CHAPTER 1- INTRODUCTION

Property is a generic term of extensive application. It is indicative or descriptive of every

possible interest which a person can have. It is extended to all recognized types of interests
which have the characteristic of property rights. Property is classified as movable1 and
immovable2, corporeal and incorporeal, real and personal. It may mean a thing or a right
which a person has in relation to that thing. It is an object of legal rights which embraces
possessions or wealth collectively and connotes individual ownership of the same. However
nothing can be subject of property which is not recognized by law to be such and therefore
right to property lasts so long as law gives to a particular item, the status of property, and if
law withdraws that status it ceases to be property.

In law property refers to individual possession of things3 and these things may be tangible
such as land or goods or they may be intangible like stocks, bonds or the more recent concept
of intellectual property. In essence it includes all things that enable a man to survive. Every
legal system in the world recognizes the relationship between persons and tangible objects
and property law deals with the allocation, use and the transfer of wealth and it often reflects
the economy and society in which it is found. The western legal concept of property is such
that a person who is in possession of a thing has the exclusive right to possess, use and
transfer the thing if he so wishes. The right to property in all such things and rights have been
guaranteed in the manner prescribed by the Constitution of India (hereinafter referred to as
the Constitution) and under the Constitution property means all things and rights recognized
by law\u2014 statutory, customary and common law, as property before the Constitution has
come into force.

1
Section 3.(36) of the General Clauses Act, 1897, \u201cMoveable Property\u201d shall mean Property of
every description, except immoveable property;

2
Section 3.(26) of the General Clauses Act1897, \u201cImmoveable property\u201d shall include land, benefits
to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth;
3
K Subba Rao, \u201cProperty Rights under the Constitution\u201d, (1969) 2 SCC (Jour) 1
The right to property was therefore included as a fundamental right under the Constitution,
the right to property as propounded by Locke consists of three basic characteristics4

 To acquire
 To own and possess and
 To dispose of the same.

This apparently unrestricted right to property is subject to the laws of social control reflected
which are enforced by the state. The framers of our Constitution in creating a constitutional
democracy seem to have taken a middle path between the capitalist and socialist notions of
property. The relevant provisions of the Indian Constitution as they stood on 26-1-1950 are
Articles 14, 19(1) (f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of the said
provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold
and dispose of property. The exercise of this right should be reasonable and in accordance
with public interest. State in exercising the power to enforce the principle of distribution of
material resources for the greater common good does in fact enforce the duty implicit in the
exercise of the fundamental right.

With reference to the right to property in the Constitution In the case of Kesavananda
Bharati v. State of Kerala5 Justice Mathew stated that the framers of the Constitution
regarded the right to acquire and hold property as a Fundamental Right for the reason that a
dignified human life is impossible without it. Property is the necessary consequence and
condition of liberty. Liberty and property demand and support each other.

CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY

4
John Locke, Second Treaties of Government 28 (6th ed. 1952) as cited in K Subba Rao, \u201cProperty Rights
under the Constitution\u201d, (1969) 2 SCC (Jour) 1

5
(1973) 4 SCC 225
The Indian Constitution is first and foremost social document. A majority of the provisions in
the Constitution are therefore aimed at furthering the goals of social revolution. During the
nationalist movements, in the background of deep-rooted economic inequalities,
intermediaries in agriculture and exploitation in trade and industry, this above distinction was
highlighted in several public fora. In the Indian Constitutional context, the effort of
reconciling the values of democracy with that of socialistic pattern of society without a
tenable criterion for distinguishing the use aspect of property from its power aspect, made the
right to property a debatable issue. The fundamental rights of the Constitution are, in general,
those rights of citizens, or those negative obligations of the State not to encroach on
individual liberty there have been well-known since the late eighteenth century and since the
draft in the Bill of Rights of the American Constitution and the Indians have become heirs to
this liberal tradition.

The Fifth and Fourteenth Amendment of the Constitution of United States of America read:
"No person shall be deprived of life, property without the due process of law". The following
wide definition of property is generally accepted in that country. "Property" in its broader
sense is not the physical thing which may be subject to ownership, but is the right thing
which may be subject to ownership, but is the right of domination, possession, and power of
dispossession which may be acquired over it; and the right of property preserved by the
Constitution is the right not only to possess and enjoy it, but also to acquire it in any lawful
mode.

But the socialist concept of property is based upon the theory of labour. Karl Marx in his
work "Das Capital" propounded the theory thus: "In political economy there is a current
confusion between two very different kinds of private property, one of which is based upon
the producer's own labour, whilst the other is based upon the exploitation of the labour of
others.” The Russian Constitution, therefore, rejects private ownership of the instruments of
production but admits only to a limited extent of private ownership based upon the producer's
'own labour.' In is within this that the Constitutional Assembly Debates must be located.
Constitutional right under Article 300A in the Forty fourth-Amendment Act, which
ultimately proved to be the bottom line
2.1 - Constituent Assembly Debates

Since 1787 every people who have intended to give themselves a written Constitution have
had to decide what are the citizens rights to life, liberty and property. The Fundamental
Rights subcommittee on the 28 March 1947 stated that no private property could be acquired
for public use unless the law called 'for the payment according to principles previously
determined, a just compensation for the property acquired.6

The property provisions in the Draft Constitution appeared briefly before the Assembly in
November and December 1948 in the first of the two provisions considered was the right 'to
acquire, hold and dispose of property'. This right became subject only to' reasonable
restrictions' either in the public interest or the interests of Schedule Tribes. With the right to
possess property guaranteed in the Constitution, the Assembly again considered the extent of
the States power to deprive a person of his property in the name of social justice. The Union
Cabinet, in early 1948 in a broad resolution on industrial policy had laid down that property
was acquired by the government 'fundamental rights guaranteed by the Constitution will be
observed and compensation will be awarded on a fair and equitable basis'

According to Sardar Vallabhai Patel the solution to this quandary was Section 299 of the
Government of India Act, 1935 in which the power of the courts and the legislature was
limited and the courts would be unable to invalidate land reform and other property
acquisition legislation provided reasonable principles had been established and the legislature
would be unable to expropriate property without payment of compensation. Thus justice and
social reform would both be served. B N Rau, however, prepared a new clause that made an
omnibus provision in the directive principles the said that the ownership and control of
material resources should be distributed to subserve the common good and the operation of
the economic system should not result in the concentration of wealth.

2.2- Pre-Constitutional Position of Right to Property

6
Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION. 2nd Edition. (New Delhi :
Oxford University Press. 1999) at pp.84
The Constitution of India derives its foundation from the Government of India Act, 1935 and
the
Universal Declaration of Human Rights (1948).

 Section 299 of the Government of India Act, 1935 secured the right to property and
contained safeguards against expropriation without compensation and against
acquisition for a non-public purpose.
 Article 17 of the Universal Declaration of Human Rights (1948) also recognises the
right to private property and India is a signatory to that Declaration.

The Constituent Assembly examined the constitutions of various countries, which guarantee
basic rights. In “Constituent Assembly of India, Constitutional precedents (Third Series)”
(1947), it is stated “Broadly speaking, the rights declared in the Constitutions relate to
equality before the law, freedom of speech, freedom of religion, freedom of assembly,
freedom of association, security of person and security of property. Within limits these are all
well recognized rights.”
The debates in the Constituent Assembly when the draft Article 19(1)(f) and Article 31 came
up for discussion clearly indicate that the framers of our Constitution attached sufficient
importance to property to incorporate it in the chapter of fundamental rights.

The provision regarding freedom of “trade and intercourse,” which was originally in the
chapter of fundamental rights, was later removed from that chapter and put into a separate
part (Article 301), in view of the suggestions by some members of the Constituent Assembly.
It is significant to note that similar suggestions in respect of the right to property were not
accepted.

2.3- Post Constitutional Developments

There is some misapprehension on the scope of the right to property conferred under our
Constitution. An assumption by constant repetition has become a conviction in some minds
that the right to property has been so entrenched in our Constitution that it is not possible
without amendment to enforce the directive principles. A scrutiny of the relevant provisions
of the Indian Constitution as they stood on January 26, 1950 will dispel this assumption.
They are Articles 14,19(1)(f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of the said
provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold
and dispose of property. A duty is implicit in this right, namely that it should be so
reasonably exercised as not to interfere with similar rights of other citizens. The exercise of
it, therefore, should be reasonable and in accordance with public interest.
The conflict between the citizen’s right and the state’s power to implement the said principles
are reconciled by putting limitations both on the right and the power. The said fundamental
right is not absolute. It is subject to the law of reasonable restrictions in the interest of the
general public. The states power is also subject to the condition that the law made by it in so
far it infringes the said fundamental right should stand the double test of reasonableness and
public interest. The state also has the power to acquire the land of a citizen for a public
purpose after paying compensation. It has the further power to impose taxation on a person
for his property.

After the Constitution of India came into force, the following agrarian reforms were
introduced:

(1)Intermediaries were abolished

(2)Ceiling was fixed on land holdings
(3)The cultivating tenant within the ceiling secured permanent rights
(4)In some states, the share of the landlord was regulated by the law