The author of this article is Ayush Kumar. In this article, the author provides an in-depth overview of the legal principle of eminent domain. One of the most debated aspects of eminent domain is defining “public use/purpose.” Traditionally, this encompassed projects like roads and schools, but there’s ongoing discussion about broadening this definition to include economic development and other initiatives indirectly benefiting the public. The article then delves into the ethical considerations surrounding eminent domain.
It has been published by Rachit Garg.
Table of Contents
Eminent domain is a legal principle that allows governments to take private property for public use, also known as forced acquisition or expropriation. This principle highlights the balance between promoting societal welfare and protecting private property rights. The historical background, legal foundations, ethical implications, and practical application of eminent domain have been the subject of intense scholarly and public debate. Governments can only acquire private lands if it is reasonably shown that the property is to be used for public purposes only. The central government, the state government, and local governments can seize people’s homes under eminent domain laws as long as the property owner is compensated at fair market value. The government can only exercise this power if it provides just compensation to the property owners.
Eminent domain, also known as compulsory purchase or expropriation, is a legal principle that grants governments the authority to acquire private property. The power of eminent domain was intended to be a narrow power and has rightly been called a “despotic” power of government, given its vast potential for abuse.
Background of the doctrine of eminent domain
The origin of the doctrine of eminent domain dates back to ancient civilisations, where rulers wielded authority to acquire land for public purposes like infrastructure and project development. The contemporary idea of eminent domain stems from English common law, where the Crown’s power to acquire private property for the greater good was established. Gradually, this idea transformed into a more systematic legal framework, encompassing restitution to safeguard landowners from unjust expropriation. The historical context, legal underpinnings, ethical considerations, and real-world implementation of eminent domain have sparked discussions both within academic circles and with the general public.
Evolution of the doctrine of eminent domain
Eminent domain is a legal principle that allows governments to take private property for public use, also known as forced acquisition or expropriation. The concept of eminent domain is a prominent part of modern governance. In India, the eminent domain has undergone significant historical evolution, impacted by a variety of social, economic, and political factors.
During the colonial period, India witnessed the consolidation of British power, which in turn led to the establishment of Crown rule. The British introduced the concept of greater sovereignty, empowering them to acquire larger territories and resources for economic and strategic gains, followed by the Land Acquisition Act of 1894.
India confronted the task of nation-building and growth after gaining its independence in 1947. Land acquisition has been an important tool for carrying out public projects and thus boosting the economy. The Indian government retained the Land Acquisition Act of 1894. However, significant changes, like in 2009 with the “Land Acquisition (Amendment) Act, 2009” wherein the Social Impact Assessment study was made mandatory, have been made in it. Moreover, concerns have been raised about the Act’s provisions and their affect on impacted people’s rights and livelihoods, specifically farmers and indigenous populations.
The 1970s and 1980s
In the decades of the 1970s and 1980s, social movements and protests triggered the acquisition of land. Significant industrial projects, dam construction, and mining activities led to the displacement of numerous marginalised individuals, resulting in extensive discord. During this period, a change in the strategy for land procurement with increased attention on achieving a harmonious blend between developmental objectives and the preservation of the rights of the impacted populace took place.
The 2013 Land Acquisition Act
The Central Government believed that public concern about land acquisition was growing and that inadequate knowledge of land acquisition among the public was heating the issue. Despite the formation of the bill, many concerns were expressed about its amendments, as the bill was formed under the British Raj in 1894; hence, mentioning fair compensation for acquiring private land and fair rehabilitation of landowners and those affected by the acquisition of the land was important. The Central government believed that a combined approach was necessary, one that legally explains clauses of rehabilitation and resettlement and assists the government in acquiring the lands for public purposes.
In 2013, the government of India passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (LARR Act) in response to the criticism faced by the previous act of 1894. This act sought to address the drawbacks of the previous Land Acquisition Act of 1894. The 2013 Act included various provisions to protect the interests of landowners and affected populations. It prescribed provisions related to the appropriate compensation, rehabilitation, and relocation for persons who had been displaced because of land acquisitions.
Supreme Court interventions
In addition to the legislative measures, the role of the Indian judicial system has been instrumental in protecting the rights of individuals affected by the land acquisition. The Hon’ble Supreme Court of India has passed several landmark judgements that have defined the extent and limits of the power of the state governments in exercising the doctrine of eminent domain. The court has emphasised the importance of public use/purpose, transparency in the land acquisition process, and just and fair compensation in the process.
There have been several Indian case laws related to the Doctrine of Eminent Domain. One such case is the Singur case, where the Supreme Court of India declared the acquisition of land for a Tata Motors project illegal and ordered that the land be returned to the original owners.
- Sooraram Reddy v. Collector, Ranga Reddy District (2008): In this case, the court has discussed the grounds for review of this power, namely – malafide exercise of power, a public purpose, an acquisition without following the procedure under the Act, etc.
- Basantibai v. State of Maharashtra (1986): The Bombay High Court in this case held that under the common law of eminent domain, the State cannot take the property of its subject without compensating the owner for its loss.
What is eminent domain
The Doctrine of Eminent domain is a legal doctrine that gives the government authority and empowers it to acquire private property for public use, having regard to the fact that the landowners are fairly and proportionately compensated. The provision related to the doctrine is enshrined under Article 300A of the Constitution of India, which provides that the state cannot take individual property except by legal authority.
The ‘doctrine of eminent domain’ has evolved in the English common law. The source of eminent domain and the power to acquire private property for the public’s welfare is the sovereignty of the state. The concept has been modified in India to match its legal system and socioeconomic needs.
The Scope of term “Public Use”
This has been one of the most debated issues. What constitutes the ‘Public Use/Purpose’ has nowhere been defined. This is one of the most critical aspects of eminent domain. This expression has traditionally been attributed to public-benefit projects such as roads, bridges, schools, hospitals, and public utilities. However, the definition of public use has evolved over time, sparking a debate about its expansion, including economic development, and other aims that indirectly benefit the public. This broader perspective has been very often than not been criticised and legal challenges in other areas.
The use of eminent domain gives rise to ethical considerations due to its ability to encroach upon the property rights of the owners in the pursuit of the public welfare. Critics argue that such actions could have a disproportionate impact on marginalised communities and individuals with lower property, thereby worsening the problems related to social equity . The ethical considerations at hand revolve around safeguarding individual property rights and balancing the societal and economic advantages that public undertakings have the potential to yield.
Legal foundations of the doctrine of eminent domain
In various legal systems, the power of eminent domain is derived from the constitutional framework or special legislation. In India, for example, this authority is essentially derived from the Indian Constitution (Article 31A) and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act 2013).
The maxims on which the Doctrine of Eminent domain is relied on, have been discussed below:
- Salus Populi Supreme Les Esto
This maxim means that the welfare of the people is the supreme law, and it enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour, without being hampered or opposed, and this cannot be effective unless respect for it is fostered and maintained (Pritam Pal v. High Court of Madhya Pradesh (1992). The maxim ‘salus populi suprema lex’ i.e., ‘the welfare of the people is the supreme law’ adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour, and without being hampered or thwarted, and this cannot be effective unless respect for it is fostered.
- Necessita Public Major Est Quan
This maxim means that public necessity is greater than private necessity. The requirements of the public good are stronger than those of the private good. The law imposes upon every subject that he or she must prefer the urgent service of the country over the service of his/her own. When this is applied to criminal law, then in that case, a man’s necessity to preserve his/her own life will be defeated by the state’s necessity to preserve law and order.
The procedure for exercising eminent domain in India is governed primarily by two statutes:
- Land Acquisition Act, 1894
For many years, the Land Acquisition Act, 1894 continued to govern land acquisition procedures in India. Under the provisions of the Act, the government was empowered to acquire private land for public uses/purposes, including infrastructure development, urban development, industrial growth, and other uses deemed necessary for the public good. At the same time, this act faced criticism due to deficiencies, arguably for inadequate compensation and a lack of attention to rehabilitating and resettling individuals adversely affected by such actions. Consequently, this backlash prompted the repeal of the Act and the implementation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013. The new act was enacted with the aim of ensuring fair compensation for individuals impacted by land acquisition.
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act)
Pursuant to the criticism of the previous act of 1894, the Government of India enacted the RFCTLARR Act in 2013. The new Act had a dual objective:- rectifying the deficiencies in the previous Act and simultaneously effecting substantial changes in the land acquisition process. The RFCTLARR Act underlines a commitment to the welfare of landowners and families affected by the process, ensuring fairness through just compensation, comprehensive rehabilitation, and active involvement of impacted stakeholders in the decision-making process.
The LARR Act attempted to strike a balance between the government’s demand for land acquisition for development projects and the rights of landowners and impacted communities. Some key features of the LARR Act are discussed below:
- Public Purpose: The land must be acquired for a public purpose/ use, such as infrastructure development, industrialisation, urbanisation, etc.
- Social Impact Assessment (SIA): Before land acquisition can take place, the LARR Act prescribes for getting the approval of a certain percentage of landowners (depending on the type of project). It also requires a Social Impact Assessment to be done prior to the acquisition to assess the probable impact of the acquisition on the impacted families and communities.
- Compensation: The Act provides explicit guidelines for the appropriate compensation amount, which must be fair and just. It consists of various elements, including market value, the value of assets tied to the land, and rehabilitation and relocation processes for impacted families such as those who have been displaced.
- Rehabilitation and Resettlement: The current Act prioritises the rehabilitation and resettlement of displaced families by providing them with improved living conditions and employment prospopportunitites.
- Review of past cases: The Act also introduced provisions for reviewing and reassessing land acquisition cases conducted under the older Land Acquisition Act, of 1894 to ensure that the affected parties receive fair compensation and rehabilitation benefits.
In spite of the introduction of the 2013 LARR Act, hurdles and concerns persist in the utilisation of eminent domain in India. A couple of the challenges are as follows:
- The challenge of accurately identifying displaced landowners who needs rehabilitation and relocation
- Delays occurring in the land acquisition process
- Complications arising from issues linked to land ownership documents
In an endeavour to tackle some of these challenges, the government proposed amending the LARR Act in 2015. However, these proposed amendments encountered criticism and ultimately failed to be enacted. The LARR Act holds important legal authority in India, governing both land acquisition and the use of the doctrine of eminent domain.
Elements of the doctrine of eminent domain
Eminent domain is a legal principle that empowers the government to acquire private property for public use while at the same time mandating that adequate compensation be provided to the landowners. The eminent domain is governed by legal frameworks in the majority of nations or jurisdictions. The following points summarise the fundamental elements of eminent domain:
The primary objective of the doctrine of eminent domain is to ensure that the acquired property serves a valid public purpose, such as the development of infrastructure like roads, bridges, railways, schools, hospitals, and public utilities. Eminent domain can be invoked only when a legitimate requirement for acquisition is proven. Furthermore, governments are bound to show that there is an absence of other alternatives to realise the public purpose.
When governments exercise eminent domain, they must provide “just compensation” to the property owner. Just compnesation refers to the property owner is fairly compensated for the value of the property being acquired. The measure of just compensation is the fair market value of the property to be ascertained on the date of acquisition, which is determined by assessing a price a willing buyer and a willing seller would agree to. Fair market value is that value assigned by parties freely negotiating under normal market conditions based on all prevailing circumstances at the time of the acquisition. Typically, compensation is based on the market value of the property at the time of the acquisition.
The doctrine of eminent domain necessitates the implementation of due process, which means that the property owners must receive prior notification of the acquisition. They should be granted sufficient opportunity to contest the acquisition or engage in negotiations regarding compensation.
Eminent domain can be used only when there is a genuine need for an acquisition. The government must show that there are no other viable options for achieving the public purpose and that the property is critical to the success of the proposed developmental project.
Eminent domain can only be exercised by the government or authorised public agencies with the legal backing to take property for public use. As mentioned earlier, in the majority of jurisdictions around the world, the doctrine of eminent domain is governed by some legislation and legal authority.
It is an involuntary process for the property owner. This means that the owner does not willingly sell or transfer the property but is compelled to do so by the legal authority.
The eminent domain process should be fair and transparent, with clear rules and guidelines that safeguard both the property owner’s rights and the public interest. It should allow for negotiation, appeals, and, if required, judicial scrutiny.
Constitutional provision surrounding the doctrine of eminent domain
The Indian Constitution safeguards the doctrine of eminent domain and enforces specific regulations to ensure its just and equitable application for the welfare of the people. The relevant constitutional provisions pertaining to eminent domain in India can be summarised as follows:
Article 31A of the Constitution
Although no longer in force, this provision granted immunity to specific laws from being contravened on the grounds of infringing upon fundamental rights. This provision encompassed subjects related to land reform and acquisition, and their immunity was intended to streamline the implementation of the doctrine of eminent domain.
Article 19(1)(f) of the Constitution
This article of the Fundamental Rights section safeguarded citizens’ rights to possess, acquire, and dispose of property. However, Article 19(1)(f) is now repealed.
Article 300A of the Constitution
This article distinctly addresses the right to property, and states that property cannot be seized from an individual except through lawful authority. This means that the government can only acquire private property through a legally valid process, adhering to relevant laws, and providing just and equitable compensation.
Article 31 of the Constitution
Despite its abolition in 1978, this Article contained provisions related to compensation for property taken over or requisitioned by the government. Following its abolition, the right to property is no longer a fundamental right but remains a constitutional right under Article 300A.
Directive Principles of State Policy (DPSP)
The DPSP, enshrined within Part IV of the Indian Constitution, provides guiding principles for making laws and policies. Notably, Article 39(b) and (c) of the DPSP are particularly relevant to the eminent domain, as they stress the necessity to ensure a balanced allocation of resources for the greater public good and to curb the aggregation of wealth and productive resources to the detriment of the public interest.
These constitutional provisions are designed to ensure that the exercise of eminent domain remains impartial and just, safeguarding property owners’ rights while simultaneously advancing the collective welfare.
Importance of the doctrine of eminent domain
The doctrine of eminent domain is important due to various reasons namely – promoting Infrastructure development, urban planning, national security, economic growth, etc. These are elaborated below:
- Infrastructure Development: The State governments, while exercising the eminent domain can acquire properties needed for infrastructure developments such as roads, bridges, railways, airports, schools, hospitals, and other such utilities.
- Public Welfare and Services: The doctrine empowers the government to act in the public good. This includes endeavours in the field of education, healthcare, disaster management, environmental conservation, and other areas that benefit society as a whole.
- Economic Growth and Development: Eminent domain contributes significantly to economic growth by permitting large-scale development initiatives. It promotes investment, job development, and enhanced access to resources, which in turn increase economic activity and prosperity.
- Ensuring Fair Compensation: It emphasises the importance of compensating the landowners whose lands are acquired. This ensures that impacted persons are fairly compensated for the loss of their property in possession.
- Balancing Individual Rights and Common Good: Individual property rights should not hamper societal well-being. It provides a method for balancing individual interests with the public’s collective interests.
- National Security: The doctrine is crucial in safeguarding strategic places and resources for national security, defence, and emergency response.
Despite its importance, the idea of eminent domain should be used with caution and subject to appropriate checks and balances. To protect property owners’ rights and guarantee that the public interest is truly served, governments should adhere to the principles of transparency, due process, and fair compensation.
Limitation of the doctrine of eminent domain
The doctrine is subject to some limitations in India so as to protect the rights of the individual and prevent abuse. These restrictions find place and have been defined in the Land Acquisition, Rehabilitation, and Resettlement Act of 2013 (LARR Act) and some important court judgements, which have been discussed in the later part of this article. Here are some key limitations of the doctrine of eminent domain in India:
Eminent domain can only be used to acquire land for “public purpose.” The LARR Act broadens the definition of public purpose to encompass initiatives related to national security, infrastructure development, industrialisation, and urbanisation. However, the courts have narrowly defined the phrase to ensure that it is not misused for private or commercial purposes instead of public use.
Social Impact Assessment (SIA)
The LARR Act mandatorily requires the consent of 80% of affected families for private projects and 70% for public-private partnership projects. Apart from that, a Social Influence Assessment must also be completed to assess the project’s influence on the impacted families and communities.
Just compensation and rehabilitation
The Act mandates that the impacted families be compensated fairly for their property, such as land and other assets. Compensation must be assessed using market rates and the possible future value of the land. Furthermore, displaced families must be provided with rehabilitation and relocation measures, including housing and livelihood facilities.
Limits on multi-crop land acquisition
To ensure food security, the LARR Act prohibits the acquisition of multi-crop agricultural land. Multi-crop land can only be acquired in an extraordinary circumstances subject to strong reasons have been provided.
The LARR Act sets time limits for all the stages of the land acquisition process so as to avoid unnecessary delays and provide compensation and rehabilitation to impacted families expeditiously so that their means of livelihood are not greatly impacted.
No retrospective application
The new act does not apply retroactively, which means that land acquisition proceedings commenced before the commencement of the Act, are still governed by the old land acquisition act of 1894.
Prohibition on speculative transactions
The RFCTLARR governs land acquisition in India. The act aims to ensure a participative, informed, and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities, and urbanisation with the least disturbance to the owners of the land and other affected families and to provide just and fair compensation to the affected families whose land has been acquired or is proposed to be acquired. The Act puts a bar on the acquisition of land that has been given by a farmer under pressure or within a certain time frame to avoid speculative transactions.
Role of gram sabhas
In tribal areas, the approval of the Gram Sabha is required for the process of land acquisition. This mechanism gives the local populations a role in the process.
The courts play an important role in determining land acquisition cases to ensure that the process follows the law and that the rights of affected individuals are safeguarded.
Despite these limitations, there are still problems in implementing the eminent domain in India. The Indian government and its institutions are always working to ensure that the process is transparent, fair, and respects the rights and well-being of affected persons and communities.
Power of eminent domain in India
The power of eminent domain in India is derived from the Constitution of India and is exercised by the government and its authorised public undertakings, such as corporations. Under the doctrine, the state can acquire private land for public purposes, and it should be proved beyond doubt. The doctrine empowers the government to take private property against the consent of the owner for a valid ‘public purpose’. The LARR Act, 2013 strives to strike a balance between public good and private rights. On the contrary, the lack of due process in the exercise of eminent domain in the country has been a cause for concern. Some of the important features of the power of eminent domain in India has been discussed below:
- Constitutional Basis: The power of eminent domain in India has a constitutional basis. This derives from Article 300A of the Constitution, which deals with the right to property. This article states that no person shall be deprived of their property except by the authority of law. It provides that the property can be acquired by the government only through a legal process and by providing the affected communities with just compensation.
- Public Purpose: The Constitution does not explicitly define ‘public purpose’. However, the government can acquire land under eminent domain for projects that benefit the general public, such as infrastructure development, public utilities, defence, social welfare schemes, and other activities aimed at promoting the public welfare. For example, the government can acquire land for a public park, a highway, or a school, as these projects serve a broader public purpose.
- Land Acquisition Act, 1894 (Repealed): In the early times, the power of eminent domain was exercised in India primarily through the Land Acquisition Act, 1894. This act provided the legal framework for land acquisition by the government for public purposes. However, due to lack of proper and robust provisions related to compensation, rehabilitation, and the impact on affected communities, the act was repealed and replaced by a new law in the year 2013.
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (LARR Act): The LARR Act, at present, is the legislation that governs the procedures related to land acquisition in India. It provides the procedures for acquiring land, providing compensation, and rehabilitating and resettling the affected families. The LARR Act places emphasis on public purpose, just compensation, consent, and social impact assessment to ensure that the power of eminent domain is exercised responsibly and in the best interest of all stakeholders.
- Limitations and Safeguards: The power is subject to specific limitations to protect individual property rights and prevent its misuse. Consent requirements, social impact assessments, just compensation, and rehabilitation and resettlement measures are some of the important safeguards provided by the LARR Act.
Advantages of the doctrine of eminent domain
The advantages of the doctrine have been discussed herein:
Balancing individual rights and common good
The concept of eminent domain represents the idea that private property rights should not be allowed to disrupt the broader welfare of society. It provides a method for balancing individual interests with the collective interests of the public.
- While the doctrine of eminent domain provides numerous benefits, it is critical to recognise its possible downsides as well as the requirement for responsible and transparent execution. Using eminent domain for the greater good while protecting private property rights requires fair compensation, careful planning, and public consultation.
To acquire property needed for important infrastructure projects such as roads, bridges, railways, airports, schools, hospitals, and utilities, Governments can exercise the authority under eminent domain. It makes it easier to expand and modernise public services, transportation, and utilities, thereby increasing the quality of life for the common people.
Economic growth and job creation
Eminent domain boosts economic growth and attract investors by making it easier to acquire land for large-scale development related projects. Infrastructure and industrial initiatives, in turn, result in job creation and contribute to overall economic growth of the country.
Public Welfare and Services
The doctrine gives the government authority to carry out projects that benefit the general public, such as projects in the sectors of healthcare, education, disaster management, and environmental preservation.
Urban renewal and revitalisation
Eminent domain can be quite useful in urban planning and renewal activities. It enables the development of the deprived regions, resulting in ameliorating living conditions, higher property values, and overall urban development. For example, when a National Highway is constructed in an area, the value of the land in that area increases.
National security and defense
It is useful in protecting crucial places and resources required for national security and defence. It contributes to a protection and sovereignty of the country.
Overcoming market failures
In some circumstances, market failures may delay the acquisition of property for important public projects. Eminent domain can step in to overcome these barriers and solve collective demands that markets may not be able to solve effectively.
Facilitating public-private partnerships
The eminent domain can encourage collaboration between the public and private sectors in large-scale initiatives. By providing the appropriate land, the government can attract private players and skills to improve project execution.
Effective land use planning
Eminent domain can assist in overcoming inefficiencies in land use and maximising the potential of available land for public initiatives that fulfil greater societal requirements.
Cons of the doctrine of eminent domain
The doctrine of eminent domain serves the public interest. At the same time, it has drawbacks and potential negative consequences. Some of the cons of eminent domain are discussed below in brief:
Violation of property rights
The government, while exercising eminent domain, can acquire private property from individuals, sometimes against their will. This forced acquisition can be understood as a violation of property rights, which are often regarded as essential human rights in many nations. In India, the Hon’ble Supreme Court in the case of Vidaya Devi v. The State Of Himachal Pradesh (2020) has held that the right of a citizen to own private property is a human right. The state cannot take possession of it without following due procedure and the authority of law.
The doctrine mandates that affected property owners receive appropriate compensation; nonetheless, a disagreement over the value of the property and the compensation thus provided may arise. In some circumstances, property owners, for example, may consider that the compensation provided does not reflect the full value of their land or assets.
Displacement and Social Impact
The use of doctrine of eminent domain may result in the displacement of families and communities. This can cause serious emotional and financial suffering, especially when people are displaced from their homes and livelihoods without adequate rehabilitation and relocation processes.
Disregard for Community Heritage
Eminent domain can potentially destroy cultural and historically valuable sites and neighbourhoods. This has the potential to destroy residents’ sense of community and identity that they have created over generations.
Corruption and abuse
There is a risk that the authority of eminent domain will be misused or abused. With powerful actors exercising the process for personal benefit or private interests rather than legitimate public goals sought to be achieved.
Administrative delays and inefficiency
The eminent domain procedure can be administrative and time-consuming. These can be due to necessary approvals, etc., resulting in project delays and enhanced costs for the government and other stakeholders.
If not properly handled, eminent domain can lead to environmental destruction. Deforestation, water diversion, and other ecological changes can impact ecosystems and biodiversity in the long run.
Loss of agricultural land
Acquiring agricultural land may decrease the availability of fertile agricultural land in the long run, potentially affecting food security in the region.
Chilling effect on investment
The possibility of eminent domain seizures deters investors from committing money to projects, particularly in countries where the procedure lacks transparency or clear norms.
To address these disadvantages and mitigate the negative effects of eminent domain, governments must establish strong legal frameworks that prioritise protection of property rights, ensure just compensation, involve affected families or communities in decision-making, and implement robust rehabilitation and resettlement measures. Furthermore, transparency and public accountability are critical to preserving public trust and confidence in the exercise of eminent domain for the greater good.
Important case laws around the doctrine of eminent domain
There are various landmark cases related to the doctrine, and some of these are mentioned below. These landmark cases have largely affected the legal environment in India pertaining to eminent domain and property rights. They have played a crucial role in defining the boundaries and conditions under which the government can exercise its power of eminent domain while upholding the principles of justice, fairness, and the protection of individual rights.
Project Director, NHAI v. M. Hakeem (2021)
In this case, Mr. Hakeem approached the Supreme Court, requesting ‘fair’ compensation for the land that the government had acquired under the National Highway Authority of India Act, 1956 (NHAI Act). The compensation decided by the District Revenue Officer was much lower than the market value of the land. Hakeem opposed the value decided by the officer. An “arbitrator” was assigned to determine the dispute. The arbitrator could only be appointed by the Central Government, and could be another government employee. He again set the compensation amount lower as compared to its market price. Hakeem then moved to the Supreme Court.
The Supreme Court ruled that the court cannot increase the compensation under the Act, it can only remit the compensation or set aside the award.
Kameshwar Singh v. State of Bihar (1952)
In the above-mentioned case, the Bihar Land Reforms Act, 1950 was challenged as being violative of Article 19(1)(f) and Article 14. In furtherance of the same, the Hon’ble Apex Court held that the right to property cannot be an absolute right and can be taken away on the ground of public interest to achieve the constitutional goals, and the Court thereafter, also laid emphasis on striking a balance between an individual’s right to acquire and hold property or land and the interest of the public, i.e., public welfare.
The State of West Bengal v. Subodh Gopal Bose and Others (1954)
In this case, Supreme Court ruled, even if the land was already being used for public utility, the State still had the power of eminent domain to acquire it for public use. Furthermore, it emphasised the importance of giving fair compensation to the landowners. The Court further held that the Constitution’s purpose is to create a welfare State by giving more social interest to communal rights than private properties and liberties.
Maneka Gandhi v. Union of India (1978)
The Hon’ble Supreme Court in this case explained the contours and limbs of Article 21 of the Constitution (Right to Life and Personal Liberty), stating that the expression life and personal liberty is of the widest amplitude, covering a bundle of rights, and the right to property is being one of them as it is an important component in an individual’s quality life, therefore, it cannot be abridged or taken away without following the due process of law.
Sudharsan Charitable Trust v. Government of Tamilnadu (2018)
Herein, the Apex Court elaborated on the term “eminent domain” in regard to the land acquisition. The court stated that the concept of eminent domain is deeply interlinked with the State’s sovereignty and its powers. The State can take away an individual’s property by providing adequate compensation for the same in the public interest, as the goal of the welfare state will always be to secure social justice, and in exercising the same, the State is not infringing upon the right to livelihood or dignity of a person. Thus, the petitioner’s contention that they cannot be deprived of their land under the powers of eminent domain was wholly rejected.
The principle of Eminent Domain provides the right for the government to acquire private property or lands in the interest of the public, provided that the landowners are given fair compensation. In regard to the same, the government can acquire land for the development of infrastructure like roads, railways, schools, hospitals, and highways; however, it is the duty of the government to ensure a transparent and just approach while dealing with affected families and communities. At the end of the day, the goal is to have a balance between rights and objectives that the welfare state needs to achieve, and if the owners of the respective land are not sufficiently compensated, the situation can be termed as inverse condemnation.
Eminent domain has certain restrictions and drawbacks, even if it can be advantageous for growth. These include breaches of property rights, unjust compensation, and the possibility of misuse. The doctrine tends to strike a balance between the collective needs of society and safeguarding the property rights of individual communities.
The doctrine of eminent domain can have a significant impact on people’s lives and livelihoods. Therefore, it is of utmost importance for governments to uphold transparency and impartiality in their dealings with affected families and communities. They must also undertake measures to lessen the negative effects of eminent domain. Eminent domain can be productive and useful because it can open up opportunities for people and benefit many people. However, there are disagreements about whether it is a positive thing or not.
The power of eminent domain is understood as the power that the State may exercise over all land within its territory. Eminent domain can be supported by the fact that governments have more legal control over lands within their dominion than do private owners. However, the definition of public purpose is extremely flexible. The legality of the right of eminent domain has come under extreme pressure due to development claims and the mass relocation that accompanies large infrastructure. The law of eminent domain finds its place among the doctrines that have not been attempted to be tamed by constitutionalism. Moreover, it has not been moderated by new perspectives on the relationship between citizens and the State. The principle of reasonableness can be a ground for challenge, and the government’s policy has yet to receive a conclusive answer from the Supreme Court. To comprehend the doctrine of eminent domain, it is important to ask questions, including about the valid law in India, i.e., the Land Acquisition Act 1894 (repealed now) or The Right to Fair Compensation and Transparency in Land.
Frequently Asked Questions (FAQs)
How is just compensation determined in eminent domain cases?
Just compensation is calculated based on the fair market value of the property at the time of acquisition or the amount of compensation paid to property owners, when their property is taken through eminent domain. To calculate the suitable compensation amount, various other factors are also taken into account, including:
- Current Use
- Possibility of Future Development
- Other Relevant factors, may be considered include the size of the property, any improvements or structures on the property, etc.
Can the government use eminent domain for private development projects?
Eminent domain is an instrument of law used by the government to involve private developers in public projects, depending on the jurisdiction. However, in some countries where the “public purpose” requirement is strictly interpreted, has given rise to arguments and legal challenges.
Can property owners challenge actions under the exercise of eminent domain?
Yes, owners of the estate do have the right to challenge eminent domain actions to ensure the government’s exercise of eminent domain is in compliance with the law and that the proposed project serves the public interest. They can approach the High Court and subsequently the Hon’ble Supreme Court to seek the necessary remedy.
Can eminent domain be used to acquire land for commercial purposes?
Nowadays, the use of eminent domain is the most debatable topic. Its use is restricted by several jurisdictions that can clearly serve a public purpose, and using it for solely private commercial endeavours may not be allowed.
Can individuals or communities appeal against the exercise of eminent domain in court?
Yes, impacted parties or communities may file a petition for the exercise of eminent domain to seek better compensation. The court’s decision will be based on the merits of the case and whether the government has followed the legal requirements. However, in the recent case of Project Director, NHAI v. M. Hakeem (2021), the SC held that “court cannot increase the compensation under the Act, it can only remit the compensation or set aside the award’.
- The Revival of the Right to Property in India
- Right to property as a Constitutional right.
- Articles 31A to 31C of Indian Constitution
- Law Commission of India Report No. 10 – “Law of Acquisition and Requisitioning of Lan” 1977
- Law Commission of India Report No. 182 – “Amendment of Section 6 of the Land Acquisition Act, 1894” 2002