The definition of eminent domain is quite straightforward: it refers to the government's (officially
referred to as "the sovereign") ability to seize property from private citizens, companies, and non-
governmental organisations. In some states, taking property is referred to as an acquisition,
whereas using eminent domain is commonly referred to as condemnation.
Although it is
commonly believed that this idea came into existence with the formation of our nation, it actually
predates that time. In the past, the ruling class, or royalty, often known as the sovereign or
sovereignty, used the power of eminent domain.
The formation of two requirements for the use of eminent domain was an innovation to the
authority that was brought about by the founding of the United States. The Fifth Amendment of the
Constitution contains these. According to the first, the taking must be done for a public purpose.
The second stipulation demands that the previous owner receive just compensation in an amount
equivalent to the worth of the property stolen. Even while the federal constitution only addresses
the "taking of property," several state constitutions have broadened owner rights by demanding the
payment of appropriate compensation for "damage" to property. So that we can disuss in detail
about the History of eminent domain in this assignment.
Origins of Eminent Domain:
Property ownership by individuals was typically conditional under ancient legal systems. Hebraic
law, for instance, prohibited the sale or exchange of land and asserted that God had ordained the
division of property. Land might be sold, but only for a short time, until the following "Jubilee
Year," which occurs every 49 years, after which the land reverts to the family God had selected as
Eminent Domain in the US:
- In some systems, all land is kept at the king's discretion; he has the authority to revoke or grant it
at his discretion.
- With the signing of the Magna Carta in 1215, the king's ability to acquire land at his whim was
first constrained. With the use of this paper, the monarch was forced to concede that no individual
may be put in prison or have his possessions taken away without the "lawful judgement of his
peers." The document was updated in 1354 to include the phrase "due process of law". However,
Dutch lawyer Hugo Grotius did not use the term "eminent domain" until 1625.
Kelo v New London and the Revised Florida Constitution1
- Eminent domain legislation in the US has its roots in colonial notions of land usage. Despite the
Magna Carta's provisions, colonists in the New World did not always enjoy the same safeguards.
Because it was believed that the Crown had the right to revoke its grant of the land in the New
World at any time. When people didn't follow the requirements of the land grants, which
frequently included development requirements, the awards were naturally revoked. Because of
this, British Colonists in the colonies were virtually denied the same legal safeguards they had
grown accustomed to in Britain, where not only due process but also just recompense were starting
to take on legal significance.
- Governments in the past were no better, either. The saying "use it or lose it" was prevalent at the
time, and since landowners were not compensated when roads were built on their property,
building roads was less expensive, which resulted in tax savings at the expense of the individual
property owners. Prior to the Fifth Amendment, the practise of paying compensation for land taken
through eminent domain was typically regarded as optional.
- The Massachusetts Constitution of 1780 and the Vermont Constitution of 1777 were the first
constitutions to provide monetary compensation for eminent domain. A constitutional clause
allowing for eminent domain received little support. The clause was not added to the Bill of Rights
as a result of any state campaigns. It was really added by James "Radical" Madison, who also
penned the Fifth Amendment, which could account for why it appears to be an afterthought.
new eminent domain
statute in Florida says the following:
- The Kelo v. New London case went to the Supreme Court in 2005, and the justices delivered a
contentious ruling. An eminent domain action that contested the definition of public use gave rise
to the current case. Susette Kelo's property was being acquired by the City of New London in
Connecticut and effectively given to Pfizer for the construction of a swanky new research facility.
Giving the land to a multinational firm, in the opinion of Kelo and her neighbours, did not
constitute a "public use" of the land and therefore not be permitted. When the Supreme Court ruled
that "public use" might entail redistributing land amongst owners for economic growth, The debate
would cause many states' eminent domain laws to change.
- Florida was one of the states that took immediate and decisive action to put an end to eminent
domain abuses a la New London. In order to prevent the use of eminent domain as a means of
corporate welfare, a constitutional amendment was adopted in 2006.
1789: The U.S. Constitution:
- Private property may not be removed for public use unless full compensation is paid to each owner or secured by a deposit in the court register that the owner can access.
- Provisions for obtaining easements through similar legal procedures for the drainage of one person's land over or through another person's land may be enacted by law.
- (Except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature, private property taken by eminent domain pursuant to a petition to initiate condemnation proceedings filed on or after January 2, 2007, may not be conveyed to a natural person or private entity.
The Fifth Amendment's "takings clause" restricts the taking of private property for public use
because the founders were worried about the potential for abuse of eminent domain, which is even
referred to as "the despotic power" in an early U.S. Supreme Court decision. The phrase restricts
eminent domain in two ways: first, it stipulates that the government may only take private property
for "public use"; second, it also stipulates that the government shall pay for it.
1800: Federal Takings Clause In State Constitutions
49 state constitutions contain comparable language limiting eminent domain. With Indiana being
the lone exception, the state's courts have determined that eminent domain restrictions are implied
in the constitution's due process provision. The use of eminent domain must be for a public
purpose, regardless of the length and detail of the takings provision.
Early Uses Of Eminent Domain
Governments allowed eminent domain to be utilised solely for legitimately public purposes, such as
roads, bridges, parks, and public structures and infrastructure, during the majority of the 19th and
early 20th centuries. When they permitted private companies like railroads and public utilities to
appropriate property for the laying of railroad tracks and transmission lines, the courts started to
slightly expand their authority. However, these companies were subject to strict regulation and had
to grant the general public equal access to the rail lines or utilities.
Berman V. Parker 2:
However, the Berman judgement significantly broadened the meaning of "public use" and provided incentives for governments and corporate enterprises to manipulate the market. The U.S. Supreme Court supported the legitimacy of "urban renewal" in this case from Washington, D.C., which refers to federal and municipal initiatives to revitalize metropolitan areas in order to purportedly get rid of slums and blight. In this particular case, the Court redefined "public use" as "public purpose" as determined by a legislative body or administrative body.
Poletown Neighborhood Council v. City Of Detroit 3:
Governments started drastically broadening the concept of blight in Berman's aftermath so they could condemn perfectly good properties for private development while claiming to be engaged in urban renewal.
Additionally, many state supreme courts followed Berman's reasoning and interpreted their public use clauses in the same way.
In order to give the land to other private parties who the government believed would generate more tax revenue than the current owners, governments started to use eminent domain to seize homes and businesses rather than engaging in the charade of declaring an area blighted.
Governments were able to continue to stretch the boundaries of "legitimate" condemnations
because to the precedent set by the Berman decision. The Michigan Supreme Court permitted the
City of Detroit to bulldoze a whole neighbourhood, replete with more than 1,000 homes, 600
businesses, and multiple churches, in the 1981 Poletown ruling so that General Motors could use
the land for an automobile plant. The City sought the site because GM promised to create more
employment and increase taxes, without even pretending that the neighbourhood was "blighted."
This decision established the standard for widespread abuse of the eminent domain authority for
private development in Michigan and across the nation.
Hawaii Housing Authority V. Midkiff 4:
Three years later, the U.S. Supreme Court ruled in the Midkiff case that a state could break up a
land oligopoly and redistribute the property by using eminent domain. The Court cited Berman as
support for its position that the legitimacy of a taking depends on whether it is intended to
redistribute property or remove blight. This clearly defined how the takings clause changed from
"public use" to "public purpose."
Eminent Domain In India:
- The national trend of increasing eminent domain abuse started to change after years. By a
majority ruling in the case County of Wayne v. Hathcock, the Michigan Supreme Court
overturned Poletown in July 2004. The Court categorically disproved the claim that "a private
entity's pursuit of profit was a 'public use' for constitutional takings purposes simply because one
entity's profit maximization contributed to the health of the general economy."
- Eminent domain is a legal right that the State typically uses to purchase property. India's Land
Acquisition Act (LAA), passed in 1894, is where the country's history of eminent domain begins.
Due to the country's extensive land reforms in 1950, this colonial law continued to be statutory
distribution. The Land Acquisition, Rehabilitation, and Resettlement Act is how the LAA came to
be. In 2011, (LAAR) The right of Eminent Domain is a purported movement towards stronger
capitalism. The ideas of public interest and recompense form the foundation of domain; the
former ensures the reason for buying property, whilst the latter ensures the legitimacy of the act.
The State of India is attempting to broaden the definition of "public interest" to more efficiently
wield eminent domain while dangerously changing the land acquisition rules, limiting the
definition of "consent." The Ministry of Rural Affairs supported the LARR, 2011. construction,
saying that eminent domain is necessary and essential for obtaining increased urbanization and
industrialization. The LAA, 1894 has recently been updated by the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013.
- This law has clarified the significance of the state's eminent domain authority in order to support a
dynamic and expanding economy. Normally, only economic and political considerations are
included in the key calculations that determine the scope of eminent domain. Using a specific
instance to emphasize Eminent From a political standpoint, the West Bengal elections in 2011 and
the collapse of the Left Front are examples of Domain's influence.
- Because of their increased use of the Right of Eminent Domain, the Left Front was subject to a
brutal electoral ouster by the people of West Bengal. Understanding the power and significance of eminent domain in the context of India's current political importance of the government's
urbanization and development agenda.
A Modi The "Make in India" programme of the
government highlights 100 smart cities and the infamous Delhi Industrial corridor in Mumbai. For
these objectives to be achieved, land as a resource is essential be attained. The following essay
aims to trace the development of the eminent domain right. Using examples from the country's
history prior to independence, describe present-day India.
The Land Acquisitions Act (Laa), 1894:
- One of the first pieces of legislation governing the government's authority of eminent domain is the Bengal Regulation 1 of 1824. The entire Bengal province was governed by a statute that gave the administration the authority to "take, at a fair valuation, land or other immovable property needed for public purposes such as roads, canals, or other infrastructure."
- The administration exploited this regulation to find land to start building railways. All of British India's land acquisitions provisions were weakened by rising industrialization levels, gathered, amalgamated, and formed Act VI of 1857, which later took the form of the Land Acquisition Act. Act of 1870.
- The case of Radhey Shyam(D) Through LRs and others v. State of U.P. and others 10 established one of the most notable reasons why the Land Acquisitions Act, 1870, was quickly abolished. According to the Supreme Court, the Land The Acquisition Act of 1870 mandated that the State hire impartial appraisers for the real estate in Question.
It was also necessary for the courts and these assessors to reach an understanding based on the Stated action, which caused the process to be delayed. The Supreme Court further noted that the owner of the property lacked the right to protest to the situation. People who had their land taken away organised several protests and rallies, and the British government passed the Land Acquisition Act of 1894 in response.
- The Land Acquisition Act of 1976 of 1894 does not provide that anybody with an interest in the land being considered for acquisition has the option to protest to such an acquisition; however, the government is not required to look into and take into account any concerns that may be raised. This bill's goal is to ensure that in accordance with Section 6 of the Act, Local Government may not declare.
Even after gaining independence, the LAA colonial statue has maintained its popularity. This law
attempted to speed up the construction of roads, canals, and other forms of infrastructure in India.
The term "public interests" is used liberally. The British deprive many landlords, farmers, and
cultivators of their properties. Administration.
But this deprived state did not simply exist
throughout the colonial period. The After independence, the government successfully used
eminent domain to develop Dams, the defence sector, and other acquisitions were all protected by
the public interest. The LAA's reach was widened by the government's misuse of the authority
granted to it in the individual players.
According to Section 7 of the LAA, 1894, Collector to
take order for acquisition:
Whenever any land shall have been so declared to be needed for a
public purpose or for a company, [appropriate Government] or some officer authorised by the
[appropriate Government] shall have the power to order the acquisition of such land," The
Collector will be instructed by the Government] to place an order for the acquisition of the
Due to the implementation of this clause, some state governments had acquired land on
their behalf. Of wealthy businesspeople and developers acting in the public interest. After their
unnatural birth, Builders developed multi-story buildings after receiving bribes from these
government officials. Complexes that were both residential and commercial and eventually sold
to the "public." The landowners who lost their lands fought the government during this process to
at least receive a just compensation. 12
To comprehend the suffering of those who are stripped of
their property, think about an illustration of a farmer who dedicated his entire life to buying land.
The farmer is no longer employed according to section 7 of. The LAA, 1894, the state acquired
and reserved this parcel of land for an MNC.
Government for the common good. Even though the
government doesn't offer enough compensation, Given that the compensation money may be
readily mismanaged and wasted, it would not be a guarantee of survival. Furthermore, the state's
flagrant abuse of the urgency provision contained in Section 7 of the LAA, 1894 Governments
was another one of this act's major problems.
The natural justice principle of Audi Alterem Partem
, or hearing the other side, was violated by
Section 17(4) of the LAA, 189413. The farmer, in the preceding case, whose property had been
taken by the state government, was unable to in the event that the state government uses the
urgency clause, you should ask the Court for an injunction.
The cited provision states that:
circumstances of emergency whenever the [proper] Government], so instructs the Collector, the
Collector may, on the grounds that Fifteen days after the notice indicated in section 9, paragraph
has been published subsection (1)[Acquire any land required for a public purpose].Following that,
the government will have complete ownership of the land, free from all liens.
"In the case of any territory to which, in the [relevant Government's] Whenever
subsection (2) or section (1) apply, the [relevant Government] may order that Section 5A's
requirements do not apply, and if it directs otherwise, a declaration may be issued. In accordance
with section 6 in respect of the land at any time [after the publication date of the Notification]
pursuant to subsection (1) of section 4."
The relevant act's Section 5(A) enables the Landowner
may file a challenge with the appropriate court, but by utilising 17(4), the state administration
has taken away the landowners' power to raise an objection.
Constitution Of India, 1950
- When the government implemented land reforms and acquired land in accordance with the LAA, 1894, the Supreme Court of India and the parliament were subject to a number of criticisms. In accordance with Article 19(1)(f) of India's Constitution, the courts were ensuring the preservation of property rights as a basic right.
- In response, the parliament transferred all land and land-related issues to the ninth schedule, shielded from judicial review. Furthermore, it includes the The parliament added Articles 31A to protect land purchase regulations from Article 14 scrutiny. With Numerous defences put in place by the parliament to lessen judicial oversight of eminent Domain, in the case of The State of West Bengal v. Bela Banerjee14. The Supreme Court levelled the playing field.
- In this case, the Court emphasised how very important Article 31(2) of the Constitution's word "compensation" is. The Court came to the conclusion that the term "compensation" indicates that the Government must determine the market value of the property when it was acquired in this manner. The parliament, however, was not eager to embrace this Court's provision for The Fourth Amendment Act of 1950 was therefore created in order to prevent future Eminent Domain instances.
This change aimed to level the playing field for the Court regarding sufficient compensation in issues of eminent domain. The government, in the course of exercising their right to eminent Domain, any compensation imposed by it would not be subject to appeal in the judicial system. The Supreme Court did not order the administration to make sure that the amount of compensation is not set arbitrarily and must be based on some pertinent criteria until the case of
Keshvananda Bharti v. Union of India15.
- The 44th Constitutional Amendment Act of 1978 intended to expand the use of eminent domain by eliminating the right to property as a basic right. The right to property is viewed as merely a legal right under article 300A. In the case, the Kerala High Court Samuel Aaron v. State of Kerala16, in the case of Smt. Elizebath And Ors talked about the significance of compensation and Constitutional Article 300 A.
- "The legislative context surrounding the repeal of Article 31 and the enactment of Article 300-A eloquently demonstrates that Parliament intended to do away with the notion of a just equivalent or adequate compensation in the matter of deprivation of property and to provide only a limited amount of compensation," No one has the legal right to have their property taken away from them unless the law says so.
In addition To put it another way, the limited constitutional protection intended to remain in place (rather than as a basic Merely that there should be a law approving and upholding any wrongful deprivation of Property, and that no one would be robbed of it through simple executive order. No, Article 300A Any additional needs with care. It does not go beyond to say that the legislation should mandate compensation, define the amount, or at the very least outline the guiding principles by which compensation is to be determined and granted.
- Parliament obviously wanted to protect all such Legislation that protects property purchases or seizures from legal challenge on any of the grounds Which they could be contested in accordance with the numerous Supreme Court judgements on the On the grounds that the compensation was insufficient, illusory, or that the guidelines Adjusting the compensation were pointless or unreasonable. One may wonder why Parliament would have gone through all the trouble of eliminating Article 31(2) from the Constitution if that were not the intention of the sequence of constitutional modifications and if that goal had not been attained.
In this presentation , we have discussed about history of eminent domain in U.S and eminent
domain in India and how was it came in early legislations. In the majority of developing nations,
owning land implies some risk. Any nation's government is entrusted with advancing the public
interest and achieving this objective, and it is a crucial resource. Various factors have influenced
how eminent domain has developed in India.
Factors. Initially regarded as a chaotic law in 1894,
land acquisition has been blatantly misused ever since. To abolish the fundamental right to
property during the land distribution process in 1950 Right, and finally, a somewhat lenient law
attempting to safeguard the interests of those impacted Many difficulties arose after the British
government passed the Land Acquisition Act of 1894, which allows the State to seize any land
without the owner's agreement.
The landowner disobeys the natural justice rules that govern all
laws in our republic. The 1894 legislation's shortcomings and issues were resolved and
implemented in The Right to Equal Treatment and Openness in Land Acquisition, Rehabilitation,
and Development Resettlement Act 2013 Legislators talked on issues of just recompense. In the
2013 act, and rehabilitation.
In the 2013 statute, the legislators addressed the concerns regarding
just compensation and rehabilitation. The requirement of consent, however, continues to be a
major problem that calls into question the legitimacy of this legislation. There must be both an
economic Drawing a social balance between industrialization and the use of land as a prime
resource human. Land resources are needed for development through industrialization and
urbanisation. However, The State must also take into account a fair land purchase combining
consent and fair compensatory standards.
- DR.N.Maheshwara Swamy, Land Laws under the Constitution of India, First Edition, 2006.
- Land Acquisition Act, 1894
- BHATTACHARYYA, D. (2015). History of Eminent Domain in Colonial Thought and Legal Practice. Economic and Political Weekly, 50(50), 45-53.
- Sankaranarayanan, G. (2011). The Fading Right to Property in India. Verfassung and Recht in �bersee / Law and Politics in Africa, Asia and Latin America, 44(2), 220-236.
- SAMPAT, P. (2013). Limits to Absolute Power: Eminent Domain and the Right to Land in India. Economic and Political Weekly, 48(19), 40-52.
- Gupta, Priya S. The Peculiar Circumstances of Eminent Domain in India. Osgoode Hall Law Journal 49.3 (2012) : 445-489.
- 545 U.S.469(2005)
- 348 U.S.26 (1954)
- 304 N.W.2d 455 (1981)
- 467 U.S. 229 (1984)County Of Wayne V. Hathcock5
- 684 N.W. 2d 765 (Mich.2004)
- Land Acquisition Act,1894
- Sankaranarayanan, G. (2011). The Fading Right to Property in India. Verfassung Und Recht in �bersee / Law and Politics in Africa, Asia and Latin America, 44(2), 220-236. Retrieved March 15, 2021, from http://ezproxy.nujs.ac.in:2100/stable/43239608
- The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
- BHATTACHARYYA, D. (2015). History of Eminent Domain in Colonial Thought and Legal Practice. Economic and Political Weekly, 50(50), 45-53. Retrieved March 15, 2021, from http://ezproxy.nujs.ac.in:2100/stable/44002962
- (2011)5 SCC 553
- The Land Acquisition Act, 1894, s.7.
- SAMPAT, P. (2013). Limits to Absolute Power: Eminent Domain and the Right to Land in India. Economic and Political Weekly, 48(19), 40-52. Retrieved March 15, 2021, from http://ezproxy.nujs.ac.in:2100/stable/23527343
- The Land Acquisition Act, 1894, s.17(1).
- AIR 1954 SC 170.
- AIR 1973 SC 1461
- AIR 1991 Ker 162