Article 20 -- ``Takings''

(1)

No property of any description or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied.

(a)

the taking of possession or acquisition if necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit; and

(b)

the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.

(2)

Compulsory acquisition of property by the State shall only be made under a law which makes provision for.

1. the prompt payment of fair and adequate compensation; and
2. a right of access to the High Court by any person who has an interest in or right over the property whether direct or on appeal from other authority, for the determination of his interest or right and the amount of compensation to which he is entitled.

(3)

Where a compulsory acquisition or possession of land effected by the State in accordance with clause (1) of this article involves displacement of any inhabitants, the State shall resettle the displaced inhabitants on suitable alternative land with due regard for their economic well-being and social and cultural values.

(4)

Nothing in this article shall be construed as affecting the operation of any general law so far as it provides for the taking of possession or acquisition of property.

(a)

by way of vesting or administration of trust property, enemy property or the property of persons adjudged or otherwise declared bankrupt or insolvent, persons of unsafe mind, deceased persons or bodies corporate or unincorporated in the course of bent wound up; or

(b)

in the execution of a judgments or order of a court; or

(c)

by reason of its being in a dangerous state or injurious to the health of human beings, animals or plants; or

(d)

in consequence of any law with respect to the limitation of actions; or

(e)

for so long only as may be necessary for the purpose of any examination, investigation, trial or inquiry; or

(f)

for so long as may be necessary for the carrying out of work on any land for the purpose of the provision of public facilities or utilities, except that where any damage results from any such work there shall be paid appropriate compensation.

(5)

Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired.

(6)

Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option for acquiring the property and shall, on such reacquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurate with the value of the property at the time of the reacquisition.

NOTES:


1.) What is the practical import of Article 20(6)? Stools are now trying to re-aquire certain property previously acquired by the government under this clause. Why would a stool do that? Is there an economic benefit?

If the phrase ``commensurate with the value of the property'' in Article 20(6) means that a party must pay the government the market rate for the property when it is re-aqcuired, then it seems that a party will not realize economic gain from re-aquisition (unless the market has under-valued the property). Would a party ever want to re-aquire property under 20(6) for non-economic reaons (e.g., reasons of individual sentiment or societal tradition)? (Sometimes, in contracts or equitable remedies, parcels of land are treated as unique assets and given special treatment which would not be given to fungible goods.)

It is also possible that the ``amount as is commensurate with the value of the property'' will be, in practice, less than market price. Should it be?