INTRODUCTION

The property of subjects 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 the case of extreme necessity, in which even
private persons have a right over the property of others, but for ends of
public utility, to which ends those who founded 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, said Hugo Grotius, Dutch jurist, in his
work De Jure Belli et Pacis in 1625. Grotius used the term dominium
eminens meaning supreme lordship.
The doctrine of eminent domain means that state is the supreme owner of
properties in its territory and hence is justified in taking away the same for
public purpose after compensating those who possess the same.
This doctrine found application in almost all jurisdictions, however in
different names. The doctrine justifies state acquisition of property in case
of extreme necessity for public utility.

CONCEPT OF EMINENT DOMAIN IN INDIA.

In India, the kings (rulers) could take property from their subjects, even
without payment of compensation in ancient time. Property system in
India was mainly feudalistic. In which a minority holds property and gave
it to tillers for cultivating. When British conquered India, they needed land
for

infrastructural

development,

which

necessitated

compulsory

acquisition of property from people. In independent India also the concept

of eminent domain applies. During the formation of constitution of India
there was a conflict with Jawaharlal Nehru and sardar valabhai patel
regarding the inclusion of right to property as a fundamental right under
Indian constitution. Both Nehru, who is an ardent socialist and patel an
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economic libertarian agreed upon the concept of eminent domain. Which

culminated in the inclusion of Art.19 (1) (f), which made property right a
fundamental right and Art. 31 which provided that no person to be
deprived of his property save by authority of law. And in case of
encroachment on such right for public purpose, compensation should be
paid. Later on articles. 31A, 31B and 31C were inserted through various
amendments. Article. 31 A provides for immunity of laws which provides
for acquisition of estates by state from constitutional challenge under
Article. 14 and 19. Article. 31 B incorporated the 9 th schedule, laws
inserted within which is immune from judicial review on the ground of
violation of fundamental rights. Article. 31 C immunise laws enacted for
giving effect to the directive principles from challenge under Article.14
and 19. With the coming into force of these provisions state governments
started making many laws which takes away property rights and included
them in 9th schedule. Many litigations were come up challenging the same,
which eventually lead to the repeal of Article. 19(1) (f) and Article.31.
Property right was given the status of a constitutional right under Article.
300-A through constitutional (forty-fourth Amendment Act, 1978.
Article. 300-A provides that, No person shall be deprived of his property
save by authority of law. Thus Indian constitutional law as it stands now
incorporates the doctrine of Eminent Domain.
In India the Land Acquisition Act, 1894 empowers the state, as a supreme
land lord, to acquire property of it subjects. Such acquisition should
however for public purpose1 and just compensation should be given. The
power of the government to acquire property is based on its sovereign
power and its duty to pay compensation is based on natural right of the
person dispossessed of the property to be compensated of his loss.2

Case laws
1 Section.3 (f) of Land Acquisition Act, 1894.
2 State of Bihar v. The State Of Bihar v. Maharajadhiraja Sir Kameshwar Prasad,
1952 1 SCR 889.
2

 The

State

Of

Bihar

v.

Maharajadhiraja

Sir

Kameshwar Prasad.3
Petitioner in this case challenged the constitutional validity of The
Bihar Land Reforms Act, 1950, The Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, and Alienated Lands) Act, 1950,
and The Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950. Its been held in this case that the power to acquire property
is a sovereign power of the state. But is compulsorily is a power to
acquire it only for a public purpose. There is no power in the
sovereign to acquire private property in order to give it to private
persons.

M/s. Delhi Airtech Services Pvt. Ltd. & Anr v. State of U.P. &
Anr.4
Its been held in this case that constitution mandates two aspects in
relation to acquisition of property by exercising the power of
eminent domine, vested in the State. Firstly, such acquisition has to
be by the authority of law; in other words, it has to be in accordance
with the law enacted by the competent legislature and not by mere
executive action. Secondly, there has to be a public purpose for
acquisition of land and the person interested in such land would be

entitled to compensation.
Smt. Somavanti and Others v. The State Of Punjab And
Others.5
The expression public purpose, include a purpose in which the
general interest of the community, as opposed to the particular
interest of individuals, is directly and vitally concerned. Public
purpose is bound to vary with the times and the prevailing
conditions in a given locality and, therefore, it would not be a
practical proposition even to attempt a comprehensive definition of

3 1952 1 SCR 889.

4 . https://indiankanoon.org/doc/56073873/ as viewed on 13/11/2016.
5 .1963 AIR 151.
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it. It is because of this that the legislature has left it to the

Government to say what is a public purpose and also to declare the

need of a given and for a public purpose.

New Reviera Co-Op. Housing Society

v.

Special

Land

Acquisition Officer.6
The court held in this case that, even though the right to shelter is a
fundamental right, court will not circumscribe the states power of
eminent domine only because the person from whom the land is
compulsorily acquired is rendered shelter less as it is to serve a

larger public purpose.

State Of Karnataka and Anr Etc v. Shri Ranganatha Reddy &
Anr.7
It was held that decision as to whether the law providing for
acquisition is for public purpose is not to be ascertained from facts
of the case but the statutory intent that is present in statement of
objects and reasons of the act and its preamble. It has to be
examined with reference to various provisions of the Act, its context
and set up.

AMERICAN POSITION
The term condemnation is used to describe the formal act of exercising
this power to transfer title or some lesser interest in the subject
property. The practice of condemnation came to the American colonies
with the common law. The federal governments power of eminent domain
has long been used in the United States to acquire property for public use.
It was held in Boom Co. v. Patterson,8 that Eminent domain ''appertains
to

every

independent

government.

6 .1996 SCC (1) 731.

7 .1978 AIR 215.
8 . 98 U.S. 403, 406 (1879).

It

requires

no

constitutional

recognition; it is an attribute of sovereignty. However the fifth

amendment of United States imposes limitation on the states power of
eminent domine. Fifth Amendment provides that nor shall private
property be taken for public use, without just compensation. Thus in
United States the states power of eminent domine can be exercised only
for public use after giving just compensation. The principle there in
America is that fair market value should be given as compensation. And if
there is a delay in giving the compensation interest for the same should
be given. It is for the judiciary to decide as to compensation rather than
legislature. However the legislature may provide higher amount of
compensation than determined by the courts.

Case Laws

Kohl v. United States.9

This case, in which Supreme Court first examined the federal power
of eminent domain, presented a landowners challenge to the power
of the United States to condemn land in Cincinnati, Ohio for use as a
custom house and post office building. Justice William Strong called
the authority of the federal government to appropriate property for
public uses essential to its independent existence and perpetuity.

United States v. Gettysburg Electric Railroad Company.10

In this case The Congress wanted to acquire land to preserve the
site of the Gettysburg Battlefield in Pennsylvania. The railroad
company who owns a part of the property in question challenged

9 . 91 U.S. 367, 371 (1875).

10 . 160 U.S. 668, 679 (1896).
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this action. The Court opined that the federal government has the
power

to

condemn

property

whenever

it

is

necessary

or

appropriate to use the land in the execution of any of the powers

granted to it by the constitution.

Kirby Forest Industries, Inc. v. United States.11
It was held in this case that Either Congress or a lower court might
perceive a more easily administrable way of ensuring that the
compensation paid to the owner of condemned land does not fall
substantially below the fair market value of the property on the date

of the taking.
Kelo v. City of New London.12
The question involved in this case is the, use of eminent domain to
transfer land from one private owner to another private owner to
further economic development. The Supreme Court decided that
public use could include taking land from one owner and giving it to
another in the name of economic development. Court will not look
into the rationale of taking, if the purpose is legitimate and the

means are not irrational.

City of Oakland v. Oakland Raiders.13
In this case the owners of the Oakland Raiders professional football
team decided to move the franchise to Los Angeles. City of Oakland
filed a suit for condemnation injunction under Californias broad
eminent domain statute. It was held in this case that power to
condemn is an inherent attribute of general government; the court
observes that constitutional provisions merely place limitations upon
its exercise. The two constitutional restraints are that the taking be
for a public use and that just compensation be paid therefore
and

there

is

no difference between intangible property and real property when

11 . 467 U.S. 1, 9-10 (1984).

12 . 545 U.S. 469 (2005).
13 . 220 Ca.Rptr. 153 (1985)
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considering

eminent domain law.

Chicago, Burlington

&

Quincy

Railroad

Co.

v.

City

of

Chicago.14
In this case the Court incorporated the "just compensation"
requirement of the Fifth Amendment into the Due Process clause of
the Fourteenth Amendment and applied that requirement to states.

POSITION IN UNITED KINGDOM

Nobles who were fed up with the abuses by King John, compelled him to
execute Magna Carta(Magna Carta Libertatum, which means the great
charter of the liberties), a document recognising right for both noblemen
and ordinary Englishmen. It established the principle that no one,
including the King or a law maker, is above the law. Chapter 28 of Magna
Carta provides that No constable or other royal official shall take corn or
other movable goods from any man without immediate payment, unless
the seller voluntarily offers postponement of this. Concept of eminent
domain is recognised in England as compulsory purchase power, which is
the right to acquire right over an estate, or to buy that estate outright
without the consent of the owner by paying compensation. The power to
compulsory purchase should be exercised for the public benefit.

Case Laws

Prest v. Secretary of State for Wales15

It was held by lord denning in this case that, I regard it as a
principle of our constitutional law that no citizen is to be deprived of
his land by any public authority against his will, unless it is expressly

14 .166 U.S. 226 (1897).

15 . (1982) 81 LGR 193.
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authorised by Parliament and the public interest decisively so

demands.
R (Sainsbury's Supermarket Ltd) v Wolverhampton City Coun
cil.16
It was held that the purchase of property against the will of the
owner is subject to payment of compensation, which is the
conversion of real property into money.

CONCLUSION
It is clear from the above discussion that the concept of eminent
domain is an accepted principle all over the world. State, in order to
effectively function their role, needs the power to acquire property
from its subject. However if the state is given absolute authority for
acquiring property it will, no doubt, result in chaos. Thus certain
safeguards

such

as

public

purpose,

fair

compensation

are

recognised by all nations. Larger public utility justifies this power in

the hands of states.

BIBLIOGRAPHY
The Economics of Eminent Domain: Private Property, Public Use, and
Just Compensation, by Thomas J. Miceli and Kathleen Segerson, Now

Publishers Inc, 2007.

https://www.bl.uk/magna-carta/articles/magna-carta-englishtranslation
https://indiankanoon.org/
https://supreme.justia.com/

16 . [2011] EWHC 2856.

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