EMINENT DOMAIN - A TOOL FOR THE POWERFUL?

By Devm Blogs November 22, 2020

EMINENT DOMAIN – A TOOL FOR THE POWERFUL?

The Law of Eminent Domain is one of the most keenly contested laws across the world. It has been implemented and interpreted in several different ways based on the various situations that have arisen. However, the biggest point of contention is that it disregards the rights of individuals who do not consent to have their land taken away by the state. The following article will provide an understanding of Eminent Domain as well a brief look into how the law has played out in India under the ambit of the executive and judiciary.

Eminent domain essentially states that property can be taken away from an individual by the sovereign/government in the name and interests of public welfare. Public usage of private land can only be done in the event of a demonstration of its requirement beyond a reasonable doubt. Hence when it comes to the development of public facilities such as highways, government undertakings, town development projects, etc, the government has the right to acquire private land. However, this acquisition cannot be done arbitrarily.

Two main Latin Maxims are applicable in the given context:

Necessitas publica major est quam (Public necessity is greater than private necessity)
Salus Populi suprema Lex(Welfare of the People is paramount)

Given the context of the law, it must be understood from the Constitutional perspective. There was a provision originally where the Right to Property was a fundamental right under Articles 19 and 31. Citizens had the right to acquire, hold and no one could be deprived of the right to property as well. However, the Right was deleted by the 44^th Amendment in 1978 and it was made a legal right under Article 300-A(remedy was available under Article 226). It is henceforth not a Fundamental Right and thereby land can be taken away by the state on the pretext of public welfare development.

‘Compulsory acquisition’ is defined under the Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, 2013. It is under this that the government justifies that it can take over land and laws but will also have to provide fair and adequate compensation to the aggrieved individuals. However, the property acquired must be only for public welfare and can also be taken from the individual against their will. However even if the property is taken from the individual, they must be served with prior notice, and rehabilitation measures must be put in place to help benefit them. Both the union and states can formulate laws about the acquisition of properties under entry 42, list 3. The condition of taking property under any law that is formulated however contains a provision of payment of compensation.

REHABILITATION AND COMPENSATION

India is a welfare state that is aimed at providing what is requisite and in the best interests of its people. However, there is a lot at stake when the issue of the land acquisition comes into the picture. It is important to understand rights and precedents that come with the issue of land acquisition especially from the ends of the government. The people have a right to a free and fair process of compensation which cannot be disputed by any executive authority.

The common notion especially during controversial real estate acquisitions is that there is absolutely no recourse if the government claims to land-based on public discourse. However, the court in the case of Sooraram Reddy v Rangaram Reddy laid down specific declarations under which there can be a recourse

1)When the acquisition is unreasonable or irrational in the eyes of law.

2)There is a malafide exercise of power

3)The acquisition was done without proper exercising of the procedure laid down in the Act

4)When there is no public purpose that is the aim of the land acquisition.

It was hence a specification that courts do have the power to review and actions taken by the government in pursual of land acquisition. Another Supreme Court judgment that played an important role in differentiating the fine line between legal and illegal eviction was Bishan Das v State of Punjab. The court emphasized that there could be no arbitrary authority of the executive to remove or evict an individual from his or her property illegally. This would go against the individual’s rights and the law of the country.

A major government development scheme that proved controversial was the building of the Yamuna Expressway in 2011. There has been a minimal amount of compensation has been given out and this has directly resulted in dissatisfaction even 9 years later in 2020. Several acquisitions have been overruled by the Supreme and High Courts as the government which had initially aimed at acquisition for the expressway, began taking up land for private development housing schemes. This caused an uproar amongst the farming community that relied so heavily on the proposed income promised by the Mayawati government. In 2006 another case that caused the farmers to take to the streets was the setting up of a Tata Car project in Singur, West Bengal. It was here that the Supreme Court reiterated in its order that any project that is against the interests of a large number of people will be against the concepts of public purpose and therefore will defeat the very reasoning behind acquisition for public welfare.

Both these aforementioned situations go against the very crux of the Constitution and the Land Acquisition laws formed which do not just cater to the interests of the government and developers. Moreover, the resentment of farmers and landowners is enough for the public to understand that the government has not implemented laws equally and in good consciousness.

By understanding how Eminent Domain plays out in the context of Land Acquisition in India, the rights of the landowners come under heavy scrutiny. Governments have failed to implement state bills that deal with the problem of acquisition effectively and hence have gone on to create not just monetary issues, but social unrest amongst the affected populace. The only solution, for now, can be to provide the land value compensation as per the intended promises not just by the politicians but by the rule of law itself. Moreover, adequate relocation plans and constructive employment schemes for those who lose agricultural land can be a long term solution which must be implemented. After all, if the Fundamental Right to Property does not exist, there must be some recourse of justice for those affected by the non-compensatory acquisition of their land.

Author(s) Name: C.C.Chengappa (Jindal Global Law School, Sonipat)

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Reference(s):

Bishan Das v State of Punjab 1962 SCR (2) 69

https://indiankanoon.org/doc/1313008

Sooraram Pratap Reddy & Ors vs Distt. Collector, Ranga Reddy CIVIL APPEAL NO. 5509 OF 2008 /