A Comparative Constitutional Study Of Eminent Domain - Indian Framework With Other Foreign States

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T16:55:37.067237+00:00

Updated: 2026-08-26T17:12:45.24+00:00

A COMPARATIVE CONSTITUTIONAL STUDY OF

EMINENT DOMAIN: INDIAN FRAMEWORK WITH OTHER

FOREIGN STATES

Pavithra S, The Tamil Nadu Dr. Ambedkar Law University, School of Excellence in Law

ABSTRACT

The doctrine of eminent domain is the state’s sovereign power to acquire an individual’s property for the purpose of public use, subject to the payment of fair compensation. Land acquisition is a critical aspect of global development policies across the world, often balancing economic growth with social justice. In India, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (LARR) Act 2013, ensure the fair compensation and rehabilitation for affected communities. This research undertakes a comparative constitutional analysis of the doctrine as it exists within the Indian legal framework and within other foreign states, notably the United States, the United Kingdom and the South Africa.

The property rights of individuals rooted in Article 300A of the Indian Constitution and shaped by evolving judicial interpretations are critically examined alongside constitutional and statutory provisions in foreign legal systems. Through doctrinal and jurisprudential comparisons, this paper highlights both convergences and divergences in the treatment of property rights under constitutional law. Ultimately, this research paper contributes to a deeper understanding of the normative underpinnings and practical implications of the doctrine of eminent domain within a constitutional democracy. Keywords: Eminent Domain, Acquisition of property, Public purpose, fair compensation, Indian framework, other foreign States, United Nations, United Kingdom, South Africa, Constitutional democracy.

1.0. INTRODUCTION

“Eminent domain is not about taking property, It’s about enabling progress for the greater good.” The Mother of the Law provides a basic fundamental pathway for all the nature of statutes to fulfill their role in society. One of the pillars of democracy, i.e., the Legislature, legislates the laws which are rooted in the Constitution of India. In that, Schedule VII of the Constitution of India provides three lists which categories the subject matters to the Union Government, State Government as well as both the Union and State Governments to enact laws. This paper concentrates on the matter in the constitutional purview of the Doctrine of Eminent Domain of various states and discusses the procedures of how eminent domain is implemented in various states.

2.0. LITERATURE REVIEW

The concept of Eminent Domain is conceptually essential to all the Countries to implement and develop their public infrastructure and its growth towards this modernised world. Every Country follows various procedures to acquire land from private individuals due to their distinct values. Several research scholars and academicians mentioned that Eminent Domain is one of the important doctrines that empowers the state to acquire land for the welfare of the people. Early Indian case law, such as State of West Bengal v. Bela Banerjee,1 and R. C. Cooper v. Union of India,2 emphasized compensation and protection of property as fundamental. However, the right to property was removed from the fundamental rights of the constitution in the 44th Constitutional Amendment Act, 1978 (Article 31 was repealed) and replaced it under Article 300A, significantly altering the constitutional landscape.

The U. S. Constitution’s Fifth Amendment explicitly discusses the concept of eminent domain on “public use” and “just compensation. ” Landmark cases like Kelo v. City of New London,3 expanded “public use” to include economic development, prompting debates over judicial 1State of West Bengal v. Bela Banerjee, 1954 AIR 170 2R. C. Cooper v. Union of India, 1970 AIR 564

3 Kelo v. City of New London, 545 U.S. 469 (2005)

deference and private property protection. Scholars like Thomas Merrill, in his work “The Economics of Public Use”, have extensively critiqued the broad interpretation, advocating for stricter judicial scrutiny. The UK traditionally exercises eminent domain powers through parliamentary supremacy rather than a constitutional framework. The Land Compensation Act 1961 mandates compensation based on market value. The Human Rights Act 1998 (incorporating ECHR Article 1 of Protocol 1) indirectly constitutionalises property protection. The South African Constitution (1996) explicitly protects property rights under Section 25, allowing expropriation only for a public purpose and subject to “just and equitable” compensation. The emphasis on land reform and redistributive justice marks a significant departure from traditional Western notions.

3.0. RESEARCH METHODOLOGY

The research is qualitative and comparative in nature. This research adopts the doctrinal legal research method, which is primarily concerned with the analysis of legal principles, statutes, judicial decisions, constitutional provisions, and scholarly writings. The doctrinal method is particularly suitable for a comparative constitutional study, as it allows for a detailed examination of how different legal systems conceptualize and implement the doctrine of eminent domain.

4.0. HYPOTHESIS

The comparative study of the land acquisition procedures among the foreign states, particularly comparing India with United States, United Kingdom and South Africa which shows the procedure to acquire the private property under India’s LARR Act acts as a best practice in respect of Social Impact Assessment, Rehabilitation and Resettlement & payment of compensation when comparing with US, UK and South Africa. According to the lifestyle of people and their economic balance in the society, India provides the best procedure to acquire land, even though US and UK providing an internationally best practices.

5.0. DOCTRINE OF EMINENT DOMAIN

The Doctrine of Eminent Domain is a constitutionally recognized principle worldwide. The Doctrine of Eminent Domain originated in ancient civilized society and later developed in English Common Law. This principle based on the maxims called ‘Salus populi suprema lex esto’ means “the welfare of the people is the supreme law” and ‘necessita public major est quan’, which means that “Public necessity is more important when comparing with private necessity”. Eminent Domain is based on these two concepts. It is known as Compulsory Purchase, Expropriation or Land Acquisition in some other countries. One of the ultimate aims of all countries is to make their state’s welfare to high in this Contemporary society. Several countries follow their principles and rules to make them develop. For their development and being developed, several policies and systems have followed by the nations.

In this, Acquisition of Private lands for the development of State or for Public purpose plays a crucial role in their development worldwide. The developed and developing Nations are still practicing their distinct policies to acquire a land from the people for the state’s welfare i. e. , for Public purpose. At the same time, States providing a better and fair compensation which is equivalent to the lands market value which is acquired by the States. For our understanding consider it is like a Sale, the private individual is the Seller, the Government acts as the Purchaser, price consideration is a Fair Compensation, the only major distinct is, the Property acquisition by the Government is made even without the consent of the Seller ,i. e. , the Private individuals and the ultimate goal to acquire property is only for the Public Purposes and not for any other means.

6.0. CONSTITUTIONAL BASIS OF EMINENT DOMAIN IN INDIA

The origin of the Doctrine of Eminent Domain laid under the Land Acquisition Act of 1894 by the Britishers. This Act authorize the Government to acquire for public purpose. After Independence and enactment of our Indian Constitution, there is no explicit article for the Doctrine of Eminent Domain. At early, the Property rights of individuals plays a crucial role and it was kept in the Part III of the Constitution, i.e., in Fundamental Rights. Right to property as fundamental right was dealt under former Art. 19(1)(f) and Art.31 of the Constitution. Later on, in the famous landmark case Keshavanandha Bharati v. State of Kerala,4 the constitutional bench comprises of 13 judges held Property Rights of Individual as Constitutional right not as fundamental right. Based on the direction given by the judiciary, the Parliament made the 44th

4 Keshavanandha Bharati v. State of Kerala, AIR 1973 SC 1461

Constitutional Amendment Act,1978 which repeals the Art. 19(1)(f) and Art. 31of Constitution and the same of Art. 31 was inserted in the Art. 300A which makes the property rights of individual as constitutional right rather than a fundamental right. Art. 300 A of the Constitution implicitly speaks about the Doctrine of Eminent, which says that, “No person shall be deprived of their property rights except the authority established by Law” The particular phrase in the text of Article “save by the authority of Law” denotes and recognize the Doctrine of Eminent Domain. Based on this Article and under Schedule VII entry 42 of List III of the Constitution of India (the Concurrent List), gives power to the Parliament as well as the State legislature to enact laws relating to the “Acquisition and Requisitioning of Property”.

Under this authority of Constitution, the Parliament enact the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

2013 (herein after as Act, 2013) which repealed the former Land Acquisition Act, 1984. This

2013 Act deals with the procedures of land acquisition, rehabilitation and resettlement process

to the people affected and fair compensation to them. The former 1894 Act focused to acquire lands with minimal beneficial provisions for landowners, compensation and rehabilitation, whereas the 2013 Act provides more clarity in fair compensation (four times of market value and twice times of market value in rural areas and urban areas respectively) and shows transparency in acquisition and provides compulsory rehabilitation and resettlement procedures to the persons interested. The former Act provides minimal landowners consent to acquire the land, less compensation awarded and there was no provisions related to mandatory rehabilitation and resettlement to the affected persons.

But in the later Act 2013, emphasizes transparency in land acquisition and fair compensation to the affected persons and it requires the consent of 70-80% of affected communities5 for acquisition and this provides compulsory rehabilitation and resettlement measures to the aggrieved which ensures their personal liberty and livelihood under Art. 21 of the Constitution of India. The procedure involves multiple steps to ensure transparency, fair compensation, and 5https://jgu. edu. in/jsgp/jindal-policy-research-lab/the-right-to-fair-compensation-and-transparency-in-landacquisition-rehabilitation-and-resettlement-act-2013/

rehabilitation to the affected parties.

6.1. PROCEDURES FOLLOWED IN INDIA FOR LAND ACQUISITION

6.1.1. Notification of Intended Acquisition (Preliminary Notification - Section 11)

The government issues a preliminary notification in the Official Gazette, local newspapers, and at prominent places in the affected area. The notification includes details of the land, purpose, and reasons for acquisition. This allows interested persons to submit objections within

60 days from the date of notification.

6.1.2. Social Impact Assessment (SIA) Study (Section 4-9)

Social Impact Assessment is conducted by an independent agency to assess the Impact on livelihood, environment, and social structure and to know the proposed acquisition is necessary and beneficial. Public hearings are held in affected areas. The report is evaluated by an expert committee, and the government decides whether to proceed or not.

6.1.3. Publication of Declaration (Section 19)

If the government decides to proceed, a declaration of acquisition is published. The declaration confirms that the land is required for a public purpose and includes details of the area. The government must complete this process within 12 months from the preliminary notification.

6.1.4. Compensation Determination (Section 26-30)

Compensation is determined based on the market value of the land (calculated based on sale deeds, stamp duty rates, etc.). A solatium (extra compensation) of 100% of the market value will be given in addition to the compensation. Such amount will be based on Multiplication factor that is 1/2 times for urban land, 1/4 times for rural land) and other damages including loss of livelihood.

6.1.5. Rehabilitation and Resettlement (R&R) Plan (Section 31-42)

If the acquisition affects more than 100 families, an R&R plan is mandatory. It Includes provisions like alternative land, housing, jobs, and monetary benefits.

6.1.6. Possession of Land (Section 38)

The government takes possession only after compensation and R&R benefits are provided. The lands which is vested with government considered to be nil encumbrances.

6.1.7. Award and Payment (Section 23-24)

The Collector issues an award by describing the compensation and R&R benefits. Compensation should be paid before taking possession. The interest at 12% per annum should be paid, if compensation delayed.6

6.1.8. Appeals and Disputes (Section 64-74)

Landowners can challenge compensation in the Land Acquisition, Rehabilitation, and Resettlement Authority. The High Court and Supreme Court acts as an Appellate court in this matter. The Appeal lies before this Courts.

6.2. Special Cases of Land Acquisition

1. Urgency Clause (Section 40) – In rare cases, land can be acquired urgently without

following the full process.

2. Public-Private Partnership (PPP) Projects – It requires consent of 70% of affected

families to acquire property, it it is partly Public and Partly Private projects for public use.

3. Private Projects – Requires consent of 80% of affected families to acquire property,

if it is purely private projects for public use. This process ensures transparency, fairness, and adequate compensation for affected landowners in India to ensure the principles as laid in Art.21 of Indian Constitution.

7.0. CONSTITUTIONAL BASIS OF EMINENT DOMAIN IN UNITED STATES

The Constitutional basis of Eminent Domain in United States is discussed in the Fifth

6 Shanti & Ors v. National Insurance Company 2025 INSC 235

Amendment of U.S Constitution. In this fifth amendment it not only covers the State’s Eminent Domain, it speaks about the various rights of the people like Double jeopardy, Selfincrimination and due process of law, the phrase in the fifth amendment which deals with Eminent Domain is, “...nor shall private property to be taken for public use, without just compensation.” This phrase clearly speaks about the property rights of people. However, it can be acquired by the State for the Public purpose by awarding Just Compensation. The term just compensation is used which denotes that the government must fairly compensate the property owner, typically meaning fair market value.

7.1. PROCEDURES FOLLOWED IN US

7.1.1. Determination of Public Purpose

Firstly, the government (or an authorized entity like a utility company) determines that a particular property is necessary for a public purpose or not, For example for a purpose such as Infrastructure projects (roads, highways, railways), Public buildings (schools, government offices), Utilities (water supply, electricity) and Urban redevelopment, etc.,

7.1.2. Property Identification and Appraisal

Government officials identify the specific land which is required for the project. A certified appraiser assesses the property's fair market value based on recent sales, location, and condition.

7.1.3. Initial Offer and Negotiation

Based on the appraised value provided by the Government , initial offer proposed to the landowners. The landowner has the right to negotiate or reject the offer. Many cases are settled through negotiation to avoid legal proceedings.

7.1.4. Eminent Domain Proceedings

The eminent domain proceedings may be initiated by the government in court, if the landowner refuses to sell his property. A condemnation lawsuit is filed, and the court determines: (1)

Whether the acquisition serves a legitimate public purpose. (2) to know the compensation offered is just and fair.

7.1.5. Just Compensation Determination

Generally the fair market value of the property will be issued as just compensation by the Court.7 To get higher compensation the landowners may provide evidence (such as alternative appraisals) to support their arguments.

7.1.6. Court Judgment and Compensation Payment

The landowner have to be paid by the government as fixed compensation, if the court ordered in favour of the government. Then the government takes possession of the property, once the compensation paid to the landowners.

7.1.7. Appeals (If Disputed by Landowner)

The High Court acts as an appellate court and the landowner disputes the decision or compensation amount by filing appeal to the High Court. Appeals often focus on whether the project qualifies as a “public use” or whether the compensation is adequate. These are the important steps of procedures followed by United States to acquire the individual’s property for the public purpose to ensure the fairness in process as per due process of law.

8.0. CONSTITUTIONAL BASIS OF EMINENT DOMAIN IN UNITED KINGDOM

In the United Kingdom, land acquisition for public purposes is governed by the Compulsory Purchase Order (CPO) process. This allows public authorities (such as local councils, government departments, and utility companies) to acquire private land or property for projects that serve a public interest, such as transport infrastructure, housing development, or regeneration schemes. Primarily this process is regulated by the following laws: 7https://www.cshlaw.com/resources/just-compensation-and-fair-market-value-understanding-property-rights-ineminent-domain/

The Compulsory Purchase Act 19658 • The Land Compensation Act 19739 • The Acquisition of Land Act 198110 • The Planning and Compulsory Purchase Act 200411 • The Procedure for Land Acquisition for Public Purpose in the UK

8.1. PROCEDURES FOLLOWED IN UNITED KINGDOM

8.1.1. Establishing the Need for Compulsory Purchase

The acquiring authority (e.g., local government, Transport for London, Highways England) determines that land is required for a public purpose. Alternatives, such as voluntary purchase or redesigning the project, must be considered before using compulsory purchase powers.

8.1.2. Making a Compulsory Purchase Order (CPO)

The authority prepares a Compulsory Purchase Order (CPO), which includes a description of the land, the purpose of acquisition, justification for using compulsory powers. The CPO must be submitted to the confirming authority (usually the Secretary of State or Welsh/Scottish ministers).

8.1.3. Public Consultation and Objections

The CPO is published in local newspapers and served to affected landowners. Affected parties have the right to submit objections within a minimum of 21 days.

8.1.4. Public Inquiry (If There Are Objections)

If objections are raised, a public inquiry is held by the Planning Inspectorate. The inspector considers: Whether the project serves a legitimate public interest, Whether there is a

8 https://www.legislation.gov.uk/ukpga/1965/56/contents

9 https://classic.austlii.edu.au/au/legis/vic/hist_act/lca1973198/

10 https://www.legislation.gov.uk/ukpga/1981/67/contents

11 https://www.legislation.gov.uk/ukpga/2004/5/contents

compelling case for acquisition and whether fair compensation is being offered. Thereafter, the inspector makes a recommendation to the Secretary of State.

8.1.5. Decision by the Confirming Authority

The Secretary of State (or relevant minister) reviews the case and decides whether to approve, reject, or modify the CPO. If approved, the authority can proceed with the acquisition.

8.1.6. Serving Notice to Acquire the Land

Once the CPO is confirmed, the acquiring authority issues a Notice to Treat or a General Vesting Declaration (GVD) to affected landowners. The landowner has a set period (usually three months) to negotiate compensation.

8.1.7. Compensation Determination

Compensation is based on the market value of the land and includes, value of the property (as if sold in an open market), disturbance compensation (costs incurred by the owner, such as relocation expenses), severance and injurious affection (if only part of the land is taken and the remaining land loses value) and Loss payments (for home or business owners).

8.1.8. Taking Possession of Land

The acquiring authority takes possession only after paying compensation or depositing the amount in court if there is a dispute.

8.1.9. Appeals and Legal Challenges

If a landowner disputes the compensation amount, they can appeal to the Upper Tribunal (Lands Chamber). The tribunal determines the fair compensation, which can be higher or lower than the original offer.

8.2. Key Considerations in UK Land Acquisition

1. Human Rights Act 1998 – Property owners can challenge compulsory purchase on the

grounds of the right to peaceful enjoyment of possessions under Article 1 of the First

Protocol of the ECHR (European Convention on Human Rights).12

2. Blight Notice – If a landowner’s property is affected by a proposed CPO but has not

yet been acquired, they may request an early purchase by the government.

3. State Variations – Scotland, Wales, and Northern Ireland have their own CPO

procedures, though they are largely similar. The UK CPO process balances the need for public infrastructure with landowners' rights. It ensures that land is acquired only for a compelling public purpose and that owners receive fair compensation.

9.0. CONSTITUTIONAL BASIS OF EMINENT DOMAIN IN SOUTH AFRICA

In South Africa, the constitutional provision that deals with eminent domain—the power of the state to expropriate private property for public purposes—is found in Section 25 of the Constitution of the Republic of South Africa, 1996. Generally this known as the Property Clause. Sec 25(1) read as, "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. " This sets the foundation that any taking of property must follow a fair legal process. Section 25(2) read as, "Property may be expropriated only in terms of law of general application— (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

" This is considered as the heart of the eminent domain in South African law. It says that the expropriation must be lawfully authorized. It must be for a public purpose or public interest. 12https://europeancourt. org/en/documents/council-of-europe/convention-for-the-protection-of-humanrights/protocol-no1/

It must involve compensation, though this is subject to some debate (e.g., land expropriation without compensation proposals). The Section 25(3) deals with how compensation is determined, considering factors like Current use of the property, History of acquisition, Market value, Purpose of expropriation and Balance of public interest with the interests of the owner. So, Section 25(2) specifically allows for eminent domain, while the rest of Section 25 outlines protections and principles guiding how it can be used.

9.1. PROCEDURES FOLLOWED IN SOUTH AFRICA

Primarily the land acquisition procedure (expropriation) in South Africa is governed by:

1. Section 25 of the Constitution of Republic of South Africa

2. The Expropriation Act (currently the Expropriation Act 1975 is in force, though a

new Expropriation Bill is in progress to align better with the Constitution)13

3. Other relevant laws like the Land Reform (Labour Tenants) Act, Restitution of

Land Rights Act, and Extension of Security of Tenure Act, depending on context.

9.1.1. Identify the Land and Purpose

The state (often through a Minister or relevant department) identifies the land which is necessary for the public purpose or for the public interested projects (e.g. infrastructure, land reform).

9.1.2. Investigation and Notice of Intention to Expropriate

An official investigation is conducted to determine ownership, valuation, rights on the land, and current usage. A Notice of Intention to Expropriate is served to the owner and other rights holders. This must include, Reasons for expropriation, Description of the land, Proposed date of expropriation and Proposed compensation. 13https://pmg.org.za/committee-meeting/37646/

9.1.3. Opportunity to Object

Affected parties have an opportunity to object or make representations within a specified time (e.g., 30–60 days). The state have to hear the objections raised by the landowner, then have to finalize the decision.

9.1.4. Notice of Expropriation

If the decision proceeds, a formal Notice of Expropriation is issued. This notice should contain the transfers ownership on a specified date, may transfer possession on a later date and includes the amount of compensation, unless agreed otherwise

9.1.5. Compensation

Compensation must be just and equitable, considering: Market value, Use of the property, History of acquisition, Purpose of expropriation and Balancing public interest with that of affected parties. Compensation can be negotiated, but if parties disagree, the courts will decide.

9.1.6. Possession and Transfer

The land is legally transferred to the state on the date specified. Physical possession will be handed over to the state. Compensation is paid on the agreed or court-ordered schedule.

9.1.7. Court Role

If there’s a dispute over the validity, purpose, or compensation, affected parties can challenge the expropriation in court. South Africa has debated allowing expropriation without compensation, especially for land reform. As of now: • The Expropriation Bill (2020/2021) is still under legislative review. • It proposes that nil compensation may be just and equitable under specific circumstances (e.g., abandoned land, state-subsidized land not used as intended).

10.0. A COMPARATIVE ANALYSIS

S. No. FEATURE

INDIA

USA

UK

SOUTH

AFRICA

1. Constitutional Protection Constitutional Right (Legal Right) under Art.300A Fundamental Right under 5th Amendment Statutory ECHR - based Fundamental Right under Sec.25 2. Public Purpose LARR Act provides safeguards and broadly defined Expansively interpreted Statutory and judicially guided Inclusive redistributive justice 3. Compensation Fair Compensation under Act 2013 Just Compensation Market Value based Equitable, Contextspecific 4. Consent and Participation Partial (multi-tiered consent in Act 2013) Rarely required Rarely required Emphasis on justice and equity

11.0. SUGGESTIONS AND RECOMMENDATION

When comparing the constitutional study of Eminent Domain, every state follows the constitutionality of Eminent Domain and its procedures intra vires to their constitution. Each states provides the procedure to acquire the private land for public purpose according to their nation’s credibility and its adoption to the procedures by applying the principle of equity. In my opinion, UK and US practicing the procedures for Eminent Domain is considered internationally best practices for providing clarity, predictability, and procedural fairness, especially for stable property markets. However, when considering the India’s practice it is praised for incorporating Social Impact Assessments, Rehabilitation, and high standards for consent in a progressive manner but it is criticized for its slow and complex procedures.

In South Africa, it balances the land reform goals with property rights it’s in still evolving process.

12.0. CONCLUSION

The Constitution which provides a base framework to all statutory laws which guides its credibility over the society. In particularly discussing the Eminent Domain in international perspective, it plays a vital role for state’s development. While the LARR Act sets a high standard for land acquisition fairness, lessons from global practices suggest areas for

improvement, including streamlined processes and enhanced stakeholder engagement. A hybrid approach that combines efficiency with social justice can make land acquisition more effective and equitable worldwide.

REFERENCES

1. BOOKS REFERRED

1. Constitution of India- authored by M.P. Jain

2. Constitution of India – authored by V. N. Shukla

3. Origins of the Fifth Amendment – authored by Leonard W. Levy

2. WEBSITES REFERRED

1. https://www.justice.gov/enrd/land-acquisition-section

2. https://www.legislation.gov.uk/ukpga/Geo6/9-10/49/enacted

3. https://www.gov.za/sites/default/files/gcis_document/201409/impllandacquisition0.pdf

4. https://halff.com/news-insights/insights/5-main-right-of-way-services/