PROPERTY

Property

Article 31, like Art, 19 (1) (f), is concerned with “property.” Both the Articles are in the same chapter and deal with fundamental rights. Therefore, it is reasonable to say that the word “property” must be given the same meaning in construing those two articles., What, then, is the meaning of the word “property?” It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise those rights. It is quite clear that the Ordinance or the Act has not deprived the share-holder of his share itself. The share still belongs to the shareholder. He is still entitled to the dividend that may be declared. He can deal with or dispose of the share as he pleases. The learned Attorney-General contends that even if the other meaning of the word “property” is adopted, the share-holder has not been deprived of his “property” understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his “property.” According to him the “property” of the share-holder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate in the dividends declared on the profits made by the working of the Company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors. Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared. Therefore, concludes the learned Attorney-General, the share- holder cannot complain that he has been deprived of his “property,’’ for the totality of his rights has not been taken away. The argument thus formulated appears to me to be some what too wide, for it will then permit the Legislature to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights. This result could-not, in my opinion, have been intended by our constitution. As said by Rich J, in the Minister for State for the Army v. Dalziel, (1943-44) 68 C.L.R. 261, While dealing with S. 51 (XXXI) of the Australian constitution :

“Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placitum to suggest that the Legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating.”

The learned Judge then concluded as follows at page 286:

“It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing, the Legislature from authorising the acquisition of a citizen’s full title except upon just terms, it leaves it open to the Legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all”

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