LAND SYSTEM IN AHOM RULE AND RIGHT TO PROPERTY

1. Define Eminent Domain.

Every government has the right to take and appropriate the property of the individual citizens for public use. The concept of eminent domain is an offspring of political necessity. The right rests upon the famous maxim, “salus populi est suprema lex”, which means that the welfare of the people is of paramount law. The concept is also based on the maxim, “necessita public major est quam”, which means that the public necessity is greater than the public.

The property may be needed and acquired under this power by the government for the purpose of public school, colleges, universities, libraries, slum clearance projects, parks, railways, drainage, sewer, water system etc. for [public interest, convenience and welfare. The exercise of this power (compulsorily acquisition by state) has been recognized in the jurisprudence of all civilized countries of the world as conditioned by public necessity and payment of compensation.

As like in USA, in India too, the concept of eminent domain has been imposed certain limitations U/A 31 as follows:-

1. That there must be a law authorizing taking away of public property.
2. That the property must be taken for public interest.
3. That just compensation should be paid.

However, the new Article 300-A imposes only one limitation, i.e. the authority of law.

In case of K.T. Plantation vs. State of Karnataka (AIR 2011), the apex court has held that the right to claim compensation though not expressly included in Art. 300-A, it can be inferred from it. The law providing deprivation of property U/A 300-A must be just, fair and reasonable in terms of Arts. 14, 19(1) (g), 26(b), 301. The same judgment was upheld in the case of Maneka Gandhi vs. U.O.I (AIR 1985).

2. "Right to property is not a fundamental right under the constitution of India.”- Explain

Prior to the 44^th amendment Act of 1978, Article 31 of the constitution of India guaranteed to the people of India the fundamental right to property as originally it was provided that, “ no person shall be deprived of his property save by the authority of law.” However, it was provided for the acquisition of the property by the state for public purpose thereby paying compensation to the owner. It also exempted Zamindari abolition laws and agrarian reforms from the purview of public purpose and compensation.

Art. 31 of the constitution of India was interpreted in case of Kameshwar Singh vs. State of Bihar (AIR 1951). In this case, the Bihar Land reforms Act,1950 provided for the transfer of the interest of the proprietors of the land including trees, forest, mines and minerals to the state, thereby paying compensation in certain multiples. The Act was held to be void and unconstitutional violating Art. 14 of the Indian Constitution.

The interpretation of Art. 31 gave rise to many difficulties. The government felt that the whole system of zamindari abolition laws was endangered. In order to remove the difficulties concerning Art. 31, the 1^st Constitutional Amendment Act, 1951 was passed. The object of passing the Act was to fully secure the constitutional validity of zamindari abolition laws. The amendment Act inserted two new articles namely Art. 31-A and 31-B.

The 1^st Amendment Act amended the constitution and added Art. 31-A which aimed at removing social and economic disparities in the agricultural sector. Art. 31-A provides that, “no law provided for acquisition of any estate or any right there in or extinguish or modify any such right shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the right conferred by Arts. 14 or 19 of the constitution

Constitutional provisions of Right to Property:

The right to property has been proved to be the most complicated and controversial. The 44^th amendment Act, 1978 omitted Art. 19(1) (f), i.e. the right to acquire, hold and dispose of property, the sub-heading of Art. 31, i.e. Right to Property and Art. 3, i.e. compulsory acquisition of property for public purpose (concept of eminent domain). The effect of this change is that the Right to Property is no more a fundamental right.

The fundamental right to property is omitted. The amendment takes away the right as a fundamental right and makes it only a constitutional right which will be regulated by ordinary law. Consequently, Arts. 19(1) (f) and 31 have been deleted. However, Art. 31 have re-appeared in the constitution partly under chapter IV in Part XII of the constitution as a new article, Art. 300-A right to property is secured as a constitutional right U/a 300-A.

In the case of R.C. Cooper vs. U.O.I. (AIR 1970), it was held that the right to property is a human right. It is a constitutional as well as a legal right.

The object behind the amendment was to reduce the right to property from the status of fundamental right to that of a legal right. This right will be available against the executive interference, but not against the legislative action. The only condition that has to be complied with for the acquisition of private property U/A 300-A is by the law of the legislature. The purpose for which property will be taken away and whether any compensation will be paid or not will be determined by the legislature itself. The effect of this amendment is that for the violation of Right to property U/A 300-A, a person will not be entitled to invoke the writ jurisdiction of the Supreme Court U/A 32. However, he will be entitled to invoke the jurisdiction of the High Court U/A 22 of the constitution.

In the case of Jilubhai Nanabhai Kachar vs. State of Gujrat (AIR 1955), it was held by the apex court that Art. 300-A is only a constitutional right and not a basic feature of the constitution.

Art. 300-A does not provide for deprivation of property in a manner unknown to law. Where there is lack of legal authority for the deprivation of the respondent’s property by the state, it is the part of the court not only to grant compensation to the respondent, but it may also impose some exemplary costs on the authorities. This principle was promoted in the case of Manohar Singh vs. State of U.P. (AIR 2005). So only on the basis of some government order, the property of a person cannot be taken away by the government. Such a procedure has been said to be a high-handed action of the state which is violative of Art. 300-A and is illegal.

In case of Maneka Gandhi vs. U.O.I (AIR 1985), the apex court has held that the validity of a law passed U/A 300-A for depriving the citizen of property can be challenged on the ground that it does not provide for compensation and is not acquired for public purpose. If a law passed U/A 300-A does not provide for the compensation and is not for public purpose, it will be unjust, unfair and unreasonable law and hence, can be declared as unconstitutional and void.

In case of State of Maharashtra vs. Basanti Bai (AIR 1986), the Maharashtra housing Area development Act,1976 was challenged U/A 300-A. the Bombay High Court referred to the Maneka Gandhi’s case and was in view of that some of the provisions of the said Act was inconsistent with Art. 21 & 300-A of the constitution. But, the apex court has reversed the order of the Bombay High Court and held that the Act of 1976 was valid. This law could be upheld by the standard of eminent domain like the U.S/ lastly, the Court held that a law U/A 300-A relating to the acquisition of the property need not satisfy the requirements of Art. 2, but the compulsory criterion is that compensation has to be given to the respondent.

The judiciary has been developing the scope of Art. 300-A through judicial review. The apex court in the case of Dayal Chandra Mohan vs. State of U.P. (AIR 1982) explained that the executive could not deprive a person of his property without the authority of law. The term ‘law’ in this context means an act of the Parliament or State legislature, a rule or a statutory order having the force of law within the purview of the definition as discussed U/A 13 of the Constitution of India.

In case of K.T. Plantation vs. State of Karnataka (AIR 2011), the apex court has held that the right to pay compensation though not expressly included U/A 300-A, but it can be inferred from it.

In case of Prabin Ram Phukan vs. State of Assam (AIR 2015), the appellants were deprived of the land in question without following the procedure established by law because the auction was conducted by the state behind their back and without their knowledge. The action of the State was clearly violative of the appellants constitutional right guaranteed U/A 300-A. Again, in case of E.A. Aboobacker vs. State of Kerala (AIR 2018), it was held by the apex court that when the state wants to acquire property of a citizen which is constitutional right of any citizen U/A 300-A, it must strictly follow the procedure prescribed by the law.

Thus, from the above discussion through constitutional provisions as well as interpretation of the case laws, we can safely conclude that right to property is merely a legal right and not a fundamental right.

3. “The concept of state ownership was prevalent in Ahom rule too.”- Explain.