Assam Land Laws- Constitutional Mandates, State Ownership and Eminent Domain

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:

1. Authorised by Law [Article 31(1)]

2. Necessitated by a Public Purpose [Article 31(2)]

3. 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.

EMINENT DOMAIN:

The doctrine of eminent domain stands for the Supreme power of the Government through which the property of any individual can be taken over in the concern of the general public. However, the property owner is typically compensated for such acquisition handsomely. From what we understand from this doctrine is that,

• The public right is considered to be stronger as compared to private rights.

• The government shall have the right to take away the private right of a person in/for the public interest, which is known as Eminent Domain.

There are certain conditions which need to be justified before such acquisition viz.-

1. There must be an existing law regarding such acquisition/deprivation

2. The government must be empowered by the law

3. The government must only take the private rights in furtherance of public interest or common good

4. Just and adequate compensation must be paid out to the victim

STATE OF OWNERSHIP:

The theory or concept of the state’s absolute ownership of all lands is strictly applied in Assam. The state is the owner of all lands and all rights over land are vested in the state. No private rights over land can exist, except those which are recognized by the state.

Under Section 6 of the Assam Land & Revenue Regulation, 1886, the following categories of land rights have been expressly recognized and these are:-

(a) Rights of proprietors, landholders, and settlement holders, other than landholders as defined in this Regulation and other rights acquired in the manner provided by this regulation;

(b) Rights legally derived from any right mentioned in clause (a);

(c) Rights acquired under Sections 26 and 27 of the Indian Limitations Act, 1877;

(d) Rights acquired by any person as Tenant under Rent Law for the time being in force

Provided that nothing in this section shall be held to derogate from the terms of any lease granted by or on behalf of the government.

CONSTITUTIONAL MANDATE ON LANDS:

The Constitution of India has included the land reforms in state subjects (list). Entry 18 of the state list is related to land and rights over land. The state governments are given the power to enact laws over matters related to land.

Part IV of the Directive Principles of State Policy also indirectly mandates the government to take measures for land reforms to achieve an egalitarian society. Entry 20 in the concurrent list also mandates the central government to fulfill its role in social and economic planning. The planning commission was established for the suggestion of land (measures) reforms in the country.

The specific articles that pertain to land reforms in India are,

• Article 23, which abolishes or forced unpaid labor.

• Article 38, of Directive Principles of State Policy, directs the state to minimize inequality of income, status, and opportunities.

• Article 39, under Directive Principles of State Policy, provides for equitable distribution of material goods for promotion of common good.

• Article 48, which directs the state to organize agriculture and animal husbandry on modern scientific lines.

Further, immediately after attaining independence, the government of independent India enacted laws to abolish Zamindari, Jotedari, Raiyatwari, etc. systems.

But soon these laws were dragged into court, claiming that they violated fundamental rights to the property of Zamindars under Article 19(1)(f) and Article 31. Thus, the first amendment to the constitution, helped by amending the constitution to secure the validity of Zamindari abolition laws passed by the state.

However, there is some misapprehension of the scope of the right to property under our constitution. Right to Property is so entrenched in our constitution, that it is not possible without amendment to enforce the directive principles.

Article 14, 19(5), 31, 32, 39(b), 39(c), 226, and 265 provide a gist which simply put opines: that every citizen has the right to acquire, to hold, and dispose of the property. The exercise should be reasonable and following the public interest.

The conflict between citizens' rights and states the power to implement the said principles are reconciled by putting limitations on both rights and powers and hence the said right is not absolute.

After the constitution of India came into force, the following agrarian reforms were put into place-

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 landlords were regulated by law

THE FIFTH SCHEDULE:

It covers regions in 10 states viz. Andhra Pradesh, Telangana, Gujarat. Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan. These states have larger indigenous and tribal populations. The provisions give them the power to administer their land and resources following their customs. This was a right that authorities have sought to dilute, saying that the land is needed to develop the industry to generate jobs and income in underdeveloped areas.

THE SIXTH SCHEDULE:

It covers 4 Northeastern States- Assam, Meghalaya, Tripura, and Mizoram, that have a largely indigenous and tribal population and grants them rights over their lands and resources.

It allows for the formation of autonomous district councils.

Recently, the Supreme Court ruled that indigenous people of Meghalaya have full rights over the land and its resources and that only indigenous people can grant permission for mining activities.

A clause under Article 371 applies to Nagaland as well, by protecting the customary laws and indigenous practices of the Naga people, and also protects their rights to ownership and transfer of land and resources.

A separate clause extends similar protection and privileges to the aboriginal Mize of Mizoram.

After the 44th Amendment of 1978, there were only 4 articles that dealt with Right to Property- Articles 31A, 31B, 31C, and 300A.

The constitution 1st Amendment Act, 1951 inserted Article 31A and Article 31B with retrospective effect, and Article 31C were inserted by 25th Amendment, 1971.

The purpose of these amendments was to provide immunity concerning restrictions on property rights.

SCOPE OF ARTICLE 31:

This Article deals with compulsory acquisition of (land) property. The said Article has undergone various amendments and finally repealed and replaced with Article 300A. This amendment did not have a retrospective effect so the validity of the law made before this amendment can be challenged only on the ground of violation of Articles 14, 19, and 31(2).

For more Constitutional Law topics check this space. Also, don't forget to check out our complete coverage of Assam Land Laws, HERE.

Hope this helps, good luck!