As lawyers, whenever we read and research about a State's land law policies, we must first go and revisit how property exists as a right there in the first place. For India and its many states, all land law legislations are geared towards satisfying (or not impeding) the core clauses kept in the Constitution of India i.e. the supreme law of the land.
So, before we head into our coverage of all that Assam Land Laws have to offer, we must first learn what constitutional mandates are governing such legislations as well as their meaning and extent. By understanding the bar, we understand why and how some of the land rights in Assam are what they are, right now.
So, let's dive right in, shall we?
PROPERTY AS A LEGAL RIGHT:
The Constitution of India, before the 44th Amendment provided for the Right to Property as a fundamental right, which was later revoked. The property right still stands as a constitutional right.
Though the Supreme Court of India tried to expand the ambit of the right of property between state and individuals, it has been progressively curtailed through constitutional amendments. The Indian version of eminent domain has found in itself in Entry 42- List III, which says about acquisition or requisition of property.
Under the original constitution Article 19(1)(f) and 31 provide for the protection of property rights and later they were repeated and Article 300A was inserted. Article 31(2) of the Indian Constitution provides for the compulsory acquisition of land. The power of eminent domain is essential to the sovereign government.
However, such power of the sovereign government is limited by the fact that such acquisition or taking possession of the property must be for a public purpose that has been expressly grafted in clause(2) of Article 31, of the Indian Constitution.
The Supreme Court pointed out in State of Bihar v. Kameshwar Singh, that Article 31(2), as it stood before the amendments did not expressly make, the existence of a public purpose, a condition precedent to the power of acquisition, but it was an essential ingredient, and the clause proceeded on the assumption that acquisition can be for a public purpose.
It was later laid down in this case, that there is no hard and fast definition for a public purpose, and its concept is rapidly changing in all countries and can be worked out to be something that furthers the general interest of the community.
Dwarkadas Srinivas v. Sholapur Spinning and Weaving Co. Ltd.
The Sholapur Spinning and weaving co. act 1950 enabled the government to take control of the property of Sholapur Spinning and weaving company. The question here was that whether the act was invalid as it did provide for any compensation.
The government did not acquire the property and therefore the government contended, that Article 31(2) which provided for compensation did not apply because of the following reasons- since only clause(1) was applied which was sufficient to deprive a person of their personal property right.
The court held that the Sholapur Spinning and Weaving Co. Act was void, as clause (2) of Article 31 of the constitution was not taken into consideration.
Article 31(1) and (2) should be read together. Thus, any deprivation of a person’s property by the government should be:
Authorised by Law [Article 31(1)]
Necessitated by a Public Purpose [Article 31(2)]
Subject to payment of compensation
In Chiranjit Lal’s case, it was held that Article 19(1)(f) would continue until the owner is/was deprived of such property by authority of law under Article 31.
If there was any deprivation of property under clause (1) of Article 31, the citizen was not entitled to be compensated at all, while/on the other hand, he was entitled to compensation if the property was acquired or requisitioned under Article 31(2) and the conflict was therefore based on the point as to what exactly deprivation means.
In Kochunni’s case, the court made it clear that clause (1) dealt with deprivation of property other than acquisition or requisition as mentioned in clause (2) and there could be no acquisition or requisition unless there was the transfer of ownership or a right to possession, to the state or its nominee.
Article 300A of the Indian Constitution still provides the Right to Property, but only as a constitutional right and provides that no person shall be arbitrarily deprived of his property. The Parliament of the State Legislature will decide upon the compensation to be paid for any such deprivation.
In case of violation of such a legal/constitutional right, the person whose rights have been violated can file a writ petition before the High Court under Article 226 of the Indian Constitution, but not before the Supreme Court under Article 32.
This is because; Right to Property is merely a legal/constitutional right but not a fundamental right.