Project submitted for Right to Property

(3rd Trimester)
LLM Batch 2020- 2021
National Law School of India University, Bangalore

-TITLE-

Right to Property and Land reforms:

The Hurdles

Prepared under the guidance of – Submitted By-

Dr. Namita Wahi Kahkashan Jabin

Id-LLM/933/2020
 Right to Property and Land Reforms:

The Hurdles

Introduction

The most controversial debate around constitutional amendments in India is related to

property rights. Complexities of property rights triggered the very first amendment to the
Constitution of India. Framers of the Constitution made property rights sacrosanct by
declaring it a ‘fundamental right’. However, another constitutional obligation of ‘distributive
justice’ imposed upon State lead it to formulate land reform measures. It was necessary for
culminating the concept of welfare state. Independence not only assured political liberation
but also freedom from all sorts of discrimination and material abandonment. The
amendments unfurled for state land reforms legislations were blocked by zamindars alleging
infringement of their right to property. It yielded complex relation between the two. The
journey of property rights then travelled a series of conflicts with the states land reform
measures. It lead to successive constitutional amendments by the Parliament on one hand and
landmark judgments pronounced by Supreme Court (SC) and various High Courts (HC) on
the other hand. Though the debate around the property rights gather criticism of hurdling land
reforms in India.1 But Court decisions do shed light on the nature of property right
‘guaranteed’ under Constitution. It reflected that it directly never blocked any major land
reforms. Rather the series of amendment has first diluted then later snatched the status of
Fundamental Right (FR) from ‘right to property’.

Property Rights in India

Property is a dynamic concept having evolved in flexible manner over centuries across
different societies and effecting and getting effected by the legal systems during its
evolution.2 Earlier the law was “might is right”, thus king owned land, cattle and human

1
Balakrishnan Rajagopal, Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme
Court from a Social Movement Perspective Pro-Human Rights but Anti-Poor?, Human Rights Review,157, 161
(2007).
2
A.K. Ganguli, Right To Property: Its Evolution And Constitutional Development In India, 48(4) Journal of the
Indian Law Institute, 489, 489 (2006).
beings (in times when property was considered to be in human beings). Property in land later
became more important. It was vested in the ruler and worked upon by its subjects.3
In pre independence era, first the East India Company and then later the crown vested in
themselves the rights to property.4 Indian feudal system was diverse with system like
“zamindars, talukdars , janmis , agirdars, Inams and muafis”. Britishers introduced first
permanent settlements and grants in perpetuity without any explicit recognition of
Constitutional right to property. British Parliament later enacted in 1870 and 1894 ‘Land
Acquisition Act’ to alleviate corrupt arbitrators system for valuation of land taken from
private individuals.5 Except few non-essential changes this law still exist being source for
depressed class resentment whose lands are taken for paltry recompense. 6 In response to
political agitation of Indian for land reform and expropriation measures, private property was
safeguarded by inserting Section 299 under Government of India Act which was the
forerunner of Article 31 of the Indian Constitution.

After independence property rights were recognized u/a 19(1)(f) of Constitution of India
guaranteeing “rights to freedom” to citizens “to acquire, hold and dispose of property”
subject to “interest of general public” and “protection of interests of any scheduled tribe” u/a
19(5). Further Article 31(1) provides “person shall not be deprived of his property save by
authority of law”. Article 31(2) provides for compensation for the property acquisition. All
these rights are FR and thus in a sense non-derogable to certain extent.
However by the 44th amendment Article 19(1)(f) and 31 was omitted, giving death blow to
right to property with limited understanding that these rights continuously hurdle large socio-
economic projects proposed by legislature to rectify socio-economic structure build up by the
Britishers under its regime.

Land Reforms Measures

According to BR Ambedkar constitutional aim is to secure economic democracy for which
broad principles in the form of “Directive Principles of State Policy” has been laid down.
After independence, constitutional principles of “distributive justice”7 demanded shredding
off feudal wealth and privilege. Land reforms broadly took color from Article 39- “The State
3
Gopal Sankaranarayanan, The Fading Right to Property in India, 44(2) Law and Politics in Africa, Asia and
Latin America, 220,221 (2011).
4
Id. at 222.
5
Mohammed Hidayatullah, Right to Property and the Indian Constitution, New Delhi 1986, at pp.3 1-70, cited
in Sankaranarayanan, supra, at 222.
6
Sankaranarayanan, supra, at 222.
7
The Constitution of India, 1950, art. 38, 39(b) and (c).
shall, in particular, direct its policy toward securing … (b) that the ownership and control of
the material resources of the community are so distributed as best to sub serve the common
good; (c) that the operation of the economic system does not result in the concentration of
wealth and means of production to the common detriment”. Thus new Indian rulers started
seizing surplus lands by passing Zamindari abolition laws. Its main objective was vesting of
lands upon State and eliminating intermediaries between State and land tiller.

Righty to Property before the Amendments

Under the original provision of the Indian Constitution, right to property was made
fundamental right under clause (1) of Article 31. But Clause (2) permitted acquisition of
property with two limitations only-(1) it must be for public purpose; (2) law for acquisition
must provide for compensation (either fixing the amount or specifying the principle for
determining the compensation). The limitation does not end here. Clause (4) exempted land
reform legislations from judicial challenges on ground of violation of clause (2) which was
the only safeguard against arbitrary deprivation of property rights, if the law passed by state
legislature at the commencement of Constitution of India having been passed is reserved for
the assent of President has received his assent. Another crucial point highlighting loose
framework of property right is that word ‘just’ before compensation was there in Sec. 299 of
“Government of India Act” but not in Article 31(2). The Constituent Assembly’s debates
made it clear that those who crafted compromise formula for compensation intended to put
zamindari abolition legislations beyond judicial challenge.8

Initially also property rights was not made so strong to hurdle land reform measures. Rather
the intensity of property rights secured u/a 31 (1) was diluted by its subsequent provisions
particularly cl. (4) and (6) which made land reform measures beyond judicial review. Even in
matters of judicial review of ‘compensation’ where the legislative intent was not to procure
‘just and adequate compensation’, it yielded to legislative superiority owing to their
competence. The usual formula was fixing compensation rate in multiples of net income of
intermediaries’ estates. Higher multiple were there for small intermediaries compared to
larger ones. The formula to arrive at net income was to make deductions from gross income
of zamindar. Thus the amount of compensation could easily be manipulated by changing

8
H. C. L. Merillat, The Indian Constitution: Property Rights And Social Reform, 21(4), Ohio State Law Journal,
616, 621(1960).
items to be added in gross income and increasing the amount of deductions. Review power of
Court in compulsory acquisition cases in light of article 31(2) was weak and circumscribed.9
The diluted character of property rights under the Constitution could also be evidenced by the
two cases of HC of Madhya Pradesh 10 and Uttar Pradesh11 where these Courts upheld the
constitutionality of land reform legislations of both states respectively. There was only one
exception to this trend which was the first land reform legislation i.e. Bihar Land Reform Act.
It failed to hail against right to property but to very surprise the Act was not challenged for
infringing Article 31 but for the violation of Article 14 due to the graded scale of payment of
compensation.12

Diluting Property Rights:

 The 1st Constitutional Amendment, 1950

The amendment was in response to Kameshwar Singh case decided by Patna High Court
striking down Bihar land reform Act. The Amendment added Article 31A, 31B and IX
schedule to the Constitution to make land reform legislation completely immune to any
challenges. Article 31A provided that laws affecting rights in estates shall not be challenged
on ground of inconsistency with any of the FR enshrined under III. The only safeguard
against this acquisition was President’s assent which essentially according to the Indian
Parliamentary system meant Government’s discretion. Article 31A explicitly deprived
owners of their “estates”13 which meant “Zamindar, Jagir, Inam, muafi other similar grants”.
Clause 2(b) defined “rights, in relation to an estate”, to include “any rights vesting in a
proprietor, sub-proprietor, under-proprietor, tenure-holder, or other intermediary and any
rights or privileges in respect of land revenue”. Article 31B was added to validate, with
retrospective effect, 13 state land reform laws including the Bihar Land Reform Act. It
provided that the laws inserted under IX schedule shall be immune from judicial review on
ground of violation Part III. “The legislative axe cut away the Zamindaris root and branch.”14

9
Merillat, supra at 625.
10
Raj Rajendra Malojirao Shitole v State of Madhya Bharat AIR 1952 MP 97.
11
Raja Suryapal Singh v State of Uttar Pradesh AIR 1951 All 674. AIR 1951 All 674
12
Kameshwar Singh v State of Bihar AIR 1951 Pat 246.
13
The Constitution of India, art. 31A (2).
14
M. K. Nambyar, 17th Amendment of the Constitution Supreme Court Journal , (Oct. 1963), cited in B.
Errabbi, Constitutional Developments Pertaining To Property And The Seventeenth Amendment Act,
6(2/3)Journal of the Indian Law Institute, 196, 198 (1964).
When 1st Constitution Amendment Bill was introduced in the House of people, Prime
Minister again reminded that “it had been the intention of the constitution framers to take
away the question of zamindari and land reform from the purview of the courts…this
business of the equality of the law may very well mean, as it has come to mean often enough,
making rigid the existing inequities before the law. That is ... dangerous in a changing society
and it is completely opposed to the whole structure and method of this constitution and what
is laid down in the directive principles (of state policy).”15

 The 4th Constitutional Amendment, 1955

The amendment pushed land reform measure to next phase of imposing land ceilings and
redistributing holdings. It was in response to three major cases16 where court expanded idea
of “deprivation” to include “taking possession of property” to override the conflict between
legislature and judiciary regarding interpretation of clause (1) and (2) of Article 31A and of
the word ‘compensation’ u/a 31(2) in State of West Bengal v. Bela Banerjee17 where Court
interpreted it as “just equivalent” and “within the limit of basic requirement of full
indemnification”. Interpretation required payment of compensation when state action
deprived benefits of ownership mainly in commercial undertakings, without formally taking
possession or acquiring title to property. Such aggressive interpretation was missing in land
reform cases when court considered illusory compensation as equitable.

Amendment added- “compulsorily acquired or requisitioned” u/a 31(2) for mandatory

compensation as opposed to discretion u/a 31(1) for “deprivation” and clause (b) to Article
31A (2) to include “raiyats” and “under raiyats” to make their rights immune from protection
of Articles 14, 19(1)(f) and 31. It finally curtailed court’s review power in compulsory
acquisitions or requisitions legislations and other interferences to private property including
the challenges on quantum of compensation.

However, court could still examine the ‘principles for determining compensation’ rather than
the evaluation of market value or actual value at the time of acquisition. 18 High courts upheld
that ‘no compensation’ indicated no formulation of ‘principles of compensation’. 19 But this
limited judicial review was ousted when property was acquired for land reforms by
15
12 L.S. Deb., Part 2, 9083 (1951).
16
Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co.,Ltd., 1954 AIR 119, State of West Bengal v.
Subodh Gopal 1954 AIR 92, Saghir Ahmed v. State of Uttar Pradesh 1954 AIR 728.
17
A.I.R. 1954 S.C. 170
18
Merillat, supra at 627.
19
Namasivaya v. State of Madras, A.I.R. (1959) Madras 548
refashioning the agrarian reform measures in KK Kochuni v State of Madras20. In other
acquisitions, compensation required to be paid u/a 31(2) was to be at valuation of market
price.21

 The 17th Constitutional Amendment, 1964

The amendment struck the root of property right. The three major changes were –(1) addition
of a proviso to article 31A(1) enabling State to acquire land over and above land ceiling limit
on payment of compensation evaluated below market value, (2) estate u/a 31A(2)(a) were to
include land under “raiyatwari settlement”. Further, the term ‘estate’ now also included all
lands “held or let for purposes of agriculture or for purposes ancillary thereto, including
waste land, forest land, land for pasture or sites of buildings and other structures occupied by
cultivators of land, agricultural laborers and village artisans”. And thirdly 44 state enactments
were inserted under IX schedule.

It was in consequence of two cases. First the Kochunni case, where court held that legislation
which provides for depriving a citizen of his property shall be void unless it fulfils
“reasonableness” requirement of Article19 (5). Court held that 4th amendment has restricted
Article 31(2) to cases where State acquired property. Hence other deprivation could be tested
u/a 19(5). Second in Kunhikoms22 case, court defined ‘estate’ differently in transfer of land
from one state to another under state reorganization schemes. Even in same state ‘estate’ was
given different connotation. J. Wanchoo held that the definition of ‘estate’ under article 31A
(2) does not include ‘ryots’ as he is not a ‘proprietor’ but a ‘tenant’. 23 It was to overcome the
hurdles to judicial review for infringing FR particularly article 14, 19 and 31. Judicial
interpretation did help land holders in obtaining unconstitutionality of certain statutes.
However, unconstitutionality was located in Article 14 due to graduated scale of
compensation for lands acquired over ceiling and not as such u/a 31 strengthening right to
property.

20
AIR 1960 SC 1080.
21
Namita Wahi, The Fundamental Right to Property in the Indian Constitution'   The Oxford Handbook of
the Indian Constitution, (2016). 
22
Karimbil Kunhikoman v State of Kerala 1962 AIR 723
23
“This was because a ryot could sell, mortgage, pass on to his heirs, or give away his holding, and he could not
be evicted from the land except in case of his failure to pay the land revenue.”
  Effect on Property Rights

As reflective of the above discussion domain of property rights continuously diminished

through judicial pronouncements and constitutional amendments. After multiple attacks upon
original constitutional guarantee u/a 31, Article 19 became haven for owners or private
businessman against state interventions. It was soundly established that 19(1)(f) and (g) could
save individuals specific property rights against the unreasonable restrictions. 24 This right
guarantee is subject to the fact that land reform measures were made immune to judicial
review on grounds of Part III of the Constitution.

Another point that could be highlighted from perspective of property rights is that focusing
the elasticity of article 31, it was the viewpoint of the SC that whether the legislative
interference is tested u/a 19(1)(f) or Article 31 the only domain of contention left with the
court was ‘just and adequate compensation’ and in which the Court agreed that illusory
amount is in consonance with constitutional scheme. It exposes continuous dilution of
property rights by rigorous land reform laws. SC adopted a deferential approach in adjudging
the requisite of “public purpose”.25 It held that expression was “elastic and could only be
developed through a process of judicial inclusion and exclusion in keeping with the changes
in time, the state of society and its needs”.26 It put “public purpose” of land reforms at higher
pedestal as compared to individual property rights.

After 4th amendment it became SC discretion to interpret “estate” and “rights in relation to
state”. It upheld constitutional validity of laws that abolished intermediary rights in non-
zamindari areas, including intermediary rights in “jagirdari tenures” in Rajasthan, 27 “alienated
and unalienated lands” in Bombay28 and “mahalwari” tenures in Punjab29. Court interpreted
“rights in relation to an estate” as an all-inclusive meaning consisting both of horizontal and
vertical divisions of estate.30 It included not only interests of ‘proprietors or sub-proprietors’,
but also lower grade tenants, like ‘ryots or under ryots’ u/a 31(2)(a).31

24
Errabbi, supra at 632.
25
Wahi, supra.
26
Surya Pal Singh v. State of Uttar Pradesh [1952] 1 SCR 1056,
27
Thakur Amar Singhji v. State of Rajasthan AIR 1955 SC 504.
28
Ram Narain Medhi v. State of Bombay AIR 1959 SC 459
29
Atma Ram v. State of Punjab AIR 1959 SC 519.
30
Id.
31
Wahi, supra.
In Golaknath Case32 1st, 4th and 17th amendment was challenged along with challenge to
“Punjab Security of Land Tenures Act, 1953” that provided for ceiling to land holdings on
the ground of violation Article 14, 19(l)(f) and 19(1) (g) of the Constitution. As contrast to
previous pro-land reform judgments the SC upheld that these amendments are void for
abridging FR which is beyond Parliament’s amending power. However the point to be
noticed from the perspective of property right is that it was not argument based on property
right that was being made the basis of holding the unconstitutionality of these property
encroaching amendments. The reasoning was the sanctity of entire bunch of FR [remember
that right to property u/a 31 was already restricted in terms of article 31(2), (4) and (6)] and
not as such right to property v. land reform measures. It was more about legislative
competence u/a 368 and restrain u/a 13(2) and meaning of law u/a 13(3). Moreover the
judgment was overruled by FR33 case upholding the amending power of Parliament subject
only to the “Doctrine of Basic Structure”.

Property Rights Not a Hurdle to Land Reforms

Scholars have perspective that repeal of property rights by 44th amendment in 1978 reflects
negligible role of judiciary in securing land rights as against property rights. 34 However the
judgments of the SC and HC reflect contrary, especially with respect to initial land reform
measures. To the challenge of first land reform measure of ‘Bihar Act’ Patna HC held that
“Article 31(4) only protected laws against judicial review under the compensation provisions
of Article 31(2), but not under the provisions of other FR contained in the Constitution”. 35 It
reflects higher pedestal of other FR as compared to property rights. Moreover the Act was
declared unconstitutional not on the ground of violation of property rights but for infringing
right to equality u/a 14 due to arbitrary graduated scale of payment of compensation. Further
the two other land reform measures of MP and UP passed the constitutionality test strongly
evidencing that right to property was never a hurdle to land reform measures. Even the 1 st
amendment was passed before SC could pronounce upon the judgment in cases of Bihar, UP,
and MP. The interim legislature (constituent assembly) could have waited for judgments in
order to take further course of action in which case it might have been possible that such
amendments would have not been required. And the property rights would have remained FR

32
I.C. Golaknath and Ors. v. State of Punjab and Anrs 1967 AIR 1643.
33
Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
34
Rajagopal, supra at 161.
35
Wahi, supra.
although in a loose sense. It could be said that SC adopted permissive attitude toward
legislature as any law classified as “agrarian reform” was considered exempt from strict
judicial scrutiny undermining the importance of property rights.

Though land reform measures were the need of the hour owing to the existing economic
inequalities among the people of independent India but the route adopted by the legislature
and subsequent endorsement by judiciary was not in consonance with Constitutional
principles. Dr. B.R.Ambedkar argued before the SC that the land reform legislations
subverted the spirit of the Constitution in terms of manipulating the two contested elements
of ‘public purpose’ and ‘compensation’.36 He argued that abolition of class of zamindars and
redistribution of land among ‘haves’ and not among ‘have nots’ could not be qualified as
public purpose u/a 31(2). The legislature failed to realize the diversity among class of
zamindars and other land holders whose property were snatched for meager amount of
compensation without any due process.

SC upheld the constitutionality of first amendment Act.37 After the first amendment the court
though recognized that property should be acquired for compensation but also upheld that
laws could not be challenged on the ground of adequacy of compensation. Even before 1 st
amendment Court never delve into the question aggressively for examining the adequacy of
compensation. Neither judiciary found any constitutional hurdle in upholding constitutional
validity of land reforms nor legislation faced any constitutionally wrapped property right
hurdle in passing land reforms. Rather it was the first assault to the property rights of the
owners. Even when deciding the constitutionality of ‘Bihar Land reform Act’, SC remarked
that “The fact of the matter is the zamindars lost the battle in the last round when this Court
upheld the constitutionality of (the First Amendment which had) the object, among others, of
putting an end to this litigation.” Thus it clearly depicts the struggle of property rights to
thrive against the rigid land reform legislation giving nominal compensation for acquiring
large tracts of land rather than property rights- a hurdle to land reform legislations.

Despite its controversial remark in ‘Bihar Land Reform Act’ where the SC upheld the
constitutionality except the two provisions for ‘public purpose’ and Entry 42 requirement of
‘principles for determining compensation’, subsequent cases could not derive much from it
and land reform legislations trumped against property rights, in all subsequent cases, except

36
Surya Pal Singh v State of Uttar Pradesh [1952] 1 SCR 1056.
37
Shankari Prasad v. Union of India1951 SCR 89.
one.38 SC upheld zamindari abolition legislations coming in coming in conflict with FR in
entirety.39 Statutes dealing with state acquisitions or interventions in property rights outside
the domain of land reform measures were open to challenge. 1st and 4th amendments
concerning property rights became as sacrosanct as FR itself giving death blow to property
rights.40

Conclusion
Perusing the series of clashes between legislature and judiciary the exposed reality is that
property right never hurled land reform measures. Property rights cast doubt upon
fundamentalness of FR as with the objective of vesting private property upon State,
legislature acquired arbitrary route and made FR nugatory with respect to challenge based on
right to property. It also reflects relation of law with political reality in which 1 st amendment
was passed in a hurry. The Congress Government through its multiples attacks made right to
property u/a 31 negligible. Janata government later eliminated it from list of FR. Eradication
of right to property caused resentment particularly among weaker and deprived sections of
society. Decisions of SC and to considerable extent HC indicate their consonance in social
redistribution implicit in the zamindari abolition laws as necessary requirement for socio-
economic development.41 Much of this has attributed to deprivation of land to the landless.
The illegalities attached to the consequences of the Amendment still exist. Large state
ventures requiring land deprive many small landholders for paltry compensation.
Governments cause major arbitrary deprivations by misusing its power. Analysis does reflect
the arbitrariness manifest in state interventions as whatever minor issues Court had with
respect to land acquisition was articulated in Article 14 ‘arbitrariness’ and not under u/a 31
fortifying right to property.

38
In State of Rajasthan v. Rao Manohar Singhji (1954) S.C.R. 279, the court held that, under article 14, the state
law taking over jagir interests in certain territories in the state was invalid unless extended to all territories
within the state.
39
Wahi, supra.
40
Minerva Mills v. UOI 1980 AIR 1789
41
Wahi, supra.