The Constitution of India originally provided for the Right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property.
The Constitution of India[1] originally provided for the Right to property under Articles 19 and 31. Article 19[2] guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31[3] provided that “no person shall be deprived of his property save by authority of law.” It also provided that compensation would be paid to a person whose property has been taken for public purposes. These provisions changed a number of times. The 44th Amendment of 1978[4] removed the right to property from the list of fundamental rights. A new provision, Article 300-A,[5] was added to the constitution, which provided that “no person shall be deprived of his property save by authority of law”. Thus, if a legislator makes a law depriving a person of his property, there would be no obligation on the part of the state to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32[6]. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by aggrieved citizens.[7]The fundamental right to property was abolished because of its incompatibility with the goals of justice, social, economic and political and equality of status and of opportunity and with the establishment of a social democratic republic, as contemplated by the Constitution.[8] The right to property under Art. 300A is not a basic feature or structure of the Constitution. It is only a Constitutional right.
DEFINITION OF PROPERTY
Defining the property as a legal concept, the Supreme Court in Guru Dutt Sharma v. State of Bihar[9], observed that it is a bundle of rights, and in the case of tangible property, it would include the right of possession, the right to enjoy, the right to retain, the right to alienate and the right to destroy. The Supreme Court in Commissioner, Hindu Religious Endowment V. K. Lakshmindra[10], said that there is no reason why the word ‘property’ as used in Article 19(1)(f) [11]of the constitution should not be given a liberal and wide connotation and should not be extended to those well recognized types of interests which have the insignia or characteristic of proprietary rights.It was due to the reason of giving such a wide meaning to ‘property’ that in Shantabai v. State of Bombay[12] it was held that a bare contractual right unattended with any interest in property is property.
JUDICIAL PRONOUNCEMENTS
In the case of Vidya Devi v. State of Himachal Pradesh [13]the appellant (Ms. Devi) was an illiterate widow, coming from a rural background, who was completely unaware of her rights & entitlement in law, & did not file any proceedings for compensation of the land compulsorily taken over by the state. She first learnt about her right for compensation in 2010 from her neighbors who had also lost their property to the road. In her 70s, She marched straight to the Himachal Pradesh High Court, accompanied by her daughter, to join her neighbors in their fight against the state. But the High Court directed her to file a civil suit in the lower court. Disappointed, Ms. Devi moved to the apex Court. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.[14] It was held that to forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai[15], wherein this Court held that, “Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of “eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” It was further emphasized in N. Padmamma v. S. Ramakrishna Reddy[16]that, if the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed.
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors[17], this Court recognized the right to property as a basic human right in the following words,
“It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property.”
“Property must be secured, else liberty cannot subsist” was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.”
Further in Jilubhai Nanbhai Khachar v. State of Gujarat[18], that court said that Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law.
In fact, in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors[19] it was held that the state must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. The court in State of Haryana v. Mukesh Kumar[20] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right.
[1] The Constitution of India, 1949, Source Link.
[2] The Constitution of India, Art. 19 (Repealed), 1949.
[3] The Constitution of India, Art. 31, 1949.
[4]The 44th Amendment of 1978, Source Link.
[5] The Constitution of India, Art. 300-A, 1949.
[6] The Constitution of India, Art. 32, 1949,
[7] Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33.
[8] State of Maharashtra v. Shandrabhai, AIR 1983 SC 803.
[9] Guru Dutt Sharma v. State of Bihar, (15) (1962) 1 S.C.J 382, 395.
[10] Commissioner, Hindu Religious Endowment V. K. Lakshmindra, AIR 1952 Mad 613.
[11] The Constitution of India, Art. 19(1)(f), 1949.
[12] Shantabai v. State of Bombay, [1953] S.C.R. 476.
[13]Vidya Devi v. State of Himachal Pradesh, Arising out of SLP (Civil) Nos. 467468/2020 @D..No.36919/2018.
[14] The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92. 2 Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353. 3 K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1.
[15]Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai, AIR 2005 SC 3520.
[16] N. Padmamma v. S. Ramakrishna Reddy, (2008) 15 SCC 517.
[17] Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors., CIVIL APPEAL NO.24 OF 2009.
[18] Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596.
[19] Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors,
[20] State of Haryana v. Mukesh Kumar, 8 (2013) 1 SCC 353.
