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Land Laws
Module -1

Topic - Concept of land

Land is all delineateable area within the earth’s surface, and also everything
above and below it.

Land may be private property or public property, based on the bundle of rights
attached to it. Every legal system sets out requirement for a valid title. The title
specifies the conditions to be fulfilled to make a person owner of the property.
Such owners are vested with some amount of proprietary rights over the
property.

Property, be it private property or public property, exists to the ground

beneath the surface down to the epicentre of the earth’s core, and to a column
of space above the surface. It includes all objects on or under the surface of
the land in its natural state.

The term ‘Land’ means and includes soil, buildings, meadows, waters, marches,
minerals etc. Land extends indefinitely to anything upwards (like airspace) or
downwards (such as minerals found underneath the surface) from the surface
of the earth. Any accretion to the surface of the earth whether natural or
through human intervention created with an intention to permanently fasten it
with the earth will also be defined as immovable property.

The term ‘immovable property’ has not been defined under Transfer of
Property Act 1882. However, section 3 of this Act merely lays down the
meaning of immovable property. Immovable property means a property which
does not include standing timber, growing crops or [Link]. this
meaning is an exclusive definition.
1
In Babu Lal v. Bhawani Das and Ors the court held that section 3(25) of the
General Clauses Act which defines immovable property can be applied to
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Transfer of Property Act 1882. Under the General Clauses Act, immovable
property is defined as one which includes land, benefits arising out of the land,
things attached to the land or things that are permanently fastened to
anything that is attached to the earth.

EVOLUTION OF PROPERTY RIGHTS

There was no concept of personal property when humans were hunter-

gatherers. Everyone was expected to do anything and everything needed for
the existence of everyone and anyone. Economic transactions were non-
existent.

The concept of property evolved with the agrarian revolution, when humans
started to control the natural environment. Property rights slowly gained
importance along with the development of agriculture, hunting, rearing of
domestic animals, and the associated material culture. The scarcity of
productive land soon resulted in competition of land. Land gradually became
the basis of the social order.

The relationship between land and man changes at every phase. In the early
days, customs determined ownership of land, and protected it as well. The
emergence of the state meant the state started to play a dominant role in
property. However, various concepts of property emerged, as civilization
progressed. With the Industrial Revolution, land become all-important.

The maxim goes “Take away law, and the property will wither away.” The
noted jurist Benthem opined “Till law existed, property could scarcely be said
to exist. Property and law was born together, and die together.” Salmonds,
another noted jurist, regards “possession” as a fictitious entity as per the law.
Different persons may in different places, for different purposes, be in
possession of the same thing.
2
Case Laws:

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• • Kumar Pasupati Nath v sankari Prasad Singh Deo (1957): Coal Land
possesses all attributes of an immovable property.

• • Mohammed Ibrahim v NCF Trading Company (1944): Machinery of a

mill attached to a cement platform and attached to iron pillars fixed to
ground is regarded as immovable property.

• • In Leigh v Taylor (1902), if something is attached to walls of house, but

is not intended to form part of reality, but only as a mode of enjoyment,
it is not immovable property. However, if something is made part of the
house, and must necessarily go to the heir, it is immovable property.

• • JK Trust v Commissioner of Income Tax(1957): Real property means

every possible interest a person can acquire, hold and enjoy

Ideology /
Popular
View What they profess
Proponent
Espoused

Libertarian
John Locke Right to property is an inalienable natural right.
view

Private property is absolute and natural right.

Blackstone Classical view State may acquire it for “common good” by paying
compensation.

“Property is theft.” Only land under use is just

Anarchist occupation or ownership. Occupying or owning
Proudhon
view unused land is the root cause of tyranny and
injustice.

“Property is organized robbery.” - Landlord and

George
capitalists enjoy the product of the labour of
Bernard Socialist view
others; private property is an instrument of
Shaw
oppression.

Marxian / Karl Marx criticized John Locke’s views on 3

Karl Marx Communist property. He considered property as a social
view relation. He held capitalistic private property as a

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source of poverty, exploitation and alienation, and

advocated its abolition.

Private property is absolute right. State’s primary

James
role is to protect private property. This is doctrine
Madison / Elitist view
is aimed at protecting self-interest. It has been
Blackstone
criticized by Beard and many others.

Classification of Land
Nine-fold classification of Land Use

• Statistics on land use are collected at present, in the form of a nine-fold

classification on a yearly basis. Out of a geographical area of 329 million
hectares (reporting area) statistics are available only from 305 million
hectares (non-reporting area), which makes some areas to the extent of 7%
still not covered or classifiable under the nine-fold classification. The reporting
area is classified into the following nine categories:

o Forests: This includes all lands classed as forest under any legal enactment
dealing with forests or administered as forests, whether state-owned or
private, and whether wooded or maintained as potential forest land. The
area of crops raised in the forest and grazing lands or areas open for grazing
within the forests should remain included under the forest area.

o Area under Non-agricultural Uses: This includes all lands occupied by

buildings, roads and railways or under water, e.g. rivers and canals and
other lands put to uses other than agriculture.

o Barren and Un-culturable Land: includes all barren and unculturable land
like mountains, deserts, etc. Land which cannot be brought under
4
cultivation except at an exorbitant cost, should be classed as unculturable
whether such land is in isolated blocks or within cultivated holdings.

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o Permanent Pastures and other Grazing Lands: includes all grazing lands
whether they are permanent pastures and meadows or not. Village
common grazing land is included under this head.

o Land under Miscellaneous Tree Crops, etc. : This includes all cultivable land
which is not included in ‘Net area sown’ but is put to some agricultural uses.
Lands under Casurina trees, thatching grasses, bamboo bushes and other
groves for fuel, etc. which are not included under ‘Orchards’ should be
classed under this category.

o Culturable Waste Land: This includes lands available for cultivation,

whether not taken up for cultivation or taken up for cultivation once but
not cultivated during the current year and the last five years or more in
succession for one reason or other. Such lands may be either fallow or
covered with shrubs and jungles, which are not put to any use. They may be
assessed or unassessed and may lie in isolated blocks or within cultivated
holdings. Land once cultivated but not cultivated for five years in succession
should also be included in this category at the end of the five years.

o Fallow Lands other than Current Fallows: This includes all lands, which were
taken up for cultivation but are temporarily out of cultivation for a period of
not less than one year and not more than five years.

o Current Fallows: This represents cropped area, which are kept fallow during
the current year. For example, if any seeding area is not cropped against
the same year it may be treated as current fallow.

o Net area Sown: This represents the total area sown with crops and
orchards. Area sown more than once in the same year is counted only once.

Eminent Domain: Meaning

5
The primary owner of land is the king or in modern sense the elected
Government in power. As such the right of ownership will always remain with
the king or the elected government, notwithstanding the fact that land is
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transferred to individual citizens for agricultural or other purposes by the king

or the government as the case may be.

The institution of private property has been a controversial topic with

conflicting views, one completely denying the right to own private property
and the other supporting the holding of the private property.

Doctrine of ‘Eminent domain’, in its general connotation means the supreme

power of the king or the government under which property of any person can
be taken over in the interest of general public. However, over the years such
taking over the property by the king or the government has been made
possible only after compensating the land owner of such property.

Thus eminent domain explained as the power of the king or the government to
take over the property of a private person when it is needed for a public
purpose. Doctrine of ‘eminent domain’ is based on two maxims namely,

1. salus populi supreme lex esto which means that the welfare of the
people is the paramount law.

2. necessita public major est quan, which means that public necessity is
greater than the private necessity.

Eminent Domain is power of the sovereign to acquire property of an individual

for public use without the necessity of his consent. This power is based on
sovereignty of the State. Payment of just compensation to the owner of the
land which is acquired is part of exercise of this power. Eminent domain power
is regarded as an inherent power of the State to take private property for
public purpose. This power depends on the superior domain of the State over
all the property within its boundaries. An incidental limitation of this power is 6

that the property shall not be taken without just compensation.

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2)Eminent Domain And Constitution

The expression “eminent domain” means permanent (eminent) dominion

(domain) of the state on the property. The power of the State to take private
property for public use and consequent right of the owner to compensate now
emerge from the constitution of India.

The Constitution of India also recognizes the power of eminent domain.

However, this power of the state has been in limelight, more for the mischief
that it is allegedly imputed to bring about. Soon after Independence, the
Supreme Court was charged with judging the constitutionality of certain laws,
which were intended to abolish the feudal zamindari (landowning) system

In entry 42 list III of seventh schedule under Indian Constitution, both union
and States government are empowered to enact laws relating to acquisition of
property.6 The use of eminent domain power for land acquisition is also
justified when the public purpose in question can be served by only a specific
piece of land, which has no substitute

Acquisition or taking possession of private property which is implied in clause

(2) of Article 31 of Indian Constitution, such taking must be for public purpose.
The other condition is that no property can be taken, unless the law authorizes
such appropriation contains a provision for payment of compensation in the
manner as laid down in the clause.

3)Limit on the Doctrine

The power of eminent domain was under the scrutiny of the Court. In
explaining the power, the Court held that eminent domain was “the power of
the sovereign to take property for public use without the owner’s consent”.

Meaning is that the power in its irreducible terms i.e.,

7
1. power to take,

2. without the owner's consent, and

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3. for the public use.

The reference to the 'sovereign ’ was a portent of one of the problem is that it
has dogged the existence and uses of the eminent domain power, that is, the
relationship between the state and the people. The power to take and the
unqualified nature of 'public use', has made dispossession and mass
displacement of people

The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy District, has
articulated the following grounds for review of this power:

1. malafide exercise of power;

2. a public purpose that is only apparently a public purpose but in reality a

private purpose or collateral purpose;

3. an acquisition without following the procedure under the Act;

4. when the acquisition is unreasonable or irrational;

5. when the acquisition is not a public purpose at all and the fraud on the
statute is apparent

Although the power to determine what constitutes public purpose is primarily

with government, Courts have powers to review such decisions. In practice,
however, the Courts have generally placed limitation on themselves.

1. Compensation for the property acquired.

2. The interest of the community is always superior to the interest of the

individual.
8

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4)Article 300-A and the Doctrine of Eminent Domain

Article 300-A which merely says, “No person shall be deprived of his property
save by authority of law”. Hence, the rights in property can be curtailed,
abridged or modified by the State only by exercising its legislative power. An
executive order depriving a person of his property without being backed by a
law is not constitutionally valid.

In addition to that, to say valid it must satisfy the following three tests:

(i) The authority which has enacted the law must have the legislative
competency to do so;

(ii) It must not infringe upon any other fundamental right guaranteed by part III
of the Constitution; and

(iii) It must not violate any other provision of the Constitution.

In Basantibai v. State of Maharashtra the Court did seek to interpret the

Article 300-A favourably to the property owners by reading therein the twin
requirements of ‘public purpose’ and ‘compensation’. Under Article 300-A the
legislature cannot sanction the deprivation of property for a public purpose.
However, the Parliament not intended to confer an absolute right on the
legislature to deprive a citizen of his property merely by the passing of a black-
letter law.

5)Distinction between Eminent Domain Power & Police Power

In Chiranjit Lal v. Union of India, Supreme Court held that the eminent domain
is the inherent right in every sovereign State to take and appropriate the
private property belonging to an individual for public purpose. The State under 9

its police power also regulates the use and enjoyment of private property.

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The police power can, however, be distinguished from eminent domain power.
While under police power, State merely regulates the use and enjoyment of
property; under the eminent domain, State can take the property from the
owner for public use.

Notwithstanding this all pervasive nature of police power is that exercise of

police power restricted only to maintenance of law and order situation. In as
much as police is only an assisting machinery. This power seems to be
synonymous with the power of eminent domain.

However there is vital difference between these two powers.

1. Eminent domain is a sovereign power exercised subject to public

convenience, with the ultimate object of meeting public welfare and
public purposes and where as the police power is exercised to ensure,
interalia that the law and order is enforced to protect property right, to
achieve public purpose etc.,

2. Eminent domain power is unopposed authority subject to payment of

compensation to the person interested and whereas the police power is
subject to scraping of the executive and judicial wing of the government.

3. Eminent domain power originates out of the constitutional provisions

and whereas the police power originates out of legal provisions, which
shall not be contrary to constitutional provisions.

4. Exercise of eminent domain power operates sometimes harshly and

unequally and requires special sacrifices from the persons interested
whereas such a situation does not arise while operating police power.
10

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5. Exercise of the power of eminent domain deprives the right in the

property, and whereas exercise of the police power provides security to
the person and property

LAND AND PROPERTY IN THE CONSTITUTION OF INDIA

The Constitution of India struck an interesting balance whereby it recognized

the power of the state to acquire property, but for the first time in the history
of India for a thousand years or more, it recognized the individual’s right to
property against the state. It tried to balance right to property with right to
compensation for its acquisition.

In all, there are around 200 central legislations related to land, and additional
state laws. The most number of amendments to the Constitution of India has
been with regards to property rights.

** Pre-Constitutional Edicts **

Article 17 of the Universal Declaration of Human Rights (1948) recognises the

right to private property. India is a signatory to that Declaration.

Section 299 of the Government of India Act, 1935, the precursor to the
Constitution of India, affirmed “right to property .” Every citizen was granted
the individual right to acquire, to hold and dispose of property. The statue also
co-opted safeguards against
1. expropriation of property without compensation and
2. acquisition for a non-public purpose.

However the “right to property” also comes with an implicit duty that the right
should be reasonably exercised, as not to interfere with similar rights of other
citizens.

11

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Constitutional Provisions

Provision Introduced by What is says Current Position

Equality before law

and Equal
protection before
law – mandates
equal classification
Article 14 Original Provision In Vogue
and prevents
discrimination.
Relevant in matters
of land acquisition
and property rights.

Every person has a

right to acquire,
hold, and dispose
any property by
Abrogated BY
Original Provision lawful means,
Article 44TH
on Right to subject to
19(1)(f) AMENDMENT
Property reasonable
1978
restrictions to serve
public exigency and
protect interest of
Schedule Tribes

No person shall be Abrogated BY

Original Provision deprived of his/her 44TH
Article 31 on Right to property, except by 12
AMENDMENT
Property authority of law. 1978
Compensation
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would be paid to a
person whose
property has been
taken for public
purposes.

Abrogated by
No person shall be 44th
deprived of his Amendment
Article 31
Original provision right to property (1978) and new
(1)
save by the clause (300A)
authority of law. added in lieu of
it.

If the State wants

to acquire or
requisition private
property, it could
Abrogated by
do so only if such
Article 44th
acquisition or
31(2) Amendment
requisition is for a
(1978)
public purpose.
Compensation is to
be payable to the
owner.

Offers an additional
Article check- If any
31(3) legislature intents
13
to deprive property
rights, it has to get

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the assent of the

President

No law dealing with

acquisition of
First Amendment estate, or taking
(1951). Later, the over management
Article 31-
Fourth Amendment of any property by In vogue
A
substituted various state shall be void
clauses. on grounds in
violates Article 14
and/or Article 19.

The Acts and

Regulations
specified in the
Ninth Schedule
shall not be void,
on grounds in
violates
Article 31- First Amendment
Fundamental In vogue.
B (1951)
rights,
notwithstanding
any judgment,
decree or order of
any court or
Tribunal to the
contrary.
14
Article 31- Twenty-fifth No law shall be void SC struck down
C Amendment 1971 on grounds it takes a portion of this
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away rights clause in

conferred on Kesavananda
Article 14 and Bharati Case
Article 19. (1973) “no law
declaring it is to
circumvent Art
14 ands 19 shall
be called into
question by
court”

State shall
endeavour to
ensure the
ownership and
Directive Principles
Article control of the
of State Policy – In vogue
39(b) material resources
original provision
of the community
are so distributed
as best to subserve
the common good.

State shall
endeavour to
ensure the
Directive Principles operation of the
Article
of State Policy – economic system In vogue
39(c)
original provision does not result in
the concentration 15
of wealth and
means of

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production to the
common
detriment.

The State shall

endeavour to
Directive Principles protect and
of State Policy – improve the
Article48A In Vogue
Inserted by 42nd environment and to
Amendment,1976. safeguard the
forests and wild life
of the country.

44th Amendment
(1978) -
No person shall be
Fundamental Right
Article deprived of his/her
to Property In Vogue.
300A property save by
becomes a
authority of law
Legal/Statutory
Right.

** The Tussle Between the Judiciary and the Legislature **

After independence, the state decided to abolish the Zamindari system, and
acquire the lands of Zamindars.

One of the earliest initiatives was the Bihar land Reforms Act, 1950.

However, in Kameshwar Singh v State of Bihar (1950), the SC held the Bihar
Land Reforms Act, 1950 invalid. The act, which sought to re-distribute
agricultural land, was held to violate Article 14, for it classified the zamindars in 16
a discriminatory manner for the purpose of compensation, and the principles
of compensation was not laid down. The Patna HC also held compensation was
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inadequate. (Later, on appeal to the SC, the court allowed Bihar land Reforms
Act partially, striking down only two sections as unconstitutional)

First Amendment 1951

Following the HC verdict in Kameshwar Singh case, and when the appeal was
pending in the Supreme Court, the Parliament passed first amendment to the
constitution (1951), inserting Article 31-A and [Link] objective of the first
amendment is to abolish zamindari holdings, and facilitate agrarian reforms.

Articles 31-A and 31-B said no law providing for acquisition by the state of an
estate could be questioned on the ground that it was took away or abridged
any of the rights conferred by Articles 14, 19 or 31 (Fundamental rights).

Article 31A allowed

• Acquisition of estate by state

• Taking over management of any property by state for a limited period, in

public interest

• Further amendments extended the meaning of “estate” to include

practically the entire agricultural land in areas including waste lands,
forest lands, lands for pasture and sites of buildings.

Article 31-B declared that none of the acts or regulations specified in the Ninth
Schedule shall be deemed to be void on the ground that they are inconsistent
with Part III (Fundamental Rights), notwithstanding any judgments, decree or
order of any court or tribunal to the contrary. Originally 64 laws were added to
the Ninth Schedule and more acts were added through the 4th, 17thand
29thAmendments. In all 284 acts are listed in the Ninth Schedule.

Art 31B however does not empower the legislatures to amend these acts
inconsistently with the provisions of the constitution, or to take away the 17

rights conferred by the Constitution. The amendments must be consistent with

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the provision of the Constitution or be saved under Article 31A of the

Constitution, if not they must be held void.

The Courts have confirmed the validity of Articles 31A and 31B.

• Sankari Prasad Singh Deo v Union of India (1951) challenged the 1st
amendment of 1961. Court held that legislature is the ultimate
authority, and has power to amend every part of the constitution,
including Article III.

• In Ambika Mishra v State of UP (1980) , 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 (1980), the Court held that the whole
of Art. 31A is unassailable on the basis of stare decisis.

• In Waman Rao v. Union of India (1980), the court held that

amendments in the Ninth schedule made before the decision of
Keshavananda Bharti v. State of Kerala (before 24.04.1973) was beyond
challenge but the amendments made afterwards could be tested on the
grounds of amendment of basic structure. Essentially, the First
Amendment in which the Art. 31A was introduced and Fourth
Amendment which substituted new clauses to this Article was held
constitutional.

• I.R. Coelho v. State of Tamil Nadu (2007): A nine-bench Supreme Court

held 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 and Directive Principles of State Policy. The First 18
Amendment in which the Art. 31A was introduced and Fourth

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Amendment which substituted new clauses to this Article was held

constitutional.

However, the court still stood in the lay of land reforms.

• State of West Bengal v Mrs Bella Banerjee (1954): SC insisted on

payment of compensation for every case of compulsory deprivation of
property by the state. The West Bengal Land Development and Planning
Act,1948, which provides for acquisition and development of land for
public purposes, and primarily to rehabilitate refugees from East Bengal,
was declared unconstitutional. Under 31(2) a person must be deemed to
be deprived of his property if the law “substantially dispossessed” or
“seriously impaired” of his right to use and enjoy the property.

4th Amendment 1955

In the wake of the State of West Bengal v Bella Banerjee case, the fourth
amendment,1955 sought to restrict property rights. The amendment modified
various provisions of Article 31-A. Various legislations were also brought under
the Ninth Schedule, to give it immunity from judicial interference, as per
Article 31-B

However, the judiciary still stood in the way.

• In Kochunni KK v State of Madras (1960), court held provision which

deprived a sthanee of his property and vested the same in the taravad
would not be protected by Article 31A. The SC did not accept the plea of
the state that Article 31(1) after amendments gave an unrestricted
power to the state to deprive a person of his property.

• In P Vajravelu Mudalier vs Special Deputy Collector(1964), and also

in Union of India Vs Metal Corporation of India (1965), SC considered
Article 31(2) in the context of compensation and held that if the 19

compensation fixed was illusory or the principles prescribed were

irrelevant to the value of the property at or about the time of
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acquisition, it could be said that the Legislature had committed a fraud

on power and therefore the law was inadequate.

// Seventeenth Amendment, 1964 //

To overcome the limitations which led to adverse court verdicts, the

government brought in the Seventeenth Amendment (1964), to extend the
scope of Article 31-A and Ninth Schedule. The amendment specifically sought
to protect the agrarian reforms enacted by the Kerala and Madras states.

The word “estate” in Article 31-A now included any jagir or inam, mauf, or any
other grant and janmam right in state of Kerala, Madras and also Ryotwari
lands. It also protected a person of being deprived of land less than the
relevant land ceiling limits held by him for personal cultivation, except on
payment of full market value thereof by way of compensation.

However, the courts still stood in the way.

• In Vajaravelu v Special Deputy Collector (1965), SC held Land

Acquisition (Madras Amendment) Act, 1961 as unconstitutional. The act,
according to SC, was not meant for agrarian reforms, but to clear slums,
and hence, was not protected by Article 31-A.

• In Shantilal Mangaldas v Gujarat (1967), the court held following the

4th amendment, compensation means ”What the person has been
deprived of.” A competent court can look into the issue of
compensation, if compensation is found inadequate.

• In Deputy Commissioner v Durga Nath Sharma (1968), court held

acquisition of land to ensure flood control or soil erosion has nothing to
do with agrarian reforms

• In 1970, the Supreme Court, in Rustom Cavasjee Cooper v. Union Of 20

India, (Bank Nationalization case,) held that the Constitution guarantees
the right to compensation, that is, the equivalent money of the property

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compulsorily acquired. The Court also held that a law which seeks to
acquire or requisition property of public purposes must satisfy the
requirement of Article19(1)(f). The judge adopted Blackstone’s view of
property being an individual right, and a constitutional guarantee.

Twenty Fifth Amendment 1971

The twenty-fifth amendment of 1971 sought to overcome the restrictions

imposed on the government by the ruling in the Rustom Cavasjee Cooper v.
Union Of India (Bank nationalization case). In a way, it was a counter to judicial
interpretation related to constitutional provisions on land.

The amendment:

1. Replaced the word “compensation” to “amount” in Article 31(2) to

overcome the court verdicts related to “just compensation.”

2. Introduced a new Article 31C. Article 31C expressly authorised outright

confiscation of any property, large or small, belonging to anyone, poor
or rich, citizen or non-citizen.

In State of Gujarat v Kamalabhen Jeevanbhai (1972): termination of annual

grant with respect of certain foreign rights was held to be part of agrarian
reform, and hence validated as per Art 31-A

The Kesavananda Bharati v. State of Kerala (1973) case challenged the

constitutional validity of the 25th Amendment or Article 31C. The contention
of Kesavanada Bharati was that since the Parliament cannot under article 368
abrogate fundamental rights, it cannot enable the legislature to abrogate
them. Therefore article 31C must be declared unconstitutional. The court
upheld the first part of Article 31C, or Section 2(a) and 2(b), and the first part
of section 3 of the 25th Amendment. The second part of section 3, which
prevented judicial review of any law that gives effect to Directive Principles, 21

was declared unconstitutional. The majority of the judges refused to interpret

“amount “as “Just compensation.”However, the court held the court has no
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power to look into the adequacy of compensation unless the “amount” has no
rational nexus with the value of the property. In other words, compensation
need not be market value.
The Supreme Court held that judicial review is one of the essential features of
the Constitution. The Legislature could not dilute the right to seek judicial
review, one of the essential features of the Constitution, through a legislative
action.

42nd Amendment (1976)

Emboldened with the verdict in the Kesavananda Bharathi case, the 42nd
Amendment replaced from Article 31C the term “Article 39(b)-(c)” with “all
Directives contained in Part IV of the Constitution.” In essence, it held directive
principles will have predominance over fundamental rights, and was a
precursor to the removal of right to property as a fundamental right.

*In the Minerva mills v Union of India case , SC held the 42nd amendment,
which extended the immunity of Article 31C to all the Directives of Part IV was
unconstitutional. Article 31C now went back to its pre 1976 position, and this
has not been overruled by any larger bench yet.
*In Waman Rao v. Union of India , 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.
*In Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal
Ltd (1982) The Supreme Court struck down as unconstitutional the amended
portion of Article 31C (Amended portion in 42nd Amendment Act) on the
ground that it destroys the "basic features" of the Constitution. The Court
however held that article 31C as originally introduced by the 25th Amendment
is constitutionally valid.

44th Amendment (1978)

22
The 44th amendment transformed right to property from a fundamental right
into a constitutional (legal) right.

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The amendment deleted Article 19(1)(f), Article 31(1), and Article 31(2).
Instead a new provision, Article 300-A, was added.300-A held “no person shall
be deprived of his property except in accordance with law.
The amendment clarified the removal of property from the list of fundamental
rights would not affect

• the right of minorities to establish and administer educational

institutions of their choice

• the right of persons holding land for personal cultivation and within the
ceiling limit to receive compensation at the market value would not be
affected.

The object behind the amendment was to enforce socialism, or a shift the
emphasis from individual ownership of property to collective ownership of
property. It specifically sought to abolish large land holdings with zamindars
and other rich people and to distribute it to the landless peasants.

The major impact of the amendment is

• Legislature getting more leeway to pass laws restricting a person's right

to property

• Property owners losing the right to file a writ in the Supreme Court
under Article 32 for infringement on property. They can only file a suit
against the Government.

After 1978, there remain only four constitutional provisions related to Property
in the Constitution: Article 31, 31B, 31C and 300A.

• In Narmada Bachao Andolan v State of Madhya Pradesh , SC held that

acquisition of land will not violate any constitutional rights of the
displaced persons as they are provided with rehabilitation and 23
resettlement as per the policies framed by the project.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
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