Property Right in Pre-independence Period
The concept of private property has played vital role in the development of an individual personality, though it has an evil tendency to enable exploitation of one individual by another resulting in mal-distribution of national wealth. Protection of private property in varying degrees has, therefore, been accorded by all modern Constitutions.
In every society property relationship and other elements of the social order are closely interlinked. Even if property relations are not regarded as the foundations on which the whole order resets as a superstructure, it is undeniable that the concept of property and the relationship it entails among members of the community have deep and wide implications for all aspects of social life.
In India there are laws pertaining to property in its different forms similar to those existing in
other highly civilized countries. For historical reasons, the influence of the British Laws on our Laws has been considerable. There should be no hesitation in accepting the proposition that most of our concepts regarding owning, transferring and disposing of property are similar and at the times borrowed from the English notions on the subjects.
For an ideological picture of the scheme of property relations in India it is necessary to turn the Constitution of India which is not only a document reflecting existing social realities but, in many vital areas, it projects the wisdom and insight of the founding fathers. In a sense, almost all the provisions of the chapters on Fundamental Rights and Directive Principles could be said to contain direct or indirect ideas concerning the property relations. Same has been found under the Government of India Act, 1935 except nomenclature like Fundamental Rights or Directive Principles. Provisions relating to finance, property, contract and, suits with
some provisions like the federal railway authority, appeal in revenue matters, restriction on internal trade, provision relating to compulsory acquisition of land contained in the Government of India Act, 1935. The Fundamental Rights & Directive Principles are the chapters of the Constitution of 1950; therefore, these are definitely vision of our founding fathers.
Property relations in India before Constitution came into force were regulated by ordinary law of the land. During the British rule in India there was no Constitutional guarantee for the right to acquire, hold and enjoy the property although, there was Land Acquisition Act of 1870. Later Land Acquisition Act of 1894 provides for acquisition of private property for public purposes and which laid down elaborate machinery for determining the market value of compensation. However, there was no Constitutional guarantee of property and hence such law could be altered at any time detrimental to the property owners. Therefore, during the struggle for independence, the right to protection of private property was given considerable importance and public opinion insisted upon by the leaders of freedom fighters. It may be noted that the protection given to the private land was extended to commercial and industrial undertaking and this protection was available to “any person” in British India.
Although there was no Constitutional guarantee of right to property, the provisions of Land Acquisition Act, 1894 has ensured adequate compensation on acquisition of private property for public purposes. There was enormous litigation and plethora of decisions of the courts on the subject. But there being no Constitutional guarantee, the law could be amended to make the provision for the amount of compensation which may be inadequate or even illusory.
InBabu Kailas chandra v. Secretary of State the Privy Council held that only the present use of the land and not the potentialities of future development could be taken into consideration while arriving at the market value. There was also another point of view wherein it has argued that the compensation need not be full market value. Reliance was placed on the American case of Chicago Railway v. Chicago wherein the compensation awarded for the land acquired was one Dollar and the same was held to be just compensation. With this state of law regarding the property rights, in case of acquisition for public purpose, the feeling on either side, for and against of adequate compensation and there was considerable discussion and debate on whether the property right should be entrenched as fundamental right and whether compensation payable on acquisition should be the full market value.
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