LEGAL MATHOD

PROJECT ON

Right to Property before 44th Amendment to the Indian

Constitution

Submitted to:

Mr. Azim B. Pathan

(Faculty of Legal Method)

Submitted by:

Sachin

Roll No.-114

Semester- I

-----------------------------------------------------------

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR, CHHATTISGARH

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 Certificate of Declaration

I hereby declare that the project work entitled “THE RIGHT TO PROPERTY AFTER THE
CONSTITUTION (44TH AMENDMENT) ACT, 1978” submitted to HNLU, Raipur, is record of an
original work done by me under the able guidance of Mr. Azim pathan, Faculty Member, HNLU,
Raipur.

SACHIN

ROLL NO. 114

SEM-1

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 Acknowledgements

Researcher would like to take this opportunity as a very proud person to express my elation over
having had an opportunity to work on as interesting a topic as “RIGHT TO PROPRTY BEFORE
44TH AMENDMENT TO THE INDIAN CONSTITUTION” which is both educative and of high
contemporary relevance.

Researcher would like to thank Mr. Azim Pathan Sir, the course teacher for Legal Method, for
his guidance and help throughout the project. Researcher would also like to thank my classmates
for having helped me out by sharing their insights on this topic.

Sachin

SEM – I

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 TABLE OF CONTENTS

Certificate of declaration ………………………………………………………………………..02

Acknowledgement.........................................................................................................................03

Object and Research Methodology................................................................................................05

Abbreviation & Acronyms.............................................................................................................06

Introduction ……………………………………………………………………………………...07

Pre 1978: Position of Right to property …………………………………………………………09

Amendments in Right to Property ...…………………………………………………………….11

Post 1978: Position of Right to Property ………………………………………………………..13

Criticism …………….…………………………………………………………………………..14

Conclusion ….…………………………………………………………………………………...15

Bibliography .................................................................................................................................16

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Object and Research Methodology

The object of this project is to gain a more holistic and deep understanding of the right to
property under constitution of India An attempt has been made to look for the roots of right to
property before 44th amendment to the Indian Constitution. Another very important object of this
project is to understand what the need of 44th Amendment to the Constitution was.

The method of research adopted is secondary in nature. Researcher has referred sources on the
net as well as books on Legal Method and Constitution available in the university library besides
adding personal views and knowledge of the topic.

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Abbreviations & Acronyms

Arts. …………………………………………………………………………….... Articles

HC ………………………………………………………………………………... High Court

Ors. ………………………………………………………………………………...Others

SC ……………………………………………………………………………….... Supreme Court

Sec. ………………………………………………………………………………. Section

UOI ………………………………………………………………………………. Union of India

V. ……………………………………………………………………………….. Versus

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Introduction

“That government can scarcely be deemed to be free where the rights of property are left solely
dependent upon the will of a legislative body without any restraint”

Joseph Story1

Meaning of Property

K.Subba Rao, one of the former chief justices of India explains the concept of property as under:

“Property is a general term of extensive application. It is indicative of every possible interest

which a man can have. It may mean a thing or a right which a man has with respect to that thing.
It is extended to all recognised types of interests which has the characteristic of property”2

C.J Patanjali Shastri explained the term property as follows: “Now the term property in the
context of article 31 which is designed to protect property in all forms must be understood in a
corporal sense as having a reference to all those specific things that are susceptible to private
appropriation and employment as well as its juridical or legal sense of a bundle of rights which
the owner can exercise under the municipal law with respect to the user and enjoyment of these
things to the exclusion of others”3

The supreme court of India in the last forty-one years had laid down in a number of cases which
rights come within the definition. These decisions were primarily with reference to Article 19(1)
(f) or article 31. Both these articles were deleted in the 44 th amendment act. Hence, to a large
extent these decisions will have only historical importance. The following cases can be
considered in this behalf. Shirur Mutt case4(the beneficial interest of a mathadipati or the head
of a hindu religious endownment), Bombay dyeing & Mfg. Co. Ltd. V State of Bombay5(unpaid
wages), Ganpati Singhji v. State of Ajmer6(the right to hold fair’s on one’s own land), have been
held to be property. On the other hand the interest of a bare licensee(Shantabai v. State of
Bombay7), the right of a share holder to elect directors(Dwarka Das Shrinivas v. Sholapur Spg.
And Wvg. Co.8 and the personal covenant which does not run with the land(Mahadeo v. State of
Bombay)9 .
1
Wilkinson v. Leland, 27 U.S. 2 Pet. 627 627 (1829)
2
K.Subba Rao, Man and Society, p 21
3
State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92, 101
4
Commr., Hindu Religious Endowments V. Sri. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
5
AIR 1958 SC 328
6
AIR 1955 SC 188
7
AIR 1958 SC 532
8
AIR 1954 SC 119
9
AIR 1959 SC 735

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In state of West Bengal v. Subodh Gopal 10 C.J Sastri propounded the theory that the Art. 19(1)(f)
dealt only with the natural rights inherent in a citizen to acquire, hold, dispose of property . The
article forbids the state from denying a person from owning land or property but it does not
provide the citizen with concrete rights which may prevent state interference.

In course of time, the Supreme Court, to some extent, moved away from the restrictive view of
property. In Dwarka V. Sholapur Mills11 Justice DAS held specifically that the mills, machinery,
stock etc. were property as also contract or agreement which a person might have with another.
The term property was given a broader meaning in Commisioner, Hindu Religious Endowments
v. Lakshmindra12, where the supreme court observed that there was no use of extending the word
‘property’ given under Art 19(1)(f) should not be extended to those well recognised kind of
interests which have the characteristics of proprietary rights and that Article 19(1)(f) “applies
equally to concrete as well as abstract rights to property”

If, however, the holder of a religious office in a temple does not have any personal beneficial
interest in the properties of a the temple, then the office cannot be regarded as property 13. The
rights of a ‘mutwalli’, it has been held14, is not property, and so is a right of a ‘tilkayat’15 of
Nathdwara to the possession and the management of the Temple property.

Pre 1978: Position of Right to property

10
Ibid 4
11
AIR 1955 SC 188
12
AIR 1954 SC 282:1954 SCR 1005
13
Ram Chandra v. State of Orissa , AIR 1959 Ori 5,9
14
Nawab Zain Yar Jung v. Director of endowments, AIR 1963 SC 985
15
Tilkayat Sri GovindLalji. Maharaj V. State of Rajasthan, AIR 1963 SC 1638

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Before 1978 right to property was a Fundamental Right and it was given in Arts. 19(1)(f), 19(5)
and 31.

(A) ARTICLE 19(1)(f) AND 19(5):

Until 1978, Art. 19(1)(f) existed in the constitution which gave a modicum of protection to
private property. Art. 19(1)(f) guaranteed to the Indian citizens a right to acquire, hold and
dispose of property.

In State of West Bengal v. Subodh, Gopal,16SASTRI, C.J., propounded the theory that Art. 19(1)
(f) dealt only with the natural rights inherent in a citizen to acquire, hold and dispose of property
in the abstract without any reference to any particular property; that Art. 19(1)(f) concerned only
with the abstract right and had no relation to concrete property rights.

The term ‘property’ was given a broad meaning in Commissioner, Hindu Religious Endowments
v. Laksmindra,17where the Supreme Court observed that there was no reason that why the word
‘property’ as used in Art 19(1)(f) should not be extended to those well recognized types of
interests which have the characteristics of proprietary rights and that Art. 19(1)(f) “applies
equally to concrete as well as abstract right to property.”

In M.M. Pathak v. Union of India,18 it was held that ‘property’ within the meaning of Art. 19(1)
(f) [ as well as Art. 31(2) ] comprised every form of property, tangible or intangible, including
debts and chooses in action.

(B) ARTICLE 31:

16
AIR 1954 SC 92
17
AIR 1954 SC 282
18
AIR 1978 SC 803

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Art. 31(1) lay down that no person could be deprived of his property without the authority of
law. This provision has been repealed through the 44th amendment but it re-appears as Art. 300A.

The original Art. 31(2) ran as follows:

“No property…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 compensation, or specify the principle on which, and the manner in
which, the compensation is to be determined and given.”

Art. 31(2) was amended in 1955 by the constitution (Fourth Amendment) Act by which the word
‘acquisition and taking possession of’ were replaced by expression “compulsory acquired or
requisitioned”. To explain these terms, a new provision, Art. 31(2A), was added. Art. 31(2) was
further amended in the case of Kesavananda Bharati v. State of Kerala19. Word ‘amount’ was
substituted by ‘compensation’ and it was held that ‘amount’ was not the same concept as
‘compensation’.

Amendments in Right to Property

The outburst against the Right to Property as a Fundamental Right in Articles 19 (1) (f) and 31
started immediately after the enforcement of the Constitution in 1950. Land reforms, zamindari
19
AIR 1973 SC 1461

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abolition laws, disputes relating to compensation, several rounds of constitutional amendments,
litigations and adjudications ultimately culminated first in the insertion of the word socialist in
the Preamble by the 42nd Amendment in 1977 and later in the omission of the Right to Property
as a final report and its reincarnation as a bare constitutional right in Article 300-A by the 44th
Amendment in 1978.

Right to Property was a Fundamental Right and a Fundamental Right could not be amended
according to Indian Constitution. Whether fundamental rights can be amended under Article 368
came for consideration of the Supreme Court in Shankari Prasad v. Union of India.20 In this case
Hon’ble Supreme Court held that a Constitutional amendment will be valid even if it abridges or
takes any of the fundamental rights.

In Sajjan Singh v. State of Rajasthan,21 the validity of the Constitution (17th Amendment) Act,
1964 was challenged. The Supreme Court approved the majority judgment given in Shankari
Prasad’s case and held that the words “amendment of the Constitution” means amendment of all
the provisions of the Constitution.

In the case of Golakanath Vs. State of Punjab22 the Supreme Court through its landmark
judgment cried a halt to the continuous erosion of fundamental rights. The Supreme Court held
that the Parliament has no power to amend the Constitution so as to take away or abridge the
fundamental right of the people.

Kesavanada Bharathi vs State of Kerala23 was one of the milestones in the history of
jurisprudence. In this case popularly known as the fundamental rights’ case the petitioners had
challenged the validity of the Kerala Land Reforms Act 1963. In this case it was held that (a) the
power of amendment is limited; it does not enable Parliament to alter the basic structure of
framework of the Constitution; (b) the substantive provision of Article 31C, which abrogates the
fundamental rights, is valid on the ground that it does not alter the basic structure or framework
of the Constitution; and (c) the latter part of Article 31C, which ousts the jurisdiction of the
Court, is void.
20
AIR 1951 SC 455, p 458.
21
AIR 1965 SC 845.
22
AIR 1967 SC 1647.
23
AIR 1973 SC 1461.

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The 44th Amendment removed the right to property from the Part III (“the Chapter on
Fundamental Rights”) by deleting Articles 19(1)(f) and 31, by making consequential
amendments, and by inserting in Part XII the following new chapter: “Chapter IV—Right to
Property, 300A. Persons not to be deprived of property save by authority of law—no person shall
be deprived of his property save by authority of law.”

One of the reasons for the deletion of articles 19(1)(f) and 31 and insertion of article 300-A was
to reduce the right to property from a status of a fundamental right to that of a legal right, i.e. the
right will be available against the executive interference but not the legislative interference. The
Supreme Court very clearly stated that the executive cannot deprive a person of his property
without the authority of law and “law” in this context means “an act of Parliament or State
Legislature, a rule, or a statutory order, having the force of law that is positive and State-made
law24. In view of the interpretation given to the word ‘law’ in Art. 21 in Maneka Gandhi v.
Union of India25, and some subsequent cases that law must be fair, reasonable and just law, the
Bombay High Court invalidated some provisions of the Maharashtra Housing and Area
Development Act, 1976 under Article 300-A because according to it the law was not just and fair
insofar as it provided less compensation for the acquisition of property than provided under the
land acquisition act, 189426. According to the court, adequate compensation was the ingredient of
‘law’ in Article 300-A. The decision of the High Court was reversed by the Supreme Court27.

Post 1978: Position of Right to Property

The acquisition of property is not merely temporal but to be accepted as valid it must conform to
spiritual guidelines as well as the Indian conceptions recognize quite clearly that though property
can be enjoyed which has not been acquired strictly in terms of the law, it cannot be called real

24
Bishambar Dayal Chandra Mohan v. State of U.P., AIR 1982 SC 33. Also State of U.P. v. Manohar, (2005) 2
SCC 126
25
AIR 1978 SC 597
26
Basantibai v. State of Maharashtra , AIR 1984 Bom 366
27
State of Maharashtra v. Basantibai, AIR 1986 SC 1466

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property of the person concerned. Property therefore is not merely an individual right but a
construction and part of social and spiritual order.28

After 1978, in the area of property relation, we are left with only four constitutional provisions,
viz., Arts. 31A, 31B, 31C and 300A. Arts. 31A, 31B, 31C although included in the Chapter on
Fundamental Rights to property in real sense, for, these three constitutional provisions, in effect,
do not confer any rights, but instead seek to impose drastic restrictions on the right to property.
The purport of these three provisions is to confer immunity on various types of laws curtailing
property rights.29

The Forty-Fourth Amendment of the Constitution in 1978 transformed the right to property from
the category of Fundamental Rights by repealing Art. 31, and converted it into an ordinary
constitutional right by enacting Art. 300A instead. Art. 300A merely says: “No person shall be
deprived of his property save by authority of law”.

Criticism

If the fundamental right to freedom of speech or personal liberty pertains to basic structure, there
is every reason that the fundamental right to property should also pertain to it, as the former set

28
J.M.D., Religion Law and State in India, Oxford University Press, New Delhi, 1999; p.131-132
29
Jain M. P., Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur, 2009. P. 1281.

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of rights could have no meaning without the latter. Protection of freedom depends ultimately
upon the protection of independence, which can only be secured, if property is made secure.

Our Constitution was framed by an extraordinary body of men, a body of men whose combined
virtues and talents have seldom if ever been equaled in this country. They enacted Article 39 and
enjoined upon the state to break up the concentration of property in the hands of the few and its
distribution among all. Property is the most ambiguous of all categories. It covers a multitude of
rights, which have nothing in common, except that they are exercised by persons and enforced
by the state.

Conclusion

Right to property has been one of the most debated parts of the Indian constitution. The Indian
Constitution does not recognize property right as a fundamental right. In the year 1977, the 44th
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amendment eliminated the right to “acquire, hold and dispose of property” as a fundamental
right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that
“no person shall be deprived of his property save by authority of law”. The result is that the right
to property as a fundamental right is now substituted as a statutory right. The amendment
expanded the power of the state to appropriate property for “social welfare purposes”.30

The right to property before the 44 th amendment was a fundamental right under article 19(1)(f).
After the 44th amendment the right is no more fundamental but is legal and constitutional. The
right is now under article 300-A. The 44th amendment took place in the year 1979, and the right
to property was shifted to article 300-A of the Indian constitution

The 44th amendment had a huge effect on the society. Right to Property, which was once a
fundamental right, now, is just a legal right. This means that a person doesn’t have an absolute
claim over his property, and the property can be taken away from him through legislative
backing.

Many people lost their land, which they once considered their own. But this change also helped
in the overall development of the country. Land acquisition became much easier now for the
government and this propelled industrialization in the country. This change has overall lead to a
positive impact in the society and the nation as a whole.

Bibliography

1. Jain, M.P, ‘Indian Constitutional Law’, 5th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2005

30
http://www.business-standard.com/search/storypage_new.php?leftnm=lmnu5&leftindx=5&ls

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2. Singh Mahendra P., ‘Constitution of India’, 11 th Edition, Eastern Book Company,
Lucknow, 2008.
3. Seervai H. M., ‘Constitutional Law of India’, 4th Edition, Universal Law Publishing,
New Delhi.
4. Tripathi, P.K, ‘Right of Property After 44th Amendment Better Prosecuted Than
Ever Before’, Air 1980(51) Journal.

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