General features of the statutes dealing with land reforms in india 6



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PROPERTY





PROPERTY 1

Germany 2

89 BVerfGE 1 (1993) 2

India 5


GENERAL FEATURES OF THE STATUTES DEALING WITH LAND REFORMS IN INDIA 6

RIGHT TO PROPERTY AND THE LEGISLATIVE AND JUDICIAL ATTITUDE 7

Anantha Prbhu v.District Colector : AIR 1975 Ker 117 9

ZIMBABWE: 9

Hewlett v Minister of Finance & Another 1981 ZLR 571 S Crt: Repeal of Victims of Terrorism (Compensation) Act. Debts owed by the state, such as those arising from the actual awards of compensation, are ‘property’ within the meaning of Constitution. 9

CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC): State could not erode compensation by taxing it. Reasonable justification in a democratic society. 10

Mhora v Minister of Home Affairs 1990 (2) ZLR 236 (HC): Deprivation of benefits, including accrued salary, pension and medical benefits, without compensation would be an acquisition of property 11

Chairman, Public Service Commission v Hall 1992 (2) ZLR 271 (S): The power to fine a public officer for misconduct was not in violation of the Constitution 11

Nyambirai v National Social Security Authority & Another 1996 (1) SA 636: Laws making provision for acquisition of property in satisfaction of tax or rate where that law is reasonably justifiable in a democratic society. Government , better placed than the judiciary to appreciate what was in the public interest. Three criteria used in test: legislative objective sufficiently important; self evident rational connection between the objective and the measures; means used impair rights no more than necessary. 11

NAMIBIA: 12

Right to own property 12

De Roeck v Campbell & Others 1990 NR 126: Laws of execution; rights of debtors and creditors; rights of peregrini and incolae. 12

UNITED KINGDOM 13

Expropriation: 13

Local Government Powers, 13

Property rights may be infringed: 13

Warrants usually required before enter and seizure: 13

EUROPEAN COMMUNITY 13

Papamichlopoulos v Greece EHRR 1993: 14

Wiesinger v Austria 16 EHRR 258 1991: 14

Scotts of Greenock Ltd and Lithgows Ltd v United Kingodom 12 EHRR 97: 14

Ciba SA and Others v Ufficicio Centrale Brevetti 1979 European Commercial Cases (ECC) 67 14

KATIKARIDIS AND OTHERS v. GREECE (72/1995/578/664) 15 November 1996: Impossibility of obtaining full compensation for expropriation of part of properties fronting a road because of irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation. Expropriation pursued lawful end in the public interest 15

PRÖTSCH v. AUSTRIA (67/1995/573/659) 15 November 1996: Interference (provisional transfer of land) considered -- need for a proper balance between demands of community's general interest and requirements of protecting fundamental rights of individual - - temporary disadvantage may be justified in the general interest if not disproportionate to aim pursued. -- Aim of consolidation: improve infrastructure and pattern of agricultural holdings. 17

GUILLEMIN v. FRANCE (105/1995/611/699) 21 February 1997: length of proceedings to challenge expropriation and to secure compensation, 21

AKKUS v. TURKEY (60/1996/679/869) 9 July 1997: depreciation through inflation of additional compensation for expropriation caused by authorities' delay in payment -- "entitlement to the peaceful enjoyment of possessions" 22

THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT BUILDING SOCIETY AND THE YORKSHIRE BUILDING SOCIETY v. THE UNITED KINGDOM (117/1996/736/933-935) 23 October1997: Applicants’ legal claims to restitution of monies paid under invalidated tax provisions extinguished under the effects of retrospective legislation -- Whether there was an unlawful expropriation of applicants’ assets – Meaning of ‘possessions’ --interference -- whether interference was justified. 23

LAND POLICY IN CANADA 25

Torgeson, 'Indians Against Immigrants', 14 Am. Indian L.Rev. 52, *62. 26

Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119: Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for electric power transmission lines across Indian reserve -- Right-of-way granted for such period of time as required for purpose of transmission line -- Nature and duration of rights granted under permit -- Whether rights granted within scope of Indian Act -- Whether permit valid -- Indian Act, 27

St. Mary's Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657: Indians -- Reserves -- Definition of "reserve" amended to include "designated lands" released or surrendered "otherwise than absolutely" -- Reserve lands surrendered at market value for airport but with the proviso that land would revert to reserve if not used for public purposes -- Whether lands surrendered for airport "designated lands" -- Whether common law real property principles apply to surrender of Indian reserve lands 29

Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010: Aboriginal rights -- Aboriginal land title -- Claim made for large tract -- Content of aboriginal title -- How aboriginal title protected by Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to self-government made out -- Whether province could extinguish aboriginal rights -- Evidence -- Oral history and native law and tradition -- Weight to be given evidence 31

R. v. Nikal [1996] 1 S.C.R. 1013: Aboriginal rights -- Fishing rights -- Appellant charged with fishing without a licence -- Whether licensing scheme infringing appellant's aboriginal rights and therefore not applying to him 38







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