Section 8: Protection from deprivation of property

8. Protection from deprivation of property (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where— (a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius; and (b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and (c) provision is made by a law applicable to that taking of possession or acquisition— (i) for the payment of adequate compensation; and (ii) securing for any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the [Issue 1] CON – 8 Revised Laws of Mauritius taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining payment of that compensation. (2) No person who is entitled to compensation under this section, other than a resident of Mauritius, shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Mauritius. (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (2) to the extent that the law in question authorises— (a) the attachment, by order of a Court, of any amount of compensation to which a person is entitled in satisfaction of the judgment of a Court or pending the determination of civil proceedings to which he is a party; (b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted; or (c) the imposition of any deduction, charge or tax that is made or levied generally in respect of the remission of money from Mauritius and that is not discriminatory within the meaning of section 16 (3). (4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1)— (a) to the extent that the law in question makes provision for the taking of possession or acquisition of property— (i) in satisfaction of any tax, rate or due; (ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law or in consequence of the inability of a drug-trafficker or a person who has enriched himself by fraudulent and/or corrupt means to show that he has acquired the property by lawful means; (iii) as an incident of a lease, tenancy, mortgage, charge, sale, pledge or contract; (iv) in the execution of judgments or orders of Courts; (v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants; (vi) in consequence of any law with respect to the limitations of actions or acquisitive prescription; (vii) for so long only as may be necessary for the purposes of any examination, investigation has acquired the property by lawful means; (iii) as an incident of a lease, tenancy, mortgage, charge, sale, pledge or contract; (iv) in the execution of judgments or orders of Courts; (v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants; (vi) in consequence of any law with respect to the limitations of actions or acquisitive prescription; (vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land, the carrying out on it— (A) of work of soil conservation or the conservation of other natural resources; or CON – 9 [Issue 8] The Constitution (B) of agricultural development or improvement that the owner or occupier of the land has been required, and has, without reasonable and lawful excuse, refused or failed to carry out, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society; or (aa) any other provision of Chapter II of the Constitution, to the extent that the law in question makes provision for the taking of possession of property— (i) under the ownership of a person to an extent which is disproportionate to his emoluments and other income; (ii) the ownership, possession, custody or control of which cannot be satisfactorily accounted for by the person who owns, possesses, has custody or control of the property; or (iii) held by a person for another person to an extent which is disproportionate to the emoluments or other income of that other person, by way of confiscation, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society; or (b) to the extent that the law in question makes provision for the taking of possession or acquisition of— (i) enemy property; (ii) property of a person who has died or is unable, by reason of legal incapacity, to administer it himself, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest in it; (iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or (iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a Court or, by order of a Court, for the purpose of giving effect to the trust; or (c) to the extent that the law in question— (i) makes provision for the payment of the amount for which the property is to be compulsorily taken possession of, together with interest at the legal rate in equal yearly instalments, within a period not exceeding 10 years; [Issue 8] CON – 10 Revised Laws of Mauritius (ii) fixes the amount for which the property is to be compulsorily taken possession of or acquired or makes provision for the determination of that amount in accordance with such principles as may be prescribed. (4A) (a) Notwithstanding subsection (1) (c), section 17 or any other provision of the Constitution, no law relating to the compulsory acquisition or taking of possession of any property shall be called in question in any Court if it has been supported at the final voting in the Assembly by t fixes the amount for which the property is to be compulsorily taken possession of or acquired or makes provision for the determination of that amount in accordance with such principles as may be prescribed. (4A) (a) Notwithstanding subsection (1) (c), section 17 or any other provision of the Constitution, no law relating to the compulsory acquisition or taking of possession of any property shall be called in question in any Court if it has been supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly. (b) No law under paragraph (a) shall be amended or repealed otherwise than by a Bill which has been supported at the final voting in the Assembly by the votes of not less than three quarters of all the members of the Assembly. (5) Nothing in this section shall affect the making or operation of any law so far as it provides for the vesting in the State of the ownership of underground water or unextracted minerals. (6) Nothing in this section shall affect the making or operation of any law for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes, in which no money has been invested other than money provided from public funds. [S. 8 amended by Act 14 of 1983; Act 33 of 1986; Act 48 of 1991; s. 2 of Act 30 of 2015 w.e.f. 10 December 2015.]