Right to Property
(Article 300A)
The Forty-Fourth Amendment of the Constitution in 1978 transfered the right to property from the category of Fundamental Rights by repealing article 31 and converted it into an ordinary constitutional right by enacting article 300A, instead. Article 300A says, "no person shall be deprived of his property save by authority of law."
Though article 300A is not a Fundamental Right, it does not make much of a difference except that a writ petitioner is not maintainable under article 32 in the Supreme Court to vindicate the right under article 300A. A person challenging violation of article 300A must go to a High Court under article 226, with his writ petition.
The constitutional right to property under article 300A is not a basic features or structure of the Constiution. After the Forty-Fourth Amendment of the Constitution right to property is a human right and a constitutional right but not a Fundamental Right.
State of Mysore v. K. Chandrasekhara Adiga, MANU/SC/0534/1976 : AIR 1976 SC 853: 1976 UJ (SC) 231: (1976) 2 SCC 495. Article 300A ensures that a person cannot be deprived of his property merely by an executive fiat. The rights in property can be curtailed, abridged or modified by the State only by exercising its legislative power. Deprivation of property can only be done according to law. Without law, there can be no deprivation of property. No law, no deprivation of property is the principle underlying article 300A. An executive order depriving a person of his property without being backed by law, is not constitutionally valid.
Dr. P.K. Tripathi says that now the right to property of both the citizens as well as non-citizens, is more firmly and comprehensively secured under the Constitution, than even before. It is secured more firmly than before because an amendment in the existing position will now require not only the procedure laid down in article 368, but also the consent of the states as prescribed in the proviso to article 368. He says that State will not now be able to acquire private property without showing public purpose and without paying full compensation or the market value of the property.
Jilabhai Nanbhai Khachar v. State of Gujarat, MANU/SC/0033/1995 : AIR 1995 SC 142: 1994 (72) Taxman 435: 1994 AIR SCW 4181: JT 1994 (4) SC 473. Article 31(1) provided that no person shall be deprived of his property except by authority of law. This means that the State has authority to take away the property of an individual but it can do so only by authority of law. The word 'law' as used in article 300A makes it clear that the deprivation of the property can only be made by the authority of law, be it an Act of Parliament or State Legislature, or a rule or statutory order having force of law, and not by an executive fiat or an order.
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