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 TABLE OF CONTENT

SL.
PARTICULARS PG. No
No

1 INTRODUCTION 2

HISTORICAL DEVELOPMENT OF EMINENT DOMAIN IN

2 INDIA 2

3 EARLY LEGISLATIONS 3

4 ELEMENTS OF DOCTRINE OF EMINENT DOMAIN 4

5 APPLICATION OF EMINENT DOMAIN IN INDIA 5

6 EMINENT DOMAIN AND THE LAND ACQUISITION ACT 8

7 IMPORTANT CASE LAWS 8

8 CONCLUSION 10

9 REFERENCES 11

1
 DOCTRINE OF EMINENT DOMAIN

1. INTRODUCTION

‘Eminent domain’ is understood as the power that the State may exercise over all land within
its territory. Eminent domain, and the law related to the compulsory acquisition of land,
requires that the power may be invoked only for a public purpose, but what constitutes public
purpose is wide open to interpretation and use. Development debates stoked by the mass
displacement that accompanies large infrastructure projects have placed a severe strain on the
acceptability of the power of eminent domain. The endorsement of the eminent domain
power of the State in the early constitutional years of independent India was assisted by the
jurisprudence that had developed around the colonial Land Acquisition Act of 1894. That
nineteenth century statute and the case law that grew around it, made the power of eminent
domain, and the nature of ‘public purpose’, a matter solely for executive determination and
statement, and, therefore, non-justiciable. Today, eminent domain is among the doctrines that
have not been attempted to be tamed by constitutionalism. It has also not been tempered by
altered notions of the relationship between citizens and the State which independence from a
colonial power may well be expected to bring in its wake. Hugo Grotius defined eminent
domain in 1625 thus:1 “The property of subject is under the eminent domain of the state, so
that the state or he who acts for it may use and even alienate and destroy such property, not
only in cases of extreme necessity... but for ends of public utility, to which ends those who
found civil society must be supposed to have intended that private ends should give way. But
it is to be added that when this is done the state is bound to make good the loss to those who
lose their property.”

2. HISTORICAL DEVELOPMENT OF EMINENT DOMAIN IN INDIA

Eminent domain therefore can be traced back in India to the Land Acquisition Act of 1894
which came to India with the British. This legislation laid the basic structure for the
government acquisition of private land this time for the first time the concept of ‘public

1
Dejure Belli et Pads, quoted in State of Bihar vs. Kameshwar Singh 1952.

2
purpose’ was provided as a condition for the acquisition of private property for public use.
The Act gave the colonial administration the authority to take over land for public utilities,
barracks, settler activities and other colonial needs, mostly without paying much
compensation and total disregard to the native’s rights to land.2 After independence most of
this legal structure was maintained in India but with considerable changes to suit a new
democratic and socialist country. The constitutional protection was given to the land
Acquisition laws by the Constitution of India through articles 31-A, 31-B and 31-C and at the
same time certain safety measures were taken for property owners.3 This dual approach
intended to strike a balance between the developmental requirements of the state and property
owners interests. This was later through the 44th Constitutional Amendment Act, 1978 put
forth under Article 300-A reducing it to a Constitutional Right providing power to the
Doctrine of eminent domain.

3. EARLY LEGISLATIONS

The Bengal Regulation 1 of 1824 is one of the earliest pieces of legislations which entail the
Government's right of Eminent Domain. Under Fort William's presidency, the whole of
Bengal province was subjected to law with empowered the administration to "obtain, at a fair
valuation, land or other immovable property required for roads, canals or other public
purposes."4 The administration used this regulation to procure land to commence the
installation of railways. With growing industrialisation levels, all the land acquisitions
provisions in British India were accumulated and merged into Act VI of 1857 and further
manifested into the Land Acquisition Act of 1870. The Land Acquisitions Act, 1870 was soon
repealed, and one of the most prominent reasons behind that decision is enshrined in the case
of Radhey Shyam(D) Through LRs and others v. State of U.P. and others.5 The Supreme
Court observed that the Land Acquisition Act of 1870 required the State to appoint
independent assessors for the property in question. The courts and these assessors were also

2
Pulkit Taneja, ‘Evolution of Eminent Domain in India’ [2021] ResearchGate
[Link]
3
Diganth Raj Sehgal, ‘Articles 31A to 31C of Indian Constitution - IPleaders’ (iPleaders7 January 2020)
[Link]
4
7BHATTACHARYYA, D. (2015). History of Eminent Domain in Colonial Thought and Legal Practice. Economic
and Political Weekly, 50(50), 45-53. Retrieved March 15, 2021, from
[Link]
5
Radhey Shyam(D) Through LRs and others v. State of U.P. and others Civil Appeal No. 3261 decided on April
15, 2011.

3
needed to form a consensus based on the above-mentioned act, which delayed the procedure.
The Supreme Court also observed that the person to whom the land belonged to did not have
a right to object in the matter. Widespread protests and rallies were conducted by those
deprived of their land, and to cater to this situation, the British Government Passed the Land
Acquisition Act of 1894." The Land Acquisition Act I of 1894 does not provide that persons
having an interest in land which it is proposed to acquire, shall have the right of objecting to
such acquisition; nor is Government bound to enquire into and consider any objections that
may reach them. The object of this Bill is to provide that a Local Government shall not
declare, under Section 6 of the Act."6

4. ELEMENTS OF 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:

Public use:

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.

Just compensation:

When governments exercise eminent domain, they must provide “just compensation” to the
property owner. Just compensation 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

6
Ibid

4
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.

Due process:

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.

Necessity:

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.

Government authority:

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.

Involuntary transfer:

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.

Fair process:

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.

5. APPLICATION OF EMINENT DOMAIN IN INDIA

The power to take property from the separate is entrenched in the idea of eminent domain.
The doctrine of eminent domain states, the independent can do anything, if the act of
sovereign includes public interest. The doctrine authorizes the sovereign to obtain private

5
land for a public use, providing the public nature of the practice can be established beyond
hesitation. The doctrine is based on the following two Latin maxims:

1. Saluspopulisupremalex (Welfare of the People Is the Paramount Law)

2. Necessitaspublica major est quam (Public Necessity Is Greater Than Private
Necessity)7.

In the history of current India, this doctrine was tested twice (broadly speaking) once when
land reform was started and another time when Banks were state-owned.8

The Constitution of India first provided the right to property (which includes land) under
Articles 19 and 31. Article 19 certain that all citizens have the right to obtain, hold and
dispose of property. 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. The Forty-Fourth Amendment of
1978 erased the right to property from the list of important rights with an introduction of a
new provision, Article 300-A, which provided that "no person shall be deprived of his
property save by authority of law"9. The amendment safeguarded that the right to property‟ is
no more a fundamental right but somewhat a constitutional/legal right/as a statutory right and
in the event of violation, the remedy obtainable to an affected person is through the High
Court under Article 226 of the Indian Constitution and not the Supreme Court under Article
32 of the Constitution. State must pay compensation at the marketplace value for such land,
building or structure acquired (Inserted by Constitution, Seventeenth Amendment) Act, 1964,
the same can be found in the earlier decisions when property right was a fundamental right
deployed in Article 31(2) indirect full compensation, that is the market value of the property
at the time of the purchase.

The Legislature must "guarantee that what is resolute as payable must be compensation, that
is, a just corresponding of what the proprietor has been deprived of". In another place,
Justice, Reddy, O Chinnappa ruled in State of Maharashtra v. Chandrabhan Tale on 7 July
1983 that the fundamental right to property has been eliminated because of its unsuitability
with the goals of "justice" communal, financial and party-political and "fairness of position
and of opportunity" and with the founding of "a socialist democratic republic, as anticipated

7
Chandrachur, Y. V. 2009. Concise Law Dictionary. New Delhi: LexisNexis ButterworthsWadhwa Nagpur.
8
Tripathi, P.K. 1980. "Right of Property After 44th Amendment Better Prosecuted Than Ever Before."Air Journal
(51).
9
Refer constitutional law by [Link]

6
by the Constitution. There is no reason why a novel idea of property should be presented in
the place of the old so as to bring in it’s awaken the leftovers of the doctrine of Laissez Faire
and create, in the name of competence, a new oligarchy. Competence has many surfaces and
one is yet to discover an reliable test of efficiency to suit the widely differing needs of a
emerging society such as ours" (1983 AIR 803, 1983 SCR (3) 327). The idea of efficiency
has been introduced by Justice Reddy, O Chinnappa, very fascinatingly joined with the
condition of dependability.

In India, with this outline of social‟ rudiments to the property rights, a new phase had begun.
K. K. Mathew, justice of Kesavananda Bharati vs State of Kerala10 stated this exactly:
"Property in consumable goods or means of production worked by their owners (use aspects
of property) were justified as necessary condition of a free and purposeful life; but when
property gave power not only over things but through things over persons (power aspect of
property) also, it was not justified as it was an instrument of servitude rather than freedom".11

Under article 300A, the right to property is considered to be a mere legal right. The Kerala
High Court in the case of Smt. Elizebath Samuel Aaron vs the State Of Kerala And Ors12
discussed the relevance of compensation and article 300 A of the Constitution.

"The legislative history behind the deletion of Article 31 and the introduction of Article 300-A
eloquently shows that parliament intended to do away with the concept of a just equivalent or
adequate compensation in the matter of deprivation of property, and to provide only a limited
right, namely that no person shall be deprived of his property save by authority of law. In
other words, the limited constitutional protection intended to be continued (not as a
fundamental right) was only that there should be a law authorising and sustaining any
deprivation of property, and that none shall be so deprived by mere executive fiat. Article
300A does not provide for anything more. it does not go further and provide that the law
should provide for compensation and either fix the amount, or at least specify the principles
on which the compensation is to be fixed and given. Evidently, parliament intended to shield
all such legislation for acquisition or requisitioning of property from challenge on any of the
grounds on which they could be challenged as per the various decisions of the Supreme Court

10
Bhat, P. I. (2004) Fundamental Rights: A Study of their interrelationships. Kolkata: Eastern Law House.
11
Pellissery, S. 2014. Land rights as social rights. The case of India. FLOOR Working Paper No. 23. Paper
prepared for the workshop "Understanding Southern Welfare – the B(R)ICS countries", 24–26 November 2014,
Center for Interdisciplinary Research (ZiF), University of Bielefeld, Germany
12
AIR1991KER162

7
on the ground that the compensation was inadequate or illusory or that the principles laid
down for fixing the compensation were irrelevant or irrational. If this were not the intent of
the series of Constitutional amendments, and if this were not achieved thereby, one wonders
why parliament should have under taken all the exercise and effaced Article 31(2) altogether
from the Constitution."13

6. EMINENT DOMAIN AND THE LAND ACQUISITION ACT

One of the most important statute anxious with the exercise of the right of eminent domain in
India was the Land Acquisition Act, 1894. The jurisprudence that has advanced around this
Act has placed simple restrictions on the option to test the power of the State to forcibly
obtain. It sets out what establishes 'public purpose' and it hands over land, 'without burdens',
to the State, to do whatever it wants with it at determination. Though it provides for sum of
just recompense, but calculating the compensation is restricted by a set of arranged factors
which are 'to be considered in decisive compensation'14 and is limited to the marketplace
value of land, further the “spare value is not the standard set by law”. There are also 'matters
to be deserted in determining recompense15 which excludes any reluctance of the person
interested to part with the land acquired, in consideration of compulsory nature of
acquisition.16 It further provides that thirty per cent of the calculated market value is to be
paid, in the nature of solatium. That, in sum and material, is the right of the person against
compulsory acquisition of land.

7. IMPORTANT CASE LAWS

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.

13
Smt. Elizebath Samuel Aaron vs State Of Kerala And Ors, AIR 1991 Ker 162.
14
Section 23 of Land Acquisition Act, 1894
15
Section 24 of Land Acquisition Act, 1894
16
Section 25 of Land Acquisition Act, 1894

8
Project Director, NHAI v. M. Hakeem (2021)17

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)18

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)19

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.

17
AIR 2021 SC 3471
18
[1952]1SCR889
19
[1954] SCR 587

9
Maneka Gandhi v. Union of India (1978)20

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) 21

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.

8. CONCLUSION

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

20
1978 AIR 597
21
2018 SCC ONLINE MAD 847

10
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.

9. REFERENCES

1. Bhattacharyya, D. (2015). History of Eminent Domain in Colonial Thought and Legal

Practice. Economic and Political Weekly, 50(50), 45-53.
2. Sankaranarayanan, G. (2011). The Fading Right to Property in India. Verfassung Und
Recht in Ubersee / Law and Politics in Africa, Asia and Latin America, 44(2), 220-
236.
3. Sampat, P. (2013). Limits to Absolute Power: Eminent Domain and the Right to Land
in India. Economic and Political Weekly, 48(19), 40-52.
4. Gupta, Priya S. The Peculiar Circumstances of Eminent Domain in India. Osgoode
Hall Law Journal 49.3 (2012) : 445-489.
5. India Today, What is 2013 Land Acquisition Act and why social activists filed a
petition against state amendments to the law, December 12, 2018.

11
6. Content Team, 'Doctrine of Eminent Domain' (De Facto Law, 11 September 2019)
[Link]

12