State Property: Eminent Domain, the Police Power and Escheat

In one line

Three different powers, often confused: one takes the thing and pays, one restricts its use and does not, and one picks up what nobody owns.

In the wording a student can write in an exam: eminent domain is the power to take private property for a public purpose on payment of compensation, exercised in India through the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and constrained by Article 300A, that no person shall be deprived of his property save by authority of law; the police power is the power to regulate the use of property for the safety, health, morals and general welfare of the public, and it does not attract compensation; and escheat is the vesting in the State of property that has no rightful owner, provided for by Article 296.

Eminent domain

What it is. The sovereign's power to take private property for a public purpose. It rests on two maxims usually quoted together: salus populi suprema lex, the welfare of the people is the supreme law, and necessitas publica major est quam privata, public necessity is greater than private.

Its two limbs in Indian law. A public purpose, and compensation. Neither is now a fundamental right: the right to property was omitted from Part III in 1978 and Article 300A put in its place, so the guarantee today is that a deprivation must be by authority of law.

Where it is exercised in this paper. The 2013 Act, whose social impact assessment, consent requirement, multiplied market value, solatium and rehabilitation entitlements Module II sets out; section 84 of the Indian Forest Act, 1927, which deems land required for the purposes of that Act to be needed for a public purpose; section 13 of the Ancient Monuments Act, acquisition of a monument in danger; section 20 of the same Act for a protected area; and section 37 of the Indian Forest Act, which uniquely lets the owner require the Government to acquire.

The limit that matters. Eminent domain takes title. It is therefore the most expensive instrument the State has, and the reason most resource regulation is done by the police power instead.

The police power

What it is. The power to regulate the use of property in the interest of public safety, health, morals and the general welfare, without taking it and without paying for it.

Its Indian instances fill this book. Section 35 of the Indian Forest Act, regulating cultivation, grazing and firing on any forest or waste land for five stated purposes; section 2 of the Van Adhiniyam, requiring the Centre's approval before forest land is used for anything else; section 19 of the Ancient Monuments Act, forbidding construction, mining and quarrying in a protected area, and sections 20A and 20B, the prohibited and regulated areas; the consent regime under the Water Act and the Air Act; the environmental clearance notification; and the coastal regulation zone.