The Eminent Domain of the State and the Land Acquisition Act

A Note by Perspectives

All our basic needs are fulfilled, and our items of daily use, culture, leisure and
entertainment are produced by the transformation of nature through human activity. Our
lives are dependent on and constructed from natural resources. In fact, a fundamental
reason and explanation for a large number of conflicts in our society, is the inequality that
arises from the unequal access, control and rights over natural resources - cultivable land,
common pastures, forests, grazing land, trees, rivers, wetlands, groundwater, lakes, iron
ore, bauxite, limestone, granite, timber, fisheries etc. What sense do we make of these
struggles which have been going on for centuries and more importantly, how are the rights
over resources determined? Who determines these rights?
The caste system and the feudal kingdoms were the two most important institutions in
the pre-colonial period which governed the access to resources. Land was the most
important resource and access to land (and related resources like grazing land and water)
was strictly governed by the hereditary rules of jati and varna. The entry of East India
Companies in the eighteenth century marked the advent of colonialism in the Indian
subcontinent. The rich and diverse resources of this vast region, like those of the continents
of Africa and Latin America, would become the ‘fuel’ for capitalist development in Western
Europe, and things would never be the same again. The English East India Company and the
British Crown, throughout their two centuries of rule over India as a colony, introduced
changes through policy, practice and legislation that have had irreversible consequences vis-
à-vis the use and control over natural resources. The colonial rulers, following the
imperative to extract and maximise revenue, instituted private and individual ownership of
property over agricultural land and consequently, different kinds of revenue systems were
established in different parts of the country, viz. the Zamindari system, the Ryotwari and the
Mahalwari system. These reinforced the caste-based differentiation with respect to land
ownership, and gave rise to the class of Zamindars (landlords) and complex forms of tenancy
and sharecropping. More importantly, from the point of view of our discussion, in the
process of instituting and determining individual rights, they firmly established a principle
that has remained unaltered to this day: the principle of eminent domain.
The principle of eminent domain refers to ‘the power of the sovereign to take property
for public use without the owner’s consent’. The colonial rulers established their ‘eminent
domain’ over all land within their territory and jurisdiction. For example, land which did not
have identified private ownership i.e. those lands over which people had no recorded and/
or recognised rights under the colonial law, were appropriated by the colonial state as state
property. This included village commons and grazing land, much of it classified as “waste
land” because it did not generate land revenue for the British government. The only kind of
right to property which was legitimized by law was private individual ownership of property,
inherited and controlled by the male lineage of the family. There was no recognition of
customary laws, traditional rights or collective rights and control over land and other
resources, which existed in different parts of the country (except for some tribal regions,
where the British were forced to recognise these rights due to the peasant revolts).
Of course, the power of eminent domain was exercised over common property as well
as private property. In the case of the former, the state simply had to notify it as state

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property and no claims or rights of those dependent on it would be recognised. In the case
of the latter, under the Indian Expropriation Act, renamed the Land Acquisition Act (LAA) in
1870, the ‘owners’ i.e. those (male) persons who held legal titles to the land, were entitled
to monetary compensation. The principle of eminent domain ensured that the consent of
the owner, let alone many others in the village economy who would be dependent on the
land and livelihoods associated with it – agricultural labourers, sharecroppers, tenants,
artisans – was not required in the process of acquisition. The involuntary and coercive nature
of the LAA is demonstrated by Section 24 which states, “matters to be neglected in
determining compensation: any disinclination of the person interested to part with the land
acquired”. However, land could be acquired under the Land Acquisition Act only for “public
purpose”. The concept of public purpose was introduced to balance the draconian principle
of eminent domain. But the definition of what constituted public purpose was deliberately
kept vague. The colonial government acquired land for what it considered to be public
purpose – railways, roads, irrigation canals and other public works – which in turn facilitated
colonial rule and the extraction of revenues.
After Independence, the Indian state retained most of the earlier laws and institutions
in a more or less unchanged form. The Land Acquisition Act of 1894 was retained along with
its draconian provisions, as was the state’s power of eminent domain. It is interesting to
note that during colonial rule the power of the sovereign referred to in the principle of
eminent domain was vested with the British crown, but when India adopted her own
Constitution, sovereignty was vested with the people. However, there was no corresponding
shift of powers in the case of eminent domain. Sovereignty continued to be with the state,
which continued to acquire land “without the owner’s consent”. The state inherited the
right to displace from their colonial predecessors, but did not deem it fit to accord any right
of rehabilitation to those displaced. Till date about 60 million people have been displaced or
affected by development projects, which is four times the number of refugees exchanged
between India and Pakistan during Partition.
As mentioned before, what is meant by public purpose has never been concretely
defined in the LAA. Further in 1962, the government amended the LAA to relax the
conditions and allow land to be acquired for a private company “which is engaged in or is
taking steps for engaging itself in any industry or work for a public purpose”. Over the years,
it became very clear that the government’s declaration of public purpose could not be
challenged. Once the state declared its intention to acquire land by citing LAA and public
purpose, the only aspect which could be adjudicated in the courts is the amount of
compensation. Of course, monetary compensation presumed and presupposed the
existence of ownership of land. As in the colonial period, the interests, rights and livelihood
dependence of women, sharecroppers, agricultural labourers and other persons who drew
their livelihoods from land but had no legal entitlements over it, were never considered.
There are many studies which show that for every owner of land who is displaced by a
project, at least four to five people dependent on the land tend to lose their livelihood. The
LAA has been used to acquire land for industrial projects, mining, large dams and other
infrastructure projects. But even sixty years after independence, despite many promises and
policy pronouncements, there is no central legislation for the resettlement and
rehabilitation of those displaced.
The LAA was again amended in 1984 with far reaching changes, many of which
facilitated acquisition of land for companies. A revised list of activities were included which
could be defined as public purpose. This included “the provision of land for a corporation

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owned or controlled by the State”. Unlike Part VII of the Act, where private companies have
to fulfil certain preconditions if the government wishes to directly acquire land for them,
industrial development corporations of the state governments do not have to fulfil any such
criteria and are thus free to acquire land in the name of public purpose and lease it out to
companies at subsidised rates. Every state has its own infrastructure and industrial
development corporation, which is now the principle means by which the government
“attracts and facilitates” private investment in the state. For example, the West Bengal
Industrial Development Corporation had acquired land in Singur, West Bengal in order to
give a 99-year lease to the Tatas for their automobile factory.
A significant proportion of the natural resources appropriated by such projects are
common property resources (CPRs), i.e. those resources over which groups or communities
of people have shared rights of control and access. These include community pastures,
community forests, waste lands, common dumping and threshing grounds, watershed
drainages, village ponds, rivers, rivulets as well as their banks and beds. As can be expected,
the people dependent on the CPRs are tribal peoples, dalits, and other landless and
marginal peasants. In Orissa, 30 percent of the one million hectares of land acquired for
developmental projects between 1951 and 1995 comprised forests and about 28 percent
comprised other CPRs.
It is the state’s power of eminent domain which is used to appropriate resources on
such a large scale. The power overrules and overrides even the Fifth and Sixth Schedules of
the Constitution, which ostensibly give protection to tribal communities by restricting the
transfer of land from tribals to non-tribals in nine states of the country. Apart from the
Constitution itself, there are several state laws prohibiting land transfers in tribal areas,
which have been violated with impunity. Despite the famous Samatha judgement of the
Supreme Court in 1997, which reiterated the rights of tribal communities over their land,
the state continues to sign MoUs with companies and gives away land in tribal areas for
mining or other development projects. The consent of the communities is rarely taken by
due process and these projects yield no benefits for the local people. The Perspectives team
visited Kinnaur district (Himachal Pradesh), which has a predominantly Scheduled Tribe
population, in June 2009. Private firms such as Jaypee were acquiring land for Hydro Electric
Projects, were flouting State land transfer laws in the process and bypassing the
requirement of the consent of the communities. The story is similar in many places in
Orissa, Jharkhand, Chattisgarh and the North-Eastern states. We witness a definite bias in
the saga of development and displacement. Though tribal peoples constitute only 8 percent
of our population, they constitute 40 percent of those displaced by development projects.
The state, through its institutions, policy measures and legislations, has always tried to
and succeeded in extending its control and ownership over land and other natural
resources, or in influencing the way these resources are utilised and rights over them
distributed. In this process, it has invariably preferred and privileged men over women,
dominant castes over lower castes, mining companies over tribal peoples, big dams over
traditional water harvesting structures, landlords and rich peasants over agricultural
labourers and small peasants, real estate and shopping malls over small scale industry,
industry over agriculture, and individual ownership over community ownership. If we
understand these processes, then we come a little closer to grasping why there are so many
and so varied conflicts around natural resources.

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 Perspectives’ Programme

The idea behind a group such as Perspectives is to create a much needed space within the
University where students, teachers and other concerned individuals can come together and
address issues of social, political and economic relevance, especially those ones which
remain largely unaddressed by the academic curricula.
We live in an unequal and divided society. We, members of the various universities, are the
privileged ones with access to higher education. Along with the opportunities that this
education opens up for us, it also confers upon us the responsibility to contribute to society
in a meaningful way. The majority of people in our country, even to this day, have to
struggle every day for dignity and a decent livelihood. There are many facets of reality,
which are not given adequate attention by news papers, news channels and even our text
books. As an independent group, Perspectives attempts to look at this ‘other side’ which
tends to get glossed over.
Perspectives believes that injustices and inequalities must be challenged and opposed in any
sphere, whether they pertain to caste, class, gender, nationality, region, religion or even
amongst countries. It is unacceptable that some people should be marginalised or
oppressed in order to benefit some others in society. Through our work, we have learnt not
to accept what is usually taken for granted in society. The task of Perspectives is to
document the lives and struggles of people on the margins of law and society.
It is important for us to understand issues and situations “first hand on the ground” by
visiting the relevant sites of change, conflict and crises. Further, merely understanding
issues is not enough; it is equally important to propagate this understanding amongst the
university community. The group is not restricted to any particular discipline. Rather, it
firmly believes that the interaction between different fields of knowledge is one of the
important ways of understanding social reality, as it exists. Research and the written word is
one of the main methods of the group’s work. However, it is not the only method. The
group strives to make its work available to as wide an audience as possible.
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