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Constitutional Provisions regarding Property

Constitutional Provisions regarding Property

Rent and accommodation control

The scheme of the Indian Constitution proceeds upon the distribution of legislative powers between Parliament and state legislatures. In this scheme 'land tenures' (list II, entry 18) is allotted exclusively to the states. The expression 'land tenures' does not cover the relationship of landlord and tenant in respect of buildings. This is governed by entry 6 in list III, Transfer of Property. This subject is in the concurrent legislative list and state legislature list and state legislatures have assumed jurisdiction over this subject under this entry. Rent control legislation by the states is also traceable to this power.

The objects of rent restriction legislation are two- fold:

(1) To protect the tenant from eviction except for defined reasons and

(2) to protect him from having to pay more than fair rent. Legislation

relating to control of rent can be effective only if it also regulates eviction of tenants. The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 is an illustration of such comprehensive legislation.

Land acquisition

Acquisition and requisition of properties is provided by entry 42 of list III. A public purpose is a pre-condition for the exercise of this power.

Ceiling on land holdings

While the acquisition of "surplus" land is covered by entry 42 of list III, its subsequent distribution amongst landless peasants is governed by entry 18 of list II.

Property as a fundamental right

The Constitution (44th Amendment) Act, 1978 omitted article 19(1) (f), i.e., right to acquire, hold and dispose of property and the sub-heading Right to Property under article 31. The effect of this change is that the Right to Property is no more a fundamental right. A new chapter IV has been inserted in Part XII of the Constitution and the provision in article 31 has

been transferred to article 300A. Thus the right to property though a constitutional right is not a fundamental right. If this right is infringed the aggrieved person cannot access the Supreme Court directly under article

The new article 300A states.-

"No person shall be deprived of hL· property save by authority of law". It is the only article, which was inserted by a constitutional amendment with the express purpose of creating a legal right, which is not a fundamental right. The earlier article 31 applied to all persons. The citizens were given the right to acquire, hold and dispose of property by article 19(1) (f). Both articles 19 and 31 were fundamental rights. The right to property had been changed and modified by 1st , 4th , 7th ,25t h , 39t h, 40t h , and 42n d Amendments. Most of them were aimed at nullifying the effect of judgments and doing away with the obligation of the State to pay compensation. The expression 'law', used in article 300A would mean a Parliamentary Act or an Act of the State Legislature or a Statutory Order having the force of law. The State cannot deprive a person of his property by recourse to its executive power. The power can be exercised only by authority of law and not by mere executive order.31 If it provides for the transfer of ownership or right to possession to the state or a corporation owned or controlled by the state, it should also provide for compensation to the person deprived of the property. The amount of compensation, however, is in the discretion of the legislature and its adequacy cannot be called in question in a court of law.

This right to property enjoyed a greater measure of protection under the Constitution as

originally adopted but it was found to be an impediment to the establishment of a socialistic pattern of society in India. Hence the right has been attenuated by constitutional amendments. Under the Twenty-fifth Amendment the word 'amount' has been substituted for 'compensation' to enable the legislature to fix whatever "amount" it likes while taking over private property for public purposes.

The Supreme Court in Golak Nath v. Union ofIndiayi held that a constitutional amendment abrogating or abridging a fundamental right would be hit by article 13 (2) and so would be void. This decision overrules the earlier decision to the contrary in Shankari Prasad's case.34 The Constitution (Twenty-fourth Amendment) Act has superseded the decision in Golak Nath's case. It provides that the expression "law" in article 13 does not include a constitutional amendment. The validity of the 24th Amendment has been upheld in Kesavananda Bbarati v. State of Kerela?

Fundamental rights and directive principles

Fundamental rights are intended to guarantee individual liberty. Divertive principles are socialistic. They indicate the way in which the state should legislate for ensuring economic and social justice.

In State of Madras v. Champakam, it was held that if a law conflicts with fundamental rights it is void even if it may have been passed for implementing the directives of state policy. In 1971 the Constitution (Twenty-fifth Amendment) Act has provided that if the law contains a declaration that it is intended to give effect to the policy embodied in article 39 clause (b) or clause (c), the law shall not be challenged on the ground that it conflicts with articles 14, 19 and 31 of the Constitution.

Article 39 contains the following directive principles:

(1) Citizens should have the right to an adequate means of livelihood.

(2) Resources of the community should be equitably distributed.

(3) Concentration of wealth should be avoided.

(4) Equal wage for equal work for men and women.

(5) Childhood and youth should be protected against exploitation.

(6) Health and strength of workers should not be abused.

To give effect to these principles even fundamental rights can be overridden by means of law. This is the effect of the Constitution (Twenty fifth Amendment) Act. The result of the 44th amendment is that the right to property cannot hereafter retard or frustrate legislative efforts for the socio- economic regeneration of our country and the achievement of a truly socialistic pattern of society based upon economic freedom and equality, in response to the challenges posed by modern times and the aspirations of the younger generation.

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