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Article Published in the Express Magazine Dated
June 03, 2001
General Attorney : Rajiv K. Luthra
The government is planning to build a school
complex in our colony. We have learnt that for
safety reasons (emergency exit), it intends to
expropriate a part of our land. The property has
been with my family for generations. Can we
prevent the government from expropriating our
land?
Dev Kumar, Chandigarh
The right to hold property has ceased to be a
fundamental right under the Constitution of India.
But Article 300 A of the Constitution still
provides that "no person shall be deprived of his
property save by authority of law". This means
that under the Constitution, the Executive cannot
deprive a person of his property without specific
legal authority. It has been left to the
Legislature to make provisions to deprive a person
of his property under the authority of law. "By
authority of law" means by or under a law made by
the competent Legislature. The Executive then has
the power to acquire the property of a private
person by the law, exercising the power of
imminent domain for public purpose. When the State
exercises its executive power to acquire private
property, it will be under a special land
acquisition Act or under a similar State law.
Further, a compensation to the owner may be paid,
only if the law, which expropriates the property,
makes a provision for compensation. However, if no
such compensation is provided for, the owner shall
have no remedy before a court of law, and the
validity of such law cannot be challenged before
the superior courts on the said grounds that no
compensation has been paid or made payable by such
law. Also, the amount paid for compensation need
not be equivalent to the market value of the
property and cannot be challenged on ground of it
being inadequate.
However, if an individual’s property is taken away
by executive action, unsupported by or in excess
of the authority conferred by a valid law, such
person may seek appropriate remedy from the courts
of law.
During our grandfather´s time, our land was
leased for 99 years to a company, which still
exists. The rent, according to inflation, is one
rupee per month. As the lease tenure will come to
an end next year, I would like to know whether
there is any chance of getting that land back. If
not, can we, at least increase the rent ?
Hari Bhuska, Cochin
From your query, it seems that there exists a
lease deed with the company limited for 99 years.
The Transfer of Property Act states that during
the period of the lease, the tenant has the right
to hold the property. But on expiry of the
tenancy, the landlord is entitled to the
possession of the demised land and the tenant has
to vacant the property. Where a tenant continues
possession after the period of tenancy, the
landlord can file a suit for recovery of
possession. Even after a very long lease period
like 99 years, a lessee has only a sub-ordinate
interest in the property, and he is not entitled
to the absolute ownership of the demised land. The
rule that tenants cannot prescribe against their
landlord has been held to apply even to cases of
permanent lessees. Therefore, from the limited
fact stated in your query, it appears that you
should be entitled to seek recovery of possession
after the expiry of the lease period, depending
upon the provisions of the prevailing local Rent
Control Act in Cochin.
Regarding the increase in rent during the
subsistence of lease, the applicable laws
pertaining to rent control will determine this and
whether your property is governed by them.
However, you may increase the rent after the
expiry of the lease period if your enter into a
new lease deed with the company.
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