Right to Property and the Legislative and Judicial Attitude

Art. 19(1) All citizens shall have the right_

(f) to acquire, hold and dispose of property....

Art 19(5) Nothing in the above clauses shall prevent the state from making any laws in the interests of the general public .....,

Art 31 Compulsory acquisition of property - (1) No person shall be deprived of his property save by authority of law.

(2) 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 curt on the ground that the amount so fixed is not adequate......,

Art 31A Saving of laws providing for acquisition of estates- Not withstanding any thing contained in Art 13, no law providing for

(a) the acquisition by the state of any estate or any rights therein ....,

Shall be void on the ground that it is inconsistent with or takes away or abridges any fundamental rights......,

(2) (iii) Estate' means any land held or let for purposes of agriculture...,

Art31B Validation certain Acts - Without prejudice to the generality of the provisions contained in art31A, none of the acts or regulations contained in the Ninth Schedule of this part shall be void on the ground that the act or regulation takes away or abridges any of the fundamental rights........

Art 31C Saving of laws giving effect to certain Directive Principles of State policy- ..., any law giving effect to the policy of the state towards securing all or any of the principles laid down in the directive principles , shall be deemed to be void on the ground that it takes away the fundamental rights.....,

Art. 19(1) (f) guaranteed to the Indian citizens a right to acquire, hold and dispose of property. Art 19 (5), however, permitted the state to impose by law reasonable restrictions on this right in the interests of the general public or for the protection of any Scheduled Tribe.

Generally speaking, Art. 19(1) (f) did not prove to be much of a hindrance in the way of government implementing land reforms. Courts characterized as reasonable a very drastic reordering of the agrarian economy showing that the Courts had themselves assimilated and imbibed, to some extent contemporary economic philosophy. Many laws regulating relationship between landlord and tenants were declared to be constitutional.

A law limiting the size of holdings in the hands of a single individual to a specified limit was held to be valid the Supreme Court in State of Bihar v. Kameshwar Singh AIR1952 SC 252 .

The Bihar land Acquisition was challenged in this case and the Supreme Court held :

Now it is obvious that concentration of big blocks in the hands of a few is against the principles on which the Constitution of India is based. The purpose of the acquisition contemplated by the Act is therefore to do away with the concentration of land in the hands of a few individuals and so distribute the ownership and material resources which come in the hands of the state so to sub serve the common good as best as possible.

In other words, the purpose behind the Act is to bring about a reform in the land distribution system of Bihar for the general benefit of the community as advised. The legislature is the best judge of what is good for the community interest. It is not possible for the Court to say that there was no public purpose behind the Act. The purpose of the Act is in accordance with the letter and spirit of the constitution .

Art 31(1) laid down that no person could be deprived of his property without the authority of law. This provision was repealed by the 44th Amendment. It now appears as Art.300 A. The difference being that it is only a legal right and not fundamental any longer.

Art. 31(2)as it stood before its abrogation was as follows:

No property shall be compulsorily acquired or requisitioned except for a public purpose and save by the authority of law which provides for acquisition and requisition of property for an amount which shall be fixed by law........,

Before 1955: The word compensation in Art 31(2) was not qualified by any adjective like just' or adequate'. Nevertheless, the courts took the position that such an omission was immaterial and the word A compensation' standing alone by itself meant just and equitable compensation payable for the interest in the land acquired. The courts held that it was a justifiable matter and the courts can look into the same.

From 1955 to 1971 : The government became uneasy at the judicial insistence on the payment of full market value for the land acquired. It was felt that it would place an onerous burden on the country's socio economic programme involving reconstruction of property relations. Therefore the government passed the 44th amendment Act and amended Art 31(2) with a view to make the adequacy of compensation non justifiable .The courts were debarred from inquiring into the question of whether the compensation provided by a law for the property being acquired by the government was adequate or not.

This amendment, however, failed to exclude the courts completely from the area of compensation. Though under the amended Art 31(2) the principles prescribing the just equivalent could not be questioned on the ground of inadequacy, yet if the principles were not relevant to the value of the property acquired at the time of acquisition, then the courts could intervene and scrutinize the principles. It could also intervene if the principles were illusory.

The effect of the change made in Art 31(2) by substitution of the word 'amount' for 'compensation' came to be considered by the Supreme Court in Keshavananda Bharathi case.(AIR 1973 SC 1461).It was held that the 'amount ' was not the same as 'compensation' and the courts could not go into the question of adequacy. Nevertheless, the amount could be 'illusory', 'arbitrary', or 'grossly low', which would shock the judicial conscience. Thus though the amount need not be market value of the property acquired, but it should have some reasonable relationship with the value of the property acquired. On this view of the matter a limited judicial review is still possible.

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