DOCTRINE OF EMINENT DOMAIN AND LAND ACQUISITION

STATUTES AND ITS INTERPRETATION

A Project Made By

Name- BABLI RAJ

Roll No- 1523

Class- B.A. LL.B

Submitted to – Prof. Dr. S. Ali Mohammad

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitle
“DOCTRINE OF EMINENT DOMAIN AND LAND ACQUISITION STATUTES AND ITS
INTERPRETATION”

Submitted at Chanakya National Law University, Patna is an authentic record of my work

carried out under the supervision of Prof. Dr. S. Ali Mohammad. I have not submitted this
work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

BABLI RAJ
Chanakya National Law University, Patna

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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor
Dr. S. Ali Mohammad for, helping me in making the project on “DOCTRINE OF EMINENT
DOMAIN AND LAND ACQUISITION STATUTES AND ITS INTERPRETATION” for his valuable
suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who did a lot of
help for the completion of this project. The contributions made by my classmates and friends
are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also
like to thank the persons asked for help by me without whose support this project would not
have been completed.

I would like to express my gratitude towards the Almighty for obvious reasons. Moreover,
thanks to all those who helped me in any way be it words, presence, encouragement or
blessings...

-BABLI RAJ

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Table of Contents
DECLARATION BY THE CANDIDATE............................................................................................. 2
ACKNOWLEDGEMENT ...................................................................................................................... 3
INTRODUCTION .................................................................................................................................. 5
OBJECTIVE OF THE STUDY .......................................................................................................... 6
HYPOTHESIS .................................................................................................................................... 6
RESEARCH METHODOLOGY ........................................................................................................ 6
STYLE OF WRITING ........................................................................................................................ 6
SCOPE AND LIMITTATIONS OF THE STUDY ............................................................................ 6
MEANING OF EMINENT DOMAIN ................................................................................................... 7
POWER OF EMINENT DOMAIN IN INDIA ....................................................................................... 9
EMINENT DOMAIN AND THE LAND ACQUISITION ACT ......................................................... 12
CONSTITUTIONAL VALIDITY OF LAND ACQUISITION ........................................................... 14
PROTECTION OF INDIVIDUAL PROPERTY AGAINST ARBITRARY EXECUTIVE
AUTHORITY ....................................................................................................................................... 16
CONCLUSION ..................................................................................................................................... 21

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INTRODUCTION
The term “eminent domain” was taken from the legal treatise De jure belli ac pacis (On the
Law of War and Peace), written by the Dutch jurist Hugo Grotius in 1625,1 which used the
term dominium eminens (Latin for supreme lordship) and described the power as follows:

The property of subjects is under the eminent domain of the state, so that the state or those
who act for it may use and even alienate and destroy such property, not only in the case of
extreme necessity, in which even private persons have a right over the property of others, but
for ends of public utility, to which ends those who founded civil society must be supposed to
have intended that private ends should give way. But, when this is done, the state is bound to
make good the loss to those who lose their property.

The exercise of eminent domain is not limited to real property. Condemnors may also take
personal property, even intangible property such as contract rights, patents, trade secrets,
and copyrights. Even the taking of a professional sports team's franchise has been held by the
California Supreme Court to be within the purview of the “public use” constitutional
limitation, although eventually, that taking (of the Oakland Raiders' NFL franchise) was not
permitted because it was deemed to violate the interstate commerce clause of the U.S.
Constitution.

A taking of property must be accompanied by payment of “just compensation” to the

(former) owner. In theory, this is supposed to put the owner in the same position
“pecuniarily” that he would have been in had his property not been taken. But in practice
courts have limited compensation to the property's fair market value, considering its highest
and best use. But though rarely granted, this is not the exclusive measure of compensation;
see Kimball Laundry Co. v. United States (business losses in temporary takings) and United
States v. Pewee Coal Co. (operating losses caused by government operations of a mine seized
during World War II). In most takings owners are not compensated for a variety of incidental
losses caused by the taking of their property that, though incurred and readily demonstrable
in other cases, are deemed by the courts to be non compensable in eminent domain. The
same is true of attorneys' and appraisers fees. But as a matter of legislative grace rather than
constitutional requirement some of these losses (e.g., business goodwill) have been made

1
Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West.
p. 263

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compensable by state legislative enactments, and in the U.S. may be partially covered by
provisions of the federal Uniform Relocation Assistance Act.

OBJECTIVE OF THE STUDY

1. To study about Land Laws in India
2. To do a full research on application of doctrine of eminent domain in India

HYPOTHESIS
The doctrine of eminent domain is based on the principle that the independent can do
anything, if the act of sovereign includes public interest.

RESEARCH METHODOLOGY
The researcher has used only doctrinal method of research for the accomplishment of this
project and relied upon the websites and library of CNLU.

STYLE OF WRITING
The researcher has used both descriptive and analytical styles of writing.

SCOPE AND LIMITTATIONS OF THE STUDY

Though the researcher has tried her level best not to leave any stone unturned in doing this
project work to highlight various aspects relating to the topic, but the topic is so dynamic
field of Economics and Law, the researcher will sight with some of unavoidable limitations.
The limitations encountered by the researcher were the paucity of time.

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MEANING OF EMINENT DOMAIN

Doctrine of ‘Eminent domain’, in its general connotation means the supreme power of the
king or the government under which property of any person can be taken over in the interest
of general public. However, over the years such taking over the property by the king or the
government has been made possible only after compensating the land owner of such property.
Thus eminent domain explained as the power of the king or the government to take over the
property of a private person when it is needed for a public purpose.

Doctrine of ‘eminent domain’ is based on two maxims namely salus populi supreme lex esto
which means that the welfare of the people is the paramount law and necessita public major
est quan, which means that public necessity is greater than the private necessity.2

Eminent Domain is power of the sovereign to acquire property of an individual for public use
without the necessity of his consent. This power is based on sovereignty of the State.
Payment of just compensation to the owner of the land which is acquired is part of exercise of
this power. Eminent domain power is regarded as an inherent power of the State to take
private property for public purpose. This power depends on the superior domain of the State
over all the property within its boundaries. An incidental limitation of this power is that the
property shall not be taken without just compensation.3 The expression “eminent domain”
means permanent (eminent) dominion (domain) of the state on the property. The power of the
State to take private property for public use and consequent right of the owner to compensate
now emerge from the constitution of India. In entry 42 list III of seventh schedule under
Indian Constitution, both union and States government are empowered to enact laws relating
to acquisition of property.4 The use of eminent domain power for land acquisition is also
justified when the public purpose in question can be served by only a specific piece of land,
which has no substitute.5

3
Chiranjit Lal Choudhary v. Union of India, AIR 1967, SC 41 & 54
4
Dr. J.C. Verma’s, ‘Law of Ownership of Property and Investigation of title’, (Bharat Law House, New Delhi, 3rd
ed., 1995), p 256.
5
India Infrastructure Report, 2009.

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This doctrine is derived from the Western countries and was strictly followed in India. The
word Eminent Domain is derived from a Latin expression “Dominium Eminens”. This
concept was introduced by the Hugo Grotius in 17th century.

Doctrine of Eminent Domain means the power of King or the Government to deprive the
property of an individual this also includes the private property of a person at the interest of
general public. Nevertheless, the King or the Government can acquire the property only after
paying a reasonable compensation to the affected families.

This Doctrine is mainly emphasized on two Latin maxims:

1. Salus populi est suprema lex, which means the welfare of the common people is the
paramount law.

2. Necessita pubic major est quam, which means public necessity is greater than private
necessity.

The State can exercise this power only when the private property of an individual is
ultimately required for completion of any public project, but the property can be acquired
only in the lieu of paying compensation prescribed by the appropriate authority reasonably.
The impact of this doctrine can be witnessed in almost every civilised country. An important
judgment given by the Supreme Court in State of Bihar v. Kameshwar Singh[40], the
Government can acquire property of any individuals but it shall be used for public purpose
and not otherwise.

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POWER OF EMINENT DOMAIN IN INDIA
The application of eminent domain power of the state in the early constitutional years of
independent India was assisted by the jurisprudence that had developed around the colonial
Land Acquisition Act of 1894. The impugned legislation and the case law that grew around
it, made the power of eminent domain, and the nature of 'public purpose', a matter solely for
executive determination, and, therefore, non-justiciable.

The Supreme Court in Sooraram Reddy v. Collector, Ranga Reddy District,6 has articulated
the following grounds for review of this power:

(i) malafide exercise of power;

(ii) a public purpose that is only apparently a public purpose but in reality a private purpose
or collateral purpose;

(iii) an acquisition without following the procedure under the Act;

(iv) when the acquisition is unreasonable or irrational;

(v) when the acquisition is not a public purpose at all and the fraud on the statute is apparent.
However, even today, eminent domain is among the doctrines that have not been attempted to
be curtailed by constitutionalism.

This doctrine is contested; as it raises the classic debate of power of state versus individual
rights.7 Moreover, the doctrine has assumed much significance that it does not reflect the
altered notions of the relationship between citizens and the State.

Prof. Hugo Grotious an International jurist defined eminent domain in 1626 thus8 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. Since the power of eminent domain is an inseparable

6
(2008)9 SCC 552.
7
David A. Dana, ‘Reframing Eminent Domain: Unsupported Advocacy’, 32 Pvt. L. Rev. 129 (1989).
8
Hugo Grotious, De Jure Belli ac Pacis, 73 (1631).

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incidence of sovereignty, there is no need to confer this authority expressly by the
Constitution.9 It exists without any declaration to effect. While the exercise of the power is
recognized, constitutional provisions provide safeguards subject to which the right may be
exercised.10 For instance in America three limitations, as noted by Cooley11 exists:

(i) there must be a law authorizing the taking of the property;

(ii) the property must be taken for some public use; and

(iii) just compensation must be paid.

The importance of the power of eminent domain to the life of the State need hardly be
emphasized. It is so often necessary for the proper performance of governmental functions to
take private property for public use. The power is inalienable for it is founded upon the
common necessity and interest and appropriate the property of the individual members of the
community to the greater interests of the whole community.12 However in doing so the State
should reconcile the corresponding rights of individual to claim their property.

The Constitution of India also recognizes the power of eminent domain.13However, this
power of the state has been in limelight, more for the mischief that it is allegedly imputed to
bring about. Soon after Independence, the Supreme Court was charged with judging the
constitutionality of certain laws, which were intended to abolish the feudal zamindari
(landowning) system. Supreme Court in Chiranjit Lal v. Union of India14 held that eminent
domain is a right inherent in every sovereign to take and appropriate private property
belonging to individual citizens. 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. The power of eminent domain was under the scrutiny of the Court. In
explaining the power, the Court held that eminent domain was “the power of the sovereign to
take property for public use without the owner’s consent”. Meaning is that the power in its

9
United States v. Jones, (1883)27 L ED 1015, 1017.
10
State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
11
Thomas M. Codey, ‘Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the
States of the American Union’, 165 (1999).
12
Russell Weaver, ‘Constitutional Law : Case Materials and Problems’, 541 (1946).
13
Art. 31A of the Indian Constitution
14
AIR 1951 SC 41; 1950 SCR 869

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irreducible terms i.e., (a) power to take, (b) without the owner's consent, and (c) for the public
use.15

The reference to the 'sovereign ’ was a portent of one of the problem is that it has dogged the
existence and uses of the eminent domain power, that is, the relationship between the state
and the people. The power to take and the unqualified nature of 'public use', has made
dispossession and mass displacement of people.16

15
Chiranjit Lal Choudhary v. Union of India, AIR 1967 SC 41 & 54.
16
Daulat Singh Surana v. First Land Acquisition officer, (2007)I SCC 641.

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EMINENT DOMAIN AND THE LAND ACQUISITION ACT
Land acquisition in India refers to the process by which the union or a state government in
India acquires private land for the purpose of industrialisation, development of infrastructural
facilities or urbanisation of the private land, and provides compensation to the affected land
owners and their rehabilitation and resettlement.

Land acquisition in India is governed by the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) and which came into
force from 1 January 2014. Till 2013, land acquisition in India was governed by Land
Acquisition Act of 1894. On 31 December 2013, the President of India promulgated an
ordinance with an official mandate to "meet the twin objectives of farmer welfare; along with
expeditiously meeting the strategic and developmental needs of the country". An amendment
bill was then introduced in Parliament to endorse the Ordinance. Lok Sabha passed the bill
but the same is still lying for passage by the Rajya Sabha. On 30 May 2015, President of
India promulgated the amendment ordinance for third time.

Union Government of India has also made and notified the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact
Assessment and Consent) Rules, 2014 under the Act to regulate the procedure. The land
acquisition in Jammu and Kashmir is governed by the Jammu and Kashmir Land Acquisition
Act 1934

One of the most significant statute concerned with the exercise of the right of eminent
domain in India was the Land Acquisition Act, 1894. 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. Although it
provides for payment of just compensation, but computing the compensation is circumscribed
by a set of predetermined factors which are 'to be considered in determining

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compensation'17and is restricted to the market value of land, further the “replacement value is
not the norm prescribed by law”.

There are also 'matters to be neglected in determining compensation18 which excludes any
disinclination of the person interested to part with the land acquired, in consideration of
compulsory nature of acquisition.19 It further provides that thirty per cent of the computed
market value is to be paid, in the nature of solatium. That, in sum and substance, is the right
of the person against compulsory acquisition of land.

In 1984, the definition of 'public purpose' was revised to include 'the provision of land for
residential purposes to persons displaced or affected by reason of implementation of any
scheme undertaken by government, any local authority or a corporation owned or controlled
by the State'.20 This made displacement for a project one more reason for compulsory
acquisition under the Act, with no concomitant right to land on which to resettle.

17
Section 23 of Land Acquisition Act, 1894.
18
Ibid Sec 24.
19
Ibid Explanation (2) of S.25.
20
Sec. 3(f)(2) of Land Acquisition Act, 1894.

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CONSTITUTIONAL VALIDITY OF LAND ACQUISITION
The Right to Property became a Constitutional Right after the Forty-Forth Constitution
(Amendment) Act 1978. This amendment removed Article 31 and replaced it under Article
300A. The Constitution assures that “No person shall be deprived of his property saved by
the authority of law”21.

The 44th Constitution Amendment came up with two important implications:

1. After this amendment Right to Property was considered as a Constitutional Right and
it is no more a Fundamental Right. Any legislation challenging the constitutional right
to property can be made only before the High Court and the issue cannot be
challenged before the Supreme Court directly under Article 32 of the Constitution.
2. The State is under an obligation to pay compensation for the land acquired by the
Government for any public purpose, but this position has been changed after 44th
amendment by deleting Article 31of the Constitution and the State is no longer liable
to compensate the affected family for such acquisition.
3. The Constitutional Right under Article 300A is not the basic feature or structure of the
Constitution22. In State of Maharashtra v. Chandrabhan23, the Supreme held that, after
the 44th amendment property right is ceased to be a Fundamental Right under the
Constitution and considered as legal as well as human rights.

Power of Executive Authority to interfere with right to property:

The right to property is said to have universal recognition in almost all democratic countries.
In USA also the same principles has been reaffirmed and it can be witnessed in Youngstown
Steel and Tube Co v. Sawyer24, the US Supreme Court held that the acquisition of steel mill

21
Article 300A, the Constitution of India.
22
Jilubhai Nanbhai Khackar v. State of Gujarat, AIR 1995 SC 142.
23
AIR 1983 SCC 803.
24
343 US 579 (1952, Supreme Court of United State).

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by President Decree in the absence of any appropriate provision under the law was said to be
unconstitutional.

The Article 300A of the Constitution permits the Executive authorities with the power to
acquire lands from the individuals when there is an express provision which authorise them to
deprive the property of that individual.

In State of West Bengal v. Vishnunarayan & Association25, the State Government of West
Bengal undertook eviction of some of the tenants from its property by force, therefore the
Supreme Court held that possession can be resumed by the State Government only in the
manner known to and recognised by the law but not otherwise[39].

This Article has a close nexus with the concept of Eminent Domain specified in Entry 42 of
List III of the Seventh Schedule of the Constitution.

25
State of West Bengal v. Vishnunarayan & Association, (2002) 4 SCC 134.

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PROTECTION OF INDIVIDUAL PROPERTY AGAINST ARBITRARY
EXECUTIVE AUTHORITY
Article 300A provides protection to individual against the arbitrary action of executive
authorities. In Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh26, the Court held
that State or its executive officers do not have any right to take law into their own hands and
to remove a person by an executive order. The Court further observed, ‘before we part with
this case, we feel it our duty to say that executive action taken in this case by the State and its
officers is destructive of the basic principles of the rule of law’.

The property acquired by the executive authority should be used only for public purpose.27In
Wazir Chand v. State of Himachal Pradesh, goods seized from the aggrieved person is done
without any express authority under the law so the Court ordered to return the goods seized
from the appellant’s possession and further pointed out that executive authority cannot
interfere with the property rights of an individual if there is no specific rule of law authorises
such act.

An important judgment given by the Supreme Court with regard to illegal eviction of a
person from his property without any proper authority in Bishan Das v. State of Punjab28, the
Court ordered that the State does not have authority to take law into their hand by provided
such a power to the executive authority to evict a person from his property by illegal means
and such an action would destroy the basic principle of rule of law in the country.

The Supreme Court has again described the action of the State Government in evicting some
tenants from its property by force. The Court has ruled that ’possession can be resumed by
the State Government only in a manner known to or recognised by law and it cannot resume
possession otherwise than in due course of law’. The Court has further asserted that in the

26
1962 (2) SCR 69.
27
28
AIR 1961 SC 1570.

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absence of a specific statutory provision, a person cannot be evicted by the executive by force
without following ‘due course of law even on the ground of public interest.

Land Acquisition Under LARR Act:

In India, land acquisition is governed by the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (LARR) Act 2013. This Act replaced the
Land Acquisition Act, 1894.

The main purpose for enacting this Act is to provide certain rules and regulation for acquiring
land and also for granting compensation, rehabilitation and resettlement to the affected
families. The Act mainly emphasizes to provide adequate compensation to individuals whose
properties are acquired as per the direction of the Government. The Central or State
Government have power to acquire the land even if it is against the will of the individual but
they have to make sure that the aggrieved individuals are compensated to the loss suffered by
them. The property acquired under the Act should be used only for public welfare.

The LARR Act provides certain procedures to be followed by the State government in order
to make the land acquisition constitutionally valid. The procedure begins with serving
preliminary notification to the affected party ends after providing proper rehabilitation and
resettlement measures to them.

Public purpose:

This Act provides prominence to public purpose, by highlighting that the land can be
acquired by the appropriate Government only if it is utilised for public purpose. The term
public purpose29 is defined under the Act so that only after satisfying the condition under this
Section the property can be obtained from the individuals. It divides public purpose under
two categories such as strategic and infrastructural purpose. This Section empowers certain
power and also imposes restriction on State Government before acquiring any land.

29
Section 2, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013

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The expression of “public purpose” has been enlarged by Law Commission of India so as
bring it within the ambit of Land Acquisition Act, the purpose for which State may wish to
acquire land30.

In Habib Ahmed v. State of Uttar Pradesh31, the Court held that neither the notification nor
the declaration can be quashed on the ground that there was no necessity for acquiring the
land for a public purpose. Whether the land is required for a public purpose or not has to be
decided solely by the State Government32. The Court observed that it is duty of Court to
determine whenever question is raised whether acquisition is or not for public purpose.
However, prima facie Government is the best judge as to whether acquisition is for public
purpose. But it is not sole judge.

The land acquisition can be held valid constitutionally only if it satisfies the criteria of public
purpose and along with paying compensation to the affected families.

In Hamabai Framjee Petit v. Secretary of State33, the Government gave certain land on lease
in Bombay and they also have power to take over the possession of the land under the term of
lease but only after paying compensation to its subjects. After a point of time the Government
send a notice for resuming the possession over the land and to use the said land for providing
residential accommodation to the public servant. The court held that possession resumes by
the Government is valid on the basis that the property resumed is for public welfare.

The most recent judgments given by the Supreme Court on public purpose is State of
Karnataka v. All India Manufacturers Organization, in this case land far away from the actual
alignment of the road and periphery had been acquired for constructing highway and,
therefore, even if the implementation of the Highway Project was assumed to be for the
public purpose, the acquisition of the land far away therefrom would not amount to a public
purpose nor would it be covered by the provisions of the Karnataka Industrial Areas
Development Act, 1966 (the KIAD Act)34.

Another case in the with the similar view was given in Kedar Nath Yadav vs State of West
Bengal & Others, the lands in question were acquired by the State Government for a

30
10th Law Commission Report, Law of Acquisition and Requisitioning of Land, 4 () available at
http://lawcommissionofindia.nic.in/1-50/Report10.pdf.
31
AIR 1965 All. 344 at p. 345
32
33
(1914) L.R. 42 I.A. 44
34
AIR 1965 All. 344 at p. 345.

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particular Company (TML), at the instance of that Company. Further, the exact location and
site of the land was also identified by TML. Even the notifications issued under Sections 4
and 6 of the L.A. Act clearly state that the land in question was being acquired for the ‘Small
Car Project’ of TML. In view of the foregoing reasons, by no stretch of imagination can such
an acquisition of lands be held to be one for ‘public purpose’ and not for a company. If the
acquisition of lands in the instant case does not amount to one for the company.

COMPENSATION

Compensation means anything given to make the things equivalent; a thing given to or make
good for loss and the term ‘compensation’ is used to indicate what constitutes or is regarded
as equivalent or recompense for loss or privation35. Compensation should be provided by the
appropriate Government for the land acquired for any public purpose. The procedure to
provide compensation is specified under Schedule I36 of the Act. The compensation should be
granted as per the market value of the land determined by the Collector. The Collector shall
adopt the following criteria in assessing and determining the market value of the land,
namely:—

1. the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the
registration of sale deeds or agreements to sell, as the case may be, in the area, where the land
is situated; or

2. the average sale price for similar type of land situated in the nearest village or nearest
vicinity area; or

3. consented amount of compensation as agreed upon under sub-section (2) of section 2 in

case of acquisition of lands for private companies or for public private partnership projects,
whichever is higher

Provided that the date for determination of market value shall be the date on which the
notification has been issued under section 1137.

The Collector having determined the market value of the land to be acquired shall calculate
the total amount of compensation to be paid to the land owner (whose land has been

35
Dr. Awasthi’s, ‘Law of Land Acquisition and Compensation’, (Dwivedi Law Agency, Allahabad,1st
ed.,2008), p 14
36
First Schedule of LARR Act 2013, deals with Compensation for Land Owners
37
Section 26, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.

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acquired) by including all assets attached to the land38. In addition to this the Collector should
also consider other factors under Section 28 and award of solatium39 while making
compensation.

Section 107 of the Act deals with the power of the State Legislature to enact any law for
providing higher compensation and to make provisions for rehabilitation and resettlement
which is more beneficial than provided under this Act.

Rehabilitation and Resettlement:

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act provides for rehabilitation and resettlement to the individuals whose lands
are acquired by Government for public purpose. The rehabilitation and resettlement scheme
are prepared under Section 16 and 17 of the Act. An additional benefit is also provided for
Schedule Caste and Schedule Tribe40, the lands of people belonging to this class can be
acquired only as a last resort and only after making a special rehabilitation and resettlement
plan.

Chapter V of the Act provides for rehabilitation and resettlement awards. The Collector shall
pass the order for Rehabilitation and Resettlement Awards for each affected family in terms
of the entitlements provided in the Second Schedule.

In Nithumul Rajmal Baldata v. Special Land Acquisition Officer41, Supreme Court observed
the following factors. Observations made by the Supreme Court about the legal status of
reference Court may be applicable to the Reference Authority. Hence, we can say the
observations of the Supreme Court in following way:

1. A reference under section 18 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act is not an appeal against the award.

38
Section 27, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.
39
Section 30, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.
40
Section 41, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013.
41
AIR 1988 SC 1652.

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2. The Award of the Land Acquisition officer is not to be treated as a judgment of the trial
Court. It is merely an offer made by the Land Acquisition officer as such it is not as an
appellate Court.

3. The Land Acquisition, Rehabilitation and Resettlement Authority has to treat the reference
as an original proceeding before it and determine the market value afresh on the basis of the
material proceeded before it.

4. The claimant comes to the status of plaintiff he has to prove that the price offered for his
land in the award is inadequate.

5. The market value of land which is acquired has to be determined.

CONCLUSION

Right to property thought it is not a Fundamental Right under the Constitution but still it is
consider as a basic rights of every individual. Not only our Indian Constitution but also
Universal Declaration of Human Rights has also emphasized the same. The recent land
acquisition issue is the Chennai – Salem Highway Project, for this project around 248 hectare
of land in Salem from 20 villages will be acquired and this also includes many hectare of
agriculture land. Similarly in Gujarat around 1400 hectares of land and in Maharashtra 1200
hectares of land acquired for Bullet Train Project affecting more than 6000 land owners.
Though land acquisition process is done in order to develop the economic status of the
country. But at the same time this should not affect the basic livelihood of the citizen,
development can be accepted only if it is mutually advantage to Government as well as to its
subject and acquiring of agricultural land should be consider only as a last resort. The land
acquisition is constitutionally valid under Article 300A but only after providing appropriate
compensation, rehabilitation and resettlement to the affected family.

This Act provides prominence to public purpose, by highlighting that the land can be
acquired by the appropriate Government only if it is utilised for public purpose. The term
public purpose is defined under the Act so that only after satisfying the condition under this
Section the property can be obtained from the individuals. It divides public purpose under
two categories such as strategic and infrastructural purpose. This Section empowers certain
power and also imposes restriction on State Government before acquiring any land.

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The expression of “public purpose” has been enlarged by Law Commission of India so as
bring it within the ambit of Land Acquisition Act, the purpose for which State may wish to
acquire land.

Bibliography

Websites

 https://www.law.cornell.edu/wex/eminent_domain
 https://realestate.findlaw.com/land-use-laws/eminent-domain-overview.html
 http://www.legalserviceindia.com/legal/article-708-constitutional-validity-of-land-
acquisition-in-india.html
 https://www.academia.edu/21698384/Land_Acquisition_and_the_Doctrine_of_Emine
nt_Domain
 https://indiankanoon.org/search/?formInput=eminent%20domain

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