I.

Introduction
“Property and law are born together, and die together. Before laws were made there was no property; take away law, and property ceases”. – Bentham

The statement emphasizes the interdependence of property and the legal framework within a societal context. In the absence of established laws, there might
not be a recognized or protected system of ownership, and thus, the notion of property might not exist. The statement implies that the legal system plays a
crucial role in defining, protecting, and upholding the concept of property. Conversely, if the legal structure were to break down or be removed, the
protection and recognition of property rights would also be compromised or cease to exist.

II. Doctrine of Eminent Domain

The term “eminent domain” was coined by Hugo Grotius (1583–1645), a Dutch jurist and philosopher of natural law, to explain the control of the state over
natural property. Eminent domain or condemnation is the power of the sovereign to take private property for public use without the owner’ s consent. This
power is inherent to the sovereign, to shape the use as it deems fit.

The doctrine is based upon the following two Latin maxims –

i. Salus Populi est Suprema Lex - welfare of the people of the public is the paramount law.
ii. Necessita Public Major est Quam – public necessity is greater than private necessity.

Overview
 Property is an indispensable aspect of human nature but the concept of eminent domain has always created priority of the State‘s right over the property
of an individual.

 The journey of Right of Property started with Fundamental right i.e. Article 31 but ultimately ended up resulting into the Constitutional Right under
Article 300A by the 44th CAA, 1978.

 The principle of “Just Compensation on Compulsory acquisition” has always been debated and resulted into the plethora of Amendment Acts.
 Finally, the Land Acquisition Act of 1894 is also replaced by the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act 2013 to lay down an informative and transparent process of acquisition.

III. Position in British era

Regulation I of Bengal Code, 1824 – The Act signified the initial step by the British Empire to consolidate property through legal means. It was enacted
with dual objectives:
i) Facilitated land acquisition for the construction of Roads and Canals.
ii) Addressed unusual circumstances involving land acquisition for salt production.

Land Acquisition Act, 1870 - The next step ahead in the process of strengthening the concept of eminent domain in India was this Act. The objective of
was acquisition of land for public purpose.

Government of India Act, 1955 - Section 299 of the Act, secured the right to property and contained safeguards against expropriation without
compensation and against acquisition for a non-public purpose.

The debates in the Constituent Assembly when the draft Article 19(1)(f) and Article 31 came up for discussion clearly indicate that the framers of our
Constitution attached sufficient importance to property to incorporate it in the chapter of fundamental rights.

IV. Constitutional Debates and Right to Property

The debate in the Constituent Assembly about property rights was passionate, long-lasting, and emblematic of many postcolonial debates regarding the
strong protection of property rights and development as well as of the Patel-Nehru divide. The right to acquire, hold and dispose of property was included as
a fundamental right. Deprivation of property was prohibited except by the authority of law.

Debated issues: The issues debated included whether movable (i.e., personal) property should be covered, whether “just” should modify the term
“compensation”, whether the legislature should determine the amount of compensation.
Due process clause attempt: An attempt was made to introduce into the Constitution the due process clause of the U.S Constitution for protecting the
individual right to property. But this was finally withdrawn because of apparent dangers involved in such a clause.

Divergent views in the Assembly: Focusing on the natural right of individual to own a property, one group in the Constituent Assembly argued that the
payment of just compensation, while other group owing allegiance to the socialistic approach on the right to property went to the extent of arguing that there
should be no payment of compensation in case of compulsory acquisition for public good.

Compensation challenges: The question as to the quantum of compensation that has to be paid in case of acquisition or requisition for public purpose
created much difficulty. Article 31 reflected this approach which appeared to prefer protection of societal interest to individual interest. Thus original Article
31 to the Constitution guaranteed deprivation of property by law alone. It also guaranteed payment of compensation as fixed by the legislature.

V. Constitution and Right to Property: A journey of Amendments

Article 19(1) (f) of the Constitution, as originally enacted, provided that –
“All citizens shall have the right to acquire, hold and dispose of property. But the right enacted under Article 19(1) (f) was subjected to reasonable
restriction in the interest of general public”.

Article 19(5) read as: “Nothing in sub-clause (d), (e) and (f) of the said Clause shall affect the operation of any existing law in so far it imposes, prevent the
State from making any law imposing, reasonable restriction on the exercise of any of the rights conferred by the said sub-clause either in the interests of the
general public or for the protection of the interests of any scheduled tribe”.

Article 31 of the Constitution stated that:

(1) No Person shall be deprived of his property save by authority of Law.

(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for
 compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and
the manner in which, the compensation is to be determined and given.

(3) No such law is referred to clause (2) made by the legislature of a State shall have effect unless such law, having been reserved for consideration of the
president, has received his assent.

 By virtue of Article 31(1) a person cannot be deprived of his property without authority of Law.

 Article 31(2) property could be taken possession of or acquired for public purpose only by law and that too on payment of compensation. Such law had
either to fix the amount of compensation or to specify the principles.

 As an additional check by Article 31(3) on abuse by state legislatures, such laws made by a state must obtain the assent of the President to get validity.

The first shock to the right of property was given in Kameshwar Singh v. State of Bihar, 1951 where Patna High Court struck down the Bihar Land
Reforms Act, 1950 on the ground of inadequacy of compensation.

In the meantime, in State of West Bengal v. Mrs Bela Banerjee, 1952 the issue was whether the compensation provided for under the West Bengal Land
Development and Planning Act, 1948, was in compliance with the provision in Article 31(2). For under the State Act, lands could be acquired many years
after it came into force but nevertheless it fixed the market value as it prevailed on December 31, 1946, as ceiling on compensation without reference to the
value of the land at the time of the acquisition. The Calcutta High Court’s held that Section 8 of the Act was ultra vires.

As a result of the same Pt. Jawaharlal Nehru immediately took the initiative and told Dr. Ambedkar to come up with changes in the provisions. Dr.
Ambedkar came up with a recommendation that the judicial review powers of the Court shall be taken in case there is a Presidential assent for
acquisition of property. It was objected by President Rajendra Prasad and this was also supported by Sardar Vallabhai Patel. It is said that the Prime
Minister Pt. Nehru rushed Rajendra Prasad to give Presidential assent to the amendment.
By the side of this phase, V. K. Thiruvenkatachari, wrote a letter to the Law Secretary, K.V.K. Sundaram proposing an addition of new schedule in the
Constitution, where laws relating to land Reforms can be made a part of this new schedule. These enactments were retrospectively applicable and
would be immune from the test of constitutional validity. On these suggestions the Articles 31A, 31B and the IX Schedule were framed.

Article 31A specifies the laws relating to the acquisition of estates, nationalization of industries, extinguishment of mineral leases or their premature
termination cannot be tested as violative of Article 14, Article 19 and Article 31.

Article 31B was step ahead providing a complete immunity to all the Acts and Regulations mentioned in the IX Schedule from any fundamental
right.

There were originally 13 land reforms Laws covered under the IX Schedule. There was later an amendment under Article 31A to widen the scope of
the word “estate” which has a retrospective effect i.e. 4th CAA, 1955.

In the Bela Banerjee case all attention was in the construal of the word “compensation” as specified under Article 31(2). In Subodh Gopal case the focus
was whether the deprivation of the right to evict a tenant would come within the purview of Article 31(2). At the same time Dwarkadas Shrinivas case was
construing the expression “take possession of” under Article 31(2) to comprise even transitory taking over. The interpretation made by the Court in the
above referred cases resulted into the 4th CAA, 1955.

To overcome this difficulty a new sub clause 2A was inserted in Article 31 by 4 th CAA, 1955. The new sub clause further clarified the meaning of
compulsory acquisition and requisition. As per the new sub-clause, only cases in which law provided for transfer of ownership or right to possession would
amount to compulsory acquisition and requisition. Thus the damage caused by Dwarkadas was rectified.

The 4th CAA which enacted that a legislation which provides for the compensation for the property acquired or requisitioned and either predetermined the
amount of the compensation or specified the principles on which, and the manner in which the compensation was to be determined or given could not be
called in question in any Court on the ground that the compensation provided by the law was not adequate.
The next step was the 17th CAA, 1964 through which an effort was made to extend the scope of Article 31-A and IX Schedule in order to protect certain
agrarian reforms enacted by the Kerala and Madras states. The word “estate” in Article 31-A was now inclusive of any jagir or inam, mauf, or any other
grant and janmam right in state of Kerala, Madras and also Ryotwari lands. Subsequently it also added the second proviso to clause (1) to protect a person of
being deprived of land less than the relevant land ceiling limits held by him for personal cultivation, except on payment of full market value thereof by way
of compensation. It further added 44 additional Acts to the IX Schedule.

In Varjaralu v. Special Deputy Collector, 1965 while discussing the question of Land Acquisition (Madras Amendment) Act, 1961 fall within the purview of
Article 31-A the Court observed that the object of Art 31-A is to facilitate agrarian reforms. Therefore, the protection is not applicable to a law which seeks
to modify the right of the owner without any reference to agrarian reforms. Thus it was held that the Land Acquisition (Madras Amendment) Act, 1961
doesn’t fall within the purview of Article 31-A. The Act was passed to create modern suburbs, housing scheme and to clear slums.

In P Vajravelu Mudalier case and U.O.I v. Metal Corporation of India, 1967 considered Article 31(2) in the context of compensation and held that if the
compensation fixed was illusory or the principles prescribed were irrelevant to the value of the property at or about the time of acquisition, it could be said
that the Legislature had committed a fraud on power and therefore the law was inadequate.

Still after the enforcement of 4th CAA, 1955, the Supreme Court in R.C. Coopers case popularly known as Bank Nationalization case, observed that the
“compensation” under Article 31(2) takes into full monetary equal of the property taken from the owner i.e. the market price at the date of the
acquisition.

The consequence of the above referred judgment resulted into 25th CAA, 1971 which substituted the word “amount” for the word
“compensation” coming in the new Article 31(2). But even after this major amendment, the Apex Court in landmark judgment in Keshavananda Bharati‘s
case held that the amount which was fixed by the Legislature could not be arbitrary or illusory but must be determined by a principle which is relevant to the
acquisition of property.
 Art 31C was added by 25th CAA, 1971. Article 31C is a monstrous outrage on the Constitution. In the entire history of liberty, never were so many
millions of people deprived of so many fundamental rights in one sweep as by the insertion of Article 31C. The inserted new Article 31C contained the
following two provisios:
1. No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of
the Fundamental Rights conferred by Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of
speech, assembly, movement, etc) or Article 31 (right to property).

2. No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a
policy.

In the landmark case Keshvananda Bharathi v State of Kerala, 1973, the Apex Court affirmed that the judicial review is the fundamental characteristics of
our constitution and which led to declare Article 31C (2) as unconstitutional which tends to take away the power of judicial review. However, Article
31C (1) which seeks to implement the socialistic Directive Principles was upheld as constitutionally valid.

The Constitution (Twenty-Fifth) Amendment Act, 1976 stretched the extent of earlier part of Article 31C. In the mean time Article 31C was enacted to give effect only to
directive principles under Article 39. The Constitution (Twenty-Fifth) Amendment Act, 1976 sheltered legislations that professed to apply any of directive principles and
make them resistant from the constitutional validity of Articles 14, 19 and 31. The immediate outcome was the predominance of directive principles over fundamental
rights. This stipulation was struck down in the Minerva Mills case.37