Land Laws –

Constitutional Perspective
Right to Property and
Constitutional Approach
 Doctrine of Eminent Domain
• “The sovereign can do
anything, if the act of
sovereign involves public
interest.”

2
• The doctrine of Eminent Domain
entitles sovereign to acquire
private land for a public use,
provided the public-ness of the
usage can be demonstrated
beyond doubt.
3
• Today, this doctrine raises the
basic debate of powers of State
v. Individual Rights.
• Question of legality of
Displacement arises.

4
• The forcing of communities even out
of their homes, often from their
home lands for the purpose of
economic development, which is
viewed as a Human Right violation
in the International level.

5
 Essentials of the Doctrine
• Property is taken for public use
• Compensation is paid for the
property taken.

6
• Every government has an inherent
right to take and appropriate the
private property belonging to
individual citizen for public use.
• This power is known as Eminent
Domain.
• It is the offspring of political necessity.
7
 MAXIMS
• Salus Populi est Suprema Lex -
Welfare Of The People Of The Public
Is The Paramount Law.
• Necessita Public Major est Quam -
Public Necessity Is Greater Than
Private Necessity

8
• The Doctrine is based on two maxims.
• Thus property may be needed and
acquired under this power for
government office, libraries, slum
clearance projects, public schools, parks,
hospitals, highways, telephone lines,
colleges , universities, dams, drainages
etc.
9
• The exercise of such power has been
recognized in the jurisprudence of all
civilized countries as conditioned by
public necessity and payment of
compensation.
• But this power is subject to restrictions
provided in the constitution.

10
 At the time of Independence
• The objective resolution showing
philosophy of constitution:
– “The guarantee and security to all the people
of India, justice, social, economic and political;
equality of status of opportunity, before the
law; freedom of thought, expression, belief,
faith, worship, vocation, association and
action, subject to law and public morality was
the objectives for drafting the Constitution.”
11
 Concept of Social Security
• Objectives that constituent framers
had kept in their mind at the time of
enacting the constitution.
• To achieve this objective, review of
existing land tenure and revenue
system was required.

12
 Constitutional Provisions
• Parliament and State Legislatures in India
have powers to make law.
• Not absolute power
• Judiciary – Empowered to see the
constitutional validity of such laws.
• In case of enactment of any law violating the
provisions of constitution, Supreme Court may
declare it as ultra vires

13
• Purpose : The constitution should be an
adaptable document rather than a rigid
framework for governance.
• Hence- Power of amendment is provided.
• Article 368 – Impression that Parliament’s
amending powers are absolute and applicable
to each part.
• However, Supreme Court acted as a brake to
the legislative enthusiasm of parliament
14
Article 19(1)(f)
Article 19(5)
Article 31

15
• At the commencement of the
Constitution of India, right to
property was fundamental right
under 19(1)(f) which provided that
– “All citizens shall have the right to
acquire, hold and dispose of
property”,
16
• This article was subject to certain
reasonable restrictions as provided
in art. 19(5) that the state can
impose reasonable restrictions in the
interest of general public or for the
protection of any scheduled tribe.

17
• Article 31 provided for
COMPULSORY ACQUISITION OF
PROPERTY.
• Various Clauses of Article 31 –
Relevant.

18
• Clause (1) : a person can only be
deprived of his property by the
authority of law,

19
• Clause (2): The property shall be
acquired only for the public
purpose and on the payment of
compensation,

20
• Clause (3): If any such law is
passed by the legislature of the
state, it will come into effect only
if it has received the assent of the
President of India,

21
• Clause (4): Any legislation passed
by the State legislature and has
received the assent of president,
then it shall not be questioned, in
any court, on the ground that it
contravenes the provisions of Art.
31(2)
22
• Clause 5 provided protection of
existing and future laws enacted
for the purpose mentioned
therein

23
• Clause (6): No law of the state enacted not
more than 18 months before the
commencement of constitution of India, and
within the three months of such
commencement has received the assent of
the President of India, shall be questioned on
the ground that it contravenes the provisions
of sub-section (2) of section 299 of
Government of India Act, 1935.
24
 Sec. 299 (2) of Government of India
Act 1935
• Neither federal or provincial legislature shall have
power to make any law authorising the compulsory
acquisition for public purposes any land, or any
commercial or industrial undertaking, or any
interest in, or in any company owning any
commercial or industrial undertaking, unless the
law provides for the payment of compensation for
the property acquired land either fixes the amount
of the compensation, or specifies the principles on
which, the manner in which, it is to be determined.

25
• In addition to this,
– Entry 33 in list I provided for acquisition and
requisition of property for the purpose of union,
– Entry 36 to II list provided for acquisition and
requisition of property, except for the purpose of
the union and
– Entry 42 of list III provided for the compensation
to be provided and determination of principal on
which such compensation is to be fixed.

26
• On reading Article 31, it is quite clear
that clause (2) provided that
compensation is a pre requisite of
any law providing for acquisition and
requisition of the land

27
• And clause (4) and (6) were providing
protection to legislation for acquisition
and requisition of the property but that
was very limited protection i.e.
protection only against the
contravention of clause (2) of Article 31
and section 299(2) of Government of
India Act, 1935.
28
• It was felt that these provisions are ample
to protect two important & contradictory
things:
– to protect the right to property as a
fundamental right of every citizen of India and
– to protect the legislations providing for the
acquisition of property in public interest and
with due amount of compensation.

29
• From the provisions of Art. 19(1)(f)
and Article 31 sub clause (4) and sub
clause (6), it was thought that by this
basic framework the land acquisition
legislations are fully protected.

30
• In Patna High Court, validity of Bihar
Land Reforms Act, 1950, assented by
the President of India, was
challenged by Marajdhiraj Sir Shree
Kameshwar Singh

31
• The Act provided that on and from
appointed date, all rights and interest in
the estate of Zamindar and his
successors in the interest shall stand
extinguished and shall vest in the state
and compensation will be paid as per the
principles to be provided in the Act.

32
• This Act was challenged on the
ground that it violates Art. 14 as it
provides for different method in
determining the compensation for
Big and Small Land lords.

33
 Formula for Payment of
Compensation
• Compensation to be paid at twenty
times in case of acquired land held
by a poor man and at three times in
case of acquired land held by a rich
person.

34
 Observation by the High Court
• Although there could not be a
challenge in the matter on adequacy
of compensation in the view of
Article 31(4) and (6), the statute was
violative of Article 14 as it
discriminated between zamindars.

35
 Appeal Before the Supreme Court of
India
• The Bihar Land Reforms Act, 1950 – Held to
be Unconstitutional
• The Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act,
1950 & The Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 – Held to be
valid.

36
• This judgment proved very fatal to
the nationwide programmes of
agrarian reforms and posed a threat
to similar kinds of legislation passed
by the different states.

37
• In such situation Legislature, i.e.
constituent assembly working as
legislature, amended the
constitution by The Constitution
(First Amendment) Act, 1951 and
inserted Art. 31A to the Indian
Constitution.
38
First Amendment in the Constitution

• By the than Prime Minister Nehru.

Constitutional (First Amendment) Bill in
Lok Sabha (Provisional Parliament) on
8th May 1951.
• The Bill was passed and received the
assent of the President on 18 June 1957

39
• “31A. Savings of laws providing for acquisition of
estates etc. – (1) Notwithstanding anything in the
forgoing provisions of this part, no law providing
for the acquisition by the state of any estate or
any rights therein or for the extinguishment or
modification of any such right shall be deemed to
be void on the ground that it is inconsistent with,
or takes away or abridges any of the rights
conferred by, any provision of this part:

40
• Provided that where such law is
made by the legislature of a state,
the provisions of this article shall not
apply thereto unless such law,
having been reserved for the
consideration of the President, has
received his assent.
41
• The Constitution (First Amendment)
Act, 1951 along with..
– the Article 31A,
– added Article 31B and
– IX schedule to the Constitution of
India.

42
 Article 31B
• None of the Act specified in schedule
IX shall be deemed to be void on the
ground that it takes away or abridges
any of the rights conferred by the
Part III of Indian Constitution.

43
• The very first Act which was included
in the IX Schedule was Bihar Land
Reforms Act 1950 and there were
thirteen other Acts which had been
specified in IX schedule.

44
 Significance of Article 31-A
• Smoothened the process of zamindari
abolition, but it did not immune the
legislation dealing with other aspects of
agrarian economy, e.g.,
– fixation of ceiling on agricultural holdings;
– the development of village panchayats for
effective village planning and management;
– the consolidation of fragmented holdings.
45
• The protection to be extended to
some types of industrial law as well,
such as, temporarily taking over
management of industrial concerns.

46
• The scope of Article 31-A was extended by the
Constitution (Fourth Amendment) Act, 1955
by adding a few more categories of
deprivation of property which were to be
immune from an attack under Articles 14, 19
& 31.
• Exemption was extended from the area of
agriculture land reform to industry & mining.

47
 Other inclusions:
• (a) The acquisition by the state of any ‘estate’ or
of any rights therein or the extinguishment or
modification of any such rights; or,
• (b) The taking over of the management of any
property by the state for a limited period either
in the public interest or to secure its proper
management; or,
• (c) The amalgamation of two or more
corporations either in the public interest or to
secure proper management of any of them; or,
48
• (d) The extinguishment or modification of any rights of
managing agents, secretaries and treasurers, managing
directors or directors, managers of corporations, or of
any voting rights of shareholders thereof; or,
• (e) The extinguishment or modification of any rights
accruing by virtue of any agreement, lease or license for
the purpose of searching for, or winning, any mineral or
mineral oil, or the premature termination or
cancellation of any such agreement, lease or license.

49
• The 1st Constitutional Amendment
Act was challenged in the case of
Shankari Prasad Singh Deo Vs. State
of Bihar (1951 AIR 458) – Date of
Judgement 05/10/1951

50
 Main argument
• The amendment is made by the PROVISIONAL
PARLIAMENT – NOT COMPETENT TO
EXERCISE POWERS U/A 368
• The amendment takes away the rights
conferred by Part III – which violates the
provisions of Art. 13(2)
• The newly amended articles affects Art. 132 &
136 – Requires ratification under article 368(2)

51
• Interpretation was made for Article 379
(Repealed by 7th Amendment 1956)
• It was held that Article 13(2) does not
affect amendments to the Constitution
made under Article 368 because such
amendments are made in the exercise of
constituent power.

52
 Observation by SC
• The power to amend the Constitution
under article 368 also include the power to
amend fundamental rights and the word
‘Law’ in article 13(3) includes only an
ordinary law made in exercise of the
legislative powers and does not include
Constitutional amendments which are
made in exercise of the constituent power.

53
• Therefore, a constitutional
amendment will be valid even if it
abridges or takes any of the
fundamental rights.

54
I.C.Golaknath v. State of Punjab
(1967 AIR 1643)
• Family of Henry and William
Golaknath – owner of about 500
acres of farmland in Jalandhar,
Punjab.
• The Punjab Security and Land
Tenures Act 1953 passed.

55
• The Act pronounced that the owners can
keep only 30 acres of land.
• Few acres of land shall be given to the
tenants.
• Remaining land was declared as surplus
land

56
• The family challenged the Act by filing a
petition in SC under article 32.
• Grounds: Right to property article and Right
to equality has been denied.
• Challenged the Constitutional 17th
Amendment act which placed the said act in
schedule IX in 1964 as unconstitutional.
(Entry 54 of Schedule IX)
57
 Issue before the Court
1. Whether the Amendment in the
Constitution is Law under the meaning
of article 13(2) ?
2. Whether the fundamental rights can
be amended of not.

58
• A bench of 11 judges considered the
correctness of the view that had been
taken in Sankari Prasad and Sajjan Singh
case.
• By majority of six to five, these
decisions were overruled.

59
 Judgement
• It was held that the constitutional
amendment is ‘law’ within the meaning
of Article 13 of the Constitution and,
therefore, if it takes away or abridges the
rights conferred by Part III thereof, it is
void.

60
Doctrine of Prospective Overruling
• It was declared that the Parliament will
have no power from the date of the
decision (27th February, 1967) to amend
any of the provisions of Part III of the
Constitution so as to take away or
abridge the fundamental rights
enshrined therein.

61
 Why this Doctrine?
• Validity given to the power of Parliament to
amend the Fundamental Rights, the First and
Seventeenth Amendments.
• During 1950 to 1967, a large number of laws
were passed to affect agrarian reforms.
• If Supreme Court now restricts the agrarian acts
and deny the power of Parliament to amend the
Fundamental Rights, it would introduce chaos
and unsettle the conditions in our country.
62
 Observation by CJI Subba Rao –
Quote of Pt. Jawaharlal Nehru
• "A fundamental right should be looked upon, not
from the point of view of any particular difficulty of
the moment, but as something that you want to
make permanent in the constitution. The other
matter should be looked upon - however important it
might be not from this permanent and fundamental
point of view, but from the more temporary point of
view."

63
 Observation by CJI
• Pandit Jawaharlal Nehru, who was Prime
Minister at that time and who must have had
an effective voice in the framing of the
constitution, made this distinction between
fundamental rights and other provisions of
the constitution, namely, the former were
permanent and the latter were amendable"

64
 Justice Hidaytullah on Parliament &
Sovereignty
• Strong opposition on the unlimited power
of Parliament to amend the Constitution.
• Warned about the danger of majority
party in power would go beyond
constitutional limitations to get power
hence the Parliament has no power to
amend the fundamental Rights.

65
 Selected Quotes
• I do not for a moment suggest that the
question about reasonableness, expediency
or desirability of the amendments of the
Constitution from a political angle is to be
considered by the courts. However, what I do
say is that the possession of the necessary
majority does not put any party above the
constitutional limitations implicit in the
Constitution.
66
• It is obvious that the Constituent Assembly in
making the Fundamental Rights justiciable
was not justified with reliance on the sense of
self-restraint or public opinion as the majority
in Sajjan Singh's case does. This is not
argument of fear. The question to ask is: can
a party, which enjoys 2/3rds majority today,
before it loses it, amend Article368 in such
was that simple majority would be sufficient
for the future amendments of the
constitution? Suppose it did so, would there
be any difference between the constitutional
and the ordinary Laws made thereafter? 67
 Reaction by the Parliament
• I.C. Golak Nath resulted into 24th
amendment (1971)
• Art.13 (4) was added that the article shall
not apply to any amendment of the
Constitution under Art.368
• Also amended Art.368 (1) by adding the
word “in exercise of its constituent
powers”.
68
• Article 368(3) – Nothing in article 13
shall apply to any amendment made
under this article.

69
 25th amendment (1972)
• Art.31 (Amendment) - the amount fixed for
acquisition could not be challenged on the
ground of adequacy in Court
• Art.31(C) The law securing any of the
principle in part 4 shall not be deemed to be
void if it takes away the rights by Art.14 and
Art.19, and no law containing such
declaration will be questioned in any court of
law.

70
• The 24th amendment (1971) made an
attempt to supersede Golaknath case
putting the validity of constitutional
amendment on the ground that it takes
away or affects fundamental right
beyond the pail of judicial scrutiny.

71
 Kesavananda Bharti v. State of
Kerala (1973 4 SCC 225)
• His Holiness Shri Kesavananda Bharti
– a mahant of a hindu mutt in Kerala
challenged Kerala Government’s
attempt s under state reform laws to
impose restrictions on the
management of his property.

72
• Swami HH Shri Kesavananda Bharati,
Senior head of Endeer Mutt – Hindu Mutt
situated in Endeer Village in Kasaragod
District in Kerala
• In February 1970, he challenged Kerala
Government’s attempt to impose
restrictions on the management of
property.
73
• Matter pertaining to Article 26 – Right to
manage religiously owned property without
government interference
• Also challenged major amendments 24, 25, 26
and 29 during the tenure of Indira Gandhi in
the constitution to overcome the effects of
judgments by Supreme Court including
Golaknath

74
• Various amendments including 24th,
25th, 26th and 29th challenged before the
SC.
• The hearing took place before the
Largest bench of the SC with 13 Judges.
• The majority by 7:6 overruled the 24th
amendment.
75
 Judges
• M. Sikri (CJ) • N. Ray
• N. Grover • H. Beg
• G. Palekar • K. Mathew
• R. Khanna • N. Dwivedi
• M. Shelat
• S. Hegde
• Jaganmohan Reddy
• V.Chandrachud

76
 “If you try to be the best,
You will be Number One,
If you try to be Unique,
You will be the Only One!”

77
• The validity of Clause 4 of Art. 13 was
upheld.
• In the result the fundamental rights
could be amended under Art.368 and
the validity cannot be questioned on the
ground that the act invades or
encroaches fundamental rights.

78
• The Supreme Court, however, by a
judicial innovation structured a 'Basic
Structure Doctrine' and gave to itself
power to review whether such an
amendment would be ultra vires as it
violates very structure of the
Constitution.

79
 Basic Structure of the Constitution as
per the Kesavananda Verdict
• Each judge laid out separately what
he thought were the basic structure
of the constitution.
– As per Sikri, C. J.
– As per Shelat J. and Grover J.
– As per Hegde J. and Mukherjea J.
– As per Jaganmohan Reddy J.

80
 As per Sikri, C. J.
• Supremacy of the Constitution
• Republican and Democratic form of
Government
• Secular Character of the Constitution
• Separation of Powers between Legislature,
Executive and Judiciary
• Federal Character of the Constitution

81
 As per Shelat J. and Grover J.
• The mandate to build a welfare state
contained in the Directive Principles of
State Policy
• Unity and Integrity of the Nation

82
 As per Hegde J. and Mukherjea J.
• Sovereignty of India
• Democratic Character of the Polity
• Unity of the Country
• Essential Features of the individual
freedoms secured to the citizens
• Mandate to built a welfare state

83
 As per Jaganmohan Reddy J.
• Sovereign Democratic Republic
• Parliamentary Democracy
• Three organs of the State

84
• 1975 – Opportunity to SC w.r.t. Basic Structure
• Challenge to P.M Victory of Indira Gandhi – upheld by
Allahabad High Court due to malpractice
• Pending appeal – Vacation Justice Krishna Iyer – Grant of
stay – allowed Mrs. Gandhi to function as P.M without
drawing salary and Voting rights in Parliament
• Meanwhile 39th Amendment – Removing authority of SC
to adjudicate petitions regarding elections of President,
Vice President, P.M and Speaker of Lok Sabha
• Bill on 7th August 1975 – Gazetted on 10th August 1975

85
 Post Kesvananda Bharti Case
• Reaction of Indira Gandhi Government –
land acquisition laws were kept beyond
pail of Art.31 by engrafting exceptions in
Art.31-A – 31-D.
• These provisions excluded the obligation
to pay any amount as compensation if
such laws related to matters specified in
the exceptional provisions.
86
• Such provisions include.. law for
acquisition by the State of any estate or
other intermediate interest in land to
affect aggregarian reforms and to
improve the agricultural wealth of the
country as well as social control of the
means of production.

87
• Art.31-A, except certain clauses of
laws, Art. 31-B read with 9th
Schedule gave blanket cover to
certain enactments, the number of
which swelled from 13 to 284 by the
year 2000.

88
• The 42nd amendment (1976) - introduced
during the emergency.
• As many as 56 Articles as well as 7th
Schedule was amended and changed the vital
principles underlying the 1949 Constitution,
including an attempt to overrule the
judgment of the Supreme Court nullifying the
election of Indira Gandhi.

89
• The scope of Art.31-C was also
enlarged by including within its
protection laws to implement any of
the directive principle in Part IV of
the Constitution- not merely Art.39
(b) and (c).

90
• The 42nd amendment tried to overreach
the implication of Kesavananda Bharti case
and in order to upheld the sovereignty of
Parliament, in Clause (5) of Art.386 declared
that “there shall be no limitation” on the
constituent power of the Parliament to
amend and such amendment, shall not be
called in any Court on any ground

91
 Indira Gandhi v. Raj Narayan
• Challenge to Article 329(A) (4) & (5) – Election
matters kept outside the purview of Judicial Review.
• Struck down by the court as they were found to be
violative of the basic structure of the constitution.
• It was assumed that even after a statue is included
in the 9th Schedule, its provision would be open to
challenge on the ground that they took away or
abrogated all or any of the fundamental rights and
therefore damaged or destroyed a Basic Structure.

92
• In Minerva Mills (1980) the Supreme Court by
then armed with basic structure doctrine
declared Clause (4) and (5) of Art.368 to be
invalid on the ground that these clauses
removed all limitations upon the power of the
Parliament to amend the Constitution and to
destroy the right of judicial review, which is
“essential feature” or “basic structure” of the
Constitution
93
• The 44th amendment (1978) by the Janta
Government, tried to do away with all
the harm that was done to the
Constitution by the 42nd amendment,
but gave a death blow to the right of
property guaranteed of the Constitution.

94
• By 44th Amendment Act 1978,
Art. 19(1)(f) was repealed and
Art.31 was taken out of Part III
and made Art.300-A.

95
 Effect of 44 Amendment
th

• Right of property was no longer a

fundamental right and was
substituted as a constitutional right.
An individual's property could be
taken away by a public authority.

96
• The same amendment omitted
clause 2 (A) (6), of Art.31 and Clause
(2) of Art.31 and transferred its
proviso to Art.30 as Clause (1) (A).

97
 I.R.Coelho V. State of Tamil Nadu
  AIR 2007, SC 861
• The case arose out of an order of reference made by
a five judge constitution bench in 1999.
• The Gudalur Janmam Estates (Abolition and
Conversion into Ryotwari) Act, 1969, that vested
forest lands in the Janmam estates in the State of
Tamil Nadu, was struck down by the Supreme Court
in Balmadies Plantations Ltd. & Anr. v. State of
Tamil Nadu, as it was found to be outside the scope
of protection provided to agrarian reforms under
article 31-A of the Constitution.
98
• By the Constitution (Thirty-fourth
Amendment) Act, the Janmam Act was
inserted in the ninth schedule, which was
challenged.

99
• It was observed that according to Waman Rao
& Ors. v. Union of India, amendments to the
Constitution made on or after 24.4.1973 (the
date of the Kesavananda Bharati judgment)
inserting various laws in the ninth schedule
were open to challenge on the ground that
such amendments are beyond the constituent
power of Parliament since they damage the
basic structure of the Constitution.
100
• The referral order further stated that the
judgment in Waman Rao needs to be
reconsidered by a larger bench so that it is made
clear “whether an Act or regulation which, or a
part of which, is or has been found by the courts
to be violative of one or more of the fundamental
rights conferred by articles 14, 19 or 31 can be
included in the ninth schedule or whether it is
only a constitutional amendment amending the
ninth schedule which damages or destroys the
basic structure of the Constitution that can be
struck down”.
101
 Main Issue
• Whether on and after judgment in
kesavananda Bharti V. State of Kerala when
the basic structure doctrine was propounded,
is it permissible for the parliament under
Article 31-B to immunise legislations by
inserting them into the ninth schedule and
thus outside the purview of the courts and, if
so, what was its effect on the power of judicial
review of the court?
102
 Held..
• After 24th April 1973 ( the date of the decision in
Kesavananda Bharati), laws placed in the Ninth
Schedule would not enjoy blanket immunity but
the court will examine the nature and extent of
infraction of a fundamental right by a statute,
sought to be constitutionally protected, and on the
touchstone of the basic structure doctrine as
reflected in Article 21 read with Article 14 and
Article 19 by application of the rights test and the
essence of the right test.
103
• Applying the above mentioned tests to the
ninth schedule laws, if the infraction affects
the basic structure, then such a law(s) will not
get the protection of the ninth schedule.
• Such a violation/infraction shall be open to
challenge on the ground that it destroys or
damages the basic structure as indicated in
Article 21 read with Article 14, Article 19 and
the principles underlying thereunder..

104
105