15 Land Acquisition · 15.1 Foundations of land acquisition law
15.1.1 Eminent domain and the constitutional basis of acquisition: Article 300A and the right to property
The State's power to take private land for public use (eminent domain) is inherent in sovereignty; in India it is limited by Article 300A ("no person shall be deprived of his property save by authority of law"), which since the 44th Amendment (1978) makes property a constitutional right, not a fundamental right.
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Core facts
- Eminent domain (dominium eminens): the sovereign's power to take private property for public use.
- Term first used by Hugo Grotius in De Jure Belli ac Pacis (1625).
- Two maxims behind it:
- *Salus populi suprema lex* — the welfare of the people is the supreme law.
- *Necessitas publica major est quam privata* — public necessity is greater than private necessity.
- Two limits in modern law: the taking must be for a public purpose and must carry compensation.
- 44th Amendment Act, 1978 (in force 20 June 1979):
- deleted Article 19(1)(f) (right to acquire, hold and dispose of property);
- deleted Article 31 (compulsory acquisition);
- inserted Article 300A in a new Chapter IV of Part XII, headed "Right to Property".
- Article 300A: "No person shall be deprived of his property save by authority of law."
- Property is now a constitutional (legal) right; its breach is remedied through Article 226 (High Court), not Article 32.
- Seventh Schedule:
- Land — List II (State), Entry 18.
- Acquisition and requisitioning of property — List III (Concurrent), Entry 42.
- So both Parliament (RFCTLARR Act 2013) and State legislatures (for example, Maharashtra's 2018 amendments) can legislate on acquisition.
Explained
How the right to property changed
| Period | Position | Key change |
|---|---|---|
| 1950–1978 | Fundamental right: Arts 19(1)(f) and 31 | Courts tested "compensation" for adequacy |
| 1955 | 4th Amendment | Adequacy of compensation made non-justiciable under Art 31(2) |
| 1971 | 25th Amendment | "Compensation" in Art 31(2) replaced by "amount" |
| 1978 onward | 44th Amendment | Arts 19(1)(f) and 31 deleted; Art 300A inserted |
What survived the 44th Amendment
- Article 31A (saving of laws for acquisition of estates, land reforms) stays in Part III.
- Article 31B and the Ninth Schedule stay.
- Article 31C stays.
- Second proviso to Article 31A (added by the 17th Amendment, 1964): when the State acquires land under personal cultivation within the ceiling limit, it must pay compensation not less than the market value.
What Article 300A requires
- "Authority of law" means a valid law made by a legislature. An executive order alone cannot take property.
- The deprivation must follow the procedure that law lays down.
- Article 300A does not, in its words, mention public purpose or compensation. The courts read both in (see Deeper).
Why acquisition is "compulsory"
- The owner cannot refuse. This is why the law adds solatium — a payment for the compulsory nature of the taking (30% under the 1894 Act, 100% under the 2013 Act).
Laws on acquisition
| Law | Status |
|---|---|
| Land Acquisition Act, 1894 | Repealed by s.114 of the 2013 Act |
| RFCTLARR Act, 2013 (Act 30 of 2013) | In force from 1 January 2014 |
| MRTP Act 1966, ss.125–129 (Maharashtra) | Acquisition of land reserved in plans; uses the 2013 Act for compulsory acquisition |
Common traps
- ✗ "Right to property is a fundamental right under Article 31." ✓ Since the 44th Amendment (1978) it is a constitutional right under Article 300A; Article 31 was deleted.
- ✗ "Article 300A is in Part III." ✓ It is in Chapter IV of Part XII.
- ✗ "Acquisition of property is a State List subject." ✓ Land is State List Entry 18; acquisition and requisitioning of property is Concurrent List Entry 42.
- ✗ "Eminent domain was coined by Bentham." ✓ Hugo Grotius, De Jure Belli ac Pacis, 1625.
- ✗ "Article 31A was deleted with Article 31." ✓ Articles 31A, 31B and 31C remain; only 19(1)(f) and 31 went.
- ✗ "The 25th Amendment inserted Article 300A." ✓ The 25th Amendment (1971) replaced "compensation" with "amount"; Article 300A came with the 44th.
Quick revision
- Eminent domain: Grotius, 1625; salus populi suprema lex.
- Limits: public purpose + compensation.
- 44th Amendment 1978: deleted Arts 19(1)(f) and 31; inserted Art 300A.
- Art 300A: no deprivation "save by authority of law".
- Property: constitutional right; remedy under Art 226.
- Land: List II Entry 18; acquisition: List III Entry 42.
- 31A second proviso: market value for land within ceiling under personal cultivation.
- K.T. Plantation (2011): public purpose is a precondition; law must be just, fair, reasonable.
- Bimal Kumar Shah (2024): seven procedural sub-rights under Art 300A.
Go deeper: Deeper, Mains writing (beyond what MPSC ATP usually asks)
Deeper Advanced
Case evolution
- *Bela Banerjee* (1954): "compensation" meant a just equivalent of what the owner was deprived of. Parliament responded with the 4th Amendment (1955).
- *R.C. Cooper* (1970, bank nationalisation): compensation must be fixed on relevant principles; the Court struck down the law. Parliament responded with the 25th Amendment (1971).
- *Kesavananda Bharati* (1973): upheld the 25th Amendment, except the part of Article 31C that barred courts from reviewing whether a law actually gave effect to the Directive Principles.
- *Jilubhai Nanbhai Khachar* (1995): Article 300A is not part of the basic structure; a law under it need not guarantee market-value compensation.
- *K.T. Plantation* (2011, five judges):
- public purpose is a precondition for deprivation under Article 300A;
- the right to claim compensation is inherent in the article, though the law can fix it;
- the law must be just, fair and reasonable, and can be struck down as arbitrary under Article 14.
- *Tukaram Kana Joshi v MIDC* (2013, a Maharashtra case): the right to property is a human right; land taken without following the acquisition law must be compensated.
- *Vidya Devi* (2020): taking land without legal acquisition and without compensation violates Article 300A; the State cannot plead delay or "adverse possession" against the owner.
- *Kolkata Municipal Corporation v Bimal Kumar Shah* (2024): read seven sub-rights into Article 300A:
- the right to notice of the intention to acquire;
- the right to be heard (objections);
- the right to a reasoned decision;
- the State's duty to acquire only for a public purpose;
- the right of restitution or fair compensation;
- the right to an efficient and expeditious process;
- the right of conclusion (proceedings must be completed, with vesting).
How the 2013 Act gives effect to these
- Notice: s.4 (SIA notification) and s.11 (preliminary notification).
- Hearing: s.5 (public hearing on SIA) and s.15 (objections within 60 days).
- Reasoned decision: s.8 (appraisal) and s.19 (declaration).
- Public purpose: s.2(1).
- Fair compensation: ss.26–30 and the First Schedule.
- Speed: time limits in ss.4(2), 14, 19(7), 25 and 38.
Mains writing Mains writing
- Frame: eminent domain is a power of the State; Article 300A and the 2013 Act turn it into a regulated power with procedure, public purpose and fair compensation.
- Analysis points:
- Moving property out of Part III allowed land reform and infrastructure, but left owners with a weaker remedy.
- Courts have rebuilt protection through Articles 14, 21 and 300A (K.T. Plantation, Bimal Kumar Shah).
- In urban planning, reservations in a Development Plan freeze land for years; delay in acquisition is the main grievance (MRTP s.127 purchase notice).
- Way forward: time-bound acquisition, digital land records, negotiated purchase and TDR/FSI in lieu of cash where owners agree.
- Example: a Planning Authority wanting land reserved for a school must either acquire it by agreement, give TDR/FSI, or apply for acquisition under the 2013 Act (MRTP s.126). Taking possession without any of these would breach Article 300A.
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