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CONSTITUTIONAL PROVISION RELATING TO LAND

Seedling School of Law and Governance Subject Land and Agricultural Laws

JAIPUR NATIONAL UNIVERSITY

Submitted To:-Mr Manish Yadav (Asst.Professor of Law)

Submitted By:-PiyushMaheshwari B.A.LL.B(HONS.)5th Year

DECLARATION

I declare that the project entitled Constitutional provision relating to land is the outcome of my own work conducted under the supervision of Mr. Manish Yadav at Japiur National University. I further declare that to the best of my Knowledge the project does not contain any part of any work, which has been submitted for the award of any degree either in this University or in any other University / Deemed University without proper citation.

PIYUSH MAHESHWARI Dated:- 25/9/2013

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CERTIFICATE OF THE SUPERVISOR


This is to certify that the research work entitled Constitutional provision relating to land is the work done by Piyush Maheshwari under my guidance and supervision for the Partial fulfillment of the requirement of LL.B. degree of Jaipur National University . To the best of my Knowledge and belief the dissertation: (i) (ii) (iii) embodies the work of the candidate himself; has been duly completed; and is up to the standard both in respect of contents and language for being referred to the examiner.

Mr. MANISH YADAV Asst. Professor of Law Supervisor

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ACKNOWLEDGEMENT

I would like to express profound gratitude to Mr Manish Yadav, for his invaluable support, encouragement, supervision and useful suggestions throughout this research work. His moral support and continuous guidance enabled me to complete my work successfully. His intellectual thrust and blessings motivated me to work rigorously on this study. In fact this study could not have seen the light of the day if his contribution had not been available. It would be no exaggeration to say that it is his unflinching faith and unquestioning support that has provided the sustenance necessary to see it through to its present shape. I am grateful to our Honble Director Professor V.S Mani , Jaipur National University for his evincing keen interest in the LL.B course and continuous encouragement given during our period of study. Among those who have sustained me over the years with their loyalty and friendship, I would particularly mention my friends, Pushpesh Singh Chauhan , Kriti Gupta , Akshar Harietwal ,Shubham Solanki have always taken a special interest in my work and unconditional support at each turn of the life. I express my deep sincere gratitude towards my parents for their blessing, patience, and moral support in the successful completion of LL.B course. I express my gratitude to my all teachers and friends who has supported and encouraged me during my study at Jaipur National University.

PIYUSH MAHESHWARI

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Contents DECLARATION ............................................................................................................... II CERTIFICATE OF THE SUPERVISOR ......................................................................III ACKNOWLEDGEMENT ............................................................................................... IV TABLE OF CASES ............................................................................................................ 2 REVIEW OF LITERATURE............................................................................................ 3 CHAPTER 1- INTRODUCTION ..................................................................................... 4 CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY .......... 6 2.1 - Constituent Assembly Debates ........................................................................................... 7 2.2- Pre-Constitutional Position of Right to Property ................................................................. 8 2.3- Post Constitutional Developments ....................................................................................... 9 CHAPTER-3 MODIFICATION OF THE RIGHT TO PROPERTY ....................... 11 3.1-Initial Modification ............................................................................................................. 11 3.2- From the 25th Amendment to the 44th Amendment ........................................................... 13 CHAPTER 4- DOCTRINE OF EMINENT DOMAIN AND RIGHT TO PROPERTY17 4.1-History................................................................................................................................. 17 4.2- Existing Constitutional provisions ..................................................................................... 19 4.3-Emergence of Article 31 A ................................................................................................. 19 4.4- Emergence of Article 31 B: Validation of certain Laws.................................................... 22 4.5-Emergence of Article 31 C ................................................................................................. 24 CHAPTER 5- LAND REFORMS IN THE CONSTITUTION OF INDIA ................. 27 5.1- Land Reforms..................................................................................................................... 27 5.2- Fundamental Rights and Directive Principles.................................................................... 28 5.3 The Evolution and Status of the Right to Property ............................................................. 30 Conclusion ......................................................................................................................... 33 Bibliography- .................................................................................................................... 35

TABLE OF CASES

Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 Kameshwar Singh V. State of Bihar AIR 1962 SC 1166 I.C. Golaknath V. State of Punjab AIR 1967 SC 1643 Minerva Mills v. Union of India AIR 1981 SC 271. Assam Sillimanite vs Union of India 1992 Supp. (1) SCC 692. State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd 1973 AIR 2734, 1974 SCR (1) 671 Waman Rao v. Union of India (1981) 2 SCC 362, 1981 2 SCR 1 Ambika Mishra v State of UP AIR 1762, 1980 SCR (3)1159 Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd 1983 AIR 239, 1983 SCR (1)1000

REVIEW OF LITERATURE

The object behind the amendment is considered to abolish the large land holdings with zamindars and other rich people and to distribute it to the landless peasants. But now when the object seems to be almost a achieved the importance of this amendment is in question 44th constitutional amendment eliminated the right to property as a fundamental right. After 44th amendment right to property became a statutory right. Article 31 which contained right to property was shifted to Article 300. This transfer was done to affirm that no person is deprived of his property save by the authority of law. The amendment expanded the power of the state to appropriate property for social welfare purposes. In other words, the amendment bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences. When studying the emergence of clause A, B and C of Article 31, a major focus should be given to Doctrine of Eminent Domain.

According to this doctrine state can acquire any private property and the acquisition will be justified if it is for public use and the use can be understood beyond doubt. Essential ingredients of this doctrine are property is taken for public use and compensation is paid to the owner.

CHAPTER 1- INTRODUCTION Property is a generic term of extensive application. It is indicative or descriptive of every possible interest which a person can have. It is extended to all recognized types of interests which have the characteristic of property rights. Property is classified as movable 1 and immovable2, corporeal and incorporeal, real and personal. It may mean a thing or a right which a person has in relation to that thing. It is an object of legal rights which embraces possessions or wealth collectively and connotes individual ownership of the same. However nothing can be subject of property which is not recognized by law to be such and therefore right to property lasts so long as law gives to a particular item, the status of property, and if law withdraws that status it ceases to be property. In law property refers to individual possession of things3 and these things may be tangible such as land or goods or they may be intangible like stocks, bonds or the more recent concept of intellectual property. In essence it includes all things that enable a man to survive. Every legal system in the world recognizes the relationship between persons and tangible objects and property law deals with the allocation, use and the transfer of wealth and it often reflects the economy and society in which it is found. The western legal concept of property is such that a person who is in possession of a thing has the exclusive right to possess, use and transfer the thing if he so wishes.

The right to property in all such things and rights have been guaranteed in the manner prescribed by the Constitution of India (hereinafter referred to as the Constitution) and under the

Section 3.(36) of the General Clauses Act, 1897, \u201cMoveable Property\u201d shall mean Property of

every description, except immoveable property;


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Section 3.(26) of the General Clauses Act1897, \u201cImmoveable property\u201d shall include land, benefits to

arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth;
3

K Subba Rao, \u201cProperty Rights under the Constitution\u201d, (1969) 2 SCC (Jour) 1

Constitution property means all things and rights recognized by law\u2014 statutory, customary and common law, as property before the Constitution has come into force. The right to property was therefore included as a fundamental right under the Constitution, the right to property as propounded by Locke consists of three basic characteristics4 To acquire To own and possess and To dispose of the same.

This apparently unrestricted right to property is subject to the laws of social control reflected which are enforced by the state. The framers of our Constitution in creating a constitutional democracy seem to have taken a middle path between the capitalist and socialist notions of property. The relevant provisions of the Indian Constitution as they stood on 26-1-1950 are Articles 14, 19(1) (f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of the said provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold and dispose of property. The exercise of this right should be reasonable and in accordance with public interest. State in exercising the power to enforce the principle of distribution of material resources for the greater common good does in fact enforce the duty implicit in the exercise of the fundamental right. With reference to the right to property in the Constitution In the case of Kesavananda Bharati v. State of Kerala5 Justice Mathew stated that The framers of the Constitution regarded the right to acquire and hold property as a Fundamental Right for the reason that a dignified human life is impossible without it. Property is the necessary consequence and condition of liberty. Liberty and property demand and support each other.

John Locke, Second Treaties of Government 28 (6th ed. 1952) as cited in K Subba Rao, \u201cProperty Rights under the Constitution\u201d, (1969) 2 SCC (Jour) 1
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(1973) 4 SCC 225

CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY The Indian Constitution is first and foremost social document. A majority of the provisions in the Constitution are therefore aimed at furthering the goals of social revolution. During the nationalist movements, in the background of deep-rooted economic inequalities, intermediaries in agriculture and exploitation in trade and industry, this above distinction was highlighted in several public fora. In the Indian Constitutional context, the effort of reconciling the values of democracy with that of socialistic pattern of society without a tenable criterion for distinguishing the use aspect of property from its power aspect, made the right to property a debatable issue. The fundamental rights of the Constitution are, in general, those rights of citizens, or those negative obligations of the State not to encroach on individual liberty there have been wellknown since the late eighteenth century and since the draft in the Bill of Rights of the American Constitution and the Indians have become heirs to this liberal tradition. The Fifth and Fourteenth Amendment of the Constitution of United States of America read: "No person shall be deprived of life, property without the due process of law". The following wide definition of property is generally accepted in that country. "Property" in its broader sense is not the physical thing which may be subject to ownership, but is the right thing which may be subject to ownership, but is the right of domination, possession, and power of dispossession which may be acquired over it; and the right of property preserved by the Constitution is the right not only to possess and enjoy it, but also to acquire it in any lawful mode. But the socialist concept of property is based upon the theory of labour. Karl Marx in his work "Das Capital" propounded the theory thus: "In political economy there is a current confusion between two very different kinds of private property, one of which is based upon the producer's own labour, whilst the other is based upon the exploitation of the labour of others. The Russian Constitution, therefore, rejects private ownership of the instruments of production but admits only to a limited extent of private ownership based upon the producer's 'own labour.' In is within this that the Constitutional Assembly Debates must be located. Constitutional right under Article 300A in the Forty fourth-Amendment Act, which ultimately proved to be the bottom line

2.1 - Constituent Assembly Debates Since 1787 every people who have intended to give themselves a written Constitution have had to decide what are the citizens rights to life, liberty and property. The Fundamental Rights subcommittee on the 28 March 1947 stated that no private property could be acquired for public use unless the law called 'for the payment according to principles previously determined, a just compensation for the property acquired.6 The property provisions in the Draft Constitution appeared briefly before the Assembly in November and December 1948 in the first of the two provisions considered was the right 'to acquire, hold and dispose of property'. This right became subject only to' reasonable restrictions' either in the public interest or the interests of Schedule Tribes. With the right to possess property guaranteed in the Constitution, the Assembly again considered the extent of the States power to deprive a person of his property in the name of social justice. The Union Cabinet, in early 1948 in a broad resolution on industrial policy had laid down that property was acquired by the government 'fundamental rights guaranteed by the Constitution will be observed and compensation will be awarded on a fair and equitable basis' According to Sardar Vallabhai Patel the solution to this quandary was Section 299 of the Government of India Act, 1935 in which the power of the courts and the legislature was limited and the courts would be unable to invalidate land reform and other property acquisition legislation provided reasonable principles had been established and the legislature would be unable to expropriate property without payment of compensation. Thus justice and social reform would both be served. B N Rau, however, prepared a new clause that made an omnibus provision in the directive principles the said that the ownership and control of material resources should be distributed to subserve the common good and the operation of the economic system should not result in the concentration of wealth.

Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION. 2nd Edition. (New Delhi : Oxford University Press. 1999) at pp.84

2.2- Pre-Constitutional Position of Right to Property


The Constitution of India derives its foundation from the Government of India Act, 1935 and the Universal Declaration of Human Rights (1948).

Section 299 of the Government of India Act, 1935 secured the right to property and contained safeguards against expropriation without compensation and against acquisition for a non-public purpose.

Article 17 of the Universal Declaration of Human Rights (1948) also recognises the right to private property and India is a signatory to that Declaration.

The Constituent Assembly examined the constitutions of various countries, which guarantee basic rights. In Constituent Assembly of India, Constitutional precedents (Third Series) (1947), it is stated Broadly speaking, the rights declared in the Constitutions relate to equality before the law, freedom of speech, freedom of religion, freedom of assembly, freedom of association, security of person and security of property. Within limits these are all well recognized rights.

The debates in the Constituent Assembly when the draft Article 19(1)(f) and Article 31 came up for discussion clearly indicate that the framers of our Constitution attached sufficient importance to property to incorporate it in the chapter of fundamental rights. The provision regarding freedom of trade and intercourse, which was originally in the chapter of fundamental rights, was later removed from that chapter and put into a separate part (Article 301), in view of the suggestions by some members of the Constituent Assembly. It is significant to note that similar suggestions in respect of the right to property were not accepted.

2.3- Post Constitutional Developments There is some misapprehension on the scope of the right to property conferred under our Constitution. An assumption by constant repetition has become a conviction in some minds that the right to property has been so entrenched in our Constitution that it is not possible without amendment to enforce the directive principles.

A scrutiny of the relevant provisions of the Indian Constitution as they stood on January 26, 1950 will dispel this assumption. They are Articles 14,19(1)(f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of the said provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold and dispose of property. A duty is implicit in this right, namely that it should be so reasonably exercised as not to interfere with similar rights of other citizens. The exercise of it, therefore, should be reasonable and in accordance with public interest.

The Directive principles of state policy lay down the fundamental principles of state policy and the governance of the country, and through the relevant principles, the state is directed to secure that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Indeed, the state in exercising the power to enforce this principle does in fact enforce the duty implicit in the exercise of the fundamental right. The conflict between the citizens right and the states power to implement the said principles are reconciled by putting limitations both on the right and the power. The said fundamental right is not absolute. It is subject to the law of reasonable restrictions in the interest of the general public. The states power is also subject to the condition that the law made by it in so far it infringes the said fundamental right should stand the double test of reasonableness and public interest. The state also has the power to acquire the land of a citizen for a public purpose after paying compensation. It has the further power to impose taxation on a person for his property.

All the laws made in exercise of the said powers are governed by the doctrine of equality subject to the principle of classification. But the question of the validity of the said laws of social control, taxation and acquisition is a justiciable issue.

Shortly stated, under the said provisions, the right to property is subject to justiciable laws of social control. The articles place the concept of the right to property in a right perspective. They definitely rejected the Russian theory of socialism but accepted the doctrine of individual right to property subject to the laws of social control. The right to property was conditioned by the social responsibility. The higher judiciary was made the arbiter to maintain the just balance between private rights and public interests. The social order visualised by the Constitution was expected to be brought about smoothly by a process of gradual judicial adjustment. The fundamental assumption of the Constitution was that every party that was elected to power should be bound by the provisions of the Constitution and should strive to bring about the new social and economic structure of the country, in the manner prescribed therein. Under the Constitution, both the means and the end were equally important in the evolution of a new society.

After the Constitution of India came into force, the following agrarian reforms were introduced: (1)Intermediaries were abolished (2)Ceiling was fixed on land holdings (3)The cultivating tenant within the ceiling secured permanent rights (4)In some states, the share of the landlord was regulated by the law (5)In one state, the tiller of the soil secured cultivating rights against the absentee landlord, and in some states, the rural economy was re-adjusted in such a way, that the scattered bits of land of each tenant were consolidated in one place by a process of statutory exchange.

These reforms certainly implement the Directive principles of state policy. All these agrarian reforms could have been introduced within the framework of the original Constitution, perhaps with a little more expense that could have been re-adjusted through the laws of taxation. said Justice Subba Rao .

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CHAPTER-3 MODIFICATION OF THE RIGHT TO PROPERTY

3.1-Initial Modification
If one were to critically analyses the amendments to the Constitution in the light of the theories propounded by classical western theorists it may be seen that the amendments to the Constitution follow a chronological pattern. The First Amendment came soon after the Constitution came into force. The interpretation of Article 31 in certain decisions, which resulted in invalidation of certain land reform laws, necessitated its amendment. The most important of such decisions is Kameshwar Singh V. State of Bihar7 in which the Patna High court held the Bihar Land Reform Act, 1950 to be invalid on the ground that the process of giving compensation was discriminatory and violated the guarantee of equality to the citizens under Article 14 of the Constitution. It appeared from this decision that clause 4 of Article 31 would not prevent the Zamindari abolition laws from invalidation on grounds other than mentioned in clause 2 of that Article. Thus, in order to protect the laws from invalidation and pave the way for agrarian reforms in the country, Article 31A and 31B were inserted by the Constitution First Amendment Act, 1951 and was primarily aimed at Zamindars. Their effect was to remove the intermediaries and to improve the lot of tiller of the soil, which was one of the avowed objectives of National movement and more importantly with the objectives of social reform and removal of inequality. The first Amendment to the Constitution which followed certain decisions of the Supreme Court appears to have the objective of removing the economic cleavage that existed between the owners of the land and the tiller. The legislature seems to have realised that there was a need for proactive legislation so as to enable distribution of land and improve the conditions of the economically marginalized with reference to the right to property. The 4th Amendment widened the scope of Article 31A by including certain other categories of legislation, which shall immune from attack on ground of their violating the provisions of part 3.

AIR 1962 SC 1166

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It added four new categories of legislation which shall not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Articles 14, 19 and 31: 1. Taking over the management of any property by state for a limited period. 2. Amalgamation of two or more corporations. 3. Extinguishment or modification of rights of persons interested in corporations. 4. Extinguishment or modification of rights accruing under any agreement ,lease or license relating to any mineral or mineral oil The fourth amendment to the Constitution appears to be in contradiction with Bodins theory of the separation of the sovereign power of the state and the ownership of property. Since the fourth Amendment has enabled the state to not only regulate but also to take over the management of private property and such infringement of right shall not be challenged shows that the power of the state in the regulation of private property for the greater common good is to a certain extent absolute. Article 31A was amended by the Constitution (Seventeenth Amendment) Act, 1964 as there arose some doubt about the term estate given in clause (2) (a) of the Article. In the case of I.C. Golaknath V. State of Punjab,8 the validity of the seventeenth amendment was challenged and the Supreme Court upheld the argument that the power of the Parliament to amend the Constitution is an ordinary legislative power and thus an amendment being law under Article 13 of the Constitution is invalid if it abridges any of the fundamental rights. The ruling of the Supreme Court created hurdle in the way of the amendment of fundamental rights for saving the legislative measures aimed at the socio- economic development of the country. The seventeenth Amendment of the Constitution appears to be in agreement with John Lockes interpretation wherein the right to property is linked with the inherent rights of life and liberty. When the legislature refers to the term estate they appear to recognize the ownership of property as a fundamental right that is not subject to state regulation or intervention. The legislature here appears to have veered from its initial position of abridging the right to property in the interest of the greater common good to protecting the interests of the propertied classes.

AIR 1967 SC 1643

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3.2- From the 25th Amendment to the 44th Amendment The Constitution (Twenty Fifth Amendment) Act, 19719, apart from amending Article 31 sub clause (2), inserted a new Article 31C in the Constitution which provided as follows: Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 and no law containing a declaration that it is for giving effect to such policy shall be called in question in the court on the ground that it does not give effect to such policy. This was challenged in the case of Kesavananda Bharati v. State of Kerala.10 The majority held that the first part of section 3 of the amending Act, inserting Article 31C is valid. The part was held to be invalid. Thus it was established that law giving effect to Article 39 (b) (c) shall not be deemed to be void on the ground that it is inconsistent with Articles 14, 19 or 31, however any such law was held to be justiciable. Thus one of the Directive principles of state policy was given precedence over certain fundamental rights. With the 25th Amendment there is a noticeable shift to the Marxian notions of property rights wherein one of the directive principles is even more importance over fundamental rights. The judgment delivered in the Keshavananda Bharathi case also appears to be consistent with the Marxian notion which enables the state to abridge the right to property to provide for better state regulation and redistribution of land. This has been criticised by many as an extreme violation of fundamental rights. On the whole the above-mentioned amendments paved the way for the Forty Fourth Amendment which resulted in the deletion of right to property as a fundamental right and the frequent exercise of Constitutional amendments came to an end. The property clauses in the Constitution of India, contained in Arts.19 (1) (f) and 31 were repealed by Section 2 and 4 of the Constitution (44th Amendment) Act, 1978, w.e.f. 20th June, 1979. The Forty-fourth Amendment to the Constitution of India inserted article 300 A with effect
9

Upendra Baxi, The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment, (1974) 1 SCC (Jour) 45

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AIR 1973 SC 1461; (1973) 4 SCC 225

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from June 20, 1979 and simultaneously deleted the Fundamental Right to Property included in Articles 19(1) (f) and 31. The reason for this was to reduce the right to property from the status of Fundamental Right to that of a legal right, i.e., the right will e available against the executive interference but not against the legislative interference 11 . With the 44th amendment to the Constitution of India the legislature seems to have taken a more liberal standpoint as compared to the 25th Amendment. The movement now seems to be toward Foucaults state regulation of property in the interest of a democracy. Herein we see that although individual ownership of property is permitted so is the state regulation of the same. At the conversion of the right to property from being a fundamental right to a legal right there is a noticeable transformation to a more the liberal democratic tradition wherein private rights and public rights are equally balanced. The Forty-second Amendment Act

The 42nd Amendment Act sought to expand the scope of Article 31C by extending it to any law giving effect to the policy of the state towards securing all or any of the principles laid down in Part IV and that is how the Article reads today. The actual scope of this Article has, however, been considerably restricted in three respects by the process of judicial interpretation and subsequent amendment:

(1) As above mentioned condition (I) was sought to be amended by the 42nd Amendment (1976) so asto take in all laws intended to secure not merely the objectives of Article 39 (b) or (c) but all and any of the Directive principles of state policy laid down in part IV but this attempt was frustrated by Minerva Mills v. Union of India12 and the above freedom now stands restricted only to laws seeking to give effect to Articles 39 (b) or (c).13

(2) Condition (iii) above placing a law beyond challenge under this Article if it just contains a
11

Statement of Objects and Reasons for the Forty-fourth Amendment, paras. 3 & 5

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AIR 1980 SC 1787, See, however, the observations made in Sanjeev Coke Mfg. Co. vs BharathCooking Coal AIR 1981 SC 271
13

One often tends to forget this as the judicial restriction is not to be found incorporated in thestatutory language, which continues as enacted under the 42ndAmendment (1976).

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declaration that it fulfils the first condition, has also been held unconstitutional: Kesavananda Bharathi vs. State of Kerala. In other words, statutory declaration of a nexus between the law and Article 37 is inconclusive and justiciable.14

(3) Article 31D: A provision newly inserted in the Constitution in juxtaposition with Articles 31A to 31C, though has nothing to do with the right to property, may now be referred to. The insertion of Article 31D by the 42nd Amendment (1976) represents yet another attempt [like Articles 31A to31C] to save from Constitutional challenge a group of laws intended to curb anti national activities.15 This Article, introduced during a time when state of emergency had been declared in the country was, however, omitted, with a change in government, by the 43rd Amendment (1977).

The Forty-fourth Amendment: The Final Trespass into Right to Property

These words will occur to the reader who considers the far reaching changes made in the right to property by the 44th Amendment without eliciting public opinion and without submitting the changes to the scrutiny of the Select Committee followed by a debate in both Houses on its report. The 44th Amendment removed the right to property from the Part III (the Chapter on Fundamental Rights) by deleting Articles 19(1)(f) and 31, by making consequential amendments, and by inserting in Part XII the following new chapter: Chapter IVRight to Property, 300A. Persons not to be deprived of property save by authority of lawno person shall be deprived of his property save by authority of law. These amendments are hereafter referred to as the property amendments. The ostensible reason forthis change is given in the words of the Law Minister, Shanthi Bhushan, who has signed the Statement of Objects and Reasons for the 44th Amendment: Paragraphs 3, 4 and 5 of that Statement run as follows: In view of the special position sought to be given to fundamental rights, the right to property,
14

Tinsukia Electricity company ltd. vs State of Assam 1989 (3) SCC 709; Assam Sillimanite vs Union of India 1992 Supp. (1) SCC 692.

15

While the broad objective of such a provision is unexceptionable, the catch in the provisions lay inthe vagueness of the definitions of activities sought to be curbed

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which has been the occasion for more than one Amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 is being deleted. It would however be ensured that the removal of property from the list of fundamental rights would not affect the rights of the minorities to establish and administer educational institutions of their choice. Similarly, the right of persons holding land for personal cultivation and within ceiling limit to receive market compensation at the market value will not be affected.. Property, while ceasing to be a fundamental right, would, however, be given express recognition as a legal right, provision being made that no person shall be deprived of his property save in accordance with law. This explanation for the change is neither candid nor convincing. Not convincing, because the fact that the Constitution had to be amended a number of times to deal with right to property is not a sufficient reason for deleting it from the chapter on fundamental rights. Nor does the 44th Amendment give any new position to the fundamental rights, which those rights did not occupy before. This explanation is not candid, because a candid explanation would have said that the change was being made to fulfill part of the pledge given in the Janata Party Manifesto for the 1977 Parliamentary elections, namely delete from the list of fundamental rights and instead affirm right to work. The present Amendment implements a part of the pledge, because the right to work has not been affirmed. It seems to have been realised that right to work cannot be affirmed because no work may be available. Article 41, which is a principle of state policy, recognises this when it qualifies the duty of the state to secure work by the words within the limits of working capacity and development. Nor does Article 41 confer right to work on anyone, because Article 37 clearlymakes the rights conferred in the Part IV (Directive principles of state policy) not enforceable in any court. An unemployed person will seek in vain to secure his right to work which must mean gainful employment and not slave labour. The amendments proposed by in the Janata Party Manifesto, are now partly implemented by the 44th Amendment, have been made without realizing (1) the close relation of property with other fundamental rights, which the Janata Party was pledged to restore; (2) the effect of this change on the legislative power to acquire and requisition property; and (3) the correlation of fundamental rights to Directive principles of state policy.

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CHAPTER 4- DOCTRINE OF EMINENT DOMAIN AND RIGHT TO PROPERTY Doctrine of Eminent Domain is a concept in the American Constitution. It is the acquisition of private property by the state for a public purpose with paying certain amount of compensation. Initially when India got Independence, the legislature to abolish the Zamindari System, enacted various laws through which it took the property from various land holders and used it for public purpose. Many a times mala-fide intention can be seen achieved through this doctrine. 4.1-History Few hundred years old and first used when an English king needed salt petre (form of Potassium Nitrate, used in the manufacturing of fire work) to make gun powder and when he was not able to find any land, he grabbed hold of a private mine. The owner of the private mine approached the House of Lords, the House of Lords held that, the sovereign can do anything, if the act of sovereign involves public interest. WHAT IS THE POWER BEST OWED BY THE DOCTRINE TO THE STATE??? Basically this doctrine entitles sovereign to acquire private land for a public use, provided the public-ness of the usage can be demonstrated beyond doubt. PRESENTLY THE DOCTRINE DOES THE DUTY OF: In the present context this doctrine raises the classic debate of powers of State v. Individual Rights. Here comes the DIDDevelopment Induced Displacement which means, The forcing of communities even out of their homes, often from their home lands for the purpose of economic development, which is viewed as a Human Right violation in the International level.

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ESSENTIAL INGREDIENTS OF THIS DOCTRINE 1. 2. Property is taken for public use Compensation is paid for the property taken.

The above said are the two limitations imposed on the power of Eminent Domain by the repealed A.31 . Whereas the new A.300 A imposes only one limitation on this power (i.e.,)Authority of Law

MAXIMS The doctrine is based on the following two Latin maxims Salus Populi est Suprema Lex Welfare Of The People Of The Public Is The Paramount Law; Necessita Public Major est Quam Public Necessity Is Greater Than Private Necessity.

Every government has an inherent right to take and appropriate the private property belonging to individual citizen for public use.16 This power is known as Eminent Domain. It is the offspring of political necessity. This right rests upon the above said two maxims. Thus property may be needed and acquired under this power for government office, libraries, slum clearance projects, public schools, parks, hospitals, highways, telephone lines, colleges , universities, dams, drainages etc. 17 The exercise of such power has been recognized in the jurisprudence of all civilized countries as conditioned by public necessity and payment of compensation. But this

16

P.K.Tripathi- Right of Property After 44th Amendment Better Prosecuted Than Ever Before, Air 1980(51) Journal.

17

V.N.Shukla: The Constitution of India, p.144 (1969 Edn.).

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power is subject to restrictions provided in the constitution. In the United States of America, there are limitations on the power of Eminent Domain--1. 2. 3. There must be a law authorizing the taking of property Property is taken for public use Compensation should be paid for the property taken.

In Indian Constitution, Entry 42 of List III speaks about acquisitioning and requisitioning of property. In the case of State of Bihar v Kameshwar Singh18 , Supreme Court defined eminent Domain as the power of a sovereign to take property for public use without the owners consent upon making just compensation.

4.2- Existing Constitutional provisions Article 31A, 31B and 31C as well as Art. 300A are the existing constitutional provisions concerning private property. 4.3-Emergence of Article 31 A This Article was added to the Constitution of India by the First Amendment, 1951. Later, the Fourth Amendment substituted various clauses in it. Article 31 A -Saving of certain laws

Article 31A - (1) Notwithstanding anything contained in Article 13, no law providing for

(a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) The taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
18

1952 1 SCR 889

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(c) The amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) The extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent: [Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof

History behind Article 31A After independence when Congress was in power at centre it decided to launched the abolition of Zamindari Programme in which it abolished the Zamindari system and acquired the lands of Zamindars. But the main difficulty before the government was of paying compensation. In A. 31(2) the word compensation was used without any adjective like just or reasonable. Thus

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Supreme Court interpreted its meaning as just compensation. Various land legislations were declared invalid and were challenged under Article 14 and 19(1)(f). In Kameshwar Singh v State of Bihar , the Bihar Land Reforms Act, 1950 was held invalid under A. 14 for it classified the zamindars in a discriminatory manner for the purpose of compensation. Therefore, finding Zamindari Abolition Programme in danger because of these judicial pronouncements, the central government amended the Constitution and a new provision A. 31A was added.

This new article laid down that no law providing for the acquisition by the state of any estate or of any rights therein, or for the extinguishing or modifying any such rights, would be void on the ground of any inconsistency with any of the fundamental rights contained in A. 14, 19 and 31. As A. 31 was the only Constitutional Provision providing for compensation, which means an estate can be acquired or rights can be modified without paying compensation . The only exception was that such law should receive the assent of the President.

After the 44th Amendment Act in which A. 31 was repealed, consequently Article 31 was removed from A. 31A(1). The word estate in sub clause (a) of Article 31A (1) is defined in clause 2(a) to have the same meaning as that expression or its local equivalent has in the existing law relating to the land tenures in force in that area, and by inclusive definition it takes in any jagir, inam or muafi or other similar grants and in the states of Tamil Nadu and Kerala any Janman rights. The object of Article 31A (1)(a) is to bring a change in the agricultural economy and facilitate agrarian reforms and it is applied to legislations affecting the rights of landlords and tenants . In K.K. Kochuni v State of Madras , it was held that the protection of this clause is not applicable to a law which seeks to modify the rights of the owner without any reference to agrarian reforms. In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd. , the court held that there has to be a direct nexus between the subject matter acquired and its utilisation for agrarian reforms .The second proviso to A. 31A (1) refers to ceiling limits. This proviso says that the land exempted from acquisition should be within the ceiling limit and must be under personal cultivation. The Supreme Court in the case of Bhagat Ram v State of Punjab , interpreted the object of this proviso. The Court said that a person who is cultivating land personally and it is his

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source of livelihood, should not be deprived of that land under nay law protected by A. 31A unless the compensation at market rate is given.

Constitutionality of Art 31A In Ambika Mishra v State of UP , the Supreme Court upheld the constitutionality of clause (a) of Article 31A (1) on the test of basic structure. In Minerva Mills v Union of India , the Court held that the whole of Art. 31A is unassailable on the basis of stare decisis, a quietus that should not allowed to be disturbed. In Waman Rao and I R Coelho case, the First Amendment in which the Art. 31A was introduced and Fourth Amendment which substituted new clauses to this Article has been held constitutional. Therefore relying on the judgments of Minerva Mills, Waman Rao and Coelho case Article 31A can be stated as constitutionally valid.

4.4- Emergence of Article 31 B: Validation of certain Laws

Art.31A was added to the Constitution by the Constitution (First Amendment) Act, 1951. It was added as a constitutional device to protect the specified statutes from any attack on the ground that they infringe Part III of the Constitution . It has retrospective effect which is clear from the words ever to have become void . The introduction of this provision has cure the defects in various acts of the Ninth schedule as regards to the unconstitutionality alleged on the grounds of infringement of Part III of the Constitution, these acts even if void or inoperative at the time, they were inactive by reason of infringement of Article 13(2) of the constitution assumes full force from the respective dates of their enactment after their inclusion in the Ninth schedule read with Article 31B of the Constitution. The Ninth schedule consists of 284 legislations until the constitution (78th amendment) act, 1995 but article 31B did not empower the legislatures to amend these acts inconsistently with the provisions of the constitution or to take away the rights conferred by the Constitution. The amendments must be consistent with the provision of the Constitution or be saved under Article 31A of the Constitution, if not they must be held void. A

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question was raised in Prag Ice And Oil Mills v. Union Of India19 whether article 31B saved the orders and notifications issued under Section 3 of the Essential Commodities Act 1955 which was already included in the Ninth schedule but as was already decided in Godavari Sugar Mills Ltd. v. S.B Kamble20 that the amendments to ac act subsequent to an inclusion of an act in the Ninth schedule were not entitled to the protection of Article 31B. The Supreme Court dismissed the petition as the act did not violate the petitioners rights under Article 14 and 19, it was explained by the court that when a particular act or regulation is placed in the Ninth schedule, the parliament may be assumed to have applied its mind to the provisions of the particular act and the desirability, propriety or necessity of placing it in the Ninth schedule and such an assumption cannot in the very nature of things be made in the case of an order issued under an Act or Regulation placed in the Ninth schedule. Constitutional Validity of Article 31B In Waman Rao v. Union of India , the court held that amendments in the Ninth schedule made before the decision of Keshavananda Bharti v. State of Kerala that is before 24.04.1973 were beyond challenge but the amendments made afterwards could be tested on the grounds of amendment of basic structure. Similar views were given by the court in Minerva Mills v. Union of India and Bhim Singhji v. Union of India . In I.R. Coelho v. State of Tamil Nadu the nine judge bench of the Supreme Court unanimously decided that as held in Keshavananda Bharti case and later clarified in Waman Rao case while the laws included in the Ninth schedule before the decision in Keshavananda Bharti case are immune from any challenge on the grounds of violation of fundamental rights or basic structure and the Acts included after the decision shall be open to challenge. The Court reaffirmed that Article 31B did not destroy or damage the basic structure of the Constitution.

19

1978 AIR 1296, 1978 SCR (3) 293 1975 AIR 1193, 1975 SCR (3) 885

20

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4.5-Emergence of Article 31 C Insertion of Article 31-C by the Twenty-Fifth Amendment Article 31-C Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [Article 14 or Article 19] and [no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not effected .

Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent Right to Constitutional Remedies.

The insertion of this article made A. 14, 19 and 31 inapplicable to certain laws made by Parliament or any legislature. Along with this it was also added that a declaration in the law that is to implement the directive principles enshrined in A. 39(b) and (c) cannot be questioned in a court of law. Therefore, the insertion of this article granted complete immunity to a law from judicial scrutiny if the President certified that it was enacted to promote the policy laid down in A. 39(a) and (b). The provisions of this Article would apply only if the law had received the assent of the President. History behind Article 31C This article was inserted by the 25th Constitutional Amendment to get over the difficulties placed by judicial decisions in the way of giving effect to the Directive Principles in Part IV. It provided immunity from any challenge on the grounds of violation of Article 14, 19 and 31 any law enacted for implementing the directives in clause (b) and (c) of Article 39. In the 25th amendment it was further provided that such law made to give effect to the policy under Article 39(b) and (c), would not be open to judicial review. However, this second part was struck down in Keshavananda Bharti v State of Kerala , but rest of the Article was held valid. After this amendment 42nd Constitutional Amendment Act was passed by the Parliament which replaced Article 39(b)-(c) by all Directives contained in Part IV of the Constitution. The part which was held unconstitutional in the Keshavananda Case was not omitted from the official text of the

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Constitution, since later cases seems to restrict the scope of judicial review of the statutory declaration only to the narrow question whether there is a reasonable nexus between the act passed and the objects of the directive it seeks to implement. But in the Minerva mills v Union of India , it was held that extending the immunity of Article 31C to all the Directives of Part IV by the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976 position, which has not been overruled by any larger bench yet.

Decisions given by court on the constitutionality of Article 31C The validity of the 25th Constitutional Amendment was questioned in Keshavananda Bharti v State of Kerala , Sikri C.J. held that since Parliament cannot under article 368 abrogate fundamental rights; equally it cannot enable the legislature to abrogate them. Therefore article 31C must be declared unconstitutional. The second part of Article 31C was held unconstitutional on the ground that it ousted the jurisdiction of the Courts which is a basic feature of the constitution and which cannot be done away with a amendment under Article 368. Minerva Mills Ltd. v. Union of India21 , The extended version of article 31C was struck down by the Supreme Court. The Court ruled that the extension of the shield of article 31C to all the Directive Principles was beyond the amending power of Parliament under article 368 because by giving primacy to all Directive Principles over the Fundamental Rights in articles 14 and 19, the basic or essential features of the constitution viz., judicial review has been destroyed. Waman Rao v. Union of India22 , The Supreme Court maintained that article 31C as it stood prior to the 42nd Amendment Act made in 1978, was valid as its constitutionality had been upheld in Keshavananda Bharti case.

21

AIR 1980 SC 1789 (1981) 2 SCC 362, 1981 2 SCR 1

22

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Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd.23 The Supreme Court struck down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the "basic features" of the Constitution. The goal set out in Part IV has to be achieved without abrogating the means provided for by Part III. Thus there is no conflict between the directive principles and the fundamental rights. These are meant to supplement one another. The Court held that article 31C as originally introduced by the 25th Amendment is constitutionally valid. I.R. Coelho v. State of Tamil Nadu , the Supreme Court held that any law which infringes basic structure of the Constitution can be struck down. Parliament has power to amend Part III so as to abridge or take away fundamental rights but that power is subject to the limitation of basic structure doctrine. There should be a balance between fundamental rights an Directive Principles of State Policy. Conditions for applicability of Article 31C There are two conditions which must be fulfilled for the application of Article 31 C 1. A law for giving effect to the policy of the state to implement a Directive Principle in Article 39(b) or (c). 2. The Legislature making a declaration to that effect.But the question that whether the act is intended to secure the object contained in Article 39(b)-(c) does not depend upon the declaration made by the legislature but upon the contents of the act as found by the court.

23

1983 AIR 239, 1983 SCR (1)1000

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CHAPTER 5- LAND REFORMS IN THE CONSTITUTION OF INDIA

5.1- Land Reforms Land reform is a strategy for social change through state intervention. It is where the State uses instrumental rational action for intervention. Land reform forms the basis for the abolition of the feudal colonial structure and distributes the property that belonged to the erstwhile higher classes to the tiller. It is an initiative to increase the productivity of the tiller by giving him a portion of the land that he works on. The other associations to the question of land reforms came with the associated problems of ownership of property. Ownership of property by a certain section of the society ensures rule poverty, income inequality and discrimination on economic grounds. The socialist goal of the State was to ensure a ceiling on land holdings and the distribution of surplus land. This was targeted at 4/5th of the population which had no ownership of property. The reason that the State went for a policy of land reform was that one of its objectives was the prevention of class wars and to attain this objective the State had to intervene in regulating the relationships among the classes. The reason that land reform has remained a policy and never been actually implemented is the fact that it is ideological based to protect the interests of the upper classes. It is precisely for this reason that land reforms have been conservative. In reality land reform is a radical ideology of a newly emerging political system which is used by the ruling elite to pacify the role masses. Land reform, called for social change at an ideological and at a practical level. Social change can only occur when all three of these three factors exist 1 .Interplay between society and social economic factors 2. Intervention of the State 3. Collective action

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Although any or all of these may exist the state has been unable to implement land reforms for the distribution of property for the following reasons 1. Influence of land owners in the democratic setup 2. Lack of commitment and political will to implement land reforms 3. Influence of the economic and agrarian relations prevalent in India 4. Social and hierarchical setup 5. Legal and constitutional set up24 5.2- Fundamental Rights and Directive Principles Thus to foster the goal of equality, the Directive principles the State ensured adequate means of livelihood and that the operation of the economic system and controlled of the material resources of the country and subserve common good. By establishing these positive obligations of the state, the members of the Constituent Assembly created the responsibility of future Indian governments to find the middle way between individual liberty and public good, between preserving the property and privilege of the few and distributing benefits on the many in order to liberate the people of India. The Directive in Article 39(b) and (c) is solely aimed at the third kind of property and it evades logical reasoning as to why the other fundamental rights should be abridged, what to say of abrogation. Thus seen there is no conflict between the Directive Principles and the Fundamental Rights. Both have been placed after much deliberation by the Constituent Assembly and none can be made redundant. The plea that Fundamental Rights are an impediment to the implementation of Directive Principles is deceptive and mischievous and intended to cover our failings. Article 39(b) calls for distribution of ownership and control which mean that private ownership and control will be expanded and therefore nationalisation of private industry cannot be read into distribution. Distribution does not exclude the original owner. He is only to be deprived of the

24

See Judge, Paramjit. S. SOCIAL CHANGE THROUGH LAND REFORMS. (New Delhi : Rawat Publications. 1999)

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part which he does not work. So it is the third kind of property which has been referred to in Article 39(c) while talking of concentration of wealth and means of production. But the real problem facing modern India is not so much as to preserve the unlimited right to property, but while maintaining the substratum of individual right and its stability, to regulate the use of it in public interest. If undue attachment to acquisition of property is bad, revolutionary zeal to dislocate the structure of property is worse. A balance therefore has to be struck between possession and regulation of property.

The initial constitutional position of the right to property may be briefly stated thus25: Every citizen has a fundamental right to acquire, hold and dispose of property; The State can make a law imposing reasonable restrictions on the said right in public interest. The said restrictions, under certain circumstances, may amount even to deprivation of the said right; Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not is a justiciable issue; The State can, by law, deprive a person of his property if the said law of deprivation amounts to a reasonable restriction in public interest within the meaning of Article 19(5); The State can acquire or requisition the property of a person for a public purpose after paying compensation; The adequacy of the compensation is not justiciable; If the compensation fixed by law is illusory or is contrary to the principles relevant to the fixation of compensation, it would be a fraud on power and, therefore, the validity of such a law becomes justiciable; and

25

as stated in K. Subba Rao (Ex-Chief Justice of India), The Two Judgments: Golaknath and Kesavananda

Bharati,(1973) 2 SCC (Jour) 1

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Laws of agrarian reform depriving or restricting the rights in an estate the said expression has been defined to include practically every land in a village cannot be questioned on the ground that they have infringed fundamental rights;

The State has powers to impose taxes on all types of property and incomes.

5.3 The Evolution and Status of the Right to Property Even before the 44th Amendment the status of the right to property was rather dubious and its conversion into a legal right has only made it more so. So much so that before a person could complain that a law violates his right to acquire, hold and dispose of property, he must establish that the right which he claims is a right to property. To the extent that the right to property is important for the enjoyment of the other fundamental rights it has remained a fundamental right. Article 30(1) confers on religious and linguistic minority a fundamental right to establish and administer educational institutions. This right can not be enjoyed unless the minorities have a right to property with respect to such institutions. It means that such minorities will have a fundamental right to property as far as educational institutions are concerned. This position is accepted by the framers of the44th amendment, as they have provided in Article 30 (1) (A) that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the state shall ensure that the amount fixed by or determined under such law for acquisition of such property is such as would not restrict or abrogate the right guaranteed. Also the present position of right to property under Article 300As indirectly gives the right to hold and acquire property. Article 300A states that "No person shall be deprived of his property save by authority of law." One can not be deprived of property unless he has property and one can not have property unless he has the right to hold or acquire it. The reasonableness of restriction to the right to property must be charged not by considerations relevant to pre Constitution laws but in the light of fundamental rights. Before a person can complain that a restriction on a fundamental right is unreasonable he must show that he has a fundamental right. Thus, where an order of allotment of a house made before the Constitution came into force was challenged as violating Article 19(1) (f) on the ground that this possession of the landlord took place after the Constitution came into force, the Court held that as the petitioners right to retain possession of the house came to amend as a result of the order of

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requisition before the Constitution came into force, he had no fundamental right which he could assert under the Constitution26. It must be said, therefore, that the totality of changes brought about by the 44th Amendment relating to property has been clumsy and cumbrous. The main argument in favour of the polish of the right to property was that it stood in the way of progress report socialistic legislation. This having been affected by the polish and of Articles 19(1) (f) and 31, it hardly stands to reason that article 31 A, which was inserted primarily by way of exception to the right to property, should still survive. The major difference will exist in the fact that if the executive of the police takes away man's property without the majority of low, he will have no access to the Supreme Court directly under Article 32 of the Constitution of India27. The sacrifice therefore has been made of the speedy remedy before the Supreme Court and is considered by many as too heavy loss to the citizen28. Whatever be the intention of our legislators in the deletion of 'right to property ' as a fundamental right, the fact remains that the right to property is a right which cannot be read in isolation. It is a right around which many other rights exist. There seems to be an inherent interdependence between the right to property and other fundamental rights.

26

D K Nabhirajiah v. State of Mysore, (1952) SCR 744 H. M. Seervai., CONSTITUTIONAL LAW IN INDIA, 4th ed. (Delhi: Universal Book Traders.1999) at pp. 825, 828

27

28

D.D Basu, CONSTITUTIONAL OF INDIA. 7th ed. (New Delhi: Prentice Hall of India. 1998) at p.102

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The 44th Amendment Act has opened a Pandoras Box and the judiciary will take years to explain fully the implications of this amendment. Following are some of the problems that would need clarification from judiciary: 1. Whether as a result of deletion of Article 19(1)(f), the right to property has now become a natural right? Although there is a strong case may in favour of right to property being a natural right, as a result of explicit deletion of Article 19(1) (f) it would not only be difficult to persuade the Supreme Court to accept this view, but well near impossible. 2. If a law depriving a person of his personal liberty or liberty ought to be reasonable law and the procedure must be 'fair, just and reasonable', whether the law depriving a person of his property must also be reasonable law? If the court were to approach the right to property by striking a balance between rights and directive principles as being fair, just and reasonable then greater protection to the right to property and it may be a right that would exist for the greater common good.

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Conclusion The constitution was amended in the year 1951 for the first time. This amendment led to several modifications in the fundamental rights and started the era of land reform through constitutional mechanism. It has introduced .two new articles namely 31A and 31B and the infamous ninth schedule so as to make the laws acquiring zamindars unchallengeable in the Court of law. This was because of the land reform legislations were being challenged before various high courts like Patna, Nagpur, Allahabad etc on the ground of inconsistency with the fundamental rights specially Article 14..But the High Court varied in their opinions. These kinds of litigations were causing delay in the process of agrarian reforms which was supposed to be speedy. Therefore it was thought to bypass these wasteful litigations in order to give true effect to the land reform process. In this project the main focus was the constitutional validity of Articles 31A, 31B and 31C. It was strongly argued against the protective nature of these articles which exclude all possibilities of challenge to the laws included under the shield. It was argued in litigations that such shield will violate certain fundamental rights enshrined under part IIII of the constitution The validity of the article 31A was challenged stating that it fetters the fundamental rights and is therefore contrary to the basic structure of the constitution. But the Court rejected this by saying that every case where the protection of the fundamental right is withdrawn cant be something that is damaging the basic structure. the Court referred to the historical view of the Constitution 1st Amendment Act and said that the 1st amendment was aimed in removing the social and economic disparities in the agricultural sector. But while removing wide disparities it is impossible for any government to remove all the disparities without causing certainn hardship to a classs of people who are also entitled to equal treatment under the law. It is thus concluded that the 1st amendment of the constitution does not violate any basic structure of the constitution.

The basic structure of the constitution as a mandate can be achieved only through the permissible means of the objectives set out in part III of the constitution and these reservations cannot be in contravention to the mandates of the directive principles of state policy. In other words, the mandatory ends set out in Part IV can be achieved only through those means which are consistent with the fundamental rights conferred by Part III. The discussion in the project focused on the constitutional validity of the Article 31C as amended by the 42nd Amendment

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does not, in fact cannot be allowed to stand as if it is allowed then it will confer an unrestricted license on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish a totally authoritarian regime in the democratic and socialist pattern of the Indian fabric. Its a known fact that all legislative action and every of the governmental action has to be related directly or indirectly, to some directive principle of State policy in order to fulfil its purpose under the constitution. The final words of the author in concluding the above discussion would be that if Article 31C was allowed to stand on its own over the grave of the democratic and socialist fabric then the protection of this amended article will be available to every legislative action under the sun, resulting into a society that we cannot imagine, this is because article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution. So it is concluded that if article 31C is allowed to stand then that would result into the complete failure of the basic spirit of the constitution makers and therefore in violation to the basic structure of the constitution of India.

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Bibliography1. Kashyap Subhash, The framing of Indias Constitution, A study, 2nd edn. Vol 5 Universal Law Publishing Co. Pvt.Ltd. 2. Jain M P, Indian Constitutional Law, 5th edition, 2008, Lexis Nexis, Buttorworths Wadhwa Nagpur. 3. Basu DD, Commentary on the Constitution of India, 8th edn 2008, Vol. 3 Lexis Nexis Buttorworths Wadhwa Nagpur. 4. Saharay, H K, The Constitution of India, an analytical approach, 3rd edn, Eastern Law House. 5. Bhansali, S.R. The Constitution of India, Vol 1, India Publishing House, Jodhpur. 6. Seervai, H.M. Constitutional Law of India, A critical Commentary, 4rth edn. Universal Law Publishing Co. Pvt. Ltd. 7. Shukla V.N., Constitution of India, 10 edn., 2001, Eastern Book Co. 8. Pylee M.Y., Constitutional Amendment in India, 3 edn, 2010, Universal Law Publishing Co. 9. Basu D. D., Casebook on Indian Constitutional Law, Kamal Law House, Kolkata. 10. Bakshi P.M., The Constitution of India, Universal Law Publishing Co.

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