Right to Property : Law, Judicial Precedents and Discussion

Right to Property : Law and Discussion

Article Written in Memory of Late Shri R.P. Mishra, Allahabad

Constitution (44th) Amendment Act, 1978 amended Article 19 and Article 19 (1) (f) was omitted. A.31 was also omitted. A.300A was added. When Morarji Desai became PM, this Amendment was passed. 

Before 44th Amendment Act, 43rd Amendment Act, 1977 was also passed which omitted Article 31D ; A.31D was not the part of original Constitution. 

Article 19 (1) (f) gave right to acquire, held and dispose of property. Article 31 (1) provided that no person shall be deprived of his property save by authority of law. A.31 (3) gave limited powers to State Government. 

7 Judges' Bench has explained the provisions before the Amendment of 1978. In State of Karnataka v. Ranganatha Reddy [1977] GCtR 6307 (SC) contract carriages were taken over by the State. Initially an Ordinance was passed and then an Act. HC, however, quashed the notifications. It was noted that "any law providing for acquisition of property must be, for a public purpose. Whether the law of acquisition is for public purpose, or not is a justiciable issue." Apex Court held that "It was not a case where some chattels or movables were merely acquired for augmenting the revenue of the State or for its commercial purposes." "There may be many circumstances and facts to justify the acquisition of even a movable property for a public purpose. It may not be universally so but the converse is also not correct." One of the Hon'ble Judges wrote "When confronted by serious constitutional problems, judicial statesmanship drops the craft of a legal tinker or lexicographic borrower but transforms itself into that of social engineer who ’beholds the future in the present and his thoughts are the germs of the flower and fruit of latest time’."

In K.T. Plantation Pvt Ltd v. State of Karnataka [2011] GCtR 5428 (SC), the composition of Bench was 5. It was explained at page 121 that "Public purpose is a pre-condition for deprivation of a person from his property under Article 300A and the right to claim compensation is also inbuilt in that Article and when a person is deprived of his property the State has to justify both the grounds which may depend on scheme of the statute, legislative policy, object and purpose of the legislature and other related factors." 

The disputes and controversy arose few days after Constitution was enacted. In State of Bihar v. Maharajadhiraja Kameshwar Singh [1952] GCtR 6308 (SC), where 5 Judges' Bench explained the provisions. Bihar Land Reforms Act, 1950 was questioned by petitioners. Hon'ble HC held that Act to be unconstitutional. The 1st Constitutional Amendment Act was passed when the government at the Centra was not even elected ; A.31A and A.31B were added through 1st Amendment Act, 1951. It was argued that "the existence of a public purpose and an obligation to pay compensation being thus the necessary concomitants of compulsory acquisition of private property, the term "acquisition" must be construed as importing, by necessary implication, the two conditions aforesaid." It was held that "it is true that under the common law of eminent domain as recognised in the jurisprudence of all civilized countries, the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss".  Conclusion drawn was that S.4 (b) and S.23(f) of Bihar Land Reforms Act, 1950 was held not constitutional. It was also held that "An entry concerning payment of compensation in no sense includes legislative power of non-payment of compensation, The whole purpose of this head of legislation is to provide payment of compensation and not the confiscation of property." This decision discussed S.299 of Government of India Act, 1935 as well as the position that existed till 1952. During the course of discussion, Julius v. Bishop of Oxford (1880) 5 App. Cas. 214 was found not applicable.