News Brief
Not Every Private Property Can Be Taken Over By Government, Rules Supreme Court—What You Need To Know
The Supreme Court of India.
The Supreme Court on Tuesday (5 November) held that all private properties cannot be considered "material resources of the community" under Article 39(b) of the Constitution to be taken over by State to subserve the "common good".
A nine-judge bench of Chief Justice of India (CJI) DY Chandrachud with Justices Hrishikesh Roy, BV Nagarathna, Sudhanshu Dhulia, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih passed the ruling.
Three judgments were authored -- the Chief Justice wrote one for himself and six colleagues, Justice BV Nagarathna wrote a concurrent but separate judgment and Justice Sudhanshu Dhulia dissented.
The case relates to Article 31(c) of the Constitution that protects laws made by the State to fulfill directive principles of state policy -- guidelines the Constitution lays down for governments to follow while making laws and policies. Among the laws that Article 31C protects is Article 39(b).
Article 39(b) of the Constitution of India places an obligation on “The State” to create policy towards securing “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”.
This provision falls under Part IV of the Constitution titled “Directive Principles of State Policy”, which are meant to be guiding principles for the enactment of laws, but are not directly enforceable against citizens.
In 1977, a seven-judge bench had ruled with a 4:3 majority that all privately owned property did not fall within the ambit of material resources of the community.
In a minority opinion, however, Justice Krishna Iyer held that both public and private resources fell within the ambit of "material resources of the community" under Article 39(b).
"Does material resource of a community used in 39(b) include privately owned resources? Theoretically, the answer is yes, the phrase may include privately owned resources. However, this court is unable to subscribe itself to the minority view of Justice Iyer in Ranganath Reddy. We hold that not every resource owned by an individual can be considered a material resource of a community only because it meets the qualifier of material needs," the Chief Justice remarked, NDTV reported.
"The enquiry about the resource in question falls under 39B must be contest-specific and subject to a non-exhaustive list of factors such as nature of resource, the characteristics, the impact of the resource on well-being of the community, the scarcity of resource and consequences of such a resource being concentrated in the hands of private players, the public trust doctrine evolved by this court may also help identify resources which fall under the ambit of material resource of a community," he added.
Justice Dhulia in his dissent said it is the Parliament's prerogative to see how to control and distribute material resources.
This case stems from a multi-decade long resistance from private landowners in Mumbai against the Maharashtra state government’s multiple attempts to take over dilapidated properties for restoration purposes.
In 1986, the Maharashtra state government amended the Maharashtra Housing and Area Development Act, 1976.
The amendment allowed the Maharashtra Housing and Area Development Authority to take over cessed properties if 70 percent residents gave their approval to restore the property.
The petitioners, a collective of more than 20,000 landowners filed their earliest set of petitions in 1986, after which the case went through the judicial process.
They argued that “Landowner’s right to property is a fundamental right and it [can] not be suspended".
The Association approached the Supreme Court in December 1992 to appeal the Bombay HC’s decision.
At the Supreme Court, the central question became whether “material resources of the community” as per Article 39(b) includes privately owned resources — which would include cessed buildings.
In February 2002, a seven-judge bench noted the court’s decision in Mafatlal Industries Ltd vs Union of India (1997) where a nine-judge bench held that Article 39(b) covers privately owned resources as well.
The seven judge bench, taking note of this decision, stated “we have some difficulty in sharing the broad view that material resources of the community under Article 39(b) covers what is privately owned", and referred the challenge to Chapter VIII-A of the MHADA to a nine-judge bench.
