INTRODUCTION:

In India the government is empowered by the central law passed by the union legislature,
which is known as the Land Acquisition Act, 1894. The objective of this Act is to amend the
laws relating to land acquisition for public purpose and for companies and also to determine
the compensation, which is required to be made in cases of land acquisition. The enactment
states that the expression land includes benefits that arise of land and things attached to the
earth or permanently attached to the anything fastened to the earth.
Further the Land Acquisition Act also specifies the public officers who are authorized for
such acquiring of land on behalf of the State. They include the Collector, Deputy
Commissioner and also any officer who is specially appointed by the appropriate government
under the authority of law. The collector prepares the declaration and copies are forwarded to
the administrative departments and all the concerned parties. This declaration is then required
to be published in the same manner as in case of the notification issued. The collector issues
the awards, further allows a time of not less than 15 days for any objections to be filed.
Moreover if the compensation given is under protest than as per the enactment the awardees
are entitled to refer the matter to the court for determination of requisite amount of
compensation.
This power is not absolute in nature. The Constitution vests in the judiciary, the power to
adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the
state legislatures violates any provision of the Constitution, the Supreme Court has the power
to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers
wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution.
Article 368 of the Constitution gives the impression that Parliaments amending powers are
absolute and encompass all parts of the document. But the Supreme Court has acted as a
brake to the legislative enthusiasm of Parliament ever since independence.

Private rights in land are at the very heart of a democratic free society. Under this concept the
owner of the land is the beneficiary of all the produce and belongings of the land. The
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concept of property legally is basically sum total of various interests, rights and actionable
claims. The interest or rights include the power to dispose of or alienate the object or thing as
per the desire or free will of the owner thereof. Therefore, when state compels an individual
to sell, i.e. alienate, the thing against his will, it will be violation of individuals right to
property. However, every legal system in the world has recognised an exception to this rule,
which is power of government to compel or induce a person to sell the land willing or
unwillingly on the ground of public purpose. This power of government is known as eminent
domain. Black Law dictionary defines eminent domain as right of governments power to
take private property for public purpose. The provision is firmly embedded in Article 31A of
the Constitution of India. It is a settled law that acquisition of land cannot be made save for
the public purpose.
However, the concept of eminent domain has become more complex in the era of publicprivate-partnership. The two questions that becomes crucial is firstly, could there be
acquisition by the state to handover the property to private player (company or other business
vehicles as may be constituted under appropriate law in force) altogether. Secondly, could
state acquire property and use it for the purpose of public-private-partnership. Or state could
only acquire property by private individuals and use such property itself? All this
propositions are accepted in the present Act.
It is not the acquisition of the private property, which is questioned; it is the safeguards that
are provided by the law (statutory entitlement) that is scrutinised. Therefore, attribution of the
motive on the government being instrumental in assisting some private players in profiteering
is preposterous and outrageous. Company simply means group of entrepreneurship who have
taken risks to make money by venturing into a business, and therefore law accords security of
assets by protecting the personal assets of entrepreneurs from assets that s/he puts for
business. Corporate per se is not a negative word, they are people who are not parasitic to
states but facilitators of state by creating jobs, strengthening economics and prosperous
society.
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
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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.
The provisions relating to the right to property were changed a number of times. The
44th amendment act of 1978 deleted the right to property from the list of Fundamental
Rights. A new article, Article 300-A, was added to the constitution which provided that "no
person shall be deprived of his property save by authority of law". Thus, if a legislature
makes a law depriving a person of his property, it will not be unconstitutional. The aggrieved
person shall have no right to move the court under Article 32. Thus, the right to property is no
longer a fundamental right, though it is still a constitutional right. If the government appears
to have acted unfairly, the action can be challenged in a court of law by citizens.
Land acquisition in India is currently governed by The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which came
into force from 1 January 2014.Until 2013, land acquisition in India was governed by Land
Acquisition Act of 1894. However the new LARR (amendment) ordinance 31st December
2014 diluted many clauses of the original act. The liberalisation of the economy and the
Government's initiative to set up special economic zones have led to many protests by
farmers and have opened up a debate on the reinstatement of the fundamental right to private
property.
HYPOTHESIS:
The concept of eminent domain has become more complex in the era of publicprivate-partnership. The two questions that becomes crucial is firstly, could there
be acquisition by the state to handover the property to private player (company
or other business vehicles as may be constituted under appropriate law in force)
altogether. Secondly, could state acquire property and use it for the purpose of
public-private-partnership. Or state could only acquire property by private
individuals and use such property itself? All this propositions are accepted in the
present Act.

CHAPTER-I
HISTORY:
Hugo Grotius defined eminent domain in 1625 thus (1): The property of subject is under the
eminent domain of the state, so that the state or he who acts for it may use and even alienate
and destroy such property, not only in cases of extreme necessity but for ends of public
utility, to which ends those who found civil society must be supposed to have intended that
private ends should give way. But it is to be added that when this is done the state is bound to
make good the loss to those who lose their property.
The concept of eminent domain is not new. It has existed since biblical times, when King Aha
b of Samaria offered Naboth compensation forNaboth's vineyard. In 1789, France officially r
ecognized a property owner's right to compensation for taken property, in the French Declarat
ionof the Rights of Man and of the Citizen, which reads, "Property being an inviolable and sa
cred right no one can be deprived of it, unless thepublic necessity plainly demands it, and upo
n condition of a just and previous indemnity."
Shortly after the French declaration, the United States acknowledged eminent domain in the F
ifth Amendment to the Constitution, whichstates, " nor shall private property be taken for p
ublic use, without just compensation."
The Fifth Amendment grants the federal government the right to exercise its power of eminen
t domain, and the DUE PROCESS CLAUSE of theFourteenth
Amendment makes the federal guarantee of just compensation applicable to the states. State g
overnments derive the power toinitiate condemnation proceedings from their state constitutio
ns, except North Carolina, which gains its power through statute. Theconstitutional and statut
ory provisions require federal, state, and local governments and subdivisions of government t
o pay an owner forproperty taken for public use at the time the property is taken.
The power of eminent domain was created to authorize the government or the condemning au
thority, called the condemnor, to conduct acompulsory sale of property for the common welfa

re, such as health or safety. Just compensation is required, in order to ease the financialburden
incurred by the property owner for the benefit of the public.

ELEMEMTS OF EMINENT DOMAIN:

To exercise the power of eminent domain, the government must prove that the four elements
set forth in the Fifth Amendment are present:
(1) private property
(2) must be taken
(3) for public use
(4) and with just compensation. These elements have been interpreted broadly.
Private Property The first element requires that the property taken be private. Private property
includes land as well as fixtures, leases,options, stocks, and other items. The rifle that was use
d to kill President JOHN F. KENNEDY was considered private property in an eminentdomain rpr
oceeding.
Taking: The second element refers to the taking of physical property, or a portion thereof, as
well as the taking of property by reducing itsvalue. Property value may be reduced because of
noise, accessibility problems, or other agents. Dirt, timber, or rock appropriated from anindivi
dual's land for the construction of a highway is taken property for which the owner is entitled
to compensation. In general, compensationmust be paid when a restriction on the use of prope
rty is so extensive that it is tantamount to confiscation of the property.
Some property rights routinely receive constitutional protection, such as Water
Rights. For example, if land is changed from waterfront toinland property by the construction
of a highway on the shoreline, the owners of the affected property are to be compensated for t
heir loss ofuse of the waterfront.
Another property right that is often litigated and routinely protected is the right to the reasona
ble and ordinary use of the space aboveprivately owned land. Specifically, aircraft flights ove
r private property that significantly interfere with the property owner's use may amount toa ta
king. The flights will not be deemed a taking unless they are so low and so frequent as to crea
te a direct and immediate interference withthe owner's use and enjoyment of the property.

Actions by the government that courts do not consider takings include the publication of plan
s or the plotting, locating, or laying out of publicimprovements, including streets, highways, a
nd other public works, even though the publicity generated by such actions might hinder a sal
eof the land.
The courts have traditionally not recognized the regulation of property by the government as
a taking. Regulating property restricts theproperty owner's use and may infringe on the owner
's rights. To implement a regulation, the state exercises its police power and is able tocontrol t
he use of the property. Although the courts recognized a regulation as a taking in 1922, they h
ave been inconsistent in their laterrulings on this issue.
In Pennsylvania Coal Co. v. Mahon, 2the U.S. Supreme Court ruledthat coal mining under
an owner's property was not a taking, despite a subsidence, or settling, of the property's surfac
e. In 1987, the Courtstated that regulations that are excessive require compensation under the
Fifth Amendment (First English Evangelical Lutheran Church ofGlendale v. County of Los A
ngel More recently, the Court determined thatregulations that strip property of value or that d
o not substantially advance legitimate state interests are takings for which compensation is
required
(Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 67
7 [1987]).
Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct.
In that case, the Tahoe Regional Planning Agency had imposed a moratorium on construction
anddevelopment that lasted almost three years while the agency devised rules to protect the w
ater quality of Lake Tahoe on the California-Nevada border. Some of the property owners sue
d, claiming that the moratorium constituted a categorical taking because they were deprivedof
all economically beneficial use of the property during the period of the moratorium.
Public Use: The third element, public use, requires that the property taken be used to benefit
the public rather than specific individuals.Whether a particular use is considered public is ord
inarily a question to be determined by the courts. However, if the legislature has made adeclar
ation about a specific public use, the courts will defer to legislative intent (Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 104 S. Ct.2321, 81 L. Ed. 2d 186 [1984]). Further, "[t]h
e legislature may determine what private property is needed for public purpose but when t
hetaking has been ordered, then the question of compensation is judicial" (Monongahela Na
vigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L. Ed. 463 [1893]).

To determine whether property has been taken for public use, the courts first determined whet
her the property was to be used by a broadsegment of the general public. The definition of pu
blic use was later broadened to include anything that benefited the public, such as tradecenter
s, municipal civic centers, and airport expansions. The U.S. Supreme Court continued to expa
nd the definition of public use to includeaesthetic considerations.
In Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), the Court ruled that slu
ms could be cleared inorder to make a city more visually attractive. The Court in Berman stat
ed further that it is within legislative power to determine whether aproperty can be condemne
d solely to beautify a community.
State courts have also expanded the definition of public use. The Michigan Supreme Court ev
en allowed property to be condemned for theprivate use of the General Motors Company, und
er the theory that the public would benefit from the economic revitalization a new plant woul
dbring to the community (Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616,
304 N. W. 2d 455
The last element set forth in the Fifth Amendment mandates that the amount of compensatio
n awarded when propertyis seized or damaged through condemnation must be fair to the publ
ic as well as to the property owner (Searl v. School District No. 2 of LakeCounty, 133 U.S. 55
3, 10 S. Ct. 374, 33 L. Ed. 740 [1890]). Because no precise formula for determining it exists,
just compensation is thesubject of frequent litigation.
The courts tend to emphasize the rights of the property owner in eminent domain proceeding.
The owner usually has not initiated the actionbut has been brought into the litigation because
his or her property is needed for public use. The owner must participate in the proceedings,w
hich can impose an emotional and financial burden.
The measure of damages is often the fair market value of the property that is harmed or taken
for public use. The market value is commonlydefined as the price that reasonably could have
resulted from negotiations between an owner who was willing to sell it and a purchaser whow
anted to buy it. The value of real property is assessed based on the uses to which it reasonably
can be put. Elements for considerationinclude the history and general character of the area, th
e adaptability of the land for future buildings, and the use intended for the propertyafter its ta
king. Generally, the best use of the land is considered to be its use at the time it was condemn
ed, even though the condemnormight not intend to use the land in the same manner as the ow
ner. Crops, grass, trees, minerals, rental income, and all other items that fairlyenter into the qu
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estion of value are taken into consideration when determining just compensation. The amount
of compensation should bemeasured by the owner's loss rather than by the condemnor's gain,
and the owner should be placed in as good a financial position as he orshe would have been i
n had the property not been taken . The compensation should be paid in cash, and the amount
isdetermined as of the date title vests in the condemnor. Interest is paid on the award until the
date of payment.
INDIA
The power of eminent domain finds its expression in the 1894 Land Acquisition Act. The
jurisprudence that has developed around this Act has placed severe constraints on the
possibility to challenge the power of the state to compulsorily acquire. It sets out what
constitutes public purpose and it hands over land, without encumbrances, to the state to do
whatever it wants with it, at will. The way the law understands persons interested who
would have a right to raise objections, or to contest compensation, leaves no space for
women, except for the exceptional woman who may have eluded the stranglehold of law and
practice to become the holder of a legally demonstrable interest in the land. The computing of
compensation is circumscribed by a set of predetermined factors which are to be considered
in determining compensation
and is restricted to the market value of land; the replacement value is not the norm prescribed
by law. There are also matters to be neglected in determining compensation
which excludes any disinclination of the person interested to part with the land acquired.
In consideration of the compulsory nature of the acquisition
CONSEQUENCES AND IMPACT:
Strictly construed, the notion of eminent domain does not apply to land other than private
land. Yet, because it has not been challenged, and because the relationship of the state to land
has not been re-worked after Independence and the promulgation of the Constitution in 1950,
presumptions have arisen, and begun to set in, that the power to take and to convert to its
priority vests with the state. Consequently, common property has got diverted into projects by
the state without even minimal due process.
This has resulted in the users of these lands getting displaced without so much as a by your
leave, and certainly without compensation. The lack of interrogation about this sweeping
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power assumed by the state has been accompanied by the implicit acceptance that the power
exists to take over, and convert, divert or hand over all land as the state deems fit. It is not
inconceivable that the notion of eminent domain does not accommodate the existence of a
power beyond the taking over of private property. Public land, and the systems of
answerability for diverting public land, will indeed need to answer to a different
understanding of public purpose, as also to whom the land is being handed over.
A leading constitutional expert says (7): Some of the locus classicus cases in Indian
constitutional law have arisen in the area of property rights. The reason for such a
development is that the central and state governments have enacted massive legislation to
regulate property rights.
First, the government undertook to reconstruct the agrarian economy, inter alia, by trying to
confer rights of property on the tiller, abolition of zamindaris, giving security of tenure to
tenants, fixing a ceiling on personal holding of agricultural land and redistributing the surplus
land

among

the

landless.

These were the purposes which gave constitutional sanction to the state exercise of the power
to take over, redistribute and regulate ownership of land. How is it possible to justify
dispossessing the tiller, mass eviction of landless labour, transfer of land rights from the
farmer to corporations, and facilitating the accumulation of large acreages in corporate hands,
based on the same Constitution?
The power of eminent domain draws its sustenance from the notion of sovereignty of the
state. In 2004, while adjudicating on a dispute between two village communities in Nagaland
over the ownership and use of a water source, the Supreme Court said (8): So far as natural
resources like land and water are concerned, dispute of ownership is not very relevant
because undoubtedly the state is the sovereign dominant owner. This was preceded, at the
start of the judgment, with an acknowledgement of the existence of customary law in those
parts: At the outset, it may be stated that the civil rights to the water source and the land in
the hill district of Nagaland comprising the two villages mentioned above are not governed
by any codified law contained in the Code of Civil Procedure and the Evidence Act. The
parties are governed by customary law applicable to the tribal and the rural population of the
hill district of Nagaland.
The disregard for customary law, the relationship of local communities to natural resources
and the presumption about the sovereign power of the state over such resources all indicate
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the power that eminent domain has handed over to the state. There is also the non-advertence
to the Fifth and Sixth Schedules of the Constitution, which negotiate the states right to take
over land differently in a tribal area. There is a special status accorded to tribal areas, which
are termed as scheduled areas, which includes provisions for protecting the continued
possession and enjoyment of lands belonging to tribals, and circumscribes the power of the
state to alienate and transfer land in these areas. In 1997, the Supreme Court reinforced this
status in what is known as the Samatha judgment That seems to have escaped the court when
it made its comment. This is illustrative of the power that eminent domain has handed over to
the state.
The question also arises as to whether sovereign power continues to be vested in the state
after promulgation of the Constitution even in non-tribal areas. The Preamble to the
Constitution proclaims: We, the people of India have resolved to constitute India into a
sovereign republic and to secure to all its citizens justice, social, economic and political.
Does this indicate a change from the understanding deriving from sovereignty as linked with
a ruler or king or queen? Can the constitutional version of sovereignty presume absolute
power in the state over the people? Or is there such a notion as sovereignty belonging to the
people who have arrogated a role to the state to ensure that justice, liberty and equality are
delivered to all in the territory of India? To ask it differently, where does sovereignty reside -in the people, or in the state? Or is an attempt to re-conceptualized sovereignty as belonging
with the people merely at the level of rhetoric, but impractical and therefore to be discarded
in constitutional interpretation and state practice? What if sovereignty is demonstrably a route
to absolute power? It is not improbable that the understanding of sovereignty has been
influenced by its import in international law. Characterized as a term that is notoriously
difficult to pin down it has even yet had to find definition, and scholars of international law
have attempted several definitions. The states sovereignty has been described as
An inquiry into the power of eminent domain may be assisted by acknowledging the many
sites of contest that have opened up with the recognition of the inequities embedded in the
current model of development and displacement. Several questions and issues may be derived
from some current concerns, including the following:
There are whole segments of persons who are displaced but who, it would seem, can be
pushed to the margins of the states concerns because of the limited mandate imposed on the
state by the eminent domain doctrine. Since only landowners have any direct right to be
10

considered during the exercise of the eminent domain power, those who possess no legal title
or interest stand automatically excluded. The landless constitute one such segment. Women,
who have at best been subsidiary constitutional subjects in the matter of landholding and
ownership, and who, the laws of succession, the notion of family and the presumption of
dependency especially have disabled from holding legally defined interest in land, constitute
a significant group among the excluded.

The transition from subject to citizen has not occurred; nor has the constitutional
notion that it is the people who are sovereign evolved. In January 2003, in a judgment of the
Supreme Court, we read these words The power to acquire by state the land owned by
its subjects hails from the right of eminent domain vesting in the state, which is essentially an
attribute of sovereign power of the state.

This is the entrenched understanding of the relationship between the state, the people,
and land. Embedded in a colonial law, and enmeshed in a jurisprudence that recognises
absolute power in the state, an exploration of what changes would occur to the nature of that
power when no longer ruled has not taken place.

So long as judge-made law continues to harbour the language of sovereign power and
subject, it will be near impossible to tame the expansive use of the eminent domain power to
dispossess, displace, impoverish and exclude. In the hierarchy of interests created by this
reading of power is the state as being sovereign, the owner as a person interested and the rest
stand excluded altogether. Issues relating to basic citizenship that are missing in this rendition
include matters of equity, distributive justice, evening out the inequality of ownership, and
the answerability of the state in the priorities it sets under public purpose.

The perception that citizenship does not invade the field of acquisition has assisted in
the assumption and evolution of absolute power. Even in this reckoning, the term subject is
confined to an allusion to those who are owners or persons interested. Those who fall further
and beyond would not qualify for the laws concern. The National Rehabilitation Policy 2003
(14) acknowledges that such classes of people exist who do get involuntarily displaced, but
does not qualify them by rights or by state answerability

. Women collapse into this zone of silence, wherein they are certainly not citizens,
and seemingly not even subjects, for they remain outside the orbit of recognition in law,
practice and judicial dicta. This entrenched understanding of the relationship between the
11

state and the people, and of the absoluteness of the power of eminent domain, has, of
necessity, to be dislodged if the rampant use of the power to take over land is to be stemmed.

The idea that the state is the owner of land, and can deal with it as it will, is not rooted
in eminent domain. Eminent domain only deals with the taking over of land from a person
who has legally recognised rights over the land. In the transfer of land, which is under the
control of the state, to a project authority -- including revenue land and forest land -- notions
of the state as owner, possessing powers beyond that which usually inheres in any person as
owner, prevails.
In law, there is a procedure for change of user of land, which a state must necessarily follow
when diverting the land to a purpose other than that for which the land was intended. For
instance, if land has been declared to be reserved for grazing cattle, it cannot be changed to
any other user without going through a process of consideration and consultation about
changing the nature of the use. The idea that the state owns lands in its control, and that
state ownership is of a higher order than private persons owning land -- since the state can
coercively acquire from a private owner, but such compulsory dispossession cannot be
practised on the state -- has allowed even this minimal procedure to descend into
perfunctoriness.
In the meantime, the popular understanding is that this is part of the eminent domain power
of the state. Technically, this is inaccurate, for as has been explained -- but as necessitates
reiteration -- eminent domain only addresses the taking over of land held in private hands,
and does not reach land already in the control of the state. Thus, state-held lands, which are
diverted to projects, have to have a different order and process of public answerability. Yet,
constitutionally, there has been no investigation into the nature of the relationship between
the state and the land -- is it that of an owner, trustee, re-distributor, landlord, super-landlord
(as the zamindars demanded to know, derisively, in State of Bihar vs Kameshwar Singh
1952), or something else altogether?

In treating mass displacement as inevitable, and surrendering vast swathes of land to

corporate houses as relatable to a calculus of opportunity costs, concerns about
impoverishment and immiseration, the imperative of finding the least displacing alternative,
protecting fundamental human rights and state policies on housing, livelihood and protection
from exploitation are elaborately ignored. The width of the power to dispossess and transfer
12

that is presumed to be implicit in eminent domain has made this possible. In fact, mass
displacement is not even within the ken of the doctrine of eminent domain. So then, where is
this absolute and unilateral power of the state located? Only when that is identified can there
be a re-negotiation of this power.
CONCEPT OF EMINENT DOMAIN IS NECESSARY:An inquiry into eminent domain demonstrates that the power of eminent domain has been
interpreted as being close to absolute power of the state over all land and interests in land
within its territory. The effect of this has been that those without access to land and rights
over land (including the landless, artisans, women as a composite group), those who may
have use rights but no titles, communities holding common rights and others with inchoate
interests, have had to bear the burden heaved on to them by eminent domain. s. This is not a
replication of the zamindari system of wealth transfer by the use of state power, but a neoliberal version of it.
Mining and Special Economic Zones (SEZs) have been added to the arenas of contest,
wherein the contestants are made even more unequal by law and state force, which are
deployed in effecting the transfer. There are nuances that have begun to enter state practice,
wherein, for instance, corporations are being advised to buy land in the open market. In
such cases, the need for the state to intervene to secure the interests of the landholders is
being recognised, even as the potential of a fair transaction of sale is not discounted. Other
arrangements, including shareholding and leasing as opposed to outright sale, require the
state to step in to conceive and implement alternative arrangements that will allow for varied,
but responsible, uses of land, without dispossession being a necessary consequence.
While these changes are occurring with remarkable swiftness, the status of the recognised
property interests of women, the landless and the marginal farming and artisan communities
does not even feature in the discourse. It is the zone of neglect that these communities
inhabit. Dislodging the current appreciation of the doctrine of eminent domain is a necessary
first step in the route to a return to equity, distributive justice and the limiting of the
extraordinary and absolute power that the doctrine has been allowed to vest in the state.

13

The Process of Eminent Domain

Eminent domain law and legal procedures vary, sometimes significantly, between
jurisdictions. Usually, when a unit of government wishes to acquire privately held land, the
following steps (or a similar procedure) are followed:

The government attempts to negotiate the purchase of the property for fair value.

If the owner does not wish to sell, the government files a court action to exercise
eminent domain, and serves or publishes notice of the hearing as required by law.

A hearing is scheduled, at which the government must demonstrate that it engaged in

good faith negotiations to purchase the property, but that no agreement was reached.
The government must also demonstrate that the taking of the property is for a public
use, as defined by law. The property owner is given the opportunity to respond to the
government's claims.

If the government is successful in its petition, proceedings are held to establish the
fair market value of the property. Any payment to the owner is first used to satisfy any
mortgages, liens and encumbrances on the property, with any remaining balance paid
to the owner. The government obtains title.

If the government is not successful, or if the property owner is not satisfied with the
outcome, either side may appeal the decision.

Takings
There are several types of takings which can occur through eminent domain:
Complete Taking - In a complete taking, all of the property at issue is appropriated.
Partial Taking - If the taking is of part of a piece of property, such as the condemnation of a
strip of land to expand a road, the owner should be compensated both for the value of the
14

strip of land and for any effect the condemnation of that strip has on the value of the owner's
remaining property.
Temporary Taking - Part or all of the property is appropriated for a limited period of time.
The property owner retains title, is compensated for any losses associated with the taking, and
regains complete possession of the property at the conclusion of the taking. For example, it
may be necessary to temporarily use a portion of an adjacent parcel of property to complete a
construction or highway project.
Easments and Rights of Way - It is also possible to bring an eminent domain action to
obtain an easement or right of way. For example, a utility company may obtain an easement
over private land install and maintain power lines. The property owner remains free to use the
property for any purpose which does interfere with the right of way or easement.
Fair Value
Fair value is usually considered to be the fair market value - that is, the highest price
somebody would pay for the property, were it in the hands of a willing seller. The date upon
which the value is assessed will vary, depending upon the governing law. If the parties do not
agree on the value, they will typically utilize appraisers to assist in the negotiation process. If
the case is litigated, both sides will ordinarily present expert testimony from appraisers as to
the fair market value of the property.
Just Compensation
At times, fair value includes more than the price of an item of property or parcel of real
estate. If a business is operating from the condemned real estate, the owner is ordinarily
entitled to compensation for the loss or disruption of the business resulting from the
condemnation. In a minority of jurisdictions, the owner may also be entitled to compensation
for loss of "goodwill", the value of the business in excess of fair market value due to such
factors as its location, reputation, or good customer relations. If the business does not own the
land, but leases the premises from which it operates, it would ordinarily be entitled to
compensation for the value of its lease, for any fixtures it has installed in the premises, and
for any loss or diminishment of value in the business.
Public Use
15

Ordinarily, a government can exercise eminent domain only if its taking will be for a "public
use" - which may be expansively defined along the lines of public "safety, health, interest, or
convenience". Perhaps the most common example of a "public use" is the taking of land to
build or expand a public road or highway. Public use could also include the taking of land to
build a school or municipal building, for a public park, or to redevelop a "blighted" property
or neighborhood.
Abuses of Eminent Domain
In recent decades there has been growing concern about the manner in which some states and
units of government exercise their power of eminent domain. Some governments appear
inclined to exercise eminent domain for the benefit of developers or commercial interests, on
the basis that anything that increases the value of a given tract of land is a sufficient public
use. Critics respond that this is absurd, and that there are few properties, no matter how
upscale, which could not be made more valuable if developed in a different manner. They
also note that if a developer is unable to purchase the property on the open market, it is
unlikely that the landowners will truly be offered the value of the property through
condemnation proceedings. The governmental response to that point is that the law of
eminent domain arose from the experience that some property owners are unwilling to
negotiate a reasonable sale price, and such unreasonableness should not provide a basis to
extort an above-market price or to prevent the completion of a public project.
For example, in one case a town wished to exercise eminent domain over a residential
neighborhood, so that an upscale condominium development could be built on that land. To
advance that goal, they defined any home within the neighborhood as "blighted" if it did not
have three bedrooms, two bathrooms, an attached two car garage, and central air
conditioning. The homeowners challenged the definition in court, and were ultimately
successful in fighting
RIGHT TO PROPERTY:
Various amendments were made to Art. 31 and finally it was repealed. In the 1949
constitution there were two articles providing the right to property, i.e. Art. 19(1) (f) and Art.
31, but both these articles were deleted from the Indian Constitution by the 44rth Amendment
Act.
16

Article 31 with sub heading Right to Property has been omitted by the Constitution Forty
Fourth Amendment Act 1978. Article 31(1) has been shifted to article 300A as a new
insertion in Chapter IV in part XII of the constitution. The shifting of Article 31(1) and
omitting Article 31 signify that fundamental right to property is abolished.
The right to property under the Indian constitution tried to approach the question of how to
handle property and pressures relating to it by trying to balance the right to property with the
right to compensation for its acquisition through an absolute fundamental right to property
and then balancing the same with reasonable restrictions and adding a further fundamental
right o compensation in case the properties are acquired by the state. This was exemplified by
Article 19(1)(f) balanced by Article 19(5) and the compensation article in Article 31. This
was an interesting development influenced by the British of the idea Eminent Domain but
overall it struck an interesting balance whereby it recognized the power of the state to acquire
property, but for the first time in the history of India for a thousand years or more, it
recognized the individuals right to property against the state.
After 1978, in the area of property, there were only four constitutional provisions i.e. A. 31,
31B, 31C and 300A. Though A. 31A, 31B and 31C are included in the chapter of
fundamental rights they cannot be called as fundamental rights in the real sense, as they do
not confer fundamental right but impose certain restriction on right to property. The main
object of these provisions was to provide immunity to various laws curtailing property rights.
Review of Literature
The object behind the amendment is considered to abolish the large land holdings with
zamindars and other rich people and to distribute it to the landless peasants. But now when
the object seems to be almost achieved the importance of this amendment is in question.
44th constitutional amendment eliminated the right to property as a fundamental right. After
44th amendment right to property became a statutory right. Article 31 which contained right
to property was shifted to Article 300. This transfer was done to affirm that no person is
deprived of his property save by the authority of law. The amendment expanded the power of
the state to appropriate property for social welfare purposesAlong with the doctrine of
Eminent Domain, various cases which are very important to complete the study of the right to
property are also analysed in this project. The article 31A, B and C were added through
amendments.
17

Scope
This research project will depict the real situation between the earlier article 31 and the
amended article, the need for insertion of clause A, B and C to the amended article, and the
transition of right to property from fundamental right to a statutory right. For a detailed study
of Right to Property after 1978, one has to look to Art. 31A, B and C. along with these three
Articles, A. 300A also plays a major role in the area of property rights. This article confers
the status of constitutional right to a person with regards to property.
Doctrine of Eminent Domain and Right to Property
Doctrine of Eminent Domain is a concept in the American Constitution. It is the acquisition
of private property by the state for a public purpose with paying certain amount of
compensation. Initially when India got Independence, the legislature to abolish the Zamindari
System, enacted various laws through which it took the property from various land holders
and used it for public purpose. Many a times mala-fide intention can be seen achieved
through this doctrine.
There are two essentials of the Doctrine of Eminent Domain:
1. Property is taken for public use
2. Compensation is paid for the property taken.
In Indian Constitution, Entry 42 of List III speaks about acquisitioning and requisitioning of
property. In the case of State of Bihar v Kameshwar Singh , Supreme Court defined eminent
Domain as the power of a sovereign to take property for public use without the owners
consent upon making just compensation.
Article 31A, 31B and 31C as well as Art. 300A are the existing constitutional provisions
concerning private property.
Emergence of Article 31 A
This Article was added to the Constitution of India by the First Amendment, 1951. Later, the
Fourth Amendment substituted various clauses in it.
Article 31 A -Saving of certain laws
Article 31A - (1) Notwithstanding anything contained in Article 13, no law providing for 18

(a) The acquisition by the State of any estate or of any rights therein or the extinguishment or
modification of any such rights, or
(b) The taking over of the management of any property by the State for a limited period either
in the public interest or in order to secure the proper management of the property, or
(c) The amalgamation of two or more corporations either in the public interest or in order to
secure the proper management of any of the corporations, or
(d) The extinguishment or modification of any rights of managing agents, secretaries and
treasurers, managing directors, directors or managers of corporations, or of any voting rights
of shareholders thereof, or
(e) The extinguishment or modification of any rights accruing by virtue of any agreement,
lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or
the premature termination or cancellation of any such agreement, lease or licence
shall be deemed to be void on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Article 14 or Article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of
this article shall not apply thereto unless such law, having been reserved for the consideration
of the President, has received his assent:
History behind Article 31A
After independence when Congress was in power at centre it decided to launched the
abolition of Zamindari Program me in which it abolished the Zamindari system and acquired
the lands of Zamindars. But the main difficulty before the government was of paying
compensation. In A. 31(2) the word compensation was used without any adjective like just or
reasonable. Thus Supreme Court interpreted its meaning as just compensation. Various land
legislations were declared invalid and were challenged under Article 14 and 19(1)(f). In
Kameshwar Singh v State of Bihar , the Bihar Land Reforms Act, 1950 was held invalid
under A. 14 for it classified the zamindars in a discriminatory manner for the purpose of
compensation. Therefore, finding Zamindari Abolition Programme in danger because of these
judicial pronouncements, the central government amended the Constitution and a new
provision A. 31A was added .

19

This new article laid down that no law providing for the acquisition by the state of any estate
or of any rights therein, or for the extinguishing or modifying any such rights, would be void
on the ground of any inconsistency with any of the fundamental rights contained in A. 14, 19
and 31. As A. 31 was the only Constitutional Provision providing for compensation, which
means an estate can be acquired or rights can be modified without paying compensation . The
only exception was that such law should receive the assent of the President.
After the 44th Amendment Act in which A. 31 was repealed, consequently Article 31 was
removed from A. 31A(1). The word estate in sub clause (a) of Article 31A (1) is defined in
clause 2(a) to have the same meaning as that expression or its local equivalent has in the
existing law relating to the land tenures in force in that area, and by inclusive definition it
takes in any jagir, inam or muafi or other similar grants and in the states of Tamil Nadu and
Kerala any Janman rights. The object of Article 31A (1)(a) is to bring a change in the
agricultural economy and facilitate agrarian reforms and it is applied to legislations affecting
the rights of landlords and tenants .
In K.K. Kochuni v State of Madras , it was held that the protection of this clause is not
applicable to a law which seeks to modify the rights of the owner without any reference to
agrarian reforms. In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd. , the court
held that there has to be a direct nexus between the subject matter acquired and its utilisation
for agrarian reforms.
The second proviso to A. 31A (1) refers to ceiling limits. This proviso says that the land
exempted from acquisition should be within the ceiling limit and must be under personal
cultivation. The Supreme Court in the case of Bhagat Ram v State of Punjab , interpreted
the object of this proviso. The Court said that a person who is cultivating land personally and
it is his source of livelihood, should not be deprived of that land under nay law protected by
A. 31A unless the compensation at market rate is given.
Constitutionality of 31A
In Ambika Mishra v State of UP , the Supreme Court upheld the constitutionality of clause
(a) of Article 31A (1) on the test of basic structure. In Minerva Mills v Union of India , the
Court held that the whole of Art. 31A is unassailable on the basis of stare decisis, a quietus
that should not allowed to be disturbed.

20

In Waman Rao and I R Coelho case, the First Amendment in which the Art. 31A was
introduced and Fourth Amendment which substituted new clauses to this Article has been
held constitutional. Therefore relying on the judgments of Minerva Mills, Waman Rao and
Coelho case Article 31A can be stated as constitutionally valid.
Emergence of Article 31 B: Validation of certain Laws
Art.31A was added to the Constitution by the Constitution (First Amendment) Act, 1951. It
was added as a constitutional device to protect the specified statutes from any attack on the
ground that they infringe Part III of the Constitution . It has retrospective effect which is clear
from the words ever to have become void . The introduction of this provision has cure the
defects in various acts of the Ninth schedule as regards to the unconstitutionality alleged on
the grounds of infringement of Part III of the Constitution, these acts even if void or
inoperative at the time, they were inactive by reason of infringement of Article 13(2) of the
constitution assumes full force from the respective dates of their enactment after their
inclusion in the Ninth schedule read with Article 31B of the Constitution. The Ninth schedule
consists of 284 legislations until the constitution (78th amendment) act, 1995 but article 31B
did not empower the legislatures to amend these acts inconsistently with the provisions of the
constitution or to take away the rights conferred by the Constitution. The amendments must
be consistent with the provision of the Constitution or be saved under Article 31A of the
Constitution, if not they must be held void.
A question was raised in Prag Ice And Oil Mills v. Union Of India whether article 31B
saved the orders and notifications issued under Section 3 of the Essential Commodities Act
1955 which was already included in the Ninth schedule but as was already decided in
Godavari Sugar Mills Ltd. v. S.B Kamble that the amendments to ac act subsequent to an
inclusion of an act in the Ninth schedule were not entitled to the protection of Article 31B.
The Supreme Court dismissed the petition as the act did not violate the petitioners rights
under Article 14 and 19, it was explained by the court that when a particular act or regulation
is placed in the Ninth schedule, the parliament may be assumed to have applied its mind to
the provisions of the particular act and the desirability, propriety or necessity of placing it in
the Ninth schedule and such an assumption cannot in the very nature of things be made in the
case of an order issued under an Act or Regulation placed in the Ninth schedule.
Constitutional Validity of Article 31B

21

Bhim Singhji v. Union of India . In I.R. Coelho v. State of Tamil Nadu the nine judge bench
of the Supreme Court unanimously decided that as held in Keshavananda Bharti case and
later clarified in Keshavananda Bharti case are immune from any challenge on the grounds of
violation of fundamental rights or basic structure and the Acts included after the decision
shall be open to challenge. The Court reaffirmed that Article 31B did not destroy or damage
the basic structure of the Constitution.
Emergence of Article 31 C
Insertion of Article 31-C by the Twenty-Fifth Amendment
Article 31-C Notwithstanding anything contained in Article 13, no law giving effect to the
policy of the state towards securing [all or any of the principles laid down in Part IV] shall be
deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of
the rights conferred by [Article 14 or Article 19] and [no law containing a declaration that it
is for giving effect to such policy shall be called in question in any court on the ground that it
does not give effect to such policy].
Provided that where such law is made by the Legislature of a State, the provisions of this
Article shall not apply thereto unless such law, having been reserved for the consideration of
the President, has received his assent Right to Constitutional Remedies.
The insertion of this article made A. 14, 19 and 31 inapplicable to certain laws made by
Parliament or any legislature. Along with this it was also added that a declaration in the law
that is to implement the directive principles enshrined in A. 39(b) and (c) cannot be
questioned in a court of law. Therefore, the insertion of this article granted complete
immunity to a law from judicial scrutiny if the President certified that it was enacted to
promote the policy laid down in A. 39(a) and (b). The provisions of this Article would apply
only if the law had received the assent of the President
History behind Article 31C
This article was inserted by the 25th Constitutional Amendment to get over the difficulties
placed by judicial decisions in the way of giving effect to the Directive Principles in Part
IV..In the 25th amendment it was further provided that such law made to give effect to the
policy under Article 39(b) and (c), would not be open to judicial review.

22

However, this second part was struck down in Keshavananda Bharti v State of Kerala ,
but rest of the Article was held valid. After this amendment 42nd Constitutional Amendment
Act was passed by the Parliament which replaced Article 39(b)-(c) by all Directives
contained in Part IV of the Constitution.
The part which was held unconstitutional in the Keshavananda Case was not omitted from
the official text of the Constitution, since later cases seems to restrict the scope of judicial
review of the statutory declaration only to the narrow question whether there is a reasonable
nexus between the act passed and the objects of the directive it seeks to implement. But in the
Minerva mills v Union of India , it was held that extending the immunity of Article 31C to
all the Directives of Part IV by the 42nd amendment was unconstitutional, thus, Article 31C
is confined to its pre 1976 position, which has not been overruled by any larger bench yet.
Decisions given by court on the constitutionality of Article 31C
The validity of the 25th Constitutional Amendment was questioned in Keshavananda Bharti
v State of Kerala , Sikri C.J. held that since Parliament cannot under article 368 abrogate
fundamental rights; equally it cannot enable the legislature to abrogate them. Therefore article
31C must be declared unconstitutional. The second part of Article 31C was held
unconstitutional on the ground that it ousted the jurisdiction of the Courts which is a basic
feature of the constitution and which cannot be done away with a amendment under Article
368.
Minerva Mills Ltd. v. Union of India , The extended version of article 31C was struck
down by the Supreme Court. The Court ruled that the extension of the shield of article 31C to
all the Directive Principles was beyond the amending power of Parliament under article 368
because by giving primacy to all Directive Principles over the Fundamental Rights in articles
14 and 19, the basic or essential features of the constitution viz., judicial review has been
destroyed.
Waman Rao v. Union of India , The Supreme Court maintained that article 31C as it stood
prior to the 42nd Amendment Act made in 1978, was valid as its constitutionality had been
upheld in Keshavananda Bharti case.
Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. , The Supreme
Court struck down article 31C as unconstitutional (Amended portion in 42nd Amendment
23

Act) on the ground that it destroys the "basic features" of the Constitution. The goal set out in
Part IV has to be achieved without abrogating the means provided for by Part III. Thus there
is no conflict between the directive principles and the fundamental rights. These are meant to
supplement one another. The Court held that article 31C as originally introduced by the 25th
Amendment is constitutionally valid.
I.R. Coelho v. State of Tamil Nadu , the Supreme Court held that any law which infringes
basic structure of the Constitution can be struck down. Parliament has power to amend Part
III so as to abridge or take away fundamental rights but that power is subject to the limitation
of basic structure doctrine. There should be a balance between fundamental rights an
Directive Principles of State Policy.
Conditions for applicability of Article 31C
There are two conditions which must be fulfilled for the application of Article 31 C
1. A law for giving effect to the policy of the state to implement a Directive Principle in
Article 39(b) or (c).
2. The Legislature making a declaration to that effect.
But the question that whether the act is intended to secure the object contained in Article
39(b)-(c) does not depend upon the declaration made by the legislature but upon the contents
of the act as found by the court.
The constitution was amended in the year 1951 for the first time. This amendment led to
several modifications in the fundamental rights and started the era of land reform through
constitutional mechanism. It has introduced .two new articles namely 31A and 31B and the
infamous ninth schedule so as to make the laws acquiring zamindars unchallengeable in the
Court of law. This was because of the land reform legislations were being challenged before
various high courts like Patna, Nagpur, Allahabad etc on the ground of inconsistency with the
fundamental rights specially Article 14..But the High Court varied in their opinions. These
kinds of litigations were causing delay in the process of agrarian reforms which was supposed
to be speedy. Therefore it was thought to bypass these wasteful litigations in order to give
true effect to the land reform process. In this project the main focus was the constitutional
validity of Articles 31A, 31B and 31C. It was strongly argued against the protective nature of
these articles which exclude all possibilities of challenge to the laws included under the
24

shield. It was argued in litigations that such shield will violate certain fundamental rights
enshrined under part IIII of the constitution

Why is there a need for a new Bill?

There is unanimity of opinion across the social and political spectrum that the current Law
(The Land Acquisition Act 1894) suffers from various shortcomings. Some of these include:
Forced Acquisitions: Under the 1894 legislation once the acquiring authority has formed the
intention to acquire a particular plot of land then then it can carry out the acquisition
regardless of how the person whose land is sought to be acquired is affected.
No Safeguards: There is no real appeal mechanism to stop the process of the acquisition. A
hearing (under section 5A) is prescribed but this is not a discussion or negotiation. The views
expressed are not required to be taken on board by the officer conducting the hearing.
Silent on Resettlement & Rehabilitation of those displaced: There are absolutely no
provisions in the Bill relating to the resettlement and rehabilitation of those displaced by the
acquisition.
Urgency Clause: This is the most criticised section of the Law. The clause never truly
defines what constitutes an urgent need and leaves it to the discretion of the acquiring
authority. As a result almost all acquisitions under the Act invoke the urgency clause. This
results in the complete dispossession of the land without even the token satisfaction of the
processes listed under the Act.
Low Rates of Compensation: The rates paid for the land acquired are the prevailing circle
rates in the area which are notorious for being outdated and hence not even remotely
indicative of the actual rates prevailing in the area.
Litigations: Even where acquisition has been carried out the same has been challenged in
litigations on the grounds mentioned above. This results in the stalling of legitimate
infrastructural projects.
Recent Observations by the Supreme Court: Justice GanpatSinghvi of the Supreme Court of
India has observed, in the wake of repeated violations that have come to light over the last
few months, that the Land Acquisition Act 1894 has "become a fraud". He further observed
25

that the law seems to have been drafted with "scant regard for the welfare of the common
man".
Another bench of the Hon'ble Supreme Court has echoed this sentiment in its observation
that

"[T]he provisions contained in the Act, of late, have been felt by all concerned, do not
adequately protect the interest of the land owners/persons interested in the land.

The Act does not provide for rehabilitation of persons displaced from their land although by
such compulsory acquisition, their livelihood gets affected To say the least, the Act has
become outdated and needs to be replaced at the earliest by fair, reasonable and rational
enactment in tune with the constitutional provisions, particularly, Article 300A of the
Constitution.
We expect the law making process for a comprehensive enactment with regard to acquisition
of land being completed without any unnecessary delay."
What are the Highlights of this New Bill?
Compensation: Given the inaccurate nature of circle rates, the Bill proposes the payment of
compensations that is up to 4 times the market value in rural areas and 2 times the market
value in urban areas.
R&R: This is the very first law that links land acquisition and the accompanying obligations
for resettlement and rehabilitation. Over five chapters and two entire Schedules have been
dedicated to outlining elaborate processes (and entitlements) for resettlement and
rehabilitation. The Second Schedule in particular outlines the benefits (such as land for land,
housing, employment and annuities) that shall accrue in addition to the one-time cash
payments.
Retrospective Operation: To address historical injustice the Bill applies retrospectively to
cases where no land acquisition award has been made. Also in cases where the land was
acquired five years ago but no compensation has been paid or no possession has taken place

26

then the land acquisition process will be started afresh in accordance with the provisions of
this act.
Multiple Checks and Balances: A comprehensive, participative and meaningful process
(involving the participation of local Panchayati Raj Institutions) has been put in place prior to
the start of any acquisition proceedings. Monitoring Committees at the National and State
Level to ensure that R&R obligations are met have also been established.
SUGGESTION: Special Safeguards for Tribal Communities and other disadvantaged groups: No law can be
acquired in Scheduled Areas without the consent of the Gram Sabhas. The Law also ensures
that all rights guaranteed under such legislations as the Panchayat (Extension to Scheduled
Areas) Act 1996 and the Forest Rights Act 2006 are taken care of. It has
special enhanced benefits (outlined in a dedicated chapter) for those belonging to the
Scheduled Castes and Scheduled Tribes.
Safeguards against displacement: The law provides that no one shall be dispossessed until
and unless all payments are made AND alternative sites for the resettlement and rehabilitation
have been prepared. The Third Schedule even lists the infrastructural amenities that have to
be provided to those that have been displaced.
Compensation for livelihood losers: In addition to those losing land, the Bill provides
compensation to those who are dependent on the land being acquired for their livelihood.
Consent: In cases where PPP projects are involved or acquisition is taking place for private
companies, the Bill requires the consent of no less than 70% and 80% respectively (in both
cases) of those whose land is sought to be acquired. This ensures that no forcible acquisition
can take place.
Caps on Acquisition of Multi-Crop and Agricultural Land: To safeguard food security and to
prevent arbitrary acquisition, The Bill directs States to impose limits on the area under
agricultural cultivation that can be acquired.
Return of Unutilised Land: In case land remains unutilised after acquisition, the new Bill
empowers states to return the land either to the owner or to the State Land Bank.

27

 Exemption from Income Tax and Stamp Duty: No income tax shall be levied and no stamp
duty shall be charged on any amount that accrues to an individual as a result of the provisions
of the new law.
Share in appreciated land value: Where acquired land is sold to a third party for a higher
price then 40 per cent of the appreciated land value (or profit) will be shared with the original
owners.

What are the Rehabilitation and Resettlement provisions for farmers, landless and livelihood
losers?
Reduced Qualifying Criteria: To qualify for benefits under this Act the time period has been
reduced to 3 years of dependence (on the acquired land) instead of 5.
Affected Family to include tenants: The definition of affected family includes agricultural
labourers, tenants including any form of tenancy or holding of usufruct right, share-croppers
or artisans who may be working in the affected area for 3 years prior to the acquisition,
whose primary source of livelihood stand affected by the acquisition of land
Houses for all affected families: All affected families are entitled to a house provided they
have been residing in an area for 5 years or more and have been displaced. If they chose not
to accept the house they are offered a one-time financial grant in lieu of the same.
Choice of annuity or employment: All affected families are given a choice of annuity or
employment;

i. If employment is not forthcoming they are entitled to a one time grant of 5 lakh rupees per
family.
ii. Alternatively they will provided with an annuity payment of Rupees 2000 per month per
family for twenty years (this will be adjusted for inflation).
Subsistence Allowance: All affected families which are displaced from the land acquired
shall be given a monthly subsistence allowance equivalent to rupees 3000 per month for a
period of one year from the date of award.

28

 Training and Skill Development: All affected families are also given training and skill
development while being offered employment.
Miscellaneous Amounts: All affected families are given multiple monetary benefits such as
transport allowance of rupees 50,000 and resettlement allowance of rupees 50,000.
One-Time Financial Assistance: Each affected family of an artisan, small trader or selfemployed person shall get one-time financial assistance of such amount as the appropriate
Government may, by notification, specify subject to a minimum of twenty-five thousand
rupees.
R&R to be completed in all aspects for irrigation projects: In case of acquisition of land for
irrigation or hydel project the rehabilitation and resettlement shall be completed six months
prior to submergence of the lands proposed to be so acquired.
Possession upon fulfilment of conditions under Act: The Collector shall take possession of
land only ensuring that full payment of compensation as well as rehabilitation and
resettlement entitlements are paid or tendered to the entitled persons within a period of three
months for the compensation and a period of six months for the monetary part of
rehabilitation and resettlement entitlements commencing from the date of the award.
However, families will not be displaced from this land till their alternative R&R sites are
ready for occupation.
Time Limit for provision of R&R entitlements: The components of the Rehabilitation and
Resettlement Package in the Second and Third Schedules that relate to infrastructural
entitlements shall be provided within a period of eighteen months from the date of the award.

Land Acquisition, Rehab, Resettlement Act (LARR) 2013

Salient features of LARR-2013 Act?
Colonial Act 1894
LARR Act 2013
The term public purpose Clearly defines various types of public purpose projects for
was ambiguous and open to which, Government can acquire private land. (Refer to
Governments discretion
appendix-1)
Land could be acquired
For private project, 80% affected families must agree.
forcibly.
29

For PPP project, 70% affected families must agree.

Only then land can be acquired.

Under Social impact assessment (SIA) even need to obtain

They were given no voice in
decision making.

consent of the affected artisans, laborers, share-croppers, tenant

farmers, fishermen, small traders, Desi-liquor den owners etc.
whose (sustainable) livelihood will be affected because of the
given project.

Government was free to

decide how much money to
pay while acquiring private
land.

Compensation proportion to market rates.

4 times the market rate in rural area.

2 times in urban area.

Affected artisans, small traders, fishermen etc. will be

given one-time payment, even if they dont own any
land.

To ensure food security:

1. Fertile, irrigated, multi-cropped farmland can be
No

such

fertile land

restrictions

acquired only in last resort.

on

2. If such fertile land is acquired, then Government will

have to develop equal size of wasteland for agriculture
purpose.

if Government acquires the lands for private companythe said private company will be responsible for relief
and rehabilitation of the affected people.

Additional rehab.package for SC/ST owners. Examplefishing rights over dam, 25% extra money if settled

30

outside their native district and so on.

State Governments have to setup dispute settlement authorities.

No such safeguards

Chairman must be a district judge or lawyer for 7 years.

Head of the department will be made responsible, for any

No such accountability

offense

or

mischief

played

from

Governments

side.

(althoughthis made the officers very cautious given the mediatrials. Theyd sit on the files instead of taking any action).

If project did not start, then

acquired land was secretly If project doesnt start in 5 years, land has to be returned to the
sold/leased

to

private original owner.

players at sky-high prices.

1894s land act was bogus and exploitive. So Congress government enacted new law
in 2013, with provisions for social impact assessment, fair compensation, dispute
settlement and other fancy things.

LARR-2013 Act became effective from 1st January 2014.

But, this LARR Act-2013 established an extremely complex and impractical land
acquisition process.

Holdouts: Jholachhap NGOs would instigate 20-25% of the affected families to stage
holdout- promising them itll fetch them even higher prices. and Given the 70-80%
consent requirement, the project will never kickoff.

Litigation: because local (and therefore corruption) Patwari and Tehsildars never
maintain proper land records of who owns how much land.

This raised the land prices, red tapism and thus the overall project cost.

Neither the farmer could sell its land and move to urban areas, no the entrepreneur
could buy the land and move towards rural areas.

Combined with Environment-activism and policy paralysis of UPA regime, the end
result was infrastructure bottleneck, high inflation and fall in GDP.
31

CONCLUSION:The validity of the article 31A was challenged stating that it fetters the fundamental rights
and is therefore contrary to the basic structure of the constitution. But the Court rejected this
by saying that every case where the protection of the fundamental right is withdrawn cant be
something that is damaging the basic structure. the Court referred to the historical view of the
Constitution 1st Amendment Act and said that the 1st amendment was aimed in removing the
social and economic disparities in the agricultural sector. But while removing wide disparities
it is impossible for any government to remove all the disparities without causing certainn
hardship to a classs of people who are also entitled to equal treatment under the law. It is thus
concluded that the 1st amendment of the constitution does not violate any basic structure of
the constitution.
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