‘Requirement to pay compensation. that is, money from acquired property, whose original position in Bela Banerjee’s case has now been restored ‘ | Photo credit: Getty Images
An often quoted saying in relation to property rights is President John Adams: “Property is as real a human right as liberty”. The right to property – initially considered a fundamental right and later a constitutional right – has witnessed an interesting history in the post-colonial era. No other right as contained in the Constitution has witnessed such fierce wrangling as between the judiciary and the legislature.
The origins of this power struggle begin with the Bela Banerjee case involving the interpretation of Articles 19(1)(f) and 31(2) of the Constitution (before amendment). The Supreme Court of India held that the wording of compensation in Article 31(2) states that it is “equivalent to what the owner has expropriated”. To reverse this interpretation, the Constitutional Amendment (Fourth) was approved in 1955 by amending, inter alia, Article 31(2) expressly stating that the court cannot investigate the question of inadequacy of compensation.
In response, the court then devised a good plan: even if the final compensation was unfair, the principles established by the legislature to reach the determination would be open to scrutiny.
Substitute words
Parliament, for its part, realized that the word “compensation” in Article 31(2) is the source of all evil. Vide the Constitution (Twenty-Fifth) Amendment Act, 1971 the word “compensation” was substituted for the word “amount” preserving the judicial interpretation. Thus, the acquisition of property is now possible through the medium of eminent domain (the state) by paying the landowner “amount” (as distinguished) from “compensation”. The sufficiency of that “amount” is therefore not open to judicial review.
Although the validity of the Constitution (Twenty-fifth) Amendment Act, 1971 was upheld in Kesavananda Bharati, the Supreme Court limited the intended effect of the amended Article 31(2) by the process of interpretation.
The majority in Kesavananda Bharati held that even if the adequacy of the amount paid is not applicable, the court can still examine whether the principles laid down for determining the compensation are appropriate, which is essentially a reversal of what Justice Shah said in the bank nationalization case. . After this decision, Parliament was convinced that property rights remained the proverbial thorn in the side of achieving a socialist state. This is because property rights, from a socialist point of view, are a bulwark of the bourgeoisie.
A shape change
After the defeat of the Congress in the 1977 general elections, the Janata Party, which came to power, passed the Constitution (44th Amendment) Act, 1978. The right to property under Article 19(1)(f) was removed from Part. III and rehabilitated in the form of constitutional rights under Article 300-A. Article 31, which has witnessed a lot of controversy regarding the determination of compensation was also deleted. The ripples were immediately felt.
Justice KK Mathew, who was one of the dissenting judges in Kesavananda Bharati, observed that ownership of property is directly related to the quality of civilization and culture and therefore opined that “…there is no reason to deprive the fundamental right to own and acquire property from category of basic features of the Constitution even if it is considered that the concept of basic structure is something that can be done”.
In 1980, Professor PK Tripathi wrote an influential article, arguing that the deletion of Article 31 was foolish and further: “The power conferred by Entry 42 of the joint list is the power to ‘acquire’ and not the power to ‘confiscate. ‘. As long as the two conditions – that is, the acquisition is only for public purposes and the acquisition must be associated with compensation – are clearly included in the provisions of Article 31(2), it is not necessary, and may not be allowed. , to request them as part of the grant itself…”
Article 300A: “No one can be deprived of his property except by the authority of law”. This, according to Prof. Tripathi, still means that the “law” cannot be valid except for acquisition or requisitioning for public purposes and there is also a provision in the law to pay compensation.
In the sense that he believes that “compensation” will continue to have the same meaning as given in the case of Bela Banerjee, that is, the market value of the property in question at a time not too far from the date of the acquisition period.
In the years following the repeal of Articles 19(1)(f) and 31, the Supreme Court held that the right to property is not only a constitutional right but also a human right. In the MC Mehta case, the Supreme Court held that to be a valid law, it must be just, fair and reasonable. In other words, although the right to property is not a fundamental right, a law that confiscates property must meet the requirements of Articles 14, 19 and 21. In BK Ravichandra, the Court went further and observed that the wording of Article 300A is very similar to Article 21 and 265 and therefore the bond cannot be read down.
Protected facets
The Supreme Court decision in Kolkata Municipal Corporation has made seven different aspects protected under Article 300-A. These are: The right to notice; the right to be heard; the right to a reasoned decision; the obligation to acquire only for public purposes; the right to restitution or just compensation; the right to efficient and speedy processing; right of conclusion.
Courts have concluded that none of these features would make the law vulnerable to challenge. The right to recover or just compensation judicially affirms the position which existed when the unamended Article 31 came into force, and its interpretation was explained in Bela Banerjee’s case on the aspect of payment of compensation. A person whose land is expropriated by the state in the exercise of its power of eminent domain has the right to be paid fair and reasonable compensation. The Court, in Kolkata Municipal Corporation, has reiterated that deprivation or removal of such rights is permissible only after restitution, be it in the form of monetary compensation, rehabilitation or similar means. Thus, the requirement to pay compensation. IE, the money value of the property acquired, which was the original position in Bela Banerjee’s case has now been restored. The wheel has come full circle.
The decision of the Kolkata Municipal Corporation confirmed the prophetic words of Prof. PK Tripathi, that in enacting the Forty-Fourth Amendment and deleting Article 19(1)(f) and 31, Parliament did not intentionally give the property of citizens as a type of protection. it has never been enjoyed before either in England or in its India.
N. Anand Venkatesh is a Judge, Madras High Court
