Whether the right to property is a fundamental right under the constitution of India? The state government has acquired my land and does not giving fair price to my land as a compensation under the land acquisition act. Can I file a case before the supreme court for protection of my fundamental right?
Question from: West Bengal
The land is the most precious asset in India because it is a scarce resource for 1.3 billion people. When the government needs land, it acquires the land and pay compensation the land owners. The amount of compensation must be just, fair and reasonable. However, the right to property is not a fundamental right but it is still a constitutional right.
Article 19(1)(f) of the constitution of India guaranteed to citizens of India the right ‘to acquire, hold and dispose of property’. In 1978 the 44th amendment Act abrogated such guarantees. Now right to property is a constitutionally recognised legal right under Article 300 A of the Constitution of India.
Right to property under Article 300 A
Article 300 A enumerates that: “No person shall be deprived of his property save by authority of law.” Authority of law denotes that the state can take the property by making a law. The Janata Government, headed by Shri Morarji Desai, deleted Articles 19(1)(f) and 31. The intention was to obliterate the right to property from the chapter of the fundamental rights.
The 44th amendment has abolished the right to property as a fundamental right. Consequently, an aggrieved person cannot directly approach the Supreme Court under Article 32, for infringement of his fundamental right. Moreover, the right to property is also not a basic feature of the constitution.
Now the right to property has very limited constitutional protection under Article 300 A. The state cannot deprive a person of his property save by authority of law. It connotes that the government can acquire private property by making a law.
Currently, a deprived person cannot assail the said law on the basis that it violates the fundamental right. The protection of Article 14 and 19 of the constitution of India is not available to a person under Article 300 A. But the government is obliged to pay fair compensation for the acquired land.
Fair compensation under Article 300 A
The 44th amendment Act has abolished the fundamental character of the right to property. Also, it is not a basic structure of the Indian constitution.
Article 300 A has no express provision that the government will pay compensation to the expropriated owner. In Kesavananda Bharati v State of Kerala AIR 1973 SC 1461; a majority decision of the Supreme Court held that
“The right to property was not part of the ‘basic structure’ of the Constitution, even after the Twenty-Fifth Amendment, the Court must inquire whether what is given as compensation is completely illusory or arbitrary.”
Right to property is still a constitutional right and the aggrieved person may challenge the acquisition proceeding under Article 226 of the constitution. He can seek justice from the High Court that the amount of compensation is unfair.
Albeit, the right to property is neither a basic structure of the Constitution of India nor a fundamental right but the court can test the fairness of compensation. If the amount of compensation is illusory then the court may set aside the acquisition proceeding.
In Jilubhai Khachar v State of Gujarat (1995) Supp (1) SCC 596; the Supreme Court held that the court can determine the principles on which the compensation was decided were relevant and the compensation awarded was not illusory.
The Supreme Court in KT Plantation Private Ltd v State of Karnataka (2011) 9 SCC 1; held that right to claim compensation is inbuilt in Article 300 A. A state can acquire the land only for the public purpose. The court can test the amount of compensation.
Principle of fair compensation
In the State of W.B. v. Bela Banerjee, AIR 1954 SC 170; the Supreme Court held that, however, the government has discretionary power of laying down principles for the determination of compensation. But such a principle must ensure that compensation should be just equivalent of full indemnification.
The compensation must be the prevailing market price of the property at the time of acquisition. Acquisition at the rate lower than the prevailing market price is illegal, unjust and violates the principle of fair compensation.
In Kesvanand Bharti vs State of Kerala AIR 1973 SC 1461, the Supreme Court reiterated that the government cannot arbitrarily decide the amount of compensation. Furthermore, compensation should not be illusory.
Thus the amount of compensation must be just and equal to the market price of the land. The 44th amendment act of 1977 has abolished the right to property as a fundamental right by deleting article 19(1)(f) and 31 from the Constitution of India. But it does not empower the government to acquire land paying inadequate compensation.
Meaning of property under Article 300-A
Article 300 A includes all types of property capable of being owned [Union of India vs Martin Lottery Agencies Ltd.(2009) 12 SCC 209]. It includes tangible, intangible, corporeal and incorporeal property. Article 300 A does not confine to land alone but includes intangible property like copyright, intellectual property rights, mortgage, money, any interest in the property, lease, license. The pension and gratuity are a valuable right of individuals therefore protected under article 300 A.
File a writ petition before the High Court
If the state government acquires your land it has to give fair compensation which could indemnify. Indemnity is a sum of money paid as compensation against financial loss. You are entitled to claim compensation under Article 300 A even if the right to property is not a fundamental right.
Right to property is still a constitutional right and has some constitutional safeguards. You should invoke writ jurisdiction of the High Court under Article 226 and claim fair compensation for your land.