Kautilya’s ArthaShastra (~300 BC):
India has a very long history and since the ancient period (10000 BC), we get references about the land management and governance areas. For the sake current discussion, let’s consider Kautilya’s period (~300 BC) as a basis. Kautilya is nothing but Archya Chankya, Acharya Vishnugupta, who was architect of the great Mouryan empire of Magadha. After establishing Chandragupta as the emperor and protect the kingdom Chankya, an outstanding scholar wrote “ArthaShastra” an epic that cover broad verity of subjects from economics, strategy and administration at a very minute detail. ArthaShastra also covered land management, governance and agricultural practices.
क्षेत्रकास्याक्षिपत: क्षेत्रमउपवासस्यवात्यजतोबीजकाले
द्वादशपणोदण्ड: अन्यत्रदोषोपनिपाताविषहोभ्य: ।८।[1]
In those days agriculture operations were carried out by the owner’s themselves orby the their tenants.Rules related to the leaseswere also stated in the form of agreements between tenants and land owners. Several agreement templates were also prescribed tocreate tenancy,based onsharing expenses and profits between landlord and tenants. Likewise, ArthaShastra also has references to the land laborersand their wages. Wages to the laborer can be paid in terms of money or in terms of crop share. The state was required to maintain a full record of agricultural land holdings with details about the different types of fields and crops raised in farms. The state is also expected to keep watch over sowing and harvesting of crops such that it may not be cheated of its legitimate dues. These statistics, collected by the state are necessary for the assessment of land revenue. Barlow has pointed out that “collection of statics by host officers from village level upward has been constant feature of India’s lands economy”
The famers used to decide on the kind of crops, he wish to raise on how much land. Howeverduring the times of emergency, the state may direct sowing according to the national needs, by supplying, if necessary the requires seeds. A strict watch over the crops on the ripen and harvesting as in this case still more necessary. In the similar ways there are provisions of collection of tax against usage of natural resources such as: water, mines and minerals.
The importance of cattle is mentioned with high importance, as males are necessary for draught, milk and other allied purposes. The hides, too are useful for manufacture of leather goods, the text refers to meat fresh and dried as an item of food, but nowhere creates the impression that animal heard are to be reared for their meat.
NATIVEGOVERNMENTS
T he native governments all over the country maintained the farming system as mentioned in the Kautilya’s ArthaShastra without any major changes. By this way, the agriculture operations used to be carried out since ancient times and the said half crop share of owner and tenants on the basis of lease is still in practice even today.
Vatan tenures are of ancient origin and the native Govt continued it and there was a division of state into the village or townships, these communities contained in mini nature all the materials of a state within themselves and were always sufficient to protect their members, if other governments were withdrawn. Each village was so to say a self-constituted corporation it was indeed most complete little commonwealth held together, independent of outside world by individual interest of its habitants. It has within itself all the means to supply all its wants and necessities. The villagers were almost entirely cultivators of the ground with the addition of the few traders at artisan that were required to supply their wants.
BRITISH RULE
British era also largely continued the same village system, in terms of land management. British administration codified this system. There are two kinds of land holders, one is called as superior land holder and other is called as inferior land holder. Zamindars, Jahagirdars, Vatandars had rights to hold land and they were owners of the land. The specific meaning of the superior and inferior land holders is also given moreover, the tenant is also defined in various land revenue codes, including land revenue code, 1879. The Superior Land Holder means a land holder entitled to receive revenue from other land holders (inferior land holders). Meaning of tenant is also given as “A lessee, whether holding under an instrument or under an oral agreement and include a mortgagee of tenants’ rights with possession, but does not include a lassie under the government.
‘Superior Holder’, ‘Inferior Holder’ and ‘Tenants’ The Superior Holder’ is wide enough to include the term landlord. The terms ‘Superior Holder’ and ‘Inferior Holder’ have reference only to payment of revenue. Whereas terms ‘Land Lord’ and ‘Tenant’ have reference only to the origin of the right to hold. A ‘tenant’ has to pay his ‘landlord’ and is thus an inferior land holder. Every tenant is an inferior land holder, but every inferior land holder is not necessarily a tenant.
This system of land management caused massive disparity in the distribution of land and wealth among the citizens. Zamindars, Watandars, etc. acquired huge chunk of land and that resulted in disproportionate distribution of wealth. Most of the common population worked on the massive farmland possessed by the Zamindar community at meager wages and in terrible living conditions.
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First Amendment in the Constitution and Agrarian Reforms
State governments made concreate efforts for social restructuring of the society, and passed abolition of Jamindari and several other land reform laws. Government efforts for social restructuring to implement directive principles faced several problems, these land legislations were challenged in the courts. The first case that challenged these reforms is Kameshwarsingh V/s State of Bihar, in this case Bihar Land Reforms Act, 1950 was challenged. The reasoning for challenge was that the classification of Jamindars made for the purpose of giving compensation was discriminatory and denied equal protection of laws guaranteed to the citizen under article 14 of the constitution. The Patna High Court declared the said legislation as violative of article 14. The Patna High Court in this case held that, Bihar Land Reforms Act, 1950 was violative of fundamental rights and declared unconstitutional.
Similar cases, were also filed in Allahabad and Nagpur High Courts at the same time against the land reforms act passed by local governments in these states. Both the Allahabad and Nagpur High Courts upheld the relevant artisan laws passed in respective assemblies. The persons aggrieved by this decision filed appeals in Supreme Court.
While these appeals were pending before the Hon. Supreme Court. The Central Government became restive at the delay being caused by litigation in furthering the program of agricultural land reforms.The Central Government wanted to remove any possibility of laws being declared invalid by the courts. To remove courts interventions, the central government brought the first amendment in Constitution to put an end to all these litigations. By way of 1st amendment in the year 1951, the Central Government introduced article 31 (A) and 32 (B) and 9th scheduleto the constitution..
-
Fourth Constitutional Amendment
Though, article 31(B) protected challenging the acts specified in 9th schedule on the ground of violation of fundamental rights. The challenge can be made on lack of legislative competency was still open. On the basis of legislative competency, Supreme Court decided three important cases namely, The State West Bengal V/s Bela Banerjee, The State of West Bengal V/s Subodh Gopal Bose and Dwarkadas Shirnivas V/s Solapur Spinning and Weaving Company. In the Bela Banerjee case, Hon. Supreme Court struck down, the West Bengal development and planning act, 1948 holding that compensation, in art 31 (2) meant: “Just equivalent or full indemnification” and similar views were also taken in other cases mentioned above.
These decisions of the Supreme Court gave a very wide meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of the two clauses, they are regarded as dealing with the same subject. The deprivation of property referred to in clause (1) is to be construed in the widest sense as including any curtailment of a right to property. Even where it is caused by a purely regulatory provision of law and is not accompanied by an acquisition or taking possession of that or any other property right by the State, the law, in order to be valid according to these decisions, has to provide for compensation under clause (2) of the article. It is considered necessary, therefore, to re-state more precisely the State’s power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in “deprivation of property”. This is sought to be done in clause 2 of the Bill.for clause (2), the following clauses shall be substituted, namely:—
(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.”.
Also, article 31A, 32B and 305 were also amended as a part of this amendment. I would not list down the exact details of amendments related to art 305 due limitation of this article.Amendment of article 31A.-In article 31A of the Constitution,–
(a) for clause (1), the following clause shall be, and shall be deemed always to have been, substituted, namely:-
“(1) Notwithstanding anything contained in article 13, no law providing for-
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”; and
(b) in clause (2),-
(i) in sub-clause (a), after the word “grant”, the words “and in the States of Madras and Travancore-Cochin, any janman right” shall be, and shall be deemed always to have been, inserted; and
(ii) in sub-clause (b), after the word “tenure-holder”, the words “raiyat, under-raiyat” shall be, and shall be deemed always to have been, inserted...
-
17th Constitutional Amendment:
The protection of this article is available only in respect of such tenures as were estates on the 26th January, 1950, when the Constitution came into force. The expression “estate” has been defined differently in different States and, as a result of the transfer of land from one State to another on account of the reorganization of States, the expression has come to be defined differently in different parts of the same State. Moreover, many of the land reform enactments relate to lands which are not included in an estate. Several State Acts relating to land reform were struck down on the ground that the provisions of those Acts were violative of articles 14, 19 and 31 of the Constitution and that the protection of article 31A was not available to them. It is, therefore, proposed to amend the definition of “estate” in article 31A of the Constitution by including therein, lands held under ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments. It is further proposed to provide that where any law makes a provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate not less than the market value thereof.
It is also proposed to amend the Ninth Schedule by including
therein certain State enactments relating to land reform in order to
remove any uncertainty or doubt that may arise in regard to their
validity..
-
Prospective Overruling and 24thAmendment:
The case of I G Golkanath v/s State of Punjab is an important case in the India’s judicial history. In this case the petitioner challenged Constitution (Seventeenth Amendment) Act, 1964, Mysore Land Reforms Act, 1961 and Punjab Security of Land Tenures Act, 1953 in writ petition before Supreme Court. The petitioners challenged validity of both Acts and validity of the constitutional amendments related to the fundamental rights. A constitutional bench of eleven judges headed by Chief Justice Subba Rao gave an historic judgement that the parliament has no power to amend part of III of fundamental rights the constitution. However, in order to protect the agrarian reforms and to avoid chaos that would have created due this judgement the doctrine of prospective overruling was introduced for the first time. According to which the decision given in this case to only have prospective effect making earlier amendment acts to be valid and the Parliament would not have power from the date of present decision to amend any provisions of Part 3 of Constitution so as to take away or abridge fundamental rights.
As aresult of thisthe Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for
the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the
scope of the amending power.
This lead to the 24 amendment of the constitution to amend article 368 suitably for the purpose andmakes it clear that article 368 provides for amendment of theConstitution as well as procedure therefor. The Bill further providesthat when a Constitution Amendment Bill passed by both Houses ofParliament is presented to the President for his assent, he shouldgive his assent thereto. The Bill also seeks to amend article 13 ofthe Constitution to make it inapplicable to any amendment of theConstitution under article 368.
-
Eminent Domain, Compulsory Land Acquisition and Consequences
Definition of public purpose was not clearly defined in the Land Acquisition act of 1894, the act which governed land acquisition in India until the passage of Land Acquisition, Rehabilitation and Resettlement Act, 2013.In fact the misuse act of 1894 gave the birth to the LARR Act, 2013. The collusion of corrupt politicians, executives and industrialists was responsible namouras colorable and fraudulent land acquisitions. These acquisitions were faulty and impacted farming community badly, several farmers committed suicide and even massive public agitations were made. Several cases were contested in the Apex court, observations made by the supreme court in quashing these cases are eye opening. Below are some of the findings of Supreme court while quashing colorable land acquisitions are presented as below:-
In Greater Noida judgment[2], land acquisition proceedings at village Shahberi located in district Gautam Budh Nagar, Uttar Pradesh were carried out in the name of planned industrial development. It was held, that whole exercise of acquisition was designed to serve the interest of the builders and the veil of public purpose was used to mislead the people in believing that land was being acquired for a public purpose. The court concluded that, it was nothing but a designed attempt by the functionaries and officers of the State Government and the Authority in connivance with the builders to frustrate the right of the tenure holders. Authority was directed to pay cost for undertaking an exercise of allotment of land to the builders in complete violation of the purpose for which the land was sought to be acquired and even before approval by the State Government for the change of land use. Those who have paid money to the builders for booking flats etc., were protected to get back the amount along with interest at an appropriate rate and incase of refusal by builders, they would be free to avail appropriate legal remedy.
Ratio Decidendi from the above judgement is: compliance of the rules of natural justice is a small price which the State should always be prepared to pay before it can deprive any person of his property. The 1894 Act does not envisage any role of the private persons in the acquisition of land except when the acquisition is made under Chapter VII of the 1894 Act. Fraud on power voids the order if it is not exercised bona fide for the end designed.
Likewise, in Shri Radheshyam [3], the Supreme Court held that “The acquisition vitiated due to violation of doctrine of equality as appellant’s parcels of land were acquired, while other similarly situated lands were left out from acquisition”
In another judgment of Tukaram Krishna Joshi[4] the Supreme Court held that “Right to property is more than that of fundamental right, as it is human right”
-
Prospective 44th Amendment Removal of Right to Property from part III (Fundamental Rights)
After the emergency and formation of new Janata Party government, major constitutional amendment was made, that also include removal of right to property, Art 31 from the section of Fundamental Rights and creating a new article 300-A in part 12 of the constitution. Right to Property, while ceasing to be a fundamental right, was, however, given express recognition as a legal right, provision being madethat no person shall be deprived of his property save in accordance with law . The right guaranteeing freedom the acquire, hold and dispose of property in Article 19 (1) (f) was also deleted.
-
First Amendment in the Constitution and Agrarian Reforms
State governments made concreate efforts for social restructuring of the society, and passed abolition of Jamindari and several other land reform laws. Government efforts for social restructuring to implement directive principles faced several problems, these land legislations were challenged in the courts. The first case that challenged these reforms is Kameshwarsingh V/s State of Bihar, in this case Bihar Land Reforms Act, 1950 was challenged. The reasoning for challenge was that the classification of Jamindars made for the purpose of giving compensation was discriminatory and denied equal protection of laws guaranteed to the citizen under article 14 of the constitution. The Patna High Court declared the said legislation as violative of article 14. The Patna High Court in this case held that, Bihar Land Reforms Act, 1950 was violative of fundamental rights and declared unconstitutional.
Similar cases, were also filed in Allahabad and Nagpur High Courts at the same time against the land reforms act passed by local governments in these states. Both the Allahabad and Nagpur High Courts upheld the relevant artisan laws passed in respective assemblies. The persons aggrieved by this decision filed appeals in Supreme Court.
While these appeals were pending before the Hon. Supreme Court. The Central Government became restive at the delay being caused by litigation in furthering the program of agricultural land reforms.The Central Government wanted to remove any possibility of laws being declared invalid by the courts. To remove courts interventions, the central government brought the first amendment in Constitution to put an end to all these litigations. By way of 1st amendment in the year 1951, the Central Government introduced article 31 (A) and 32 (B) and 9th scheduleto the constitution.
The Article 31 (A) and (B) are as under:-
31A. Saving of laws providing for acquisition of estates, etc ( 1 ) Notwithstanding anything contained in Article 13, no law providing for
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
[Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.]
(2) In this article:
- a) the expression “estate” shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include 1) any jagir, inam or muaffi or other similar grants, 2) any land that is held under rayatwari system, 3) any land held or let for the purpose of ancillary thereto, including waste land, forest land, land for pasture, or site of building, and other structures occupied by cultivators of land, agricultural laborers and village artisans.
- b) the expression ‘rights’, in relation to an estate, shall include any right vesting in a proprietor, sub-proprietor, under proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue.”
Article 31-B: Validation of Certain Acts and Regulation:
“Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the 9th Schedule nor any of the provisions thereof shall be deemed to be void, or even to have become void, on the ground that such Act, regulation as provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any Court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force.”
These two articles are exception to Article 13 of the constitution. Though, the laws enacted by the legislature under article 31 (A) and (B) contravene the fundamental rights recognized under Part-III of constitution, it was necessary to make those laws which are constitutionally valid, in order to give effect to the agrarian reforms and to establish egalitarian society. Below are some of the major objectives of the 1st amendment, that added article 31A, 31B and 9th schedule.
To protect agrarian reform laws
To abolish the Jamindari system, which was deemed to the an evil and trivial of feudalism should be engage and socialism should be implemented.
To immunize certain acts and regulations from challenge on the ground of violation of fundamental rights under article 14 & 19.
To bring the weaker section of the society into mainstream and uphold the interest of category
To promote social change towards more equal justice and the constitutional goal of egalitarianism.
To reduce the concentration of land in few hands.
With the reference of the above mentioned first amendment in the Constitution all the pending cases related to the agrarian reforms were dismissed by the Hon. Supreme Court and Respective High Courts. It includes dismissing the appeal of Kamleshwar Singh of Bihar that triggered the 1st constitutional amendment. Hence, it can be concluded that the first constitutional amendment served as the important milestone to protect and carry out the land reforms..
-
Fourth Constitutional Amendment
Though, article 31(B) protected challenging the acts specified in 9th schedule on the ground of violation of fundamental rights. The challenge can be made on lack of legislative competency was still open. On the basis of legislative competency, Supreme Court decided three important cases namely, The State West Bengal V/s Bela Banerjee, The State of West Bengal V/s Subodh Gopal Bose and Dwarkadas Shirnivas V/s Solapur Spinning and Weaving Company. In the Bela Banerjee case, Hon. Supreme Court struck down, the West Bengal development and planning act, 1948 holding that compensation, in art 31 (2) meant: “Just equivalent or full indemnification” and similar views were also taken in other cases mentioned above.
These decisions of the Supreme Court gave a very wide meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of the two clauses, they are regarded as dealing with the same subject. The deprivation of property referred to in clause (1) is to be construed in the widest sense as including any curtailment of a right to property. Even where it is caused by a purely regulatory provision of law and is not accompanied by an acquisition or taking possession of that or any other property right by the State, the law, in order to be valid according to these decisions, has to provide for compensation under clause (2) of the article. It is considered necessary, therefore, to re-state more precisely the State’s power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in “deprivation of property”. This is sought to be done in clause 2 of the Bill.for clause (2), the following clauses shall be substituted, namely:—
(2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.”.
Also, article 31A, 32B and 305 were also amended as a part of this amendment. I would not list down the exact details of amendments related to art 305 due limitation of this article.Amendment of article 31A.-In article 31A of the Constitution,–
(a) for clause (1), the following clause shall be, and shall be deemed always to have been, substituted, namely:-
“(1) Notwithstanding anything contained in article 13, no law providing for-
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”; and
(b) in clause (2),-
(i) in sub-clause (a), after the word “grant”, the words “and in the States of Madras and Travancore-Cochin, any janman right” shall be, and shall be deemed always to have been, inserted; and
(ii) in sub-clause (b), after the word “tenure-holder”, the words “raiyat, under-raiyat” shall be, and shall be deemed always to have been, inserted..
-
17th Constitutional Amendment:
The protection of this article is available only in respect of such tenures as were estates on the 26th January, 1950, when the Constitution came into force. The expression “estate” has been defined differently in different States and, as a result of the transfer of land from one State to another on account of the reorganization of States, the expression has come to be defined differently in different parts of the same State. Moreover, many of the land reform enactments relate to lands which are not included in an estate. Several State Acts relating to land reform were struck down on the ground that the provisions of those Acts were violative of articles 14, 19 and 31 of the Constitution and that the protection of article 31A was not available to them. It is, therefore, proposed to amend the definition of “estate” in article 31A of the Constitution by including therein, lands held under ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments. It is further proposed to provide that where any law makes a provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate not less than the market value thereof.
It is also proposed to amend the Ninth Schedule by including
therein certain State enactments relating to land reform in order to
remove any uncertainty or doubt that may arise in regard to their
validity.
-
Prospective Overruling and 24thAmendment:
The case of I G Golkanath v/s State of Punjab is an important case in the India’s judicial history. In this case the petitioner challenged Constitution (Seventeenth Amendment) Act, 1964, Mysore Land Reforms Act, 1961 and Punjab Security of Land Tenures Act, 1953 in writ petition before Supreme Court. The petitioners challenged validity of both Acts and validity of the constitutional amendments related to the fundamental rights. A constitutional bench of eleven judges headed by Chief Justice Subba Rao gave an historic judgement that the parliament has no power to amend part of III of fundamental rights the constitution. However, in order to protect the agrarian reforms and to avoid chaos that would have created due this judgement the doctrine of prospective overruling was introduced for the first time. According to which the decision given in this case to only have prospective effect making earlier amendment acts to be valid and the Parliament would not have power from the date of present decision to amend any provisions of Part 3 of Constitution so as to take away or abridge fundamental rights.
As aresult of thisthe Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for
the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the
scope of the amending power.
This lead to the 24 amendment of the constitution to amend article 368 suitably for the purpose andmakes it clear that article 368 provides for amendment of theConstitution as well as procedure therefor. The Bill further providesthat when a Constitution Amendment Bill passed by both Houses ofParliament is presented to the President for his assent, he shouldgive his assent thereto. The Bill also seeks to amend article 13 ofthe Constitution to make it inapplicable to any amendment of theConstitution under article 368.
-
Prospective 44th Amendment Removal of Right to Property from part III (Fundamental Rights)
After the emergency and formation of new Janata Party government, major constitutional amendment was made, that also include removal of right to property, Art 31 from the section of Fundamental Rights and creating a new article 300-A in part 12 of the constitution. Right to Property, while ceasing to be a fundamental right, was, however, given express recognition as a legal right, provision being madethat no person shall be deprived of his property save in accordance with law . The right guaranteeing freedom the acquire, hold and dispose of property in Article 19 (1) (f) was also deleted.
-
Eminent Domain, Compulsory Land Acquisition and Consequences
Definition of public purpose was not clearly defined in the Land Acquisition act of 1894, the act which governed land acquisition in India until the passage of Land Acquisition, Rehabilitation and Resettlement Act, 2013.In fact the misuse act of 1894 gave the birth to the LARR Act, 2013. The collusion of corrupt politicians, executives and industrialists was responsible namouras colorable and fraudulent land acquisitions. These acquisitions were faulty and impacted farming community badly, several farmers committed suicide and even massive public agitations were made. Several cases were contested in the Apex court, observations made by the supreme court in quashing these cases are eye opening. Below are some of the findings of Supreme court while quashing colorable land acquisitions are presented as below:-
In Greater Noida judgment[2], land acquisition proceedings at village Shahberi located in district Gautam Budh Nagar, Uttar Pradesh were carried out in the name of planned industrial development. It was held, that whole exercise of acquisition was designed to serve the interest of the builders and the veil of public purpose was used to mislead the people in believing that land was being acquired for a public purpose. The court concluded that, it was nothing but a designed attempt by the functionaries and officers of the State Government and the Authority in connivance with the builders to frustrate the right of the tenure holders. Authority was directed to pay cost for undertaking an exercise of allotment of land to the builders in complete violation of the purpose for which the land was sought to be acquired and even before approval by the State Government for the change of land use. Those who have paid money to the builders for booking flats etc., were protected to get back the amount along with interest at an appropriate rate and incase of refusal by builders, they would be free to avail appropriate legal remedy.
Ratio Decidendi from the above judgement is: compliance of the rules of natural justice is a small price which the State should always be prepared to pay before it can deprive any person of his property. The 1894 Act does not envisage any role of the private persons in the acquisition of land except when the acquisition is made under Chapter VII of the 1894 Act. Fraud on power voids the order if it is not exercised bona fide for the end designed.
Likewise, in Shri Radheshyam[3], the Supreme Court held that “The acquisition vitiated due to violation of doctrine of equality as appellant’s parcels of land were acquired, while other similarly situated lands were left out from acquisition”
In another judgment of Tukaram Krishna Joshi[4] the Supreme Court held that “Right to property is more than that of fundamental right, as it is human right”
Are rural development objectives achieved through Land Reforms and new land policies?
One thing that stands out through the number of constitutional amendments done through these years, is that the governments have given prime importance to the equal distribution of wealth. Theseagrarianreform legislations imposed ceiling on agricultural land holdings and fixed a maximum limit beyond which a tenure holder was not allowed to hold land in his own name or in the name of his family members. However, is the distribution of wealth was sufficient to achieve the target of equitable of development of rural India?
In a judgment on land reforms Hidayatullah J. in a case of Janjitsingh V/s State of Punjab observed that “The scheme of rural development today envisages not only equitable distribution of land so that there is no undue in balance in society resulting in landless class on the one hand and concentration of land in the hands of a few on the other but envisages also the raising of economic standard and bettering rural health and social conditions.
If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be proper planning of rural economy and conditions and body like the village panchayat is best design to promote rural welfare then individual owners of small portions.”
Likewise Krushna Iyer J. in case of State of Kerala and Anr. vs. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc. (08-09-1973)observed that-
“The concept of agrarian reform is a complex and dynamic one promoting wider interests than conventional reorganisation of the land system or distribution of land. It is intended to realise the social function of the land and includes we are merely giving, by way of illustration, a few familiar proposals of agrarian reform-creation of economic units of rural production, establishment of adequate credit system, implementation of modern production techniques, construction of irrigation systems and adequate drainage, making available fertilizers, fungicides and other methods of intensifying and increasing agricultural production, providing readily available means of communication and transportation, to facilitate proper marketing of the village produce, putting up of silos, ware-houses etc. to the extent necessary for preserving produce and handling it so as to bring it conveniently within the reach of the consumers when they need it, training of village youth in modern agricultural practices with a view to maximizing production and help solve social problems that are found in relation to the life of the agricultural community. The village man, his welfare, is the target.”
Though, these observation made by the judiciary are recorded decades ago, however, the state of the affairs in the rural economy haven’t changed much. Even today, the efforts of creation of economic units are not adequate,irrigation facilities were trapped in the scams and marketing committees stuck as a den of corruption. Moreover, the land fragmentation in smaller units have made it difficult for farmers to maintain, cultivate and harvest agriculture produce. All these are the reasons that for the dismal situation of the Indian farmers and are also responsible for the larger farmer suicides.
The present central government and state government seems to have taken some positive steps to eliminate these efficiencies by way of re-introducing new policies for irrigation programs, market committees – mandeesand infrastructure development policies in rural India. Also, a new enactment is also proposed to legalize land leasing by elimination some of the inefficiencies the system. However, much more efforts are required to empower rural agricultural economy to eliminate deficiencies.
Also, The country has seen several issues related to the compulsory land acquisition and as mentioned above, we have experienced how the nexus of corrupt political class, executives and industrialists destroyed the poor farming calss. Though, the current political dispensation have shown positive signs of concreate dealing with the massive corruption. The government should be very careful in passing new legislation under the garb of development that would give opportunity to the corrupt minds to take benefits of the loop holes. The land is not only source of the livelihood of the farmers, but more than that it is they treat it like their mothers, therefore governments shall follow careful approaches and study new development projects from all the possible angels before deciding to dispossess a farmer from his farm.
The task of bringing prosperity to the majority population in India that leaves in the villages is massive and needs focused effort from every citizen. The world has changed a lot in the 21st century, emergence of technology and service industry in today’s globalized world have given different sources of wealth generation. Farming is no more the sole parameter to measure wealth of individuals. We still have ceiling limits for land holdings that blocks the development of the farming sector significantly. It is the time for us to do some serious brainstorming and develop out of box solutions to review the rural economy, increase agricultural productivity and enhance lives of our farmers. If we are able to do it, it would be a great service to the makers of Indian Constitution and will bring fruits of development to the Indian masses.
Article by:- Vilas. D. Sonawane, Advocate, High Court
Advocate Vilas Sonawane, specializes in the Land Laws. He has been contesting several cases related to the land acquisition and development programs across the country. He has also presented paper on the topic of land laws at “Land and Poverty Conference 2017” at Washington DC hosted by World Bank. He also works as Vice Chairman of Bhartiya Agro Economic Research Center, New Delhi. A leading think tank founded by eminent thinker late Shri. Dattopant ji Thengdi.
Email: vilas.sonawane09@gmail.comCell: 9422202223
[1] Sholka 3.10.8
[2]Greater Noida Industrial Development Authority Vs Devendra Kumar and Others reported in 2011(12) SCC 375
[3]Shri Radheshyam (dead) through LRs & Others Vs State of UP, reported in 2011 5 SCC 553
[4]Tukaram Krishna Joshi[4] and Others, though power of attorney holder Vs MIDC & others, reported in AIR 2012 SCW 6343