CHAPTER-I

Constitutional Provisions

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Constitutional Provisions

Introduction

In India, the Right to Property has evolved significantly reflecting the changing socio-
economic and political landscape of the nation. The Right to Property is a legal and
constitutional principle that pertains to the ownership, use, and protection of property. It
facilitates individuals and entities in enjoying their property without any unreasonable
interference. Now the question is whether the „right to property‟ is a fundamental right or not.
Since 1950, when the Indian Constitution came into force, the right to property has been
defined as a fundamental right under Article 31 and Article 19(1)(f). After the 44th
amendment of the Constitution of India in 1978, Article 300A was introduced and Articles 31
and 19(1)(f) were repealed.

Article 300A of the Indian Constitution

Article 300A of the Indian Constitution states that “No person shall be deprived of his
property save by authority of law.” This means the government cannot arbitrarily deprive a
person of their property without the backing of a valid law. As a result, the „right to property‟
is now categorized as a constitutional right, which means it is protected by law but does not
enjoy the same status as fundamental rights such as the Right to Freedom or the Right to
Equality. The legal status of the „right to property‟ was changed therefore, people were not
allowed to approach the Supreme Court under Article 32 of the Constitution of India. The top
court in the Jilubhai Nanbhai Khachar vs. State of Gujarat (July 20, 1994) case, held that
“Right to property under Art, 300A is not a basic feature or structure of the Constitution. It is
only a constitutional right.”

the government Can acquire property under Article 300A.

Yes, the government can acquire property under Article 300A, but such acquisition must
comply with the law. Article 300A does not prevent the government from acquiring property;
rather, it ensures that such acquisitions are carried out following the law. The process of

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property acquisition by the government is governed by various laws, including the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement
Act, 2013. This law stipulates that the government must follow due process, provide fair
compensation, and adhere to prescribed procedures while acquiring property for public
purposes. Therefore, while Article 300A protects property from arbitrary deprivation, it does
not preclude the government from exercising its powers of acquisition as long as it follows
legal norms. The Supreme Court of India in the Kolkata Municipal Corporation & Anr. vs.
Bimal Kumar Shah & Ors. (May 16, 2024) judgment said, “Prescription of the necessary
procedures, before depriving a person of his property is an integral part of the „authority of
law‟, under Article 300A.” Moreover, the bench constituting Justice PS Narasimha and
Justice Aravind Kumar illustrates 7 sub-rights to be adhered to by the government while
dealing with matters related to Article 300A of the Indian Constitution. These include:

 “The Right to Notice: The duty of the State to inform the person that it intends to
acquire his property
 The Right to be Heard: The duty of the State to hear objections to the acquisition
 The Right to a Reasoned Decision: The duty of the State to inform the person of its
decision to acquire
 The Duty to Acquire only for Public Purpose: The duty of the State to demonstrate
that the acquisition is for public purpose
 The Right of Restitution or Fair Compensation: The duty of the State to restitute and
rehabilitate
 The Right to an Efficient and Expeditious Process: The duty of the State to conduct
the process of acquisition efficiently and within prescribed timelines of the
proceedings
 The Right of Conclusion: Final conclusion of the proceedings leading to vesting.”

compensation for property acquired under Article 300A?

Article 300A of the Constitution of India itself does not detail the compensation procedure but
the same is done by various laws and regulations. The primary legislation governing
compensation for property acquisition is the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (LARR Act). The primary aim

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of this act is “to ensure, in consultation with institutions of local self-government and Gram
Sabhas established under the Constitution, a humane, participative, informed and transparent
process for land acquisition for industrialization, development of essential infrastructural
facilities and urbanization with the least disturbance to the owners of the land and other
affected families and provide just and fair compensation to the affected families whose land
has been acquired or proposed to be acquired or are affected by such acquisition and make
adequate provisions for such affected persons for their rehabilitation and resettlement and for
ensuring that the cumulative outcome of compulsory acquisition should be that affected
persons become partners in development leading to an improvement in their post-acquisition
social and economic status and for matters connected therewith or incidental thereto.” The
Act mandates that compensation should be calculated based on various factors such as the
market value of the land, the cost of any structures on it, and the impact on the livelihood of
those displaced. Additionally, it provides for various entitlements to affected persons, such as
rehabilitation and resettlement assistance, to ensure that the displacement caused by
acquisition is managed effectively.

exceptions to the Right to Property under Article 300A?

Article 300A of the Indian Constitution provides a legal „right to property,‟ ensuring that no
individual can be deprived of their property except by authority of law. However, this right is
not absolute and is subject to certain exceptions and limitations. One such exception is that
the government has the power of eminent domain which allows it to acquire property for
public purposes such as urban developments, infrastructure projects, etc. that are beneficial
for the community. This must be done by following an appropriate procedure and providing
fair compensation to the owners.

Conclusion

Article 300A of the Indian Constitution provides for the „right to property‟, ensuring that no
person is deprived of their property without legal authority. Although it does not confer the
right to property as a fundamental right, it establishes that any deprivation must follow legal
procedures and be accompanied by fair compensation.

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Agrarian Reforms Art. (31 A, B, C)

Property belonging to any person can not be acquired From any person, until there is an
authority of law and if it has been taken into possession, then compensation will be provided,
says Article 31 which went through a lot of amendments before it was annulled along
with Article 19(1)(g). Article 19(1)(g) gave the right to property, however, restrictions can be
imposed in the matter of public interest.

Constitution 44th Amendment Act, 1978

One of the most vexed rights is the right to poverty. This right was given by the constitution
in order to let the people enjoy their property in a smooth manner. But Article 31 enabled the
government to take away the property when there lies a legal authority. Also, the term
compensation provided in Article 31(2) was very arbitrary as there was no adjective given to
it and it gave authority to the government to decide the amount.

To end up all kinds of debate regarding this right, the 44th amendment knocked on the door.
By this amendment article 19(1)(g) and Article 31 was repealed and Article 31(1) was moved
to Article 300A in the IX Schedule.

The Doctrine of Eminent Domain and Right to Property

The Doctrine of Eminent Domain, a concept taken from America, allows the sovereign to
capture any private land and make it a public land that may benefit the public at large. The
need is to just give compensation for it and this was done without taking into account the
owner‟s opinion.

Let‟s put it this way, Manish owns private land in Madras and the government of Madras
takes away his land without his consent and in return gives him a monetary compensation
which is less than the market value which he would have got, if he had sold it.

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The Acquisition of Estates, etc: Art. 31A

Let us talk about the emergence of article 31(1) which contains 5 sub-clauses. During pre-
independence time, the zamindari system was prevalent. This system made the zamindars
very wealthy with a large number of landholdings whereas, the peasants were left in
financially deteriorating conditions. Congress in power, decided to abolish it by taking the
property from the zamindars and giving it to poor people but the dilemma before them was to
provide compensation because of the arbitrariness of the term “compensation” given in
Article 31(2)( as mentioned before in this article).

Thereafter, this motion was taken back by the government and Article 31A inserted in the
Indian constitution by the First Amendment, in the year 1951.

This law in its 5 clauses states that any law,

 made regarding the acquisition of any estate or right by the government or

management of any property, or

 creates a merger of any two or more companies

 receives the benefit of any agreement or lease or license;

will not be void or null until it has received the assent of the President.

Ambika Mishra v. the State of U.P.

Uttar Pradesh government put a ceiling on a large number of permissible landholdings under
the Land Holdings Act, 1960.

Also under Section 3(17) of the land acquisition act, only the „male‟ was considered as the
landholder and owner whereas „unmarried female‟ or „woman whose husband is the
landowner‟, wasn‟t considered as the owner of the land. Apart from the acquisition part, many
people have also looked at this discriminatory side of the Act.

The court upheld the constitutional validity of Article 31(1)(a).

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Validation of certain Acts and Regulations: Art. 31B

After the introduction of Article 31A in the Constitution, many problems arising out of the
violation of fundamental rights contained in Part III of the Constitution were eradicated.

Article 31B states that the acts which are present in the ninth schedule and are inconsistent
with the provisions laid down by the constitution or resist any decree or order will be left on
the competent legislature to amend, revoke or to let it be in force. Anything contained in this
Article does not undermine any provision contained in Article 31A.

Article 31B did not allow the government to make provisions blatantly against the provisions
of the constitution but only which were fair with the provision of the constitution and which
are inconsistent should be made void. This article stood as a shield for the laws contained in
the Ninth Schedule as it makes certain that no question arises on any law contained in that
schedule.

Suppose there is an Act, call it XYZ, which is not included in the ninth schedule and as a
result, it can be made void but gradually it gets included in the ninth schedule, then, it will
come under the blanket protection of Article 31B. This is what the retrospective effect is all
about, which this Article carries with itself.

Saving of laws giving effect to certain directive principles: Art. 31C

Back in the year 1971, the 25th amendment showed its face. From this amendment, Article
31C set its foot in. Previous articles were concerned with fundamental rights but this Article
talks about the DPSP, the rights contained in Part IV of the Constitution. It says that any law
made by the state that secures the rights contained in Part IV of the constitution can not be
declared void or challenged on the grounds of Article 14, Article 19 or Article 31.

Putting it the other way, it was basically kept out of the judicial review.

It also stated that if such law is made by the legislature or state, then that law should be sent
for the assent of the president. Now, in any case, the president certifies the law by giving his

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assent and the law is passed which is still violating Article 14, 19, and 31, in that case, we are
left with nothing as an option because it is secured from any kind of judicial perusal.

Under this article, no law which gives effect to the provisions contained in Article
39B and Article 39C can be challenged under Article 14, Article 19, or Article 31.

Conclusion

“Amend your procedures and your doings, to improve in the future”.

Well, this is what our constitution believes. From the very 1st Amendment in 1951 to the
124th Amendment in 2019, the Constitution has been amending its way to the doorway of
betterment. It wasn‟t all sunshine and rain, in fact, it had its own thunderstorm.

The property right turned out to be the most controversial right with lots of reforms and
criticism along with it. With Article 31, 19(1)(g) and Article 31C being stated as
unconstitutional and its second part been shifted to Article 300A for making the fundamental
right only a constitutional right, the property law kept diminishing.

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First Amendment Act 1951

The Constitution (First Amendment) Act, 1951 is the official name of the
amendment. Jawaharlal Nehru, who was India‟s prime minister at the time, made the motion
on May 10 of that year, and Parliament passed it on June 18 of the same year.

This Amendment established a precedent for rewriting the Constitution to override judicial
decisions that prevented the government from carrying out its alleged obligations to specific
policies and programs.

The 1951 First Amendment Act amended the Fundamental Rights clauses of the Indian
Constitution in several ways.

It gave ways to limit freedom of speech and expression, supported measures to abolish
zamindari, and made it clear that the right to equality does not preclude passing laws that give
“particular consideration” to society‟s most vulnerable groups.

The Statement of Reasons (SOR) relating to the First Amendment said: “Challenges to
agrarian laws or laws relating to land reform were pending in courts and were holding up
large schemes of land legislation through dilatory and wasteful litigation.”

 The First Amendment Act amended articles 15, 19, 85, 87, 174, 176, 341, 342, 372, and
376.
 It also provided for the saving of laws providing for the acquisition of estates.
 Added three more grounds of restrictions on freedom of speech and expression order,
friendly relations with foreign states, and incitement to an offense. Also, it made the
restrictions „reasonable‟ and thus, justiciable.
 Provided that state trading and nationalization of any trade or business by the state is
not to be invalid on the ground of violation of the right to trade or business.
 It added the Ninth Schedule to protect the land reforms and other laws included in it
from judicial review.

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  Articles 31A and 31B were inserted after Article 31.

Major modifications

The primary objective of the First Amendment Act was to address certain legal and
constitutional challenges that arose in the early years of the Republic of India. It aimed to
modify specific provisions of the Constitution to overcome legal hurdles and better align with
the evolving needs of the nation.

1. Land Reform and Right to Property:

 One of the significant changes introduced by the First Amendment Act was
related to the right to property. Article 19(1)(f) and Article 31 of the Constitution,
which dealt with the right to acquire, hold, and dispose of property, were
amended. The amendment aimed at providing the government with the authority
to impose reasonable restrictions on the right to property for land reform and the
acquisition of property for public welfare.

2. Freedom of Speech and Expression:

 The First Amendment Act also made changes to Article 19(2), which deals with
reasonable restrictions on the freedom of speech and expression. The amendment
aimed at clarifying and broadening the scope of permissible restrictions on free
speech to include matters related to public order, security of the state, and
relations with foreign countries.
Special Provisions for Advancement of Scheduled Castes and Scheduled Tribes:
 The amendment inserted Article 15(4) and Article 16(4) to provide for special
provisions for the advancement of socially and educationally backward classes,
including Scheduled Castes and Scheduled Tribes. These provisions allowed the
government to make reservations in educational institutions and public
employment to promote the interests of these communities.

4. Validation of Certain Acts and Regulations:

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  The First Amendment Act included a provision (Article 31A) to validate certain
laws related to land reform and the abolition of zamindari systems, even if they
infringed upon property rights. This was done to shield such laws from legal
challenges.
Power of the State to Make Special Provisions:
 The amendment also added Article 46, which directs the state to promote with
special care the educational and economic interests of Scheduled Castes,
Scheduled Tribes, and other weaker sections of the society.

Fourth Amendment Act, 1955 of Indian Constitution

In the year of 1955, an amendment was made to Indian constitution to modify
several provisions of the constitution. Basically in the original text of proposal there
were a presence of some inconsistencies and ambiguities which were being
eliminated by this Fourth Amendment Act, 1955. So, this amendment act introduced
some various number of proposals to modify some of the provisions of the
Constitution of India. So this was a significant amendment to the Indian Constitution
that was passed by the Indian Parliament to address certain challenges faced by the
government of India and corresponding State governments in implementing land
reformations and acquiring estates of the zamindars.

This amendment added several provisions to the Constitution of India, including

“Article 31A” and “Article 31B”, which were provided for the protection of laws
related to the acquisition of estates and the payment of compensation for such
acquisitions. It also weakened the protection of property rights in India and increased
the role and power of the executives in the appointment process of judges and other
judicial officials, which has been subject to various criticisms. Despite these
criticisms, the Fourth Amendment Act had a significant impact on the
implementation of land reformation policies and the redistribution of land to the
landless peasants and its legacy continues to be debated in India today also.

Some Key Proposals of this Fourth Amendment Act

1. Amendment of Article 31: This Fourth Amendment Act, 1955, amended the “Article
31” of the Indian Constitution. It is amended to deal with property rights. This

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 amendment removed the fundamental right over the property and made it as a legal
right.
2. Insertion of Article 31A: This amendment act inserted “Article 31A” into the Indian
Constitution. This was provided to give the protection of laws related to the acquisition
of estates and the payment of compensation for such acquisitions.
3. Insertion of Article 31B: This amendment act also inserted “Article 31B” into the Indian
Constitution. This was provided to validate the certain laws related to land reforms that
had been enacted by various state governments of India.
4. Amendment of Article 39(b): This amendment act amended “Article 39(b)” of the
Indian Constitution. This was introduced to deal with the directive principles of state
policies. The amendment added a new clause that the state governments were required
to ensure that any operation to the economic system must not result in the concentration
of wealth and resources to the common detriment.
5. Amendment of Article 74: This amendment act also amended “Article 74” of the Indian
Constitution to deal with the council of ministers. This amendment increased the role
and power of the executives in the appointment of judges and other judicial officials.
6. Insertion of Article 368(3): This amendment act also inserted “Article 368(3)” into the
Indian Constitution to provide the power that a constitutional amendment could not be
challenged by anyone on the grounds that it violated any of the fundamental rights
guaranteed by the Constitution of India.
Criticism of the Fourth Amendment Act
The Fourth Amendment Act, 1955, had been subject to various criticisms over the years
from its amendment. One of the main criticisms of this act is that it weakened the protection
of property rights of the owners in India. The amendment removed the right to property as a
fundamental right and made it a legal right i.e. the state governments could acquire
properties without having to pay adequate compensation.

Another important criticism of this act is that it violated the basic principles of democracy.
The amendment increased the role and power of the executives in the appointment of judges
and other judicial officials, which decreases the independence of the judiciary.

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Also the insertion of “Article 31A” and “Article 31B” that were provided for the protection
of laws related to land reforms and the validation of certain state laws related to land
reforms, had also been criticized. Critics made an argument that these provisions enabled
the state governments to acquire property at a very lower rate of compensation than the
running market value and to provide for the payments of compensation in the form of bonds
or annuities that deprived landowners of their right to adequate compensation.

Finally, the amendment had been criticized for its contrast impact on the rights of
marginalized communities. Critics made an argument that the amendment enabled the state
to acquire land from marginalized communities without giving them adequate
compensations and without proper consultation with the affected communities. It violated
their rights to properties and their rights to participate in decision-making processes.

Impact of the Fourth Amendment Act

There are several impacts of this act on the Constitution of India and India‟s socio-
economical and political landscape which are discussed below–>

1. Weakening of property rights: This amendment removed the rights to properties as a

fundamental right and made it a legal right i.e. it weakened the protection of property
rights in India.
2. Implementation of land reforms: The addition of “Article 31A” and “Article 31B”
provided to the protect the laws related to land reforms and the validation of certain state
laws related to land reformations, which paved the way for the implementation of land
reforms and the redistribution of land to the landless peasants of India.
3. Increased role of the executive: The amendment increased the role and power of the
executives in the appointment process of judges and other judicial officials, which
decreased the independence of the judiciary.
4. Strengthening of directive principles of state policy: The amendment added a new clause
to Article 39(b) of the Constitution of India, which required the state governments to
ensure that any type of operation to the economic system did not result in the
concentration of wealth and resources to the common detriment.

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17th Amendment Of Indian Constitution

On 20 June 1964, the seventeenth amendment came into effect. When this amendment was
passed, Jawaharlal Nehru was the prime minister. This modification was passed in the
Fifteenth Year year of the Republic of India. This constitutional amendment modifies article
31A and schedule 9 of the Indian Constitution.

Amended Article 31A to state that the government must give compensation equal to the
market value before acquiring any land used for personal cultivation.

The Ninth Schedule has been modified. In addition, 44 state legislation dealing with land
issues were added.

The term “estate” has been defined variously in several States. In addition, as a result of the
transfer of land resulting from the reorganization of States, the term has also come to be
defined differently in various regions within the same State.

Important Provisions In 17th Amendment Of Indian Constitution

(i)After the current proviso in clause (1), the following proviso should be added, specifically:-

“Provided further that where any law makes any constitutional provision for the State to
acquire any estate and any area included therein is held by a person engaged in personal
cultivation, it shall not be lawful for the State to acquire any portion of such area as is within
the ceiling limit applicable to him under any law currently in force or any building or
structure standing thereon or appurtenant thereto unless the law governing the purchase of

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such land, building, or construction provides for payment of compensation at a rate that shall
not be less than the market worth thereof.

(ii) The following sub-clause shall be substituted for sub-clause (a) in clause (2) and shall be
deemed to have always been substituted, namely:-

(a)The term “estate” shall have the same meaning as that term or its local equivalent has in the
applicable law related to land tenures in any local region, and shall also include the following:

(i) any jagir, inam, muafi, or other grant of a like nature, as well as any janmam right in the
states of Kerla and Madras;

(ii)every piece of land under Ryotwari village;

(iii) any area owned or leased for agricultural uses or those related thereto, including waste
land, forest land, land for pasture, or locations for buildings and other structures occupied by
cultivators of land, agricultural labourers, and village artisans;”

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Doctrine of Eminent Domain

Eminent domain is a legal principle that allows governments to take private property for
public use, also known as forced acquisition or expropriation. This principle highlights the
balance between promoting societal welfare and protecting private property rights. The
historical background, legal foundations, ethical implications, and practical application of
eminent domain have been the subject of intense scholarly and public debate. Governments
can only acquire private lands if it is reasonably shown that the property is to be used for
public purposes only. The central government, the state government, and local governments
can seize people‟s homes under eminent domain laws as long as the property owner is
compensated at fair market value. The government can only exercise this power if it provides
just compensation to the property owners. 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.

Background of the doctrine of eminent domain

The origin of the doctrine of eminent domain dates back to ancient civilisations, where rulers
wielded authority to acquire land for public purposes like infrastructure and project
development. The contemporary idea of eminent domain stems from English common law,
where the Crown‟s power to acquire private property for the greater good was established.
Gradually, this idea transformed into a more systematic legal framework, encompassing
restitution to safeguard landowners from unjust expropriation. The historical context, legal
underpinnings, ethical considerations, and real-world implementation of eminent domain have
sparked discussions both within academic circles and with the general public.

What is eminent domain

The Doctrine of Eminent domain is a legal doctrine that gives the government authority and
empowers it to acquire private property for public use, having regard to the fact that the
landowners are fairly and proportionately compensated. The provision related to the doctrine

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is enshrined under Article 300A of the Constitution of India, which provides that the state
cannot take individual property except by legal authority.

The „doctrine of eminent domain‟ has evolved in the English common law. The source of
eminent domain and the power to acquire private property for the public‟s welfare is the
sovereignty of the state. The concept has been modified in India to match its legal system and
socioeconomic needs.

The Scope of term “Public Use”

This has been one of the most debated issues. What constitutes the „Public Use/Purpose‟ has
nowhere been defined. This is one of the most critical aspects of eminent domain. This
expression has traditionally been attributed to public-benefit projects such as roads, bridges,
schools, hospitals, and public utilities. 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.

Legal foundations of the doctrine of eminent domain

In various legal systems, the power of eminent domain is derived from the constitutional
framework or special legislation. In India, for example, this authority is essentially derived
from the Indian Constitution (Article 31A) and the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR
Act 2013).

Statutes

The procedure for exercising eminent domain in India is governed primarily by two statutes:

 Land Acquisition Act, 1894

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For many years, the Land Acquisition Act, 1894 continued to govern land acquisition
procedures in India. Under the provisions of the Act, the government was empowered to
acquire private land for public uses/purposes, including infrastructure development, urban
development, industrial growth, and other uses deemed necessary for the public good. At the
same time, this act faced criticism due to deficiencies, arguably for inadequate compensation
and a lack of attention to rehabilitating and resettling individuals adversely affected by such
actions. Consequently, this backlash prompted the repeal of the Act and the implementation of
the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act of 2013. The new act was enacted with the aim of ensuring fair
compensation for individuals impacted by land acquisition.

 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 (RFCTLARR Act)
Pursuant to the criticism of the previous act of 1894, the Government of India enacted the
RFCTLARR Act in 2013. The new Act had a dual objective:- rectifying the deficiencies in
the previous Act and simultaneously effecting substantial changes in the land acquisition
process. The RFCTLARR Act underlines a commitment to the welfare of landowners and
families affected by the process, ensuring fairness through just compensation, comprehensive
rehabilitation, and active involvement of impacted stakeholders in the decision-making
process.

The LARR Act attempted to strike a balance between the government‟s demand for land
acquisition for development projects and the rights of landowners and impacted communities.
Some key features of the LARR Act are discussed below:

1. Public Purpose: The land must be acquired for a public purpose/ use, such as
infrastructure development, industrialisation, urbanisation, etc.

2. Social Impact Assessment (SIA): Before land acquisition can take place, the LARR
Act prescribes for getting the approval of a certain percentage of landowners
(depending on the type of project). It also requires a Social Impact Assessment to

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 be done prior to the acquisition to assess the probable impact of the acquisition on
the impacted families and communities.

3. Compensation: The Act provides explicit guidelines for the

appropriate compensation amount, which must be fair and just. It consists of
various elements, including market value, the value of assets tied to the land, and
rehabilitation and relocation processes for impacted families such as those who
have been displaced.

4. Rehabilitation and Resettlement: The current Act prioritises the rehabilitation and
resettlement of displaced families by providing them with improved living
conditions and employment prospopportunitites.

5. Review of past cases: The Act also introduced provisions for reviewing and
reassessing land acquisition cases conducted under the older Land Acquisition Act,
of 1894 to ensure that the affected parties receive fair compensation and
rehabilitation benefits.
In spite of the introduction of the 2013 LARR Act, hurdles and concerns persist in the
utilisation of eminent domain in India. A couple of the challenges are as follows:

 The challenge of accurately identifying displaced landowners who needs

rehabilitation and relocation

 Delays occurring in the land acquisition process

 Complications arising from issues linked to land ownership documents

In an endeavour to tackle some of these challenges, the government proposed amending the
LARR Act in 2015. However, these proposed amendments encountered criticism and
ultimately failed to be enacted. The LARR Act holds important legal authority in India,
governing both land acquisition and the use of the doctrine of eminent domain.

Elements of the 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

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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 compnesation 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
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.

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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.

Constitutional provision surrounding the doctrine of eminent domain

The Indian Constitution safeguards the doctrine of eminent domain and enforces specific
regulations to ensure its just and equitable application for the welfare of the people. The
relevant constitutional provisions pertaining to eminent domain in India can be summarised as
follows:

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Article 31A of the Constitution

Although no longer in force, this provision granted immunity to specific laws from being
contravened on the grounds of infringing upon fundamental rights. This provision
encompassed subjects related to land reform and acquisition, and their immunity was intended
to streamline the implementation of the doctrine of eminent domain.

Article 19(1)(f) of the Constitution

This article of the Fundamental Rights section safeguarded citizens‟ rights to possess, acquire,
and dispose of property. However, Article 19(1)(f) is now repealed.

Article 300A of the Constitution

This article distinctly addresses the right to property, and states that property cannot be seized
from an individual except through lawful authority. This means that the government can only
acquire private property through a legally valid process, adhering to relevant laws, and
providing just and equitable compensation.

Article 31 of the Constitution

Despite its abolition in 1978, this Article contained provisions related to compensation for
property taken over or requisitioned by the government. Following its abolition, the right to
property is no longer a fundamental right but remains a constitutional right under Article
300A.

Directive Principles of State Policy (DPSP)

The DPSP, enshrined within Part IV of the Indian Constitution, provides guiding principles
for making laws and policies. Notably, Article 39(b) and (c) of the DPSP are particularly
relevant to the eminent domain, as they stress the necessity to ensure a balanced allocation of

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resources for the greater public good and to curb the aggregation of wealth and productive
resources to the detriment of the public interest.

These constitutional provisions are designed to ensure that the exercise of eminent domain
remains impartial and just, safeguarding property owners‟ rights while simultaneously
advancing the collective welfare.

Importance of the doctrine of eminent domain

The doctrine of eminent domain is important due to various reasons namely – promoting
Infrastructure development, urban planning, national security, economic growth, etc. These
are elaborated below:

 Infrastructure Development: The State governments, while exercising the eminent

domain can acquire properties needed for infrastructure developments such as
roads, bridges, railways, airports, schools, hospitals, and other such utilities.

 Public Welfare and Services: The doctrine empowers the government to act in the
public good. This includes endeavours in the field of education, healthcare, disaster
management, environmental conservation, and other areas that benefit society as a
whole.

 Economic Growth and Development: Eminent domain contributes significantly to

economic growth by permitting large-scale development initiatives. It promotes
investment, job development, and enhanced access to resources, which in turn
increase economic activity and prosperity.

 Ensuring Fair Compensation: It emphasises the importance of compensating the

landowners whose lands are acquired. This ensures that impacted persons are fairly
compensated for the loss of their property in possession.

 Balancing Individual Rights and Common Good: Individual property rights should
not hamper societal well-being. It provides a method for balancing individual
interests with the public‟s collective interests.

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  National Security: The doctrine is crucial in safeguarding strategic places and
resources for national security, defence, and emergency response.
Despite its importance, the idea of eminent domain should be used with caution and subject to
appropriate checks and balances. To protect property owners‟ rights and guarantee that the
public interest is truly served, governments should adhere to the principles of transparency,
due process, and fair compensation.

Limitation of the doctrine of eminent domain

The doctrine is subject to some limitations in India so as to protect the rights of the individual
and prevent abuse. These restrictions find place and have been defined in the Land
Acquisition, Rehabilitation, and Resettlement Act of 2013 (LARR Act) and some important
court judgements, which have been discussed in the later part of this article. Here are some
key limitations of the doctrine of eminent domain in India:

Public purpose

Eminent domain can only be used to acquire land for “public purpose.” The LARR Act
broadens the definition of public purpose to encompass initiatives related to national security,
infrastructure development, industrialisation, and urbanisation. However, the courts have
narrowly defined the phrase to ensure that it is not misused for private or commercial
purposes instead of public use.

Social Impact Assessment (SIA)

The LARR Act mandatorily requires the consent of 80% of affected families for private
projects and 70% for public-private partnership projects. Apart from that, a Social Influence
Assessment must also be completed to assess the project‟s influence on the impacted families
and communities.

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Just compensation and rehabilitation

The Act mandates that the impacted families be compensated fairly for their property, such as
land and other assets. Compensation must be assessed using market rates and the possible
future value of the land. Furthermore, displaced families must be provided with rehabilitation
and relocation measures, including housing and livelihood facilities.

Limits on multi-crop land acquisition

To ensure food security, the LARR Act prohibits the acquisition of multi-crop agricultural
land. Multi-crop land can only be acquired in an extraordinary circumstances subject to strong
reasons have been provided.

Time-bound process

The LARR Act sets time limits for all the stages of the land acquisition process so as to avoid
unnecessary delays and provide compensation and rehabilitation to impacted families
expeditiously so that their means of livelihood are not greatly impacted.

No retrospective application

The new act does not apply retroactively, which means that land acquisition proceedings
commenced before the commencement of the Act, are still governed by the old land
acquisition act of 1894.

Prohibition on speculative transactions

The RFCTLARR governs land acquisition in India. The act aims to ensure a participative,
informed, and transparent process for land acquisition for industrialisation, development of
essential infrastructural facilities, and urbanisation with the least disturbance to the owners of
the land and other affected families and to provide just and fair compensation to the affected
families whose land has been acquired or is proposed to be acquired. The Act puts a bar on

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the acquisition of land that has been given by a farmer under pressure or within a certain time
frame to avoid speculative transactions.

Role of gram sabhas

In tribal areas, the approval of the Gram Sabha is required for the process of land acquisition.
This mechanism gives the local populations a role in the process.

Judicial review

The courts play an important role in determining land acquisition cases to ensure that the
process follows the law and that the rights of affected individuals are safeguarded.

Despite these limitations, there are still problems in implementing the eminent domain in
India. The Indian government and its institutions are always working to ensure that the
process is transparent, fair, and respects the rights and well-being of affected persons and
communities.

Power of eminent domain in India

The power of eminent domain in India is derived from the Constitution of India and is
exercised by the government and its authorised public undertakings, such as corporations.
Under the doctrine, the state can acquire private land for public purposes, and it should be
proved beyond doubt. The doctrine empowers the government to take private property against
the consent of the owner for a valid „public purpose‟. The LARR Act, 2013 strives to strike a
balance between public good and private rights. On the contrary, the lack of due process in
the exercise of eminent domain in the country has been a cause for concern. Some of the
important features of the power of eminent domain in India has been discussed below:

 Constitutional Basis: The power of eminent domain in India has a constitutional

basis. This derives from Article 300A of the Constitution, which deals with the
right to property. This article states that no person shall be deprived of their

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 property except by the authority of law. It provides that the property can be
acquired by the government only through a legal process and by providing the
affected communities with just compensation.

 Public Purpose: The Constitution does not explicitly define „public purpose‟.
However, the government can acquire land under eminent domain for projects that
benefit the general public, such as infrastructure development, public utilities,
defence, social welfare schemes, and other activities aimed at promoting the public
welfare. For example, the government can acquire land for a public park, a
highway, or a school, as these projects serve a broader public purpose.

 Land Acquisition Act, 1894 (Repealed): In the early times, the power of eminent
domain was exercised in India primarily through the Land Acquisition Act, 1894.
This act provided the legal framework for land acquisition by the government for
public purposes. However, due to lack of proper and robust provisions related to
compensation, rehabilitation, and the impact on affected communities, the act was
repealed and replaced by a new law in the year 2013.

 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation,

and Resettlement Act, 2013 (LARR Act): The LARR Act, at present, is the
legislation that governs the procedures related to land acquisition in India. It
provides the procedures for acquiring land, providing compensation, and
rehabilitating and resettling the affected families. The LARR Act places emphasis
on public purpose, just compensation, consent, and social impact assessment to
ensure that the power of eminent domain is exercised responsibly and in the best
interest of all stakeholders.

 Limitations and Safeguards: The power is subject to specific limitations to protect

individual property rights and prevent its misuse. Consent requirements, social
impact assessments, just compensation, and rehabilitation and resettlement
measures are some of the important safeguards provided by the LARR Act.

Advantages of the doctrine of eminent domain

The advantages of the doctrine have been discussed herein:

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The concept of eminent domain represents the idea that private property rights should not be
allowed to disrupt the broader welfare of society. It provides a method for balancing
individual interests with the collective interests of the public.

 While the doctrine of eminent domain provides numerous benefits, it is critical to

recognise its possible downsides as well as the requirement for responsible and
transparent execution. Using eminent domain for the greater good while protecting
private property rights requires fair compensation, careful planning, and public
consultation.

Infrastructure development:

To acquire property needed for important infrastructure projects such as roads, bridges,
railways, airports, schools, hospitals, and utilities, Governments can exercise the authority
under eminent domain. It makes it easier to expand and modernise public services,
transportation, and utilities, thereby increasing the quality of life for the common people.

Economic growth and job creation

Eminent domain boosts economic growth and attract investors by making it easier to acquire
land for large-scale development related projects. Infrastructure and industrial initiatives, in
turn, result in job creation and contribute to overall economic growth of the country.

Public Welfare and Services

The doctrine gives the government authority to carry out projects that benefit the general
public, such as projects in the sectors of healthcare, education, disaster management, and
environmental preservation.

Urban renewal and revitalisation

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Eminent domain can be quite useful in urban planning and renewal activities. It enables the
development of the deprived regions, resulting in ameliorating living conditions, higher
property values, and overall urban development. For example, when a National Highway is
constructed in an area, the value of the land in that area increases.

National security and defense

It is useful in protecting crucial places and resources required for national security and
defence. It contributes to a protection and sovereignty of the country.

Overcoming market failures

In some circumstances, market failures may delay the acquisition of property for important
public projects. Eminent domain can step in to overcome these barriers and solve collective
demands that markets may not be able to solve effectively.

Facilitating public-private partnerships

The eminent domain can encourage collaboration between the public and private sectors in
large-scale initiatives. By providing the appropriate land, the government can attract private
players and skills to improve project execution.

Effective land use planning

Eminent domain can assist in overcoming inefficiencies in land use and maximising the
potential of available land for public initiatives that fulfil greater societal requirements.

Cons of the doctrine of eminent domain

The doctrine of eminent domain serves the public interest. At the same time, it has drawbacks
and potential negative consequences. Some of the cons of eminent domain are discussed
below in brief:

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Violation of property rights

The government, while exercising eminent domain, can acquire private property from
individuals, sometimes against their will. This forced acquisition can be understood as a
violation of property rights, which are often regarded as essential human rights in many
nations. In India, the Hon‟ble Supreme Court in the case of Vidaya Devi v. The State Of
Himachal Pradesh (2020) has held that the right of a citizen to own private property is a
human right. The state cannot take possession of it without following due procedure and the
authority of law.

Unjust compensation

The doctrine mandates that affected property owners receive appropriate compensation;
nonetheless, a disagreement over the value of the property and the compensation thus
provided may arise. In some circumstances, property owners, for example, may consider that
the compensation provided does not reflect the full value of their land or assets.

Displacement and Social Impact

The use of doctrine of eminent domain may result in the displacement of families and
communities. This can cause serious emotional and financial suffering, especially when
people are displaced from their homes and livelihoods without adequate rehabilitation and
relocation processes.

Disregard for Community Heritage

Eminent domain can potentially destroy cultural and historically valuable sites and
neighbourhoods. This has the potential to destroy residents‟ sense of community and identity
that they have created over generations.

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Corruption and abuse

There is a risk that the authority of eminent domain will be misused or abused. With powerful
actors exercising the process for personal benefit or private interests rather than legitimate
public goals sought to be achieved.

Administrative delays and inefficiency

The eminent domain procedure can be administrative and time-consuming. These can be due
to necessary approvals, etc., resulting in project delays and enhanced costs for the government
and other stakeholders.

Environmental impact

If not properly handled, eminent domain can lead to environmental destruction. Deforestation,
water diversion, and other ecological changes can impact ecosystems and biodiversity in the
long run.

Loss of agricultural land

Acquiring agricultural land may decrease the availability of fertile agricultural land in the
long run, potentially affecting food security in the region.

Chilling effect on investment

The possibility of eminent domain seizures deters investors from committing money to
projects, particularly in countries where the procedure lacks transparency or clear norms.

To address these disadvantages and mitigate the negative effects of eminent domain,
governments must establish strong legal frameworks that prioritise protection of property
rights, ensure just compensation, involve affected families or communities in decision-
making, and implement robust rehabilitation and resettlement measures. Furthermore,

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transparency and public accountability are critical to preserving public trust and confidence in
the exercise of eminent domain for the greater good.

Important case laws around the doctrine of eminent domain

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.

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

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)

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

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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)

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.

Sudharsan Charitable Trust v. Government of Tamilnadu (2018)

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.

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.

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