LAND AND REAL ESTATE LAWS

CONSTITUTIONAL PROVISIONS AND

LAND LAWS IN INDIA
SUBMITTED BY- SUBMITTED TO-
NAME-SUNNY KHANNA NAME- MS.MUNEEZA HAMID
ENROLL.NO-13551103820
YEAR-5TH (BA-LLB)
 INTRODUCTION

 In India there was a demand for the removal of the fundamental right
to property from part III of the Constitution. It was argued that the
retention of it as a fundamental right leaves it to the judges rather than
to the Parliament to decide the quantum of compensation payable
when property is acquired for public purposes. Secondly, it was
argued that the implementation of the Directive Principles of State
Policy in the Constitution is rendered impossible by the right of
property in India.
 Property under Indian Constitution means any proprietary interest that
can be acquired, disposed or taken possession of. It is not only
tangible but also includes any bundles of right which the owner can
exercise to the exclusion of others. Article 19(1) (f) defines Right to
Property.
 ARTICLE 31A
 Article 31 A saves laws providing for acquisition of
estates , temporary management of any property by the
state in public interest , amalgamation of two or more
corporations either in public interest or for their proper
management , extinguishment or modification of any
rights of managing directors , directors or managers of
corporations , or of any voting rights of shareholders
thereof , or 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.
 These powers of the state have two provisions:
 Any such laws made by a state legislature shall have to secure the assent
of the President of India.
 If the state acquires any land under personal cultivation of a person, the
compensation paid against such acquisition shall not be lower than at the
market rate.

 Article 31B
 Article 31 B a ninth schedule to the constitution was created in order to
exclude certain legislations from the scope of judicial review. Originally
the acts put there related to land reform. Some of the later legislations,
included in the ninth schedule, related to other kinds of property too. But,
when the Tamil Nadu Backward Classes, Scheduled castes and Scheduled
tribes (Reservation of Seats in Educational Institutions and appointments
or posts in the Services under State) Act, 1993, was added to the schedule
as entry no. 257 A, the inclusion was challenged and the Supreme Court,
in 2007, decided to examine the entire ninth schedule.
 .

 Article 31C
 Article 31C had a worse fate. This article, inserted by the

25th amendment in 1971, to mitigate the effect of the

Supreme Court judgement in the bank nationalization case
of 1970, provided that, notwithstanding anything contained
in Article 13, no law giving effect to any of the directive
principles of state policy would be void and no court could
call in question any such law. In the Keshavananda Bharti v
state of Kerala, the Supreme Court declared void that
portion of the 25th amendment that precluded judicial
review of such law.
 In India clause (1) of art. 31 Saving of laws providing for
acquisition of estates, etc provides for first restriction and clause (2)
Validation of certain acts and regulations reading, No property
shall be compulsorily acquired or requisitioned save for a public
purpose and save by authority of a law which provides for acquisition
of the property for an amount which shall be fixed by such law, and
no such law be called in question in any court on the ground that the
amount so fixed is not adequate for the other two restrictions.
 Article 19(1)(f) provides the freedom to citizens to acquire, hold, and
dispose of the property within the territory of India.
 But by the Constitutional 44th Amendment act 1978, these two above
mentioned articles were deleted and a new chapter IV was added in
Part XII, containing only one article 300A Right to private property.
 Article 300 A provides that no person shall be deprived of his
property save by authority of law. The State cannot dispossess a
citizen of his property except in accordance with the procedure
established by law.
 Present Legal Status of Right to Property
 By 44th Amendment Act 1978 of the Constitution of India, a new

article namely 300A was inserted and titled as Right to Property.

It read as:
 No person shall be deprived of his property save by authority of

law. This article provides restrictions on the State that it cannot

take anybody's property without the force of law also interpreted
can be deprived of the force of law. The word 'law' here means a
validly enacted law which is just, fair, and reasonable.
 In the case of Hari Krishna Mandir Trust v/s the State of

Maharashtra and Others, it was held by the SC that the appellant

cannot be deprived of his strip of land being a private road,
without the authority of law, if allowed will be a violation of Art.
300A of COI.
 Art. 31 used to impose a similar limitation on the power of

Eminent Domain as in America but the new Art. 300A only

imposes one restriction on this power that is the authority of law.
 .
Right to own Private Property is a Human Right
 In the recent judgment of Vidhya Devi v. The State of Himachal
Pradesh & Ors., it was held by SC that the Right to own Private
Property is a human right and cannot be denied. The party depriving
one's right to property must have the authority of law. In this case, the
plaintiff was given compensation for the wrong acquisition of property
by the state.

Schedules in right to property in Indian constitution

 The fifth schedule
 The fifth schedule of the constitution covers regions in 10 States viz

Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh,

Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha, and
Rajasthan. These States have large indigenous and tribal populations.
The provision gives them the power to administer their land and
resources, in accordance with their customs. This was a right which
authorities have sought to dilute, saying the land is needed to develop
the industry to generate jobs and income in underdeveloped areas.
 The sixth schedule
 The sixth schedule of the constitution covers the four northeastern
States (Assam, Meghalaya, Tripura and Mizoram) that have a large
indigenous and tribal population and grants them rights over their land
and resources. It allows the formation of Autonomous District Council.
Recently, the Supreme Court of India has ruled that indigenous people
of Meghalaya (which is covered under the law) have full rights over
the land and all its resources and that only the indigenous people can
grant permission for the mining activities.
 The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 is a legislation
that regulates land acquisition and provides laid down rules for
granting compensation, rehabilitation and resettlement to the affected
persons in India. The Act has provisions to provide fair compensation
to those whose land is taken away, brings transparency to the process
of acquisition of land to set up factories or buildings, infrastructural
projects and assures rehabilitation of those affected. The Act will
replace the Land Acquisition Act, 1894, a nearly 120-year-old law
 The Act of 2013 brought on the following changes:
 1. COMPENSATION- The compensation provided to landowners in
.
urban areas increased to 2 times from 1.3 times the price of land and in
rural areas increased to 4 times from 2 times the price of land.
 2. REHABILITATION AND RESETTLEMENT- The old act had no
provision for resettlement and rehabilitation. The 2013 act provides both
resettlement and rehabilitation to not only the landowners but also to
those dependent on the land for livelihood and affected by its acquisition.
 3. SOCIAL IMPACT ASSESSMENT– The Act requires that except in
cases where land is required urgently, for all projects a social impact
assessment be done. It helps assess various aspects of acquisition like
whether the minimum area that is required is being acquired, whether the
project serves a public purpose, and the social impact of the acquisition.
 4. CONSENT- The 2013 Act mandates that for private projects the
consent of 80% of land owners must be obtained, whereas, for public-
private partnership projects the consent of 70% of land owners must be
obtained. However, for government projects consent of land owners is
not required.

 CASE LAWS
 Land Acquisition Officer, A.P v. Ravi Santosh Reddy
 The Andhra Pradesh government in a 1987 land acquisition
case dragged the landowner for 20 years, court to court, to
challenge his claims of Rs. 50,000. In the meantime, the
claimant passed away mid-way in this long-drawn court
process. When the state government approached the
Supreme Court, successors of the deceased failed to
appear before it. However, in May 2016, the Supreme Court
in gave its judgement and went on to pass strong strictures
against the state government for abuse of legal process
and said, “In our considered opinion, the State
unnecessarily pursued this pity matter to this Court in this
appeal, which does not involve any arguable point either on
facts or in law nor it involves any point of public importance
and nor it involves any substantial money claim.
 Indore Development Authority v. Manohar
Lal
.

 In the case of Indore Development Authority v.

Manohar Lal, it was argued by the landowners

that acquisitions have lapsed under the Land
Acquisition Act of 1894, and fresh proceedings
must start under the Land Acquisition Act, 2013.
 In this important judgement the Supreme Court

ruled that pending cases under the 2013 Act will

lapse under two circumstances and the process
of acquisition will need to start over again.
.

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