Eminent Domain Vaishali Bahubalendra BASICS OF LAW Tue, Aug 11, 2020, at ,08:00 PM Introduction : The Concept of Eminent Domain clearly pertains to the fact that the state as a sovereign entity has the de-facto control over all lands, immovable property and other natural recourses within the prescribe territory limit of the country. Therefore the state has the right to take any assets for the public purpose. The term Eminent Domain seems to have originated in 1925 by Hugo Grotius, the Dutch Jurist, who wrote about this power of the state in his work De Jure Belli ac Pacis. It has always been recognised that this power of the state is an essential attribute of sovereignty. This power connotes the legal capacity to take the private property of individuals for public purposes. The property may be taken either for government use or by third parties through legislative delegation of the taking power, when those parties are authorized to use it for public or civic uses or, in some cases, for economic development. The most common uses of property taken by eminent domain are for roads and government buildings and other facilities, public utilities. Some jurisdictions require that the taker make an offer to purchase the subject property, before resorting to the use of the eminent domain. However, once the property is taken and the judgment is final, the condemnor owns it in fee simple and may put it to uses other than those specified in the eminent domain action.[1] Several case laws are there which have expressed their prudent view on the concept of Eminent Domain. Some of those views are; Since the power of Eminent Domain is an inseparable incidence of sovereignty, there is no need to confer this authority expressly by the constitution.[2] This concept exists without any declaration to that effect. While the existence of the power is recognised, constitutional provisions provide safeguards subject to which the right may be exercised.[3] In the US, there are three limitations, as noted by Cooley in his book Constitutional limitation, exist: There must be a law authorising the taking of the property the property must be taken for some public use, and just compensation should be paid. In the beginning, no concept of compensation was there due to lack of development of environmental jurisprudence, however with the changing time a new jurisprudential development pertains to the fact that a Just, adequate, and reasonable compensation must be paid to the aggrieved party. In India, the concept of fair compensation has been a very big contentious issue both in India and abroad. A host of cases at the national and international forum has discussed this concept of fair compensation. International Cases with regard to fair compensation 1. Libyan American Oil Company (LIAMCO) v The Libyan Arab Republic[4], which is otherwise known as Libyan oil nationalisation case. Brief facts of the case In the year 1969, Colonel Muammar Gaddafi forcibly occupied power in Libya through a military coup and colonel came into power. Libya was rich in petroleum and natural gas reserve and a lot of foreign companies had signed a private bi-lateral treaty with the government of Libya for petroleum exploration. Legal recourse The private investors invoked the arbitration clause on the bi-lateral treaties and appealed before an arbitration panel consisting of three judges. Then in an ex-parte judgment by a 2:1 majority the arbitration panel decided the fact that the nationalisation of all the oil assets by the Libyan government was illegal and any such case, just, fair and adequate compensation was to be paid to the aggrieved party. Then in Operation Muram Batswina (Zimbabwe) (2004-2006) Brief Facts Zimbabwe, which is known as Rhodesia, gained independence in the year 1980, and since then Robert Mugabe has been the president of Zimbabwe. Starting from "2000" the Mugabe Government started to take over the properties of white families. They also started to forcibly clear-out the slums and rural neighbourhood in Harare, capital of Zimbabwe without paying any compensation. From 2000 to 2001 Robert Mugabe took over, expropriated or forcibly nationalised the properties of many white people, because of which a large scale white migration happened from Zimbabwe Consequence Owing to the white exodus, forced nationalisation, falling exports and rising imports, Zimbabwe entered into hyperinflation in 2008, with annual inflation rates with 5 lakhs %, and also Zimbabwe was also suspended from much international organisation including commonwealth for gross abuse of Human rights. Concept of Eminent Domain In India The concept of Eminent Domain came into prominence in India only after 1947, when India became an independent state. Prior to 1947 the concept of India as a sovereign entity did not arise as our country did not have the existence as an independent state. During the period of Delhi Sultanat, there was a common practice used to give large tracks of lands as a gift to his officer, those gifts were known as subash or Jagirdaris. When the Mughal empires came into power in 1526 the system of awarding Jamindaries, especially in Magadh, Abadh and the undivided Bengal province became a common practice . ] In 1757, when the Mughals had already denied the British East India Company, which started as a charter company, and gained its supremacy after the battle of Plessey when "Robert Clive" defeated Siraz-ud -Ullah , the nawab of Bengal. In 1764, the British got the right of revenue of Bengal, Bihar and Orissa after the Battle of Buxar. Then till 1857, there were some attempts by the British East India Company to implement some land laws and legislations in India. After Sepoi Mutiny of 1857, the rule of India passed over to the crown and attempts were made to pass Land acquisition Laws, which finally resulted in the Land Acquisition Act of 1894. Eminent Domain at Post Independence position. After independence with the insertion of the Articles 19(1)(f) and 31 of the Constitution of India the right To property was made a fundamental right, which was considered to be an anomaly considering the fact that under the concept of Eminent Domain, the sovereign state has the right to take away private land for a public purpose. This position was first challenged in the bank nationalisation case which is otherwise known as Rustom Cavasjee Cooper v. Union Of India [5]. In this case, the supreme court faced a dilemma on the question of nationalisation of 14 banks, which had a paid-up capital of more than 50 cr. Here the Hon'ble Supreme court laid down that the act of nationalisation was legal and compensation was an integral part of nationalisation or expropriation. At that point of time, India was facing the social repercussions of the system of zamindari, wherein the ownership of the land by a powerful few and then exploitation of the poor masses had given rise to the Naxalite movement in Naxalgiri, Siliguri district of West Bengal, where an armed revolt happened against landlords and the government over land ownership and unequal property distribution. Then, subsequently in the year 1978, after the 44th amendment Right to Property was deleted from the list of Fundamental right and was made a legal right, which specifically happened because the then Moraji Desai government was strongly opposed to private ownership and private entrepreneurship. The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of property'. Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been 'taken possession of or acquired' for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's 'eminent domain' powers.[6] - The decision in the Vajrevelu Mudaliar case[7], Which was followed in Union of India v Metal Corp. of India Ltd.[8]It retreated that the law providing for compensation, to justify itself, has to provide for payment "Just and equivalent" at or about the time of the acquisition of the property acquired. If the principles laid down are relevant to the fixation of compensation and are not arbitrary the adequacy of the resultant product cannot be questioned in the court of law. - Then another major problem was to define the term Public Purpose. Then are so many case laws deciding the said term, however, the concept is still going in confusion. some of them are ; The term public interest includes public order, public health, morality etc. Ordinarily, the individual proprietary rights are respected, unless a clear case is made out for imposing restriction thereon, in the interests of the general public, and even then the restriction sought to be imposed must not be arbitrary, but must have a reasonable relation to the object sought to be achieved. So there must be harmonies balancing between the fundamental right declared by art. 19(1)(f) and the "Social control " permitted by Article 19(5).[9] However, whether a restriction is in the interest of the general public or not is a justifiable issue. In the case of Manchegowda v. State of Karnataka[10], the court upheld the provisions of the Karnataka Scheduled castes and Scheduled tribes act, 1979. The act prohibited the transfer of the land by SC and ST members to whom such land was granted by the state with the condition that they will not transfer such land to anyone. The Court held that the condition was a reasonable restriction under Art 19(5). Conclusion - In the case of Jilubhai NanaBhai Khachar v. state of Gujurat[11], the supreme court held that the controversial aspects of Art.31 because of which it was deleted from the Constitution should not be brought back by judicial interpretation. The court admitted that the exercise of the power of eminent domain recognised in Art.300A requires the existence of Public purpose and payment of money for acquisition of property by the payment need not be just equivalent of the property so acquired. However, the payment must not be illusory and the principle for determining the compensation must be relevant for the purpose of arriving at a non-illusory or fair payment. In case law fails to satisfy either of these conditions, it may be invalidated by the courts under Article 300 A of the Constitution of India. [1] https://en.wikipedia.org/wiki/Eminent_domain , dtd.18.10.2017 , 09:36 pm [2] United states v. Jones , 27 L Ed 1015, 1017:109 US 513 (1883) [3] State of Bihar v. Kameshwar Singh AIR 1952 SC 252 , 259 :1952 SCR 889 [4] 17 I.L.M. 3 (1978), 4 Y.B. COM. ARB. 177 (1979) [5] (1970 AIR 564, 1970 SCR (3) 530) [6] https://en.wikipedia.org/wiki/Eminent_domain , dtd.18.10.2017 , 09:46 pm [7] AIR 1965 SC 637:(1965) 1 SCR 614 [8] AIR 1967 SC 637:(1967)1 SCR 255 [9] Kavalappara Kottarathil Kochunni v. State of Madras and Kerala, AIR 1960 SC 1080,1102:(1960) 3 [10] (1984) 3 SCC 301 : AIR 1984 SC 1151 [11] 1995 Supp(1) SCC 596:AIR 1995 SC 142