Chap5 PropERTY ConstITUTION Relation

Property, as a legal and social institution, has diferent orms in diferent cultures and lega legall syst systems ems.. owev owever er,, only only a den denit itio ion n o Cons Consti titu tuti tion onal al prop proper erty ty is commo common n in all democratic countries. Since state exercises eminent domain power against private property, it is pertinent to discuss the concept o private property in brie. The institution o private property has been a controversial issue with conicting views, one completely denying the right 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 modern Constituti Constitutions, ons, except except those those o communist communist countries countries have recogni#ed the right o private property. property. Thereore, citi#ens have right to own and possess the property. This right o individual conicts with the right o state to ac$uire property. % person has a right not to be deprived o his property except through due process o law. These two rights 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 be resolv resolved ed more more in avour avour o citi#en citi#ens s by limiti limiting ng the power power o eminent eminent domain. domain. Thereor Thereore, e, property is an institution governing the control and allocation o material ob&ect, and placed ultimate control over scarce resource in the hands o individual. 'n private property system, indivi individua duals ls are are grante granted d powers powers over over the contr control ol and use o resou resourc rce. e. The most most obviou obvious s maniestation o vesting control in a single person is characteri#ed as an ability to exclude others rom access to or use o the same resource in considering the diferent approaches to the the den denit itio ion n o priv privat ate e prop proper erty ty in difer diferen entt lega legall syst system ems. s. The The dist distin inct ct and and commo common n denition or Constitutional property can be ofered. The aim o the private law is to regulate relationships between individuals, thereore, denition o property in private law depends on the diferent aspects o the legal relations among individuals, but aim o constitutional law is to regulate relationship between individual and state, thereore, state protects the property right o individuals. (or example, th amendment to )S Constitution provides that *nor shall any state deprived any person lie, liberty, property, without due process o law+. 'n 'ndia ater Constitution 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 right between state and individuals. Though the Supreme Court o 'ndia sought to expend the scop scope e and and ambi ambitt o right right to prop proper erty ty,, but but it has has been been prog progre ress ssiv ivel ely y curta curtail iled ed thro throug ugh h constitutional 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 the authority o law. !owever, regarding right to property what 5ind o protection given by the )S Constituti6n similar not identical/ protection provided by the 'ndian Constitution under %rticle %rticle 044%. (or (or better understandi understanding ng o %rticle 044% it is appropriat appropriate e to discuss the repealed provisions o %rticles -// and 0 along with Constitutional amendments.

 The demand or a guarantee o undamental right to property can be traced bac5 to the time o the "agna Carta, 27. That Charter set out the rights o the various classes o the medieva medievall commun community ity accor accordin ding g to their their needs. needs. 6ther 6ther ancien ancientt documen documents ts enrolle enrolled d on the stat statut ute e boo5 boo5 were were the the Petiti etition on o 8igh 8ight, t, 9 92: 2:,, the the ;ill ;ill o 8igh 8ights ts,, 9 9::- and and the the %c %ctt o  settlement, <4 inaugurated in =ngland an era o Constitutional government. 'n =ngland ater 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 national emergency the >ing could demand personal service within the realm. =ither the crown or a sub&ect may invade the land o another to erect ortications or the deence o the realm. The provisions o the ?eence %ct :12, which had been incorporated into the deence o the 8ealm %ct and it imposed conditions upon compulsory ac$uisitioning o land and provided or payment o compensation as a matter m atter o right to persons whose land had been ta5en over. Similar Similar provisions provisions could be seen in the )S Constitutio Constitution. n. The (ith %mendment %mendment to the %merican Constitution provides *@.. nor shall any person@.. deprived o his lie, liberty, or

property without due process o lawA nor shall private property be ta5en or public use without wi thout  &ust compensation.+  The 'ndian desire or civil rights had been traced its roots deep deep in the nineteenth century. century. (or the rst time the ;engal 8egulation ' o :21 1 authori#ed compulsory ac$uisition o  private property by the state. 't was implicit in the policies o the 'ndian Bational Congress in ::7, that 'ndians wanted same rights and privileges that the ;ritish masters en&oyed in 'ndia and the ;ruisers had or themselves in =ngland.'n :-1 also the Congress passed a resolution demanding demanding *xed *xed o tenure and immunity immunity rom rom D =nhancement =nhancement o land tax or suEcient suEciently ly long period o not less than sixty years. The demand or certain certain undamental undamental rights appeared appeared or the rst time in the Constitution o 'ndia ;ill, :-7. % series o resolutions adopted between -< and -- by the 'ndian Bational Congress, repeated the demands or civil rights and e$uality o status with =nglishman < %rticle 9 o this ;ill laid down a variety o rights including right to property/. 'n -- o the "ontaguFChelmsord 8eorms, the 'ndian Bational Congress at its special session held in ;ombay in %ugust -- demanded or the proposed Government o 'ndia %ct should include a *declaration o the rights o the people o 'ndia as ;ritish citi#ens.+: The next ma&or development was that inclusion o the seven undamental rights provisions in "rs. ;esants *Commo Commonw nwea ealt lth h o 'ndi 'ndia a ;ill ;ill+ + o -27 27.. 'n -29 29 the the 'ndi 'ndian an Bati Bation onal al Cong Congre ress ss pass passed ed a resolution or ta5ing steps in the councils to improve the condition o peasants and to protect the rights o labor. 'n compliance with the directions contained in the "adras Congress resolution o -2<, a comm commit itte tee e was was set set up to dra dratt a *S *Swa wara ra&& Cons Consti titu tuti tion on+ + or or 'ndi 'ndia a on the the basi basis s o a *dec *d ecla larat ratio ion n o righ right+ t+,, commi committ ttee ee came came into into being being in "ay "ay -2: 2:.. "oti "otila lall Behr Behru u was was its its chairman chairman and its report 5nown as the Behru 8eport, 8eport, contained contained an explanati explanation on o its drat Consti Constitut tution ion.. The repor reportt purpor purported ted to secur secure e the undam undament ental al rights rights includ including ing right right to property, that had been denied. The preamble preamble to the 'ndependence 'ndependence ?ay pledge that had been ta5en ta5en on 29th  Hanuary -04 aErmed the inalienable right o the 'ndian people as o any other people *to have reedoms and to en&oy the ruits o their toil and have the necessities o lie, so that they may have 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. Thereater, the Hoint Parliamentary Committee on constitutional reorms or 'ndia -00F 01/ elt a need or some general provision to be inserted in the Constitution %ct saeguarding private property against expropriation. The committee recommended that Constitution should secure the legislation expropriating the property o particular individual should be lawul only and expropriation conned or public purposes and compensation was to be determined by some independent authority. 'n -01, the Hoint Parliamentary Committee reused the 'ndians re$uest to include a list o rights in the -07 %ct. 6nly in -19 did the ;ritish tacitly ac5nowledge the validity o the 'ndia 'ndian n view view when when the the Cabi Cabine nett "iss "issio ion n Plan Plan su sugg gges ested ted that that to cons consti titu tute te an %d %dvi viso sory ry Commit Committee tee on undam undament ental al and minorit minority y rights rights to ma5e ma5e recom recommend mendati ations ons concer concernin ning g constitutional provisions. ;y -1<, it was commonly accepted belie that the state bore a ma&or responsibility or the welare o its citi#ens. The leaders o the independence movement made no distinction between the positive and negative obligations o the state. These were the two classes under which the basic rights o the 'ndian citi#en had been grouped in the Constitution o 'ndia.The proposal drated by the Consti Constitut tution ional al adviso advisor, r, ;.B. ;.B. 8au, 8au, was accept accepted ed by the SubFCo SubFCommit mmittee tee and classi classied ed as undamental rights including right to property and directive principles in Part ''' and part 'I, respectively. 'n Pro Pro.. >.T. >.T. Shahs Shahs drat drat Const Constitu itutio tion, n, a undam undament ental al right right to prope property rty was contemplated to be guaranteed. 't not only guaranteed the right to property but also allowed reas reasona onabl ble e rest restri rict ctio ions ns on the the righ right. t. %rti %rticl cle e J was was prepa prepare red d by the the su subc bcom ommi mitt ttee ee on undamental right D also specically guaranteed the right o property and restricted the power o the state to ma5e reasonable expropriation or public purposes only. only. 't also guaranteed &ust and ade$uate compensation or such expropriation. The drat report o the subFcommittee ormula ormulated ted ve ve speci specic c rights rights in which which the right to ac$uir ac$uire e prope property rty was one. one. This was contained in clause 1 which included right to reedom o movement throughout the )nion, to reside and settle in any part o the union and to allow any occupation, trade, business or proession. The other our rights were embodied in clause -.

Khen the subFcommitt subFcommittee ee reFassemble reFassembled d on %pril 1, -1< to reconsider reconsider the drat drat clause o %lladi >rishnaswami %yyarF initiated the discussion on the necessity or imposing limita limitatio tions ns on the right to reed reedom om in situat situations ions o grave grave emergen emergency cy and danger danger to the security o the state. The subFcommittee decided to bring the ve rights in the two drat clausesF clauses - L 1F under a single provision. The consolidated provision constituted clause 4 o the report o the subcommittee o which sub clause / dealt with the right to property. Subse$ Subse$uen uently tly,, the entir entire e clause clause was modie modied d by the amendme amendments nts o ?r. ?r. ;.8.%mbed5ar and %lladi >rishnaswamy 'yyar incorporated as clause : with subclauses e/ and / with the urther conse$uential change that subFclause d/ and / were renumbered as d/ L e/ respec respectiv tively ely. Khen Khen clause clause : came came up or consid considerat eration ion beor beore e the Const Constitu ituent ent %ssembly on %pril 04, -1<, HH", Bicholas 8oy pointed out that proviso to subFclause e / was put in purposely purposely in order order to saeguard saeguard the landed and other interests interests o minorities minorities and tribal people. !e pressed or the omission o the word Mreasonable so as to exclude the &udicial review review.. 'nterv 'nterveni ening ng in the debate debate,, Hawahar Hawaharlal lal Behru Behru suppor supported ted the deleti deletion on o the word word Mreasonable or the proviso to sub clause e/ "unshi moved three amendments. The third amendment proposed that subFclause e/ which guaranteed the right *to ac$uire property+ etc., should be so amplied as to cover also the right to *hold or dispose o+ property. Clause - o the interim 8eport o the %dvisory Committee provided that the state cannot ac$uire property or public use unless the law provided or the payment o compensation. Khile redrating the constitution clause :e/ and clause -/ became clauses 7/ / and 27. 'n  Hanuary -1: once again it was renumbered renumbered as %rts.0/ and and 21. %rticle 0 read / Sub&ect to the other provisions o this %rticle, all citi#ens shall have the right @@./ to ac$uire, hold and dispose o propertyA and @@.. 2/ Bothing in SubFclauses d/, e/ and / o the said clause shall efect the operation o any existing law, or prevent the state rom ma5ing any law, imposing restrictions on the exercise o any o the rights conerred by the said subFclauses either in the interests o the general public or or the protection o the interests o any aboriginal tribe. %rticle 21 read 2 N / Bo person shall be deprived o his property save by authority o law. 2/ Bo property, movable or immovable, including any commercial or industrial underta5ing shall be ta5en possession o or amount o the compensation or species the principles on ta5ing o such possess possession ion or such ac$uisitio ac$uisition, n, unless the the law provides or the payment payment o  compensation or the property ta5en possession o or ac$uired and either xes the amount o  comp compen ensa sati tion on,, or sp spec eci ies es the the prin princi cipl ples es on whic which, h, and and the the mann manner er in whic which, h, the the compensation is to be determined.  The committee commi ttee was o the opinion that no protection to any minority group was necessary in this %rticle. 0/ Bothing in clause 2/ o this %rticle shall afect D a/ The provisions o any existing law, or b/ The provisions o any law which the state may hereater ma5e or the purpose o imposing or levying any tax or or the promotion o public health or the prevention o danger to lie or property.  The %rticle, as so amended, amende d, was nally reFnumbered by the ?rating Committee Commi ttee at the stage o 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 any existing 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 conerred by the said subFclauses either in the interests o the general public or or the protection o the interests o any Schedu Schedule le Tribes. ribes. %s opinio opinions ns were were divide divided d on a guaran guarantee teed d right right to prope property rty when when the  &ustiability on the airness  airness o compensation came or consideration. Sardar Patel said that no discrimination should be made and compensation in all cases should be made &ustiable. 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 thereore the right to property should not be included as a undamental right. !owever, the right to private property was sought to be given constitutional protection in %rticle 21 o the ?rat Constitution. "unshi in his drat o the undamental rights included a clause clause that no person would be deprived deprived o his lie, 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 very important problemsN with the expropriation o property and compensation or it, and with preventive detention. The expression expression *due process o law+ in relation to property rights was considered by the subFco subFcommit mmittee tee on (undame undamenta ntall 8ights 8ights on "arch "arch 29, -1<. -1<. Two days days later later the members members reinorced their earlier decision providing that no private pri vate property could be ac$uired or public use unless the law called or the payment, according to principles previously determined or  &ust compensation or the property ac$uired. Khen this matter went to the %dvisory Committee, Committee, Govind Iallab Iallab Pant Pant said that i the Clause M&ust M&ust compensatio compensation n was adopted, adopted, the measures or the ac$uisition o private property or public purpose might be challenged in courts on the ground o inade$uacy o compensation and it would be held up the cases and awaiting or nal verdict o the Supreme Court which might ta5e several years, thereore, all social progress could be brought to a stand nil. !e urther, observed that the word Mpublic use is ambiguous and thereore, i this included governmental as well as social purpose it would create create diEculties diEculties by re$uiring re$uiring the state to pay ade$uate compensatio compensation. n. 8a&gopalac 8a&gopalachari hari said that that the the $ues $uesti tion on o &ust &ustnes ness s o comp compens ensat atio ion n will will go to the the cour courts ts with with the the resu result lt the the governmenta governmentall unctioning unctioning will be paraly#ed. paraly#ed. %ccording %ccording to %yyar, the word MCompensation MCompensation carried with it the idea o MHust compensation. ' the word M&ust was 5ept, every case will go to the (ederal Court. Thereore the word M&ust was to be dropped. =ven though some o the members did not wish to support this provision, according to them compensation itsel meant  &ust and air compensation. 8egarding #amindari abolition, they said that it would be unair not to give #amindaris &ust compensation. Closing Closing the debates debates Sardar Sardar Patel Patel observed observed that the discussion discussion had gone on a wrong wrong trac5. 't was not correct to assume that the ob&ect o the clause was to provide or the ac$uisition o #amindaris, as by the time the clause became law most o the #amindaris would have been li$uidated. Compensation would be paid or property ta5en, and there would be no expropriation. 'n the light o this explanation, the clause was adopted by the assembly without any alteration.Khen the ?rat Constitution was circulated or eliciting opinion, a number o  amendments and suggestions were received rom the members. )ltimately ater great deal o  consultation, the drating committee brought orward a compromise redrat o %rticle 21. The amendment was moved in the constituent assembly on September 4, -1-, by Hawaharlal Behru who observed at the outset that although the %rticle had given much discussion and debate the $uestions involved were relatively simple. !e said that there were two approaches one rom the point o view o the individuals individuals right to property property and the other rom rom that o the commun community itys s inter interest estDbu Dbutt these these two approac approaches hes did not necess necessari arily ly conic conictt with with each each other.Behru urther said that the drat %rticle was the result o a great deal o consultation and the result in act o the attempt to bring together and compromise various approaches to the $uestion. !e analy#ed the salient eatures e atures o the drat as N . There was no $uestion o any expropriation without compensation so ar as the Constitution was concerned A 2. ' property was re$uired or a public use, the state shall pay compensationA 0. The principle on which and the manner in which compensation shall be determined and paid shall be laid down by law A 1. Khen property was ta5en by the state or a public use air and e$uitable compensation should be paid. ;ut here uture millions o people may be afected. Thereore the ultimate balancing ma&ority can only be the sovereign legislatureA 7. Khile xing the amount o compensation or speciying the principles under which or the manner in which compensation was to be determined the parliament should be the nal authority and the &udiciary could not come into picture unless there was Ma gross abuse o the law or Ma raud on the ConstitutionA 9. (inally, (inally, in the case o ;ills ;il ls pending beore the legislature o a state, the &udiciary could have no intererence. ?ealing with the $uestion o land, Behru said that the Oamindari institution in 'ndia, is the 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 entire community. !.I. >amath, %lladi >rishnaswami %yyar, >.". "unshi and "rs. 8enu5a 8ay urged that the power to determine compensation should be exclusively vested in the legislature whose decision should not be open open to chal challe leng nge e in any any cour courtt and and with with this this ob&e ob&ect ct in view view they they su sugg gges este ted d cert certai ain n

amendments to clause 2/ o %rticle 21. %ccording to "rs. 8enu5a 8oy regarding $uantum o  compensation the legislature will have the supreme voice. 6n the other hand, Tha5urdas ;hargava and "ahboob %li ;aig elt that it is not only nonF&u nonF&usti sticia ciable ble it, went went agains againstt the right right to prope property rty as recog recogni# ni#ed ed under under drat drat %rticle %rticle  Thereore they supported the idea to pay proper and air compensation. Similar views also expressed by Ba#iruddin %hmed and Haspat 8oy >apoor. 8egarding clause 0/ o %rticle 21, there was not much discussion on it. 'n act it ofered them an additional saeguard in as much as it re$uired provincial bills providing or compulsory ac$uisition o private property to receive the assent o the President.0 Clauses 1/ and 9/ caused great resentment among the propertied interests as well as their opponents. 8egarding clause 7/ it was not discussed much. 't was commonly assumed that the State has the inherent right to exercise those powers which are necessary to secure peace, order and promote the health, morality and convenience o the people. >apoor moved an amendment wher where e by 3aws 3aws relat elatin ing g to evac evacue uee e prop proper erty ty was was soug sought ht to be exem exempt pted ed rom rom the the re$uirements o clause 2/ o %rticle 21. "unshi, who replied to the debate at the re$uest o  Pandit Hawahalal Behru, called or the re&ections o all these amendments. %ll the amendments were negative and the %rticle as moved by Pandit Behru, with a ew verbal amendments emanating rom Shri >ala Ien5ata 8ao and >apoor were approved and nally became %rticle 0 o the Constitution 02 which readN / Bo person shall be deprived o his property save by authority o law 2/ Bo property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial underta5ing, shall be ta5en possession o or ac$uired or public purposes under any law authoring the ta5ing o such possession or such ac$uisition, unless the law provi provides des or compen compensat sation ion or the propert property y ta5en ta5en possessi possession on o or ac$uired ac$uired and either xes the amount o the compensation, or species the principles on which, and the manner in which, the compensation is to be determined and given. 0/ Bo such law as is reerred to in clause 2/ made by the legislature o a state shall have efect unless such law, having been reserved or the consideration o the President, has received his assent. 1/ ' any ;ill pending at the time o commencement o this Constitution in the legislature o a state has, ater 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 the law law so asse assent nted ed sh shal alll not not be call called ed in $ues $uesti tion on in any any court court on the the grou ground nd that that it contravenes the provisions o clause 2/A 7/ Bothing in clause 2/ shall afectF a/ the provisions o any existing law other than a law to which the provisions o clause 9/ apply, or b/ the provisions o any law which the state may hereater ma5eF i/ or the purpose o imposing or levying any tax or penalty, or ii/ or the promotion o public health or the prevention o danger to lie or property, or iii/ 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 property 9/ %ny law o the state state enacted enacted not more more than eighteen eighteen months months beore the commencement commencement o this Constitutio Constitution n may within within three three months rom such commencement commencement be submitted submitted to the president or his certication i it is certies, it shall not be called in any court on the ground that it contravenes the provisions o clause 2/ o this %rticle 0 or has contravened the provisions o sub section 2/ o  section o the Government o 'ndia %ct, -07. %ter independence, no (undamental right has caused so much trouble and has given so much o litigation between the government and citi#ens as the property right. The reason is that the central and state governments have enacted massive hysteron o laws to regulate propert property y rights rights.. (irst, irst, the govern governmen mentt underto undertoo5 o5 to recon reconstr struct uct the agraria agrarian n econom economy, y, interalia, interalia, by trying to coner right to property on tillers, abolition o #amindaris, giving security o tenu tenurre to tena tenant nts, s, xing xing a ceil ceilin ing g limit limit on pers person onal al hold holdin ing g o agric agricul ultu tural ral land land and and redistributing 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, govern government ment has underta underta5e 5en n to regula regulate te privat private e enterp enterpris rises es and nation nationali# ali#ati ation on o some some commer commercia ciall undert underta5i a5ings ngs.. These These variou various s legisl legislati ative ve measur measures es have have been been underta underta5e 5en n to efectuate accepted goal o establishing a socialistic pattern o society. society. !ence !ence %rticl %rticles es 001 001 and -/ -// / 07 were were repea repealed led.. !istor !istorica icall evolut evolution ion and demise demise o  repealed %rticles 0 and -// are still relevant or the understanding o constitutional developments o property right. Since the commencement o the Constitution undamental right conerred by %rticle 0 and %rticle -// has been modied by six times by the constitutional amendments. The rst amendment added two explanatory %rticles 0F% L 0F; to the ConstitutionA the ourth amendment amended clause 2/ o %rticle 0, added clause 2%/ 2%/ to the same %rticle %rticle,, insert inserted ed new provi provisio sions ns in %rticl %rticle e 0F% 0F% and enlarg enlarged ed the ninth scheduleA scheduleA the seventeent seventeenth h amendment amendment urther elaborated elaborated the denition denition o Mestate Mestate in clause clause 2/ o %rticle 0F%A and the twenty th amendment amended %rticle 02/, added clause 2F;/ and added a new %rticle 0FC. 'n the orty second amendment %rticle 0FC was substituted by the words * the principles specied 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 as originally enacted was in the ollowing termsN %rt 0/ no person shall be deprived o his property save by authority o law. 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 or ac$uired and either xes the amount o the compensation, or species the principle on which, and the manner in which the compensation is to be determined and given. 0/ Bo such law as is reerred to in clause 2/ made by the legislature o a state shall have efect unless such law, having been reserved or the consideration o the president, has received his assent. 1/ ' any bill pending at the commencement o this Constitution in the legislature o a state has, ater 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 to shall not be cancelled in $uestion is any court on the ground that it contravenes the provisions o clause2/. 7/ Bothing in clause 2/ shall afect a/ The provisions o any existing law other than a law to which the provisions o clause 9/ apply, or b/ the provisions o any law which the state may hereater ma5e D i/ or the purpose o imposing or levying any tax or penalty, or ii/ or the promotion o public health or the prevention o danger to lie or property, or iii/ 'n pursuance pursuance o any agreement entered entered into between the government government o the domination o '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. property. 9/ %ny law o the state state enacted enacted not more more than eighteen eighteen months months beore the commencement commencement be submitted to the president or his certication, and thereupon i the president by public notication so certies, it shall not be called in $uestion in any count on the ground that it contravened contravened the provision provisions s o clause 2/ o this %rticle or has contravened contravened the provisions provisions o  sub section 2/ o section o the government o 'ndia %ct -07. Guaranteed to every citi#en o  'ndia 'ndia the right right to ac$uir ac$uire, e, hold hold and dis dispos pose e o prope property rty nally orty ourth ourth amendme amendment nt repealed the entire %rticle 0 and %rticle -// L inserted %rticle 044%. ;eore discussing the constitutional protection given to the property rights, it will be useul to examine the meaning attached to the term property and changes in its concept in recent years.The term property as used in the 'ndian Constitution has been let undened and it 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 Supreme Cour Courtt or the rst rst time time in Chiranjit lal Chandhari v. Union of India .  The $uestion was regarding the right o ordinary share holder to vote at a general meeting as property. The Supre Supreme me Court Court held held that that such such right right could could only only be regar regarded ded as prope property rty which could be ac$uired, disposed o or ta5en possession o, this was with reerence to the %rticle -//.  This decision did not help much in solving the $uestion what protection property right carries. 'n commissione commissionerr 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 wider meaning and should not be extended to those wellFrecogni#ed types which have the sigma or characteristics o property rights. 'n this case the oEce o a "ahat was held to be a property because because the elements o re and property property o duties duties and personal interests interests blended together together and neither can be detached rom the other. 'n Saghir Ahmad v. State of Uttar Pradesh 12 the same learned &udge held that the right to play motor vehicles or gain is an interest is a commercial underta5ing and the prohibition o it i t amounts to deprivation o property within the meaning o %rticle 02/. The above three cases are a ew representative pronouncements on the$uestion o  meanin meaning g o proper property ty and they show show a denite denite trend. trend. The Supreme Supreme Court uses uses the word property in the widest sense to include not only corporate but also the incorporate one. (rom this angle whatever has an economic value is considered as property and the decision in Saghir Ahmed v. State of Uttar Pradesh % signies the extent to which the concept o  property can be dragged. ;ut the Supreme Courts decision did not ma5e it clear as to whether it was only the right o existing permit holders to ply the motor vehicle which constituted property or the right o every person who has the right to do business under %rticle -/g/. So ar as the acts o the case are concerned, it can be contended that the petitioners ac$uired goodwill in the business is denitely property. ;ut the language o the  &udgment does not ma5e any distinction between the claims o existing permit holders and those who have claim to get permit under %rticle -/g/. Khen property is considered to be not only corporate but also incorporeal, the $uestion arises as to when one right out o the bundle o rights which is the sum total constituting the corporal property will itsel be property. The answer to this $uestion has been dependent on the mar5etability and exchangeability o the right in $uestion.' the right can be ac$uired, held and disposed o separately rom the corpus to which it is attached, it will be property, but otherwise not. 6n this reasoning the right o shareholder to vote at a general meeting was not considered as property separately rom the share. This demonstrates the dependence o the constitutional protection o property not only on the current ideal relating to property but also on the the exis existi ting ng law law whic which h give gives s reco recogn gnit ition ion to cert certai ain n inte intere rest sts s and and prov provid ided ed or or thei theirr mar5etability. 'n the recent recent case case o M.M Pathak v. Union of India the Supreme Court reiterated 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 must have 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 and cash 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 coners the the right right to ac$u ac$uir ire, e, hold hold and and disp dispos ose e o prop propert erty y aErm aErmat ativ ively ely su sub& b&ec ectt to reas reason onab able le restriction under clause 7/ %rticle - i.e., in the interest o general public and schedule tribes. %rticle 0/ specically protects the right to property by imposing a prohibition on the state against deprivation, except by authority o law. %rticle 02/ enunciates the re$uirements o a law by which property is ta5en possession o or ac$uired or public purpose by the state. 'n )nited States, States, right to property is protected protected by th amendment amendment to the constituti constitution on in the simple ormula that Mno person shall be @ deprived o his lie, liberty and property without due process o law. 'n 'ndia ater independence the then Congress ruling party had repeatedly expressed its ob&ective to abolish all the intermediaries between the state and the tiller o the soil with a view to improve the conditions o lie o the tiller who bore a heavy burden and also to promote the agriculture economy o the country. =ven beore the Constitution came into orce some o the states had introduced legislations with a view to able to achieve this purpose. )nder %rticle 01/ and 09/ legislations were enacted so that the power o e minent domain exercised in respect o the intermediary landed interests but shall not be sub&ected to the condition o payment o compensation provided under %rticle 02/. %rticle 07/ 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 or these purpose were however ound to be inade$uate.  This led to enact rst Constitution %mendment %ct,-7, which inserts %rticles 0F % and 0F; read with -th Schedule in the Constitution.19 The Constitution st amendment/ %ct, -7

added new provisions to the Constitution vi#, %rticles 0F% L 0F; along with Binth schedule. 't is indeed very important to 5now the history o introduction o %rticle 0F% and %rticle 0F; with ninth schedule to the Constitution. %rticle 0F; though a part and parcel o the chapter o  undamental rights, does not by itsel give any undamental right. 6n the contrary, it puts certain restriction on right to property and it was believed that %rticle 0F; was an exception to %rticle 0. The then Government in power, soon ater the independence undertoo5 to achieve the ollowing tas5N / To reconstruct the agrarian economy, interalia by trying to coner right o property on the tiller, abolition o #amindars, giving security to tenure to tenants, xing a ceiling limit on personal 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 on urban land ownership, etc., 0/ To To regulate private enterprise and nationali#ation o some commercial underta5ings. 'nteresting cases in the property law have arisen and important constitutional battle were ought in the Supreme Court due to eforts o the government to implement above policies in practice. The most signicant controversy in these cases was the $uestion o payment o  compensation or the property ac$uired. The protection o agrarian reorm legislations 1: rom abstractive litigations was one o the prominent policies o the Constitution ma5ers in molding the Constitution as an instrument o social change and a lever o socio economic  &ustice. !owever, the inade$uacy o protection under %rticle 01/ L 9/ was soon reali#ed ater ater Patna atna !igh !igh Court Court decision decision in Kameshw Kameshwara ara Singh Singh v. State State of Bihar Bihar. % %bolition o  #amindari came rst and oremost issue in economic programme o the ruling party. ;ut payment payment o compensation compensation posed particularly particularly a diEcult diEcult problem as it appeared to be beyond the nancial resources resources o the country country to pay &ust e$uivalent o the interest interest to be afected by such su ch prog progra ramm mme. e. To ensu ensurre that that su such ch legis legislat latio ion n did did not not run run into into heav heavy y weat weathe her, r, the the ConstitutionFramers provided a inbuilt saeguard in the constitutional provision relating to property right, vi#., the use o the word compensation in %rticle 02/ without any ad&ective li5e li5e M&ust M&ust or Mreas Mreasona onable ble, , it was thoug thought, ht, would would ensur ensure e that compen compensat sation ion need need not necessarily be ade$uate or e$ual to the property interests afected. 'n the course o time, this provision proved inade$uate to immune the land legislation rom  rom challenge in courts. The word compensat compensation ion came to be interpreted interpreted as M&ust M&ust compensatio compensation. n. 3egislation 3egislation pertaining pertaining to land could also be challenged challenged under other Constitutional Constitutional provisions, provisions, especially under %rticles 1 and -//. 6n this ideology some land legislations were declared invalid. ;iha ;ihar, r, )tta )ttarr Prad Prades esh h and and "adh "adhya ya Prad Prades esh h exec execut uted ed cert certai ain n legis legisla lati tion ons s whic which h may may be compendiously be reerred to as #amindari abolition %ct. 'ssue was the Constitutional validity o ;ihar 3and 8eorms %ct,-74 which had abolished the #amindari system and provided or compensation compensation to be paid at twenty twenty times in case o ac$uired ac$uired land held by a poor man and at three times in case o ac$uired land held by a rich person. The Patna !igh Court held that although there could not be a challenge in the matter on ade$uacy o compensation in the view o %rticle 01/ and 9/, the statute was violative o %rticle 1 as it discriminated between #amindars. 't is submitted that court did not appreciate reormative spirit o e$uality as a policy underlying the statute because it wrongly accommodated e$uality as a legal spirit under %rticle 1, it classied the #amindar, or the purpose payment o compensation, in a discriminatory manner. The Patna !igh Court struc5 down certain provisions o the ;ihar 3and 8eorms %ct -74, as unconstitutional. 6n the other hand, the %llahabad L Bagpur !igh Courts upheld the corresponding legislations in )ttar Pradesh L "adhya "adhya Pradesh respectively. respectively. Khile appeal against these !igh Courts were pending beore the Supreme Court, the )nion Government reali#ed the unanticipated diEculties which had arisen in implementation o land reorm measures. measures. The central government anxious anxious o dilatory dilatory litigation and hurriedly hurriedly came to rescue the state land reorm measures with a view to put an end to all litigations relating to land reorms and save the state land reorm measure by suitably amending the Constitution. 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. To overc overcome ome this this diE diEcu culty lty,, then then Prime Prime "inist "inister er Behru Behru intro introduc duced ed the Consti Constitut tution ional al (irs (irstt %mendment/ ;ill in 3o5 Sabha Provisional Parliament/ on :th "ay -7. =ight days ater its introduction, 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<.

%rticle 0F% smoothened the process o #amindari abolition, it did not immune the legislation dealin dealing g with with other other aspect aspects s o agraria agrarian n econom economy, y, e.g., e.g., xatio xation n o ceilin ceiling g on agricu agricultu ltural ral hold holdin ings gsAA the the deve develo lopm pmen entt o villa illage ge panc pancha haya yats ts or or efec efecti tive ve villa illage ge plan planni ning ng and and managementA the consolidation o ragmented holdings. 'n course o time, it was also elt that protection be extended to some types o industrial law as well, such as, temporarily ta5ing over management o industrial concerns. !ence, the scope o %rticle 0F% was extended by the the Cons Consti titu tuti tion on (ou (ourt rth h %men %mendm dmen ent/ t/ %c %ct, t, -77 77.. by addi adding ng a ew more more cate catego gori ries es o  deprivation deprivation o property which were were to be immune rom an attac5 under %rticles 1, - L 0. =xemption now extended rom the area o agriculture land reorm to industry L mining. %rticle 0F% is still a part o the Constitution, with the repeal o %rticles '-l// and 0, much o the ration rationale ale underly underlying ing in %rticle %rticle 0F% 0F% has dis disapp appear eared. ed. %rticle %rticle 0F% 0F%// prote protects cts rom rom the operation o %rticle 1 and -// a law providing or the ollowing NF a/ The ac$uisition by the state o o any Mestate or o any rights therein therein or the extinguishment or modication o any such rightsA or, b/ The ta5ing over o the management o any property by the state or a limited period either in 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 secure proper management o any o themA or, d/ The extinguishment or modication o any rights o managing agents, secretaries and treasurers, managing directors or directors, managers o corporations, or o any voting rights o shareholders thereoA or, e/ The extinguishment or modication 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 the premature termination or cancellation o any such agreement, lease or license.  The protection o %rticle 0F%/ does not apply to a law made by a state legislature unless it has been reserved or the Presidents consideration and has received his assent. Estate:  The term Mestate in the %rticle 0F%/a/ raises its own problem o connotation. The word estate does not have uniorm meaning throughout the territory in 'ndia its connotation varies varies rom place place to place. place. !ence, one unior uniorm m denit denition ion o Mestat Mestate e could could not met the situat situation ion.. To achiev achieve e compre comprehen hensiv sive e agraria agrarian n reor reorm m throug throughou houtt the countr country y it was elt necessary to cover all shades o meaning o the term Mestate. %ccordingly %rticle 0F%2/a/ explains the term Mestate would have the same meaning as is given to it by a local law relating to land tenures. Thus, to dene the word Mestate one has to loo5 to the relevant local law and adopt the denition given therein. =ven this strategy could not solve all the problems.  There could be cases where where the local law does not dene estate. estate. To To cover such situation, %rticle 0F%2/a/ says that i in any area the term Mestate is not dened, then its local e$uivalent would be included therein. To determine whether a term used in a local law is an Me$uivalent Me$uivalent o Mestate or not, the basic concept o Mestate Mestate has to be 5ept dened in section section 0F% 0 F% 2/ 2/a/ a/ in view view whic which h is that that ther there e must must be land land payi paying ng land land reve revenu nue e and and held held in accordance with a law relating to land tenures. The term corresponding to this basic concept may be ta5en as the local e$uivalent o Mestate. %rticle 0F%2/a/ urther explains that the term estate includes any &agir, inam or mua or other similar grant. ;eore ;eore the erala %grarian 8eorms %ct o -9 was struc5 struc5 down down in Karimbil Kunhikonam v. Kerala .Supreme Court held that the local law in South Canara so dened the term Mestate as not included ryotwari tenures and, thereore, a law see5ing to ac$uire ryotwari was not protected under %rticles 1 and -, and it could be tested by %rticle 1. To overcome this diEculty two new clauses, %rticle 0F %2/a/ ii/ and iii/ were added to the Constitution by seventeenth amendment to bring ryotwari settlement settlement within the term Mestate Mestate and also *any land held or let or purposes o agriculture agriculture or or purposes ancillary thereto, thereto, including waste or vacant vacant land, orest land, land, land or pasture pasture or sites o buildings and other structures occupied by cultivators o land, agricultural labourers and village artisans.+ Thus, the connotation o Mestate has been urther broadened and the entire corpus o agrarian land legislation has now been immuni#ed rom challenge under %rticle 1 and -. !owever, i some land is not Mestate as dened in %rticle 0F%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 to any any chal challen lenge ge unde underr %rti %rticl cles es 1 and and -.. 't prot protec ects ts a law even even i it is con consc scat ator ory y or discri dis crimin minato atory ry or compen compensat sation ion payabl payable e under under it is illuso illusory ry.. Thus, Thus, tenanc tenancy y legisl legislati ation, on, howsoever drastic, is protected under %rticle 0F%l/a/.Prima acie, %rticle 0F%l/a/ appears to be applic applicabl able e to all 5inds 5inds o extin extingui guishm shment ent or modic modicatio ation n o estate estates s or whatev whatever er purpos purpose. e. ;ut in Kavalapp Kavalappara ara Kottarao Kottaraothil thil Kochunini Kochunini v. State of adras the Supreme Court read down this provision and held that its purpose was to acilitate agrarian reorms and, thereore, it would protect only such legislation as had reerence to agrarian reorm. In ajravelu v. S!e"ial #e!ut$ Colle"tor  a law providing or ac$uisition o land or urban development, such as slum clearance, housing schemes, creation o modern suburbs near towns, could not be protected under %rticle 0F%l/a/ as it had no relation to agrarian reorm. 'n Balmadies !lantation %td.& v. State of 'amilnadu it was held that while dealing with the provisions o Gudalur Hanman =state %bolition and Conversion into 8yothwari/ %ct that the ob&ect and general scheme o %ct was to abolish intermediaries between the State and cultiv cultivato atorr and help the actual actual cultivat cultivator or by giving giving him the estate estate o direct direct relati relations onship hip between himsel and the state. The %ct, as such in its broad outlines was held to be a measure o agrarian reorm and protected by %rticleF0F%. 'n the case o Kannan #evan (ills !rodu"e Co. %td.& v. State of Kerala the Supreme Court dealt with the provisions o >anan ?evan !ills 8esumption o lands/ %ct. 6ne o the $uestion which arose was that whether the three purpose mentioned in section - o %ct, namelyNF / reservation o lands or promotion o agriculture 2/ reservation o lands or welare o agriculture population 0/ assignment o remaining lands to agriculturists and agricultural reorm labourers could be protected under %rticle 0F% o the Constitution. C onstitution. Court held that the above three purpose were covered by the expression Magrarian reorms hence, section - o the %ct protected by the %rticle 0F% o the Constitution. 'n )odavari Sugar Mills v. S.B. Karable , >hanna H. said *the ollowing principles can be inerred rom the decided case in order to nd whether an impugnedenactment or ac$uisition o land is protected by %rticle 0F%.+ / %c$uisition o land by the state in order to en&oy the protection o %rticle 0F % should be or the purpose o agrarian reorm. 2/ %c$uisition o land by ta5ing it rom a senior member o the amily and giving it to a &unior member is not a measure o agrarian reorm. 0/ %c$uisition o land or urban slum clearance or or a housing scheme in neighborhood o a big city is not a me measure asure o agrarian reorm. 1/ %c$uisition o land by the state without speciying the purpose o which land is to be used is not a measure o agrarian agrari an reorm. 7/ Schemes o rural development envisages not only e$uitable distribution o land but also raising o economic standard and betterment o rural health and social conditions in the villages. Provisions or the assignment or hospitals, schools manure pits, tanning grounds ensure or the benet o the rural population and as such constitute a measure o agrarian reorm. 9/ Provision or reservation o land to promote agriculture and or welare o agricultural population constitutes, a measure o agrarian reorm. %grarian reorm is wider than land reorm. 
)walior *a$on + Silk Mfg. Co. %td .a law enacted in -< vest orest lands in the state without compensation and, thus, lands having standing timber worth cores o rupees were ta5en away without any compensation. %t the same time, %rticle 0l%l/a/ provided protection against %rticle 02/ which guaranteed compensation. The court held that the %ct valid under %rticle 0F%/a/ as a measure o agrarian reorm treating orest lands as agricultural lands.  The court emphasi#ed that once the legislative area is barricaded %rticle 0 %, it cannot be breached %rticles 1, - and 0. Second Proviso to the Article 31-A(1)(a)-(e) The seventeenth amendment while expanding the concept o Mestate, also imposed one limitation, I'O.A the land held by a person under his personal cultivation w hich is within the the ceil ceilin ing g limit limit xed xed by the the law, law, or any any buil buildin ding g or stru struct ctur ure e stan standi ding ng ther thereo eon n or as appu appurt rtena enant nt ther theret eto, o, woul would d not not be Mac$ Mac$ui uire red d by the the stat state e unles unless s the the law law prov provid ides es or compensation which is not less than its mar5et value. This is the efect o the second proviso to the %rticle 0F%/. Thus, the land o the cultivators which is within the ceiling limit xed by the law cannot be ac$uired without paying compensation at the mar5et value thereo. thereo. %ny law contravening this provision would be void. This provision see5s to coner some protection on small cultivators having small pieces o agricultural land or selFcultivation. ' their land is ac$u ac$uir ired, ed, they they sh shou ould ld at least least be comp compen ensa sate ted d at the the mar5 mar5et et valu value e o the the land land.. The The legislature may however pay more i it i t so li5es. Though this proviso proviso added by seventeent seventeenth h constitutio constitutional nal amendment, amendment, it has been placed at the end o clause it is, in act, a proviso to sub clause 0F%/a/, because its application is conned to a law or the ac$uisition o an estate onlyA it is not concerned with any other sub clause o clause. Secondly, it is to be noted that though it is a proviso, it not only constitute as a mere limitation on the legislative power, but also coners a corresponding undam undament ental al right, right, upon upon the the person person expr expropr opriat iated. ed. Third Thirdly, ly, under under the second second provi provisoD soDthe the person whose land is Mac$uired is to be Mcompensated being not less than that the mar5et value o the land, provided i/ such land is comprised in an estateA ii/ it is under his personal cultivationA and iii/ the $uantum o land so held by him is within the ceiling limit o holding. (urther, the second proviso inserted by seventeenth amendment, in the view o the act that the land held under a ryotwari settlement were brought under the purview o %rticled 0F %/ a/. Prior Prior to the insertion insertion o the second second proviso proviso to the %rticle %rticle 0F%/ 0F%/ a/. The, no comp compen ensa sati tion on was was paya payabl ble e in case cases s comi coming ng unde underr %rti %rticl cle e 0 0FF%/ %/a a/. /. The The righ rightt o  compensation under the 2nd proviso is better than the right conerred by the erstwhile %rticle 02/, because it guarantees the right to the mar5et price which was not available under %rticle 02/.  This obligation remains as a substantive liability o the state, notwithstanding the repealed %rticles -// or 02/ and efect o the amendment is prospective in nature hence, it would not afect any ac$uisition made beore 24F9F-91. % law in any case o ac$uisition violates the re$uirement o second proviso shall be invalid.Section 27 o the 3and %c$uisition %ct has been held to be unconstitutional as regards the actual tillers o the soil. )nder the Proviso to %rticle 0F%/, 0F%/, cultivator cultivators s have the right to be paid ull mar5et mar5et value or their land ac$uired ac$uired the state cannot ac$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 get compensation not less than the mar5et value o the lands, i the ac$uired land is within the ceiling limit and in personal cultivation. This is a undamental rightA and is a creature o the second proviso to %rticle 0%/a/,+ In  ,anabai -Smt v. %a/man )unaji 0anole held that section 7%2/ o the "aharashtra 8estoration o 3ands to Schedule Tribes %ct, -<7 could not be enorced against the persons who hold land which is under his personal cultivation and it is within the ceiling limit prescribed by the state. !owever, in Shivgonda Anna Patil v. State of Maharastra the Supreme Court held that absence o a provision regarding payment o compensation at mar5et rate or ac$uisition o excess vacant agriculture land was not violative o the second proviso to %rticle 0F%/ o the Constitution. Second proviso to the %rticle 0F%/ does not debar debar the the legis legislat latur ure e rom rom urt urthe herr redu reduci cing ng the the ceil ceilin ing g limi limitt once once it has has been been xed. xed. 'n Kunjakutti v. State of Kerala >erala 3and 8eorms %ct, -90, as amended by the >erala 3and 8eorms %mendment/ %ct, -9-. Section :2 reduced the ceiling limit and re$uired to surrender 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, the second proviso to %rticle 0F%/ must be held to reer only to the new ceiling limit xed by

the amended %ct. The ceiling limit originally xed, ceased to exist or uture the moment it was replaced by the amended %ct. The prohibition contained in the second proviso operates only within the ceiling limit limi t xed under the existing law at the given time.

;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 to prevent &udicial intervention with %cts intended to promote social change towards a more e$ual e$ual &ustic &ustice, e, and the consti constitut tution ional al goal goal o egalita egalitaria rianis nism. m. %rticle %rticle 0F% 0F% creat creates es doubt, doubt, whether %rticle 0F; illustrative o %rticle 0F%. The expression without pre&udice to the generality o the provisions in %rticle 0F; convey the massage protection mentioned in the %rticle is not limited to any particular %ct. (urther, the protection under %rticle 0F; is available against all the provisions o part ''' o  the Constitution. ;ut in case o %rticle 0F% such protection is limited to agrarian legislations only and protection against to the %rticles 1 and -. !ence, %rticle 0F; is neither illustrative nor nor su sub& b&ec ecte ted d to %rti %rticl cle e 0 0F% F%.< .<< < %rti %rticl cle e 0 0FF; stat states es that that vali valida dati tion on o cert certai ain n %c %cts ts L 8egulations without pre&udice to the generality o the provisions contained in %rticle 0F%, none o the %cts and regulations specied 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 the rights conerred conerred under part ''' o the constitut constitution ion and notwithstanding notwithstanding any &udgment, &udgment, decree or 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 in orce. Khen a competent legislature passes a law within the purview o clauses a/ to e/ o %rticle 0F%, it automatically receives protection under %rticle 0F% with the result that the law cannot be hallenged in any court on the ground ground that any o its provisions provisions violate %rticles 1 and -. 'n so ar as %rticle 0F; is concerned, it does not dene the category o laws which are to receive its protection, and secondly, going little urther than %rticle 0F%, 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 part o the Constitution. Bo additions or alterations can be made therein without constitutional amendments. Thereore by constitutional amendments all the Oamindari %bolitions laws were placed under the ninth schedule. Parliament enacted %rticle 0F% retrospectively, even though, may not be suEcient to ensure the validity o legislation which has already declared as void by the courts. 'n Kameshwar Sing case court held that it is advisable to have a urther provision i.e., %rticle 0F ; specially to bypass &udgments which stri5ing down such legislation. That seems to be the reason why %rticle 0F; was enacted and statutes alling within %ct 0F% were included in the ninth schedule also. 'n order to implement implement the above policies policies and to have agrarian agrarian reorm reorm and to establi establish sh social socialism ism,, the govern governmen mentt ac$uir ac$uired ed proper property ty o citi#en citi#ens s withou withoutt paymen paymentt o  ade$ ade$ua uate te comp compen ensa sati tion on as i had had no nan nanci cial al reso resour urce ces s to meet meet with with the the amou amount nt o  compensation. Citi#ens used to challenge the concerned ac$uisition laws on the ground that it violates violates undamental undamental right to property property.. The &udiciary &udiciary also tilt towards towards protecting protecting property right rights s bein being g und undam ament ental al righ rights ts under under %rti %rticl cles es - / // / and and 0 now now omit omitte ted d by 11 11th th consti constitut tutiona ionall amendme amendment/ nt/.. To come come out o this this situat situation ion,, to nulli nulliy y the &udgmen &udgments ts o the Supreme Court and to uplit the campaign o agrarian reorms, the parliament introduced the %rticle 0F; and ninth schedule to the Constitution in addition to %rticle 0F%. %rticles 0% L 0; represents a novel innovative and drastic techni$ue o constitutional amendments. 't immune immune the laws agains againstt all attac5 attac5 on the ground ground o breach breach o any undament undamental al rights rights guaranteed under part ''' o the Constitution. %rticle 0F;, does not by itsel give any undamental right. The %cts and regulations placed under under ninth schedule shall shall not be deemed to be void or ever to have become void on the ground o its inconsistency with any undamental right. 'n Kameshwar Kameshwar Singh case, the

Supreme Court said that no %ct brought under the ninth schedule could be invalidated on the ground o violation o any undamental rights. Kith Kith the intro introduc ductio tion n o the above amendme amendment, nt, it became became very easy easy or the Govern Governmen mentt to ac$uir ac$uire e propert property y and to carryo carryout ut difer diferent ent agraria agrarian n reorm reorms. s. (irstly irstly the ac$uisition laws under the ear o being challenged were inserted in the ninth schedule by the cons consti titu tuti tion onal al amend amendme ment nts s and and ther thereby eby the the conc concer erne ned d laws laws were were made made immun immune e rom rom challenge against any o the undamental rights guaranteed under part ''' o the Constitution.  Thus, it was not possible or a citi#en to challenge the constitutionality o any ac$uisition law by which his land has been ac$uired because, it placed under ninth schedule. "eans %rticle 0F; protected every legislation within the umbrella o the ninth schedule. %nother %nother signicant signicant characteristi characteristic c eature eature o the %rticle 0F; 0F; is that it is having retrospec retrospective tive efect. %s a result o this any legislation earlier declared as void by the Supreme Court on the ground that it violated any o the undamental rights, revives o such void legislation by inserting the legislation under ninth schedule by constitutional amendment. Supreme Court in State of Uttar Pradesh v. Brijendra Singh held that with this characteristic eature o  %rticle 0F; it became very easy or the parliament to validate any %ct already declared as unconstitutional, simply by constitutional amendment amendment putting such nconstitutional %ct under the ninth schedule. once a legislation legislation enters enters into the protectiv protective e umbrella umbrella o the Binth Schedule Schedule its constitutionality cannot be challenged, this position was maintained till the decision o the Supreme Court in Kesavananda Bharati case. 'n Kesvananda !harati v. State of Kerala the court by
landmar5 &udgment in I.*. Coelho Coelho -dead -dead b$ %.*. v. State of 'amil 2adu !" # others 244< 2 SCC'/ tried extensively to determine the nature L character o protection provided by %rticle 0F; to the laws added to the schedule by Constitutional amendments. Tamil Badu 8eserva eservatio tion n %c %ctt provi provided ded 9- percen percentt reserv reservati ation on or bac5war bac5ward d classe classes s has been been passed passed through theConstitution <7th amendment/ %ct, --1 placed under the ninth schedule to the Constitution and thus to ta5e the legislation out o the ambit o &udicial review. review. !owever, the Constitutional validity o Tamil Badu 8eservation %ct was challenged beore the Supreme Court on the ground o landmar5 &udgment in Indra Sawhne$ case. Supreme Court struc5 down the <7th amendment and held that 9-R o reservation to the bac5ward classes shall be arbitrary and is antithetical to the reasonable classication permitted under %rticle 1 o the Constitution. 8easonable classication is one o the basic structure o the Constitution. %ter the repeal o property right %rticle 0/ rom part ''' o the Constitution, there was no &ustication or continuing with anything li5e the ninth schedule.  The whole o it should have been scrapped. Similarly, &udicial review over the legislation is that the legislation which alter the basic structure o the Constitution belongs to the court cannot be ta5en away by any subteruges li5e ninth schedule. The  Hanuary, 244< &udgment in ".R #oelho $dead% &' L.R v. State of Tamil (adu restoration that position.  The TwentyFth TwentyFth %mendment o the Constitution in -< added a new clause, %rticle 0FC, to the Constitution. 6riginally, %rticle 0FC runs as ollowsN )(otwithstanding an'thing contained in Article *+ no law giving e,ect to the polic' of the state towards securing the principles speci-ed in clause $&% or clause $c% of Article + shall &e deemed 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 declaration that it is for giving e,ect to such polic' shall &e called in 3uestion in an' court on the ground that it does not give e,ect e,e ct to such polic'4 . )p to -<, the position position was that undamental undamental rights prevailed prevailed over the directive directive principles o state policy, and a law enacted to implement the directive principle could not be valid i it conicted with a undamental right. %rticle 0FC sought to change this relationship to some extent by conerring primacy on %rticle 0-b/ and c/ over %rticles 1, - and 0.-0 % new %rticle 0FC laid down that no law which declared that it was or giving efect to the principle specied in clause b/ L c/ o %rticle 0- would be called in $uestion on the ground that it is inconsistent with the undamental rights. Thus, %rticle 0FC was much broader than %rticle 0%. Khile %rticle 0% is limited to specied topics, %rticle 0FC was not so limited. 't did not lay down specic heads which were immuni#ed immuni#ed but let a general general power to the state legislatures legislatures to select any topic or adopt any measures which might purport to have some nexus with the ob&ectives under the %rticle 0-b/ L c/. %rticle %rticle 0FC thus dealt with ob&ects ob&ects with unlimited unlimited scope and it was added to provide provide protection to nonFagrarian reorms legislation as %rticle 0% was limited to agrarian reorms only. %rt 0C also contained a proviso that i a legislation contains declaration that it is or giving efect to %rticle 0, 0- clauses b/ L c/ it cannot be $uestioned on the ground that it does 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 debarred rom reviewing the same even i the law might not, in reality be concerning %rticle 0-b/ L c/.  The second part o %rticle 0FC originally sought to oust the &urisdiction o the the courts. The validity o %rticle 0FC was challenged in Kesvananda !harati v. State of Kerala it is also 5nown as undamental right case/. The Supreme Court held that basic eature o the Constitution cannot be altered even by constitutional amendment. ;y a ma&ority o
review. (or a law to get the protection o %rticle 0FC, the court has to determine whether there is a connection between the law in $uestion and %rticle 0-. ' the court nds that the domi domina nant nt ob&e ob&ect ct o the the law is to give give efec efectt to the the dire direct ctiv ive e prin princi cipl ple, e, it woul would d acco accord rd prot protec ecti tion on to the the law law unde underr %rtic %rticle le 0 0FC FC.. ;u ;utt i the the law law thou though gh pass passed ed seemi seeming ngly ly or or efectu efectuati ating ng the direct directive ive princi principle ple is, in pith pith and substa substance nce,, one or accomp accomplis lishin hing g an unauthori#ed purpose not covered by the directive principle, suchlaw could not protected under %rticle 0FC. 'n Mir3a!ur Moti Kureshi Kasab ,amat v. State of )ujarat  a state %ct totally totally banning slaughter o bulls and bulloc5s was challenged as imposing unreasonable restrictions under %rticle -/g/ read with %rticle -9/ in so ar as it banned slaughter o these animals above the age o 9 years when they become useless as drought animals. The state &ustied the %ct as being related to several directive di rective principles, such as %rticles 0-b/, 0-c/, 1< and 1: and thus ruled that the impugned %ct had no nexus with any o these ?irective principles and reused the protection o %ct 0FC. The court held that the %ct was unconstitutional in so ar as it banned slaughter o bulbs above the age o 9 years. 6n the the othe otherr hand hand,, in the the *astri$a *astri$a Mill Ma3door Ma3door Singh v. State of  Maharashtra/ the court ound a clear nexus between the impugned %ct and %rticle 0-b/.  The impugned %ct nationali#ed a spinning and weaving mills. The alternative to the nati nation onal ali# i#at ation ion woul would d be Mli$ Mli$uid uidat atio ion n and and unemp unemplo loym yment ent o all all the the empl employ oyees ees o the the underta underta5in 5ing+. g+. The %c %ctt ensur ensured ed contin continuan uance ce o the the undert underta5i a5ing ng as a produ producti ctive ve unit unit and continuatio continuation n in employment employment o all the employees. employees. Thereore, Thereore, the impugned impugned %ct undoubtedly undoubtedly was or efectuating the directive principles in %rticle 0-b/ towards securing the ownership and control o the underta5ing are so utili#ed as best to subserve the common good. The validity o the %ct could not thereore, be assessed under %rticles 1 and - because o the immunity conerred by %rticle 0FC. %rticle 0FC was amended, its scope was urther expanded, and it was sought to be made much more drastic, through the orty second constitutional amendment in -<9. The rst part o %rticle 0FC says that no law giving efect to any o the directive principles shall be deemed to be void on the ground o inconsistency with %rticles 1 and -. Thus primary is now sought to be given to all the directive principles and not only to %rticle 0- b/ and c/ over %rticles 1 and -. 'n Minerva Mills %td. v Union of India  A "inerva mills was nationali#ed and ta5en over over by the Centra Centrall Govern Governmen mentt under under the provi provisio sions ns o the Sic5 Sic5 Textile extile )ndert )nderta5i a5ings ngs Bationali#ation/ %ct, -<1. The petitioners shareholders and creditors o "inerva "ills 3td./ challenged the Bationalisation %ct on the ground o inraction o %rticles 1, -/ / and g/ and %rticle 02/. The Government contended that legislation was protected by amended scope o %rticle 0FC was ather enlarged by orty second amendment/. %rticle 0FC gives absolute primacy to ?irective Principles over (undamen undamental tal 8ights 8ights.. *The *The harmon harmony y L balanc balance e betwee between n undam undament ental al rights rights and direct directive ive principles is an essential eature o the basic structure o the Constitution. !owever, this harmony basic structure o the Constitution/ is discarded by orty second amendment and accordingly the scope o %rticle 0FC was enlarged by orty second amendment was declared as 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 0FC rom being challenged as violative o %rticles 1, - and 0 o the Constitution as the %ct is intended to secure the ob&ects contained in  %rticle 0-b/ o the Constitution. Khile considering the scope, ambit and validity o %rticle 0FC, the ma&ority &udgment in Kesanvanda !harati, !harati, held that the rst part o %rticle 0FC 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 be invalid. 6nce the conditions mentioned in %rticle 0FC are ullled 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 %rticle 02/. 'n Bhim Singhji v. Union of India / the )rban 3and Ceiling and 8egulation %ct, -<9, was held to be protected under %rticle 0FC. 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 lands to sub serve the common good. The %ct is thus intended to achieve and implement the purposes o %rticle 0- b/ and c/. ;ut section 2< thereo was held to be invalid as it imposed a restriction on the transer 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 considered the $uestion whether the Co5ing Coal "ines Bationali#ation/ %ct, -<2, was entitled to the protection o %rticle 0FC. The court ruled that the %ct in $uestion promoted the policy o  %rticle 0-b/. 8eerence in %rticle 0-b/ to *material resources+ o the community is not only to the the reso resour urce ces s owned owned by the the commu communi nity ty as a whol whole e but but also also to resour esource ces s owne owned d by indivi individua duall members members o the commun community ity. 8esourc esources es o the commun community ity do not mean public public resources only but include private resources as well. The word QdistributeQ in %rticle 0- b/ has been used in a wider sense so as to ta5e in all manner and method o distribution. 't includes, transormation o wealth rom private ownership into public ownership and is notconned to that which is already public owned. 'n Sanjeev Coke Mfg. Co$ Co $ case the court also re&ected the argument that a discr dis crimi imina nato tory ry law coul could d not not be prot protec ecte ted d unde underr %rti %rticl cle e 0 0FC FC.. *To ma5 ma5e it a cond condit itio ion n precedent that a law see5ing protection under the %rticle 0FC must be nondiscriminatory or based on reasonable classication is to ma5e the %rticle 0FC meaningless. ' %rticle 1 is not ofended, no one needs to give any immunity rom an attac5 based on %rticle 1.+ Thus, *where *where %rticle 0FC comes in %rticle %rticle 1 goes out.+ out.+ Bationali#a Bationali#ation tion laws have invariably invariably been held to be valid under %rticle 0FC. ' once the conditions mentioned in %rticle 0FC are ullled by law, no $uestion o compensation arises as %rticle 0 is expressly excluded. The $uestion o compensation becomes totally irrelevant. The court observed that *%rticle 0FC was not merely a pragmatic approach to socialism but imbibed a theoretical aspect by which all means o production, 5ey industries, mines, minerals, public supplies, utilities and service may be ta5en gradually under public ownership, management manageme nt and control+. The state o Tamil Badu enacted Tamil Badu State Carriages and Contract Carriages %c$uisition/ %ct, -<0 to nationali#ed the entire transport service as also part o the entire assets o the units thereo. The %ct was held valid and i sub serves the ob&ect o %rticle 0-b/ L 0FC which gives protective umbrella against %rticle 02/ the court cannot stri5e down the %ct merely because the compensation or ta5ing over the transport services or its units is not provided or.%rticle 0F? was inserted by 12nd amendment but it was omitted by the 10 rd amendm amendment ent.. 't sought sought to save save laws which provi provided ded or preven preventio tion n or prohib prohibiti ition on o antiF antiF nati nation onal al acti activi viti ties es or the the prev preven enti tion on o ormat ormation ion o or the the proh prohib ibit itio ion n o anti antina nati tion onal al associations. Such laws immune rom challenge on the ground o violation o %rticles 1, - or 0. Such immunity was conerred only to central laws. Thus the ma&ority at the centre could easily pave the path to dictatorship and on a party rule by outlawing other parties. (ortunately it was omitted by the orty third amendment. ame ndment. )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$uire, hold and dispose o  property though they are not in immediate possession thereo, but under %rticle 0/ the person is already in possession o property and then the deprivation is caused by the state. ;oth these %rticles were repealed by the (orty (ourth %mendment %ct, -<:. %rticle -// guaranteed to the citi#ens o 'ndia a right to ac$uire, hold and dispose o property. %rticle -7/however, permitted the state to imposed reasonable restrictions on this this righ rightt in the the inte intere rest st o gene genera rall publ public ic or or or the the prot protec ecti tion on o the the inte intere rest sts s o any any sche schedu dule led d trib tribe. e. The The expr expres essi sion on Mint Minter eres estt o gener general al publ public ic in %rti %rticl cle e -7 7// was held held synonymous with public interest. interest. 't did not mean that the interest 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 it includes public order, public health, morality etc. Khether a piece o legislation was in public interest or not was a &ustiable matter. % law designed to abate a grave nuisance and thus protec protectt public public health health or a law to prote protect ct the wea5er wea5er sections sections o the public, public, especia especially lly members o low castes 1 was held to be in public interest.

% restrictio restriction n to be Mreasona Mreasonable ble means it must not be excessiv excessive e or arbitrary arbitrary.. % ew examples 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 police without authority o law inringed %rticle -l//.The provisions in the Sea Customs %ct laying down 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 not smug smuggl gled ed all alls s on the the pers person on rom rom whom whom poss posses essi sion on the the good goods s have have been been sei# sei#ed ed.. The The provisions 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 'oulsor* Ac+uisition o& ,and The power o eminent domain is essential essential to a sovereign sovereign government government.. The provision o the th amendment to the Constitution o the )nited States is that private prop propert erty y cann cannot ot be ta5e ta5en n or publ public ic us use e with withou outt &ust &ust comp compen ensa sati tion on.. The The prin princi cipl ple e o  compulsory ac$uisition o property is ounded on superior claims o the whole community over an individual citi#en, is applicable only in those cases where private property is wanted or public use or demanded or the public welare. %ccordingly, the right o eminent domain does not imply a right in the sovereign power to ta5e the property o one citi#en and transer it to another, even or a ull compensation where the public interest will be in no way promoted by such transer. The limitation on the power o eminent domain is that the ac$uisition or ta5ing possession o property must be or a public purpose has been expressly engrated 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 C ourt pointed out in State of Bihar v. Kameshwar Kameshwar Singh % case that %rticle 02/, as it stood beore the amendment did not expressly ma5e, the existence o Mpublic purpose a condition precedent to the power o ac$uisition, but it was an essential ingredient o eminent domain, and the clause proceeded on theassumption that ac$uisition can be or a public purpose. %ter a scrutiny o the authorities, ?as H. in Kameshwa Kameshwarr Singh case, reached the conclusion that no hard and ast denition o *public purpose+ can be laid down or its concept, it has been rapidly changing in all countries, he ormulated as a wor5ing denition, that whatever urthers the general interest o the community, as opposed to the particular interest o the individual must be regarded as a public purpose. Parliament passed the rst amendment %ct adding two %rticles namely 0F% and 0F; with ninth schedule. %rticle 0F% gives protection to the agrarian laws, and %rticle 0F; gives protection to the laws which are placed 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 0F% and 0F; i.e., right to compensation or the property property ac$uired compulsorily or public purpose purpose covered by %rticle 02/ o the Constitution.- %lthough the ramers o the 'ndian Constitution chose not to prex the word &ust or reasonable or Made$uate to the word Mcompensation in %rticle 022/, this led to or the diEculty. %rticle 02/ as it stood beore its abrogation in -<: run as ollowsN ollow sN )(o propert' shall &e compulsoril' ac3uired or re3uisitioned save for a pu&lic purpose and save &' authorit' of a law which provides for ac3uisition ac3uisition or re3uisition re3uisitioning ing 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 law shall &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 02/ was substituted by the twenty th constitutional amendment in -< and later %rticle 02/ has been repealed but discussion thereon has been included here partly partly or its histor historica icall import importanc anceA eA partly partly to illust illustrat rate e &udici &udicial al activi activism sm and creat creativi ivity ty in interpreting the Constitution and partly because o a 5ind o tussle between the Supreme Court and parliament, as the constituent body, on the $uestion o compensation or property ac$uired. The controversy regarding ade$uacy o the payment o compensation was nally laid to rest by the ourth amendment to the Constitution. 't curtailed the powers o the courts to review law which authori#ed compulsory ac$uisition o property. property.  The ollowing cases gives bac5ground to the ourth amendment. 'n the rst three cases the states concerned attempted to deprive the owner benets o ownership without ta5ing over the property in $uestion. (irstly, irstly, in #warkadas Srinivas v. Shola!ur S!inning + 0eaving "o. %td .$the Sholapur Spinning and Keaving co. %ct o -74 enabled e nabled the government to ta5e control o the property

o Sholapur Spinning L Keaving Company. The $uestion was whether the %ct was invalid as it did not provide or compensation. The government did not ac$uire the property thereore government was contended that %rticle 0 clause 2/ providing or compensation did not apply since only clause / applied any authori#ed law was suEcient to deprive a person property right. %s clause / authori#es any deprivation o property under authority o law. law. The learned chie &ustice would postulate that the limiting power thereo is correct by clause 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$uisition by the state clause 2/ applied and compensation becomes payable. !ence, any deprivation o property should beN 1) Authoried b* la / (Article 31 clause 1) (%) Necessitated b* a ublic urose / (Article 31 'lause %) (3) Sub0ect to a*ent o& coensation.1% Secondly, Secondly, in Saghir Ahmed v. State of Uttar Pradesh % issue was based on the 8oad Transport Transport %ct, -7, which vested in the state government the road transport services in the interest o the general public. Supreme Court held that the %ct was unconstitutional as it ofended did not provide compensation/ the provisions o %rticle 02/ o the Constitution.  The act that passenger buses o the appellants had not been ac$uired or might not have been 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 a person o his interest in a commercial underta5ing even though state did not ac$uire or ta5e possession o it, attracted the provisions o %rticle 02/. State of 0est Bengal v. Subodh )o!al Bose is the third case relevant to the present present discussion. discussion. This case made it $uite clear that the obligation obligation o paying paying compensatio compensation n arose only where the state action resulted in the substantial deprivation o private property o  the individual. The Supreme Court held that the abridgment o right was not amount to substantial deprivation o the right to property within the meaning o %rticle 0. The Kest ;engal 8evenue Sales %ct :7- was declared void by the Supreme Court as it inringed %rticle 0 o the Constitution. The &udgment inthis case shed new light on the extent o protection o  property property rights under the Constitutio Constitution n Patan&al Patan&alii Sastri C.H. observed observed that the Constitutio Constitution n made a denite brea5 with the old order and introduced new concepts in regard to many matter matters, s, partic particula ularly rly relat relating ing to word word Mac$ui Mac$uisit sition ion which which is used used in narro narrow w sense sense in the Constitution it might have used in same sense in pre constitutional legislation. 'n ?ecember, -70 %rticle 0/ and 02/ came or interpretation beore theSupreme Court in State of 0est Bengal v. Bela Banerjee case. Provisions  Provisions o the Kest ;engal 3and 3and ?evelopment and Planning %ct, -1: provides or ac$uisition o land or a public purpose and xed the limit on the amount o compensation payable or the land ac$uired so that it may not not exce exceed ed the the mar5 mar5et et valu value e o the the land land on 0st ?ecemb ?ecember er -19 19.. 'mpu 'mpugn gned ed %c %ctt is a permanent enactment and lands ac$uired under it may be many years ater it came into or orce, ce, the the xin xing g o the the mar5 mar5et et valu value e on 0st ?ece ?ecemb mber er -19 19,, as the the ceil ceilin ing g on the the compensation without reerence to the value o the land at the time o the ac$uisition is arbi arbitra trary ry and and cann cannot ot be rega regard rded ed as due due comp compli lian ance ce with with the the lett letter er and and sp spir irit it o the the re$uirement o %rticle 02/ but state sought to support this ceiling o compensation on the ground that the legislature had been given under %rticle 02/ the discretionary power to lay down the principles which should should govern the determination determination o the amount to be given to the owner owner or the prope property rty ac$uir ac$uired. ed. Supre Supreme me Court Court held held that that such such princi principle ples s must must ensur ensure e compensation must be &ust e$uivalent o what w hat the owner has been deprived o. These our cases especially last two cases led the ourth amendment by which second proviso proviso to the %rticle 02%/ was added. %rticle 02%/ states *where *where a law does not provide provide or the transer o the ownership or right to possession o any property to the state or to a corpora corporatio tion n owned owned or controll controlled ed by the state, state, it shall shall not be deemed deemed to provi provide de or the compulsory compulsory ac$uisition ac$uisition or re$uisitio re$uisitioning ning o property, property, notwithstandin notwithstanding g that it deprives deprives any person o his property+. The net result o the ourth amendment to the Constitution was to nulliy the decisions o the our cases discussed above. 'n Chiranjit %al4s case it was held that %rticle -/ / would continue until the owner owner deprived o such property by authority o law under %rticle 0. ' there was Mdeprivation o  property under clause / o %rticle 0 by law, the citi#en was not entitled to compensate at all, while he was entitled to compensation i property was ac$uired or re$uisitioned under clause clause 2/ upon the point as to what is Mdeprivation Mdeprivation there there was conict. conict. 'n Kochunni Kochunni6s 6s case

court made it clear that clause / dealt with deprivation o property other than ac$uisition or re$uisition as mentioned in the clause 2/ and there could be no ac$uisition or re$uisition unless there was transer o ownership or a right to possession to the state or its nominee. 'oarison o& 'lauses 'lauses (1) # (%) o& Article 31 Clause Clause / and 2/ are not the same. The ormer ormer is the genus o which a species is reerred in clause 2/. 'n the clause 2/ o %rticle 0 deprivation is restricted to Mta5ing possession there is no such restriction and deprivation therein relation to Many mode o 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 / and not clause 2/. Clause / may be termed in mere parlance with Mpolice power o the state. Khile clause 2/ reers to the power o the eminent domain. Compensation is allowed only or the the latt latter er cate catego gory ry and and not not or or the the ormer ormer.. Thus Thus i under under Mthe Mthe poli police ce power power ther there e is a regulation or letting accommodation under the deence o 'ndia rules to enable eEcient prosecution o the war or the maintenance o essential supplies and services no compensation is liable while clause 2/ is a restriction restriction upon the powers o the legislature legislature clause / is not later is a limitation limitation on the executive while the ormer is a restrain on the legislature. Clause / cannot be challenged except on the ground o legislative competence. % law arising under the clause 2/ to be valid must rst ulll the terms o clause 2/ unless it is saved by clauses 1/ and 9/ or %rticles 0F% and 0F;. Since the word Mcompensation occurred in %rticle 02/, rom the inauguration o Constitution, the courts had had been aced with two critical critical $uestions. $uestions. / Khat was the the signicance signicance o the word Mcompensation  and 2/ Khat should be the role o the courts in this respect  The developments in this regard could be discussed in three stages. The word compensation in %rticle 02/ was not $ualied by any ad&ective li5e M&ust or Made Made$u $uat ate e.. Beve Bevert rthe heles less, s, the the cour courts ts too5 too5 the the posi positi tion on that that su such ch as omis omissi sion on was was immaterial, and the word Mcompensation standing alone by itsel meant M&ust and Me$uivalent compensation or the interest in the property ac$uired. 2his aroach as adoted in a nuber o& cases b* the Suree 'ourt vi. (1) #warkanath Srinivas v. Sola!ur S!inning + 0eaving Co. %td .$(%) %td .$(%) Saghir Ahmed  v. State of Uttar Pradesh 13 (3) Sate of 0est Bengal v. Subodh )o!al Bose 134 () State of 0est Bengal v. Bela Banerjee 135 135 2he 2he court ourt e ehasi asied ed tha that 6co 6coe ens nsat atio ion7 n7 ean eantt 60us 60ustt e+ui e+uiva vale lent nt77 to the the ro roer ert* t* ac+u ac+uir ired ed and and it is a  0usti8able atter hich the courts could ad0udicate uon. 2he sae rincile as alied in Madras v . #. 2amasiva$a 2amasi va$a Mudaliar. Mudaliar. % "adras law providing or payment o compensation or ac$uisition o ligniteFbearing land on the basis o the land value on %pril 2:, -1<, irrespective o the date o ac$uisition was held invalid. The court held that ree#ing land value with reerence to a specied date denied denied the the lando landown wners ers incre incremen mentt in land land valu value e sinc since e the the sp spec eci ied ed date date till till the the date date o  ac$uisition and this did not amount to Mcompensation as envisaged in %rticle 02/. Thus, beore -77, the Supreme Court had ta5en the position that a statute was liable to be struc5 down down as inrin inringin ging g %rticle %rticle 02/ on the the ground ground that Mcompen Mcompensat sation ion provi provided ded by it was inade$uate and compensation ought to be the &ust e$uivalent o the property o which a person was deprived hence, ade$uacy o compensation was a &usticiable matter. ii) 9udicial Interretation o& the ord 'oensation &ro 1! to 1!51 ;eore ourth amendment to the constitution the Central Government became uneasy at the  &udicial insistence on payment o ull mar5et value or the property ac$uired as it thought that it would place an onerous burden on the countrys countrys slender resources resources and would throw out o  year the envisaged socioFeconomic programme involving reconstruction o property relations.  Thereore, the Constitution (ourth %mendment/ %me ndment/ %ct,-77, amended the %rticle 02/ with a view to ma5e the $uestion o Made$uacy o compensation as MnonF&ustiable, The courts were now debarred rom going into the $uestion whether the $uantum o compensation provided by a law or the property property being ac$uired or re$uisitione re$uisitioned d by the state was Made$uate Made$uate or not.  This amendment however ailed to exclude exclude the courts completely rom rom the area o Mcompensation. 'n -9, in Burrakur Coal Co. v. India , a law ac$uiring coalFbearing land provided compensation only or the land but not or minerals therein. The Supreme Court reused to hold the law bad arguing that the $uestion o nonFpayment o compensation or

minera minerals ls ree reerr rred ed to ade$u ade$uac acy y o comp compen ensa sati tion on in whic which h the the cour courtt coul could d not not go. go. This This pronouncement was in accord with what the ourth amendment was designed to envisage. ;ut, thereater, the &udicial view underwent a change. 'n ajravelu v. S!e"ial #e!ut$ Colle"tor / the Supreme Court too5 the view that the amended %rticle 02/ still retained retained the word Mcompensation Mcompensation which meant that the meaning meaning o the express expression ion compens compensati ation on as given given to it in !ella !ella !aner7e !aner7ee e case had been accepted.  Thereore, a law provide or ac$uisition or re$uisition o property should provide or a M&ust compensation or what the owner was being deprived o. %lthough, under amended %rticle 02/, the principles prescribed under legislation the &ust e$uivalent compensation could not be $uestioned on the ground o inade$uacy yet, i the principles laid down were not relevant to the value o the property ac$uired at the time o ac$uisition, then court could intervene and scrutini#e the ade$uacy o compensation or validity o the principles. Thus, *i the compensation is illusory, or i the principles prescribed are irrelevant to assesses the value o the property at or about the time o its ac$uisition+ then it could be said that the legislature had played a raud on the Constitution. The compensation given might not be ade$uate, yet it should not be constitute as a raud on the legislative power. The court thus asserted a power o &udicial review on compensation in certain situations. 'n act, however, under the new norm, compensation could be less than the mar5et value o the property ac$uired. The new ormula was somewhat diferent rom, rather less rigorous than, the ;ella ;aner&ees ;aner&ees view, but still still the courts claimed claimed a oothold oothold in the area o compensatio compensation n and did not completely vacated the eld. 'n pursuance o this &udicial approach, in -9<, the Supreme Court declared invalid the "etal Corporation Corporation o 'ndia %c$uisit %c$uisition ion o )nderta5ing/ )nderta5ing/ %ct, %ct, -97 in Union of India v. Metal Cor!oration. %s it did not provide or the compensation within the meaning o %rticle 02/. The "etalCorporation was ac$uired on 6ctober 20rd, -97 with a view to providing or the ull develo developme pment nt o the lending lending deposit deposits s at #awar #awar 8a&ast 8a&asthan han// and or the exped expedien ientt completion o the scheme underta5en by it. )nder the %ct, there are principles or valuation o  its assets. / ac$uisition o unused e$uipments by the company which is in good condition were to be valued at the actual cost A 2/ the used e$uipment was to be valued at the written down 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 it was ac$uired ac$uired was relevant relevant to the xing o compensatio compensation n at the time o the nationali#ation nationali#ation o  the company nor did the doctrine o written down value accepted in the 'ncome Tax %ct aford guidance or ascertaining compensation or the used machinery. machinery. Thus two principles regarding valuation and compensation were irrelevant to the xation o the value o the machinery as on the date o ac$uisition. !ence the %ct was held invalid as it not providing compensation within the meaning o %rticle 02/.12 The law to &ustiy itsel had to provide or the payment o a M&ust e$uivalent o the land ac$uired or the principles laid down were relevant to xation o comp compens ensat atio ion n and and was was not not arbit arbitra rary ry then then,, ade$u ade$uac acy y o comp compens ensat atio ion n coul could d not not be $uestioned in any court. The court however insisted that i the principles are relevant to the xing o Mcompensation, and are not Marbitrary, then the Made$uacy o the resultant product could not be $uestioned in a court. The &udicial &udicial view appeared appeared to have undergone undergone some change change in )ujarat v . Shantilal . )nder the ;ombay Town Planning %ct,-77 a notication expressing intention o  the government to ac$uire a plot o land was issued in -12A the actual ac$uisition too5 place in -7<, and compensation was assessed with reerence to its mar5et value in -12. This was challenged on the ground that the value o the land determined with reerence to the date o  declaration o the intension to ma5e the scheme not on the date o actual ac$uisition hence, it could not be regarded as the M&ust e$uivalent o the property ac$uired. The Supreme Court upheld the %ct because the principle or determining Mcompensation laid down therein could not be said to be Mirrelevant to determination o Mcompensation, nor could the compensation be regarded as Millusory.17 Millusory.17 This decision corrected the view expressed in the metal corporation case, that even ater ourth amendment the expression *compensation+ in %rticle 02/ should continue to be interpreted as a M&ust e$uivalent o the property ta5en over by the state. Khile repudiating this extreme view, the principle was reiterated that the illusory character o the compensation or the irrelevance o the principles o valuation was still open to &udicial review. review. The dichotomy o the &udicial views expressed in Metal Cor!oration and Shantilal  case were that in the ormer case, the court laid emphasis on &ust e$uivalent o the property ac$uired, and, thereore, i the law in $uestion specied principles or xing compensation

or the property ac$uired to achieve that ob&ect then the ade$uacy o the compensation was not challenged in a court o law. 'n Shantilal case, case, the court repudiated the idea o &ust e$uiva e$uivalent lentA A it now had emphas emphasis is on compe compensa nsatio tion n and would interv intervene ene only only i it was illusory, or i the principles specied or the purpose were irrelevant. To To appreciate Shantilal ruling, it is necessary to remember that it is a wellFrecogni#ed principle o land ac$uisition that compensation is payable with reerence to its value on the date o notication ac$uiring the land and not on the date the state ta5es actual possession thereo. !ence, it had to uphold the law in Shantilal even i it involved dilution o the etal #orporation #orporation principle. The Shantilal case thus restored much greater reedom to the legislature to order compe nsation in the way it wanted or or any property ac$uired. The scope o &udicial review was restricted to the extreme situation o abuse o legislative power. The The ull ull impa impact ct o this this view iew is seen seen in the the Bank 2ational 2ationalisati isation on case. The gove govern rnmen mentt ac$u ac$uir ired ed the the unde underta rta5i 5ing ng o 1 named named ban5s ban5s unde underr ;an5 ;an5in ing g Comp Compan anie ies s %c$u %c$uisi isitio tion n and Transer ranser o )ndert )nderta5in a5ing/ g/ %c %ctt -9-, -9-, The %ct laid laid down down the princi principles ples or xation o compensation permitted the named ban5s to continue nonban5ing business and do even ban5ing business outside 'ndia in those countries where government controlled ban5s were not permitted to operate. The %ct was struc5 down by the Supreme Court has as an unconstitutional by a ma&ority o  to  on the grounds that i/ the prohibition o ban5ing busine business ss to the named named ban5s ban5s was hostil hostile e dis discri crimina minatio tion n orbid orbidden den by %rticl %rticle e 1A ii/ ii/ the princip principles les laid laid down down or xatio xation n o compens compensati ation on were were irrele irrelevan vantt and so what what would would be determined thereby was not compensation within the meaning o %rticle 02/A and iii/ there was an indirect restriction upon the carrying on o nonFban5ing business which is ofered under %rticle -//. This decision critici#ed on the ground that it runs counter to what the ourth amendment to the Constitution C onstitution is designed to achieve.  There is substantial truth in another criticism that the Supreme Court has oten been changing its view on compensation. 't naturally results into many diEculties in enacting social economic legislations. ;ut because o %rticles 0F% L 0F;, socio economic legislation could not be $uestioned in court o law. 6nly ew types o laws not alling within the purview o  %rticles 0F% L 0F; could be $uestioned under %rticle 02/. So long as right to property as a undamental right exists in the Constitution, it is the duty o the courts to apply it in a meaningul manner. The &udgment now clearly shows that %rticle -// would apply to ac$u ac$uis isit itio ion n o prop proper erty ty all allin ing g unde underr %rti %rticl cle e 0 02 2/. /. Ther There eor ore, e, an en$u en$uir iry y into into the the reasonableness o the Mprocedural provisions o an ac$uisition law will not be excluded. (or instan instance ce Mi a tribun tribunal al is authori authori#ed #ed by the %ct to determ determine ine compens compensati ation on or prope property rty compulsorily ac$uired, without hearing the owner o the property, the %ct would be liable to struc5 down under %rticle -//.+1: The &udicial view enunciated in the Bank 2ationali3ation case was not palatable to the central government which thought that it run counter to what the ourth amendment o  the the Cons Consti titu tuti tion on was was desi design gned ed to achi achiev eve e and and would would creat create e diEc diEcul ulti ties es in the the way way o  governments socioFeconomic programme. %ccordingly, %rticle 02/ was reconstructed by twentyFth constitutional amendment in -<.  The ma&or ma&o r change efected in %rticle 02/ in -< was that substitute the word Mamount or the word Mcompensation. The word Mcompensation had come to be interpreted by the courts as &ust e$uivalent o the property ac$uired. ;ut the word Mamount had no such connotation.  The purpose o the amendment thereore 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 also claried that the amount may be given wholly or partly otherwise than in cash. The tas5 o  xin xing g the the amou amount nt,, or layi laying ng down down the the prin princi cipl ples es on whic which h it was was to be paid paid,, must must be discharged by the legislature itsel and this matter could not be let to the discretion o the execu executiv tive. e. Thus, Thus, a legal legal provi provisio sion n leavin leaving g it entir entirety ety to the govern governmen mentt that that re$ui re$uisit sition ion property at any rate xed by its discretion violated %rticle 02/ as it ailed to speciy the principles on which the amount was to be paid or the property ac$uired. The efect o the change made in %rticle 02/ by substitution o the word amount or compe compensa nsatio tion n came came to be consid considere ered d by the Supreme Supreme Court in Kesvananda Bharati v . Kerala. The broad efect o the multiple &udicial opinions delivered was broadly as ollowsN amount 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$uired was is possible. )nder %rticle %rticle 02/, 02/, the state state could ac$uire ac$uire or re$uisitio re$uisition n o property property or a public public purpos purpose e only only. There Thereor ore, e, a legisl legislatu ature re had no power power *to ac$uir ac$uire e proper property ty or a private privateFF purpos purpose+. e+. ;y virtue virtue o =ntry =ntry 12, 3ist ''' o Sevent Seventh h Schedu Schedule, le, a legisl legislatu ature re could could ac$uir ac$uire e property even without a public purpose, but Q%rticle 02/ would be an obstacle or such law.  That obstacle would disappear i the law ell within the the compass o %rticle 0%. Since the existence o Mpublic purpose was an essential condition or ac$uiring or re$uisitioning o property under %rticle 02/, a law l aw enacted or the Mpurpose, but having no Mpublic purpose to support it, was unconstitutional. Khether a public purpose existed or not was &usticiable matter as stated by the Supreme Court in State of Bomba$ v. *. S. 2anji $ Qprima acie the Government is the best &udge as to whether Mpublic purpose is serv served ed by issu issuin ing g a re$u re$uis isit itio ion n orde order, r, but but it is not not the the sole sole &udg &udge. e. The The cour courts ts have have the the  &urisdiction and it is their duty to determine the matter whenever a $uestion is raised whether a re$uisition order is or is not or a Mpublic purpose. The courts however adopted a very liberal attitude on the $uestion o public purpose, and it was rare indeed or a court to hold that an ac$uisition o land was not or public purpose. The courts showed a good deal o  deerence 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, and ma5ing decisions o either the executive or the legislature as to Mpublic purpose nal and conclusive was held ultra vires under %rticle 02/. Section 90/ o the 3and %c$uisition %ct, :-1, provides that the declaration by the State Government the existence o public purpose or land ac$uisition *shall be conclusive evidence that the land is needed or public purpose.+  This provision would have been ultra vires %rticle 02/ had it not been protected under %rticl %rticle e 07/ 07/a/. a/. This This provi provisio sion n complet completely ely barred barred &udici &udicial al revie review w o public public purpos purpose e o an ac$u ac$uis isit itio ion n under under the the %c %ctt exce except pt when when it is Mcol Mcolou oura rabl ble e.. Beit Beithe herr the the meani meaning ng nor nor the the existence o public purpose under this %ct was &ustiable. The nding o the government under section 90/ was conclusive not only with regard to public purpose but also regarding its need and governments satisaction thereon. !owever, where ac$uisition would not serve any purpose, or where it was or a Mprivate purpose, it could be challenged as being Mcolourable. )nder %rticle 02/, the state could ac$uire or re$uisition property or public purpose only. only. The concept o Mpublic purpose connotes public welare. Kith the onward march o the concept o  socioFeconomic welare o the people, notions as to the scope o general interest o the community are ast changing and expanding. The concept o Mpublic interest is thus elastic and not static, static, and varies with time and needs o the society. society. Khatever Khatever urthers the general general intere interest st o the commun community ity as oppose opposed d to partic particula ularr inter interest est o the indivi individua duals, ls, may be regarded as public purpose. Khether a public purpose existed or not was a &usticiable matter as state tated d by Supr upreme eme Cour Courtt in State provision excluding excluding the State of Bo Bomba mba$ $ v. 2anji  2anji . provision  &urisdiction o the courts rom this area, and ma5ing decisions o either the executive executive or the legislature as to the public purpose nal and conclusive was held ultravires %rticle02/. % ew example o what held &udiciary as Mpublic purpose or which land could validly be ac$uired under %rticle 0 2/ are N i. (inding (inding accommodation or an individual having no housing accommodation. ii. !ousing a staf member o a oreign consulateA iii. %ccommodating an employee o a road transport corporation F a statutory bodyA iv. iv. %ccommodating a government servantA v. Bationali#ation o landA vi. %grarian reorm abolishing intermediaries between government and tille rs o the soilA vii. =stablishing an institution o technical educationA viii. Constructing houses or industrial labour by a companyA ix. Promoting coFoperative housing societies in ?elhi to relieve housing shortageA x. Planned development o ?elhiA xi. ?evelopment o housing, shopping and industrial sitesA

'n addition to the aboveFmentioned conditions imposed by %rticle 02/, a law made by a state legislature, and alling within the purview o %rticle 02/, has to ulll yet another cond condit ition ion vi#. vi#. it was not not to be efect efectiv ive e unti untill it had had been been rese reserv rved ed or or the the Pres Presid iden ent ts s consid considerat eration ion and had receiv received ed his assent assent.9 .9< < This This was the the efect efect o %rticle %rticle 00/. The purpose underlying in %rticle 00/ was to bring the state legislation providing or ac$uisition or re$uisition property under the central government control. So as to ensure that no un&ust expropriated legislation enacted by a state. Article 31 'lause () Clauses 1 and 9 o %rticle 0 is an exception to %rticle 02/. The present clause 1/ deals with pending ;ills i, a state legislates not union parliament/ relating to ac$uisition o property at the the time time o the the comm commen ence ceme ment nt o the the Cons Consti titu tuti tion on.. 6nce 6nce su such ch a ;ill ;ill is pass passed ed by the the legislature and assented by the president it is immune rom the *compensation clause+ o  %rticle 02/. % law covered by %rticle 0 clause 1 will be considered valid even though it does not comply with the re$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 %rticle 02/ cannot apply toNF . the provisions o any existing law other than a law to which %rticle 0/ applies. The latter stipulates that laws enacted more than eighteen months beore the commencement o the Constitution shall not be afected by %rticle 02/. 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 lie or propertyA or c/ law which is the result o  agreement between the government o 'ndia and any other country with reerence to evacuee property. 'n respect o the above categories o laws, courts shall have no power to examine their validity validity on the ground ground o want o provisio provision n or compensatio compensation. n. 'n Kamshwer Singh v. State of Bihar  court held that %rticle 01/ does not debar the court orm $uestioning the law on the ground o public purpose. Article 31 'lause (4) This clause clause provides provides that i a preFconst preFconstitutio itution n statute statute has been enacted enacted within within : months beore beore the Constitution Constitution came into orce orce beore beore 29th Han -74/ and it was submitted submitted or the Presidents certication by 29th Han -74, and was so certied, such statute cannot be $uestioned in any court on the ground o contravention o ade$uacy o compensation under clause 2/ o %rticle 0. 't will be seen that clause 1/ o %rticle 0 applied to the bills pending in 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. %rticle %rticle 02/ did not remove remove the bar o %rticle %rticle 1. % law could be challenged challenged on the basis o discrimination in the matter matter o payment o compensation. compensation. %rticle 02/ precluded precluded the challenge on ade$uacy o amount but not on discrimination, i any, law made discrimination betwee between n owners owners o land land under under li5e li5e circum circumsta stance nces s and condit condition ions. s. (or (or examp example, le, a person person whose land was ac$uired or construction o a hospital or a school could not be paid less amount than one whose land was ac$uired or any other lucrative pro&ect. Classication could not be made or the purpose purpose o payment payment o compensatio compensation n on the basis o the public purpose or which the land was ac$uired. %s regards the owner, he lost his land and it was immaterial or him whether his land was ac$uired or one or the other public purpose.  The $uestion concerning the interFrelationship interFrelationship between %rticles -// and 0 created diEculties and there were several changes in the &udicial view in this area. 'nitially, the &udicial view was that %rticle -// would not apply to a law Mdepriving, as distinguished rom, Mrestricting a citi#en o his property and the validity o law depriving a person rom his prop propert erty y could could be ad&u ad&udg dged ed only only under under %rti %rticl cle e 0 and and not not unde underr %rti %rticl cle e -l l/ // /.. ' an ac$uisition law was valid under %rticle 02/, the ac$uisition o property would be &ustied under, the law, and once the property ac$uired there was no property let in respect o which %rticle -//could apply. This This view view underw underwent ent a change change in KK Ko"kunni v. State of Madras  The  .The actual situation was that the petitioner was the holder o the >avalappara Sthanam having extensive propert properties ies attach attached ed to it. These These prope properti rties es consti constitut tuted ed an impart impartial ial estate estate in which which the members o the amily had no interest. The "adras legislature enacted a law declaring that sthanam 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 %ct by treating sthanam property, by a ction o law, as tarwad property, deprived the sthanees o their properties without compensation. The law was thus expropriat expropriator or in character character and on its ace stamped stamped with unreasonableness 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 ourth amendment to the %rticle 02/ in -77 had changed the position. ;eore this amendment, %rticle 0 / and 2/ were regarded as not mutually exclusive in scope and content, but as dealin dealing g with with the same same sub&ec sub&ectFm tFmatt atter, er, vi#., vi#., ac$uis ac$uisiti ition on or ta5ing ta5ing posses possessio sion n o proper property ty reerred to in %rticle 02/. 6n this view, %rticle 0 was a selFcontained provision providing or a sub&ect diferent rom that dealt under %rticle - and, thereore, to harmonise the %rticles - and 0, and to avoid overlapping between these two provisions, %rticle -// could not be applied to the Mdeprivation o property but such an analogy could not be drawn ater the ourth amendment. ;ecause %rticle 0/ and 02/ came to deal with two diferent conceptsN %rticle 0/ dealt with Mdeprivation o property by authority o law, and %rticle 02/ read with %rticle 0'2/%/ which dealt with Mac$uisition and re$uisition o property. property.  The law depriving a person o his property, as envisaged by %rticle 0/, should be a Mvalid law which meant that it should not inringe 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 l aw could be ad&udged ad&udged under under %rticle %rticle -7/. -7/. ?eprivation ?eprivation does afect afect the right to to hold, ac$uire ac$uire and possession o property. The biggest advantage o the %rticle -// was that procedural norms 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 saeguards against the exercise exercise o administrative power powe r.  The Supreme Court sought to away with this anomaly in the celebrated !an0  (ationali8ation case. 6verruling its previous pronouncements, pronouncements, the court held that %rticle -/ / would apply to the ac$uisition o property alling under %rticle 02/ and thereore, an *en$uiry into the reasonableness o the procedural provisions+ o an ac$uisition law was not excluded. Thus, *i a tribunal is authori#ed by the %ct to determine compensation o property compulsorily ac$uired without hearing the owner, the %ct would be liable to be struc5 down unde underr %rti %rticl cle e - / // /.+ .+ Thus Thus,, an ac$u ac$uis isit itio ion n law law had had to pass pass the the test test o proc proced edur ural al reasonablen reasonableness. ess. The challenge challenge to an ac$uisition ac$uisition law under %rticle %rticle -// -// was limited to the $uestion o procedural unreasonableness. 't was the culmination o the trend initiated by the court in Kochu ochunn nnii case case but, but, this this view view coul could d not not run run in very very long long.. ;y the the twen twenty tyF Ft th h constitutional amendment, a new clause, %rticle 02F%/, was added to say that nothing in the %rticle -// *shall afect any law as is reerred to in %rticle 02/.+ The idea was to ensure that a law enacted to, ac$uire any property by the Government would not be tested with reerence to %rticle -//. % law o ac$uisition was only to be ad&udged under %rticle 02/ but %rticle -// could still be invo5ed in case o deprivation. ort*-ourth Aendent (undamental (undamental right to property we had been studied as a ore ront o constitutional contr controve oversy rsy or over over twenty twenty ve years. years. ?espite ?espite o number number o amendme amendments nts since -7, -7, narrowing its scope, controversy did not subside. (undamental right to property came in the way o socioFeconomic reorms. 't was thereore, resolved by the Hanata Government by the Constitutional orty ourth amendment. The Constitution orty ourth amendment/ ;ill was introduced by the law "inister Shanty ;hushan, interFalias, or the above purpose in the house o the people on 7th may -9:. 't would however be ensured that the removal o property rom the list o undamental right rights s woul would d not not afect afect the the righ rightt o minor minorit itie ies s to esta establ blis ish h and and admin adminis iste terr educ educat ation ional al institutions o their choice similarly right o compensation at the rate o mar5et value or the property ac$uired which is within the ceiling limit and under his personal cultivation second prov provis iso o to %rti %rticl cle e 0 0F% F%/. /. The The ;ill ;ill soug sought ht to achi achiev eve e the the ob&ec ob&ecti tive ves s by ma5in ma5ing g ollo ollowin wing g amendments in the Constitution. (irst, deletion o %rticle -// which guaranteed to every citi#en right to ac$uire, hold and dispose o property. property. Second, addition o clauseF%/ in %rticle 04,vi#., in ma5ing law providing or compulsory ac$uisition o property o any educational institution established and administered by a minority, reerred in clause / o %rticle 04, the state 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. (ith, conse$uential changes in %rticles 0F% and 0FC. Sixth, insertion o chapter 'I in part J'' with the heading *right to property+. The chapter contained %rticle 044% which provides that *Bo person 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 . ?eo was opposes opposes to the amendment o %rticle -// as the property was necessary or the subsistence and wellF being o the people. There would not be any rational dispute on this except as to the $uantum and the 5ind o property property a person should be allowed to hold. There There was no democracy in the world in which the right to property was not recogni#ed. C.>. Chandrappan critici#ed the ?eos observation he, said that it was clear rom the history o human development that or the times immemorial human 5ind lived without property, private property was not something whic which h was born born alon along g with with the the huma human n being being but it was was an inve invent ntio ion n by the the huma human n or or exploiting others. The members should be happy that the proposed amendment would put an end to exploitation. This would add to human happiness because the right would no more be used by the &udiciary to stri5e at the very roots o the legislation by which society wanted to advance advance and struggle against eudalism eudalism and monopoly monopoly.. 8am Hethmalani Hethmalani accepted accepted the thesis thesis that that all privat private e prope property rty must must yield yield to paramo paramount unt public public purpos purpose. e. %rticle %rticle 02/ 02/ was the bulwar5 o many antiFsocial elements because under it the even poor man could say that the state would not ta5e his property unless and until he waspaid mar5et value o the property which is ac$uired as a compensation. That is i s why this %rticle must go. 8eerring to Hethmalanis observations, ;hushan said that *he heard or the rst time that %rticle -/ / was a charter o the poor+. !e believed that when there was clash between the rich and the poor, the undamental rights part was a charter o the rich against the 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 their government was a ull guarantee so ar as their property was concerned. ;hushan submitted that 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 be exer exerci cise sed d agai agains nstt the the elec electe ted d legis legisla latu ture res s so that that it migh mightt impos impose e a rest restri rict ctio ion n on the the legislative power o the state. 6n the $uestion o the acceptance o due process or procedure established by law, ;hushan said that it would amount to ma5ing the right to property as undamental right rom the bac5 door. 'n both the cases the &udiciary might rustrate the legislative willA he urther explained that the $uestion o payment o mar5et value o the property ac$uired would not arise out o the language used in the drat %rticle. !e also said that the legislature would not ac$uire property or private purpose but or public purpose.%ter the reply o Shanti ;hushan, the house accepted the amendments in property rights as they were introduced by him.  This amendments were then discussed in the council o the states.>.;.%sthana, agreeing with amendments he said that as a result o these amendments, compensation on the the prin princi cipl ple e o 3uid 3uid pro 3uo 3uo would not be payable. Bow a law relating to ac$uisition o 

property could not be challenged on the ground that it went against the constitutional scheme which provided or $uid pro $uo compensation. 't would or parliament or state legislatures to pass such a law. They might ma5e any provision or compensation or not e ven provide or itA it would not be challengeable. Bonetheless law should be airA or example in case o the rich, it might give one tenth o him propertys 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 scope o 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 established by law+ used in %rt 2 were not accepted in %rticle 044F% because that would have amounted to ma5ing the constitutional right to property as undamental right rom the bac5 doorA %gain the $uestion o payment o e$uivalent compensation or the property ac$uired would not arise in the view o the language used in the %rticle, %rticle , and the legislature would ac$uire property only or a public purpose. %gain there would be no danger to small armers as %rticle 0F% was being being retai retained ned.. The emphas emphasis is was that that the popula popularly rly electe elected d legisl legislatu ature re be truste trusted. d. The intent intention ion was to ensure ensure that passag passage e o a legisl legislati ative ve enactm enactment ents s to &usti &ustiy y any 5ind o  deprivation.

Since Since prope property rty right right has been been broug brought ht outsid outside e the previ preview ew o part part ''' o the Constitution, the aggrieved individual would not be competent to move to Supreme Court under %rticle 02, or any violation o %rt 044%. This remedy would be under %rticle 229 or civil court.:4 %rticle 0/ laid down that no person can be deprived o his property without the authority o law. law. %rticle 0/ has been repealed and reappeared as new %rticle 044F% 044F% saying that no person shall be deprived de prived o his property save by authority o law. law. Thus, a law will be necessary to deprive a person o his property. property. 'n all democratic countries, one basic principle is recogni#ed, vi#., that the government cannot interere with property rights o an individual without authority o law a valid law/. (act that rights in property can be curtailed, abridged or modied only by exercising its legislative power. %n execu executiv tive e order order depriv depriving ing a person person o his prope property rty,, withou withoutt being being bac5e bac5ed d by law, law, is not constitutionally valid. The word Mlaw in %rticle %rticle 044F% 044F% means a valid law. law. Such a law will thereore thereore be sub&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 by parliament or a state legislature, or a rule, or a statutory order, having a orce o law. Can it be said, content o a law will be solely within the legislative discretion, and legislature can ma5e 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 stated that the word Mlaw used in %rticle 044F% must be %ct o parliament or state legislature, rule or statutory order having orce o law. %ter orty ourth amendment, does the Constitutional obliga obligatio tion n to pay compens compensati ation on surviv survive, e, becaus because e there there is no expr express ess provi provisio sion n in the Constitution outside the two cases specied in %rticle 04F%/ and the second proviso to the %rticle 0%/ re$uiring the state to pay compensation to an expropriated owner/. The efect o the repeal o %rticle 02/ would be that the right to compensation would cease to be a undamental and would be a mere legal right. The ostensible purpose o repealing %rticle 0, spec sp ecia iall lly y %rti %rticl cle e 0 02 2/, /, is to ma5 ma5e ree ree the the legi legisl slat atur ure e rom rom the the restr estrai aint nt o payi paying ng ompensation or property ac$uired. ;ut doubts have been raised whether this purpose can be achieved. (or example, it has been argued that the two re$uirements o Mpublic purpose and Mcompensation in case o ac$uisition o property are inherent and essential elements, or ingredients, or *inseparable concomitants+ o the power o eminent domain thereore, o entry 12, 3ist ''' o the Constitution. The word property property used under %rticle %rticle 044% must understood understood in the context context o  govern government ment has sover sovereign eign power power over over the prope property rty within within its &urisd &urisdict iction ion.. ?epriv ?eprivati ation on connotes diferent concept, %rticle 044% gets attracted to an ac$uisition or ta5ing possession o private property, by necessary implication o public purpose in accordance with the law made by parliament or state legislature. 't is inherent in every sovereign state to exercise its eminent domain power in i n expropriating private property without owners consent.

There is basic undamental distinction recogni#ed by the law between re$uisition and ac$uisition itsel in the entry 12 o list ''' o the seventh schedule mar5s a distinction between ac$uisition and re$uisition o property. property. The original or iginal %rticle 0clause 2/ o the Constitution also recogn recogni#e i#ed d the dis distin tincti ction on betwee between n compuls compulsory ory ac$uis ac$uisiti ition on and re$uis re$uisitio ition n o prope property rty. %c$uisition means ac$uiring by title o the expropriated owner whatever the right and extent o the title may be. The right which was vested with the original holder passes to the ac$uirer leaving leaving nothin nothing g or the ormer ormer.. ;ut the concep conceptt o re$uis re$uisitio ition n involv involves es merely merely ta5ing ta5ing o  *domain or control over the property without ac$uiring the rights o ownership+ and must be by its very nature o temporary duration. =xcept public purpose limitation, no other limitation was imposed or ac$uisition o property. property. %ter the orty ourth amendment, the crucial $uestion is that now the concept o  socialist 'ndia is wearing then, will the Supreme Court, is a creative bid, read in 044F% a right to compensation or ac$uisitiondeprivation o private property There is no gain saying the act act that that or growt growth h o wealth wealth and and capi capita tall is abso absolu lute tely ly esse essent ntia ial. l. % stra strate tegy gy whic which h the the Supreme Supreme Court can adopt or this purpose may be to lin5 %rticle 044F% with %rticle %rticle 1 and to interpret the word Mlaw in %rticle 044F% in the same sense o Mlaw in %rticles 2F22. !owever, it should be underlined that %rticle 2 does not apply to the property area nevertheless, the court can interpret the word 3aw in %rticle 044F% in a meaningul sense, and not in the sense o merely any statutory law. (or example, compulsory transer o %s property by law to ; without any compensation may be held invalid. ;ut this needs &udicial creativity o a high orde order, r, su such ch as that displa displaye yed d by the cour courtt in Menak Menaka a )andhi )andhi4s 4s case.  That there is a possibility that %rticle 044F% may be interpreted by the court in a creative manner to extend some protection protection against against an extremely extremely harsh law is illustrated illustrated by the recent recent ;ombay !igh Court decision in Basantibai v. State of Maharastra&  % State o "aharashtra !ousing and ?evelopment ?evelopment %ct, %ct, -<9, provides provides the basis or determinati determination on o Mamount or ac$uisition ac$uisition o  land land with within in munic municipa ipall limit limits. s. The The law law was was not not &ust &ust and and air air inso insoar ar as it prov provide ided d less less compensation or the ac$uisition oproperty than provided under the 3and %c$uisition %ct, :-1. The !igh Court assessed the validity o this portion o the %ct. 'n the rst place, the court held that the %ct did not efectuate the directive principle under %rticle 0-b/, and so could not claim the protection o %rticle 0FC against %rticle 1. 'n the second place, the court read the dual re$uirements o public purpose and compensation in %rticle 044% is inherent in the the conc concep eptt o emin eminent ent doma domain. in. )nde )nderr %rti %rticl cle e 04 044% 4%,, the the legi legisl slat atur ure e cann cannot ot sanct sanctio ion n deprivation o property or a private purpose. The court saidN QThe entire democratic structure o this country is based upon the concept o Mrule o law and it is not possible to imagine that the legislation can provide or compulsory ac$uisition o private property or a purpose which is not a public purpose. The court ound it diEcult to accept that by deletion o %rticle 0, the parliament intended to coner absolute right on the legislature to deprive a citi#en o his property by merely passing a law without complying with the re$uirement o public purpose and compensation. 'n the third place, the provisions o the law providing or compensation were discriminatory as it provided less or urban land and more or rural land which could not be substantiated on valid grounds.  The law was thus invalid under %rticle 1 and also under %rticle 044F%. 044F%. The court said that really spea5ing, the value o land in the developed town within the municipal area could could have no compar compariso ison n with the value value o the land land in rural rural area and it was diEcul diEcultt to understand why more compensation, including solatium, was provided or rural lands and the same was denied or urban lands. 'n the ourth place, this was $uite a remar5able assertion on the part o the court, even assuming that the law was protected rom challenge against %rticles 1 and -. %ter ane0a 9andhi 9andhi case , the expression *authority o law+ must mean *&ust, air and reasonable+ law. Procedure prescribed by the law must be air and reasonable procedure independently o the protection guaranteed under %rticle 1 and -. The legislation providing or deprivation o property under %rticle 044% must be *&ust, air and reasonable+.  The impugned provisions did not ulll this re$uirement re$uirement the provisions providing providing or difere diferenti ntial al compens compensati ation on or urban urban and rural rural lands lands were were dis discri crimin minato atory ry.. The avour avourabl able e treatment shown to the owners o land in rural area was not shown to be &ustied or any reason whatsoever. The provision was invalid under %rticle 044F%. =ven i protected rom challenge against %rticle 1, - and 0 because o %rticle 0FC, it could still be struc5 down as being neither neither &ust or air nor reasonable. reasonable. This pronouncem pronouncement ent lays down several several signicant signicant propositions. (irstly, the dual re$uirements o public purpose and compensation inherent in the 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 less than that. Thirdly, Thirdly, %rticle %rticle 044F% 044F% envisages envisages a *&ust, *&ust, air and reasonabl reasonable+ e+ law and not any law. law. (ourthly, even i a law is protected rom challenge against %rticle 1, - and 0 because o  %rticle 0FC, 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% ater "ane5a approach. 'n :ilu&hai 'n  :ilu&hai (an&hai Khachar vs State of 9u7arat the court has ruled that the law may 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 specied in such law l aw.. !owever such law shall not be $uestioned on the ground that the amount xed or amount determined is not an ade$uate. ;ut at the same time the amount xed must not be illusory. The principles laid to determine the amount must be relevant to determine the amount. This observation shows that 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 still necessaryA it need not be ade$uate compensation but at the time it, cannot be illusory. %de$uate compensation or property ac$uired seems to be a dead concept except under land ac$u ac$uis isit itio ion n stat statut ute, e, or su such ch othe otherr simi simila larr %c %cts ts.. 't is howe howeve verr let let to the the legi legisl slat atur ure e to determine on what terms and conditions can property be ac$uired by the state or public purpose. The orty ourth amendment ma5es the legislature supreme in this respect and legislative 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$uality in %rticle 1 or on the ground o legislative competency. 't may thus appear that the orty ourth amendment has not made any substantive alternation in so ar as right to property is concerned, even beore this amendment the right to compensation had been ta5en away by the 27th amendment, the re$uirement o public purpose is still implied in %rticle 044F%.The efect transerence o the right to property orm part ''' o the Constitution is that direct enorceability o this right by the Supreme Court %rt %rtic icle le 02 02// is no mor more. The The !igh !igh Cour Courts ts are are empo empowe werred to issu issue e writ writs s not not only only or or enorcement o undamental rights but Mor any other purpose.+ (orty (orty ourth amendment amendment has been prima ace made the right to property property irmly and compr comprehen ehensiv sively ely secur secured ed under under the Consti Constitut tution ion than than beore beore,, states states will will not now able able to ac$uire private property without showing public purpose and without paying compensation on mar5et value o the property. 'n other words, the courts in 'ndia will now be ree to give some $uality and extent o protection to private property as the courts in )nited States given under due process clause. ;ecause o =ntry 12 o the concurrent list, both parliament and state legislature have power to legislate on ac$uisition or re$uisition o property. The law must be a valid law and no law o ac$uiring a private property can be valid unless or a public purpose and payment o compensation. The 11th amendment has made the property right as a human right and constitutional right. . The Constitution ater 11th amendment/ does not expressly coner the right to ac$uire, hold and dispose o property. ;ut i a person has ac$uired and hold the property he cannot be deprived o it without the authority o law. % person cannot be deprived o his property by an executive action or by any other similar device. 2. The protection given to private property under %rticle 044F% is available to all persons who hold property property in 'ndia, 'ndia, citi#ens as well as aliens and natural natural persons persons as well as legal persons such as corporate bodies etc. 0. The law authori#ing deprivation o property must be passed by the proper authority i.e. by parliament 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, legislature, and b/ it must not afect adversely any o the rights, undamental or constitutional D in a manner not warranted by the Constitution. 'n this behal, the validity o such law will be examined in the light o the earlier decisions decisions o  the Supreme Court. 7. The law authori#ing deprivation o property must be air and &ust. The approach o the Supreme Court in ane0a 9andhi6s case the term Mlaw in %rticle 2 will be the guiding star to the 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 other appropriate undamental rights. 't deserves to be noted in this behal that %rticle 0FC which is the present orm was inserted by twenty th amendment specically coners superiority on directive principles o state policy over undamental undamental rights conerred conerred by %rticles 1, - and 0. Bow, right to property property is included included in %rticle %rticle 044 % which is not mentioned mentioned in %rticle %rticle 0FC. 't is submitted that the right to 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 as regar regards ds the consti constitut tution ional al promo promotio tion n to right right to prope property rty. %rticl %rticle e 044% 044% is ree ree rom rom the dominance o the M?irective principles o state policy and it would aford greater protection to the right to property than what would have been in %rticle 0. %lthough ater 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. %rticl %rticle e 04/ 04/a/ a/ provi provides des that that any compul compulsor sory y ac$uis ac$uisiti ition on o proper property ty belong belonging ing to an educational educational institution institution o a religious religious or a linguistic linguistic minority, the compensatio compensation n payable payable shall be such as would not restrict restrict or abrogate abrogate the right guaranteed guaranteed to that minority under %rticle %rticle 04/ b. %rticle 0 protects laws providing or ac$uisition o states, ta5ing over management etc. c. )nder the second proviso to the %rticle 0F%, a person holding land within the ceiling limit and cultivate it personally he entitles to the mar5et value as compensation on its ac$uisition. d. %rticle 0F; ma5e valid certain %cts and regulations pertaining to land reorms which are listed in the ninth schedule, notwithstanding any contrary &udgment, decree order o any court. e. %rticle 0FC provides protection to the laws giving efect to certain directive principles.

In P.'.Muni .'.Muni"hikk "hikkanna anna *edd$ v. *evamma ,the Supreme Court o 'ndia has held that the right to property is not &ust a statutory right but is also a human right. The Supreme Court appears appears to have have appro approved ved the decisi decision on o the =uropea =uropean n Court Court o !uman !uman 8ights 8ights in  :.A.P'e $;5ford Ltd%.v. UK -: where the =C!8 too5 the concept o adverse possession very un5indly. un5indly. 'n P.T P.T."unichi55anna ."unichi55anna 8eddy the Supreme Court held that the right o property is now cons consid ider ered ed to be not not only only a cons consti titu tuti tion onal al or stat statut utor ory y righ rightt but but also also a huma human n righ right. t. ?eclaration o the 8ights o "an and o the Citi#en <:- enunciates right to property under %rticle 
under the 'Jth Schedule and protected by %rticle 0 ;. (or example 3and %c$uisition %ct, :-1. 'n I.*.Coelho v. State of 'amil 2adu the %pex Court held that even though an %ct is plac placed ed under under the the 'Jth 'Jth Sche Schedu dule le by a cons consti titu tuti tion onal al amen amendm dmen ent, t, it would would be open open to challenge on the ground that it destroys or ta5es away or abrogates the basic structure o the Consti Constitut tution ion.. The Court Court held held that that the &usti &usticat cation ion or coner conerrin ring g prote protecti ction on not not blan5 blan5et et protection/ on the 'Jth Schedule shall be a matter o ad&udication, examining the nature and exte extent nt o inr inrac acti tion on o und undam ament ental al right right by a stat statut ute e and and su such ch stat statut ute e soug sought ht to be constitutionally protected on the touchstone o the basic structure doctrine as reected in %rticle 2 read with %rticles 1 and -. The Court held that %rticles 1, - and 2 are the basic structure o the Constitution thereore, 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 mean ull compensation or ac$uisition o property right. ' the laws afects the basic structure could not be protected even though included in the 'Jth Schedule. 'n Kesavananda Bharati case the Supreme Court held that i a law held to beviolative o undamental rights i it is incorporated in the 'Jth shall be open to challenge on the ground that it destroys or damages the basic structure o the constitution. The Court urther held 241 that, constitution constitutional al amendments amendments are made by the parliament are sub&ected sub&ected to limit limitat atio ion n and and i the the $ues $uesti tion on o limi limita tati tion on is to be deci decided ded by the the parl parliam iamen entt itse itsel, l, parliament enacts the impugned amendment %ct and gives complete immunity to it. 't would disturb disturb the chec5s chec5s and balances on the Constituti Constitution. on. The authority authority to enact law and decides legality o it cannot be vest in thesame organ. The basic structure doctrine re$uires the state to &ustiy the degree o invasion on undamental rights. Parliament is presumed to legislate compatibly with undamental rights. The greater the invasion, the greater is the need or  &ustication. The power to grant immunity on a ctional basis would nulliy the basic structure doctrine. 't was urther held that the Court is bound by all the provisions o the Constitution and also the basic structure doctrine. Thus, placing any %ct in the 'Jth Schedule also by constitutional amendment would not save the %ct i it violates the part o the Constitution. (or example a law does not provide ull compensation or depriving the right to property could not be saved even by constitutional amendment placed under ninth schedule. Bow property right has the status o human right which would be a basic structure o the Constitution. Since according to the doctrine o basic eatures, human rights including property rights as now envisaged/ are part o the basic structure under %rticle 2 read with %rticles 1 and -. ?epriving a person o his human right inclu includin ding g propert property y right/ right/ by the State State may re$uir re$uire e the State to pay ull ull compens compensati ation on mar5et value/. Thus, all avenues o depriving a citi#en o his property without ull compensation would be beyond legislative capacity. ' &udicial dictum o the Supreme Court were to develop this trend o right to property is part o human rights and thereore any ta5ing over or ac$uisition would re$uire ull indemnity or compensation in the light o %rticle 2 read with %rticles 1 and -. 't would surely be a wonderul accomplishment.  The necessary corollary o this would be that the right to compensation or ac$uisition o property would be a human right and thereore encompassed under the basic structure o the Constitution. The wheel would surely have turned more than ull circle since the entire entire tussle tussle betwee between n the legisl legislatu ature re and the Hudici Hudiciary ary began began immedia immediatel tely y ater ater the commencement o the Constitution with regard to reusal o state to pay ull compensation or ac$u ac$uis isit itio ion n o prop proper erty ty,, whic which h may may at that that time time have have been been nece necess ssar ary y but but it is tota totally lly un&ustied. )nder %rticle 04F%/ ma5ing any law providing or the compulsory ac$uisition o  any property o a minority educational institution, the state is re$uired to ensure that the amount xed by or determined under such law or the ac$uisition o such property is such as would not restrict restrict or abrogate abrogate the right guaranteed guaranteed to establish establish and administer administer educational educational institutions o their choice. )nder %rticle 29 since the right o religious denominations or any section thereo to own and ac$uire moveable and immoveable property is guaranteed sub&ect to public order, morality and health. That is submitted that any law o ac$uisition in order to apply to a religious denomination, apart rom ull compensation, must also satisy the test o  being being necess necessary ary either either or public public order order,, moralit morality y and health health.. 8ecentl ecently y Supre Supreme me Court Court in various cases determined the property right is not only statutory and constitutional right, it is also a human right o an individual. Thereore there is no disproportionate intererence by the state in ac$uiring property o an individual i ndividual hence compensation should be reasonable.

The original Constitution o -74 had saeguarded the right to property, recogni#ed the same under part the ''' o the Constitution. !owever, soon ater the Constitution o 'ndia came into orce a long drawn out battle commenced between the persons who were sought to be deprived o their property and the legislature and executive until its nal culmination. )ltimately by the orty ourth constitutional amendment right to property as originally envisaged by the -74 Constitution was deleted and only a small raction o the right was retained in %rticle 044F% as a constitutional right. The whole genesis o the dispute over the righ rightt to prop proper erty ty was was the the unwi unwill llin ingn gnes ess s o the the legi legisl slat atur ure e and and exec execut utiv ive e to pay pay ull ull compensation or ull mar5et value or the property ac$uired. The Constitutional obligation to pay compensation underwent underwent massive changes because o the word word compensation used in %rticle 02/. !ence tussle between the parliament and the &udiciary as a result o which brought series o constitutional amendments to property right. Constitution ma5ers reused to 5eep the word prex M&ust or the word compensation unde underr the the %rti %rticl cle e 0 02 2/. /. %ter ter the the Cons Consti titu tuti tion on came came into into orc orce e pos positi ition on beor beore e ourt ourth h amen amendm dmen ent/ t/ cour court, t, in seri series es o case cases s inte interp rprreted eted the the word word Mcom Mcompe pens nsat atio ion n as M&us M&ustt compensation or Mcompensation e$uivalent to the property ac$uired by the state. Kithout paying e$uivalent compensation no property could be ac$uired even  or public purpose, it was a great hurdle or the state. Thereore constitutional ourth amendment brought changes in the %rticle 02/ i.e./ or the property ac$uired compensation need not be &ust or e$uivalent comp compens ensat atio ion. n. The The very very ob&e ob&ect ct o our ourth th amend amendme ment nt excl exclud ude e the the &udic &udicial ial revi review ew over over Mcompensation on the ground o M&ust compensation was ailed to achieve. !owever even ater the ourth amendment in series o cases court interered by way o interpretation and held held that that the the word word Mcom Mcompe pens nsat atio ion n means means Me$u Me$uiv ival alen entt to the the prop propert erty y ac$u ac$uir ired ed or &ust &ust compensation. =ven though state has sovereign power to ac$uire property or public purpose, ac$uis ac$uisiti ition on cases cases are are came came beor beore e the courts courts on the groun ground d that that compen compensat sation ion was not ade$ ade$ua uate te.. Ther There eor ore e by twen twenty ty th cons consti titu tuttiona ionall amen amendm dme ent in -< < the the wor word Mcompensation in %rt 02/ was substituted by the word Mamount. ;y this amendment some extent extent battle between between &udiciary &udiciary and parliament parliament comes to an end. Court interpreted interpreted the word Mamount something diferent rom word Mcompensation these two words are not synonymous and also court held that amount declared or ac$uisition o property by State must not be illusory 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 by the legislature could not be arbitrary or illusory or must be determined by the principle which are relevant or determining compensation. )p to (orty Second %mendment %ct -<9, the essential parts o %rticle 02/ were repealed by pride predecessor amendments nally, orty ourth amendment repealed the right to property i.e., %rticles -// and 0 altogether rom part ''' o the Constitution and inserted the %rticle 044F% into the Constitution %rticle 0/ was reappeared in %rticle 044F%/. !owever, here the $uestion arises even ater repealing %rticle 02/, can twin re$uirements Mpublic Mpublic purpos purpose e and const constitu itutio tional nal obliga obligatio tion n to pay Mcompe Mcompensa nsatio tion n be surviv survived ed or can government 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 conrm the status o legal right to the property held by individuals. 'n case o litigation between the state and individual regarding property right, court always tilt towards in avour o protection o property right had been a undamental right o individuals. !ence land looser or usurper could directly moved beore the Supreme Court or enorcement o property right. Bowhere in the world democratic government recogni#ed with arbitrary power. 'ndia being a democratic country could not exercise its sovereign power in an arbitrary manner. Thereore govern government mental al inter interere erence nce may occur occur in the orm orm o expr expropr opriat iation ion o proper property ty rights rights o  individuals when public interest warrants. =xpropriation o property must be sub&ected to some conditions and limitations and it should not be in accordance with the whims and ancies ancies o the govern government ment.. The moral moral basis basis and conditions conditions o expr expropr opriat iation ion will be the essential condition o eminent domain power. !ence even ater the removal o %rticle 0 altogether, there must be &ustication or the intererence with individual property right by the Government. !ence, compensation must be proportional to the intererence, it is evident rom the 3and %c$uisition %ct :-1. 'n the present scenario, property right is loo5ing rom the

perspective o human right thereore colonial 3and %c$uisition %ct :-1 replaced by the 8ight to (air Compensation and Transparency in 3and %c$uisition, 8ehabilitation and 8esettlement %ct,240. (orty ourth amendment did not intended to remove the constitutional restraints li5e Mpublic purpose and Mcompensation on eminent domain power. 't can be counter argued that obligation to pay compensation ows rom entry 12 o list ''' o the I'' schedule to the Constitution and obligation to pay compensation arise rom the doctrine o eminent domain or the right to ac$uire private property or public purposes which is an incidence o a sovereign stat state. e. "a&or "a&or chan change ges s ate aterr orty orty ourt ourth h amen amendm dment ent,, repeali epealing ng the the Prop Proper erty ty righ rightt rom rom (undamen undamental tal rights rights,, now prope property rty right right is only only legal legal right, right, or const constitu itutio tional nal right. right. )nless )nless statut statute e provid provides, es, govern government ment need need not to pay e$uiva e$uivalent lent compen compensat sation ion to the prope property rty ac$uired. ;ut now the court has addressed the compensation re$uirement in the context o a air balance test. %ccordingly ta5ing o property without payment o an amount reasonably related its value value woul would d norm normal ally ly cons consti titu tute te a disF disFpr prop opor orti tion onat ate e inte inter rer eren ence ce whic which h could could not not be cons consid ider ered ed as &ust &ustic icia iabl ble. e. !owe !oweve ver, r, acco accord rdin ing g to the the cour courts ts obse observ rvat atio ion n stat statut ute e or constitutio constitutional nal provision provision does not guarantee guarantee a right to ull compensation compensation in all circumstances circumstances except under second proviso to the %rticle 0F%// even though compensation awarded must be $ualiy the air balance test. Bevertheless, orty ourth amendment does not have any efect on the power o eminent domain or the sovereign power o the state, urther it smoothen the proceedings o ac$uisition. %t the same time %rticle 2 cannot be applied to the ac$uisition proceedings because ob&ective o the orty ourth amendment shit the concept o  property rom undamental right status to legal right status. Thereore, i you say proceedings o ac$uisition hit %rticle 2, property right again through bac5 door entry ma5e the property right as a undamental right, the ob&ect o the orty ourth amendment will be deeated.