Twenty-Fifth (1972), Twenty-Sixth (1972), Twenty-Ninth (1972),
Thirty-Fourth (1974) and Thirty-Ninth (1975) constitutional amendments. However, the last
five attempts have been made judicially to restore the right to its alphabetic legal status as it
was before the Forty-fourth Amendment. At the same time, the concepts of "public purpose"
and "compensation" were strengthened legislatively by repealing and simplifying the Land
Acquisition Act 1896 with the LARR Act 2013. Amendment of the LARR Act three times
notified by order to amend the LARR The legislation and the government's failure to secure
administrative support to pass the 2015 amendment to the LARR into law testify to the violent
social and political conflict surrounding the silhouettes of property rights both legal. and legal
and aboriginal rights.
The paper argues that constitutional tenure, reflected in the drafting of the original Native Title
Clause and its development through statutory interpretation, legislation, and Native redress,
demonstrates the Indian state's ongoing attempts to transform title. relations of society to
achieve the requirements of profitable development and social redistribution. Each instance of
the Property Clause favored the property rights of certain groups and undermined the rights of
others, and was the result of violent strife between rival factions who used both council and
law to advance their interests. At the same time, the fear of the arbitrariness of the actions of
the state lies behind the development of the doctrine of the Supreme Court. Almost all property
cases were also challenged under the equity guarantee of Article 14, and at the expiration of
those cases the statute in question was invalidated because it violated equity, not property
rights.
INTRODUCTION

According to the Supreme Court's interpretation of Article 31, the term "property" should be
given a broad definition and should include all widely accepted categories of interests that bear
the hallmarks or characteristics of property rights. The term "property" under Article 300A is
not limited to just land. Both corporeal and incorporeal rights are included. It consists of
money, a contract, an ownership stake in property, etc.

RIGHT TO PROPERTY AS A FUNDAMENTAL RIGHT

Since the Constitution of India came into force in the 1950s, the right to property was given
fundamental status. Basically, two articles Art. 31 and Art. 19(1)(f) ensures that any person's
right against his property remains protected. Art. 31 clause (1) reads as No person shall be
deprived of his property save by authority of law. It gives protection to persons against the
government or State's arbitrary action to seize private property for public use and private use.
That means a person has right to move to SC in case of violation of this right. Understanding
the power of eminent domain at this point is crucial since every government has the legal
right to seize and appropriate a citizen's private property for public use 1. It is founded on the
legal axiom Salus Populi est suprema lex, which states that the public's welfare comes first
when it comes to the law.

IN AMERICA, THIS POWER WAS LIMITED BY IMPOSING THREE

RESTRICTIONS:

• there must be a law authorizing the taking of property

• the property must be taken for a public purpose
• just compensation should be paid.

In India clause (1) of art. 31 provides for first restriction and clause (2) reading No property
shall be compulsorily acquired or requisitioned save for a public purpose and save by authority
of a law which provides for acquisition of the property for an amount which shall be fixed by
such law, and no such law be called in question in any court on the ground that the amount so
fixed is not adequate for the other two restrictions. Article 19(1)(f) provides the freedom to
citizens to acquire, hold, and dispose of the property within the territory of India. But by the

1 Charanjit Lal v. Union of India, AIR 1951 SC 41

Constitutional 44th Amendment act 1978, these two above mentioned articles were deleted and
a new chapter IV was added in Part XII, containing only one article 300A. The legal status of
the Right to Property was changed from the fundamental right to constitutional right. As a
result, people were not allowed to approach Supreme Court directly u/A 32 of the constitution
for violation of the Right to Property although they still could invoke jurisdiction at high court
u/A 226 of COI.

In Jilubhai Nanbhai Khachar v. State of Gujrat, it was held that the Right to property u/A 300A
is not a basic structure of the Constitution. It is only a constitutional right.

THE EMINENT DOMAIN PRINCIPLE

This can be understood using the currently accepted doctrine of eminent domain. The
government has the right to use our property for public purposes like building roads and
bridges, even if we have a constitutional right to it under Article 300A and a statutory right
under the Transfer of Property Act of 1881. However, in these circumstances, the property
owner must receive adequate recompense.

The following are this doctrine's key components

1. Property is taken for the public's benefit.

2. The seized property is returned in exchange for compensation.

The application of this idea has been replaced, though.

CRITICISM OF RIGHT TO PROPERTY

Since the Constitution's inception, the Fundamental Right to Property has generated the most
controversy. The Supreme Court and Parliament have clashed as a result. It led to multiple
constitutional amendments, including the First, Fourth, Seventh, Twenty-fifth, Thirty-ninth,
and Forty-second Amendments. In order to override Supreme Court rulings and shield certain
laws from being challenged on the grounds that they violate Fundamental Rights, Articles 31A,
31B, and 31C have been added to and changed over time. The majority of the legal disputes
centre on the government's responsibility to provide compensation while seizing or reclaiming
private property.

HOW DID THE 44TH AMENDMENT ALTER THE RIGHT TO PROPERTY?

Before India attained independence, there were four major systems that were in place: the
Ryotwari system, the Mahalwari system, the Zamindari system, and the Jagidari system.
Understanding why the Indian Parliament took such a step requires understanding these four
major systems. Due to the fact that these sizable tracts of land were owned by zamindars,
tenants, and similar individuals, there is an uneven distribution of land, widening the gap
between the rich and the poor.

The Indian Constitution was drafted by the constituent assembly between 1947 and 1950,
working day and night. As a result of their concern for the situation at the time and their
knowledge that the above-mentioned system would require the passage of numerous land
reform and acquisition acts, the constituent assembly took the following actions to redistribute
land and repair the harm:

1. By the Constitution First Amendment Act of 1951, new provisions relating to the
preservation of certain legislation were included in Articles 31A and 31B. No law
granting the purchase of any estate, any right, or the change of any right would be
deemed invalid under Art. 31A because it conflicts with Art. 14 and Art. 19. According
to Article 31B, none of the actions or regulations included in the IX Schedule of the
constitution would be ruled invalid on the grounds that they are incompatible with the
rights guaranteed in Part III of the constitution. Later, the estate's purview was
broadened by the passage of the Fourth Amendment in 1955, it includes any jagir, inam
or muafi, or any other similar grants.
2. One of the most effective actions made in this direction was land celling. The term
"celling" refers to the maximum amount of land that a private individual may purchase.
It was decided in 1959 at the Indian National Congress conference in Nagpur that laws
or acts relating to the restriction of land limits must be put into effect by the end of the
year. The Land Ceiling Act was put into effect twice, from 1976 to 1999 and 1960 to
1972.

The zamindars and other landowners who had their ceiling limit exceeded despite the
government's efforts filed a case with the Supreme Court using their fundamental right to
property in an effort to declare the actions unconstitutional. Consequently, in order to prevent
this from happening and in an effort to uphold economic justice, Art. 31 and Art. 19(1)(f) were
modified as constitutional rights in the new chapter IV Part XII of the Constitution as Art.
300A, which is still in effect today.
PRESENT LEGAL STATUS OF RIGHT TO PROPERTY

The Indian Constitution's 44th Amendment Act of 1978 added a new article, 300A, titled
"Right to Property," to the document. No one's property may be taken from them without a
court order, according to the statement. This article places limitations on the State, stating that
it cannot seize anyone's property without the authority of the law and that it may not be deprived
of that authority. Here, the term "law" refers to a law that has been duly enacted and is
reasonable, just, and fair.

In the case of Hari Krishna Mandir Trust V the Territory of Maharashtra And Others it was
held by the SC that the litigant can't be denied of his piece of land being a confidential street,
without the power of regulation, on the off chance that permitted will be an infringement of
Art. 300A of COI. Art. 31 used to force a comparable limit on the force of Famous Space as in
America yet the new Art. 300A just forces one limitation on this power that is the power of
regulation.

It is clear such hardship will have the power of regulation just when it is for public government
assistance and is simply, fair and sensible. In the case of K.T. Manor Pvt. Ltd. v. Province of
Karnataka, it was held by SC that the necessity of public object is perpetually the standard
when an individual is denied of his property.

The main issue is whether a person will be entitled to compensation if they lose their
property due to the force of the law protecting the public interest?

Yes, it is the answer. Even while it's not stated explicitly, like in Art. 30(1)(A) or Art. 31A (1)'s
second proviso, it can still be inferred from Art. 300A. The State must cite legal arguments in
support of its position, which are determined by legislative policy.

Private property ownership is a fundamental human right.

The Supreme Court has ruled in Vidhya Devi v. The State of Himachal Pradesh & Ors 2. that
the freedom to own private property is an inalienable human right.

PRE AND POST CONSTITUTIONAL ASPECT:

Whatever the case, a person's inherent and characteristic right is the right to property. With the
exception of socialist countries, the vast majority of contemporary constitutions recognise the

2
SC, DB,Appeal(civil), 60-61 of 2020, Judgement date: Jan 08 2020
freedom to private property. Residents have the legal right to occupy and claim the property in
this way. This individual right is in conflict with the state's right to acquire property. No
fundamental right in India has attracted as much persecution as the right to property among the
state and the populace. The paragraph 42 List III, which states "procurement or demand of
property" or "asked for the open welfare," is the Indian rendition of the well-known region.
Articles 19(1)(f) and 31 of the first Constitution, which allowed for the insurance of property
rights, were eventually repealed and replaced with Article 300A. The constitutional provision
in Article 31(2) allows for the necessary acquisition of land, which helps with the
understanding of Articles 19(1)(f) and 31 as well as recognised modifications. The vitality of
a well-known place is essential to a sovereign government. The fifth amendment of the US
Constitution stipulates that private property cannot be taken for public purpose without just
compensation. . Only in certain circumstances, where private property is required for public
use, is the rule of mandatory property security suitable. This rule is based on better examples
of the complete network over a single native.

In the State of Bihar v. Kameshwar Singh case, the Supreme Court argued that while Article
31(2) as it stood prior to the correction did not expressly make the existence of a "open reason"
a condition point of reference to the degree of securing, it was nonetheless a crucial component
of a prominent area, and the proviso continued on the suspicion that obtaining could be done
for an open reason. After consulting the experts, Das J. in the Kameshwar Singh case came to
the conclusion that there is no definitive definition of "open reason" because it is constantly
evolving in all countries. However, he proposed as a working definition, whatever advances
the general enthusiasm of the network, as restricts to the specific enthusiasm of the individual
must be viewed as an open reason.

The Indian Constitution originally had the right to property under Part III: Fundamental Rights,
Article 31, however the 44th Amendment Act, 1978, rendered that provision void. It was
initially made a fundamental right in order to offer residents of newly independent India
security over their property and legitimacy over their land. In any case, it was later revoked
because the Indian government needed to implement land use adjustments and strengthen
social fairness (by taking land from landowners who had surplus land and then giving it to
landless ranchers). It also intended to put up a comparable asset distribution.

As of right now, it is protected under Article 300A of the Constitution, which provides that
only legal authority can be used to take away someone's property.
 • A person needs rights to food, shelter, travel, expression of their faith, and speech in
order to survive.
• One can survive without owning any property.

The government is unable to ensure every citizen's right to property. Because of this, it is
impractical to grant property to everyone in the age of modern technology, regardless of
population size. Making laws is the obligation of the government in order to advance social,
political, and economic progress.

JUDICIAL APPROACH REGARDING CONSTITUTIONAL RIGHT TO PROPERTY:

When read along with the entries listed below, Article 19(1)(f) and Article 31 provided rights
that were so tightly knit into the fabric of our Constitution that they could not be removed
without leaving a jagged hole and frayed threads. The hole must be filled and the frayed
threads must be replaced for the Constitution to be consistent throughout. The task is
challenging, and after it was altered multiple times, courts were frequently asked to settle
disputes that were much more complicated than those raised by Article 31. After the 1980s,
the court has done a better job than the legislature in defending our nation and its citizens.

In Bhim Singh v. Union of India 3, the Supreme Court acknowledged the importance of the
Right to Property as a Fundamental Right shortly after the Fundamental Right to Property
was repealed (1981). It used the second Fundamental Right of Equality, specifically the
concept of reasonableness under Article 14, to invalidate some parts of the urban land ceiling
legislation in the absence of this Fundamental Right to Property.

In the case of B. K. Ravichandra v. Union of India, the Supreme Court mandated that the
Centre return the land to its owners, notwithstanding the fact that the right to property is not a
fundamental right. The Supreme Court's rulings and the history of the right to property show
that, despite doubts about its priority as a basic right, it is nevertheless safeguarded by the
law. It also reveals that it is a valuable right that protects fundamental liberties and economic
liberty, as this court's developing jurisprudence shows. The phrasing of Article 300-A is
important, and its similarity to Articles 21 and 265 cannot be disregarded—after all, they
constitute a guarantee of the primacy of the rule of law.

The Supreme Court found in the more recent case of Bajranga v. State of Madhya Pradesh
(2021) that "right to property is still a constitutional right under Article 300A of the

3 19 (1981) DLT 446

Constitution" in a situation where the government claimed ownership of surplus land despite
their being none. Only in accordance with the legal process may a right be denied.

The State's interference with the citizen's right to property has also been accepted by the
courts. The government does not have the power to interfere with a citizen's right to property
unless it is done so in accordance with the law, as was determined in Ravindran v. The
District Collector, Vellore District (2020), which was later reaffirmed in Jayalakshmi & Ors.
v. State of Tamil Nadu (2021). It was recently noted by the Madras High Court that the Right
to Property and the Right to Life are closely related under Article 21 of the Indian
Constitution.

RIGHT TO PROPERTY AS A HUMAN RIGHT

In State of West Bengal v. Haresh C. Banerjee (2006), the Supreme Court acknowledged that,
despite the repeal of Article 19(1)(f) and Article 31(1) of the Constitution by the Constitution
(Forty-Fourth Amendment) Act, 1978, effective June 20, 1979, the right to property was still
a constitutional right under Article 300A of the Constitution. The right to a pension was seen
as being equivalent to a property right.

Both the High Court of Chhattisgarh and the High Court of Bombay relied on D.S. Nakara
and others v. Union of India (1982) in reaching their conclusions that pension payments
could not be delayed in Purushottam Kashinath Kulkarni and others v. State of Maharashtra
and others (2016) and Ramlal Sharma v. State of Chattisgarh (2015), respectively. It is a
benefit of an employee that was earned the same way as the property. In Dinavahi Lakshmi
Kameswari v. State of Andhra Pradesh (2020), the Supreme Court reaffirmed this and added
that "according to a liberal interpretation of these two sections (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.”

CONCLUSION:

Because of the unreasonable ownership of land by the zamindars and occupants, the legitimate
status of the Right to opportunity was transformed from an essential right to an established
right to keep away from the circumstance of abusing of right to property as a basic right by
zamindars and one more landowner against state measures to procure land and to carry out land
roof regulations in India. In any case, this right is accessible to all people as a protected right
and can summon the purview in high court u/A 226 of the Constitution of India.