From Fundamental to Forgotten: Tracing the shift of Right to Property

Introduction

In the case of Commissioner Hindu Religious Endowments vs Sri Lakshmindra Thirtha, the Supreme Court attempted to define property under Article 31 of the Indian Constitution, which has now been repealed. The court stated that “property, as used in Article 19(1)(f) of the Constitution, should be given a liberal and wide connotation”. By means of more judgements, it was established that property includes both corporeal and incorporeal rights, money, and interest in the property.

From this definition of property, it can be derived that there must exist some sort of safeguard for property. Keeping this in mind, the drafters of the constitution inserted Article 19(1)(f), which conferred the Right to Property under Part 3 of the Constitution. This later went on to get repealed, and the Right to Property now exists as a legal right. As compared to a fundamental right which is protected by the Constitution of India, a legal right is protected only by the ordinary law of India and can also be waived off by a mere individual. This has led to improper enforcement of the Right to Property in India which has, in turn, proved to be detrimental to the citizens of India, the author will be analysing this aspect along with the evolution of the Right to Property.

Through the means of this article, the author will trace the history of the Right to Property and how it has evolved to become a legal right. The article will then analyse how the Right to Property is not enforced adequately and there still exist gaps in its implementation owing to the fact that it is not a fundamental right anymore.

Article 19(1)(f)

In 1950, when the Constitution of India was put in force, there existed two provisions that could be termed the fundamental right to property of an individual, Article 19(1)(f) and Article 31. As a fundamental right, the Right to Property safeguards the citizens of India by providing them with the legal status of the land. This provided reassurance that one’s land could not be forcibly taken away from them.

In contrast to the situation now, the right to property was regarded as essential up to the extent that the government decided that it would be best to stay out of interfering with the right. Back in the 1960s, when the government intended to carry out its socialist principles of limited private land ownership to prevent wealth concentration, the government refrained from doing so owing to the prevalence of Article 19(1)(f), but this school of thought did not last long.

Soon after, the Fourth Amendment to the Indian Constitution was passed, which modified Article 31. It stated that “the compensation was only payable in the case of compulsory acquisition, i.e., where the state acquires the ownership of the property taken”. This amendment was passed in order to overcome the difficulties created due to the Supreme Court’s verdict in the Bela Banerjee case.

The Bela Banerjee case challenged a legislation in West Bengal, in which the government tried to compensate the landowners for acquired property based on the property’s market value many years prior to the date of acquisition. This was rejected by the Supreme Court, which stated that compensation should be determined based on “a just equivalent of what the owner has been deprived of”. This was termed as ambiguous since the owner was deprived of many aspects if one’s property is acquired and it could not be factored in to come to a sum that is an equivalent of what the owner has been deprived of.

Over time, with an increase in the criticism and dismay amongst the government and in a bid to get over the effect of the Bela Banerjee case over the Right to Property, Article 31 was changed in numerous ways by the Fourth Amendment Act 1955. By means of the amendment, the government got more power over the forced acquisition and requisitioning of private property.

By this time, the Right to Property had been deemed to be largely controversial. It was the first time that a legislation had resulted in a clash between the Supreme Court and the Parliament, as seen in the case of the Bela Banerjee Case and the Fourth Amendment, which was one among the seven amendments that the Right to Property was primarily responsible for in the Constitution of India.

The 44th Amendment and Article 300A

By the 1970s, it was clear that the Right to Property as a fundamental right was not here to stay. Most of the litigations in court were centred on the state’s obligation to pay compensation for the acquisition or requisition of private property. Ultimately, this led to the Janata Party Government introducing the 44th Amendment in 1978 under the provisions of Article 300A, which restricted the Right to Property to merely a constitutional right and removed it as a fundamental right.

Article 31 had been repealed and this meant that anyone whose land had been taken over by the government was no longer obligated to be compensated by the Government in terms of a fundamental right.

Now that the right to property has been made a legal right, it can be regulated without the need for parliamentary legislation or constitutional amendments, which can be detrimental to the citizens of a nation where there is already a lack of land security because the right to property is not enforced as strictly. A farmer, for example, wouldn’t cultivate crops and upgrade his land up to a large extent without effective land tenure arrangements and some sense of security with respect to his land. This leads to economies running the risk of losing the fundamental elements necessary for the long-term growth of the economy, compromising the livelihoods of the most vulnerable and underprivileged citizens.

Since India is densely populated and with the advent of constructions like metros, flyovers, and other public infrastructure, there is bound to arise a dispute over property that has been acquired between the citizens and the government. This issue is especially concerning for the economically weaker section of the population, which may not be able to seek proper legal recourse for their grievances, thus, taking action amongst the authorities and asking them to pay compensation must be regarded as a fundamental right. It was also stated by the Supreme Court in the case of Bhim Singh Jain vs Union of India while realising the value of the Right to Property that “in the absence of this Fundamental Right to Property, the second Fundamental Right of Equality, namely the idea of reasonableness under Article 14 can be relied upon”. It has time and again been stated that the Right to Property despite not being a fundamental right, is a valuable constitutional right that must be upheld, as stated in the case of B.K. Ravichandra v. Union of India in which a land owner who was evicted from his property by the government under the Requisitioning and Acquisition of Immovable Properties Act, 1952, was granted relief in 2020 and the property was handed back to him.

Analysis

Despite the Right to Property having legal recognition and being regarded as a valuable right in the Indian Constitution, does not hold the same value as that of a fundamental right. A fundamental right guarantees an exclusive privilege which is the right to approach the Supreme Court under Article 32 for its enforcement. Now, as analysed above, the problem that arises with the abolition of the Right to Property as a fundamental right is that even though a person may be entitled to compensation, there exists no guaranteed right to compensation in case the state acquires private property of an individual, this was observed in the case of construction of Delhi Metro.

During the construction of the first two phases of the Delhi Metro, the Delhi Metro Rail Corporation(DMRC) was easily able to acquire the land needed for the project under the provisions of the Land Acquisition Act 1894, which was also assisted by the state government and good judicial support. It was only during the enactment of the new Land Acquisition Act in 2013 that DMRC faced some difficulties as they had to directly negotiate with individual landowners and it was extremely difficult to acquire land as the machinery to be put in place to implement this act was still not in place and compensation levels were also expected to be much higher.

Despite, the Land Acquisition Act 2013, which mandates two times the compensation of the market value in urban areas, the construction of Phase 3 of the Delhi Metro did get delayed but remained largely unaffected in terms of cost. These instances bring forth the ground reality of the situation, despite there being legislations in place safeguarding the interests of property holders and even judicial precedents that not only declare the Right to Property enshrined under Article 300-A of the Indian Constitution as legal and constitutional but also as a human right. It was stated in the case of Narayan Prasad v. State of Chhattisgarh, “Article 300A declares that a person’s property cannot be taken away only based on presidential fiat without any explicit legal authority or the support of a competent legislature’s statute. Although the right to property is no longer a fundamental right, it is nonetheless protected by the Constitution as a constitutional and human right”.

Another issue that arises in the case of the Right to Property and its implementation is the determination of the market value. The standard method that is used for determining the value of the land to be acquired is determined with reference to the open market sale of comparable land in the neighbourhood, by a willing seller to a willing buyer, on or before the date of preliminary notification, as that would give a fair indication of the market value as brought forth in Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013(“Act”).” However, the ground reality is largely at odds.

The third phase of the Delhi Metro was constructed in 2013 after the implementation of the Act, which laid down compulsorily compensating individuals whose land had been taken over in a manner that was fair and took into consideration all assets attached to the land. Despite that, people were not properly and fully awarded compensation in lieu of their lands being taken over. In the case of Delhi Metro itself, during the construction of the Okhla NSIC Metro Station, there were few handlooms and artefact factories located in the area where the stations were located. As a solution, they were given a place to continue their business even after the construction of the metro station but on an additional floor that was erected above the station premises. Now, instead of awarding them compensation for disrupting their business, they were made to pay for the construction of the additional floor. In this case, their right to property was waived, this would have not been the case if Right to Property was an enforceable as a fundamental right.

Conclusion

Thus, it can be seen that despite there being an effort on the part of the government to safeguard the interests of property holders wherever possible since it has been revoked as a fundamental right, it has never had the status it once did. It lacks mainly in implementation, and it is not fully enforced in order to ensure just and reasonable actions on the part of the government.

If the Right to Property is properly enforced, it can have many benefits, such as economic growth. If one is certain that their property will not be ceased, it will encourage private investment in the infrastructure sector and thus economic growth. Taking the example of a rural scenario, a farmer may not develop his land or cultivate crops further if he is unsure that the government may cease his land. Additionally, the failure to define land rights and alter unfair land rules may lead to a rise in property values which in turn prevents the urban poor from being able to afford homes. 

All in all, it can be seen that the Right to Property is an essential right in the Constitution, which has also been pointed out in many judicial precedents such as Bajranga v State of Madhya Pradesh and Jayalakshmi & Ors. v. State of Tamil Nadu but at the ground level, its implementation still remains a problem, which is something that is detrimental for the nation and its citizens as a whole. Thus, it is suggested that courts adequately enforce the Right to Property and due remedy is awarded. Recently, the court upheld that the Right to Property is a legal right and can not be denied as in the case of Sucharita Roy v. State of West Bengal, this was a welcome move as it can be considered as a step forward in realising the due importance that must be accorded to the Right to Property owing to its importance.

Citations

1.Commissioner Hindu Religious Endowment v. Sri Lakshmindra Thirtha AIR 1954 SC 282.

2. Dwarkadas Shrinivas Of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. 1954 AIR 119.

3. Bombay Dyeing &Manufacturing Co. Ltd vs The State Of Bombay And Others 1958 AIR 328

4. The Constitution of India, 1950, Art. 19(1)(f).

5. Id.

6. The Constitution of India, 1950, Art. 31.

7. Id.,4.

8. The Constitution (Fourth Amendment) Act, 1955.

9. Id.,6.

10. The Constitution of India, 1950, Art. 31(2).

11. The State Of West Bengal vs Mrs. Bela Banerjee And Others 1954 AIR 170.

12. Id.

13. Id.,6.

14. Id.,8.

15. The State Of West Bengal vs Mrs. Bela Banerjee And Others 1954 AIR 170.

16. Id.,8.

17. The Constitution (Forty Fourth Amendment) Act, 1978.

18. The Constitution of India, 1950, Art. 300A.

19. Id.,6.

20. Dr. Bhim Singh Jain V. Union Of India & Another 1981 RENTLR 86.

21. B.K. Ravichandra And Others (S) V. Union Of India And Others AIRONLINE 2020 SC 857

22. The Constitution of India, 1950, Art. 32.

23. Mint, Delays in acquiring land posed problems for Delhi Metro phase-III project, January May 20, 2019, available at http://beta.cricket.yahoo.com/cricket/news/article?id=item/ 2.0/- /cricket.indiaabroad.com/16c6e68269c8a654c3397c389d18a 755/ (Last visited on February 13, 2024).

24. Vimlaben Ajitbhai Patel V. Vatslaben Ashokbhai Patel And Others 2008 AIR SC 2675.

25. Narayan Prasad v. State of Chhattisgarh 2017 SCC ONLINE CHH 1226.

26. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, §26.

27. Id.

28. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, §27.

29. Balendu Lohiya & Ors. V. Delhi Metro Rail Corpn. & Ors. 2009 SCC ONLINE DEL 1518 

30. Id.,23.

31. Bajranga (Dead) By Lrs. V. State Of Madhya Pradesh And Others 2021 SCC ONLINE SC 27.

32. Jayalakshmi & Ors. v. State of Tamil Nadu 2012 SCC ONLINE MAD 364.

33. Sucharita Roy v. State of West Bengal 2003 SCC ONLINE CAL 74.