THE ROLE OF PROPERTY LAW IN PROTECTING SMALL LANDOWNERS

This article is written by Urmila Biswas of Department of Law, University of Calcutta (Hazra Campus), an intern Under Lega Vidhiya

ABSTRACT

Property Law serves as an important ingredient to ensure justice and protection to the rights of the small landowners. The evolution of property law, along with the stages of the development of property law, will be discussed. Who are the small landowners, and what are the challenges faced by them? The impact of modernization and development on the rights of the small landowners will also be elaborated. However, the primary question that is relevant in contemporary society is the validity of the land-grabbing system in our country. Has any form of protection been provided to the small landowners against this land-grabbing system, and what strategies have been implemented in India? The course of action that an individual can take if he is unlawfully removed from his property. The article also discussed the relevance of legitimate documents, land records, title deeds, and many more such pieces of evidence, whether they help in establishing ownership rights to a property. Further, the provisions regarding the encroachment of the property of the small landowners by the rich landowners or mafias. Do any legal measures prevent such unlawful encroachment? Certain provisions of the Indian Constitution also help to protect the legal rights of the small landowners, which can definitely be declared as the backbone of our legal system. All those provisions will be discussed with some landmark cases. Thus, all these discussions will help an individual to declare the sanctity of the property rights of the small landowners.

KEYWORDS

Possession, Inheritance, Landowners, Land Grabbing, Injunction, Acquisition, Title Deeds, Land Records, Encroachment, Invasion.

INTRODUCTION

Property Law serves as an essential pillar for individuals worldwide, enabling them to establish their legal rights and own property, prevent unauthorized use, and manage, lease, and sell land at their own free will. It also includes the right of inheritance over a piece of land, protection of legal rights, and many more. The essence of the concept is that a legitimate property owner has all the legal rights vested in him concerning his property. However, the actual picture is not that smooth, as small landowners face a lot of hardships concerning their property. The small landowners possess between one and two hectares of land, according to the Agricultural Census conducted in India. It is necessary to protect the rights of the small landowners to ensure that their legal rights are not violated. The lawful owner of a property cannot be unlawfully evicted from their property, law serves as a shield against economic and social vulnerabilities. It not only secures the personal interest of the small landowners but also does social justice, economic upliftment, security, empowerment, and equitable access to the rights concerning a property over which an individual has legitimate interest.

EVOLUTION OF PROPERTY RIGHTS IN THE WORLD

There are essentially three stages in the historical evolution of property rights, which have undergone steady growth over the ages. The first stage is the natural possession of an area without having the conception of a state. Then comes the second stage, where the rights in regards to a property were not merely factual but existed in law. The prominent analyst John Locke said that property is a natural right, but only when derived from labor. The final stage in the evolution of property is the inception of the right of ownership to a property, it is a legal concept. Thus, the concept of individual rights and ownership evolved, which we can see in every corner of the world. It primarily evolved in the United States and certain parts of Europe. However, the Greek law was not codified, but it recognized the concept of private ownership of a property formally. The right of ownership exclusively ensures that the enjoyment of the rights is not curtailed by any private individual, institution, or government, with certain exceptions.

CHALLENGES FOR SMALL LANDOWNERS

The issue of the challenges in property law is not that simple; with an evolving society, the factors that impact property rights are also changing. The first and foremost challenge faced is the dispute concerning the unclear title of a property, land grabbing, a cause of action that needs to be taken during the fraudulent transfer and selling of property. During the times of urbanization, industrialization, or modernization, small landowners were removed from their property, preventing them from exercising their property rights. Moreover, the existence of unnecessary restrictions in the use of land also tends to narrow down the scope of the use of property rights of the small landowners. The lengthy trials and proceedings in the court of law, along with the exorbitant fees of legal counsel representing in the case, the frequent changes in law are certainly difficult challenges that need to be handled crucially. Along with all the above-mentioned challenges, another factor contributing to the challenges is the lack of awareness on the part of the landowners. The lack of awareness on the part of the small landowners leads to various forms of regulatory challenges along with the problem of land-grabbing and expulsion. There also exists gender discrimination during the grant of ownership rights in respect of a land. [1] Thus, we need to overcome all these challenges soon and provide inclusive development for all individuals on whom the property rights are vested.

PROTECTION FROM LAND GRABBING OF SMALL LANDOWNERS

The term ‘grabbing’ literally means the act of taking away; in this context, it means taking away the rights of a person in an arbitrary manner. However, concerning land, the term ‘land grabbing’ refers to the arbitrary manner of taking away property rights to land by powerful entities without providing compensation or lawful rights to the existing actual owner of the land. It not only leads to financial losses for the small landowners but also results in psychological dilemmas. The issue of land grabbing is not something new, the small landowners are deprived of the possession of land to which they have the right to ownership. Effective strategies should be formulated to prevent this threat of land-grabbing and to protect the rights of small landowners. Due to the lack of awareness among the small landowners, they are easy targets of land mafias. Moreover, the land records in most of the cases are not updated, which results in fraudulent claims and unlawful transfers. Small Landowners do not have sufficient finances to go for a legal battle, which limits their access to justice.

STRATEGIES TO PREVENT UNLAWFUL LAND GRABBING IN INDIA

Different strategies have been enforced to prevent the issue of land-grabbing in India, which includes the process of maintaining proper documents to be presented in the court of law, along with the demarcation of property boundaries. The legal documents should be updated, and one should actively pursue legal assistance to protect their land rights. At the grassroots levels, there should be community-based initiatives and engagement to ensure that there are no potential threats to the rights of the small landowners. There should be initiatives to do regular inspections of property, and if any suspicion is found relating to the rights of an individual, it should be reported as early as possible. Along with the presence of all the above-mentioned measures, we should also  work in jointly with the government and different communities in order to bring about just and proper protection for the small landowners.[2].

LEGAL PROVISIONS TO PREVENT LAND GRABBING

Legal Protection is a form of protection that is provided to small landowners, it can be written or unwritten. If a state tends to ignore the rights of individuals intentionally, then it cannot be said to be in a state of law in the true sense of the term. Civil action can be initiated against land grabbing; the Specific Relief Act, 1963,[3] provides provisions in this regard. If a land has been unlawfully possessed by an individual, it can be recovered back to its original owner according to Section 5[4] of the act, while Section 6[5] of the act provides that if a land is wrongfully dispossessed by any individual, it shall be recovered back to the actual owner within six months of the occurrence of the incident. Any form of injunction, whether temporary or permanent, can be passed against the trespasser.[6]

In case of the absence of specific legislation, the complaint can be filed by taking recourse to the Indian Penal Code, 1860.[7] When a person unlawfully enters any property without taking due permission from the owner and with a malafide intent, it is known as Criminal Trespass, which is punishable by Section 441[8] of the Indian Penal Code, 1860. Similarly, if there is any fraudulent transfer of a property, it is guided by Section 425[9], while unlawful entry is prevented by employing Section 422[10] of the Indian Penal Code[11].

COURSE OF ACTIONS THAT CAN BE TAKEN AGAINST UNLAWFUL REMOVAL

If a small landowner has been unlawfully removed from a piece of land, he can approach the appropriate police officer to complain about the same. In case there is specific legislation that has been prescribed for a particular state, they need to follow that prescribed legislation. There is no pan-India legislation to protect the rights of the small landowners, thus, different provisions are applicable in different parts of our country.[12]. The primary course of action that needs to be followed is the presentation of all the lawful documents to prove that he has the lawful ownership of a property. Documents such as title deeds, tax returns, sale agreements, and all other necessary documents have to be shown. However, the legitimate claim to an agricultural land needs to be proved by employing the land records, tenancy and cultivation records, and more such documents.

PROTECTION AGAINST THE ENCROACHMENT OF THE RIGHTS OF SMALL LANDOWNERS

The term encroachment means the unlawful invasion of a property by an individual, or it can also be termed as the adverse possession of a property. It is provided under Section 441[13] Of the Indian Penal Code. A person may encroach upon the property rights of another individual with intent or through an accident. If the encroachment is intentional to commit a crime, then the person encroaching is punished with a fine of up to Rupees 500/- or up to a term of three months in jail according to the provisions of Section 447[14] of the Indian Penal Code. If a person unlawfully enters into someone else’s property without due permission, it is known as trespassing. The major difference between the two is that Encroachment includes both the unlawful entry to a property along with a change in the structure of the property. The change in structure may be anything, either the inclusion or the elimination of anything to a property, accompanied by an unauthorized entry.[15]

CONSTITUTIONAL PROVISIONS TO PROTECT SMALL LANDOWNERS

The Constitution of India[16] is the strongest backbone of our country, which tends to protect the rights of each and every citizen of our country. It ensures that the different landowners are not discriminated against, and every individual is provided equal protection in the eyes of the law, as per Article 14[17]. Therefore, there should not be any form of discrimination between the wealthy and the small landowners. The Directive Principles of State Policy are other major ideological frameworks which has significantly influenced the Land Reform laws in India. Before the 44^th Amendment, Article 19(1)(f)[18] guaranteed an individual the right to hold and dispose of any property, which prevented the effective implementation of land acquisition by the government for public purposes. Thus, many legal challenges emerged against the government. The implementation of the 44^th Amendment Act in the year 1978 ensured that the government could acquire any property and utilize it for public purposes and repealed Article 19(1)(f)[19] and Article 31[20]. However, the insertion of Article 300A[21] was a breakthrough with the right to property in India. This essentially made the right to property a legal right rather than a fundamental right, ensuring fairness in terms of procedure.

LANDMARK CASES

State of West Bengal v. Bela Banerjee (1954)[22]

In this case, the apex court held that compensation granted should be fair and just, and there cannot be any form of arbitrary measures to keep a check on the amount of compensation under acquisition of land. It also addressed the fact of whether any property can be acquired by the state without providing adequate compensation.  This case also helped to decide the amount of compensation that would be considered just, fair, and equitable. It protected the small landowners by deciding the amount of fair compensation.

K.T. Plantation Private Limited & Anr. v. State of Karnataka (2011)[23]

This is another landmark case that decided upon the validity of the Land Acquisition Act and the grant of compensation. The Supreme Court further held that Article 300A[24] grants the legal right to a property, not a fundamental right, after the 44^th Amendment Act, 1978. It essentially protects the small landowners against arbitrary acquisition by the state, acquisition can only be lawfully held valid after providing due compensation to the real owner of the property.

CONCLUSION

We can conclude that Property Law ensures that social, political, and economic justice prevails in our country and provides legal protection to the small landowners. It also ensures that due compensation is granted before the acquisition of the property is taken over by any other individual, organization, or even the government. Thus, it ensures that the rights of the poor and marginal landowners are duly protected. In many areas, we have seen that the poor landowners are not given clear titles to their property, leaving them in a vulnerable condition. They were left in danger of land acquisition, and rich landowners took the rights over the property of this vulnerable section of the society. However, in recent times, we have seen that property law, along with the inclusion of constitutional provisions and punishments in the Indian Penal Code, has ensured protection to small landowners. Thus, the legal recognition of fair means of resolution of disputes, economic empowerment, and development has contributed to the development of a just and fair society built on sound legitimate principles that are accessible to every individual, even the small landowners.

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[1] Guide to Understanding Property Rights and Regulations, Bajaj Finserv (31^st August 2024), https://www.bajajfinserv.in/what-is-property-law,(Last Visited: April 12, 2025).

[2] Lucky Putri Selomitha, Lego Karjoko, Abdul Kadir Jaelani: Fair Legal Protection for Actual Land Owners Against Grabbing Disputes  (2024), https://acrobat.adobe.com/id/urn:aaid:sc:AP:04c74bd6-5193-40a4-a169-7f463d3ab861, (Last Visited: April 12, 2025).

[3] The Specific Relief Act, 1963, No. 47, Acts of Parliament, 1963 (India).

[4] The Specific Relief Act, 1963, § 5, No. 47, Acts of Parliament, 1963 (India).

[5] The Specific Relief Act, 1963, § 6, No. 47, Acts of Parliament, 1963 (India).

[6] Dhwani Meharchandani: Land Grabbing in India: Meaning, prevention, legal recourse, Housing.com (21^st July 2024),https://housing.com/news/land-grabbing/,(Last Visited: April 11, 2025).

[7]  The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[8] The Indian Penal Code, 1860, § 441, No. 45, Acts of Parliament, 1860 (India).

[9] The Indian Penal Code, 1860, § 425, No. 45, Acts of Parliament, 1860 (India).

[10] The Indian Penal Code, 1860, § 422, No. 45, Acts of Parliament, 1860 (India).

[11] Supra 9.

[12] Aprajita Nigam: How to protect yourself against land grab, The Economic Times (2^nd September 2021),https://m.economictimes.com/news/how-to/how-to-protect-yourself-against-land-grab/articleshow/85855457.cms#amp_tf=From%20%251%24s&aoh=17445140357668&csi=1&referrer=https%3A%2F%2Fwww.google.com,(Last Visited: April 13, 2025).

[13] The Indian Penal Code, 1860, § 441, No. 45, Acts of Parliament, 1860 (India).

[14] The Indian Penal Code, 1860, § 447, No. 45, Acts of Parliament, 1860 (India).

[15] How to remove encroachment from property, The Legal Shots (18^th July 2022),https://thelegalshots.com/blog/how-to-remove-encroachment-from-property/,(Last Visited: April 11, 2025).

[16] INDIAN CONSTITUTION, 1950, NO. 1, ACTS OF PARLIAMENT, 1950 (INDIA).

[17] INDIA CONST. art. 14.

[18] INDIA CONST. art. 19 cl.1.subcl. f.

[19] Supra 19.

[20] INDIA CONST. art. 31.

[21] INDIA CONST. art. 300A.

[22] State of West Bengal v. Bela Banerjee (1954) SCR 558.

[23] K.T. Plantation Private Limited & Anr. v. State of Karnataka (2011) 9 SCC 1.

[24]  INDIA CONST. art. 300A.

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