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RIGHT TO PROPERTY AND COMPENSATION UNDER THE INDIAN CONSTITUTION M.L. Singhal Director, ITR, UP, L!c"no# At present the Right to Property viz. “No person shall be deprived of his property save by authority authority of law” is enshrined in Art. 300A, inserted by onstitution !! th A"end"ent.# $he onstitution of %ndia, as originally adopted safeguarded the Right to Property in a nu"ber of ways. $ir%tl&, it guaranteed that “All &itizens shall have the right to a&'uire, hold and dispose of the property.” property.” $he (tate, however, however, &ould &ould i"pose reasonable restri&tions restri&tions )i* to serve the e+igen&ies of publi& welfare and )ii* to prote&t the interest of any (&heduled $ribe vide Art. Art. #- lauses )#* )f* ) f* )/*. Secon'l&, in the phraseology of Art. 300A, the onstitution "a1ers in Art. 3#)#* guaranteed that “No person shall be deprived of his property save by the authority of law”. $he provision indi&ated that a person &an be deprived of his property only through an A&t passed by the Parlia"ent2(tate egislature and not by e+e&utive order or fiat. $he word 4aw in Art. 300A "eans an A&t of Parlia"ent or a (tate egislature, a rule or a statutory order, having the for&e of law, that that is positive or (tate5"ade law. 6 ARt. 3#)6* )now deleted*, the property of a person Thir'l&, as provided in ARt. &ould be a&'uired or re'uisitioned only under two &ontingen&ies viz. )i* the a&'uisition or re'uisition &ould be for publi& purpose and )ii* the law "ust provide for pay"ent of &o"pensation &o"pensation to the owner owner of the property either by fi+ing the a"ount of the &o"pensation or by spe&ifying the prin&iples upon whi&h it &ould be deter"ined or fi+ed. $he obligation to pay &o"pensation, however went on diluting &ontinuously by the onstitution 7irst, 7ourth, (eventh, $wenty5fifth and 7orty5se&ond A"end"ent A&ts. $he (upre"e (upre"e ourt in 8ela 8ela 8aner9e 8aner9eee s &ase3 propounded that the the word “o"pensation” deployed in Art. 3#)6* 3#)6* i"plied 4full &o"pensation &o"pensation , that is the "ar1et value of the property at the ti"e of the a&'uisition. $he egislature "ust “ensure that what is deter"ined as payable "ust be &o"pensation, that is, a 9ust e'uivalent of what the owner has been deprived of”. $he :overn"ent realized that due to pau&ity of resour&es, it was not feasible for it to pay the full "ar1et •
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;levated to .#-?-. 6 @ilubhai Nanabhai ha&har v. (tate of :u9arat, A%R #--/ ( #!6 at p. #/BC 8isha"bhar Dayal handra Eohan v. (tate of F.P., A%R #-B6 ( 33. 3 A%R #-/! ( #?0. •
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value of the property a&'uired and as su&h the National Planning and Develop"ent underta1en by the :overn"ent i""ediately after the independen&e of the &ountry were bound to be ha"pered. New Art. 3#58 added by onstitution # st A"end"ent, li1e Art. 3#0A, saves A&ts and Regulations "entioned in Ninth (&hedule. Art. 3#5 added by 6/ th A"end"ent A&t, #-?# prote&ts laws giving effe&t to the poli&y of the (tate se&uring all or any of the prin&ipled laid down in Part %H of the onstitution, apart fro" e+tending the sa"e prote&tion as ‟
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! A%R
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#-?3 ( #!># %ntrodu&tion to the onstitution of %ndia, #? th ;d. Page ##B.
> Dr. 8asu‟s
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e+tended by Arts. 3#5A and 3#58, and also de&lared that no su&h law shall be &alled in 'uestion in any &ourt on the ground that it does not give effe&t to su&h poli&y. $he onstitution !! th A"end"ent A&t, #-?B, robbed the 4right to property of its funda"ental right5&hara&ter, and adorned it with status of onstitutional2legal right. Arts. #-)#*)f* and 3# were deleted fro" the Part %%%5 “7unda"ental Rights” and only a fra&tion in the for" of Art. 300 A whi&h &orresponds to Art. 3#)#* only, has been inserted in Part I%% under a separate hapter H “Right to Property”. =hat is i"portant to note is that Art. #-)#* )f* whi&h had guaranteed freedo" to all &itizens to a&'uire, hold and dispose of property and re"aining &lauses )6* to )>* of Art. 3#, whi&h hedged the right of the egislature, to a&'uired property with li"itations for publi& purposes and only on pay"ent of ade'uate &o"pensation, not illusionary one, as interpreted by the Ape+ ourt, have been o"itted altogether by the egislature. $he effe&t of this a"end"ent of vast "agnitude is that the 4right to property is no "ore a funda"ental right but is only a &onstitutional2legal right and in the event of brea&h thereof, the re"edy available to an aggrieved person is to approa&h the of the onstitutional %ndia and not the (upre"e ourt under Art. 36 of the onstitution, a speedy re"edy available earlier. * of Art. 3# whi&h postulated provisions for pay"ent of &o"pensation when land was a&'uired2re'uisitioned, have been o"itted fro" the onstitution (tatute boo1s, the obligation to pay ade'uate a"ount of &o"pensation to the owner of the property still survives. %n 8asanti 8ai s &ase -, a Division 8en&h of the 8o"aby
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7urther, the law providing for deprivation of property "ust be fair, 9ust and ? Hide
Art. 30)#A*, added by the !! th A"end"ent A&t, #-?B w.e.f. 30.>.?-. onstitution )(eventeenth A"end"ent* At, #->!. - A%R #-B! 8o"bay 3>>. B %nserted by
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reasonable as propounded by
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in&o"patibility with the goals of 9usti&e, so&ial, e&ono"i& and politi&al and e'uality of status and of 4opportunity and with the establish"ent of a so&ial de"o&rati& republi&, as &onte"plated by the onstitution. #6 $he 4right to ‟
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property under Art. 300A is not a basi& feature or stru&ture of the onstitution. %t is only a onstitutional right. #3 $he
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all the e+er&ise and effa&ed Arti&le 3#)6* altogether fro" the onstitution.” %n a very re&ent &ase of @ilubhai Na"bhai ha&har v. (tate of :u9arat #/ the Ape+ ourt held that after the onstitution 7orty 7ourth A"end"ent A&t #3 @ilu
8hai Na" 8hai ha&har v. (tate of :u9arat, A%R #--/ ( #!6. #--# er. #>6 )78*. #/ A%R #--/ ( #!6. #! A%R
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has &o"e into for&e, the right to property in Arts. #-)#*)f* and 3# had its obliteration fro" Part %%%, 7unda"ental Rights. %ts abridg"ent and &urtail"ent does not get retrieved its lost position, nor gets restituted with renewed vigour &lai"ing &o"pensation under the garb 4deprivation of property in Art. 3005A. $he &ourt further held that the prin&iple of unfairness of the pro&edure attra&ting Art. 6# does not apply to the a&'uisition or deprivation of property under Arti&le 300A giving effe&t to the Dire&tive Prin&iples. Now, if the property of a person has been a&'uisitioned2re'uisitioned even not for a publi& purpose, and without pay"ent of &o"pensation though under the authority of law, the owner &annot grouse or gru"ble against the sa"e, the egislature is no "ore under a onstitutional obligation to pay the &o"pensation what to say of ade'uate &o"pensation. (u&h a person &annot ventilate grievan&e before the ourt that the &o"pensation granted is illusory one. Jnly where a person is deprived of his property by the e+e&utive without the authority of law, in that event he would be entitled to legal relief on the ground that su&h e+e&utive a&tion abridges the provisions of Art. 300A of the onstitution. $he onstitution "a1ers bestowed right on every &itizen of the &ountry to a&'uire, hold and dispose of property and also provided a"ple safeguards against deprivation of the property by egislature by &onfining su&h deprivation for publi& purpose only and only on pay"ent of &o"pensation to the e+propriated owner either by fi+ing the a"ount of &o"pensation or by spe&ifying the prin&iples upon whi&h it &ould be deter"ined or fi+ed. ;ven in pre5%ndependen&e era, under the :overn"ent of %ndia A&t, #-3/, si"ilar safeguards were provided in as "u&h it was envisaged therein that no person &ould be deprived of his property in 8ritish %ndia save by the authority of law and that neither the 7ederal nor Provin&ial egislature had power to "a1e any law authorizing the &o"pulsory a&'uisition of land et&., unless the law provided for the pay"ent of the &o"pensation for the property a&'uired and either fi+ed the a"ount of the &o"pensation or spe&ified the prin&iples on whi&h, and the "anner in whi&h, it is to be deter"ined #>. All su&h in9un&tions and safeguards have been done away with by the onstitution !! th A"end"ent, and even the pri"e &ondition 4publi& purpose whi&h appeared in ARt. 3#)6* of the ‟
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onstitution has been eli"inated. Dr. Durga Das 8asu has observed that “the Author )he* would be happy if the (upre"e ourt &ould devise so"e "eans to nullify any egislative atte"pt to deprive the e+propriated owner of any &o"pensation at all”. Jther provisions whi&h voi&e &on&ern are that the property owned by Einority ;du&ational %nstitutions and the property under personal &ultivation of an agri&ulturist as seen above, have been pla&ed in envious position. Dr. Durga #> Hide
:overn"ent of %ndia A&t, #-3/ (e&. 6--)6*.
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Das 8asu has observed5 “$he net result is that if a poor "an s hut is ta1en away without &o"pensation, by a law whi&h provides for a&&o""odation to the offi&e of the politi&al party in power, the for"er shall have no legal re"edy under the s1y. $his is &ontrary to Art. #3 of the #-?? onstitution of the F.(.(.R. whi&h says that “the personal property of &itizen and the right to inherit it are prote&ted by the (tates”, and this personal property in&ludes “arti&les of very day use, personal &onsu"ption and &onvenien&e, a house and earned savings”. Arti&le - of the #-?B onstitution of hina si"ilarly prote&ts the right of a &itizen to own private property whi&h in&ludes his “lawfully earned in&o"e, saving, houses and other "eans of subsisten&e.” #? As regards the &on&ession in favour of Einority %nstitutions given by onstitution !! th A"end"ent, Dr. Durga Das 8asu has re"ar1ed5 “%t is so"ewhat ine+pli&able why no su&h guarantee should be "ade in favour of edu&ational institutions "anaged by "e"bers of a "a9ority &o""unity. %s not a edu&ation as pure and adorable whether it &o"es through the :anges or the @ordanK %n their over5zealousness for the addition of a spe&ial guarantee in favour of the "inority whi&h the fathers of the original onstitution did not envisage, the fathers of the !! th A"end"ent too1 no ti"e to ponder that by eli"inating Art. 3#)6*, they were ta1ing away a right whi&h had been guaranteed to all persons in %ndia. egally spea1ing, the new provision in Art. 30)#A* is a tail whi&h has lost its head by the repeal of Art. 3#)6*”. #B ‟
[J.T.R.I. JOURNAL – First Year, Issue – 2 - Year – April – June, 1995 #? Dr. D.D.
8asu s (horter onstitution of %ndia ##th ;d. Pae -36. #B %ntrodu&tion to the onstitution of %ndia #? th ;d. Page #60. ‟
