Introduction
India’s economy is currently one of the world’s fastest growing. India’s government has developed a number of significant infrastructure projects to help its enormous population of 1.25 billion people escape poverty. Construction of highways, commercial corridors, and smart cities are all included. Without the availability of land, development is impossible. As a result, India’s land management policy is experiencing a significant transformation. In this land-development frenzy, several players are transferring a sizable portion of land. The violation of legal requirements pertaining to land acquisition procedures and the abuse of authority by executives and government officials gave rise to a number of problems. Land rights, sustainable development, despicable deeds of state, presidential abuse of power, and other concerns have caused a stir in the nation. The state has three types of sovereign power: the ability to tax, the ability to take property through eminent domain, and the ability to impose laws. Let’s look at the idea of eminent domain in the contemporary day.
Origin and Meaning
In its broadest sense, the theory of “Eminent domain” refers to the king’s or the government’s absolute authority to appropriate someone else’s property for the benefit of the public at large. However, over time, the king or the government has only ever been able to take over land after paying the proprietor compensation. Eminent domain is thus defined as the authority of the king or the government to seize a private person’s property when it is required for a public purpose.
Hugo Grotius and Samuel Pufendorf, two natural-law jurists from the 17th century, are credited with developing the concept of eminent domain as a peculiarly sovereign authority’s right that is accompanied with a duty to compensate. Grotius defined the doctrine as, “The property of the subject is under the eminent domain of the state, so that the state or he who acts of it may use or alienate and even destroy such property, not only in cases if extreme necessity…. but for ends of public utility, to which the ends of those who found the civil society must be supposed to have intended that private ends should give way. But it is to be added that when it is done the state is bound to make good the loss to those who lose their property.”
Salus Populi supreme lex esto, which literally translates to “the welfare of the people is the paramount law,” and “Necessita public major est quam,” which literally translates to “public necessity is greater than private necessity,” form the foundation of the idea of “eminent domain.”
Eminent domain actions can now be carried out on non-real estate as well. Governments may also confiscate personal property, including franchises, franchise rights, patents, trade secrets, and copyrights. Other examples of such property are military supplies during times of war and franchises.
Development of Concept in India
Under Jawaharlal Nehru, the constituent assembly made it plain that India would be created as a socialist State. However, affluent landowners, known as zamindaars, owned between 40 and 60 percent of India’s land at the time, and this concentration of economic and social power was contrary to socialist theory. The State planned to implement extensive agrarian reforms and land redistribution, but this meant that all such zamindaars would have to receive compensation for their holdings under the then-existing constitutional system that forbade the arbitrary seizing of private property. As a result, they were in a pickle. The disparity that the reforms sought to eliminate would return if they compensated these affluent zamindaars. The debates were mostly focused on how to resolve the zamindaari issue without giving the State unchecked eminent domain power. One side argued for paying no compensation against seizing zamindaari land, while the other side argued for strong property rights and reasonable compensation.
Article 31 was created as a result of this tension. Articles 31(4) and 31(6) said that any measure passed by the parliament that violates this article cannot be declared unlawful by a court. Article 31(2) referred to compensation simply. The assembly was afraid that if they used the term “fair” compensation, the courts would intervene and obstruct their plans for agricultural reform, either by determining an appropriate amount of compensation or by dismissing the statute itself due to a breach of basic rights.
Compensation under the Doctrine
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. This requirement was inserted by the Constitution’s Seventeenth Amendment Act of 1964.
The same can be found in earlier decisions of the honorable Supreme Court when property right was a fundamental right, like State of West Bengal v. Mrs. Bela Banerjee and others[1].
Limits of the Doctrine
The Court was probing into the eminent domain power. Eminent domain is “the power of the sovereign to take property for public use without the owner’s agreement,” according to the Court’s definition of the authority. Meaning is that the power is absolute, i.e.,
- The ability to seize;
- Without the owner’s permission; and
- Utilize it for the common good.
A difficulty that has dogged the existence and use of the eminent domain authority, that is, the interaction between the state and the populace, was hinted at by the use of the word “sovereign” in the sentence. Mass evictions and dispossession of people have been caused by the ability to take and the unqualified nature of “public usage.”
The Supreme Court stated the following reasons for reviewing this power in Sooraram Reddy v. Collector, Ranga Reddy District[2]:
- Malicious use of authority,
- Acquisitions made without adhering to the Act’s procedure,
- Acquisitions made for reasons that are illogical or absurd,
- Acquisitions made for reasons that are not at all related to the public interest, and
- Acquisitions made with a clear intent to violate the law.
Although the government has the primary authority to decide what counts as a public purpose, courts have the authority to review such judgments.
Analysis in light of Article 300- A
No one may be stripped of their property without a court order, according to Article 300-A. As a result, only by using its legislative authority can the State limit, abridge, or alter property rights. An executive order that takes away someone’s property without being supported by a statute is unconstitutional.
The law must also pass the following three requirements in order to be considered valid:
- The authority that passed the law must possess the necessary legislative authority;
- It must not violate any other fundamental rights protected by part III of the Constitution; and
- It must not violate any other clause of the Constitution.
In Basantibai v. State of Maharashtra[3], the court attempted to provide the property owners a favorable interpretation of Article 300-A by interpreting it to include both the “public purpose” and “compensation” elements. The legislature is prohibited from authorizing the taking of property for a public purpose by Article 300-A. However, the Parliament did not intend to give the legislature unrestricted authority to take a citizen’s property by merely passing a formal legislation.
Misuse of Power
In India, politics is a power play. The chosen legislatures focus on filling their pockets and ensuring that they are re-elected after the end of their term. so, to make sure that their personal agendas are fulfilled, many times they tend to use the power of eminent domain to their personal benefit.
This doctrine renders the poor helpless, as they neither have resources nor the knowledge to fight the injustice.
The rich of this nation, on the basis of their connections with the authorities, use this power for their personal gains, completely defeating the purpose of the power, i.e. public good.
Conclusion
Intuitively, the eminent domain right is where the State’s ability to seize land that was intended for an individual first emerged. Therefore, the right to property is not unalienable; it permits the state to interfere with it for legitimate reasons. However, numerous Constitutional and Human Rights pamphlets demand that it be in the public interest to defend the State’s involvement with private property. Adding to this, there have been other occurrences, some of which involving homeless individuals. We have to do something to put a stop to this theft of property from individuals. We must feel secure in our homes and on our property. It seems like someone is taking a piece of you and giving it to someone who might be “better” than you since they “benefit” other people more if they do take your stuff illegally. In the previous five years, eminent domain was used to evict over 10,000 property owners. The government must stop distributing land to individuals or businesses for free.
[1] 1954 AIR 170, 1954 SCR 558
[2] (2008) 9 SCC 552
[3] 1986 AIR 1466, 1986 SCR (1) 707.
This article is written by Sakshi Sehgal , BA.LLB (Year 2), Guru Nanak Dev University during her internship at Ledroit India
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