Right to Property

Deeksha Sharma
Assistant professor
Department of Law
University of Rajasthan
Right to property is a Natural Right: John
Locke
Also incorporated as Fundamental Right in US Constitution in the same provision as life
and liberty.
Indian Constitution also incorporated the Right to property as Fundamental Right. Article
19(1) (f) and article 31(1)
19(1) (f): to acquire, hold and dispose of property
19(5): reasonable restriction: interest of general public and ST
31: no person shall be deprived of his property save with the authority of law.
Concept of Eminent Domain

State is the owner of all property within its territory

State can acquire any property for public purpose and after giving compensation.
Concept of Eminent Domain is incorporated in Article 31(2)
Also was there in Government of India Act 1935
Article 31(2) Main Elements

State takes possession of or acquires any property

For public purpose
Will be done only under the law
Law will provide for compensation/ or fixes principles for the determination of
compensation
The Question of Compensation: bone of contention
between Judiciary and legislature

Question 1: when compensation is to be given

Question 2: how much compensation is to be given?

Question 3: who is the final authority regarding the question of compensation: judiciary or the
legislature?
 The Question of Compensation 1: When
compensation is to be given

State of WB v. Subodh Gopal 1954

Judiciary:
Give Saghir Ahmad v. State of UP 1954
compensation
when a person is
deprived of his
right to property
Legislature:
Compensation to be given
only when there is
compulsory acquisition and Constitution (Fourth
requisition of property i.e. Amendment), 1955
transfer of ownership and
possession in government
 Question of Compensation 2: How much
compensation is to be given?

Judiciary: “Just equivalent”

compensation Legislature: No amendment in the term
compensation by Fourth Amendment 1955
State of WB v. Bella Banerji 1954
The Question of Compensation 3: Who is the final
authority regarding the question of compensation:
judiciary or the legislature?

We can look into the adequacy of 4th Amendment,1955: no Judicial Review of

compensation. It should be “just adequacy of compensation. It will be decided
equivalent:” Bella Banerji Case 1954 by the legislature as per law. Legislature is
final authority on question of compensation
Position After 1955
The Question of Compensation 1: When
compensation is to be given

Law is settled by the 4th

amendment. Compensation only
in case of “compulsory
acquisition and requisition”
under the law. Question no more
controversial
 Question of Compensation 2: How much
compensation is to be given?
Since no change in the term
compensation, interpretation of
25th Amendment 1971: “compensation” word
Bella Banerji will continue. “Just
replace by “amount”. Now “Just equivalent”
equivalent” compensation:
does not apply
Vajravelu v. Special Deputy
collector, 1965
 The Question of Compensation 3: Who is the final
authority regarding the question of compensation:
judiciary or the legislature?
Adequacy of compensation

No Judicial Review

Relevancy of principles for fixing

compensation
If compensation is a fraud on
Constitution
Judicial review
Vajravelu v. Special Deputy collector, 1965
UoI v. Metal Corporation of India 1967
Bank Nationalisation Case(RC Cooper v UoI 1970)
The Question of Compensation 3: Who is the final
authority regarding the question of compensation:
judiciary or the legislature?

25th amendment 1971:

replace “compensation”
with “amount”

Effect: all
interpretations of
“compensation”
became ineffective
Kehsvanand Bharti v. State of Kerala AIR
1973 SC 1461