chap5 property constitution relation

7/26/2019 Chap5 PropERTY ConstITUTION Relation

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IGHT TO P OPE TY UNDE THECONSTITUTION OF INDIA: AN ANALYSIS

INT ODUCTION

Property, as a legal and social institution, has diferent orms in diferent cultures andlegal systems. owever, only a denition o Constitutional property is common in alldemocratic countries. Since state exercises eminent domain power against private property, itis pertinent to discuss the concept o private property in brie. The institution o private

property has been a controversial issue with conicting views, one completely denying theright to own private property and the other supports the holding o the private property.!owever, the right to property is a natural and inherent right o an individual. "ost o the modern Constitutions, except those o communist countries haverecogni#ed the right o private property. Thereore, citi#ens have right to own and possess theproperty. This right o individual conicts with the right o state to ac$uire property. % personhas a right not to be deprived o his property except through due process o law. These tworights i.e., the right o eminent domain o the state and right o citi#en not to be deprived o his property except by due process o law exist in diametrical opposition. They have to beresolved more in avour o citi#ens by limiting the power o eminent domain. Thereore,property is an institution governing the control and allocation o material ob&ect, and placedultimate control over scarce resource in the hands o individual. 'n private property system,

individuals are granted powers over the control and use o resource. The most obviousmaniestation o vesting control in a single person is characteri#ed as an ability to excludeothers rom access to or use o the same resource in considering the diferent approaches tothe denition o private property in diferent legal systems. The distinct and commondenition or Constitutional property can be ofered. The aim o the private law is to regulaterelationships between individuals, thereore, denition o property in private law depends onthe diferent aspects o the legal relations among individuals, but aim o constitutional law isto regulate relationship between individual and state, thereore, state protects the propertyright o individuals. (or example, th amendment to )S Constitution provides that *nor shallany state deprived any person lie, liberty, property, without due process o law+. 'n 'ndia aterConstitution came into orce property right is recogni#ed as a undamental right under %rticles-// and 0. 'n 'ndia, no undamental right has given rise to so much o litigation than property rightbetween state and individuals. Though the Supreme Court o 'ndia sought to expend thescope and ambit o right to property, but it has been progressively curtailed throughconstitutional amendments. The 'ndian version o eminent domain has ound in entry 12 3ist''', which says *ac$uisition or re$uisition o property+. )nder the original Constitution %rticles-// and 0 provides or protection o property right and later they were repealed and%rticle 044% was inserted. %ccordingly no person shall be deprived o his property save by theauthority o law. !owever, regarding right to property what 5ind o protection givenby the )S Constituti6n similar not identical/ protection provided by the 'ndian Constitutionunder %rticle 044%. (or better understanding o %rticle 044% it is appropriate to discuss therepealed provisions o %rticles -// and 0 along with Constitutional amendments.

HISTO ICAL BACKG OUND OF IGHT TO P OPE TY

The demand or a guarantee o undamental right to property can be traced bac5 to the timeo the "agna Carta, 27. That Charter set out the rights o the various classes o themedieval community according to their needs. 6ther ancient documents enrolled on thestatute boo5 were the Petition o 8ight, 92:, the ;ill o 8ights, 9:- and the %ct o settlement, <4 inaugurated in =ngland an era o Constitutional government. 'n =nglandater Crown Proceedings %ct -1< came into orce, removed the total immunity o the Crown,thus the >ing could do only what the law o the land allowed. ?uring the time o nationalemergency the >ing could demand personal service within the realm. =ither the crown or asub&ect may invade the land o another to erect ortications or the deence o the realm. Theprovisions o the ?eence %ct :12, which had been incorporated into the deence o the8ealm %ct and it imposed conditions upon compulsory ac$uisitioning o land and provided orpayment o compensation as a matter o right to persons whose land had been ta5en over. Similar provisions could be seen in the )S Constitution. The (ith %mendment to the%merican Constitution provides *@.. nor shall any person@.. deprived o his lie, liberty, or



property without due process o lawA nor shall private property be ta5en or public use without &ust compensation.+

The 'ndian desire or civil rights had been traced its roots deep in the nineteenth century.(or the rst time the ;engal 8egulation ' o :21 1 authori#ed compulsory ac$uisition o private property by the state. 't was implicit in the policies o the 'ndian Bational Congress in::7, that 'ndians wanted same rights and privileges that the ;ritish masters en&oyed in 'ndiaand the ;ruisers had or themselves in =ngland.'n :-1 also the Congress passed a resolutiondemanding *xed o tenure and immunity rom D =nhancement o land tax or suEciently

long period o not less than sixty years. The demand or certain undamental rights appeared or the rst time in theConstitution o 'ndia ;ill, :-7. % series o resolutions adopted between -< and -- by the'ndian Bational Congress, repeated the demands or civil rights and e$uality o status with=nglishman < %rticle 9 o this ;ill laid down a variety o rights including right to property/. 'n-- o the "ontaguFChelmsord 8eorms, the 'ndian Bational Congress at its special sessionheld in ;ombay in %ugust -- demanded or the proposed Government o 'ndia %ct shouldinclude a *declaration o the rights o the people o 'ndia as ;ritish citi#ens.+: The next ma&ordevelopment was that inclusion o the seven undamental rights provisions in "rs. ;esants*Commonwealth o 'ndia ;ill+ o -27. 'n -29 the 'ndian Bational Congress passed aresolution or ta5ing steps in the councils to improve the condition o peasants and to protectthe rights o labor.

'n compliance with the directions contained in the "adras Congress resolution o -2<,a committee was set up to drat a *Swara& Constitution+ or 'ndia on the basis o a*declaration o right+, committee came into being in "ay -2:. "otilal Behru was itschairman and its report 5nown as the Behru 8eport, contained an explanation o its dratConstitution. The report purported to secure the undamental rights including right toproperty, that had been denied. The preamble to the 'ndependence ?ay pledge that had been ta5en on 29th Hanuary-04 aErmed the inalienable right o the 'ndian people as o any other people *to havereedoms and to en&oy the ruits o their toil and have the necessities o lie, so that they mayhave ull opportunity o growth.This pledge was translated into the historic resolution on(undamental 8ights and =conomic Programme adopted by the >arachi Congress in -0. Thereater, the Hoint Parliamentary Committee on constitutional reorms or 'ndia -00F01/ elt a need or some general provision to be inserted in the Constitution %ct saeguardingprivate property against expropriation. The committee recommended that Constitution shouldsecure the legislation expropriating the property o particular individual should be lawul onlyand expropriation conned or public purposes and compensation was to be determined bysome independent authority. 'n -01, the Hoint Parliamentary Committee reused the 'ndians re$uest to include a listo rights in the -07 %ct. 6nly in -19 did the ;ritish tacitly ac5nowledge the validity o the'ndian view when the Cabinet "ission Plan suggested that to constitute an %dvisoryCommittee on undamental and minority rights to ma5e recommendations concerningconstitutional provisions. ;y -1<, it was commonly accepted belie that the state bore ama&or responsibility or the welare o its citi#ens.

The leaders o the independence movement made no distinction between the positiveand negative obligations o the state. These were the two classes under which the basic rightso the 'ndian citi#en had been grouped in the Constitution o 'ndia.The proposal drated by theConstitutional advisor, ;.B. 8au, was accepted by the SubFCommittee and classied asundamental rights including right to property and directive principles in Part ''' and part 'I,respectively. 'n Pro. >.T. Shahs drat Constitution, a undamental right to property wascontemplated to be guaranteed. 't not only guaranteed the right to property but also allowedreasonable restrictions on the right. %rticle J was prepared by the subcommittee onundamental right D also specically guaranteed the right o property and restricted the powero the state to ma5e reasonable expropriation or public purposes only. 't also guaranteed &ustand ade$uate compensation or such expropriation. The drat report o the subFcommittee

ormulated ve specic rights in which the right to ac$uire property was one. This wascontained in clause 1 which included right to reedom o movement throughout the )nion, toreside and settle in any part o the union and to allow any occupation, trade, business orproession. The other our rights were embodied in clause -.



Khen the subFcommittee reFassembled on %pril 1, -1< to reconsider the dratclause o %lladi >rishnaswami %yyarF initiated the discussion on the necessity or imposinglimitations on the right to reedom in situations o grave emergency and danger to thesecurity o the state. The subFcommittee decided to bring the ve rights in the two dratclausesF clauses - L 1F under a single provision. The consolidated provision constitutedclause 4 o the report o the subcommittee o which sub clause / dealt with the right toproperty. Subse$uently, the entire clause was modied by the amendments o ?r.

;.8.%mbed5ar and %lladi >rishnaswamy 'yyar incorporated as clause : with subclauses e/and / with the urther conse$uential change that subFclause d/ and / were renumbered asd/ L e/ respectively. Khen clause : came up or consideration beore the Constituent%ssembly on %pril 04, -1<, HH", Bicholas 8oy pointed out that proviso to subFclause e / wasput in purposely in order to saeguard the landed and other interests o minorities and tribalpeople. !e pressed or the omission o the word Mreasonable so as to exclude the &udicialreview. 'ntervening in the debate, Hawaharlal Behru supported the deletion o the wordMreasonable or the proviso to sub clause e/ "unshi moved three amendments. The thirdamendment proposed that subFclause e/ which guaranteed the right *to ac$uire property+etc., should be so amplied as to cover also the right to *hold or dispose o+ property. Clause- o the interim 8eport o the %dvisory Committee provided that the state cannot ac$uireproperty or public use unless the law provided or the payment o compensation. Khile

redrating the constitution clause :e/ and clause -/ became clauses 7/ / and 27. 'n Hanuary -1: once again it was renumbered as %rts.0/ and 21.%rticle 0 read/ Sub&ect to the other provisions o this %rticle, all citi#ens shall have the right @@./ toac$uire, hold and dispose o propertyA and @@..2/ Bothing in SubFclauses d/, e/ and / o the said clause shall efect the operation o anyexisting law, or prevent the state rom ma5ing any law, imposing restrictions on the exerciseo any o the rights conerred by the said subFclauses either in the interests o the generalpublic or or the protection o the interests o any aboriginal tribe.%rticle 21 read 2 N/ Bo person shall be deprived o his property save by authority o law.2/ Bo property, movable or immovable, including any commercial or industrial underta5ingshall be ta5en possession o or amount o the compensation or species the principles onta5ing o such possession or such ac$uisition, unless the law provides or the payment o compensation or the property ta5en possession o or ac$uired and either xes the amount o compensation, or species the principles on which, and the manner in which, thecompensation is to be determined.

The committee was o the opinion that no protection to any minority group was necessary inthis %rticle.0/ Bothing in clause 2/ o this %rticle shall afect Da/ The provisions o any existing law, orb/ The provisions o any law which the state may hereater ma5e or the purpose o imposingor levying any tax or or the promotion o public health or the prevention o danger to lie or

property. The %rticle, as so amended, was nally reFnumbered by the ?rating Committee at the stageo revision as %rticle - o the ConstitutionN/ %ll citi#ens shall have the rightD/ to ac$uire, hold and dispose o property, and...2/ Bothing in SubFclauses d/, a/ and / o the said clause shall afect the operation o anyexisting law in so ar as it imposes, or prevent the state rom ma5ing any law imposing,reasonable restrictions on the exercise o any o the rights conerred by the said subFclauseseither in the interests o the general public or or the protection o the interests o anySchedule Tribes. %s opinions were divided on a guaranteed right to property when the

&ustiability on the airness o compensation came or consideration. Sardar Patel said that nodiscrimination should be made and compensation in all cases should be made &ustiable.Behru thundered against inclusion o right to property under undamental right urging that in

the history o man notions o property had changed rom time to time and thereore the rightto property should not be included as a undamental right. !owever, the right to private property was sought to be given constitutional protectionin %rticle 21 o the ?rat Constitution. "unshi in his drat o the undamental rights included aclause that no person would be deprived o his lie, liberty or property D without due process



o law. %lthough many assembly members rst approached the due process, experience o the).S. Constitution ma5ing soon taught them that it was intimately connected with two veryimportant problemsN with the expropriation o property and compensation or it, and withpreventive detention. The expression *due process o law+ in relation to property rights was considered by thesubFcommittee on (undamental 8ights on "arch 29, -1<. Two days later the membersreinorced their earlier decision providing that no private property could be ac$uired or publicuse unless the law called or the payment, according to principles previously determined or

&ust compensation or the property ac$uired. Khen this matter went to the %dvisoryCommittee, Govind Iallab Pant said that i the Clause M&ust compensation was adopted, themeasures or the ac$uisition o private property or public purpose might be challenged incourts on the ground o inade$uacy o compensation and it would be held up the cases andawaiting or nal verdict o the Supreme Court which might ta5e several years, thereore, allsocial progress could be brought to a stand nil. !e urther, observed that the word Mpublic useis ambiguous and thereore, i this included governmental as well as social purpose it wouldcreate diEculties by re$uiring the state to pay ade$uate compensation. 8a&gopalachari saidthat the $uestion o &ustness o compensation will go to the courts with the result thegovernmental unctioning will be paraly#ed. %ccording to %yyar, the word MCompensationcarried with it the idea o MHust compensation. ' the word M&ust was 5ept, every case will go tothe (ederal Court. Thereore the word M&ust was to be dropped. =ven though some o the

members did not wish to support this provision, according to them compensation itsel meant &ust and air compensation. 8egarding #amindari abolition, they said that it would be unairnot to give #amindaris &ust compensation. Closing the debates Sardar Patel observed that the discussion had gone on a wrongtrac5. 't was not correct to assume that the ob&ect o the clause was to provide or theac$uisition o #amindaris, as by the time the clause became law most o the #amindaris wouldhave been li$uidated. Compensation would be paid or property ta5en, and there would be noexpropriation. 'n the light o this explanation, the clause was adopted by the assembly withoutany alteration.Khen the ?rat Constitution was circulated or eliciting opinion, a number o amendments and suggestions were received rom the members. )ltimately ater great deal o consultation, the drating committee brought orward a compromise redrat o %rticle 21. Theamendment was moved in the constituent assembly on September 4, -1-, by HawaharlalBehru who observed at the outset that although the %rticle had given much discussion anddebate the $uestions involved were relatively simple. !e said that there were two approachesone rom the point o view o the individuals right to property and the other rom that o thecommunitys interestDbut these two approaches did not necessarily conict with eachother.Behru urther said that the drat %rticle was the result o a great deal o consultationand the result in act o the attempt to bring together and compromise various approaches tothe $uestion. !e analy#ed the salient eatures o the drat as N. There was no $uestion o any expropriation without compensation so ar as the Constitutionwas concerned A2. ' property was re$uired or a public use, the state shall pay compensationA0. The principle on which and the manner in which compensation shall be determined and

paid shall be laid down by law A1. Khen property was ta5en by the state or a public use air and e$uitable compensationshould be paid. ;ut here uture millions o people may be afected. Thereore the ultimatebalancing ma&ority can only be the sovereign legislatureA7. Khile xing the amount o compensation or speciying the principles under which or themanner in which compensation was to be determined the parliament should be the nalauthority and the &udiciary could not come into picture unless there was Ma gross abuse o thelaw or Ma raud on the ConstitutionA9. (inally, in the case o ;ills pending beore the legislature o a state, the &udiciary could haveno intererence.

?ealing with the $uestion o land, Behru said that the Oamindari institution in 'ndia, isthe big estate system, should be abolished and in this case no &udge and no Supreme Court

stand in &udgment over the sovereign will o parliament which represents the will o the entirecommunity. !.I. >amath, %lladi >rishnaswami %yyar, >.". "unshi and "rs. 8enu5a 8ay urgedthat the power to determinecompensation should be exclusively vested in the legislature whose decision should not beopen to challenge in any court and with this ob&ect in view they suggested certain



amendments to clause 2/ o %rticle 21. %ccording to "rs. 8enu5a 8oy regarding $uantum o compensation the legislature will have the supreme voice. 6n the other hand, Tha5urdas;hargava and "ahboob %li ;aig elt that it is not onlynonF&usticiable it, went against the right to property as recogni#ed under drat %rticle

Thereore they supported the idea to pay proper and air compensation. Similar views alsoexpressed by Ba#iruddin %hmed and Haspat 8oy >apoor. 8egarding clause 0/ o %rticle 21,there was not much discussion on it. 'n act it ofered them an additional saeguard in as much as it re$uired provincial

bills providing or compulsory ac$uisition o private property to receive the assent o thePresident.0 Clauses 1/ and 9/ caused great resentment among the propertied interests aswell as their opponents.8egarding clause 7/ it was not discussed much. 't was commonly assumed that the State hasthe inherent right to exercise those powers which are necessary to secure peace, order andpromote the health, morality and convenience o the people. >apoor moved an amendmentwhere by 3aws relating to evacuee property was sought to be exempted rom there$uirements o clause 2/ o %rticle 21. "unshi, who replied to the debate at the re$uest o Pandit Hawahalal Behru, called or the re&ections o all these amendments. %ll the amendmentswere negative and the %rticle as moved by Pandit Behru, with a ew verbal amendmentsemanating rom Shri >ala Ien5ata 8ao and >apoor were approved and nally became %rticle0 o the Constitution 02 which readN

/ Bo person shall be deprived o his property save by authority o law2/ Bo property, movable or immovable, including any interest in, or in any company owning,any commercial or industrial underta5ing, shall be ta5en possession o or ac$uired or publicpurposes under any law authoring the ta5ing o such possession or such ac$uisition, unlessthe law provides or compensation or the property ta5en possession o or ac$uired andeither xes the amount o the compensation, or species the principles on which, and themanner in which, the compensation is to be determined and given.0/ Bo such law as is reerred to in clause 2/ made by the legislature o a state shall haveefect unless such law, having been reserved or the consideration o the President, hasreceived his assent.1/ ' any ;ill pending at the time o commencement o this Constitution in the legislature o astate has, ater it has been passed by such legislature, been reserved or the consideration o the President and has received his assent, then, notwithstanding anything in this Constitution,the law so assented shall not be called in $uestion in any court on the ground that itcontravenes the provisions o clause 2/A7/ Bothing in clause 2/ shall afectFa/ the provisions o any existing law other than a law to which the provisions o clause 9/apply, orb/ the provisions o any law which the state may hereater ma5eFi/ or the purpose o imposing or levying any tax or penalty, orii/ or the promotion o public health or the prevention o danger to lie or property, oriii/ in pursuance o any agreement entered into between the Government o the dominion o 'ndia or the Government o 'ndia and the Government o any other country, or otherwise, with

respect to property declared by law to be evacuee property9/ %ny law o the state enacted not more than eighteen months beore the commencemento this Constitution may within three months rom such commencement be submitted to thepresident or his certication i it is certies, it shall not be called in any court on the groundthat it contravenes the provisions o clause 2/ o this %rticle 0 or has contravened theprovisions o sub section 2/ o section o the Government o 'ndia %ct, -07.

Constitutional Perse!ti"e o# i$%t to Proert&

%ter independence, no (undamental right has caused so much trouble and has givenso much o litigation between the government and citi#ens as the property right. The reason isthat the central and state governments have enacted massive hysteron o laws to regulateproperty rights. (irst, the government undertoo5 to reconstruct the agrarian economy,interalia, by trying to coner right to property on tillers, abolition o #amindaris, giving securityo tenure to tenants, xing a ceiling limit on personal holding o agricultural land andredistributing the surplus land among the landless. Secondly, in the area o urban property,measures have been ta5en to provide housing to the people, clearance o slums and planning,



control rents, ac$uire property and impose a ceiling on urban land ownership etc., Thirdly,government has underta5en to regulate private enterprises and nationali#ation o somecommercial underta5ings. These various legislative measures have been underta5en toefectuate accepted goal o establishing a socialistic pattern o society.!ence %rticles 001 and -// 07 were repealed. !istorical evolution and demise o repealed %rticles 0 and -// are still relevant or the understanding o constitutionaldevelopments o property right. Since the commencement o the Constitution undamentalright conerred by %rticle 0 and %rticle -// has been modied by six times by the

constitutional amendments. The rst amendment added two explanatory %rticles 0F% L 0F;to the ConstitutionA the ourth amendment amended clause 2/ o %rticle 0, added clause2%/ to the same %rticle, inserted new provisions in %rticle 0F% and enlarged the ninthscheduleA the seventeenth amendment urther elaborated the denition o Mestate in clause2/ o %rticle 0F%A and the twenty th amendment amended %rticle 02/, added clause 2F;/and added a new %rticle 0FC. 'n the orty second amendment %rticle 0FC was substituted bythe words * the principles specied in clause b/ or clause c/ o the %rticle 0-+ or the words*all or any o the principles laid down in part 'I o the Constitution+. %nd %rticle 0 asoriginally enacted was in the ollowing termsN%rt 0/ no person shall be deprived o his property save by authority o law.2/ Bo property movable or immovable, including any interest, in or in any company owning,any commercial or industrial underta5ing, shall be ta5en possession o or ac$uired or public

purposes under any law provides or compensation or the property ta5en possession o orac$uired and either xes the amount o the compensation, or species the principle on which,and the manner in which the compensation is to be determined and given.0/ Bo such law as is reerred to in clause 2/ made by the legislature o a state shall haveefect unless such law, having been reserved or the consideration o the president, hasreceived his assent.1/ ' any bill pending at the commencement o this Constitution in the legislature o a statehas, ater it has been passed by such legislature, been reserved or the consideration o thepresident and has received his assent, then notwithstanding anything in this Constitution, thelaw so assented to shall not be cancelled in $uestion is any court on the ground that itcontravenes the provisions o clause2/.7/ Bothing in clause 2/ shall afecta/ The provisions o any existing law other than a law to which the provisions o clause 9/apply, orb/ the provisions o any law which the state may hereater ma5e Di/ or the purpose o imposing or levying any tax or penalty, orii/ or the promotion o public health or the prevention o danger to lie or property, oriii/ 'n pursuance o any agreement entered into between the government o the dominationo 'ndia o the government o 'ndia and the government o any other country, or otherwise,with respect to property declared by law to be evacuee property.9/ %ny law o the state enacted not more than eighteen months beore the commencementbe submitted to the president or his certication, and thereupon i the president by publicnotication so certies, it shall not be called in $uestion in any count on the ground that it

contravened the provisions o clause 2/ o this %rticle or has contravened the provisions o sub section 2/ o section o the government o 'ndia %ct -07. Guaranteed to every citi#en o 'ndia the right to ac$uire, hold and dispose o property nally orty ourth amendmentrepealed the entire %rticle 0 and %rticle -// L inserted %rticle 044%.

'eanin$ o# Proert&

;eore discussing the constitutional protection given to the property rights, it will beuseul to examine the meaning attached to the term property and changes in its concept inrecent years.The term property as used in the 'ndian Constitution has been let undened andit is used in vague manner. 'ts scope would depend upon the narrow or wider construction o the courts might put upon it. The sub&ect o property right was considered by the SupremeCourt or the rst time in Chiranjit lal Chandhari v. Union of India. The $uestion wasregarding the right o ordinary share holder to vote at a general meeting as property. TheSupreme Court held that such right could only be regarded as property which could beac$uired, disposed o or ta5en possession o, this was with reerence to the %rticle -//.

This decision did not help much in solving the $uestion what protection property right carries.'n commissioner H.R.E v. LT Swamar 1 court observed that there is no reason why the word



property as used in %rticle -// o Constitution, should not be given liberal and widermeaning and should not be extended to those wellFrecogni#ed types which have the sigma orcharacteristics o property rights. 'n this case the oEce o a "ahat was held to be a propertybecause the elements o re and property o duties and personal interests blended togetherand neither can be detached rom the other. 'n Saghir Ahmad v. State of Uttar Pradesh 12 thesame learned &udge held that the right to play motor vehicles or gain is an interest is acommercial underta5ing and the prohibition o it amounts to deprivation o property within themeaning o %rticle 02/.

The above three cases are a ew representative pronouncements on the$uestion o meaning o property and they show a denite trend. The Supreme Court uses the wordproperty in the widest sense to include not only corporate but also the incorporate one. (romthis angle whatever has an economic value is considered as property and the decision inSaghir Ahmed v. State of Uttar Pradesh % signies the extent to which the concept o property can be dragged. ;ut the Supreme Courts decision did not ma5e it clear as towhether it was only the right o existing permit holders to ply the motor vehicle whichconstituted property or the right o every person who has the right to do business under%rticle -/g/. So ar as the acts o the case are concerned, it can be contended that thepetitioners ac$uired goodwill in the business is denitely property. ;ut the language o the

&udgment does not ma5e any distinction between the claims o existing permit holders andthose who have claim to get permit under %rticle -/g/.

Khen property is considered to be not only corporate but also incorporeal, the $uestionarises as to when one right out o the bundle o rights which is the sum total constituting thecorporal property will itsel be property. The answer to this $uestion has been dependent onthe mar5etability and exchangeability o the right in $uestion.' the right can be ac$uired, heldand disposed o separately rom the corpus to which it is attached, it will be property, butotherwise not. 6n this reasoning the right o shareholder to vote at a general meeting was notconsidered as property separately rom the share. This demonstrates the dependence o theconstitutional protection o property not only on the current ideal relating to property but alsoon the existing law which gives recognition to certain interests and provided or theirmar5etability. 'n the recent case o M.M Pathak v. Union of India the Supreme Courtreiterated and emphasi#ed that the word property cannot have one meaning in %rticle -//another meaning in %rticle 0 clause / still another in %rticle 0 clause 2/. Property musthave the same connotation in all the three %rticles property within the meaning o %rticle-// and clause 2 o %rticle 0 comprises every orm o property, tangible or intangible,including debts and choses in action, such as unpaid accumulation o wages, pension andcash grant. 't is to be noticed that the Constitution protects the right to property under two%rticles. )nder %rticle -//, the protection o which extends only to citi#ens which conersthe right to ac$uire, hold and dispose o property aErmatively sub&ect to reasonablerestriction under clause 7/ %rticle - i.e., in the interest o general public and schedule tribes.%rticle 0/ specically protects the right to property by imposing a prohibition on the stateagainst deprivation, except by authority o law. %rticle 02/ enunciates the re$uirements o alaw by which property is ta5en possession o or ac$uired or public purpose by the state.

La(s un)er Arti!le *+,A are sa"e) #ro- Arti!les +. an) +/

'n )nited States, right to property is protected by th amendment to the constitution in thesimple ormula that Mno person shall be @ deprived o his lie, liberty and property without dueprocess o law. 'n 'ndia ater independence the then Congress ruling party had repeatedlyexpressed its ob&ective to abolish all the intermediaries between the state and the tiller o thesoil with a view to improve the conditions o lie o the tiller who bore a heavy burden and alsoto promote the agriculture economy o the country. =ven beore the Constitution came intoorce some o the states had introduced legislations with a view to able to achieve thispurpose. )nder %rticle 01/ and 09/ legislations were enacted so that the power o eminentdomain exercised in respect o the intermediary landed interests but shall notbe sub&ected to the condition o payment o compensation provided under %rticle 02/.%rticle 07/ also protected certain existing laws other than those to which clause 9/ o the%rticle 0 applied. These provisions protecting property laws already enacted or on avail orthese purpose were however ound to be inade$uate.

This led to enact rst Constitution %mendment %ct,-7, which inserts %rticles 0F % and 0F;read with -th Schedule in the Constitution.19 The Constitution st amendment/ %ct, -7



added new provisions to the Constitution vi#, %rticles 0F% L 0F; along with Binth schedule.'t is indeed very important to 5now the history o introduction o %rticle 0F% and %rticle 0F;with ninth schedule to the Constitution. %rticle 0F; though a part and parcel o the chapter o undamental rights, does not by itsel give any undamental right. 6n the contrary, it putscertain restriction on right to property and it was believed that %rticle 0F; was an exceptionto %rticle 0. The then Government in power, soon ater the independence undertoo5 toachieve the ollowing tas5N/ To reconstruct the agrarian economy, interalia by trying to coner right o property on the

tiller, abolition o #amindars, giving security to tenure to tenants, xing a ceiling limit onpersonal holding o agriculture land and redistributing the surplus land among the landless.2/ 'n the area o urban property, measures have been initiated to provide housing to people,clearance o slums and town planning, control rents, ac$uire property and impose a ceiling onurban land ownership, etc.,0/ To regulate private enterprise and nationali#ation o some commercial underta5ings.'nteresting cases in the property law have arisen and important constitutional battle wereought in the Supreme Court due to eforts o the government to implement above policies inpractice. The most signicant controversy in these cases was the $uestion o payment o compensation or the property ac$uired. The protection o agrarian reorm legislations 1:rom abstractive litigations was one o the prominent policies o the Constitution ma5ers inmolding the Constitution as an instrument o social change and a lever o socio economic

&ustice. !owever, the inade$uacy o protection under %rticle 01/ L 9/ was soon reali#edater Patna !igh Court decision in Kameshwara Singh v. State of Bihar.% %bolition o #amindari came rst and oremost issue in economic programme o the ruling party. ;utpayment o compensation posed particularly a diEcult problem as it appeared to be beyondthe nancial resources o the country to pay &ust e$uivalent o the interest to be afected bysuch programme. To ensure that such legislation did not run into heavy weather, theConstitutionFramers provided a inbuilt saeguard in the constitutional provision relating toproperty right, vi#., the use o the word compensation in %rticle 02/ without any ad&ectiveli5e M&ust or Mreasonable, it was thought, would ensure that compensation need notnecessarily be ade$uate or e$ual to the property interests afected. 'n the course o time, thisprovision proved inade$uate to immune the land legislation rom challenge in courts. The word compensation came to be interpreted as M&ust compensation. 3egislationpertaining to land could also be challenged under other Constitutional provisions, especiallyunder %rticles 1 and -//. 6n this ideology some land legislations were declared invalid.;ihar, )ttar Pradesh and "adhya Pradesh executed certain legislations which may becompendiously be reerred to as #amindari abolition %ct. 'ssue was the Constitutional validityo ;ihar 3and 8eorms %ct,-74 which had abolished the #amindari system and provided orcompensation to be paid at twenty times in case o ac$uired land held by a poor man and atthree times in case o ac$uired land held by a rich person. The Patna !igh Court held thatalthough there could not be a challenge in the matter on ade$uacy o compensation in theview o %rticle 01/ and 9/, the statute was violative o %rticle 1 as it discriminatedbetween #amindars. 't is submitted that court did not appreciate reormative spirit o e$ualityas a policy underlying the statute because it wrongly accommodated e$uality as a legal spirit

under %rticle 1, it classied the #amindar, or the purpose payment o compensation, in adiscriminatory manner. The Patna !igh Court struc5 down certain provisions o the ;ihar 3and8eorms %ct -74, as unconstitutional. 6n the other hand, the %llahabad L Bagpur !ighCourts upheld the corresponding legislations in )ttar Pradesh L "adhya Pradesh respectively. Khile appeal against these !igh Courts were pending beore the Supreme Court, the)nion Government reali#ed the unanticipated diEculties which had arisen in implementationo land reorm measures. The central government anxious o dilatory litigation and hurriedlycame to rescue the state land reorm measures with a view to put an end to all litigationsrelating to land reorms and save the state land reorm measure by suitably amending theConstitution. Central government elt that i we wait or nal verdict o the &udiciary may be

&udicial pronouncements will be endanger the whole #amindari abolition programme. Toovercome this diEculty, then Prime "inister Behru introduced the Constitutional (irst

%mendment/ ;ill in 3o5 Sabha Provisional Parliament/ on :th "ay -7. =ight days ater itsintroduction, on 9th "ay -7 Pandith Behru moved the bill to amend the Constitution,nally, the ;ill was passed and received the assent o the President on : Hune -7<.

I-ortan!e o# Arti!le *+,A



%rticle 0F% smoothened the process o #amindari abolition, it did not immune the legislationdealing with other aspects o agrarian economy, e.g., xation o ceiling on agriculturalholdingsA the development o village panchayats or efective village planning andmanagementA the consolidation o ragmented holdings. 'n course o time, it was also elt thatprotection be extended to some types o industrial law as well, such as, temporarily ta5ingover management o industrial concerns. !ence, the scope o %rticle 0F% was extended bythe Constitution (ourth %mendment/ %ct, -77. by adding a ew more categories o deprivation o property which were to be immune rom an attac5 under %rticles 1, - L 0.

=xemption now extended rom the area o agriculture land reorm to industry L mining. %rticle0F% is still a part o the Constitution, with the repeal o %rticles '-l// and 0, much o therationale underlying in %rticle 0F% has disappeared. %rticle 0F%/ protects rom theoperation o %rticle 1 and -// a law providing or the ollowing NFa/ The ac$uisition by the state o any Mestate or o any rights therein or the extinguishmentor modication o any such rightsA or,b/ The ta5ing over o the management o any property by the state or a limited period eitherin the public interest or to secure its proper managementA or,c/ The amalgamation o two or more corporations either in the public interest or to secureproper management o any o themA or,d/ The extinguishment or modication o any rights o managing agents, secretaries andtreasurers, managing directors or directors, managers o corporations, or o any voting rights

o shareholders thereoA or,e/ The extinguishment or modication o any rights accruing by virtue o any agreement,

lease or license or the purpose o searching or, or winning, any mineral or mineral oil, or thepremature termination or cancellation o any such agreement, lease or license.

The protection o %rticle 0F%/ does not apply to a law made by a state legislature unless ithas been reserved or the Presidents consideration and has received his assent.Estate: The term Mestate in the %rticle 0F%/a/ raises its own problem o connotation. Theword estate does not have uniorm meaning throughout the territory in 'ndia its connotationvaries rom place to place. !ence, one uniorm denition o Mestate could not met thesituation. To achieve comprehensive agrarian reorm throughout the country it was eltnecessary to cover all shades o meaning o the term Mestate. %ccordingly %rticle 0F%2/a/explains the term Mestate would have the same meaning as is given to it by a local lawrelating to land tenures. Thus, to dene the word Mestate one has to loo5 to the relevant locallaw and adopt the denition given therein. =ven this strategy could not solve all the problems.

There could be cases where the local law does not dene estate. To cover such situation,%rticle 0F%2/a/ says that i in any area the term Mestate is not dened, then its locale$uivalent would be included therein. To determine whether a term used in a local law is anMe$uivalent o Mestate or not, the basic concept o Mestate has to be 5ept dened in section0F% 2/a/ in view which is that there must be land paying land revenue and held inaccordance with a law relating to land tenures. The term corresponding to this basic conceptmay be ta5en as the local e$uivalent o Mestate. %rticle 0F%2/a/ urther explains that theterm estate includes any &agir, inam or mua or other similar grant. ;eore the <th Constitutional amendment, %rticle 0F% could be invo5ed only to

protect the legislation dealing with Mestates in the sense o landed interest o #amindars,inamdars etc., Proprietors o the soil, who are not intermediates between the cultivator andthe state and who may pay land revenue directly to the state, hold their land under ryotwaritenure could not come under %rticle 0F%2/a/. Their land interests was not Mestate hence,%rticle 0F%/a/ had no application to them. (or this reason the >erala %grarian 8eorms %cto -9 was struc5 down in Karimbil Kunhikonam v. Kerala.Supreme Court held that thelocal law in South Canara so dened the term Mestate as not included ryotwari tenures and,thereore, a law see5ing to ac$uire ryotwari was not protected under %rticles 1 and -, and itcould be tested by %rticle 1. To overcome this diEculty two new clauses, %rticle 0F %2/a/ii/ and iii/ were added to the Constitution by seventeenth amendment to bring ryotwarisettlement within the term Mestate and also *any land held or let or purposes o agricultureor or purposes ancillary thereto, including waste or vacant land, orest land, land or pasture

or sites o buildings and other structures occupied by cultivators o land, agricultural labourersand village artisans.+ Thus, the connotation o Mestate has been urther broadened and theentire corpus o agrarian land legislation has now been immuni#ed rom challenge under%rticle 1 and -. !owever, i some land is not Mestate as dened in %rticle 0F%2/i/ and ii/,and is also not held or let or purposes o agriculture or ancillary purposes, then it alls



outside the scope o %rticle 0l%l/a/. The protection aforded by this provision is very broad. 't is a complete answer toany challenge under %rticles 1 and -. 't protects a law even i it is conscatory ordiscriminatory or compensation payable under it is illusory. Thus, tenancy legislation,howsoever drastic, is protected under %rticle 0F%l/a/.Prima acie, %rticle 0F%l/a/ appearsto be applicable to all 5inds o extinguishment or modication o estates or whateverpurpose. ;ut in Kavalappara Kottaraothil Kochunini v. State of adras the Supreme Courtread down this provision and held that its purpose was to acilitate agrarian reorms and,

thereore, it would protect only such legislation as had reerence to agrarian reorm.In ajravelu v. S!e"ial #e!ut$ Colle"tor a law providing or ac$uisition o land or urbandevelopment, such as slum clearance, housing schemes, creation o modern suburbs neartowns, could not be protected under %rticle 0F%l/a/ as it had no relation to agrarian reorm.'n Balmadies !lantation %td.& v. State of 'amilnadu it was held that while dealing withthe provisions o Gudalur Hanman =state %bolition and Conversion into 8yothwari/ %ct thatthe ob&ect and general scheme o %ct was to abolish intermediaries between the State andcultivator and help the actual cultivator by giving him the estate o direct relationshipbetween himsel and the state. The %ct, as such in its broad outlines was held to be ameasure o agrarian reorm and protected by %rticleF0F%. 'n the case o Kannan #evan (ills !rodu"e Co. %td.& v. State of Kerala theSupreme Court dealt with the provisions o >anan ?evan !ills 8esumption o lands/ %ct. 6ne

o the $uestion which arose was that whether the three purpose mentioned in section - o %ct,namelyNF/ reservation o lands or promotion o agriculture2/ reservation o lands or welare o agriculture population0/ assignment o remaining lands to agriculturists and agricultural reorm labourers could beprotected under %rticle 0F% o the Constitution. Court held that the above three purpose werecovered by the expression Magrarian reorms hence, section - o the %ct protected by the%rticle 0F% o the Constitution.'n )odavari Sugar Mills v. S.B. Karable , >hanna H. said *the ollowing principles can beinerred rom the decided case in order to nd whether an impugnedenactment or ac$uisitiono land is protected by %rticle 0F%.+/ %c$uisition o land by the state in order to en&oy the protection o %rticle 0F % should beor the purpose o agrarian reorm.2/ %c$uisition o land by ta5ing it rom a senior member o the amily and giving it to a &uniormember is not a measure o agrarian reorm.0/ %c$uisition o land or urban slum clearance or or a housing scheme in neighborhood o abig city is not a measure o agrarian reorm.1/ %c$uisition o land by the state without speciying the purpose o which land is to be usedis not a measure o agrarian reorm.7/ Schemes o rural development envisages not only e$uitable distribution o land but alsoraising o economic standard and betterment o rural health and social conditions in thevillages. Provisions or the assignment or hospitals, schools manure pits, tanning groundsensure or the benet o the rural population and as such constitute a measure o agrarian

reorm.9/ Provision or reservation o land to promote agriculture and or welare o agricultural

population constitutes, a measure o agrarian reorm. %grarian reorm is wider than landreorm.</ ' the dominant general purpose o the scheme is agrarian reorm, the scheme mayprovide or ancillary provisions to give ull efect to the scheme.:/ % provision xing ceiling area and providing or the disposal o surplus land in accordancewith the rules is a measure o agrarian reorm. The broad ob&ective o any legislation to agrarian reorms are maternally our vi#.,i/ to maximi#e agriculture output and productivityA ii/ a air and e$uitable distribution o agricultural incomeA iii/ increase in the employment o opportunities and iv/ a social orethical order.

%rticle 0F% o the Constitution does not protect the legislation which does not relate toagrarian reorm. The %rticle 0F% saved laws which provide or matters mentioned in clausesa/ to e/ thereo rom challenge under %rticles 1 or 0 notwithstanding anything containedin %rticle 0 o the Constitution97. 6nce law is ound to have relation with agrarian reorm, itis protected by %rt, 0l%/a/, no matter o how drastic its provisions may be. 'n Kerala .



)walior *a$on + Silk Mfg. Co. %td .a law enacted in -< vest orest lands in the statewithout compensation and, thus, lands having standing timber worth cores o rupees wereta5en away without any compensation. %t the same time, %rticle 0l%l/a/ provided protectionagainst %rticle 02/ which guaranteed compensation. The court held that the %ct valid under%rticle 0F%/a/ as a measure o agrarian reorm treating orest lands as agricultural lands.

The court emphasi#ed that once the legislative area is barricaded %rticle 0 %, it cannot bebreached %rticles 1, - and 0.Second Proviso to the Article 31-A(1)(a)-(e)

The seventeenth amendment while expanding the concept o Mestate, also imposedone limitation, I'O.A the land held by a person under his personal cultivation w hich is withinthe ceiling limit xed by the law, or any building or structure standing thereon or asappurtenant thereto, would not be Mac$uired by the state unless the law provides orcompensation which is not less than its mar5et value. This is the efect o the second provisoto the %rticle 0F%/. Thus, the land o the cultivators which is within the ceiling limit xed bythe law cannot be ac$uired without paying compensation at the mar5et value thereo. %ny lawcontravening this provision would be void. This provision see5s to coner some protection onsmall cultivators having small pieces o agricultural land or selFcultivation. ' their land isac$uired, they should at least be compensated at the mar5et value o the land. Thelegislature may however pay more i it so li5es. Though this proviso added by seventeenth constitutional amendment, it has been

placed at the end o clause it is, in act, a proviso to sub clause 0F%/a/, because itsapplication is conned to a law or the ac$uisition o an estate onlyA it is not concerned withany other sub clause o clause. Secondly, it is to be noted that though it is a proviso, it notonly constitute as a mere limitation on the legislative power, but also coners a correspondingundamental right, upon the person expropriated. Thirdly, under the second provisoDtheperson whose land is Mac$uired is to be Mcompensated being not less than that the mar5etvalue o the land, provided i/ such land is comprised in an estateA ii/ it is under his personalcultivationA and iii/ the $uantum o land so held by him is within the ceiling limit o holding.(urther, the second proviso inserted by seventeenth amendment, in the view o the act thatthe land held under a ryotwari settlement were brought under the purview o %rticled 0F %/a/. Prior to the insertion o the second proviso to the %rticle 0F%/ a/. The, nocompensation was payable in cases coming under %rticle 0F%/a/. The right o compensation under the 2nd proviso is better than the right conerred by the erstwhile %rticle02/, because it guarantees the right to the mar5et price which was not available under%rticle 02/.

This obligation remains as a substantive liability o the state, notwithstanding the repealed%rticles -// or 02/ and efect o the amendment is prospective in nature hence, it wouldnot afect any ac$uisition made beore 24F9F-91. % law in any case o ac$uisition violates there$uirement o second proviso shall be invalid.Section 27 o the 3and %c$uisition %ct has beenheld to be unconstitutional as regards the actual tillers o the soil. )nder the Proviso to %rticle0F%/, cultivators have the right to be paid ull mar5et value or their land ac$uired thestate cannot ac$uire the lands or less than the mar5et value.Supreme Court observed in

#.). Mahajan v. Maharashtra Q% great right is created in avour o the owners to getcompensation not less than the mar5et value o the lands, i the ac$uired land is within theceiling limit and in personal cultivation. This is a undamental rightA and is a creature o thesecond proviso to %rticle 0%/a/,+ In ,anabai -Smt v. %a/man )unaji 0anole held that section 7%2/ o the"aharashtra 8estoration o 3ands to Schedule Tribes %ct, -<7 could not be enorced againstthe persons who hold land which is under his personal cultivation and it is within the ceilinglimit prescribed by the state. !owever, in Shivgonda Anna Patil v. State of Maharastrathe Supreme Court held that absence o a provision regarding payment o compensation atmar5et rate or ac$uisition o excess vacant agriculture land was not violative o the secondproviso to %rticle 0F%/ o the Constitution. Second proviso to the %rticle 0F%/ does notdebar the legislature rom urther reducing the ceiling limit once it has been xed. 'n

Kunjakutti v. State of Kerala >erala 3and 8eorms %ct, -90, as amended by the >erala3and 8eorms %mendment/ %ct, -9-. Section :2 reduced the ceiling limit and re$uired tosurrender the land held in access o the limit xed by the %mendment %ct without payment o compensation at mar5et value. 6nce ceiling limit was changed by the amended %ct, thesecond proviso to %rticle 0F%/ must be held to reer only to the new ceiling limit xed by



the amended %ct. The ceiling limit originally xed, ceased to exist or uture the moment itwas replaced by the amended %ct. The prohibition contained in the second proviso operatesonly within the ceiling limit xed under the existing law at the given time.

Arti!le *+,B ea) (it% Nint% S!%e)ule

;rie introspection into parliamentary debates concerning the rst amendment led by

the then prime minister Behru reveals that the basic intention o the amendment was toprevent &udicial intervention with %cts intended to promote social change towards a moree$ual &ustice, and the constitutional goal o egalitarianism. %rticle 0F% creates doubt,whether %rticle 0F; illustrative o %rticle 0F%. The expression without pre&udice to the generality o the provisions in %rticle 0F;convey the massage protection mentioned in the %rticle is not limited to any particular %ct.(urther, the protection under %rticle 0F; is available against all the provisions o part ''' o the Constitution. ;ut in case o %rticle 0F% such protection is limited to agrarian legislationsonly and protection against to the %rticles 1 and -. !ence, %rticle 0F; is neither illustrativenor sub&ected to %rticle 0F%.<< %rticle 0F; states that validation o certain %cts L8egulations without pre&udice to the generality o the provisions contained in %rticle 0F%,none o the %cts and regulations specied in the ninth schedule nor any other provision

thereo shall be deemed to be void, or ever to have become void, on the ground that such%cts, regulations or provisions are inconsistent with or ta5es away or abridges any o therights conerred under part ''' o the constitution and notwithstanding any &udgment, decreeor order o any court or tribunal to the contrary, each o the said %cts and regulations shall,sub&ect to the power o competent legislation to repeal or amend it, otherwise continue inorce. Khen a competent legislature passes a law within the purview o clauses a/ to e/o %rticle 0F%, it automatically receives protection under %rticle 0F% with the result that thelaw cannot be hallenged in any court on the ground that any o its provisions violate %rticles1 and -. 'n so ar as %rticle 0F; is concerned, it does not dene the category o laws whichare to receive its protection, and secondly, going little urther than %rticle 0F%, it afords

protection to scheduled laws against all the provisions o the part ''' o the Constitution. Bo%ct can be placed in the ninth schedule except by parliament. !ence, ninth schedule is a parto the Constitution. Bo additions or alterations can be made therein without constitutionalamendments. Thereore by constitutional amendments all the Oamindari %bolitions laws wereplaced under the ninth schedule. Parliament enacted %rticle 0F% retrospectively, even though, may not be suEcientto ensure the validity o legislation which has already declared as void by the courts. 'nKameshwar Sing case court held that it is advisable to have a urther provision i.e., %rticle 0F; specially to bypass &udgments which stri5ing down such legislation. That seems to be thereason why %rticle 0F; was enacted and statutes alling within %ct 0F% were included in theninth schedule also. 'n order to implement the above policies and to have agrarian reorm and to

establish socialism, the government ac$uired property o citi#ens without payment o ade$uate compensation as i had no nancial resources to meet with the amount o compensation. Citi#ens used to challenge the concerned ac$uisition laws on the ground that itviolates undamental right to property. The &udiciary also tilt towards protecting propertyrights being undamental rights under %rticles -// and 0 now omitted by 11thconstitutional amendment/. To come out o this situation, to nulliy the &udgments o theSupreme Court and to uplit the campaign o agrarian reorms, the parliament introduced the%rticle 0F; and ninth schedule to the Constitution in addition to %rticle 0F%. %rticles 0% L0; represents a novel innovative and drastic techni$ue o constitutional amendments. 'timmune the laws against all attac5 on the ground o breach o any undamental rightsguaranteed under part ''' o the Constitution.

Nint% S!%e)ule , A Prote!ti"e U-0rella %rticle 0F;, does not by itsel give any undamental right. The %cts and regulationsplaced under ninth schedule shall not be deemed to be void or ever to have become void onthe ground o its inconsistency with any undamental right. 'n Kameshwar Singh case, the



Supreme Court said that no %ct brought under the ninth schedule could be invalidated on theground o violation o any undamental rights.

Kith the introduction o the above amendment, it became very easy or theGovernment to ac$uire property and to carryout diferent agrarian reorms. (irstly theac$uisition laws under the ear o being challenged were inserted in the ninth schedule by theconstitutional amendments and thereby the concerned laws were made immune romchallenge against any o the undamental rights guaranteed under part ''' o the Constitution.

Thus, it was not possible or a citi#en to challenge the constitutionality o any ac$uisition law

by which his land has been ac$uired because, it placed under ninth schedule. "eans %rticle0F; protected every legislation within the umbrella o the ninth schedule.%nother signicant characteristic eature o the %rticle 0F; is that it is having retrospectiveefect. %s a result o this any legislation earlier declared as void by the Supreme Court on theground that it violated any o the undamental rights, revives o such void legislation byinserting the legislation under ninth schedule by constitutional amendment. Supreme Court inState of Uttar Pradesh v. Brijendra Singh held that with this characteristic eature o %rticle 0F; it became very easy or the parliament to validate any %ct already declared asunconstitutional, simply by constitutional amendment putting such nconstitutional %ct underthe ninth schedule. once a legislation enters into the protective umbrella o the Binth Schedule itsconstitutionality cannot be challenged, this position was maintained till the decision o the

Supreme Court in Kesavananda Bharati case. 'n Kesvananda !harati v. State of Kerala thecourt by <N9 ma&ority held that Parliament can amend any provisions o the Constitutionincluding undamental rights under its constituent power %rticle 09:/ but it does not includethe power to alter the basic structure or rame wor5 o the Constitution. This is a historic

&udgment which spelt out a new Constitutional implied limitation on the Constitution. i.e.,parliament could not have power to amend the basic structure or ramewor5 o theConstitution. Thereore any legislations placed under ninth schedule by constitutionalamendment i, they afect or alter the basic structure o the Constitution could be $uestionedin a court o law. Hudgment o Kesvananda !harati case is prospective in nature. !owever,$uestion arises whether the %cts which are included in the ninth schedule on or ater 21th%pril -<0, would also en&oy the protection under %rticle 0F ;. This $uestion was answered bythe Supreme Court in 0aman *oa v. Union of India on or ater %pril 21, -<0 ninthschedule has been amended rom time to time or inclusion o various %cts L regulationstherein, are open to challenge on the ground that whether they are damage or destroy thebasic structure o the Constitution. Protection o %rticle 0F; is only available to original %ctsincluded in the ninth schedule beore 21th %pril -<0.

Similarly in Prag i"e and 1il mills v. Union of India the court held that theorders and ratications made to the %cts included in the ninth schedule are not entitled thesame protection o %rticle 0F; as they are not part o the original %cts. Though Kaman 8ao upheld the validity o all the insertions in the 'J schedule till%pril 21, -<0, i.e., the date o pronouncement o basic structure theory. %ter %pril 21, -<0there will not be such blan5et protection or the laws included in the ninth schedule.:9 (orour decades now, the landmar5 basic tructure doctrine has ormed the bedroc5 o 'ndias

constitutional &urisprudence. 't limits implied restriction on the amending power o theparliament/ the parliaments power to amend the Constitution.Has the Ninth Schedule been Misused 'n Minerva Mills case, ;hagavati H. in minority decision rightly pointed out that%rticles 0F% and 0F; were introduced to give protection to 3and 8eorms and Oamindariabolition legislation. The ninth schedule was not intended to include any other laws other thanthose covered by %rt 0F%. %lthough %rticle 0F; was originally adopted only to give a moredenite and assured protection to legislation already protected under %rt 0F%, it has beenutili#ed or totally diferent purposes in including all types o statutes which nothing to do withagrarian reorms. The words without pre&udice to the generality o the provisions, indicate thatthe %cts and regulations specied in the ninth schedule would have immunity even i %rticle0F% o the Constitution did not attract them. Thereore %rticle 0F; is not governed by %rticle

0F% and the protection under %rt 0F; is only in the context o the undamental rights. 't doesnot prohibit the challenge on the ground that the particular enactment is beyond thelegislative competency o the legislature. Till the decision o the Supreme Court in Keshwananda Bharati case, %rticle 0F;and the ninth schedule have been abused.:- 8ecently, the Supreme Court o 'ndia in its



landmar5 &udgment in I.*. Coelho -dead b$ %.*. v. State of 'amil 2adu !" # others244< 2 SCC'/ tried extensively to determine the nature L character o protection provided by%rticle 0F; to the laws added to the schedule by Constitutional amendments. Tamil Badu8eservation %ct provided 9- percent reservation or bac5ward classes has been passedthrough theConstitution <7th amendment/ %ct, --1 placed under the ninth schedule to theConstitution and thus to ta5e the legislation out o the ambit o &udicial review.!owever, the Constitutional validity o Tamil Badu 8eservation %ct was challenged beore theSupreme Court on the ground o landmar5 &udgment in Indra Sawhne$ case.

Supreme Court struc5 down the <7th amendment and held that 9-R o reservationto the bac5ward classes shall be arbitrary and is antithetical to the reasonable classicationpermitted under %rticle 1 o the Constitution. 8easonable classication is one o the basicstructure o the Constitution. %ter the repeal o property right %rticle 0/ rom part ''' o theConstitution, there was no &ustication or continuing with anything li5e the ninth schedule.

The whole o it should have been scrapped. Similarly, &udicial review over the legislation isthat the legislation which alter the basic structure o the Constitution belongs to the courtcannot be ta5en away by any subteruges li5e ninth schedule. The Hanuary, 244< &udgmentin ".R #oelho $dead% &' L.R v. State of Tamil (adu restoration that position.

I-ortan!e o# Arti!le *+,C

The TwentyFth %mendment o the Constitution in -< added a new clause, %rticle 0FC, tothe Constitution. 6riginally, %rticle 0FC runs as ollowsN

)(otwithstanding an'thing contained in Article *+ no law giving e,ect to the polic' of thestate towards securing the principles speci-ed in clause $&% or clause $c% of Article + shall &edeemed to &e void on the ground that it is inconsistent with/ or ta0es awa' or a&ridges an' of the rights conferred &' Article *1/ Article * or Article +*2 and no law containing a declarationthat it is for giving e,ect to such polic' shall &e called in 3uestion in an' court on the groundthat it does not give e,ect to such polic'4 . )p to -<, the position was that undamental rights prevailed over the directiveprinciples o state policy, and a law enacted to implement the directive principle could not bevalid i it conicted with a undamental right. %rticle 0FC sought to change this relationship tosome extent by conerring primacy on %rticle 0-b/ and c/ over %rticles 1, - and 0.-0 %new %rticle 0FC laid down that no law which declared that it was or giving efect to the

principle specied in clause b/ L c/ o %rticle 0- would be called in $uestion on the groundthat it is inconsistent with the undamental rights. Thus, %rticle 0FC was much broader than %rticle 0%. Khile %rticle 0% is limited tospecied topics, %rticle 0FC was not so limited. 't did not lay down specic heads which wereimmuni#ed but let a general power to the state legislatures to select any topic or adopt anymeasures which might purport to have some nexus with the ob&ectives under the %rticle 0-b/L c/. %rticle 0FC thus dealt with ob&ects with unlimited scope and it was added to provideprotection to nonFagrarian reorms legislation as %rticle 0% was limited to agrarian reormsonly. %rt 0C also contained a proviso that i a legislation contains declaration that it is orgiving efect to %rticle 0, 0- clauses b/ L c/ it cannot be $uestioned on the ground that itdoes not give efect to such policy. 't said that when the legislature declared that the law was

to give efect to the policy underlying under %rticle 0-b/ and c/, court would be debarredrom reviewing the same even i the law might not, in reality be concerning %rticle 0-b/ L c/.

The second part o %rticle 0FC originally sought to oust the &urisdiction o the courts. The validity o %rticle 0FC was challenged in Kesvananda !harati v. State of Keralait is also 5nown as undamental right case/. The Supreme Court held that basic eature o theConstitution cannot be altered even by constitutional amendment. ;y a ma&ority o <N9 it washeld that &udicial review is a basic structure o the Constitution. So last part o %rticle 0FCwhich excludes &udicial review, is invalid.This mean that a law enacted to implement %rticle0-b/ L c/ would not be challengeable under %rticles 1 L -, but the courts have power togo into the $uestion whether the law in $uestion does really achieve these ob&ectives or not. Bo legislation by its own declaration could ma5e the law challenge proo. The rulinghas several positive aspects. ;y upholding the rst limb o %rticle 0FC the legislature in 'ndiahave been conceded greater power to implement the socialist socioFeconomic programmes.'nvalidation o the second limb o %rticle 0FC avoids the possibility o the state legislatureimmuni#ing all sorts o law rom &udicial



review. (or a law to get the protection o %rticle 0FC, the court has to determine whetherthere is a connection between the law in $uestion and %rticle 0-. ' the court nds that thedominant ob&ect o the law is to give efect to the directive principle, it would accordprotection to the law under %rticle 0FC. ;ut i the law though passed seemingly orefectuating the directive principle is, in pith and substance, one or accomplishing anunauthori#ed purpose not covered by the directive principle, suchlaw could not protectedunder %rticle 0FC. 'n Mir3a!ur Moti Kureshi Kasab ,amat v. State of )ujarat a state %ct totally

banning slaughter o bulls and bulloc5s was challenged as imposing unreasonable restrictionsunder %rticle -/g/ read with %rticle -9/ in so ar as it banned slaughter o these animalsabove the age o 9 years when they become useless as drought animals. The state &ustiedthe %ct as being related to several directive principles, such as %rticles 0-b/, 0-c/, 1< and 1:and thus ruled that the impugned %ct had no nexus with any o these ?irective principles andreused the protection o %ct 0FC. The court held that the %ct was unconstitutional in so aras it banned slaughter o bulbs above the age o 9 years. 6n the other hand, in the *astri$a Mill Ma3door Singh v. State of Maharashtra/ the court ound a clear nexus between the impugned %ct and %rticle 0-b/.

The impugned %ct nationali#ed a spinning and weaving mills. The alternative to thenationali#ation would be Mli$uidation and unemployment o all the employees o theunderta5ing+. The %ct ensured continuance o the underta5ing as a productive unit and

continuation in employment o all the employees. Thereore, the impugned %ct undoubtedlywas or efectuating the directive principles in %rticle 0-b/ towards securing the ownershipand control o the underta5ing are so utili#ed as best to subserve the common good. Thevalidity o the %ct could not thereore, be assessed under %rticles 1 and - because o theimmunity conerred by %rticle 0FC.%rticle 0FC was amended, its scope was urther expanded, and it was sought to be mademuch more drastic, through the orty second constitutional amendment in -<9. The rst parto %rticle 0FC says that no law giving efect to any o the directive principles shall be deemedto be void on the ground o inconsistency with %rticles 1 and -. Thus primary is now soughtto be given to all the directive principles and not only to %rticle 0- b/ and c/ over %rticles 1and -. 'n Minerva Mills %td. v Union of India A "inerva mills was nationali#ed and ta5enover by the Central Government under the provisions o the Sic5 Textile )nderta5ingsBationali#ation/ %ct, -<1. The petitioners shareholders and creditors o "inerva "ills 3td./challenged the Bationalisation %ct on the ground o inraction o %rticles 1, -/ / and g/and %rticle 02/. The Government contended that legislation was protected by amendedscope o %rticle 0FC was ather enlarged byorty second amendment/. %rticle 0FC gives absolute primacy to ?irective Principles over(undamental 8ights. *The harmony L balance between undamental rights and directiveprinciples is an essential eature o the basic structure o the Constitution. !owever, thisharmony basic structure o the Constitution/ is discarded by orty second amendment andaccordingly the scope o %rticle 0FC was enlarged by orty second amendment was declaredas unconstitutional.+

'n Basantibai Mohanlal Khetan/ A the constitutional validity o the "aharashtra!ousing and ?evelopment %ct -<< was challenged and !igh Court declared the %ct as void.

The matter went to the Supreme Court and it held that the %ct is protected under %rticle 0FCrom being challenged as violative o %rticles 1, - and 0 o the Constitution as the %ct isintended to secure the ob&ects contained in %rticle 0-b/ o the Constitution. Khile considering the scope, ambit and validity o %rticle 0FC, the ma&ority &udgment inKesanvanda !harati, held that the rst part o %rticle 0FC was valid but the second part, vi#.,no law containing a declaration that it is or giving efect such policy shall be called in$uestion in any court on the ground that it does not give efect to such policy+ was held to beinvalid. 6nce the conditions mentioned in%rticle 0FC are ullled by the law, no $uestion o compensation arises because the said

%rticle expressly excluded not only %rticles 1 and - but also %rticle 0 which, by virtue o twenty th amendment has placed the word Mamount or the word Mcompensation in %rticle02/. 'n Bhim Singhji v. Union of India/ the )rban 3and Ceiling and 8egulation %ct, -<9, washeld to be protected under %rticle 0FC. The purpose o the law is to inhibit the concentration



o urban lands in the hands o ew persons and to achieve e$uitable distribution o such landsto sub serve the common good. The %ct is thus intended to achieve and implement thepurposes o %rticle 0- b/ and c/. ;ut section 2< thereo was held to be invalid as it imposeda restriction on the transer o any urban land with a building or a portion o such building,which was within the ceiling area. 'n Sanjeev Coke Mfg. Co. v. Bharat Coking Coal %td. $the Supreme Court consideredthe $uestion whether the Co5ing Coal "ines Bationali#ation/ %ct, -<2, was entitled to theprotection o %rticle 0FC. The court ruled that the %ct in $uestion promoted the policy o

%rticle 0-b/. 8eerence in %rticle 0-b/ to *material resources+ o the community is not onlyto the resources owned by the community as a whole but also to resources owned byindividual members o the community. 8esources o the community do not mean publicresources only but include private resources as well. The word QdistributeQ in %rticle 0- b/ hasbeen used in a wider sense so as to ta5e in all manner and method o distribution. 't includes,transormation o wealth rom private ownership into public ownership and is notconned tothat which is already public owned. 'n Sanjeev Coke Mfg. Co$ case the court also re&ected the argument that adiscriminatory law could not be protected under %rticle 0FC. *To ma5e it a conditionprecedent that a law see5ing protection under the %rticle 0FC must be nondiscriminatory orbased on reasonable classication is to ma5e the %rticle 0FC meaningless. ' %rticle 1 is notofended, no one needs to give any immunity rom an attac5 based on %rticle 1.+ Thus,

*where %rticle 0FC comes in %rticle 1 goes out.+ Bationali#ation laws have invariably beenheld to be valid under %rticle 0FC. ' once the conditions mentioned in %rticle 0FC areullled by law, no $uestion o compensation arises as %rticle 0 is expressly excluded. The$uestion o compensation becomes totally irrelevant. The court observed that *%rticle 0FCwas not merely a pragmatic approach to socialism but imbibed a theoretical aspect by whichall means o production, 5ey industries, mines, minerals, public supplies, utilities and servicemay be ta5en gradually under public ownership, management and control+. The state o Tamil Badu enacted Tamil Badu State Carriages and Contract Carriages%c$uisition/ %ct, -<0 to nationali#ed the entire transport service as also part o the entireassets o the units thereo. The %ct was held valid and i sub serves the ob&ect o %rticle 0-b/L 0FC which gives protective umbrella against %rticle 02/ the court cannot stri5e down the%ct merely because the compensation or ta5ing over the transport services or its units is notprovided or.%rticle 0F? was inserted by 12nd amendment but it was omitted by the 10 rd

amendment. 't sought to save laws which provided or prevention or prohibition o antiFnational activities or the prevention o ormation o or the prohibition o antinationalassociations. Such laws immune rom challenge on the ground o violation o %rticles 1, - or 0.Such immunity was conerred only to central laws. Thus the ma&ority at the centre could easilypave the path to dictatorship and on a party rule by outlawing other parties. (ortunately itwas omitted by the orty third amendment.

Di##eren!e Bet(een Arti!le +/1+21#2 an) Arti!le *+1+2

)nder %rticle -/ only citi#ens o 'ndia are entitled to claim the right, whereas under%rticle 0/ any person irrespective o citi#enship not to be deprived o his property without

authority o law. %rticle -/ relates to the rights o citi#en to ac$uire, hold and dispose o property though they are not in immediate possession thereo, but under %rticle 0/ theperson is already in possession o property andthen the deprivation is caused by the state. ;oth these %rticles were repealed by the (orty(ourth %mendment %ct, -<:.

easona0leness o# estri!tions

%rticle -// guaranteed to the citi#ens o 'ndia a right to ac$uire, hold and disposeo property. %rticle -7/however, permitted the state to imposed reasonable restrictions onthis right in the interest o general public or or the protection o the interests o anyscheduled tribe. The expression Minterest o general public in %rticle -7/ was heldsynonymous with public interest. 't did not mean that the interest o the public o the hole o

'ndiaA it meant interest o a Msection o the public. The term Mpublic interest very broad and itincludes public order, public health, morality etc. Khether a piece o legislation was in publicinterest or not was a &ustiable matter. % law designed to abate a grave nuisance and thusprotect public health or a law to protect the wea5er sections o the public, especiallymembers o low castes 1 was held to be in public interest.



% restriction to be Mreasonable means it must not be excessive or arbitrary. % ewexamples may be cited here to indicate how courts ad&udicated upon the reasonableness o restrictions under %rticle -7/. Sei#ure o goods rom the possession o a citi#en by a policewithout authority o law inringed %rticle -l//.The provisions in the Sea Customs %ct layingdown that i a public oEcer sei#es gold, diamonds, cigarettes, cosmetics in reasonable belie that, these are smuggled goods was held valid and then the burden to prove that they are notsmuggled alls on the person rom whom possession the goods have been sei#ed. Theprovisions has been made to chec5 widespread smuggling and so was held to be in the

interest o general public.Article 31(%) o& the 'onstitution Provides &or 'oulsor* Ac+uisition o& ,and The power o eminent domain is essential to a sovereign government. Theprovision o the th amendment to the Constitution o the )nited States is that privateproperty cannot be ta5en or public use without &ust compensation. The principle o compulsory ac$uisition o property is ounded on superior claims o the whole community overan individual citi#en, is applicable only in those cases where private property is wanted orpublic use or demanded or the public welare. %ccordingly, the right o eminent domain doesnot imply a right in the sovereign power to ta5e the property o one citi#en and transer it toanother, even or a ull compensation where the public interest will be in no way promoted bysuch transer. The limitation on the power o eminent domain is that the ac$uisition or ta5ingpossession o property must be or a public purpose has been expressly engrated in clause

2/ o %rticle 0 o the Constitution o 'ndia. Bo property shall be compulsorily ac$uired or re$uisitioned save or a public purpose.

The Supreme Court pointed out in State of Bihar v. Kameshwar Singh % case that %rticle02/, as it stood beore the amendment did not expressly ma5e, the existence o Mpublicpurpose a condition precedent to the power o ac$uisition, but it was an essential ingrediento eminent domain, and the clause proceeded on theassumption that ac$uisition can be or apublic purpose. %ter a scrutiny o the authorities, ?as H. in Kameshwar Singh case, reachedthe conclusion that no hard and ast denition o *public purpose+ can be laid down or itsconcept, it has been rapidly changing in all countries, he ormulated as a wor5ing denition,that whatever urthers the general interest o the community, as opposed to the particularinterest o the individual must be regarded as a public purpose. Parliament passed the rstamendment %ct adding two %rticles namely 0F% and 0F; with ninth schedule. %rticle 0F%gives protection to the agrarian laws, and %rticle 0F; gives protection to the laws which areplaced under ninth schedule o the Constitution irrespective o the sub&ect matter o laws.!owever having regard to the properties which were not covered by %rticles 0F% and 0F;i.e., right to compensation or the property ac$uired compulsorily or public purpose coveredby %rticle 02/ o the Constitution.- %lthough the ramers o the 'ndian Constitution chosenot to prex the word &ust or reasonable or Made$uate to the word Mcompensation in %rticle022/, this led to or the diEculty.%rticle 02/ as it stood beore its abrogation in -<: run as ollowsN)(o propert' shall &e compulsoril' ac3uired or re3uisitioned save for a pu&lic purpose andsave &' authorit' of a law which provides for ac3uisition or re3uisitioning of the propert' for an amount which ma' &e -5ed &' such law or which ma' &e determined in accordance with

such principles and given in such manner as ma' &e speci-ed in such law and no such lawshall &e called in 3uestion in an' court on the ground that the amount so -5ed or determined is not ade3uate or that the whole or an' part of such amount to &e given otherwise than in cash.4

The original %rticle 02/ was substituted by the twenty th constitutional amendment in-< and later %rticle 02/ has been repealed but discussion thereon has been included herepartly or its historical importanceA partly to illustrate &udicial activism and creativity ininterpreting the Constitution and partly because o a 5ind o tussle between the SupremeCourt and parliament, as the constituent body, on the $uestion o compensation or propertyac$uired. The controversy regarding ade$uacy o the payment o compensation was nallylaid to rest by the ourth amendment to the Constitution. 't curtailed the powers o the courtsto review law which authori#ed compulsory ac$uisition o property.

The ollowing cases gives bac5ground to the ourth amendment. 'n the rst three cases thestates concerned attempted to deprive the owner benets o ownership without ta5ing overthe property in $uestion.(irstly, in #warkadas Srinivas v. Shola!ur S!inning + 0eaving "o. %td .$the SholapurSpinning and Keaving co. %ct o -74 enabled the government to ta5e control o the property



o Sholapur Spinning L Keaving Company. The $uestion was whether the %ct was invalid as itdid not provide or compensation. The government did not ac$uire the property thereoregovernment was contended that %rticle 0 clause 2/ providing or compensation did notapply since only clause / applied any authori#ed law was suEcient to deprive a personproperty right. %s clause / authori#es any deprivation o property under authority o law. Thelearned chie &ustice would postulate that the limiting power thereo is correct byclause 2/.

The Supreme Court held that the Sholapur Spinning and Keaving Company %ct -74 was

void. %rticle 0 clause / and 2/ should be read together. So when there is deprivation o property, though there is no ac$uisition by the state clause 2/ applied and compensationbecomes payable. !ence, any deprivation o property should beN1) Authoried b* la / (Article 31 clause 1)(%) Necessitated b* a ublic urose / (Article 31 'lause %)(3) Sub0ect to a*ent o& coensation.1% Secondly, in Saghir Ahmed v. State of Uttar Pradesh % issue was based on the8oad Transport %ct, -7, which vested in the state government the road transport services inthe interest o the general public. Supreme Court held that the %ct was unconstitutional as itofended did not provide compensation/ the provisions o %rticle 02/ o the Constitution.

The act that passenger buses o the appellants had not been ac$uired or might not havebeen deprived but they were depriving their business o running buses or hire on public

roads. (ollowing the Shollapur case discussed above, the Supreme Court held that depriving aperson o his interest in a commercial underta5ing even though state did not ac$uire or ta5epossession o it, attracted the provisions o %rticle 02/. State of 0est Bengal v. Subodh )o!al Bose is the third case relevant to thepresent discussion. This case made it $uite clear that the obligation o paying compensationarose only where the state action resulted in the substantial deprivation o private property o the individual. The Supreme Court held that the abridgment o right was not amount tosubstantial deprivation o the right to property within the meaning o %rticle 0. The Kest;engal 8evenue Sales %ct :7- was declared void by the Supreme Court as it inringed %rticle0 o the Constitution. The &udgment inthis case shed new light on the extent o protection o property rights under the Constitution Patan&ali Sastri C.H. observed that the Constitutionmade a denite brea5 with the old order and introduced new concepts in regard to manymatters, particularly relating to word Mac$uisition which is used in narrow sense in theConstitution it might have used in same sense in pre constitutional legislation. 'n ?ecember, -70 %rticle 0/ and 02/ came or interpretation beore theSupremeCourt in State of 0est Bengal v. Bela Banerjee case. Provisions o the Kest ;engal 3and?evelopment and Planning %ct, -1: provides or ac$uisition o land or a public purpose andxed the limit on the amount o compensation payable or the land ac$uired so that it maynot exceed the mar5et value o the land on 0st ?ecember -19. 'mpugned %ct is apermanent enactment and lands ac$uired under it may be many years ater it came intoorce, the xing o the mar5et value on 0st ?ecember -19, as the ceiling on thecompensation without reerence to the value o the land at the time o the ac$uisition isarbitrary and cannot be regarded as due compliance with the letter and spirit o the

re$uirement o %rticle 02/ but state sought to support this ceiling o compensation on theground that the legislature had been given under %rticle 02/ the discretionary power to laydown the principles which should govern the determination o the amount to be given to theowner or the property ac$uired. Supreme Court held that such principles must ensurecompensation must be &ust e$uivalent o what the owner has been deprived o. These our cases especially last two cases led the ourth amendment by which secondproviso to the %rticle 02%/ was added. %rticle 02%/ states *where a law does not provideor the transer o the ownership or right to possession o any property to the state or to acorporation owned or controlled by the state, it shall not be deemed to provide or thecompulsory ac$uisition or re$uisitioning o property, notwithstanding that it deprives anyperson o his property+. The net result o the ourth amendment to the Constitution was tonulliy the decisions o the our cases discussed above.

'n Chiranjit %al4s case it was held that %rticle -/ / would continue until the ownerdeprived o such property by authority o law under %rticle 0. ' there was Mdeprivation o property under clause / o %rticle 0 by law, the citi#en was not entitled to compensate atall, while he was entitled to compensation i property was ac$uired or re$uisitioned underclause 2/ upon the point as to what is Mdeprivation there was conict. 'n Kochunni6s case



court made it clear that clause / dealt with deprivation o property other than ac$uisition orre$uisition as mentioned in the clause 2/ and there could be no ac$uisition or re$uisitionunless there was transer o ownership or a right to possession to the state or its nominee.'oarison o& 'lauses (1) # (%) o& Article 31 Clause / and 2/ are not the same. The ormer is the genus o which aspecies is reerred in clause 2/. 'n the clause 2/ o %rticle 0 deprivation is restricted toMta5ing possession there is no such restriction and deprivation therein relation to Many modeo deprivation. Clause / permits deprivation o whatever the 5ind except by authority o law.

?estruction o property in order to prevent re rom spreading will come under clause / andnot clause 2/. Clause / may be termed in mere parlance with Mpolice power o the state.Khile clause 2/ reers to the power o the eminent domain. Compensation is allowed only orthe latter category and not or the ormer. Thus i under Mthe police power there is aregulation or lettingaccommodation under the deence o 'ndia rules to enable eEcient prosecution o the war orthe maintenance o essential supplies and services no compensation is liable while clause 2/is a restriction upon the powers o the legislature clause / is not later is a limitation on theexecutive while the ormer is a restrain on the legislature. Clause / cannot be challengedexcept on the ground o legislative competence. % law arising under the clause 2/ to be validmust rst ulll the terms o clause 2/ unless it is saved by clauses 1/ and 9/ or %rticles 0F%and 0F;.

THE 3O D 4CO'PENSATION5 UNDE A TICLE *+162

Since the word Mcompensation occurred in %rticle 02/, rom the inauguration o Constitution,the courts had been aced with two critical $uestions. / Khat was the signicance o theword Mcompensation and 2/ Khat should be the role o the courts in this respect Thedevelopments in this regard could be discussed in three stages.

i2 7u)i!ial Interretation o# t%e (or) Co-ensation 0e#ore +/88

The word compensation in %rticle 02/ was not $ualied by any ad&ective li5e M&ustor Made$uate. Bevertheless, the courts too5 the position that such as omission wasimmaterial, and the word Mcompensation standing alone by itsel meant M&ust and Me$uivalentcompensation or the interest in the property ac$uired. 2his aroach as adoted in a nuber o& cases b* the Suree 'ourt vi.

(1) #warkanath Srinivas v. Sola!ur S!inning + 0eaving Co. %td .$(%) Saghir Ahmed v. State of Uttar Pradesh 13 (3) Sate of 0est Bengal v. Subodh )o!al Bose 134 ()State of 0est Bengal v. Bela Banerjee 135 2he court ehasied that6coensation7 eant 60ust e+uivalent7 to the roert* ac+uired and it is a 0usti8able atter hich the courts could ad0udicate uon. 2he sae rincile asalied in Madras v . #. 2amasiva$a Mudaliar. % "adras law providing or payment o compensation or ac$uisition o ligniteFbearingland on the basis o the land value on %pril 2:, -1<, irrespective o the date o ac$uisitionwas held invalid. The court held that ree#ing land value with reerence to a specied datedenied the landowners increment in land value since the specied date till the date o ac$uisition and this did not amount to Mcompensation as envisaged in %rticle 02/. Thus,beore -77, the Supreme Court had ta5en the position that a statute was liable to be struc5

down as inringing %rticle 02/ on the ground that Mcompensation provided by it wasinade$uate and compensation ought to be the &ust e$uivalent o the property o which aperson was deprived hence, ade$uacy o compensation was a &usticiable matter.ii) 9udicial Interretation o& the ord 'oensation &ro 1! to 1!51;eore ourth amendment to the constitution the Central Government became uneasy at the

&udicial insistence on payment o ull mar5et value or the property ac$uired as it thought thatit would place an onerous burden on the countrys slender resources and would throw out o year the envisaged socioFeconomic programme involving reconstruction o property relations.

Thereore, the Constitution (ourth %mendment/ %ct,-77, amended the %rticle 02/ with aview to ma5e the $uestion o Made$uacy o compensation as MnonF&ustiable, The courts werenow debarred rom going into the $uestion whether the $uantum o compensation provided

by a law or the property being ac$uired or re$uisitioned by the state was Made$uate or not. This amendment however ailed to exclude the courts completely rom thearea o Mcompensation. 'n -9, in Burrakur Coal Co. v. India, a law ac$uiring coalFbearingland provided compensation only or the land but not or minerals therein. The Supreme Courtreused to hold the law bad arguing that the $uestion o nonFpayment o compensation or



minerals reerred to ade$uacy o compensation in which the court could not go. Thispronouncement was in accord with what the ourth amendment was designed to envisage.;ut, thereater, the &udicial view underwent a change.

'n ajravelu v. S!e"ial #e!ut$ Colle"tor / the Supreme Court too5 the view that theamended %rticle 02/ still retained the word Mcompensation which meant that the meaningo the expression compensation as given to it in !ella !aner7ee case had been accepted.

Thereore, a law provide or ac$uisition or re$uisition o property should provide or a M&ustcompensation or what the owner was being deprived o. %lthough, under amended %rticle

02/, the principles prescribed under legislation the &ust e$uivalent compensation could notbe $uestioned on the ground o inade$uacy yet, i the principles laid down were not relevantto the value o the property ac$uired at the time o ac$uisition, then court could interveneand scrutini#e the ade$uacy o compensation or validity o the principles. Thus, *i the compensation is illusory, or i the principles prescribed are irrelevant toassesses the value o the property at or about the time o its ac$uisition+ then it could be saidthat the legislature had played a raud on the Constitution. The compensation given might notbe ade$uate, yet it should not be constitute as a raud on the legislative power. The court thusasserted a power o &udicial review on compensation in certain situations. 'n act, however,under the new norm, compensation could be less than the mar5et value o the propertyac$uired. The new ormula was somewhat diferent rom, rather less rigorous than, the ;ella;aner&ees view, but still the courts claimed a oothold in the area o compensation and did

not completely vacated the eld. 'n pursuance o this &udicial approach, in -9<, the Supreme Court declared invalidthe "etal Corporation o 'ndia %c$uisition o )nderta5ing/ %ct, -97 in Union of India v.Metal Cor!oration. %s it did not provide or the compensation within the meaning o %rticle02/. The "etalCorporation was ac$uired on 6ctober 20rd, -97 with a view to providing orthe ull development o the lending deposits at #awar 8a&asthan/ and or the expedientcompletion o the scheme underta5en by it. )nder the %ct, there are principles or valuation o its assets. / ac$uisition o unused e$uipments by the company which is in good conditionwere to be valued at the actual cost A 2/ the used e$uipment was to be valued at the writtendown value determined in accordance with the principles contained in the 'ncome Tax %ct.

The Supreme Court did not agree with the basis o cost price o the unused machinery when itwas ac$uired was relevant to the xing o compensation at the time o the nationali#ation o the company nor did the doctrine o written down value accepted in the 'ncome Tax %ct afordguidance or ascertaining compensation or the used machinery. Thus two principles regardingvaluation and compensation were irrelevant to the xation o the value o the machinery ason the date o ac$uisition. !ence the %ct was held invalid as it not providing compensationwithin the meaning o %rticle 02/.12 The law to &ustiy itsel had to provide or the paymento a M&ust e$uivalent o the land ac$uired or the principles laid down were relevant to xationo compensation and was not arbitrary then, ade$uacy o compensation could not be$uestioned in any court. The court however insisted that i the principles are relevant to thexing o Mcompensation, and are not Marbitrary, then the Made$uacy o the resultant productcould not be $uestioned in a court. The &udicial view appeared to have undergone some change in )ujarat v .

Shantilal . )nder the ;ombay Town Planning %ct,-77 a notication expressing intention o the government to ac$uire a plot o land was issued in -12A the actual ac$uisition too5 placein -7<, and compensation was assessed with reerence to its mar5et value in -12. This waschallenged on the ground that the value o the land determined with reerence to the date o declaration o the intension to ma5e the scheme not on the date o actual ac$uisition hence, itcould not be regarded as the M&ust e$uivalent o the property ac$uired. The Supreme Courtupheld the %ct because the principle or determining Mcompensation laid downtherein could not be said to be Mirrelevant to determination o Mcompensation, nor could thecompensation be regarded as Millusory.17 This decision corrected the view expressed in themetal corporation case, that even ater ourth amendment the expression *compensation+ in%rticle 02/ should continue to be interpreted as a M&ust e$uivalent o the property ta5enover by the state. Khile repudiating this extreme view, the principle was reiterated that the

illusory character o the compensation or the irrelevance o the principles o valuation was stillopen to &udicial review. The dichotomy o the &udicial views expressed in Metal Cor!oration and Shantilal case were that in the ormer case, the court laid emphasis on &ust e$uivalent o the propertyac$uired, and, thereore, i the law in $uestion specied principles or xing compensation



or the property ac$uired to achieve that ob&ect then the ade$uacy o the compensationwas not challenged in a court o law. 'n Shantilal case, the court repudiated the idea o &uste$uivalentA it now had emphasis on compensation and would intervene only i it wasillusory, or i the principles specied or the purpose were irrelevant. To appreciate Shantilalruling, it is necessary to remember that it is a wellFrecogni#ed principle o land ac$uisitionthat compensation is payable with reerence to its value on the date o notication ac$uiringthe land and not on the date the state ta5es actual possession thereo. !ence, it had touphold the law in Shantilal even i it involved dilution o the etal #orporation principle. The

Shantilal case thus restored much greater reedom to the legislature to order compensation inthe way it wanted or any property ac$uired. The scope o &udicial review was restricted to theextreme situation o abuse o legislativepower. The ull impact o this view is seen in the Bank 2ationalisation case. Thegovernment ac$uired the underta5ing o 1 named ban5s under ;an5ing Companies%c$uisition and Transer o )nderta5ing/ %ct -9-, The %ct laid down the principles orxation o compensation permitted the named ban5s to continue nonban5ing business and doeven ban5ing business outside 'ndia in those countries where government controlled ban5swere not permitted to operate. The %ct was struc5 down by the Supreme Court has as anunconstitutional by a ma&ority o to on the grounds that i/ the prohibition o ban5ingbusiness to the named ban5s was hostile discrimination orbidden by %rticle 1A ii/ the

principles laid down or xation o compensation were irrelevant and so what would bedetermined thereby was not compensation within the meaning o %rticle 02/A and iii/ therewas an indirect restriction upon the carrying on o nonFban5ing business which is oferedunder %rticle -//. This decision critici#ed on the ground that it runs counter to what theourth amendment to the Constitution is designed to achieve.

There is substantial truth in another criticism that the Supreme Court has oten beenchanging its view on compensation. 't naturally results into many diEculties in enacting socialeconomic legislations. ;ut because o %rticles 0F% L 0F;, socio economic legislation couldnot be $uestioned in court o law. 6nly ew types o laws not alling within the purview o %rticles 0F% L 0F; could be $uestioned under %rticle 02/. So long as right to property as aundamental right exists in the Constitution, it is the duty o the courts to apply it in ameaningul manner. The &udgment now clearly shows that %rticle -// would apply toac$uisition o property alling under %rticle 02/. Thereore, an en$uiry into thereasonableness o the Mprocedural provisions o an ac$uisition law will not be excluded. (orinstance Mi a tribunal is authori#ed by the %ct to determine compensation or propertycompulsorily ac$uired, without hearing the owner o the property, the %ct would be liable tostruc5 down under %rticle -//.+1:

iii2 7u)i!ial Interretation o# t%e 3or) Co-ensation a#ter +/9+

The &udicial view enunciated in the Bank 2ationali3ation case was not palatable tothe central government which thought that it run counter to what the ourth amendment o the Constitution was designed to achieve and would create diEculties in the way o governments socioFeconomic programme. %ccordingly, %rticle 02/ was reconstructed bytwentyFth constitutional amendment in -<.

The ma&or change efected in %rticle 02/ in -< was that substitute the word Mamount orthe word Mcompensation. The word Mcompensation had come to be interpreted by the courtsas &ust e$uivalent o the property ac$uired. ;ut the word Mamount had no such connotation.

The purpose o the amendment thereore was to dilute &udicial review o the $uantum o money ofered by the government in lieu o the property ac$uired by it. The amendment alsoclaried that the amount may be given wholly or partly otherwise than in cash. The tas5 o xing the amount, or laying down the principles on which it was to be paid, must bedischarged by the legislature itsel and this matter could not be let to the discretion o theexecutive. Thus, a legal provision leaving it entirety to the government that re$uisitionproperty at any rate xed by its discretion violated %rticle 02/ as it ailed to speciy theprinciples on which the amount was to be paid or the property ac$uired. The efect o the change made in %rticle 02/ by substitution o the word amount orcompensation came to be considered by the Supreme Court in Kesvananda Bharati v .Kerala. The broad efect o the multiple &udicial opinions delivered was broadly as ollowsNamount was not the same concept as compensation, and the court would not go into the$uestion o its ade$uacy. Bevertheless, Mamount could be Millusory or Marbitrary or grossly



low which would shoc5 not only the &udicial conscience but the conscience o prudent man. Though the amount need not be the mar5et value o the property ac$uired or re$uisitioned,yet it should have some reasonable relationship with the value o such property. 6n this view,a restricted &udicial review over the Mamount payable or property ac$uired was is possible.

THE CONCEPT OF PUBLIC PU POSE UNDE A TICLE *+162

)nder %rticle 02/, the state could ac$uire or re$uisition o property or a publicpurpose only. Thereore, a legislature had no power *to ac$uire property or a privateFpurpose+. ;y virtue o =ntry 12, 3ist ''' o Seventh Schedule, a legislature could ac$uire

property even without a public purpose, but Q%rticle 02/ would be an obstacle or such law. That obstacle would disappear i the law ell within thecompass o %rticle 0%. Since the existence o Mpublic purpose was an essential condition orac$uiring or re$uisitioning o property under %rticle 02/, a law enacted or the Mpurpose, buthaving no Mpublic purpose to support it, was unconstitutional. Khether a public purposeexisted or not was &usticiable matter as stated by the Supreme Court in State of Bomba$ v.*. S. 2anji $ Qprima acie the Government is the best &udge as to whether Mpublic purpose isserved by issuing a re$uisition order, but it is not the sole &udge. The courts have the

&urisdiction and it is their duty to determine the matter whenever a $uestion is raised whethera re$uisition order is or is not or a Mpublic purpose. The courts however adopted a veryliberal attitude on the $uestion o public purpose, and it was rare indeed or a court to holdthat an ac$uisition o land was not or public purpose. The courts showed a good deal o

deerence on this matter to the legislative and executive determination and &udgment, but,nevertheless, ultimate power vested in courts.

%ccordingly, a provision excluding the &urisdiction o the courts rom this area, andma5ing decisions o either the executive or the legislature as to Mpublic purpose nal andconclusive was held ultra vires under %rticle 02/. Section 90/ o the 3and %c$uisition %ct,:-1, provides that the declaration by the State Government the existence o public purposeor land ac$uisition *shall be conclusive evidence that the land is needed or public purpose.+

This provision would have been ultra vires %rticle 02/ had it not been protected under%rticle 07/a/. This provision completely barred &udicial review o public purpose o anac$uisition under the %ct except when it is Mcolourable. Beither the meaning nor theexistence o public purpose under this %ct was &ustiable. The nding o the government

under section 90/ was conclusive not only with regard to public purpose but also regarding itsneed and governments satisaction thereon. !owever, where ac$uisition would not serve anypurpose, or where it was or a Mprivate purpose, it could be challenged as being Mcolourable.

T%e I)eolo$& o# Pu0li! Purose

)nder %rticle 02/, the state could ac$uire or re$uisition property or public purpose only. Theconcept o Mpublic purpose connotes public welare. Kith the onward march o the concept o socioFeconomic welare o the people, notions as to the scope o general interest o thecommunity are ast changing and expanding. The concept o Mpublic interest is thus elasticand not static, and varies with time and needs o the society. Khatever urthers the generalinterest o the community as opposed to particular interest o the individuals, may beregarded as public purpose. Khether a public purpose existed or not was a &usticiable matteras stated by Supreme Court in State of Bomba$ v. 2anji . provision excluding the

&urisdiction o the courts rom this area, and ma5ing decisions o either the executive or thelegislature as to the public purpose nal and conclusive was held ultravires %rticle02/.% ew example o what held &udiciary as Mpublic purpose or which land could validly beac$uired under %rticle 0 2/ are Ni. (inding accommodation or an individual having no housing accommodation.ii. !ousing a staf member o a oreign consulateAiii. %ccommodating an employee o a road transport corporation F a statutory bodyAiv. %ccommodating a government servantAv. Bationali#ation o landAvi. %grarian reorm abolishing intermediaries between government and tillers o the soilAvii. =stablishing an institution o technical educationA

viii. Constructing houses or industrial labour by a companyAix. Promoting coFoperative housing societies in ?elhi to relieve housing shortageAx. Planned development o ?elhiAxi. ?evelopment o housing, shopping and industrial sitesA

P ESIDENTS CONSIDE ATION FO LA3S OF AC;UISITION



'n addition to the aboveFmentioned conditions imposed by %rticle 02/, a law made by astate legislature, and alling within the purview o %rticle 02/, has to ulll yet anothercondition vi#. it was not to be efective until it had been reserved or the Presidentsconsideration and had received his assent.9< This was the efect o %rticle 00/. Thepurpose underlying in %rticle 00/ was to bring the state legislation providing or ac$uisitionor re$uisition property under the central government control. So as to ensure that no un&ustexpropriated legislation enacted by a state.Article 31 'lause ()

Clauses 1 and 9 o %rticle 0 is an exception to %rticle 02/. The present clause 1/ deals withpending ;ills i, a state legislates not union parliament/ relating to ac$uisition o property atthe time o the commencement o the Constitution. 6nce such a ;ill is passed by thelegislature and assented by the president it is immune rom the *compensation clause+ o %rticle 02/. % law covered by %rticle 0 clause 1 will be considered valid even though it doesnot comply with the re$uirement o ade$uacy o compensation.Article 31 'lause ()

This clause provides as an exception to the application o clause 2/ o %rticle 0. Thus %rticle02/ cannot apply toNF. the provisions o any existing law other than a law to which %rticle 0/ applies. The latterstipulates that laws enacted more than eighteen months beore the commencement o theConstitution shall not be afected by %rticle 02/.

2. a/ the provisions o any uture statute o taxation or penaltyA or b/ law or promotion o public health or prevention o danger to lie or propertyA or c/ law which is the result o agreement between the government o 'ndia and any other country with reerence to evacueeproperty. 'n respect o the above categories o laws, courts shall have no power to examinetheir validity on the ground o want o provision or compensation. 'n Kamshwer Singh v.State of Bihar court held that %rticle 01/ does not debar the court orm $uestioning thelaw on the ground o public purpose.Article 31 'lause (4) This clause provides that i a preFconstitution statute has been enacted within :months beore the Constitution came into orce beore 29th Han -74/ and it was submittedor the Presidents certication by 29th Han -74, and was so certied, such statute cannot be$uestioned in any court on the ground o contravention o ade$uacy o compensation underclause 2/ o %rticle 0. 't will be seen that clause 1/ o %rticle 0 applied to the bills pendingin the state legislature at the time o the commencement o the Constitution while clause 9/pertains the laws enacted by the state within eighteen months rom the commencement o the Constitution.

Interretation o# Arti!le *+ an) Arti!les +. an) +/1+21#2 o# t%e Constitution

%rticle 02/ did not remove the bar o %rticle 1. % law could be challenged on thebasis o discrimination in the matter o payment o compensation. %rticle 02/ precluded thechallenge on ade$uacy o amount but not on discrimination, i any, law made discriminationbetween owners o land under li5e circumstances and conditions. (or example, a personwhose land was ac$uired or construction o a hospital or a school could not be paid lessamount than one whose land was ac$uired or any other lucrative pro&ect. Classication could

not be made or the purpose o payment o compensation on the basis o the public purposeor which the land was ac$uired. %s regards the owner, he lost his land and it was immaterialor him whether his land was ac$uired or one or the other public purpose.

The $uestion concerning the interFrelationship between %rticles -// and 0 createddiEculties and there were several changes in the &udicial view in this area. 'nitially, the &udicialview was that %rticle -// would not apply to a law Mdepriving, as distinguished rom,Mrestricting a citi#en o his property and the validity o law depriving a person rom hisproperty could be ad&udged only under %rticle 0 and not under %rticle -l//. ' anac$uisition law was valid under %rticle 02/, the ac$uisition o property would be &ustiedunder, the law, and once the property ac$uired there was no property let in respect o which%rticle -//could apply. This view underwent a change in KK Ko"kunni v. State of Madras. The actualsituation was that the petitioner was the holder o the >avalappara Sthanam having extensiveproperties attached to it. These properties constituted an impartial estate in which themembers o the amily had no interest. The "adras legislature enacted a law declaring thatsthanam property having certain characteristics would be deemed to be tarwad property. The



validity o the %ct was challenged under %rticle -//. The Supreme Court held that the %ctby treating sthanam property, by a ction o law, as tarwad property, deprived the sthaneeso their properties without compensation. The law was thus expropriator in character and on its ace stamped withunreasonableness also, no public interest was served by the law. Thus, it was held bad under%rticle -// and was not saved by %rticle -7/. The court explained the reason to apply%rticle -// to Mdeprivation o property alling under %rticle 0/ as ollowsN The ourthamendment to the %rticle 02/ in -77 had changed the position. ;eore this amendment,

%rticle 0 / and 2/ were regarded as not mutually exclusive in scope and content, but asdealing with the same sub&ectFmatter, vi#., ac$uisition or ta5ing possession o propertyreerred to in %rticle 02/. 6n this view, %rticle 0 was a selFcontained provision providing ora sub&ect diferent rom that dealt under %rticle - and, thereore, to harmonise the %rticles- and 0, and to avoid overlapping between these two provisions, %rticle -// could notbe applied to the Mdeprivation o property but such an analogy could not be drawn ater theourth amendment. ;ecause %rticle 0/ and 02/ came to deal with two diferent conceptsN%rticle 0/ dealt with Mdeprivation o property by authority o law, and %rticle 02/ readwith %rticle 0'2/%/ which dealt with Mac$uisition and re$uisition o property.

The law depriving a person o his property, as envisaged by %rticle 0/, should bea Mvalid law which meant that it should not inringe any other undamental right including%rticle -//. The Kochunni ruling meant that the legislative power to deprive a person o

his property came to be controlled by %rticle -//, and the reasonableness o the law couldbe ad&udged under %rticle -7/. ?eprivation does afect the right to hold, ac$uire andpossession o property. The biggest advantage o the %rticle -// was that proceduralnorms o a law depriving a person o his property could be ad&udged or their reasonableness,and the law could be declared as void i it lac5ed proper procedural saeguards against theexercise o administrative power.

The Supreme Court sought to away with this anomaly in the celebrated !an0 (ationali8ation case. 6verruling its previous pronouncements, the court held that %rticle -// would apply to the ac$uisition o property alling under %rticle 02/ and thereore, an*en$uiry into the reasonableness o the procedural provisions+ o an ac$uisition law was notexcluded. Thus, *i a tribunal is authori#ed by the %ct to determine compensation o propertycompulsorily ac$uired without hearing the owner, the %ct would be liable to be struc5 downunder %rticle -//.+ Thus, an ac$uisition law had to pass the test o proceduralreasonableness. The challenge to an ac$uisition law under %rticle -// was limited to the$uestion o procedural unreasonableness. 't was the culmination o the trend initiated by thecourt in Kochunni case but, this view could not run in very long. ;y the twentyFthconstitutional amendment, a new clause, %rticle 02F%/, was added to say that nothing in the%rticle -// *shall afect any law as is reerred to in %rticle 02/.+ The idea was to ensurethat a law enacted to, ac$uire any property by the Government would not be tested withreerence to %rticle -//. % law o ac$uisition was only to be ad&udged under %rticle 02/but %rticle -// could still be invo5ed in case o deprivation.ort*-ourth Aendent (undamental right to property we had been studied as a ore ront o constitutional

controversy or over twenty ve years. ?espite o number o amendments since -7,narrowing its scope, controversy did not subside. (undamental right to property came in theway o socioFeconomic reorms. 't was thereore, resolved by the Hanata Government by theConstitutional orty ourth amendment. The Constitution orty ourth amendment/ ;ill was introduced by the law "inisterShanty ;hushan, interFalias, or the above purpose in the house o the people on 7th may-9:. 't would however be ensured that the removal o property rom the list o undamentalrights would not afect the right o minorities to establish and administer educationalinstitutions o their choice similarly right o compensation at the rate o mar5et value or theproperty ac$uired which is within the ceiling limit and under his personal cultivation secondproviso to %rticle 0F%/. The ;ill sought to achieve the ob&ectives by ma5ing ollowingamendments in the Constitution. (irst, deletion o %rticle -// which guaranteed to every

citi#en right to ac$uire, hold and dispose o property. Second, addition o clauseF%/ in %rticle04,vi#., in ma5ing law providing or compulsory ac$uisition o property o any educationalinstitution established and administered by a minority, reerred in clause / o %rticle 04, thestate shall ensure that the amount xed or determined under such law or the ac$uisition o such property is such as would not restrict or abrogate the right guaranteed under that



clause. Third, deletion o sub heading *right to propertyQ. (ourth, deletion o %rticle 0. (ith,conse$uential changes in %rticles 0F% and 0FC. Sixth, insertion o chapter 'I in part J'' withthe heading *right to property+. The chapter contained %rticle 044% which provides that *Boperson shall be deprived o his property saves by the authority o law+. Seventh, omission o entries :<,-2 and 04 in the ninth schedule.

2he debate: The main debate on the ;ill had ta5en place is the house o people on <th , :th ,

-th and 27th %ugust -<:. The rst spea5er was Shanti ;hushan, he said that right toproperty was conceived as undamental, but in the context o 'ndia consistency o vastma&ority o poor people and a ew who really possessed extensive properties, to e$uate theright to property, there was some &ustication to introduce a provision or putting a curb onthe right to property because it came in the way o some scheme conceived as good or thepeople, and other undamental right also got curbed to that extent in the same way.

8am Hethmalani wanted the retention o %rticle -// because, its deletion woulddo disservice to the cause o democracy, reedom and the rule o law. ;ut a provision bemade that all private property would be sub&ect to the paramount social good. % provision li5e%rticle 02/ authori#ing ac$uisition o property or the public purpose must be retained. 6nthe contrary to this Barendra P. Bathwani said that the new provision guaranteeing right toproperty should specically provide or

depreciation o property or a public purpose. Sharma added that since the right to propertyhad been removed orm part ''' and put it as an ordinary right, 'ndia now could be proclaimedas *the socialist republic o 'ndia+. Khile the debate welcoming the amendments <9 P.>. ?eo was opposes to theamendment o %rticle -// as the property was necessary or the subsistence and wellFbeing o the people. There would not be any rational dispute on this except as to the $uantumand the 5ind o property a person should be allowed to hold. There was no democracy in theworld in which the right to property was not recogni#ed. C.>. Chandrappan critici#ed the ?eosobservation he, said that it was clear rom the history o human development that or thetimes immemorial human 5ind lived without property, private property was not somethingwhich was born along with the human being but it was an invention by the human orexploiting others. The members should be happy that the proposed amendment would put anend to exploitation. This would add to human happiness because the right would no more beused by the &udiciary to stri5e at the very roots o the legislation by which society wanted toadvance and struggle against eudalism and monopoly. 8am Hethmalani accepted the thesisthat all private property must yield to paramount public purpose. %rticle 02/ was thebulwar5 o many antiFsocial elements because under it the even poor man could say that thestate would not ta5e his property unless and until he waspaid mar5et value o the propertywhich is ac$uired as a compensation. That is why this %rticle must go. 8eerring to Hethmalanis observations, ;hushan said that *he heard or the rsttime that %rticle -/ / was a charter o the poor+. !e believed that when there was clashbetween the rich and the poor, the undamental rights part was a charter o the rich againstthe encroachments o the poor. "ost o the poor in 'ndia did not have any property, and ew

who possessed did not need %rticle -// to preserve it, because their right to elect theirgovernment was a ull guarantee so ar as their property was concerned. ;hushan submittedthat this %rticle was not necessary or the poor masses to protect their interest.;hushan,explained the diference between the legal right and undamental right. The latter could beexercised against the elected legislatures so that it might impose a restriction on thelegislative power o the state.

6n the $uestion o the acceptance o due process or procedure established bylaw, ;hushan said that it would amount to ma5ing the right to property as undamental rightrom the bac5 door. 'n both the cases the &udiciary might rustrate the legislative willA heurther explained that the $uestion o payment o mar5et value o the property ac$uiredwould not arise out o the language used in the drat %rticle. !e also said that the legislaturewould not ac$uire property or private purpose but or public purpose.%ter the reply o Shanti

;hushan, the house accepted the amendments in property rights as they were introduced byhim.

This amendments were then discussed in the council o the states.>.;.%sthana,agreeing with amendments he said that as a result o these amendments, compensation onthe principle o 3uid pro 3uo would not be payable. Bow a law relating to ac$uisition o



property could not be challenged on the ground that it went against the constitutional schemewhich provided or $uid pro $uo compensation. 't would or parliament or state legislatures topass such a law. They might ma5e any provision or compensation or not even provide or itA itwould not be challengeable. Bonetheless law should be airA or example in case o the rich, itmight give one tenth o him propertys value and in the case o poor the whole o it. 8eplying on the debate on 0 %ugust, Shanti ;hushan reiterated what he said on%rticle 044F% especially on compensation/ in the house o the people. 'n this opinion no scopeo the bac5door entry o the mar5et value o compensation in view o the language o this

%rticle. The %merican concept o due process o law or the expression *procedure establishedby law+ used in %rt 2 were not accepted in %rticle 044F% because that would have amountedto ma5ing the constitutional right to property as undamental right rom the bac5 doorA %gainthe $uestion o payment o e$uivalent compensation or the property ac$uired would not arisein the view o the language used in the %rticle, and the legislature would ac$uire property onlyor a public purpose. %gain there would be no danger to small armers as %rticle 0F% wasbeing retained. The emphasis was that the popularly elected legislature be trusted. Theintention was to ensure that passage o a legislative enactments to &ustiy any 5ind o deprivation.

IGHT TO P OPE TY UNDE A TICLE *<<A

Since property right has been brought outside the preview o part ''' o theConstitution, the aggrieved individual would not be competent to move to Supreme Courtunder %rticle 02, or any violation o %rt 044%. This remedy would be under %rticle 229 or civilcourt.:4 %rticle 0/ laid down that no person can be deprived o his property without theauthority o law. %rticle 0/ has been repealed and reappeared as new %rticle 044F% sayingthat no person shall be deprived o his property save by authority o law. Thus, a law will be necessary to deprive a person o his property. 'n all democraticcountries, one basic principle is recogni#ed, vi#., that the government cannot interere withproperty rights o an individual without authority o law a valid law/. (act that rights inproperty can be curtailed, abridged or modied only by exercising its legislative power. %nexecutive order depriving a person o his property, without being bac5ed by law, is not

constitutionally valid. The word Mlaw in %rticle 044F% means a valid law. Such a law will thereore besub&ected to other provisions o the Constitution, e.g., %rticles 1, -l/g/ and 04. 6rdinarily,the word Mlaw in %rticle 044F% may mean a Mpositive or Mstatemade law, e.g., a law made byparliament or a state legislature, or a rule, or a statutory order, having a orce o law. Can itbe said, content o a law will be solely within the legislative discretion, and legislature canma5e any law it li5es sub&ect to %rticle 1 and other constitutional provisions. 'n ,ilubhai 2anbhai Kha"har v. State of )ujarat the Supreme Court has statedthat the word Mlaw used in %rticle 044F% must be %ct o parliament or state legislature, rule orstatutory order having orce o law. %ter orty ourth amendment, does the Constitutionalobligation to pay compensation survive, because there is no express provision in theConstitution outside the two cases specied in %rticle 04F%/ and the second proviso to the

%rticle 0%/ re$uiring the state to pay compensation to an expropriated owner/. The efecto the repeal o %rticle 02/ would be that the right to compensation would cease to be aundamental and would be a mere legal right. The ostensible purpose o repealing %rticle 0,specially %rticle 02/, is to ma5e ree the legislature rom the restraint o payingompensation or property ac$uired. ;ut doubts have been raised whether this purpose can beachieved. (or example, it has been argued that the two re$uirements o Mpublic purpose andMcompensation in case o ac$uisition o property are inherent and essential elements, oringredients, or *inseparable concomitants+ o the power o eminent domain thereore, o entry12, 3ist ''' o the Constitution. The word property used under %rticle 044% must understood in the context o government has sovereign power over the property within its &urisdiction. ?eprivationconnotes diferent concept, %rticle 044% gets attracted to an ac$uisition or ta5ing possessiono private property, by necessary implication o public purpose in accordance with the lawmade by parliament or state legislature. 't is inherent in every sovereign state to exercise itseminent domain power in expropriating private property without owners consent.

e=uisition o# Proert& #or u0li! urose



There is basic undamental distinction recogni#ed by the law between re$uisition andac$uisition itsel in the entry 12 o list ''' o the seventh schedule mar5s a distinction betweenac$uisition and re$uisition o property. The original %rticle 0clause 2/ o the Constitution alsorecogni#ed the distinction between compulsory ac$uisition and re$uisition o property.%c$uisition means ac$uiring by title o the expropriated owner whatever the right and extento the title may be. The right which was vested with the original holder passes to the ac$uirerleaving nothing or the ormer. ;ut the concept o re$uisition involves merely ta5ing o *domain or control over the property without ac$uiring the rights o ownership+ and must be

by its very nature o temporary duration. =xcept public purpose limitation, no other limitationwas imposed or ac$uisition o property. %ter the orty ourth amendment, the crucial $uestion is that now the concept o socialist 'ndia is wearing then, will the Supreme Court, is a creative bid, read in 044F% a rightto compensation or ac$uisitiondeprivation o private property There is no gain saying theact that or growth o wealth and capital is absolutely essential. % strategy which theSupreme Court can adopt or this purpose may be to lin5 %rticle 044F% with %rticle 1 and tointerpret the word Mlaw in %rticle 044F% in the same sense o Mlaw in %rticles 2F22. !owever,it should be underlined that %rticle 2 does not apply to the property area nevertheless, thecourt can interpret the word 3aw in %rticle 044F% in a meaningul sense, and not in the senseo merely any statutory law. (or example, compulsory transer o %s property by law to ;without any compensation may be held invalid. ;ut this needs &udicial creativity o a high

order, such as that displayed by the court in Menaka )andhi4s case. That there is apossibility that %rticle 044F% may be interpreted by the court in a creative manner to extendsome protection against an extremely harsh law is illustrated by the recent ;ombay !ighCourt decision in Basantibai v. State of Maharastra& % State o "aharashtra !ousing and?evelopment %ct, -<9, provides the basis or determination o Mamount or ac$uisition o land within municipal limits. The law was not &ust and air insoar as it provided lesscompensation or the ac$uisition oproperty than provided under the 3and %c$uisition %ct,:-1. The !igh Court assessed the validity o this portion o the %ct. 'n the rst place, thecourt held that the %ct did not efectuate the directive principle under %rticle 0-b/, and socould not claim the protection o %rticle 0FC against %rticle 1. 'n the second place, the courtread the dual re$uirements o public purpose and compensation in %rticle 044% is inherent inthe concept o eminent domain. )nder %rticle 044%, the legislature cannot sanctiondeprivation o property or a private purpose. The court saidN QThe entire democratic structureo this country is based upon the concept o Mrule o law and it is not possible to imagine thatthe legislation can provide or compulsory ac$uisition o private property or a purpose whichis not a public purpose. The court ound it diEcult to accept that by deletion o %rticle 0, theparliament intended to coner absolute right on the legislature to deprive a citi#en o hisproperty by merely passing a law without complying with the re$uirement o public purposeand compensation. 'n the third place, the provisions o the law providing or compensationwere discriminatory as it provided less or urban land and more or rural land which could notbe substantiated on valid grounds.

The law was thus invalid under %rticle 1 and also under %rticle 044F%. The courtsaid that really spea5ing, the value o land in the developed town within the municipal area

could have no comparison with the value o the land in rural area and it was diEcult tounderstand why more compensation, including solatium, was provided or rural lands and thesame was denied or urban lands. 'n the ourth place, this was $uite a remar5able assertionon the part o the court, even assuming that the law was protected rom challenge against%rticles 1 and -. %ter ane0a 9andhi case , the expression *authority o law+ must mean*&ust, air and reasonable+ law. Procedure prescribed by the law must be air and reasonableprocedure independently o the protection guaranteed under %rticle 1 and -. The legislationproviding or deprivation o property under %rticle 044% must be *&ust, air and reasonable+.

The impugned provisions did not ulll this re$uirement the provisions providing ordiferential compensation or urban and rural lands were discriminatory. The avourabletreatment shown to the owners o land in rural area was not shown to be &ustied or anyreason whatsoever. The provision was invalid under %rticle 044F%. =ven i protected rom

challenge against %rticle 1, - and 0 because o %rticle 0FC, it could still be struc5 down asbeing neither &ust or air nor reasonable. This pronouncement lays down several signicantpropositions. (irstly, the dual re$uirements o public purpose and compensation inherent inthe concept o eminent domain are to be read in %rticle 044% itsel. Secondly, instead o compensation, the court has used several times the word Mamount indicating that



compensation payable or property ac$uired need not be an exact e$uivalent and may be lessthan that. Thirdly, %rticle 044F% envisages a *&ust, air and reasonable+ law and not any law.(ourthly, even i a law is protected rom challenge against %rticle 1, - and 0 because o %rticle 0FC, it can still be invalidated because o its not being *&ust, air and reasonable+these $ualities are derivable not only rom %rticle 1 but also rom %rticle 044% ater "ane5aapproach. 'n :ilu&hai (an&hai Khachar vs State of 9u7arat the court has ruled that the lawmay x an amount or which may be determined in ccordance with such principles as may be

laid therein and given in such manner as may be specied in such law. !owever such law shallnot be $uestioned on the ground that the amount xed or amount determined is not anade$uate. ;ut at the same time the amount xed must not be illusory. The principles laid todetermine the amount must be relevant to determine the amount. This observation showsthat ac$uisition o property by the state involves payment o some money in lieu thereo.Khen ac$uisition o property is lin5ed with %rti le 0-b/ or 0-c/ , payment o amount is stillnecessaryA it need not be ade$uate compensation but at the time it, cannot be illusory.%de$uate compensation or property ac$uired seems to be a dead concept except under landac$uisition statute, or such other similar %cts. 't is however let to the legislature todetermine on what terms and conditions can property be ac$uired by the state or publicpurpose. The orty ourth amendment ma5es the legislature supreme in this respect andlegislative amendments are not sub&ect to &udicial review except on the ground o violation o

any other undamental right, or example, the right to e$uality in %rticle 1 or on the groundo legislative competency.

't may thus appear that the orty ourth amendment has not made any substantivealternation in so ar as right to property is concerned, even beore this amendment the rightto compensation had been ta5en away by the 27th amendment, the re$uirement o publicpurpose is still implied in %rticle 044F%.The efect transerence o the right to property ormpart ''' o the Constitution is that direct enorceability o this right by the Supreme Court%rticle 02/ is no more. The !igh Courts are empowered to issue writs not only orenorcement o undamental rights but Mor any other purpose.+ (orty ourth amendment has been prima ace made the right to property irmly andcomprehensively secured under the Constitution than beore, states will not now able toac$uire private property without showing public purpose and without paying compensation onmar5et value o the property. 'n other words, the courts in 'ndia will now be ree to give some$uality and extent o protection to private property as the courts in )nited States given underdue process clause. ;ecause o =ntry 12 o the concurrent list, both parliament and statelegislature have power to legislate on ac$uisition or re$uisition o property. The law must be avalid law and no law o ac$uiring a private property can be valid unless or a public purposeand payment o compensation. The 11th amendment has made the property right as a humanright and constitutional right.

Prin!iles lai) )o(n un)er Arti!le *<<,A

. The Constitution ater 11th amendment/ does not expressly coner the right to ac$uire,hold and dispose o property. ;ut i a person has ac$uired and hold the property he cannot bedeprived o it without the authority o law. % person cannot be deprived o his property by an

executive action or by any othersimilar device.2. The protection given to private property under %rticle 044F% is available to all persons whohold property in 'ndia, citi#ens as well as aliens and natural persons as well as legal personssuch as corporate bodies etc.0. The law authori#ing deprivation o property must be passed by the proper authority i.e. byparliament or state legislature.1. The law empowering deprivation o property must be consistent with all the provisions o the constitution. This means a/ the law must be passed by a competent legislature, and b/ itmust not afect adversely any o the rights, undamental or constitutional D in a manner notwarranted by the Constitution.'n this behal, the validity o such law will be examined in the light o the earlier decisions o the Supreme Court.7. The law authori#ing deprivation o property must be air and &ust. The approach o theSupreme Court in ane0a 9andhi6s case the term Mlaw in %rticle 2 will be the guiding star tothe Supreme Court or determining the validity o a law under %rticle 044%.



9. Such legislation may be challenged as violative o %rticles 1, -, 29 or 04 etc. or otherappropriate undamental rights. 't deserves to be noted in this behal that %rticle 0FC whichis the present orm was inserted by twenty th amendment specically coners superiority ondirective principles o statepolicy over undamental rights conerred by %rticles 1, - and 0. Bow, right to property isincluded in %rticle 044 % which is not mentioned in %rticle 0FC. 't is submitted that the rightto property will have greater protection than what it would have had, it remained in %rticle 0.!ence it is submitted that the

deletion o %rticle 0 and insertion o %rticle 044% would ma5e substantial diference asregards the constitutional promotion to right to property. %rticle 044% is ree rom thedominance o the M?irective principles o state policy and it would aford greater protection tothe right to property than what would have been in %rticle 0.%lthough ater the orty ourth amendment, might be property is no more a undamental right,certain property rights still retain the character o or relation to, undamental rights. =g.a. %rticle 04/a/ provides that any compulsory ac$uisition o property belonging to aneducational institution o a religious or a linguistic minority, the compensation payable shallbe such as would not restrict or abrogate the right guaranteed to that minority under %rticle04/b. %rticle 0 protects laws providing or ac$uisition o states, ta5ing over management etc.c. )nder the second proviso to the %rticle 0F%, a person holding land within the ceiling limit

and cultivate it personally he entitles to the mar5et value as compensation on its ac$uisition.d. %rticle 0F; ma5e valid certain %cts and regulations pertaining to land reorms which arelisted in the ninth schedule, notwithstanding any contrary &udgment, decree order o anycourt.e. %rticle 0FC provides protection to the laws giving efect to certain directive principles.

ECENT DE>ELOP'ENTS

In P.'.Muni"hikkanna *edd$ v. *evamma,the Supreme Court o 'ndia has held that theright to property is not &ust a statutory right but is also a human right. The Supreme Courtappears to have approved the decision o the =uropean Court o !uman 8ights in :.A.P'e$;5ford Ltd%.v. UK -: where the =C!8 too5 the concept o adverse possession very un5indly.

'n P.T."unichi55anna 8eddy the Supreme Court held that the right o property is now

considered to be not only a constitutional or statutory right but also a human right.?eclaration o the 8ights o "an and o the Citi#en <:- enunciates right to property under%rticle <N QSince the right to property is inviolable and sacred, noFone may be deprivedthereo, unless public necessity, legally ascertained, obviously re$uires it and &ust and priorindemnity has been paid. "oreover )niversal ?eclaration o !uman 8ights -1: underSection <i/ and ii/ also recogni#es right to propertyN Q<i/ =veryone has the right to ownproperty alone as well as in association with others, ii/ BoFone shall be arbitrarily deprived o his property.Q !uman rights have been historically considered in the realm o individual rightssuch as right to health, right to livelihood, right to shelter and employment etc. ;ut nowhuman rights are gaining a multiFaceted dimension.

'n Karnataka State 5inan"ial Cor!oration v. 2. 2arasimhaiah$ it has been heldthat in the absence o any provision either expressly or by necessary implication depriving a

person o his right, the Court shall not construe a provision leaning in avour o suchdeprivation, since right to property is also a human right.

?eveloping urther in (emaji 0aghaji ,at v. Bhikabhai Khengerbhai (arijan andloo5ing at the position in other countries, the Supreme Court held that the law o adversepossession as irrational. 'n Chairman& Indore ikas Pradhikaran v. Pure Industrial Cokeand Chemi"als/ the Supreme Court has held that the right to property is now held to be notonly a constitutional right but also a human right. There the Supreme Court has ollowed thelaw laid down in P.T.unichi00anna Redd' and reiterated that property rights are alsoincorporated within the denition o human rights.

'n %a"h"hman #ass v. ,agatram,the Supreme Court reiterated that right toproperty is a human right. 'ndia is a signatory to various conventions on human rights. %rticle7 c/ o the Constitution re$uires the state including the Hudiciary/ to oster respect orinternational law and treats obligations in the dealings o people with one another. Thereore,it may be argued that the right to property being a part o human rights as embodied in%rticle 2. %ny legislation or depriving such right would re$uire the state to provide or ullcompensation in the event o deprivation o property. (urthermore, even i such law is placed



under the 'Jth Schedule and protected by %rticle 0 ;. (or example 3and %c$uisition %ct,:-1.

'n I.*.Coelho v. State of 'amil 2adu the %pex Court held that even though an %ctis placed under the 'Jth Schedule by a constitutional amendment, it would be open tochallenge on the ground that it destroys or ta5es away or abrogates the basic structure o theConstitution. The Court held that the &ustication or conerring protection not blan5etprotection/ on the 'Jth Schedule shall be a matter o ad&udication, examining the nature andextent o inraction o undamental right by a statute and such statute sought to be

constitutionally protected on the touchstone o the basic structure doctrine as reected in%rticle 2 read with %rticles 1 and -. The Court held that %rticles 1, - and 2 are thebasic structure o the Constitution thereore, basic essence o the right cannot be ta5en away.=ssence o the human right which according to the recent &udgments include property rights/would necessarily meanull compensation or ac$uisition o property right. ' the laws afects the basic structure couldnot be protected even though included in the 'Jth Schedule. 'n Kesavananda Bharati case the Supreme Court held that i a law held tobeviolative o undamental rights i it is incorporated in the 'Jth shall be open to challenge onthe ground that it destroys or damages the basic structure o the constitution. The Courturther held 241 that, constitutional amendments are made by the parliament are sub&ectedto limitation and i the $uestion o limitation is to be decided by the parliament itsel,

parliament enacts the impugned amendment %ct and gives complete immunity to it. 't woulddisturb the chec5s and balances on the Constitution. The authority to enact law and decideslegality o it cannot be vest in thesame organ. The basic structure doctrine re$uires the stateto &ustiy the degree o invasion on undamental rights. Parliament is presumed to legislatecompatibly with undamental rights. The greater the invasion, the greater is the need or

&ustication. The power to grant immunity on a ctional basis would nulliy the basic structuredoctrine. 't was urther held that the Court is bound by all the provisions o the Constitutionand also the basic structure doctrine. Thus, placing any %ct in the 'Jth Schedule also by constitutional amendment wouldnot save the %ct i it violates the part o the Constitution. (or example a law does not provideull compensation or depriving the right to property could not be saved even by constitutionalamendment placed under ninth schedule. Bow property right has the status o human rightwhich would be a basic structure o the Constitution. Since according to the doctrine o basiceatures, human rights including property rights as now envisaged/ are part o the basicstructure under %rticle 2 read with %rticles 1 and -. ?epriving a person o his human rightincluding property right/ by the State may re$uire the State to pay ull compensationmar5et value/. Thus, all avenues o depriving a citi#en o his property without ullcompensation would be beyond legislative capacity. ' &udicial dictum o the Supreme Courtwere to develop this trend o right to property is part o human rights and thereore any ta5ingover or ac$uisition would re$uire ull indemnity or compensation in the light o %rticle 2 readwith %rticles 1and -. 't would surely be a wonderul accomplishment.

The necessary corollary o this would be that the right to compensation or

ac$uisition o property would be a human right and thereore encompassed under the basicstructure o the Constitution. The wheel would surely have turned more than ull circle sincethe entire tussle between the legislature and the Hudiciary began immediately ater thecommencement o the Constitution with regard to reusal o state to pay ull compensation orac$uisition o property, which may at that time have been necessary but it is totallyun&ustied. )nder %rticle 04F%/ ma5ing any law providing or the compulsory ac$uisition o any property o a minority educational institution, the state is re$uired to ensure that theamount xed by or determined under such law or the ac$uisition o such property is such aswould not restrict or abrogate the right guaranteed to establish and administer educationalinstitutions o their choice. )nder %rticle 29 since the right o religious denominations or anysection thereo to own and ac$uire moveable and immoveable property is guaranteed sub&ectto public order, morality and health. That is submitted that any law o ac$uisition in order to

apply to a religious denomination, apart rom ull compensation, must also satisy the test o being necessary either or public order, morality and health. 8ecently Supreme Court invarious cases determined the property right is not only statutory and constitutional right, it isalso a human right o an individual. Thereore there is no disproportionate intererence by thestate in ac$uiring property o an individual hence compensation should be reasonable.



CONCLUSION

The original Constitution o -74 had saeguarded the right to property, recogni#ed thesame under part the ''' o the Constitution. !owever, soon ater the Constitution o 'ndia cameinto orce a long drawn out battle commenced between the persons who were sought to bedeprived o their property and the legislature and executive until its nal culmination.

)ltimately by the orty ourth constitutional amendment right to property as originallyenvisaged by the -74 Constitution was deleted and only a small raction o the right wasretained in %rticle 044F% as a constitutional right. The whole genesis o the dispute over the

right to property was the unwillingness o the legislature and executive to pay ullcompensation or ull mar5et value or the property ac$uired. The Constitutional obligation topay compensation underwent massive changes because o the word compensation used in%rticle 02/. !ence tussle between the parliament and the &udiciary as a result o whichbrought series o constitutional amendments to property right.

Constitution ma5ers reused to 5eep the word prex M&ust or the word compensationunder the %rticle 02/. %ter the Constitution came into orce position beore ourthamendment/ court, in series o cases interpreted the word Mcompensation as M&ustcompensation or Mcompensation e$uivalent to the property ac$uired by the state. Kithoutpaying e$uivalent compensation no property could be ac$uired even or public purpose, it wasa great hurdle or the state. Thereore constitutional ourth amendment brought changes inthe %rticle 02/ i.e./ or the property ac$uired compensation need not be &ust or e$uivalent

compensation. The very ob&ect o ourth amendment exclude the &udicial review overMcompensation on the ground o M&ust compensation was ailed to achieve. !owever evenater the ourth amendment in series o cases court interered by way o interpretation andheld that the word Mcompensation means Me$uivalent to the property ac$uired or &ustcompensation.

=ven though state has sovereign power to ac$uire property or public purpose,ac$uisition cases are came beore the courts on the ground that compensation was notade$uate. Thereore by twenty th constitutional amendment in -< the wordMcompensation in %rt 02/ was substituted by the word Mamount. ;y this amendment someextent battle between &udiciary and parliament comes to an end. Court interpreted the wordMamount something diferent rom word Mcompensation these two words are not synonymous

and also court held that amount declared or ac$uisition o property by State must not beillusory or it should not disproportionate to the property ac$uired. 'n Kesavananda !harati v.State of Kerala the ma&ority o the Supreme Court held that the amount which was xed bythe legislature could not be arbitrary or illusory or must be determined by the principle whichare relevant or determining compensation.

)p to (orty Second %mendment %ct -<9, the essential parts o %rticle 02/ wererepealed by pride predecessor amendments nally, orty ourth amendment repealed theright to property i.e., %rticles -// and 0 altogether rom part ''' o the Constitution andinserted the %rticle 044F% into the Constitution %rticle 0/ was reappeared in %rticle 044F%/.!owever, here the $uestion arises even ater repealing %rticle 02/, can twin re$uirementsMpublic purpose and constitutional obligation to pay Mcompensation be survived or cangovernment exercise its eminent domain power arbitrarily irrespective o Mpublic purpose and

Mcompensation. The rationale o orty ourth amendment is loosening the undamental right status

and conrm the status o legal right to the property held by individuals. 'n case o litigationbetween the state and individual regarding property right, court always tilt towards in avouro protection o property right had been a undamental right o individuals. !ence land looseror usurper could directly moved beore the Supreme Court or enorcement o property right.Bowhere in the world democratic government recogni#ed with arbitrary power. 'ndia being ademocratic country could not exercise its sovereign power in an arbitrary manner. Thereoregovernmental intererence may occur in the orm o expropriation o property rights o individuals when public interest warrants. =xpropriation o property must be sub&ected tosome conditions and limitations and it should not be in accordance with the whims andancies o the government. The moral basis and conditions o expropriation will be theessential condition o eminent domain power. !ence even ater the removal o %rticle 0altogether, there must be &ustication or the intererence with individual property right by theGovernment. !ence, compensation must be proportional to the intererence, it is evident romthe 3and %c$uisition %ct :-1. 'n the present scenario, property right is loo5ing rom the



perspective o human right thereore colonial 3and %c$uisition %ct :-1 replaced by the 8ightto (air Compensation and Transparency in 3and %c$uisition, 8ehabilitation and 8esettlement%ct,240. (orty ourth amendment did not intended to remove the constitutional restraints li5eMpublic purpose and Mcompensation on eminent domain power. 't can be counter argued thatobligation to pay compensation ows rom entry 12 o list ''' o the I'' schedule to theConstitution and obligation to pay compensation arise rom the doctrine o eminent domain orthe right to ac$uire private property or public purposes which is an incidence o a sovereign

state. "a&or changes ater orty ourth amendment, repealing the Property right rom(undamental rights, now property right is only legal right, or constitutional right. )nlessstatute provides, government need not to pay e$uivalent compensation to the propertyac$uired. ;ut now the court has addressed the compensation re$uirement in the context o aair balance test. %ccordingly ta5ing o property without payment o an amount reasonably related itsvalue would normally constitute a disFproportionate intererence which could not beconsidered as &usticiable. !owever, according to the courts observation statute orconstitutional provision does not guarantee a right to ull compensation in all circumstancesexcept under second proviso to the %rticle 0F%// even though compensation awardedmust be $ualiy the air balance test. Bevertheless, orty ourth amendment does not haveany efect on the power o eminent domain or the sovereign power o the state, urther it

smoothen the proceedings o ac$uisition. %t the same time %rticle 2 cannot be applied to theac$uisition proceedings because ob&ective o the orty ourth amendment shit the concept o property romundamental right status to legal right status. Thereore, i you say proceedings o ac$uisitionhit %rticle 2, property right again through bac5 door entry ma5e the property right as aundamental right, the ob&ect o the orty ourth amendment will be deeated.

chap5 property constitution relation

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