Courtesy: Deeksha Rao
With the 44th Amendment 1978, Article 19(1)(f) and Article 31 of Part III of the Constitution pertaining to the ‘Right to Property’ was deleted and Article 300A was inserted. This transformation signified the designation of the ‘right to property’ from a fundamental right to a constitutional one. However, this change cannot be read as providing the state with arbitrary and unilateral power. The amendment was made to strike a balance between the protection of the rights of the citizens and enforcing state-led development projects.
Article 300A of the Constitution of India provides that:
“No person shall be deprived of his property save by authority of law”.
Various judgments have been given by the courts where even though the right to property does not stand as a fundamental right, the importance of property rights has been reiterated time and again by the Constitutional Courts.
In K.T. Plantation Pvt. Ltd. & Anr vs State Of Karnataka, the Supreme Court asserted that the ‘rule of law’ reigns supreme in India and found that the Court is not powerless when a person is deprived of his property for a private purpose, with or without compensation. Therefore, the state must fulfil the provisions of ‘public purpose’ and ‘compensation’ provided under Article 300A and fulfil any requisite obligation.
Recently, the obligations of the state while acquiring a property surfaced in a landmark case before the Apex Court, namely Kolkata Municipal Corporation vs. Bimal Kumar Shah.
The Supreme Court dismissed the appeal filed by the Municipal Corporation against the order of the High Court. The Supreme Court upheld that Section 352 of the Kolkata Municipal Corporation Act, 1980 describes the right of the Municipal Corporation to acquire, however, it does not lay any procedure. The Government under Section 537 of the Act has the power to proceed with the acquisition.
The judgment proceeded further with describing the sub-rights or the principles that have to be followed by the concerned authorities for an acquisition. These sub-rights which flow from Article 300A of the Constitution of India are as follows:
- Right to Notice: According to this right, a prior notice should be issued informing the bearer of the property that the government intends to acquire. The Constitution does not contemplate acquisition by ambush.
- Right to be heard: The property bearer has the right to communicate his objections and concerns to the authority acquiring the property. This flows from Article 21 of the Constitution of India, and the principles of Natural Justice.
- Right to a reasoned decision: The authority has to make an informed decision and communicate the same to the objector. All decisions are evidenced only through a reasoned order. Reason is the soul of the order, hence, the Decision/ Order must be imbued with Reason.
- Duty to acquire only for public purpose: The acquisition must be for a public purpose. It is inherent and stands as an important fetter on the discretion of the authorities to acquire private property.
- Right of restitution or fair compensation: Compensation has always been considered an integral part of Article 300A of the Constitution of India. Deprivation or extinguishment of that right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means.
- Right to an efficient and expeditious process: It is necessary for the administration to be efficient in concluding the process within a reasonable time. Inordinate delay will amount to violation of this sub-right.
- Right of conclusion: The finality of the acquisition where the state takes over the property concretely without any inconclusiveness is important.
This Judgment by the Hon’ble Apex Court has rectified loopholes that might deprive a citizen of his/her property rights even though it does not stand as a fundamental right. It also determines a trend in consonance with the initial intention of the legislature for the reform in 1978, i.e. a balance between the development projects and the citizens’ right to property.
The Apex Court has further held that these sub-rights are non-exhaustive, and the violation of any sub-right shall make the law susceptible to challenge.
To read the complete judgment of the Hon’ble Apex Court, you can click here.