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Doctrine of Eminent Domain

Updated: Feb 24

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1) Eminent Domain: Meaning

The primary owner of land is the king or in modern sense the elected Government in power. As such the right of ownership will always remain with the king or the elected government, notwithstanding the fact that land is transferred to individual citizens for agricultural or other purposes by the king or the government as the case may be.

The institution of private property has been a controversial topic with conflicting views, one completely denying the right to own private property and the other supporting the holding of the private property.

Doctrine of ‘Eminent domain’, in its general connotation means the supreme power of the king or the government under which property of any person can be taken over in the interest of general public. However, over the years such taking over the property by the king or the government has been made possible only after compensating the land owner of such property.

Thus eminent domain explained as the power of the king or the government to take over the property of a private person when it is needed for a public purpose. Doctrine of ‘eminent domain’ is based on two maxims namely,

  1. salus populi supreme lex esto which means that the welfare of the people is the paramount law.

  2. necessita public major est quan, which means that public necessity is greater than the private necessity.

Eminent Domain is power of the sovereign to acquire property of an individual for public use without the necessity of his consent. This power is based on sovereignty of the State. Payment of just compensation to the owner of the land which is acquired is part of exercise of this power. Eminent domain power is regarded as an inherent power of the State to take private property for public purpose. This power depends on the superior domain of the State over all the property within its boundaries. An incidental limitation of this power is that the property shall not be taken without just compensation.

2)Eminent Domain And Constitution

The expression “eminent domain” means permanent (eminent) dominion (domain) of the state on the property. The power of the State to take private property for public use and consequent right of the owner to compensate now emerge from the constitution of India.

The Constitution of India also recognizes the power of eminent domain. However, this power of the state has been in limelight, more for the mischief that it is allegedly imputed to bring about. Soon after Independence, the Supreme Court was charged with judging the constitutionality of certain laws, which were intended to abolish the feudal zamindari (landowning) system

In entry 42 list III of seventh schedule under Indian Constitution, both union and States government are empowered to enact laws relating to acquisition of property.6 The use of eminent domain power for land acquisition is also justified when the public purpose in question can be served by only a specific piece of land, which has no substitute

Acquisition or taking possession of private property which is implied in clause (2) of Article 31 of Indian Constitution, such taking must be for public purpose. The other condition is that no property can be taken, unless the law authorizes such appropriation contains a provision for payment of compensation in the manner as laid down in the clause.

3)Limit on the Doctrine

The power of eminent domain was under the scrutiny of the Court. In explaining the power, the Court held that eminent domain was “the power of the sovereign to take property for public use without the owner’s consent”.

Meaning is that the power in its irreducible terms i.e.,

  1. power to take,

  2. without the owner's consent, and

  3. for the public use.

The reference to the 'sovereign ’ was a portent of one of the problem is that it has dogged the existence and uses of the eminent domain power, that is, the relationship between the state and the people. The power to take and the unqualified nature of 'public use', has made dispossession and mass displacement of people.

The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy District, has articulated the following grounds for review of this power:

  1. malafide exercise of power;

  2. a public purpose that is only apparently a public purpose but in reality a private purpose or collateral purpose;

  3. an acquisition without following the procedure under the Act;

  4. when the acquisition is unreasonable or irrational;

  5. when the acquisition is not a public purpose at all and the fraud on the statute is apparent

Although the power to determine what constitutes public purpose is primarily with government, Courts have powers to review such decisions. In practice, however, the Courts have generally placed limitation on themselves.

  1. Compensation for the property acquired.

  2. The interest of the community is always superior to the interest of the individual.

4)Article 300-A and the Doctrine of Eminent Domain

Article 300-A which merely says, “No person shall be deprived of his property save by authority of law”. Hence, the rights in property can be curtailed, abridged or modified by the State only by exercising its legislative power. An executive order depriving a person of his property without being backed by a law is not constitutionally valid.

In addition to that, to say valid it must satisfy the following three tests:

(i) The authority which has enacted the law must have the legislative competency to do so;

(ii) It must not infringe upon any other fundamental right guaranteed by part III of the Constitution; and

(iii) It must not violate any other provision of the Constitution.

In Basantibai v. State of Maharashtra the Court did seek to interpret the Article 300-A favourably to the property owners by reading therein the twin requirements of ‘public purpose’ and ‘compensation’. Under Article 300-A the legislature cannot sanction the deprivation of property for a public purpose. However, the Parliament not intended to confer an absolute right on the legislature to deprive a citizen of his property merely by the passing of a black-letter law.

5)Distinction between Eminent Domain Power & Police Power

In Chiranjit Lal v. Union of India, Supreme Court held that the eminent domain is the inherent right in every sovereign State to take and appropriate the private property belonging to an individual for public purpose. The State under its police power also regulates the use and enjoyment of private property.

The police power can, however, be distinguished from eminent domain power. While under police power, State merely regulates the use and enjoyment of property; under the eminent domain, State can take the property from the owner for public use.

Notwithstanding this all pervasive nature of police power is that exercise of police power restricted only to maintenance of law and order situation. In as much as police is only an assisting machinery. This power seems to be synonymous with the power of eminent domain.

However there is vital difference between these two powers.

  1. Eminent domain is a sovereign power exercised subject to public convenience, with the ultimate object of meeting public welfare and public purposes and where as the police power is exercised to ensure, interalia that the law and order is enforced to protect property right, to achieve public purpose etc.,

  2. Eminent domain power is unopposed authority subject to payment of compensation to the person interested and whereas the police power is subject to scraping of the executive and judicial wing of the government.

  3. Eminent domain power originates out of the constitutional provisions and whereas the police power originates out of legal provisions, which shall not be contrary to constitutional provisions.

  4. Exercise of eminent domain power operates sometimes harshly and unequally and requires special sacrifices from the persons interested whereas such a situation does not arise while operating police power.

  5. Exercise of the power of eminent domain deprives the right in the property, and whereas exercise of the police power provides security to the person and property

6)Distinction Between Power of Taxation vis-à-vis Power of Eminent Domain

Powers of taxation and right of eminent domain have much in common. Both are inherent powers in any government and sometime both operate on property. Besides this, both are generally asserted for public use and benefit. It is, therefore, not surprising that both cases confused with each other.

Nevertheless, there is a clear line of demarcation between these two powers. In Laxmanappa Hanumantappa v. Union of India, it was held that deprivation of property by imposition or collection of tax does not amount to acquisition or requisition of property under Article 31(2), which has been deleted by the Constitution (forty fourth amendment) Act, 1978.

In Chemili Singh v. Slate of U.P., it has been held that compulsory acquisition of land for providing houses to dalits cannot be challenged on the ground of violation of right to livelihood which is an integral part of right to life under Article 21.

The following are some of the differences between the power of imposing taxes and power of eminent domain.

  1. The power of taxation is not exercisable in respect of certain transactions of the society whose income is below the level of imposing taxes, whereas such exclusion is not, while exercising the power of eminent domain.

  2. The power of taxation of the State is legal power and whereas the power of eminent domain is an inherent power of the State.

  3. Taxation power is exercised to impose and collect taxes and whereas the power of eminent domain is exercised to acquire and hold immovable property of persons for public purposes which is a question of fact in each case.

  4. While exercising the power of taxation the State need not pay any compensation to the person connected instead of that citizen has to pay taxes to the State and whereas in case of power of eminent domain, the State is under an obligation to pay compensation to the person interested.

  5. The power of taxation can be exercised against any property, movable or immovable, whereas, the power of eminent domain can be exercised generally

Questions on Eminent Domain in UPSC law optional:

  1. What do you understand by the tenn ‘Eminent Domain’? Discuss its relevance in the present-day context.

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