Whether the right to property is a fundamental right under the constitution of India? The state government has acquired my land and does not giving fair price to my land as a compensation under the land acquisition act. Can I file a case before the supreme court for protection of my fundamental right?
The right to property was originally included as a fundamental right under Article 19(1)(f) of the Indian Constitution, which guaranteed the “right to acquire, hold and dispose of property.” However, this was removed as a fundamental right by the 44th Amendment Act of 1978 and made a constitutional right under Article 300A.
This means that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, the courts have held that the right to property is not absolute and can be limited by the state in the larger public interest.
Right to property under Article 300 A
The Indian Constitution guarantees a wide range of rights to its citizens, including the right to freedom, equality, and property. These rights are designed to protect the basic human rights of individuals and ensure that the state does not infringe upon them. However, over the years, the interpretation and application of these rights have undergone several changes, particularly with regards to the right to property.
The right to property was originally included as a fundamental right under Article 19(1)(f) of the Indian Constitution, which guaranteed the “right to acquire, hold and dispose of property.” This right was seen as an essential aspect of the right to life and personal liberty, as it allowed individuals to acquire and possess property without interference from the state. However, this was removed as a fundamental right by the 44th Amendment Act of 1978.
The 44th Amendment Act was passed in the wake of the Emergency imposed by Indira Gandhi government in 1975. During the Emergency, the government had the power to acquire property without providing adequate compensation to the owners. This led to widespread dissatisfaction and protests. The amendment aimed at addressing this issue by making the right to property a legal right under Article 300A.
This means that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, the courts have held that the right to property is not absolute and can be limited by the state in the larger public interest.
The idea behind the amendment was to strike a balance between the rights of individuals and the needs of the state. On one hand, it ensured that the state could not arbitrarily acquire property without providing just compensation to the owners. On the other hand, it also allowed the state to acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public.
However, the removal of the right to property as a fundamental right has led to some controversy. Some critics argue that it has resulted in the erosion of the rights of property owners, as the state can now acquire property without providing adequate compensation. Others argue that the amendment was necessary to ensure that the state could acquire property for public use, such as for building roads, hospitals, and schools.
Despite the controversies surrounding the amendment, the right to property remains an important aspect of the Indian Constitution. It ensures that individuals have the right to acquire, hold and dispose of property without interference from the state. Additionally, it also ensures that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public.
Moreover, the right to property is not just a constitutional right but also it is a human right. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, recognizes the right to own property as a fundamental human right. It states that “Everyone has the right to own property alone as well as in association with others.”
In conclusion, the right to property is a complex and multifaceted right that has undergone several changes over the years. While the 44th Amendment Act of 1978 removed the right to property as a fundamental right, it still remains an important aspect of the Indian Constitution. It ensures that individuals have the right to acquire, hold, and dispose of property without interference from the state, while also allowing the state to acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, it is also recognized as a human right by international laws.
Fair compensation under Article 300 A
Yes, under Article 300A of the Indian Constitution, fair compensation is to be given to citizens when the government acquires their property. This means that if the government takes possession of a person’s property through the power of eminent domain, it must provide just compensation to the owner.
The concept of just compensation is based on the principle of “no gain without pain” which means that the owner of the property should not be put to any loss or disadvantage because of the acquisition of their property by the state. The compensation should be such that it should be sufficient to enable the owner to purchase an equivalent property.
The amount of compensation is determined by the government and can be challenged in court if the owner feels it is inadequate. The government also have the power to impose reasonable restrictions on the use of property in the interest of the general public.
In summary, Article 300A of the Indian Constitution ensures that citizens are not deprived of their property without receiving fair compensation for it. This ensures that the rights of property owners are protected and that the state does not unfairly benefit from the acquisition of property.
Article 300 A has no express provision that the government will pay compensation to the expropriated owner. In Kesavananda Bharati v State of Kerala AIR 1973 SC 1461; a majority decision of the Supreme Court held that
“The right to property was not part of the ‘basic structure’ of the Constitution, even after the Twenty-Fifth Amendment, the Court must inquire whether what is given as compensation is completely illusory or arbitrary.”
Right to property is still a constitutional right and the aggrieved person may challenge the acquisition proceeding under Article 226 of the constitution. He can seek justice from the High Court that the amount of compensation is unfair.
Albeit, the right to property is neither a basic structure of the Constitution of India nor a fundamental right but the court can test the fairness of compensation. If the amount of compensation is illusory then the court may set aside the acquisition proceeding.
In Jilubhai Khachar v State of Gujarat (1995) Supp (1) SCC 596; the Supreme Court held that the court can determine the principles on which the compensation was decided were relevant and the compensation awarded was not illusory.
The Supreme Court in KT Plantation Private Ltd v State of Karnataka (2011) 9 SCC 1; held that right to claim compensation is inbuilt in Article 300 A. A state can acquire the land only for the public purpose. The court can test the amount of compensation.
Principle of fair compensation
In the State of W.B. v. Bela Banerjee, AIR 1954 SC 170; the Supreme Court held that, however, the government has discretionary power of laying down principles for the determination of compensation. But such a principle must ensure that compensation should be just equivalent of full indemnification.
The compensation must be the prevailing market price of the property at the time of acquisition. Acquisition at the rate lower than the prevailing market price is illegal, unjust and violates the principle of fair compensation.
In Kesvanand Bharti vs State of Kerala AIR 1973 SC 1461, the Supreme Court reiterated that the government cannot arbitrarily decide the amount of compensation. Furthermore, compensation should not be illusory.
Thus the amount of compensation must be just and equal to the market price of the land. The 44th amendment act of 1977 has abolished the right to property as a fundamental right by deleting article 19(1)(f) and 31 from the Constitution of India. But it does not empower the government to acquire land paying inadequate compensation.
Meaning of property under Article 300-A
Article 300 A includes all types of property capable of being owned [Union of India vs Martin Lottery Agencies Ltd.(2009) 12 SCC 209]. It includes tangible, intangible, corporeal and incorporeal property. Article 300 A does not confine to land alone but includes intangible property like copyright, intellectual property rights, mortgage, money, any interest in the property, lease, license. The pension and gratuity are a valuable right of individuals therefore protected under article 300 A.
Enforce your right through the Court
If the state government acquires your land it has to give fair compensation which could indemnify. Indemnity is a sum of money paid as compensation against financial loss. You are entitled to claim compensation under Article 300 A even if the right to property is not a fundamental right.
Right to property is still a constitutional right and has some constitutional safeguards. You should invoke writ jurisdiction of the High Court under Article 226 and claim fair compensation for your land.
