Eminent Domain in India

Introduction

Today, India is one of the fastest developing economy in the world. In order to uplift its vast population of 1.25 billion from the grab of poverty, the Government of India has come up with several large infrastructure programs. It includes the creation of roadways, industrial corridors, and smart cities. No development is possible without the availability of land. Therefore, India is undergoing a massive change in the land management policy. A large chunk of land is getting transferred within various stakeholders in this development spree.

Several issues surfaced due to non-compliance of statutory provisions related to land acquisition processes and misuse of power by executives and government functionaries. These issues have raised uproar in the country regarding land rights, sustainable development, colorable acts of state & misuse of power by executives, etc.

In the present era, let’s take a look at the concept of eminent domain. The state has sovereign power into three categories namely the power of taxation, the power of eminent domain and the police powers.

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Doctrine Of Eminent Domain

The doctrine of Eminent domain, in its general meaning, means the supreme power of the government under which property of any individual can be taken over in the concern of the general public. However, over the years such taking over the property by the government has been made conceivable only after recompensing the land proprietor of such property. Thus eminent domain clarified as the power of the government to take over the property of a secluded person when it is wanted for a public purpose, an example would be if they were trying to build a highway.

Eminent Domain is the power of the sovereign to acquire the property of an individual for public use without the necessity of his consent. This power is based on the sovereignty of the State. Payment of just compensation to the owner of the land which is acquired is part of the exercise of this power.

Payment of compensation, though not an essential ingredient of the connotation of the term, is an essential element of the valid exercise of such power as no person shall be deprived of his property save by authority of law as per Article 300A of the constitution of India. An incidental limitation of this power is that the property shall not be taken without just compensation[1].

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What Does The Constitution Say About Eminent Domain?

The Constitution of India first provided the right to property (which includes land) under Articles 19 and 31. Article 19 certain that all citizens have the right to obtain, hold and dispose of the property. Article 31 stated that “no person shall be disadvantaged of his property save by authority of law.” It also designated that recompense would be remunerated to a person whose property has been taken for public drives.

The Forty-Fourth Amendment of 1978 erased the right to property from the list of important rights with an introduction of a new provision, Article 300-A, which provided that “no person shall be deprived of his property save by authority of law”. The amendment safeguarded that the right to property‟ is no more a fundamental right but somewhat a constitutional/legal right/as a statutory right and in the event of violation, the remedy obtainable to an affected person is through the High Court under Article 226 of the Indian Constitution and not the Supreme Court under Article 32 of the Constitution.

Compensation

State must pay compensation at the marketplace value for such land, building or structure acquired (Inserted by Constitution, Seventeenth Amendment) Act, 1964, the same can be found in the earlier decisions when property right was a fundamental right (such as 1954 AIR 170, 1954 SCR 558, which submitted that the word “Compensation” deployed in Article 31(2) indirect full compensation, that is the market value of the property at the time of the purchase.

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Misuse Of The Power

There have been more instances and some of those involved people becoming homeless. We need to help stop this illegal taking of people’s property. We need to feel safe at home and safe on our property. If they do take your property illegally it is like someone is taking a part of you and giving it to someone who might be “better” than you because they “benefit” others more. Almost 10,000 property owners were removed from their property in the last 5 years through eminent domain. The government needs to stop giving land away to private investors or to private companies. They should only take land when they 100% need it and that is not happening when they try to take land and give it to private investors who will generate more taxes.

Conclusion

Conceptually, the origin of the State’s power to obtain land going to an individual lies in the right of eminent domain. Therefore, Right to property is not an absolute right; it allows the state meddling with it for genuine purposes. However to defend the State’s interference with private property many Constitution and Human Rights leaflets require it to be the public interest.

Therefore, the word “public purpose” defined under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act is moderately less unclear, it will still not stop the judiciary from looking into questions of misuse in actual gaining or use of land but moderately fewer chances of abuse of eminent domain power.

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References:

  1. INDIAN KANOON
  2. EMINENT DOMAIN- USE OR ABUSE? – EDITED BY M N BHAVANI
  3. MANUPATRA

[1] Chiranjit Lal Choudhary  v.  Union of India, AIR 1967, SC 41 & 54

This article is authored by Kousalya Ravi, student of B.Com LL.B (Hons.) at SASTRA ,Thanjavur

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