Juristical Analysis Case Analysis

Appellants:Basantibai Fakirchand Khetan and Ors. Vs. Respondent:State

of Maharashtra and Ors.

Summary of Facts

The petition of the present case along with 13 other petitions were filed under Art. 226 of the
Indian Constitution. It brought the constitutional validity of Sec. 44 of the Maharashtra
Housing and Area Development Act, 1976, in question, which offers the basis for
determination of amount for land acquisition in Municipal areas. The petitioners are owners
of the lands in Municipal Areas, either agricultural or non-agricultural.

The land involved in this particular petition bears Survey No. 28 and measures 398.60
Hectares. It is situated at the village of Bhusi in Maval Taluka of District Pune. Mohanlal
Fakirchand who died on 18th May, 1976, had purchased this land under sale deed dated 18 th of
January, 1966 and was the owner of the land until his death. While obtaining some
information about the need of housing accommodation by lower income groups, middle
income groups and economic weaker sections, Maharashtra Housing and Area Development
Authority sent a letter

To Municipal Council, Lonavala on August 1, 1978 for the purpose of evaluating the demand
for tenements. Subsequently, the Municipal Council issued 2 advertisements in the local
newspapers on August 13, 1972 and 1979 respectively, to obtain some applications from
general public for housing accommodation. After having assessed the requirements, the
Maharashtra Housing ana Area Development Authority by letter dated Sept. 15, 1976,
conveyed to State Government its initial requirement of about 26 hectares of land within the
limits of Lonavala Municipal Council for the purpose of social housing scheme.

Further the State Government published a notification under the provision to Sec.41(1) of the
Act inviting objections to the proposed acquisition. In pursuance of the notification, petitioner
number 3 lodged his complaint on September 6, 1979. After considering the various
objections, the State Government under Sec.41(1) of the Act published the final notification
dated July 3, 1980, gaining certain lands, including the lands of petitioners too. Further, the
notification was issued under Sec.42(1) of the Act dated December 12, 1980, to landowners
to surrender and transfer the possession to the collector of Pune within 30 days. On January,
1981, the petitioners lodged their complaint that Survey number 28 of village Bhusi was not
mentioned in the notification, as Survey number 28 is of village Maval. The State
Government responded to the objection on May 15, 1981 by publishing a corrigendum
making the correction. Finally, the Government published a fresh notification for the delivery
of issued possessions. Lastly on December 17, 1981, the petitioners filed the present petition
in this Court.

Analysis of the Principles of Jurisprudence

While, the whole case and the judgement can be considered to be a judgement that protects
the inherent right that people have to own property overarching upon Locke’s idea of state,
laws and property. One can only do justice by conducting an analysis on the various
arguments presented and the Jurisprudence behind the argument and the reasoning of the
court. Therefore, let us look at this objectively.

Let us consider the argument regarding whether there exists any discrimination between rural
landowners and urban landowners and if such discrimination exists whether such
discrimination is protected under Article 14. Looking at the method of reasoning that is
adopted by the judges one is immediately drawn to the HLA Hart and Lon Fuller’s 1 debates.
As judges here try and interpret the word of law as it is but also at the same time keep in
mind the inherent moral consideration or the internal morality behind the law as Fuller called
it. After extensive argumentation put forth by both the counsels regarding the facts of the case
and the differential circumstances between the mode and payment of compensation, it was
held that such practice under the Act in question is clearly discriminatory. Latching on as we
continue to the argument whether such discrimination is protected by Article 14, we see the
argument taking place on whether such discrimination is a reasonable justification. Here we
can observe that there is an extraordinary effort put in by the judges to follow the word of the
law. But, such strict adherence to the law is based on the internal Morality of the law.

This is specifically evident looking at the statement by Justice Krishna Iyer in the State of
Kerala v. T.M. Peter2 referred here “The principle that may be distilled form these rulings and
the basics of 'equality' jurisprudence is that classification is not permissible for compensation
purpose so long as the differentia relied on has no rational relation to the object in view”,

1
https://plato.stanford.edu/entries/law-language
2
MANU/SC/0388/1980 : [1980]3SCR290, State of Kerala v. T.M. Peter
Looking at this statement it becomes evident upon which it is based as this is a direct call to
the external and internal morality of law. The law has been made to relegate one’s basic right
of equality so therefore there cannot be any further discrimination based on such relegation of
a right. Here the law itself carries a sense of internal morality in it based on the logic that
such rules are made in a manner as to not disadvantage any individual within society and also
the court imparts it with the external morality when making decisions based on such laws
where justice is not only done but also must be seen as done. Therefore, here we can observe
an apparent connection between law and morality and a consonance to Fullers arguments3.

The second argument here is regarding retrospective law. The issue stems from the fact that
the act in question here was passed by the Bombay before Article 32 4 was repealed. Now the
question here is whether the act can be applied retrospectively in the current case. The judges
after debate and consideration came to the consideration that such an action would be invalid
and unlawful. Here we are reminded of the moral test that is offered by Fuller where we can
measure the moral validity of the law. Within these conditions lies the condition that law
should be prospective and apply to the future from being passed and this means that it
becomes unfair for a law to be interpreted retrospectively as this one is morally unfair as it
places unfair liability on a large section of people. There is also discussion regarding how this
is one of the basic principles of the constitution and various cases such as the Minerva Mills
Ltd v. Union5 of India and Keshavananda Bharti v. State of Kerala 6. But when we look at the
courts opinion regarding the Minerva mills case we can observe an interesting contradiction
to Fuller here we have a stand that can be compared to the positivist though the court agrees
that the case of Minerva Mills is a bad one they refrain from commenting or contradicting it
or opposing it when there already exists a case in the supreme court to review the judgement
in the Minerva mills case, so therefore the case still stands binding. Here we see the court
taking a very Austinian stand they decide to stick to the decision of the higher court even
though they question its rightness. So here it seems like a command as Austin describes a law
to be7, something that cannot be diverted or avoided and always binding the view here taken
by the High Court strongly resembles the Jurisprudence of John Austin.

We then finally move on to the main question of whether the state has a right to acquire
property from citizens. The thinker with the most relevance in this case is the philosopher
3
https://plato.stanford.edu/entries/rule-of-law
4
The Constitution of India
5
MANU/SC/0075/1980 : Minerva Mills Ltd. v. Union of India
6
MANU/SC/0445/1973 : AIR1973SC1461, Keshavananda Bharati shripadgalvaru V State of Kerala
7
https://plato.stanford.edu/entries/austin-john/
John Locke and his idea about how all men are born free. Locke considers something very
important when he talks about property, he puts forward the idea that one may appropriate
property through one’s labour and the increase in private property leads to higher
productivity8. Since such property is occupied by the virtue of an individuals labour it
becomes an unalienable right of that individual to enjoy his property this is similar to the
argument put forward. The individuals forfeit their rights to protect their property as they
create a state which ensures the property of individuals is protected. So, the question the
becomes, whether it is okay for the state to forcefully acquire property from the citizens.

Here, the defence justifies this using Article 39(b)9 of the Constitution which basically allows
the government to subvert fundamental rights and pass legislation if such legislation is aimed
towards fulfilling the directive principles provided within the constitution. The nature of
these directive principles is such that they are directed towards achieving the greater ideals of
a nation. We can therefore conclude that the state can acquire a citizen’s land only if it is for
the general good10. Which is in complete consonance of the utilitarian idea put forth by
Jeremy Bentham. Jeremy Bentham is a jurist and political reformer who is most notably
known for his idea of utilitarianism 11. Here according to Bentham, it is fair for the state to
acquire a citizen’s property if such property is to be used for the achievement of a greater
good, the concept of taxes is also based on such a principle of utilitarianism. So, based on
Bentham’s theory of utilitarianism such an act by the state can be valid thereby proffering
validity to article 39(b). Here the court decides the action of the state to be non-utilitarian as it
is an act that would financially benefit the state.

But this doesn’t necessarily mean that the state can snatch away land. The state has to go
through a process to do so and this is supposed to be a fair process such a process is provided
under article 300A12. According to the article the state can only do this under the authority of
law13. This is again indicative of the fairness and liberty that John Locke advocates. Further
the court observes that the mere prescription of a procedure cannot meet the mandate but
such procedure has to be fair, just and reasonable, not fanciful, oppressive or arbitrary 14. This
again is indicative of Locke’s idea that property is acquired by personal endeavour and one

8
Macpherson(1982) on Locke
9
The Constitution of India
10
MANU/SC/0040/1982 : [1983]1SCR1000
11
https://plato.stanford.edu/entries/bentham
12
Chapter IV of Part XII of the Indian Constitution
13
State of Bihar v. maharajadhiraja Sir Kameshwar singh of Dharbhanga MANU/SC/0019/1952 : [1952]1SCR889
14
MANU/SC/0133/1978 : [1978]2SCR621
cannot be denied the benefits of their labour arbitrarily. The law is in complete agreement of
Locke’s ideas.

The judges by applying the laws and carefully analysing the facts decided to allow the
petition.