Concept of Eminent Domain

The article 'Eminent Domain' provides a comprehensive exploration of the concept of eminent domain, delving into its historical roots and pivotal legal decisions that have shaped the interpretation and implementation of eminent domain.

History & Development across the World

The concept of Eminent Domain can be traced back to the Latin term called ‘Eminenes Dominium’ which means the power of the government to appropriate private property for public purposes, with or without the consent of the property owner. It is based on two legal maxims:

• Necessitas publica major est quam private: Public necessity is greater as compared to private necessity.
• Salus populi suprema lex esto: It means the welfare of the people is the paramount law.

The U.S. Constitution: 1789

There was a potential abuse of the concept of eminent domain and the founders of the U.S. Constitution were concerned about it. The U.S. Supreme Court in an early decision referred to it as “the despotic power” and limited its use by the Fifth Amendment “taking clause”. It read as follows:

“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."[1]

So, under this clause the power of government is limited in a two-fold manner: firstly, the government can take private property only for “public use” and secondly the compensation must be paid for such use.

Federal State Constitutions: 1800

Similar restrictions with respect to the Eminent domain were stated in the constitutions of 49 states. One exception to such was India, which does not limit the eminent domain explicitly under its constitution but the courts of India have held that the Indian Constitution impliedly guarantees due process. So, all that is required is that it is used for public use.

Use of Eminent Domain: Ancient Times

The government for most of the period during the 19th and 20th Centuries permitted the use of eminent domain only for true public uses such as public buildings, roads, bridges, parks, and other facilities. Later the courts started a little expansion of the power by authorizing private companies like public utilities to take property to lay the railroad tracks and transmission lines. These companies were strictly regulated and had to provide equal access to the public to such rail lines and utilities.

Berman v. Parker[2]

This case has expanded the definition of “public use” and developed advantages for abuse by government and private developers to prevent the free market. In this case, the U.S. Supreme Court upheld the constitutional validity of urban renewal undertaken by the federal government and local officials to develop urban areas by removing slums and eliminating blight. This case changed the words from “public use” to “public purpose” as defined by legislature or administrative agency.

Poletown Neighborhood Council v. City of Detroit[3]

This case set the precedent for the misuse of the power of eminent domain for private development. In this case, the Supreme Court of Michigan allowed Detroit City to bulldoze a neighborhood with more than 1,000 residences, 600 businesses, and various churches to give the property to General Motors for an auto plant based on a promise to use the land for creating more jobs and taxes. There was not blighted community which was proven.

Hawaii Housing Authority v. Midkiff[4]

In the case of Midkiff, the Supreme Court of the U.S. held that the state could use its eminent domain power to break the land oligopoly and redistribute the property. The taking clause was transformed from “public use” to “public purpose” in the form of redistributing property or removal of blight.

County of Wayne v. Hathcock[5]

After years of abuse of eminent domain things began to change. The Supreme Court of Michigan through a unanimous decision reversed the Poledown judgment in 2004. The notion that a private entity's pursuit of profit was a public use was rejected by the court.

Kelo v. City of New London[6]

In 2005, the U.S. Supreme Court held that private property may be seized for private commercial development if it leads to increased jobs and tax revenue. In this case, Kelo and six other homeowners in London their property were taken for private development projects through eminent domain even without declaring it to be blighted simply because more money could be earned through their land than current owners could.

Indian Scenario

The doctrine of Eminent Domain is a legal concept across various nations worldwide. In India, it finds its traces in the Constitution of India. Earlier the right to property was provided as a fundamental right under Articles 19 and 31. Article 19 stated that all citizens have the right to obtain, hold, and dispose of the property and Article 31 provided that no person shall be disadvantaged of his property except by the authority of law. It was clear that the compensation was provided to a person whose property was used for public purposes.

The right to property was removed from the list of fundamental rights and a new provision was introduced by the Forty-Fourth Amendment, 1978 where Article 300A impliedly incorporates this doctrine. It states that no person shall be deprived of his property except by the authority of law. This amendment reflected that the right to property has become a constitutional right and not a fundamental right and if the interest of any person is violated he/she can get a remedy under Article 226 of the Constitution through the High Court and not under Article 32 i.e. from the Supreme Court of India.

In India, the doctrine of eminent domain has a unique history and framework. This doctrine has facilitated the development of various infrastructure projects and social measures and remained in controversy time and again.

The concept of Eminent Domain was introduced by Britishers in India by the Land Acquisition Act, of 1894 which was in force till 2013. Currently in India, the eminent domain concept is governed by modern law i.e. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.[7] This act aims to develop a balanced approach between private rights and public good.

Features of Land Acquisition, Rehabilitation and Resettlement Act, 2013

• This Act clearly defines the public purpose to avoid any kind of arbitrary acquisitions.
• In the case of Private projects and PPP projects consent from 70-80% of affected land owners is mandatory.
• The compensation to be paid for rural areas is four times the market value and for urban areas, it is twice the market value.
• The Provisions for rehabilitation and resettlement are also provided under this Act.

Essential Ingredients of Eminent Domain

The key elements of the doctrine of eminent domain are as follows:

• Public Use: The first essential is that the property acquired under the doctrine of eminent domain must be used for the benefit of the public. There is no strict definition of the term “public use” and it may include public amenities, social and economic initiatives, and infrastructure projects.

• Just and Fair Compensation: Fair compensation must be provided to the property owner determined based on the market value of the property at the time of acquisition. This was inserted through the Seventeenth Amendment Act, 1964 and can draw evidence from various judgments of the court that were given when the right to property was a fundamental right.

• Possession: After acquiring the property the ownership and full control of the property lies with the state. In some jurisdictions, certain rights may be retained by the original owners such as mineral rights or easement rights.

• Due Process: The legal procedures established by law and fairness and justice must be ensured during the process of eminent domain.

Advantages of Eminent Domain

The doctrine of eminent domain has several benefits. Some of them are as follows:

Urban development: The doctrine of Eminent development helps in urbanization and town & city planning which develops modern and sustainable cities in the country.

Social Equity: This doctrine helps prevent the concentration of property and wealth in the hands of few people and enables the equitable distribution of resources by utilizing land for the greater good. By preventing monopoly, it strengthens the idea of social justice and social welfare.

Economic Growth: The Eminent domain doctrine facilitates the development of infrastructure and other social measures that assist in employment generation, and growth in tourism and lead to the development and growth of the economy as a whole.

Development of Public Projects: The doctrine of eminent domain enables the development of public infrastructure by the government for the benefit of the masses such as schools, hospitals, bridges, roads, and other public property. Large-scale projects such as the construction of airports and dams requiring huge land are also facilitated through this doctrine.

Indian Constitution and Eminent Domain

Any law which is applicable in the country finds its roots in the constitution of India and the doctrine of eminent domain is no exception. The constitutional validity and application of Eminent domain can be understood better through the Constitution. The constitution framework of India impliedly recognizes the doctrine of eminent domain within Article 300A of the Constitution. It reads as:

No person shall be deprived of his property except by authority of law

The basis for the doctrine is provided under the constitution but the process and its application are governed through statutes primarily. Article 300-A primarily protects the right to property and impliedly reflects the doctrine of eminent domain. It restricts the undue acquisition of private property and promotes the state to acquire private property under the authority of law which is the power of eminent domain.

Judicial Review

The Power of the court to exercise judicial review is also applicable to the doctrine of eminent domain and the court can scrutinize the matters pertaining to the eminent domain. Various questions such as whether the public purpose is served through acquisition, whether fair compensation has been paid, whether due process is adopted and legality of eminent domain matters can be evaluated by the courts.

Individual rights and the government’s power need to be balanced and the judiciary plays an important role in developing such a balance and determining the rights in the actions relating to eminent domain.

Case laws

Chiranjit Lal v. Union of India[8]

In this case, the apex court held that the sovereign state has the inherent right to appropriate private property for public purposes as per the doctrine of eminent domain. It must be carefully exercised for the public good and to meet maximum public welfare and public purpose. Further, it is an unopposed authority of the state that can be exercised after paying fair compensation to the individual whose property is taken. This power is provided by the constitution of India and sometimes exercised harshly to create the greater good.

Sooraram Reddy v. Collector Ranga Reddy District[9]

In this case, the Supreme Court has given the grounds under which the power of eminent domain can be reviewed. These grounds are as follows:

• When there is an arbitrary or malafide exercise of power.

• When the purpose of use of eminent domain is not for the public in reality but only apparently reflected to be a public purpose in the garb of private purpose.

• Where the due process of law is not followed at the time of acquiring the property.

• Unreasonable or irrational acquisition of land.

• When the acquisition is a fraud on the statute.

Daulat Singh Surana And Others v. First Land Acquisition Collector And Others[10]

The apex court held that the power of eminent domain which is the power of compulsory acquisition by the government can be exercised only for the public welfare and interest of the people. The term public purpose includes matters such as health, safety, security, and welfare of a large community. This doctrine is an essential part of every state and based on the principle of larger community interest must prevail over the individual interest.

References

[1] U.S. CONST. amend. 5.9.1.

[2] Berman v. Parker, 348 U.S. 26 (1954).

[3] Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616.

[4] Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

[5] County of Wayne v. Hathcock, 671 N.W.2d 40.

[6] Kelo v. City of New London, 545 U.S. 469 (2005).

[7] The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, 2013 (India).

[8] Chiranjit Lal v. Union of India, 1951 AIR 41.

[9] Sooraram Reddy v. Collector Ranga Reddy District, 2008 (9) SCC 552.

[10] Daulat Singh Surana And Others v. First Land Acquisition Collector And Others, (2007) 1 SCC 641.

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