Tanvi
Asked October 03, 2013

Doctrine of Eminent Domain

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What is the concept of eminent domain? What is the procedure of Land Acquisition under the Land Acquisition Act, 1894, which will be replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill once it receives Presidential Assent.

Answer 1

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Ashwini Panwar

The Doctrine of eminent domain generally speaking, means that the government or the King has the supreme power to take the property of any person over the interest of general public, over the years this has been made possible only by awarding compensation to the land owner of the private property. This doctrine is based on two maxims: i) salus populi supreme lex esto meaning that welfare of people is paramount law and ii)  necessita public major est quan meaning public necessity is greater than private necessity. So, eminent domain is the power of the sovereign to acquire the property from private hands for public use where the individual’s consent doesn’t matter. However, this doctrine is applicable only when there is no other substitute. Acquisition or taking possession of private property which is implied in clause (2) of Article 31 of Indian Constitution, such taking must be for public purpose. The other condition is that no property can be taken, unless the law authorizes such appropriation contains a provision for payment of compensation in the manner as laid down in the clause. To facilitate this power, the Constitution was amended and the Right to Property was reduced from a Fundamental Right to a Constitutional Right.

Sec. 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 talks about Preparation of Social Impact Assessment Study which involves consulting panchayats, municipalities etc. and the Study must list out the measures required to address the impact of acquisition. The Study is the published and evaluated too. Sec. 11 of the Act talks of the publication of notification for acquisition while Sec 12 states that the officers should carry out a survey of the land and should pay for damages under Sec. 13. Objections to the publications are heard under Sec. 15 while Under Sec. 16 Rehabilitation and Resettlement Schemes are prepared which is reviewed by the Collector under Sec. 17. While these are the steps that are followed at the initial stage, the following Sections are essential for the procedure:

Sec. 20 Land to be marked out, measured and planned including marking of specific areas

Sec. 21 Notice to the persons interested

Sec. 23 Enquiry and land acquisition award by Collector

Sec. 26 Determination of market value of land by Collector

Sec. 30 Award of solatium (compensation)

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