A detailed understanding of doctrine of eminent domain. its features, origin, evolution, legal mandate as well as case laws.

1. Topic -
An Overview Of Doctrine of Eminent Domain In India
Student Name: Vageesha Dwivedi
Class: BA LLB
Section: 5C

2. CONTENTS
1. Introduction
2. Meaning and origin
3. Elements of Eminent Domain
4. Evolution of Statutes
5. Benefits of the doctrine
6. Constitution on eminent
domain
7. Doctrine of eminent domain
and article 300A
8. Judicial review of doctrine.
9. Conclusion

3. INTRODUCTION
In a country like India, land being a major source of livelihood is a complex socio-
political issue. Land Acquisition, inevitably is a controversial one standing at the
political faultine of India as it undergoes rapid industrialization and significant
developmental changes.
Legally it can be traced back to the colonial administration, who in order to facilitate
the acquisition of land for public purposes enacted several acts starting with the
Bengal Regulation I of 1824, the Bombay Act No. XXVIII of 1839, the Madras Act
of 1852.
Compensation was to be determined by specifically appointed arbitrators and as long
as the twin requirements of Eminent Domain theory- ‘public purpose and
compensation - were satisfied, the legality of the acquisition held water’.

4. MEANING AND BACKGROUND
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.
● Definition- It is a right inherent in every sovereign to take and appropriate
property belonging to citizens for public use. To put it differently, the
sovereign is entitled to reassert its dominion over any portion of the soil of the
State including private property without its owner's consent provided that
such assertion is on account of public exigency and for public good.

5. ● Origin - The term "eminent domain" was taken from the legal treatise De jure belli a
pacis (On the Law of War and Peace), written by the Dutch jurist Hugo Grotius
1625, which used the term dominium eminens (Latin for "supreme ownership").
● The doctrine is based on the Latin maxims:
1. Salus populi suprema lex - It means that welfare of the people is supreme law,
2. Necessitas publica major est quam- That public necessity is greater than a priva
one.
● Justice M.C. Mahajan of the Supreme Court in the case of State of Bihar
Kameshwar Singh quoted Grotius ad held that the meaning of eminent domain in i
irreducible term is “ (a) power to take, (b) without owner’s consent, (c) for the publ
use,” after paying compensation.

6. ELEMENTS OF EMINENT DOMAIN
VALID LAW- the taking or acquisition of the property should be
under a valid law. This valid law in India is generally land acquisition
act 1894 and now The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013
JUST COMPENSATION- the land owner must be paid just
compensation. The compensation requirement is aimed at restoring the
equality which has thus been upset. compensation must be reasonable
and proportionate to the injury caused.
● Compensation is of three kinds - (a) legal or by operation of law,
(b) compensation by exception and (c) by reconvention.
● Additional payment is made which is known as solatium. an award
of some amount to cover inconvenience and, in a proper case,
distress caused by compulsory taking

8. MEANING OF PUBLIC PURPOSE - the acquisition of the
property should only be for public purposes. 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.
● 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.

10. EVOLUTION OF STATUTES
The Indian state has used the colonial Land Acquisition Act (LAA), 1894,
for acquiring land even without the consent of the people in the name of
‘public purpose’ and on payment of compensation, until it got repealed by
a new act, the Right to Fair Compensation and Transparency in Land
Acquisitions, Rehabilitation and Resettlement Act, 2013. The LAA, 1894
is an expression of the notion of ‘eminent domain’ and draws its
sustenance from the sovereignty of the state.

11. Land Acquisition Act 1894 RFCTLARR Act 2013
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12. Land Acquisition Act of 1894 : made the power of eminent domain, and the
nature of ‘public purpose’, a matter solely for executive determination, and,
therefore, non-justiciable.
Under the 1894 statute there were broadly two forms of recognised
expropriation:
•One, acquisition for public purpose for governmental use, and
•Two, forced transfer of land from private individuals to corporations for the
latter’s commercial use. In the case of acquisitions intended to benefit
companies, a special procedure was prescribed in Part VII of the Land
Acquisition Act, which incorporated additional safeguards to ensure that
governments don’t abuse their avowed power of eminent domain.

13. Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013. This Act came into force on
01.01.2014 by repealing the Land Acquisition Act, 1894.
● The Act inter-alia provided for compensation up to four times the market
value in rural areas and twice the market value of land in urban areas;
rehabilitation and resettlement benefits not only for land losers but also for
livelihood losers.
● The Act also lays down procedure and manner of rehabilitation and
resettlement (R&R) wherein R&R is an integral part of the land acquisition
plan itself. Chapter-V and VI of the said Act contain detailed provisions for
R&R awards and their implementation.

14. ● This Act strives to strike a balance between public good and private
rights. Some key features include:
1. 'Public purpose' is clearly defined to avoid arbitrary acquisitions.
2. Consent from 70-80% of affected landowners is mandatory for private
and PPP projects.
3. Compensation must be four times the market value in rural areas and
twice the market value in urban areas.
4. It includes provisions for rehabilitation and resettlement.

15. Benefits of Eminent Domain
The doctrine of eminent domain, when judiciously implemented, can have significant benefits:
○ Facilitation of Public Projects: It enables the government to construct roads, schools,
hospitals, and other public amenities. Eminent domain also supports large-scale projects like
dams and airports that require significant landmass.
○ Urban Development: Eminent domain aids urbanization and city planning, helping to build
sustainable and modern cities.
○ Economic Boost: Infrastructure development, facilitated by eminent domain, can lead to job
creation, increased tourism, and an overall boost to the economy.
○ Ensuring Social Equity: It helps in equitable distribution of resources by preventing land
monopoly and ensuring land is used for the greater good.
However, the doctrine of eminent domain must be carefully balanced against the rights of
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16. RIGHT TO PROPERTY UNDER CONSTITUTION OF INDIA V.
DOCTRINE OF EMINENT DOMAIN
The Constitution plays a significant role in determining the extent and
application of the doctrine of eminent domain. Earlier Right to Property was a
Fundamental Right under the list of freedoms article 19(1)(f) and Article 31,
which provided that state can acquire properties of individual for the public
purpose by paying compensation to the landowner, provided such acquisition
was backed by suitable legislation.
• Article 19(1)(f) - certain that all citizens have the right to obtain, hold and
dispose of property. 16

17. • 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
-In 1978, Parliament enacted the 44th amendment to the Constitution, deleted
Article 19(1)(f) and Article 31, and made the right to property to a mere non-
fundamental status. Government needed to carry upon land reforms to set right
the inequalities among the farmers.
- The right to property, no longer a fundamental right, became more of a
statutory right and the remedy available to aggrieved persons came under
Article 226 of the Indian Constitution in the High Court and not under article 32
in the supreme court.
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18. Doctrine of Eminent Domain and Article 300-A
The doctrine of eminent domain and its intersection with Article 300-A of the
Indian Constitution is a topic of immense legal significance. Article 300-A,
which protects the right to property, also implicitly provides for the doctrine
of eminent domain. It specifies that no person shall be deprived of his
property save by the authority of law, thus indirectly endorsing the state's
power to acquire private property under the doctrine of eminent domain.
However, the doctrine's implementation is not explicitly outlined in the
Constitution. The specifics, including the process of acquisition,
compensation, and rehabilitation, are governed by specific statutes like the
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19. To summarise article 300A-
• The rights in property can be shortened, abridged or altered by the state only by
exercising its legislative power and decision -making order.
• Depriving a person of his property without being sponsored by a law is not
constitutionally valid
3 Test in order for 300A to be valid
The following 3 test must be pleased for article 300A to be valid-
1. The authority which has passed the law must have the legislative capability to do
so.
2. It must not invade upon any other fundamental right certain by part III of
constitution
3. It must not violate any other provision of the constitution. 19

20. Judicial Review of Eminent Domain
The doctrine of eminent domain also falls under the scrutiny of judicial review. Courts can
evaluate the legality and constitutionality of eminent domain actions, examining whether
the acquisition serves a public purpose, whether just compensation has been given, and
whether due process of law has been followed.
The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy District , has
articulated the following grounds for review of this power: (i) malafide exercise of
power; (ii) a public purpose that is only apparently a public purpose but in reality a
private purpose or collateral purpose; (iii) an acquisition without following the
procedure under the Act; (iv) when the acquisition is unreasonable or irrational; (v)
when the acquisition is not a public purpose at all and the fraud on the statute is
apparent.
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21. CONCLUSION
Article 17 of the Universal Declaration of Human Rights (1948) knows the
Right to private property, India being a participant to the declaration
documented the property right in Articles 19(1)(f) and 31 under part III of the
Constitution as a fundamental right. Article 31(1) was a kind of consequence
with Article 17 of United Nation Declaration of Human Rights i.e.,no one shall
be arbitrarily deprived of his property Similarly Article 19(1)(f) is effect with
Article 17(1) of United Nations Declaration of Human Rights i.e., “Everyone
has the right to own property alone as well as in association with others”
Conceptually, the origin of the State’s power to obtain land going to an individual lies in
the right of eminent domain.
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22. 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. Government meddling may occur in the form of expropriation of existing
property of subjects when public interest warrants.
The word “Public purpose” is the ignoble (means) for exercising the eminent domain
power or sovereign power. So it is right time transitively define the word “public
purpose ‟without giving any possibility for ill- treating the power. 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 less chances of abuse of eminent domain power.
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