Constitutional provision

Related to land
 CONSTITUTIONAL PROVISIONS WITH RESPECT TO THE LAND LAWS

The Constitution of India being supreme law of the land contains provisions relating to Land
and land reforms mostly in the preview of State Subject. The Indian Constitution empowers
the state government to enact laws with respect to land as per entries specified in 18, 35, 45 of
the State List. Prior to 44th Amendment Act, 1978, the Right to property was said to a
Fundamental right under Art. 19(1)(f). But after 44th Amendment Act, 1978, the right to
property became constitutional right. This Amendment has been brought by the government in
order to fasten the process of Land Acquisition and must properly execute the agrarian reforms.
This Amendment removed the Article 31 and Art 19(1)(f) subsequently replaced with Art
300A. There are four important Articles as well as 5th & 6th Schedule deals about property and

 Art 31A
 Art 31B
 Art 31C
 Art 300A

Pre 1978

Art 19(1)(f) guarantees fundamental right to property by ensuring that every citizen has
a right to acquire, hold and dispose the property with certain reasonable restriction under Art
19(5). Further it has stated that if the property has been acquired by the appropriate government
for any purpose, the said government must pay Reasonable and Adequate Compensation to the
affected person. This position has been changed after 44th Amendment Act. This right to
property hampers and creates many practical difficulties in enforcing agrarian reforms and
thereby moved to a constitutional right via 44th Amendment.

Post 1978

The fundamental right to property has been abolished because of its incompatibility with the
goals of 'justice' social, economic and political' and 'equality of status and of opportunity' and
with the establishment of a socialist democratic republic, as contemplated by the Constitution.
There is no reason why a new concept of property should be introduced in the place of the old
so as to bring in its wake the vestiges of the doctrine of laissez faire and create, in the name of
efficiency, a new oligachy.1

Art 31 of Indian Constitution deals with Compulsory Acquisition of Property and the
said Article have been omitted further replaced with Art 300A. Now Right to property is not a
fundamental right and merely a legal right in India. The Highest Court of the land have
observed many judicial principles as well as laid the modus operandi on Law of Land
Acquisition in India.

It has been observed by the Supreme Court that

There are two competing interests, viz., one, the interest of the State vis-& agrave-vis
the general public and, two, to have better living conditions and the right of property of an
individual which although is not a fundamental right but is a constitutional and human right.2

This Amendment does not provide for any retrospective effect so that the acts done earlier can
be only challenged on the grounds of Art 14, 19 and 31(2).

In Dwarkadas Srinivas and weaving Co Ltd, the Court have stated that

Article 31 finds a place in Part III of the Constitution which deals with fundamental
rights. It is headed "Right to Property". Upon a simple and straightforward
construction of its language and the context in which it stands and unhampered by the
provisions of the American Constitution the article confers upon every person, whether
a citizen or not, a fundamental right of protection of property against encroachment by
the executive without the authority of law and against the legislature unless the law
passed by it satisfies the two essential conditions laid down in (2) that there must be
public purpose for taking away private property and that the law must provide for
compensation and either fix the amount of such compensation or specify the principles
on which and the manner in which the compensation shall be determined and given.
Article 31(1) embodies a categorical declaration proclaiming the right of property and
equally categorically prohibits the State from depriving the owner of that property by
an executive act or without being backed by the authority of law. The intention
underlying the article being the protection of property against invasion by the State,

1
State of Maharashtra vs. Chandrabhan Tale (07.07.1983 - SC) : MANU/SC/0396/1983 at Para 2
2
Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Cock and Chem. Ltd. and Ors. (15.05.2007 - SC) :
MANU/SC/7706/2007 at Para 44
 both parts (1) and (2) of article 31 should be read together to harmonize with that
intention. Article 31, in my opinion, is wider than article 19(1)(f) which confers upon a
citizen only the right to acquire, hold and dispose of property and is different in scope
and content. Article 31 is self-contained and (1) refers to deprivation of property in
general. Acquisition or taking possession in (2) are different modes of deprivation and
are comprehensive enough to include all forms of taking away rights of property.

Having regard to the setting in which article 31 is placed, the word 'property' used in
the article must be construed in the widest sense as connoting a bundle of rights
exercisable by the owner in respect thereof and embracing within its purview both
corporeal and incorporeal rights. The word 'property' is not defined in the Constitution
and there is no good reason to restrict its meaning. Whether the facts in a given case
amount to deprivation of property within the meaning of article 31 will depend upon
the circumstances of each case and it is not possible, in the nature of things, to lay down
any inflexible test which may be universally applicable. When it can be shown that the
statute substantially interferes with the right of enjoyment of property, it will, in my
opinion, be hit by article 31(2) and declared void, unless compensation is provided3

After this amendment, there were only four Articles that deal with right to property such as Art
31 A, 31 B, 31 C and 300A. Even though it comes under Part III, it does not confer fundamental
right in real scenario. The first Amendment inserted in Art 31 A and 31 B with retrospective
effect and Art 31 C was inserted through 25th Constitution Amendment Act. The main
underlying reason was to provide immunity against right to property

3
Dwarkadas Shrinivas of Bombay vs. The Sholapur Spinning & Weaving Co. Ltd. and Ors. (18.12.1953 -
SC) : MANU/SC/0019/1953 at para 78
 Art 31 A Relating to Acquisition of Estates

After independence, Zamindari system have been abolished and the properties acquired from
them were used to achieve the social and economic equality as mentioned in the Constitution.
The Term Compensation as mentioned in this Art 31 (2) was seems to be vague and finally the
Supreme Court interpreted that Compensation is as just compensation4.

Subsequently, Bihar Land Reforms Act has been held unconstitutional by the Supreme Court
in Kameshwar Singh v. State of Bihar, 1952. Owing to this, the government cam up with the
First Amendment and inserted Art 31 A in order to safeguard entire Zamindari Abolition
System. However, the court added that if any legislation comes under A. 31 A does not provide
any Compensation or does not in agrarian nature, it would not be immune under Art. 31 A

Article 31(A) does not protect a legislation where no compensation whatsoever has
been provided for taking the estates5

The government through 17th Amendment in 1964 added second proviso to Art 31A by
enlarging the Scope of term estate. It imposes certain limitation to acquire an agricultural
property, if the government intends to acquire the land, they must pay compensation whish
shall not be less than the market value of the property. This mainly protects the small cultivators
who have small acre of land for their own cultivation.

Art 31B Relating to Validation of Act and Regulation specified Under Ninth Schedule

The Main Object of inserting Art 31B to the constitution is to validate the agrarian Act and
Regulation specified under Ninth Schedule. Further added that ninth schedule cannot be called
into question for the violation of Fundamental Right Under Part III. However, this issues has
been settled by the Court in IR Cohelo versus State of Tamil Nadu , wherein court stated that
the Act and Rules placed under Art 31 B [Ninth Schedule] cannot be immune against Basic
Structure doctrine. The Court stated that Any Act and rules passed subsequently after
Kesavanandha Bharathi case 1973 must be passed with the test of basic structure of Indian
Constitution.

4
The State of West Bengal vs. Bela Banerjee and Ors. (11.12.1953 - SC) : MANU/SC/0017/1953 at Para 9

5
Khajamian Wakf Estates and Ors. vs. State of Madras and Ors. (18.11.1970 - SC) : MANU/SC/0416/1970 at 7
 Art 31 C

Relating to saving of laws giving effect to Directive Principles of State Policy

Article 31C of the Constitution gives validity to those laws that are made under the policy of
Directive Principle laid down under Part IV of the Constitution. This Article was added by 25th
Constitution (Amendment) Act 1971. This Article imposed more significance on Art 39(b) and
Art 39(c) rather than Art 14, 19 and 31.

The 42nd Amendment of Constitution widens the scope of the Art 31C: however the
Kesavanandha Bharathi case struct down the Declaration Part of the Art 31C upheld the
remaining portion of the Act. In Minerva Mills case, the court struct down the extended portion
of Art 31 C and subsequently observed that there should be harmonious Construction should
be applied between the Fundamental Rights and Directive Principle of State Policy.

All these initiatives, subsequently created a space for central government to enact a
new Act on Law Acquisition Called The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.

5th and 6th Schedule of Indian Constitution

Art 224 (1) read with 5th Schedule of Indian Constitution deals exclusively about the
provision as to administration and control of Scheduled areas and Schedule Tribes. Under this
article, the Tribal advisory council may advise the governor on such matters with respect to
Schedule Tribes or Schedule areas for overall development and administration of that area.

As per 5(2)(a) of 5th Schedule, it states that

The Governor may make regulations for the peace and good government of any area in a
State which is for the time being a Scheduled Area. In particular and without prejudice to
the generality of the foregoing power, such regulations may.

(a) Prohibit or restrict the transfer of land by or among members of the Scheduled
Tribes in such area;
(b) Regulate the allotment of land to members of the Scheduled Tribes in such area
(c) Regulate the carrying on of business as moneylender by persons who lend money
to members of the Scheduled Tribes in such area.
It has been clearly stated in the paragraph 5(2)(a) of the Fifth Schedule, many Indian states
enacted legislation restricting/ prohibiting the transfer of land from tribal to non-tribal in
Schedule areas. At the time of framing of Indian constitution, the tribals do have protection
under Art 19(1)(f) r/w 5th Schedule of the Constitution. However, these protections have been
deteriorated subsequently due to importance of Land reforms.

While dealing with Narmada Bachao Andolan case, the Supreme Court has detailed
narration about the right of tribal person under Art 21 r/w Art 12 of ILO Convention No 107.
It has stated that

The said Article clearly suggested that when the removal of the tribal population is
necessary as an exceptional measure, they shall be provided with land of quality at
least equal to that of the land previously occupied by them and they shall be fully
compensated for any resulting loss or injury. The rehabilitation package contained in
the Award of the Tribunal as improved further by the State of Gujarat and the other
States prima facie shows that the land required to be allotted to the tribals is likely to
be equal, if not better, than what they had owned6

On the topic of right of tribal person with respect to land, the court declared that the
doctrine of eminent domain prevails over the tribal right with respect to land. Sixth Schedule
also deals exclusively about the Tribal areas of 4 North Eastern States.

While both the areas under 5th schedule and 6th schedule have dominance of the tribal
people constitution calls them with different names viz. Scheduled Area under 5th schedule
while Tribal areas under 6th schedule. While executive powers of the union extend in
Scheduled areas with respect to their administration in 5th schedule; the 6th schedule areas
remain with executive authority of the state. While 5th schedule envisages creation of Tribal
Advisory Council, 6th schedule provides for District Councils and Regional Councils with
certain legislative and judicial powers. The governor has the power to act according to aid and
advice of these council with respect to land.

6
Narmada Bachao Andolan Case https://indiankanoon.org/doc/1938608/ visited on 10/5/2019
Land ownership patterns and legal
framework
 NEED OF THE HOUR

 Verify the past land records and updates them with no encumbrances
 Information needed to be in single window as stated in Second Administrative Reforms
commission
 Moving towards the conclusive titling with coherence with centre and different state
law in the areas of registration of document and contracts.

Land Ownership is broadly determined by access to land title and have a positive effect on the
right of the title holder and impacts their live hood. Land is a unique asset because it is
immovable, and value fluctuate as per the situational and circumstantial incidences. The
ownership rights are determined through various records and various from one state from
another such as

 Registered sale deeds

 Property Tax documents and receipts
 Government Survey records.

Due to unclear and poor administration of land records, Lack on legal framework to address
dispute, absence of one integrated portal, have created many disputes over land title and
ownership and there by affect the agriculture and real estate sector. RBI stated recently that
many credit financing institutions does not able to provide proper resources due to the various
discrepancies in different land records. Any infrastructure created on land that is not
encumbrance free can be potentially challenged in future: thereby making the investment risky.
Rapid urbanization and new urbanization schemes such as smart cities mission and
AMRUT were facing huge problems and this necessitate the importance of study of Land
Ownership in India in co-relation with all Indian states and Union territories.
Reasons of Unclear Land Titles
1. Land ownership in India is presumptive – Currently, the transfer of property Act
1882 provides that the right to an immovable property can be transferred or sold by a
registered document and such documents must be registered under the Registration Act,
1908. Such registration means only a registration of the transaction or sale deed and
not confers a Land Title. A Registered sale deed is not a government guarantee of land
ownership might be challenged under Transfer of Property Act. During the transaction
onus lies on the buyer to check the past transaction and no the register of document.
 Further no such document guarantees landownership in India and it must establish by
way of many registered sale deeds & Property tax receipts and government survey
documents.
2. Cost of registering property is high, and registration is not mandatory per se.
While registering a property the buyer must pay a registration fee along with
the stamp duty. Stamp Duty rates across states vary from place to place and in other
countries. Under the registration Act, 1908 registration of property is not mandatory for
all transaction. These include acquisition of land by the government, court orders,
heirship partitions and property leased for less than one year. Due to high cost, several
property transfers do not get registered.
3. Poor maintenance of Land records

There are many regulators per se regulation and update information related to Land record
which are not properly maintained in time bound manner. For example, a property transaction
registered through a sale deed may not be simultaneously updated in the survey department
that record spatial information {Maps}. Recent initiatives with respect to Land records –
Digital India Land Records Modernization Programme 2008