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QUESTION | Analyse the relevance of doctrine of eminent domain under the Constitution of India. Explain the limitations of this doctrine with the help of case law.
Importance of this question - This question was asked in 2018 UPSC LAW OPTIONAL mains paper.
QUESTION POSTED ON | 05.10.2021
MODEL ANSWER WILL BE POSTED ON | 06.10.2021
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ORIGIN | Doctrine of ‘eminent domain’ has its origins in India in pre-constitutional colonial British law. This doctrine states the acquisition of private land for public purpose and providing compensation for such acquisition. It is based on two maxims-
1)Salus populi supema lex which means welfare of the people is the paramount of law
2)Necessitas publica major est quam which means public necessity is greater than private necessity
RELEVANCE OF THE DOCTRINE UNDER INDIAN CONSTITUTION DISCUSSED WITH ITS LIMITATION
Limitations of doctrine of ‘Eminent Domain’ are
·Private Property of a person is acquired for public use.
·Compensation is to be paid for such acquisition.
Provisions related to private property are provided under Article 31A, 31B, 31C and 300A of the Constitution. Article 31A provides that any law which provides for acquisition of private property by the state shall not be void. Earlier right to property was a fundamental right under Article 19(1)(f) and 31 but both the provisions were repealed by 44th Amendment Act and it’s a legal right under Article 300A.
Article 300A provides, “No person shall be deprived of his property save by authority of law.”
For instance, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 regulates land acquisition for public purpose and provides for rehabilitation and resettlement facilities to the individuals whose lands are acquired by the government for public purpose.
In State of Bihar v. Kameshwar Singh, the apex court defined the doctrine of ‘Eminent Domain’ as the power of a sovereign to take property for public use without the consent of owner by giving just compensation to him.
In Indian Handcrafts Emporium & ors. v. Union of India & ors,[ (1960) 2 SCR 671.] the court held that the right to acquire, hold and dispose of the property has ceased to be a fundamental right but it continues to be legal right and no person can be deprived of his property save and except by and in accordance with the law.