RIGHT TO PROPERTY

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By P S Govind

Introduction

Conversion of a land into a public property from the private person and that power of government is called P S Govind

doctor of eminent domain, this can be done by providing satisfactory and justifiable compensation to the person holding the land. As in no internet is fastest developing economy in the world in comparison to other developing Nations but for the upliftment of a greater majority of people from the pit of poverty the government put forward several infrastructural programs which include construction of different factories road wise buildings exactra can be done only with the availability of enough land Ham for that India underwent major changes in Land management result of that large amount of land got transferred from private personal to the government for this purpose of development.

But after this several kinds of complete got surfaced against the government, and government faced different kinds of education from those people regarding the misuse of the power of Executive , non-compliance of statutory provisions These issues have raised uproar in the country regarding land rights, sustainable development, colorable acts of state & misuse of power by executives, etc.

in the present scenario while we are looking into the concept of eminent domain, we can understand that state has three kinds of power orange power into three different categories

power of taxation, the power of eminent domain and the policy creation powers.

Doctrine of eminent domain

Taking over the property in concern for general public from private individuals which is a part of the supreme power of the government.

Even though it is the ultimate power of the government, it is been conducted by compensating individual adequately for the piece of land which is being taken for public use. Eminent domain clarified as the power of the government to take over the property of a secluded person when it is wanted for a public purpose, an example would be if they were trying to build a bridge.

regarding the consent of the individual who is giving the property we can say that undermine is a supreme authority of this over in to take over a person’s property and that can be done without the consent of the individual which means providing of the consent is not necessary when the authority is exercising its power of eminent domain Payment of just compensation to the owner of the land which is acquired is part of the exercise of this power.

As per the article 300a of the Constitution of India no person shall be deprived of his property , but payment of just compensation is actually not an essential ingredient for exercising the power but the government will pay just compensation then only it will be absolutely no full or then only the act will be covered by justifiable legality, or we can say that they are curing of the property was done in compliance with the law

The Doctrine of eminent domain is mainly emphasized on two Latin maxims:

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

(II). Necessita pubic major est quam, which means public necessity is greater than private necessity.

Remarks in Indian constitution regarding the doctrine of eminent domain

Under the article 31 and 19 the constitution of the India provides the right of property. Article 31 stated that “no person shall be disadvantaged of his property save by authority of law.” it also said that recompensation should be provided to the person from whom the property is been acquired

Article 19 certain that all citizens have the right to obtain, hold and dispose of the property.

By the introduction of a new provision which is article 300a and through the amendment of 1978 which is the 44th amendment the right to property as a fundamental right got cut off .until then right of having a property was actually incorporated in fundamental rights which means that it was the responsibility of the government to provide land for those people in need like all other fundamental rights .

Which transformed that fundamental right into a legal right or a say statuary right when the occurrence of a violation and that remedy can be obtained from high court under the article 226 of the constitution of India and not through the honorable supreme court under article 32.

Just compensation

Wherever it is for every place or a piece of land or a structure or a building has a market value or price.

Therefore, the state is required to pay  the compensation under the the market value of the land, Seventeenth Amendment Act, 1964,the same thing can be found in the previous decisions of the time when the property was a fundamental right.

market value of the property means the market value during the time of purchase of the land .

Factors to be considered in determining the very best and best use of property are:

market demand;

proximity to areas already developed in a very compatible manner with the intended use;

economic development with in the area;

specific plans of companies and individuals;

actions already taken to develop land for that use;

scarcity of land available for that use;

negotiations with buyers curious about the property taken for the actual use;

absence of offers to shop for property made by buyers who have put it to the employment urged;

and

the use to which the property is being put at the time of the taking.

International Convention regarding property rights:

Right to property is one of the Human Right conferred to every individual. The property right is recognized at the international perspective under Universal Declaration of Human Rights (UDHR).

Article 17 of Universal Declaration of Human Rights, states that,

(I) Everyone has the right to own property alone as well as in association with others.

(II) No one shall be arbitrarily deprived of his property.

It is very difficult to understand the property right in an international perspective neither the International Covenant on Civil and Political Rights nor the International Covenant on Economic, Social and Cultural Rights have not included any controversy regarding the definition and interpretation of property right.

Misuse in exercising power

This is one of the important things that we need to solve regarding this topic usage of power should only for the purpose of public good. So many instances in the past 5 years regarding the acquiring of the property so many individuals have gone homeless because of the misuse of the power the government or the authority is actually taking the property from the individual and giving it to those who already has property it is like they are benefiting. Illegally acquiring a property from a person using this doctrine why misuse of its power is like taking a part from you and giving it to someone who does not really need it, around 10000 of such cases what’s reported in 5 years and the government should seriously look into this matter because a provision like this when it is in existence for the public good it is been used for illegal purposes for construction of factories for construction of private enterprises etc…the government should make sure that they will acquire a property from a private individual to public only if they are in hundred percent of need or public purpose. Therefore, the word “public purpose” defined under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act is moderately less unclear.

The following are some of the differences between the power of imposing taxes and eminent domain.

The power of taxation is not exercisable towards individual in respect of certain transactions of the society whose income is below the bar of imposing taxes, whereas such exclusion is not, while exercising the power of eminent domain.

The power of taxation of the country is a legal power and whereas the power of eminent domain is an inherent power of the Sovereign.

Taxation power is exercised for imposing and collection of taxes and whereas the power of eminent domain is exercised to acquire and hold immovable property of persons for public purposes which is a question of fact in both cases.

While exercising the power of taxation the State don’t pay or needn’t pay any compensation to the person connected instead of that citizen has to pay taxes to the State and whereas in case of power of eminent domain, the State is under the obligation to pay compensation to the person interested and that should be just compensation.

The power of taxation can be exercised against any of the property, movable or immovable, whereas, the power of eminent domain shall be exercised in general.

Limitations:

1. Size of the study is very small that this topic is been allocated with only the applicability of the policy in India

2. The constraint of the research study is also very narrow that the sources from which information is been accrued are mostly subordinate sources due to time constraints.

Challenging Eminent Domain

The government must provide landowners the chance to receive fair notice (enough time to contemplate the offer and accrue legal advice) similarly because the opportunity for a good hearing. As noted above, the landowner may challenge the doctrine by initiating a proper condemnation action if he or she is unable to achieve an agreement with the govt.

The condemnation process varies by state, but typically allows each side to present their case and to present evidence. Appeals may take several years, but seldom end in a stay of the taking (in other words, the land could also be taken by the govt while the appeal is remains ongoing).

Landowners who win their appeal usually don’t get to retain their land, could also be compensated financially. If the condemnation process finds that the taking of the property isn’t within the public’s best interest and so invalid, the court may order an injunction to halt the taking.

Case laws

Indian Handcrafts Emporium and others v. Union of India and others,

the Court held that, the right of acquiring, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or constitutional right that no individual can be deprived of his property save and except by and in accordance with law.

Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others,

Court held that the right of property is now considered to be not only a constitutional right but also a human as well as a legal right.

Wazir Chand v. State of Himachal Pradesh,

goods seized from the aggrieved person is done without any express authority under the law, therefore 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 authorizes to do such act.

Kohl v. United States,

the United States Supreme Court held that the government may seize property through the use of eminent domain, as long as it provides just compensation the owner of the property.

Loretto v. Teleprompter Manhattan,

 the Supreme Court clarified that when the government engages in a taking and implements a permanent physical occupation of the property, it must provide the property owner with just and adequate compensation, even if the area is small and the government’s use does not greatly affect the owner’s financial interest.

Ganci v. New York City Transit Authority

Generally, takings claims arise in two ways:

Physical taking;

And

Regulatory taking.

A physical taking occurs when the authority encroaches upon a non-public land for its own proposed use. A regulatory taking can happen although the govt actions don’t get in  upon or occupy the property but it still affect and limit its use to such an extent that an encroaching occurs. Regulatory takings are supported on the principle that while property could also be regulated to a particular amount, if a regulation goes too far it’ll be considered as a taking.

Conclusion

Therefore, according to the doctrine of eminent domain it is the right of the sovereign to take the private property for public purpose,

it will still not stop the judiciary from looking into questions of misuse in actual gaining or use of land but moderately fewer chances of abuse of eminent domain power.

Reference

  • Manupatra
  • Indian kanoon
  • US caselaws

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