Property Ownership Rights and Urban Planning - Printable Version

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Property Ownership Rights and Urban Planning - harshita - 12-08-2016

Provisions regarding Property Ownership Rights and its relevance to Urban Planning. 

Town planning measures may affect the property interest of many individuals as town planning implies certain amount of control over the individual’s rights to use his ‘property’. Hence, community has to have adequate legal powers to enable it to enforce necessary regulations and control in the use of land for the general good of the community.

‘Property’ means a certain thing (like land, building, etc.) that is owned. It may be said that ‘property’ is an intangible interest created and protected by law and governing relations between the owner and others, including the community as well.

In this sense, the owner has ‘property’ or has ‘property interest’ in his land. His property interest consists of:

1. ‘Right’ to keep others off his land,
2. ‘Powers’ to transfer his land to other, and
3. ‘Privileges to use his land.

The term property in common words indicates the economic status of a person. Any property is held by an individual to draw out benefit from it.  Indian experiences and conception of property and wealth have a very different historical basis than that of western countries. The notion of property as it has developed over centuries and it has embodies in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self evident propositions

The Constitution of India, has following provision in Right to Property

The 44th amendment eliminated article 19 (f) the right to acquire, hold and dispose of property as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right.
The 25th Amendment of the Constitution of India curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts.

Amendment of article 31

(a) for clause (2A), the following clause shall be substituted, namely:—

"(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:
Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause";
The obligation to pay compensation, however went on diluting continuously by the Constitution First, Fourth, Seventh, Twenty-fifth and Forty-second Amendment Acts
 
The owner’s privileges to use his land are often affected by town planning measures. These measures have to operate within the following two limits, such that the land owner’s privileges and other interests in land or not adversely affected.

•  Planning measures must satisfy the constitutional requirement of procedure established by ‘law’, in that the regulation must be in the public interest, i.e., they must be directly related to public need, safety and morals or welfare. 
  

• Town planning measures must be in accordance with the provisions of a statute, which provides legal backing to the local government unity to draw its planning powers. The measures must not exceed the substantial planning powers delegated by the Act to the local planning unit and they must be adopted in accordance with the specified procedures. These are important aspects which should be followed strictly as otherwise courts may ‘strike down’ all the planning measures as unconstitutional. If procedures are not followed as set down under the rules and regulations, even the measures undertaken with good intentions may become ‘invalid’ under the law. 
  

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