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Right To Property And Judicial Findings Article 300-A


The right to property is one of the most controversial human rights, both in terms of its existence and interpretation. The controversy about the definition of the right meant that it was not included in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. Controversy centres upon who is deemed to have property rights protected (e.g. human beings or also corporations), the type of property which is protected (property used for the purpose of consumption or production) and the reasons for which property can be restricted (for instance, for regulations, taxation or nationalisation in the public interest). In all human rights instruments, either implicit or express restrictions exist on the extent to which property is protected. Article 17 of the Universal Declaration of Human Rights (UDHR) enshrines the right to property as follows:
  1. Everyone has the right to own property alone as well as in association with others.
  2. No one shall be arbitrarily deprived of his property.
The object of the right to property as it is usually understood nowadays consists of property already owned or possessed, or of property acquired or to be acquired by a person through lawful means. Not in opposition but in contrast to this, some proposals also defend a universal right to private property, in the sense of a right of every person to effectively receive a certain amount of property, grounded in a claim to Earth's natural resources or other theories of justice.

In India, prior to the enactment of the Constitution (Forty-fourth Amendment) Act, 1978, Article 31 guaranteed to the people of India the fundamental right to property. Article 31, as originally enacted, provided that:
no person shall be deprived of his property save by authority of law.

It, however, permitted the acquisition of private property by the State for some public purpose by paying compensation to the owner. It also exempted Zamindari abolition and agrarian reform laws from the requirements of compensation and public purpose.

Article 31 came to be interpreted by the Patna High Court in Kameshwar Singh v. State of Bihar. {1} In this case, the Bihar Land Reforms Act, 1950, provided for the transference to the State of the interests of proprietors and tenure holders in land including interests in trees, forests, jatkars, hats, mines and minerals provided that compensation was to be paid in certain multiples. The Patna High Court held the Act invalid and void for it contravened the provisions of Article 14. It was further ruled that Article 31(4) would not prevent the Zamindari abolition laws from being challenged in a Court on grounds other than those mentioned in Clause (2) of Article 31.

The interpretation of Article 31 gave rise to unanticipated difficulties and the Government felt that the whole Zamindari abolition programme was endangered. To overcome the difficulty, the Constitution (First Amendment) Act, 1951 was passed. The object was to insert provisions, fully securing the constitutional validity of Zamindari Abolition Laws and certain specified State Acts. The First Amendment amended the Constitution and inter alia a new provision, Article 31-A was added.

Article 31-A was aimed at removing social and economic disparities in the agriculture sector. Article 31 (2) provided that a person deprived of his property would be paid compensation.
In State of W.B. v. Bela Banerjee, {2} the Supreme Court held that the principles laid down by the Legislature for the determination of the amount to be given to the owner for the property appropriated, must ensure that what was determined as payable must be compensation, that meant just equivalent of what the owner had been deprived of. The question as to just compensation for the deprivation of a person of his property was held to be a justiciable issue to be adjudicated by the Court.

It led to the enactment of the Constitution (Fourth Amendment) Act, 1955. The Fourth Amendment amended Article 31(2) to the effect that the question as to the adequacy of compensation would not be justiciable.

Even after the Fourth Amendment, the Supreme Court, in some cases, held that since the word compensation not having been eliminated from Article 31 (2). Full compensation must be payable to the person deprived of his property. {3}

To nullify the effect of these judicial pronouncements, Article 31 (2) was again amended by the Constitution (Twenty-fifth Amendment) Act, 1971. The amendment dropped the word compensation and instead inserted the word amount in Article 31 (2). It was done in order to avoid judicial review of the term compensation as just compensation.

The validity of the Twenty-fifth Amendment was upheld in Kesavananda Bharati v. State of Kerala. {4}

The majority of the Supreme Court, however, said that though there was no scope for judicial review on the ground of inadequacy of compensation, the Court could still interfere:

  1. On the ground that the Legislature had not fixed any amount or, specified any principles according to which it could be determined.
  2. If the principles laid down for determining the compensation resulted in non-payment of compensation or in paying an illusory compensation, which would shock the conscience of a reasonable man.
The Constitution (Forty-fourth Amendment) Act, 1978, ultimately, took away the right to property from the Chapter on Fundamental Rights. The Amendment omitted Article 31 and Article 19 (1) (f) and inserted in their place Article 300-A, providing: No person shall be deprived of his property save by authority of law.

In Good Governance India Foundation v. Union of India, {5} a three-Member Bench of the Apex Court headed by the C.J.I., Justice S.H. Kapadia, dismissed a PIL petition seeking a direction to make right to property a fundamental right. Earlier in I.R. Coelho v. State of Tamil Nadu, {6} a three-Member Bench of the Supreme Court had ruled that Right not to be deprived of poverty, save by authority of law is no longer a fundamental right but only a Constitutional right which has never been treated as part of the basic structure of the Constitution'.

Constitutional Right to Property (Article 300A)
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. {7} 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. {8}

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, {9} observed that the right of property, being inviolable and sacred, no one might be deprived thereof, unless the public necessity, legally ascertained. obviously required it and just and prior indemnity had been paid. 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. {10}

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. Manohar, {11} 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 Bihar, {12} 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. {13}
The Supreme Court in Bishamber Dayal Chandra Mohan v. State of U.P.{14} 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. Basantibai {15} upholding the validity of the Maharashtra Housing and Area Development Act, 1976 under Article 300-A. The Supreme Court, said that the impuguned 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.

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. {16} The expression right to property includes the right to use {17} /enjoy/manage/ consume and alienate the same.{18}

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,{19} destruction, {20} seizure of goods,{21} or revocation of a proprietary right.{22} 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. {23}

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. {24} It has been held that each and every claim to property would not be property right within the meaning of Article 300-A.{25}

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 fulfills 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.{26}

In Jilubhi Nanbhai Khachar v. State of Gujarat, {27}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. {28} Relying on these observations, the Madras High Court in Lakshmi Rice Mills v. Dist. Officer, Madurai,{29} 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.{30} 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. {31}

In Ajay Kumar v. 0.S.F.C., {32} 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 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.P., {33} 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.

Doctrine of Adverse Possession

It is a legal doctrine that allows a person who possesses or resides on someone else's land for an extended period of time to claim legal title to that land. In India, a person who is not the original owner of a property becomes the owner because of the fact that he has been in possession of the property for a minimum of 12-years, within which the real owner did not seek legal recourse to oust him.

Article 142

It provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Article 136 (Special Leave Petition)
It allows the Supreme Court to hear, at its discretion, an appeal against any order from any court or tribunal in the territory of India. However, this does not apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Conclusion
A citizen's right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law. The Bench referred to an earlier verdict in State of Haryana v. Mukesh Kumar case (2011) wherein it was held that the right to property is not only a constitutional or statutory right, but also a human right. Doctrine of Adverse Possession: The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of adverse possession.

Grabbing private land and then claiming it as its own makes the state an encroacher. In 1967, when the government took over the land, right to private property was still a fundamental right under Article 31 of the Constitution. Right to Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. It was made a Constitutional right under Article 300-A. Article 300-A requires the state to follow due procedure and authority of law to deprive a person of his or her private property.

Reference:
  1. M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject containing case-law reference (Indian & Foreign), (Wadhwa and Company Nagpur, New Delhi, 6th Edn., 2007).
  2. Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law Agency, Haryana 8th Edn., 2011).
  3. Right To Property, Wikipedia, https://en.wikipedia.org/wiki/Right_to_property.

End Notes:
  1. AIR 1951 Pat. 91.
  2. AIR 1954 SC 170.
  3. R.C Cooper v. Union of India, AIR 1970 SC 664.
  4. AIR 1973 SC 1461.
  5. The Hindu, 20-10-2010.
  6. The Hindu, 15-9-2010.
  7. Objects and Reasons, the Constitution (Forty-fourth Amendment) Act, 1978. One of the reasons for deletion of the right to property from Part III of the Constitution was that the economic liberties of freedom of property came in direct conflict with egalitarian values, including inter-generational equity'.
  8. Chairman, I.V. Pradhikaran v. M /s. Puri, AIR 2007 SC 2458.
  9. AIR 2007 SC 2458.
  10. V.J. Patel v. V.A. Patel, AIR 2008 SC 2675; Also in Devinder Singh v. State of Punjab, AIR 2008 SC 261.
  11. AIR 2005 SC 488.
  12. AIR 2009 Pat. 64.
  13. V.Subramaniam v. Rajesh Raghuvandra Rao, AIR 2009 SC 1858.
  14. AIR 1982 so 32. Also in Ashak Kumar v. State of U.P., AIR 2005 A11. 44
  15. AIR 1886 so 1466.
  16. Shri K.G. Sugar Ltd. v. State of Bihar, AIR 2003 SC 3436.
  17. Decision of the Regional Transport Authority restricting the life of Vehicles to be used under any permit to 15 years is held illegal. It is held to be depriving the owner of their property or usage without authority of law, violative of Article 300-A, also in Rajesh Kumar v. State of Bihar, AIR 2009 Pat. 98.
  18. Gango Coopt. Housing Society Ltd. v. M.C., Greater Bombay, AIR 2004 Born. 64. The Right to construct a building, has been held to be included in the right to property, under Article 300-A. Also in T. Vijayalakshmi v. Town Planning Members, (2006) 8 SCC 502.
  19. Ananda Behra v. State of Orissa, AIR 1956 SC 17.
  20. Chiranjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41.
  21. Wazir Chand v. State of U.P., AIR 1954 SC 415.
  22. Virendra Singh v. State of U.P., AIR 1954 SC 447.
  23. Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142.
  24. Union of India v. Elphinstone Spinning & Weaving Co. Ltd., AIR 2001 SC 724.
  25. Indian Handicrafts Emporium v. Union of India, AIR 2008 SC 3240.
  26. Mahender Pal v. State of Haryana, AIR 2009 SC 3220.
  27. AIR 1995 sc 142.
  28. M. Somasundara Mudaliar v. Govt. of T.N., W.P, Pension and gratuity have been held to be valuable rights acquired and property in the hands of the pensioners. Also mentioned in Gorakhpur University v. Dr. S.P Nagendra, AIR 2001 SC 2433.
  29. AIR 1998 Mad 22.
  30. State of W.B. v. Sujit Kumar Rana, 2004 (1) SCALE 641.
  31. Manager ICICI Bank Ltd. v. Prakash Kaur, AIR 2007 SC 1349.
  32. AIR 2007 Ori. 37.
  33. AIR 2009 (NOC) 787 (All.)

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