chapter 7- Property Right in Post-Independence period

After independence, India has been making an effort to make certain crucial changes in its laws pertaining to right to property to suit the local conditions and to create a more just and progressive society. At the time of making Constitution there were considerable discussions at constituent assembly on property rights and many eminent persons opposed the property right being included as a fundamental right and the compensation payable for acquisition of property at market rate. But the Sardar Patel Committee on Fundamental Rights was not prepared to accept this view point at the end of which, it was thought necessary that property rights should be considered as sacrosanct and hence they were included as a Fundamental Right and embodied in Articles 19(1)(f) and 31. In this way property right had got maximum protection from being eroded, abridged or abolished. Some members of Sardar Patel Committee on Fundamental Rights expressed their unhappiness against inclusion of right to property as a fundamental right.

Property right is one of the fundamental rights amongst the famous seven freedoms and it provides that all citizens shall have the right to acquire, hold and dispose of property. This provision elevating the property right to fundamental right however, it gave raise enormous litigations and courts were called upon to decide, where private property was sought to be acquired for common good of the community as a whole. Hence courts always insisted two basic requirements to be fulfilled in the matter of acquisition. They are:

(a) Acquisition must be for a public purpose; and

(b) Compensation must be adequate for the property acquired.

Right to property had been a fundamental right given double barrelled protection. Under Article 19 (1) (f) every citizen guaranteed right to acquire, hold and dispose of property, subject to reasonable restrictions. Under Article 19(5) reasonable restrictions are imposed by law in the interest of general public or for tribe. On the other hand under Article 31 property right guaranteed to every person irrespective of citizenship and it provides that right against deprivation of property right unless it acquired by the state for public purpose. Article 31(1) provides that a person cannot be deprived of his property right merely by executive fiat but it can be deprived by legislative enactment. However, Article 31(2) guaranteed the compensation to the individual when his property acquired for public purpose.

The principle embedded in Article 31(2) derived from doctrine of eminent domain i.e., the sovereign power of the state to appropriate for purpose of public utility the land within the limits of its jurisdiction. The principle underlying appropriation of private property by the State rests upon two famous maxims i.e., salus populi est suprema lex which means that welfare of the people or the public, is the paramount law, another maxim necessitas publico major est quam private which means, 'public necessity is greater than private'. "The law imposed these principles on every subject that he prefers the urgent service of his prince to the country before the safety of his life".

The sovereign power of the state, which was originally vested in the ancient kings, came to be delegated to public bodies and corporations, with the advance of civilization and with all the complex organization of the machinery of state. With the growing importance and interest in view of the progressive industrialization of the country and promotion of enormous irrigation projects, schemes of town planning and town improvement and other utilitarian activities, the subject of land acquisition has gained momentous importance. The breaking down of the old feudal system of land tenures and the ushering in of co-operative farms and making the tiller very near owner of the soil, all these invite state intervention to acquire private land for public purpose.

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