Right to Property and March of Law

This article is written by Anu Sharma, a 2nd-year student pursuing a Bachelor of Law from the School of Law, Lovely Professional University, Phagwara.

The term property is derived from the Latin word ‘propertietat’ and the French equivalent ‘proprious’ which means thing owned’. The concept was known to ancient Greeks, Hindus, Romans, Jews etc.

The concept of property occupies an important place in human life because it is virtually impossible to live without the use of material objects which constitute the subject matter of property.The concept of property and ownership are very closely related to each other. The two are mutually interdependent and correlative. One necessarily implies the existence of the other. There can be no property without ownership and no ownership without property.

In modern times, apart from its common use, ‘property’ is used in a wider sense also. In its widest sense, it includes all the rights which a person has. Thus a person’s life, liberty, reputation and all other claims which he might have against other persons is his property.

The term property is used also to denote the proprietary rights of a man as opposed to his personal rights. In this sense, it means a person’s land, house, his shares in a business concern etc.

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It is used in a third sense also, that is, to mean proprietary rights in rem. Salmond takes the term in this sense. He says: “The law of property is the law of proprietary right in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage, a freehold or leasehold estate in land, or a patent or copyright is property: but a debt or the benefit of the contract is not.”

There is also a fourth and the narrowest sense in which the term ‘property’ is used. In this sense, property includes nothing more than the corporeal property or the right of ownership in material things. Bentham has preferred to interpret the term property in this sense.

Right to Property as a fundamental right

Since the Constitution of India came into force in the 1950s, the right to property was given fundamental status. Basically, two articles Art. 31 and Art. 19(1)(f) ensure that any person’s right against his property remains protected.

Art. 31 clause (1) reads as No person shall be deprived of his property save by authority of law. It gives protection to persons against the government or State’s arbitrary action to seize private property for public use and private use. That means a person has the right to move to SC in case of violation of this right. At this juncture it is essential to understand the power of Eminent Domain- every government has an inherent right to take and appropriate the private property belonging to an individual citizen for public use[4]. It is based on the legal maxim Salus Populi est suprema lex meaning the welfare of people or the public is the paramount law.

In America, this power was limited by imposing three restrictions:

  1. there must be a law authorizing the taking of property
  2. the property must be taken for a public purpose
  3. just compensation should be paid.

In India clause (1) of art. 31 provides for first restriction and clause (2) reading No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition of the property for an amount which shall be fixed by such law, and no such law be called in question in any court on the ground that the amount so fixed is not adequate for the other two restrictions.

Article 19(1)(f) provides the freedom to citizens to acquire, hold, and dispose of the property within the territory of India.

But by the Constitutional 44th Amendment act 1978, these two above-mentioned articles were deleted and a new chapter IV was added in Part XII, containing only one article 300A.

The legal status of the Right to Property was changed from the fundamental right to constitutional right. As a result, people were not allowed to approach Supreme Court directly u/A 32 of the constitution for violation of the Right to Property although they still could invoke jurisdiction at high court u/A 226 of COI.

In Jilubhai Nanbhai Khachar v. State of Gujarat[5], it was held that the Right to property u/A 300A is not a basic structure of the Constitution. It is only a constitutional right.

Why was the 44th amendment act made?

In order to understand why such a step was taken by the Parliament of India, it is necessary to understand that before India got its independence there were four major systems prevailing: the Ryotwari system, Mahalwari system, Zamindari system, and Jagirdari system. Due to these large parts of land was in possession of zamindars, tenants, and like people, which causes an unequal distribution of land and increases the gap between rich and poor.

From 1947-1950, the constituent assembly worked day and night to draft the Constitution of India. Members of the constituent assembly were concerned by the situation at that time and knew various land reforms and acquisition acts will be needed to pass, due to the above-mentioned system, so in order to redistribute land and to rectify the damage various steps were taken:

  1. Provisions related to saving of certain laws were added- By Constitution 1st amendment act 1951 31A and 31B were

added. Art.31A provides that no law providing for the acquisition of any estate or any right or modification of any right will not be deemed to be void on the basis that it is inconsistent with Art. 14 and 19. Art.31B provides for validation of certain acts and regulations, it says that none of the acts and regulations mentioned in the IX Schedule of the constitution would be deemed to be void on the ground that it is inconsistent with the rights conferred in Part III of the constitution. Later on, by the 4th amendment 1955, the scope of the estate was increased, it

includes any jagir, inam or muafi, or any other similar grants.

  1. Land ceiling was one of the strongest measures taken in this Ceiling means the maximum limitation on the area that can be acquired by a private person. In the year 1959 at the

Nagpur conference of Indian National Congress, it was decided that laws or acts related to the restriction of land limits must be implemented till the end of the year. The land ceiling act was

implemented from 1960-1972 and from 1976-1999.

  • Despite such efforts by the government the zamindars and other land owners whose ceiling limit exceeded approached the Supreme Court using their fundamental right to property with the intention to hold acts unconstitutional. So, in order to stop this from happening and with a view to doing economic justice, 31, and Art. 19(1)(f) ceased to be a fundamental right and was modified as a constitutional right in new chapter IV Part XII of the Constitution as Art. 300A, which continues to exist and follow till today.

Present Legal Status of Right to Property:-

By 44th Amendment Act 1978 of the Constitution of India, a new article namely 300A was inserted and titled as Right to Property. It read as:

No person shall be deprived of his property save by authority of law. This article provides restrictions on the State that it cannot take anybody’s property without the force of law also interpreted can be deprived of the force of law. The word ‘law’ here means a validly enacted law which is just, fair, and reasonable[6].

In the case of Hari Krishna Mandir Trust vs the State of Maharashtra And Others[7], it was held by the SC that the appellant cannot be deprived of his strip of land being a private road, without the authority of law, if allowed will be a violation of Art. 300A of COI.

Art. 31 used to impose a similar limitation on the power of Eminent Domain as in America but the new Art. 300A only imposes one restriction on this power which is the authority of law.

It is obvious such deprivation will have the force of law only when it is for public welfare and is just, fair and reasonable. In the case of K.T. Plantation Pvt. Ltd. v. State of Karnataka[8], it was held by SC that the requirement of public purpose is invariably the rule when a person is deprived of his property.

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The main question arises if any person is deprived of his property by the force of law for the public interest, will he be entitled to compensation?

The answer is yes. Although it is not explicit like in Art. 30(1)(A) as well as in 2nd provision of Art.31A (1) but yet it can be inferred in Article 300A. The State has to justify its stand on justiciable grounds which depends upon legislative policy.

Right to own Private Property is a Human Right

In the recent judgment of Vidhya Devi v. The State of Himachal Pradesh & Ors.[9], it was held by SC that the Right to own Private Property is a human right and cannot be denied. The party depriving one’s right to property must have the authority of law. In this case, the plaintiff was given compensation for the wrong acquisition of property by the state.

Supreme Court’s View

Defining the property as a legal concept, the Supreme Court in Guru Dutt Sharma V. State of Bihar, observed that it is a bundle of rights, and in the case of tangible property, it would include the right of possession, the right to enjoy, the right to retain, the right to alienate and the right to destroy.

The Supreme Court has said in Commissioner, Hindu Religious Endowment V. K. Lakshmindra, that there is no reason why the word ‘property’ as used in Article 19(1) (f) of the constitution should not be given a liberal and wide connotation and should not be extended to those well recognised types of interests which have the insignia or characteristic of proprietary rights.

It was due to the reason of giving such a wide meaning to ‘property’ that in one case (Shantabai V. State of Bombay) it was held that a bare contractual right unattended with any interest in property is property.

The modern judicial trend to interpret the right to property in the light of Article 21 of the Constitution dealing with personal liberty also deserves mention at this place. The Apex Court in a number of cases has expressed the view that Article 21 in its widest magnitude covers a variety of rights which constitute the personal liberty of a man.

Therefore, despite the fact that the right to property as a fundamental right has been abrogated and repealed, this right may still be interpreted by the Court as an aspect of personal liberty under Article 21.


Due to the excessive possession of land by the zamindars and tenants, the legal status of the Right to freedom was changed from a fundamental right to a constitutional right in order to avoid the situation of misusing of right to property as a fundamental right by zamindars and another landowner against state measures to acquire land and to implement land ceiling laws in India. Still, this right is available to all persons as a constitutional right and can invoke the jurisdiction in high court u/A 226 of the Constitution of India.

In the Indian context, the constitutional provisions contained in Article 39(b) and (c) clearly reflect the concern of the State against concentration of wealth in the hands of the few to the detriment of social interests.

Fair and equitable distribution of wealth so as to subserve the common interest of all sections of the society has been the guiding principle in regulation of property by the State through the instrumentality of law. The focus has been on the socialization of property rather than adopting a narrow individualistic approach.

The rule against unjust enrichment, doctrine of perpetuity, marshaling, subrogation, part performance etc. are incorporated in the property law with a view to ensuring just and fair enjoyment of property and protecting it against all kinds of exploitation.

None of the theories of property, discussed above, can alone explain ‘origin of property. However, most of them contain some truth, and a perfect and comprehensive theory can be built only by taking into consideration the various aspects of property. Thus a functional approach would be more helpful in understanding ‘property’.

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