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RIGHT TO PROPERTY

AS A FUNDAMENTAL
RIGHT
UNDER
THE CONSTITUTION OF
INDIA

Team Members:
Agnel Jenson Arunkumar Paul
Harsh Bhatia
Aliasgar Tinwala
Vraj Pandya
Property, as a legal and social institution, has different forms in
different cultures and legal systems. However, only a definition of
Constitutional property is common in all democratic countries.
Since state exercises eminent domain power against private
property, it is pertinent to discuss the concept of private property
in brief.

Most of the modern Constitutions, except those of communist


Introduction countries have recognized the right of private property.
Therefore, citizens have right to own and possess the property.

The aim of the private law is to regulate relationships between


individuals, therefore, definition of property in private law
depends on the different aspects of the legal relations among
individuals, but aim of constitutional law is to regulate
relationship between individual and state, therefore, state
protects the property right of individuals.
The word property as used in Article 31 the Supreme Court has said should be given
liberal meaning and should be extended to all those well recognized types of interest
which have the insignia or characteristic of property right.

It includes money, contract, interest in property e.g., interest of an allottee, licensees,


mortgages or lessees of property. The Mahantship of a Hindu Temple, and
shareholders of Interests in the company are recognizable interest in property.

The right to receive pension is property.

Meaning of Property
This bill basically centred around the ‘certain difficulties that
had been brought to light by the judicial decisions and
pronouncements specially in regard to fundamental rights’.
The Constitution
(First The First Five year plan was in support of removing the evil
Amendment) zamindaris system, but it excluded the presence of
intermediaries and had given the land to tiller.
Act, 1951
Pt. Jawaharlal Nehru the then Prime Minister had enunciated

Abolition of the doctrine of Parliamentary Supremacy during the


constituent assembly debate on compensation on its way, and

Zamindari ultimately the whole Constitution is a creature of Parliament.’

System
Therefore the first amendment added to Article 31 two
explanatory clauses 31-A and 31-B to fully secure the abolition
of zamindari.
The Constitution (Fourth Amendment) Act, 1955

• In 1954 when the Parliament adopted a resolution for the establishment of


“socialistic pattern of society” in India.
• The State started assuming the role of a welfare state and were vitally concerned
with reducing disparities in income, to prevent monopolies and concentration of
economic power in a few hands.
• It started regulating and controlling the private business of several commercial
companies and undertakings as done in Solapur Mills Case, Subodh Gopal’s Case and
Bella Banerjee’s Case.
• The Supreme Court was of the view that words ‘taken possession of or acquired’
amounted to deprivation hence compensation must be paid even though merely
state took the possession and not acquired it. And according to Bella’s case the
compensation should be equivalent to what the owner is deprived of.
The Constitution (Fourth Amendment) Act, 1955
contd.
• Thus this judgement of the court stood as a brake in the regulatory power of the state and
property was given a very wide connotation.
• Thus, it became necessary that the power to fix ceilings on land holdings, to distribute excess of
land and lastly to remove the jurisdiction of the judiciary from fixing the compensation.
• This led to Fourth Amendment which brought a change in the substantial character in 31(2) and
also inserted (2-A). This way the State acquired the right to pass any law restricting, modifying
and curtailing the right of ownership in property without being liable to pay compensation.
• In question of the people who were getting deprived of property were given lesser amount of
compensation then what was just as laid down in Bella’s case. The Supreme Court was barred to
fix the compensation it said it can still get into the question of reasonable classification under Art
14.
• Also in Art 31B the Ninth Schedule of the Constitution containing 13 Acts and regulations were
made immune from the attack of fundamental rights chapter in the Constitution
• Here, certain other legislative measures by
different States for the purpose of giving effect
to agrarian policy were effectively challenged.
• Thus, the Parliament thought that it was
necessary to make amendment in Art 31-A and
Art 31-B.
• Accordingly, the expression ‘estate’ in Art 31-A
The Constitution was amended retrospectively by a new
definition given in Art 31-A(2) and another
(Seventeen proviso was added to 31 –A(1). In art 31-
Amendment) Act, B instead of 13 acts 44 amendments act were
added to the schedule.
1964 • The validity of the above amendments were
challenged in Golak Nath’s case though the
amendments were upheld but it was held that
any amendment made under Art 368 is a law
under Art 13 due to which state can take no
action which infringes or abridges fundamental
rights due to which J. Hiddayatulah said that
the constitution needs to be amended as
putting right to property as a fundamental
right was in his opinion an error .
By this amendment a new clause was substituted for
Art 31(2) replacing the expression ‘Compensation’ by
the for ‘Amount ‘ and making the amount and mode of
payment for takeover of property non –justiciable.
The
Constitution And also by this time the conflict between the
(twenty-fifth fundamental rights and Directives was over and
Directive Principles of State Policy gain precedence over
Amendment) fundamental rights conferred under Art 14,19 and 31.
Act, 1971
It had made special provision with regard to law
intended to give effect to the directive principles
contained in art 39 (b) and 39 (c) of the Constitution.
Transformation From Fundamental Right to
Legal Right
After the Janta Government
took over the reins at the
Centre , it sought to undo
the amendments made
under 42nd Amendment The scope of Art 300-A was
Act. It enacted determined by the Supreme And also expression
44th Amendment Act ,1978 Court in Jilubhai Nanbhai ‘property’ in article 300-A
which brought about one of Khachar v. State Of Gujarat has to be understood in the
the most significant change and it was held that right to context of the sovereign
as it resulted in the deletion property does not form the power of eminent domain
of right to property as a basic structure of the of the State.
fundamental right and Constitution.
provided for its
reincarnation as art 300-A
to recognize it as a legal
right.
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 forty fourth 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.

Conclusion 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.

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