At present the Right to Property viz. “No person shall be deprived of his
property save by authority of law” is enshrined in Art. 300A, inserted by
Constitution 44th Amendment.1
The Constitution of India, as originally adopted
safeguarded the Right to Property in a number of ways. Firstly, it guaranteed
that “All citizens shall have the right to acquire, hold and dispose of the
property.” The State, however, could impose reasonable restrictions (i) to serve
the exigencies of public welfare and (ii) to protect the interest of any Scheduled
Tribe [vide Art. 19 Clauses (1) (f) & (5)]. Secondly, in the phraseology of Art.
300A, the Constitution makers in Art. 31(1) guaranteed that “No person shall be
deprived of his property save by the authority of law”. The provision indicated
that a person can be deprived of his property only through an Act passed by the
Parliament/State Legislature and not by executive order or fiat. The word „Law‟
in Art. 300A means an Act of Parliament or a State Legislature, a rule or a
statutory order, having the force of law, that is positive or State-made law.2
Thirdly, as provided in ARt. 31(2) (now deleted), the property of a person
could be acquired or requisitioned only under two contingencies viz. (i) the
acquisition or requisition could be for public purpose and (ii) the law must
provide for payment of compensation to the owner of the property either by
fixing the amount of the compensation or by specifying the principles upon
which it could be determined or fixed. The obligation to pay compensation,
however went on diluting continuously by the Constitution First, Fourth,
Seventh, Twenty-fifth and Forty-second Amendment Acts.
The Supreme Court in Bela Banerjee‟s case3
propounded that the word
“Compensation” deployed in Art. 31(2) implied „full compensation‟, that is the
market value of the property at the time of the acquisition. The Legislature must
“ensure that what is determined as payable must be compensation, that is, a just
equivalent of what the owner has been deprived of”. The Government realized
that due to paucity of resources, it was not feasible for it to pay the full market

value of the property acquired and as such the National Planning and
Development undertaken by the Government immediately after the
independence of the country were bound to be hampered. Hence, the Parliament
came forward with Constitution Fourth Amendment Act, 1955 which enacted
that a law which provided for compensation for the property acquired or
requisitioned and either fixed the amount of the compensation or specified the
principles on which, and the manner in which the compensation was to be
determined or given could not be called in question in any Court on the ground
that the compensation provided by the law was not adequate.
But even after the Constitution 4th Amendment (1955) the Apex Court in
famous R.C. Cooper‟s case4
popularly known as Bank Nationalization case,
held that the compensation in Art. 31(2) implied full monetary equivalent of the
property taken from the owner, that is its market value at the date of the
acquisition. The Court observed: “Art 31(2) before and after it was amended
guaranteed a right to compensation for compulsory acquisition of property and
that by giving to the owner, for compulsory acquisition of his property,
compensation which was illusory or determined by the application of principles
which were irrelevant. the constitutional guarantee of compensation was not
complied with”. The result was the Constitution 25th Amendment (1971) which
replaced the word „amount‟ for the word „compensation‟ appearing in repealed
Art. 31(2). But even after this major amendment, the Apex Court in landmark
judgment in Keshavananda Bharati‟s case5
held that the amount which was
fixed by the Legislature could not be arbitrary or illusory but must be
determined by a principle which is relevant to the acquisition of property.
The fundamental „right to property‟ had been modified by the Parliament
by several other Constitution Amendments. Art. 31-A, inserted by the
Constitution First Amendment Act, 1951 with retrospective effect, saved laws
providing for acquisition of estates of the nature referred to in various clauses
thereof, declaring that such laws shall not be deemed void on the ground that
they are inconsistent with, or take away or abridge any of the rights conferred
by Art. 14 or 19 of the Constitution. The object of taking out the acquisition of
intermediate interests in land from the obligation to pay compensation was to
make it possible for the Government to effect agrarian reform which was so
urgently needed to protect the interests of the tenants as well as to improve the
agricultural wealth of the country.6 New Art. 31-B added by Constitution 1st
Amendment, like Art. 310A, saves Acts and Regulations mentioned in Ninth
Schedule. Art. 31-C added by 25th Amendment Act, 1971 protects laws giving
effect to the policy of the State securing all or any of the principled laid down in
Part IV of the Constitution, apart from extending the same protection as

extended by Arts. 31-A and 31-B, and also declared that no such law shall be
called in question in any court on the ground that it does not give effect to such
policy.
The Constitution 44th Amendment Act, 1978, robbed the „right to
property‟ of its fundamental right-character, and adorned it with status of
Constitutional/legal right. Arts. 19(1)(f) and 31 were deleted from the Part III-
“Fundamental Rights” and only a fraction in the form of Art. 300 A which
corresponds to Art. 31(1) only, has been inserted in Part XII under a separate
Chapter V “Right to Property”. What is important to note is that Art. 19(1) (f)
which had guaranteed freedom to all citizens to acquire, hold and dispose of
property and remaining clauses (2) to (6) of Art. 31, which hedged the right of
the Legislature, to acquired property with limitations for public purposes and
only on payment of adequate compensation, not illusionary one, as interpreted
by the Apex Court, have been omitted altogether by the Legislature. The effect
of this amendment of vast magnitude is that the „right to property‟ is no more a
fundamental right but is only a constitutional/legal right and in the event of
breach thereof, the remedy available to an aggrieved person is to approach the
High Court under Art. 226 of the Constitutional India and not the Supreme
Court under Art. 32 of the Constitution, a speedy remedy available earlier.
However, two exceptions have been created by the 44th Amendment to
the aforesaid general rule. First, where the property acquired belongs to an
educational institution established and administered by a minority, the State
shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right of
minorities “to establish and administer educational institutions of their choice”
guaranteed by Art. 30(1)7
Secondly, where the State seeks to acquire any estate
and where any land comprised therein is held by a person under this personal
cultivation and such land is within the ceiling limit applicable to him under any
law for the time being in force, or any building or structure therein or
appurtenant thereto, the State must pay compensation at the market value for
such land, building or structure acuired.8
It has been repeatedly canvassed that even though clauses (2) to (6) of
Art. 31 which postulated provisions for payment of compensation when land
was acquired/requisitioned, have been omitted from the Constitution Statute
books, the obligation to pay adequate amount of compensation to the owner of
the property still survives. In Basanti Bai‟s case9
, a Division Bench of the
Bomaby High Court held that inspite of deletion of Art. 31(2), there is still
obligation on the State to pay adequate amount to the expropriated owner.
Further, the law providing for deprivation of property must be fair, just and

reasonable as propounded by Hon‟ble Supreme Court in the famous Maneka
Gandhi‟s case.10 In special appeal before Supreme Court, against the judgment
of the Bomaby High Court titled “State of Maharashtra v. Basanti Bai11 it was
urged that the provisions of sub-sections (3) and (4) of Sec. 44 of Maharashtra
Housing and Development Act, 1977, which contained the basis for the
determination of compensation in respect of the land were violative of Arts. 14,
19 and 31 of the Constitution and as such were liable to be declared as void. it
was further contended that the compensation payable was illusory in its
quantum and the procedure prescribed for the acquisition was not fair and
reasonable, though the dictum laid down in Maneka Gandhi‟s case ordained so.
The Supreme Court reversed the judgment of the Bombay High Court without
finally deciding the mooted points. The Court held that even if it was assumed
that the law should be fair and reasonable and not arbitrary and the law should
also satisfy the principle of fairness in order to be effective, all those conditions
were satisfied by the impugned law in the case under appeal. All the
requirements of a valid exercise of the power of eminent domain even in the
sense in which it was understood in the United States of America where
property rights are given greater protection than what is required to be done in
our country were fulfilled by the impugned Act. As to the contention that the
impugned Act violated the provisions of Art. 21 of the Constitution, their
Lordships of the Supreme Court observed.
“Then in the end we have to consider the argument based on Article 21 of
the Constitution which is urged on behalf of the respondents. Article 21
essentially deals with personal liberty. It has little to do with the right to own
property as such. Here we are not concerned with a case where the deprivation
of property would lead to deprivation of life or liberty or livelihood. On the
other hand, land is being acquired to improve the living conditions of a large
number of people. To rely upon Art. 21 of the Constitution for striking down the
provisions of the Act amounts to a clear misapplication of the great doctrine
enshrined in Art. 21. We have no hesitation in rejecting the argument. Land
ceiling laws, laws providing for acquisition of land for providing housing
accommodation, laws imposing ceiling on urban property etc. cannot be struck
down by invoking Art. 21 of the Constitution.”
Thus the Supreme Court jettisoned the argument that the law relating to
acquisition of property must also satisfy Art. 21.
The fundamental „right to property‟ has been abolished because of its
incompatibility with the goals of justice, social, economic and political and
equality of status and of „opportunity‟ and with the establishment of a social
democratic republic, as contemplated by the Constitution.