By Vibhu Mishra
Published on: 22 September 2023 at 10:00 IST
India is a developing economy, and it is considered as one of the fastest developing economy in the world. India having vast population of around 1.3 billion, having this vast population creates lot of difficulties and poverty is one of that, for tackling this problem the government of India has come up with different infrastructure programs. It includes the creation of several roadways, various industrial corridors, and high-tech cities.
The development programs can only be implemented when there is availability of lands. Hence the concept of doctrine of eminent domain comes into picture.
The doctrine in simple words means the government can possess any property of general public when it concerns to the society development. This article devils into the concept of doctrine of eminent domain and how it is important to balance the public interest when it comes to government acquiring public property.
Historical Background of Doctrine of Eminent Domain in India
The concept of eminent domain can be traced back to Roman law, where it was known as “dominium eminens.”
The doctrine of eminent domain in India, which is commonly referred to as the “Right to Property,” has a rich historical background that has evolved over the years.
Here is an overview of the historical development of the doctrine in India:
1. Pre-Independence Era (Ancient and Medieval India): In ancient and medieval India, the concept of property rights was recognized, and the state had limited power to acquire land for public purposes. However, the rights of property owners were not as clearly defined or protected as they are today.
2. British Colonial Rule (18th to 20th Century): The doctrine of eminent domain in India underwent significant changes during British colonial rule. The British introduced the concept of “sovereign rights” and asserted their authority to acquire land for public projects and infrastructure development. The Land Acquisition Act of 1894, also known as the “Eminent Domain Act,” was a landmark legislation that granted the British government extensive powers to acquire private land for public purposes.
3. Post-Independence (1947 Onward): After India gained independence in 1947, the framers of the Indian Constitution recognized the importance of protecting property rights while also acknowledging the need for land acquisition for public welfare.
The Constitution of India, which came into effect on January 26, 1950, included Fundamental right under Article 31, which guaranteed the right to property as a fundamental right. However, this right was not absolute and could be restricted for public purposes.
4. Forty fourth Amendment (1978): The 44th Amendment to the Constitution was enacted in 1978 and further weakened the protection of property rights. It removed the right to property as a fundamental right and reclassified it as a legal right. This amendment paved the way for more extensive land acquisition by the government.
5. Land Acquisition Act of 2013: In 2013, India enacted a new Land Acquisition Act, replacing the outdated 1894 Act. The 2013 Act sought to address various issues related to land acquisition, compensation, and rehabilitation of affected persons. It introduced provisions for consent of landowners and social impact assessments, reflecting a more balanced approach to eminent domain.
Today, the doctrine of eminent domain in India is governed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act of 2013, which aims to ensure a fair and just process for land acquisition while safeguarding the rights of property owners and affected communities. This legislation represents the latest development in the historical evolution of the doctrine of eminent domain in India.
When doctrine of eminent domain can be exercised:
Under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act of 2013 (hereafter referred to as the “2013 Act”), the government in India can acquire property under the doctrine of eminent domain for various purposes, subject to specific conditions and procedures outlined in the Act. Here’s when and how the government can acquire property under the 2013 Act:
1. Public Purpose: The government can acquire land or property for public purposes, such as infrastructure development, industrialization, urbanization, or any other project that serves the public interest. The term “public purpose” is broadly defined and includes projects that benefit the community or the general public.
2. Consent of Landowners: The 2013 Act introduced the requirement for the consent of a significant percentage of landowners (usually 80% or more) for certain types of projects. If the government wishes to acquire land for private companies or public-private partnership (PPP) projects, it must obtain the consent of the affected landowners.
3. Social Impact Assessment (SIA): For projects involving a certain threshold of land acquisition, the Act mandates a social impact assessment to evaluate the potential impact on affected families and communities. The assessment helps in determining the rehabilitation and resettlement measures that need to be undertaken.
4. Compensation and Rehabilitation: The Act specifies the process for determining and providing just and fair compensation to landowners and affected families. It also outlines measures for rehabilitation and resettlement of affected persons, which may include providing alternative land, housing, and livelihood support.
5. Time-Bound Process: The 2013 Act sets strict timelines for various stages of the land acquisition process, ensuring that it is completed within a reasonable period. This prevents undue delay and provides clarity to landowners.
6. Public Hearing: The Act requires the government to conduct public hearings to gather the opinions and objections of affected persons and communities. This enhances transparency and allows for public participation in the decision-making process.
7. Review and Redressal: Landowners have the right to seek redressal through the courts if they are dissatisfied with the compensation or the acquisition process. The Act provides mechanisms for dispute resolution and compensation review.
8. Consent and Impact Assessment Exemptions: The 2013 Act allows for exemptions in cases of urgency, national security, and certain other circumstances, where the consent and social impact assessment requirements may not apply.
9. No Acquisition for Private Companies: The Act explicitly prohibits land acquisition for private companies except in cases where it is for public purposes and with the consent of landowners.
It’s important to note that the specific procedures and conditions for land acquisition under eminent domain may vary based on the type of project, the scale of land acquisition, and the nature of the land being acquired. The 2013 Act was enacted to strike a balance between the government’s need for land and the protection of the rights and interests of landowners and affected communities.
Landmark Cases on doctrine of Eminent domain
In State of W.B. V. Union of India, 1963 It was affirmed that the entire Indian territory is under the direct jurisdiction of the Federal Government, enabling the Federal Government to wield its power of eminent domain concerning that territory.
In the Case of Sudharsan Charitable Trust V. Government of Tamil Nadu the court held that it is a well-established legal principle underscores that eminent domain constitutes an inherent aspect of a state’s sovereignty. In the exercise of this eminent domain authority, a state has the prerogative to take possession of private property and allocate it for public purposes, provided fair compensation is awarded. Without this mechanism, crucial projects for the greater public welfare and utility would remain unrealized.
In the case of State of Bihar v. Kameshwar Singh the court held that the government possesses the authority to acquire private property, but such acquisition must exclusively serve a public purpose and not be diverted for any other use.
The need to Balance Public Interest
The doctrine of eminent domain is a legal concept that grants governments the authority to acquire private property for public use. However, it also comes with the responsibility to balance the public interest with the protection of individual property rights. This balance is crucial for maintaining a just and equitable society.
Here are some key pointers as how public interest is balanced
- Fair Compensation: The cornerstone of eminent domain is the provision of fair compensation to property owners. The RFCTLARR Act introduced a formula for determining compensation, which includes market value, solatium, and additional sums. The aim is to ensure that landowners are adequately compensated for the loss of their property.
- Consent and Social Impact Assessment: The LARR Act made it mandatory to obtain the consent of a significant percentage of affected families for land acquisition. It also required a comprehensive social impact assessment (SIA) to evaluate the project’s effects on local communities, livelihoods, and the environment. The SIA helps identify potential negative impacts and mitigation measures.
- Transparency and Public Accountability: Public accountability is essential in the land acquisition process. Authorities must publish information about the project, its purpose, and the expected public benefits. Public hearings and consultations provide affected individuals and communities the opportunity to voice their concerns and suggestions.
- Alternative Solutions: Authorities are encouraged to explore alternative solutions that minimize land acquisition. This may involve modifying project designs, utilizing government-owned land, or considering unused or barren land. Reducing the scope of acquisition helps preserve property rights and minimize the impact on communities.
- Time-Bound Proceedings: Delays in compensation disbursement and project implementation can cause hardships to property owners. Timely procedures and efficient mechanisms for resolving disputes are vital to mitigate these challenges.
Challenges and Concerns
While the principles and safeguards are designed to strike a balance between public interest and property rights, challenges and concerns persist:
- Inequity in Compensation: Disparities in compensation amounts still exist due to variations in market value assessments and the subjective nature of “just compensation.”
- Displacement and Rehabilitation: Even with rehabilitation and resettlement measures, displaced communities often face difficulties in adapting to new environments, leading to potential long-term socio-economic challenges.
- Consent Issues: Obtaining consent from a significant percentage of affected families can be challenging and may lead to project delays.
- Corruption and Land Mafias: Instances of corruption and involvement of land mafias in land acquisition processes remain concerns in some regions.
Conclusion:
In essence, the doctrine of eminent domain serves a critical role in society by allowing the government to acquire property for public purposes. However, striking the right balance between public interest and property rights is essential to ensure that this power is used responsibly and fairly, ultimately benefiting society as a whole.
Edited by: Bharti Verma, Associate Editor at Law Insider
References:
https://lawcorner.in/eminent-domain-in-india/
https://blog.ipleaders.in/right-property-constitutional-right/
https://www.lawyersclubindia.com/articles/the-doctrine-of-eminent-domain-13853.asp
https://theleaflet.in/eminent-domain-doctrine-in-india-and-the-lack-of-due-process/