State cannot acquire property without proper procedure: Supreme Court

Sub: Polity

Sec: Constitution

Context:

The Supreme Court on Thursday took a significant step to protect private property from arbitrary state takeover for a “public purpose”.

General assumption of Right to Property:

It is generally assumed that for a valid acquisition all that is necessary is to possess the power of eminent domain i.e. power of the sovereign to acquire property of an individual for public use without consent to acquire, followed by grant of reasonable and fair compensation.

About the ruling:

It was ruled that compulsory acquisition without following mandatory procedures followed by a grant of compensation to the owners will not make the accession constitutional.
A Bench of Justices P.S. Narasimha and Aravind Kumar declared in a judgment that the right to property is protected as a constitutional right and has even been interpreted to be a human right.
Compulsory acquisition will still be unconstitutional if proper procedure is not established and followed before depriving a person of his/her right to property.
The judgment upheld a Calcutta High Court order rejecting an appeal filed by the Kolkata Municipal Corporation defending its acquisition of a private land.
It was noted that the 44th Constitutional Amendment omitted the right to property as a fundamental right, Article 300A, which was simultaneously inserted into the Constitution, provided that “no person shall be deprived of his property, save by authority of law.

Other seven basic rights:

The court laid down seven basic procedural rights of private citizens constituting the “real content of the right to property under Article 300A” that the state should respect before depriving them of their private property.
They include,
- the right to notice or the duty of the state to inform the person that it intends to acquire his property;
- the right of the citizen to be heard or the duty of the state to hear the objections to the acquisition;
- the right of the citizen to a reasoned decision or the duty of the state to inform the person of its decision to acquire property;
- the duty of the state to demonstrate that the acquisition is exclusively for public purpose;
- the right to fair compensation of the citizen;
- the duty of the state to conduct the process of acquisition efficiently and within prescribed timelines; and
- the conclusion of the proceedings leading to vesting or the right of conclusion.

Acquisition Process:

The culmination of an acquisition process is not in the payment of compensation, but also in taking over the actual physical possession of the land.
If possession is not taken, acquisition is not complete.

Constitutional Provisions in news:

Article 300A:

Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property.
The right to property is now considered to be not only a constitutional or statutory right, but also a human right.
Procedure is an integral part of the ‘authority of law’ in Article 300A.
The phrase ‘authority of law’ in the Article should not be understood as merely the power of eminent domain vested in the state.
The requirement of a ‘law’ in Article 300A does not end with the mere presence of a legislation which empowers the state to deprive a person of his property.

Doctrine of Eminent Domain:

Eminent Domain is the power of the sovereign to acquire property of an individual for public use without the necessity of his consent.
This power is based on sovereignty of the State.
Payment of just compensation to the owner of the land which is acquired is part of exercise of this power.