Eminent Domain And The Extent Of The Constitutional Right To Property (By-Vinayak Sankaranarayanan)

Eminent Domain And The Extent Of The Constitutional Right To Property

Authored By-Vinayak Sankaranarayanan

Abstract

This essay argues that over time, the right to property has weakened against eminent domain. The right to property against eminent domain was strongest during the land reform years post-independence. However, as modern capitalism arrived, it was felt that the easiest path to economic growth was by making it easy for foreign companies to conduct business.  As a result, the biggest reason behind the weakening of the right to property is that it is now much easier for private companies to acquire land because the “public purpose” requirement for land acquisition has been given a very broad meaning. The right to property is no longer a fundamental right.

This essay analyses the constitutional right to property in terms of eminent domain and the ability of individuals to prevent their land being acquired for a public purpose. It considers how the constitutional right to property should be strengthened in relation to eminent domain. In part A, this author examines the historical and philosophical underpinnings of eminent domain and the constitutional right to property. Part B assesses the previous historical case law development of eminent domain until the present. Part B Part 2 looks at the current legal position in terms of how the right to property is now not a fundamental right under its new form ( Article 300 A). Part C focuses on certain constitutional provisions that protects vulnerable communities like tribals and village panchayats from eminent domain. Part D analyses the scope and effect of the LARR Act 2013 ( along with its 2015 amendment)  in strengthening people’s right to property against eminent domain. Finally, in Part E this author concludes the essay by considering whether Eminent Domain is useful or necessary. This author investigates what are some of the limitations to the constitutional right to property that require to be resolved even after the LARR Act.

Part A

The Indian Constitution initially protected property in three ways[1]. Firstly, under Article 19 (1) (f),  citizens were guaranteed the right to acquire and sell property freely subject. Government could only interfere with this right either to protect Scheduled Tribes or to serve public welfare. Secondly, under Article 31 , the Constitution guaranteed that individuals could only be deprived of his property if this was permitted by an Act of Parliament and not be an executive order.  Thirdly, property can only be deprived for two reasons: first, the acquisition had to serve a public purpose and secondly, compensation had to be paid by fixing the amount before hand.

 Article 31 was similar to section 299 of the 1935 Government of India Act for  two main differences[2]. Firstly, whilst section 299 was limited to cases of “compulsory acquisition of property”, Article 31 protected property that was seized for public purposes and therefore required compensation to be paid even when ownership was not transferred to the government.  Moreover, while section 299 only permitted compensation to be paid in the form of money, Article 31 allowed compensation to be provided in any form such as by providing bonds or shares.  Also, Article 31(5) permitted the state to pass laws aimed at protecting public health, and life. Even if such laws were an unlawful acquisition of property within Article 31 (2), those laws will be exempt if it protected health and life. Examples of these types of laws include laws requiring the demolition of dangerous structures or zoning laws that restrict construction work from being done on a citizen’s property. The creation of Article 19 (1)(f) in the modern constitution meant that deprivation of an individual’s property can only happen after a law has been validly enacted and the law had to comply with the property rights under Article 19 (5).

Grotius defined eminent domain as consisting of “ the power to seize land without the owner’s consent for public use[3]. Grotius justified the use of property on the basis that all land vested in the “sovereign” and the sovereign could reassert its ownership of the property over its citizens/subjects

whenever it wished [4]. The term eminent domain was conceptualised by Hugo Grotius who claimed that the property of citizens was kept under the eminent domain of the government who can possess, exclude and even destroy the property for public use.  Locke believed that property rights can be both an "individually held" right as well as a right held "collectively by the body politic" which allows the government to undertake its tasks and to have legitimacy to enforce its rules[5]. Locke also felt that each individual had an equal share in natural rights and that property rights was established when one individual claimed a natural resource. Locke suggested that the supreme power cannot take property without a person's permission because the protection of property is the main reason why individuals enter society since the guarantee of man's property and earnings is the biggest encouragement to trade or work. It is for this reason that Locke places many restrictions on the right to eminent domain for the state. For example, Locke states that unless the government is open to people from all occupations and classes, legislators would enact arbitrary laws that would permit them to benefit the most from eminent domain. Similarly, Locke says that the government cannot take property from individuals if the effect of the action would be to render the individual worse off than before.

Part B

The modern approach to the Indian Constitutional right to property arose from the post-Independence Congress leadership[6]. This group believed India needed a strong state sector planned economy with a smaller role for property. Nehru was concerned that the business cycles consisting of recessions and depressions, which are a result of a large private sector, would put individuals at great risk. Socialism and social progress were important themes of the constituent assembly debates. This is why the Directive Principles of state policy aimed at securing an “egalitarian society” wherein the distribution of resources would achieve the common good, Hence, in order to implement its strong socialist agenda, it was not intended that the judiciary would interfere unless there was a gross abuse of the law.

The Congress party sought to eliminate Zamindars who had throughout colonial rule, accumulated vast stretches of land.

  For example, the Bihar Land Reforms Act involved several measures to weaken the power of landlord such as through ceilings on individual holdings, transfers of extra land to landless laborers, and the encouragement of co-operative farming. These laws were challenged by the zamindars who claimed these new regional laws discriminated under Article 14 against landlords who possessed land over a ceiling limit because only their land would be taken a way while the land belonging to landowners below the ceiling limits would be untouched . In response, in Kameshwar Singh v. State of Bihar, it was held that the act violated Article 14 because it was discriminatory to apply lower compensation rates to bigger landholders[7]. Moreover, the Bihar court later ruled in favour of the zamindars by holding that Article 31(4) did not prevent judicial reviews of laws that were under the fundamental rights of the constitution such as Article 19 which was at that time a fundamental right forbidding the state from interfering in the sale and disposal of property[8]. However, the Bihar court did reiterate that judicial review can be done of the amount of compensation that was provided when the Zamindar’s land was acquired.

While the Supreme Court has been hesitant to confront the government in cases where land was acquired for agrarian reform, it has also been unquestioning towards the government’s articulation of “public purpose” in cases not involving land reform such as State of West Bengal v Bela Banerjee. That is, the court has been accepted a broad definition for “public purpose” and does not limit public purpose to simply involve land reform.  In several cases such as the State of Bombay v RS Nanji case, the court has held that the definition of public purpose is flexible and should adapt to “changes in time” and society. However, the court clarified that acquisitions will be considered to be for public purpose if the acquisitions provided a public benefit or utility such as cooperative housing societies, residential development or low cost health care as well[9]. 

In Bela Banerjee’s case, the Supreme Court held that Article 31(2) implied that compensation meant the market value of the property when it had been acquired by the landholder[10].

This created a concern amongst the Socialist minded Congress government of the time who realised that it lacked the resources to compensate at the market level. As a result, the parliament introduced the 1955 fourth Amendment Act of the Constitution which provided a fixed amount of compensation for the property. Moreover, it held that the way in which the compensation was to be distributed could not be questioned by the court on the basis of the compensation being inadequate.  This signalled the beginning of a battle between the courts ( who defended the fundamental right to due process for landholders ) and the government. The fourth amendment added the term “raiyats”, jagirdari and mahalwari  to the list of interests in estates that were not protected by Articles 14,19(f) and 31 so as to abolish these intermediary tenures[11]. In the case of Kochunni v State of Madras, the Supreme Court stated that the only situation where there would be no judicial review of compensation provided to eminent domain would be where the land acquisition was done for agrarian reform and land redistribution. Apart from this exception, the court held that it could review whether legislative measures provided compensation which was equal to market value under Article 31 (2). Moreover, laws depriving individuals of property must compulsorily be consistent with other fundamental rights such as Article 14 prohibiting discrimination or Article 19. The result of the Kocchuni and Kunhikoman decisions was the creation of the Constitution (Seventeenth Amendment) Act 1964.

Under this amendment, the state could acquire land above the land ceiling limits at a compensation that was lower than the market value of land. Secondly, the amendment changed the meaning of “estate” to include lands held for agriculture or  land used for “purposes ancillary to agriculture” such as forest land, wasteland, pastures etc. Finally, the Amendment added forty-four laws to the Ninth Schedule thereby shielding them from judicial review on grounds of Articles 14, 19 and 31.   

 In the “Bank Nationalisation” case, it was held that the fourth amendment violated the right to compulsory compensation guaranteed by Article 31 (2) even if the compensation was nominal and illusory. Article 31 A was imposed by the first Constitutional Amendment Act in 1951 and protected those laws which enabled the acquisition of land which was owned above the ceiling limit from being declared void.In 1972, the Bank Nationalisation case ruling was overturned by the

introduction of the twenty fifth amendment Constitutional act. This amendment replaced the word “compensation” in Article 31 (2) with the word “amount” so that there would no longer be judicial review of the adequacy of compensation . However, in the case of Karnataka v Ranganatha Reddy, the court held  that the Bank Nationalisation and Vajravelu cases were no longer valid although compensation cannot be arbitrary[12]. The court held in Vajravelu v Special Deputy Collector that compensation will not be reviewable by the court if such compensation was either a) just equivalent to the market value of the land that was acquired or b) was just equivalent but inadequate or  (c) was not illusory compensation, but not adequate[13]. Justice Matthew held that illusory compensation refers to a compensatory amount that is so minimal as to be fraudulent.

An important reform was the Punjab Security of Land Tenures Act. In the Golak Nath case, a business family challenged this reform claiming that it violated their rights to hold property under Articles 19. This case held that fundamental rights are part of the constitution's basic structure and since the right to property was at the time a fundamental right, constitutional amendment had to preserve these rights. The result of this case was that the executive used constitutional amendments to reduce the power of the judiciary to interfere with its land reforms.  The Twenty Fourth Amendment banned courts from questioning the amount of compensation paid for land that was acquired. Moreover, this Amendment added Article 31 (C) which stated that laws aimed at fulfilling the Directive Principles could not be challenged in court. The Twenty Fourth Amendment banned courts from questioning the amount of compensation paid for land that was acquired. Moreover, this Amendment added Article 31 (C) which stated that laws aimed at fulfilling the Directive Principles could not be challenged in court.

Part B 2

It was held in the State of Bombay v R.S. Nanji case that there is no specific definition of “public purpose ”[14]. This is problematic because the Nanji case has allowed the state and local administrations to have wide discretion in deciding which land acquisition project would be for a “public purpose”.   However, the courts have the ability to determine if the land acquisition was

performed for a public purpose. Recently, the Courts have reinstated the “pubic purpose” and “compensation” requirements under Article 300 A . In Kt Plantation Private Ltd v Karnataka, it was held that the court was not “powerless” if an individual had his property taken away without “compensation” or “private purpose” as denied under Article 300 A.   This case also reinforced the fact that where the State deprives a citizen of his property for a public purpose, the public purpose must be justified on the basis of statute , legislative policy or the purpose of the legislature.

When establishing the rules on property, the Assembly hoped to replicate the fifth amendment of the American Constitution which guaranteed “due process of law” when an individual suffers a deprivation of property[15]. However, the parliament was concerned that giving too much judicial review purview to the courts might undermine their efforts for land reform distribution.  Moreover, there was a concern that enabling courts to review land reform acts would slow the pace of the litigation system because due process issues make up a significant proportion of all litigation cases. The result of this thinking is that although the constitution initially granted full rights to property, parliament gradually tried overturning property rights.  The result of the Forty Fourth Amendment in 1978 was that property was no longer a fundamental right.  The result of this change is that individuals cannot approach the court for a remedy under Article 32 if their right to property is violated because a violation of the right to property is no longer considered as a constitutional issue. The Law minister who introduced the forty fourth amendment defended the removal of property as a fundamental right by saying that since most Indians do not own extensive property, it would be wrong to equate the right to property with the other fundamental rights because doing so would only curb other fundamental rights[16].

Moreover, Article 300 A and the right to property is no longer part of the unamendable basic structure of the constitution. This applies even to state laws. For example, as  in Ishwar Das

Murlidhar v State of Bihar, where a challenge to the 1977 Debt Relief Act on the grounds that it provides no compensation failed due to the invocation of Article 300   Many experts felt that the imposition of Article 300 A in lieu of Article 31 (1) was a mere political gimmick by the Janta party aimed at winning elections. Under Article 300 A, the Supreme Court stated in the Bishambhar Dayal Chandra Mohan case that the state cannot deprive people of their property unless the state is taking property under an enacted law.

 Under the 44th Amendment, the right to property was reduced in importance from a fundamental right to being simply a constitutional legal right. Articles 31 and 19(1)(g) was removed and instead, Article 31 was substituted by Article 300 A[17].  The affect of this amendment is two-fold. On one hand, it has become easier to remove small landowners from their property for small amounts of compensation. This has lead to an upsurge in Maoist Naxalite popularity in tribal areas. On the other hand, the increasing ease with which Land can be acquired has undoubtedly contributed to India’s recent economic growth rates because of the creation of many large infrastructure projects like Sardar Sarovar in Gujarat .

Since all clauses of Article 31 except Article 31 (1) have been omitted, there is no longer a requirement for compensation to be paid[18].  Some, might argue that the right to compensation still exists implicitly since the constitution protects individuals from arbitrary action. However, in the Jilubhai case,  it was held that the removal of Article 31 (2) onwards necessarily implied that compensation to be paid for property deprived under Article 300 A need not be equivalent to the property acquired. The court must only ensure that the compensation provided must  not be “illusory” .However, the compensation does not need to be “adequate” and the principle of unfair process under Article 21 no longer applies to the deprivation of property under Article 300 A.  The Jilubhai case related to land for mining that had been taken by the government from erstwhile revenue farmers . In the Basanti Bai case, it was held that inspite of the deletion of Article 31(2),  the State is still expected to pay an adequate amount of compensation. The  acquiring of property by the state must be just and reasonable because as per Maneka Gandhi v. Union of India, laws must be fair and reasonable and therefore Laws permitting the state to deprive citizens of their

property must also provide fair  compensation .   It was also held that the state’s ability to acquire property is not subject to Article 21 ( right to livelihood) and so the state can take property even if the taking of such property might impact the livelihood of the land owner.

The removal of compensation under Article 31 (2) is arguably discriminatory because it treats similar groups differently[19]. Equality is a basic feature of the Indian Constitution. Although no compensation is paid to peasants who are landless, the employer of the peasant who owns the estate and farms the land below the ceiling limit will get compensation. Moreover, this discrimination contravenes the Directive Principles which aim at achieving economic and social justice.

After the forty-fourth Amendment, the state no longer has a duty to pay compensation to the owner for the expropriation of his land except under Article 30( 1A). Article 30 (1A) allows for reimbursement when the land being acquired was a “minority institution”. Moreover, under Article 30 (1), compensation should also be paid for land used for personal cultivation (and not for commercial use). In this scenario, compensation being paid must be of market value level.

Part C

The Fifth schedule permits areas having scheduled tribes to form a tribal advisory council which will advise the state governor in terms of the particular circumstances in which land belonging to these tribes may be allocating for land acquisition to outsiders.  The sixth schedule of the constitution designates certain tribal areas as autonomous districts with regional councils having their own laws relating to land revenue  and inheritance which are administered by these local councils.  Central government laws may not apply to these areas.  Moreover, these tribal regional councils have the power to make laws relating to allotment of land and the safeguarding of forests.

The 73rd Constitutional Amendment act permits residents of panchayats and urban municipal councils to control and decide the development of their villages or wards.  The 1996 Panchayat Extension to the Scheduled Areas Act states that the state legislature cannot legislate in a way that contradicts with the traditional management of resources within a panchayat and that mandatory approval of economic development projects must be given by the panchayat before the land acquisition is developed.

As Panchayats are theoretically democratically elected locally, this restriction substantially protects tribals and small farmers from getting their lands encroached. Similarly, the 2006 Forest Rights Act stipulates that citizens cannot be resettled ( when their land has been acquired), unless free consent has been taken of the forest dwellers. Importantly, the FRA, gives leaders of the gram sabha the ability to determine the contours and extent of individual forest rights. Having said that, in practise these laws have not always been effectively implemented due to a lack of media attention of the way in which powerful industrialists and politicians abuse the requirement to consult the local inhabitants of the land they wish to acquire.The Supreme Court noted in Jaspal Singh vs State of Punjab  that through political connivance of local politicians and bureaucrat, land has been acquired illegally. Here, despite the refusal by the local panchayat to acquire the village pond- the work continued. When the villagers complained to the local magistrate and police, the villagers were refused help on the grounds that evicting the occupiers of the village pond would be against "public interest. 

Part D

This following section examines the 2013 Land Acquisition Act. The importance of this act is that it adapts the right to property for a modern business-friendly Capitalist economic structure. This act balances the needs of industrialists ( for the sake of economic growth) with the economic and environmental interests of local communities.

The LARR Act 2013 (The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act) was formulated as an attempt to improve the 1894 Act[20].  Unlike in the 1894 Act, the 2013 Act defined “persons interested” not simply those who had ownership rights over the land. The Act expanded the definition of persons interested so as to include people having any easement or tenancy interests in land as well as anyone whose primary source of livelihood would be impacted. This means that entities acquiring land must now consider a much larger variety of stakeholders and socio-economic issues.

 The land acquirer must now only ensure that reasonable compensation is provided to the original owner of the land; he must also compensate local individuals whose livelihoods will be adversely impacted if the acquisition is carried out. However, “persons interested” is still far too narrowly defined because it excludes employees from its ambit.  Moreover, the new LARR bill has expanded the scope of “public purposes” because public purpose is not just limited to acquiring land for building infrastructure, but also education, railways, electricity, tourism, defence and more.  Furthermore, the acquisition can be made by private companies. It is not necessary for the acquisition to be done by a public enterprise for the public purpose requirement to be met.

Importantly, although the 2013 Act permits the government to acquire land for private companies, the government must ensure that at least 80% of the affected people have given permission for that acquisition to occur. The disadvantage of this provision is that many businesses claim this will reduce infrastructure investment dramatically because the costs of rehabilitation and resettlement will have to be much higher to satisfy individuals being relocated.

An important disadvantage of the 2013 LARR Act is that  Section 105,  excludes several laws from the rehabilitation sections of the act such as the Special Economic Zones Act and the National Highways Act.  Special Economic Zones and National Highways use a lot of land acquisition and so the effect of the LARR act is likely to be more limited and ineffective. Nevertheless, there is much improvement required in resettlement and rehabilitation of people. Cernea shows how in the first forty years post independence, as much as 20 million people were displaced by floods but only a quarter of those people were resettled[21].

The LARR Act was aimed at solving some of the issues faced by landholders[22]. One of the main issues in the deprivation of property was that market value compensation was calculated based on the rates agreed upon in the sales deeds where both the vendee and vendor deliberately reduced the price so as to avoid the stamp duty. This meant that the compensation was lower than the market rate value of the land. Now, with the 2013 LARR act,  the compensation obtained by the

landholder will also increase because no stamp duty or income tax will be imposed on the income received out of the land requisitioning. Where the land requisitioned is sold to a third party, forty percent of the profit has to be paid to the original owners of the land.  If the land is acquired for urbanisation, one fifth of price paid by the third party has to be offered to the original landholders at the price that is similar to the price for which the land was acquisitioned from the landholder himself. The biggest impact of the 2013 Act is that compensation has been increased for landholders so that in urban areas, the compensation must be twice the value of the average of registered sales deeds whereas in rural areas, the compensation must be four times the amount of the average of registered sale deeds.

Moreover, although landholders could raise objections in the land acquisitions, local bureaucracy and authorities rarely paid heed to resolve the objections of the landholders once the decision had been finalised to acquire the landholder’s land. In this regard, the biggest issue with previous land acquisition acts was that there was no provision for resettlement of people whose homes were lost as a result of the acquisition.  To resolve the issue of rehabilitation and resettlement, people affected by the resettlement can either avail of a one time payment of five lakh rupees or can be provided a job by the organisation carrying out the land acquisition.

Importantly, the Act also introduced a “social impact assessment process” through which landholders can voice their concerns with regards to the land acquisition[23].  The social impact assessment must study the environmental, social and economic impact that will be borne on the livelihood of families affected by the project. To collect these details, a public hearing must be conducted involving the local municipal administration. Under Section 40 (urgency clause), the government can take-over land without having paid compensation if that area of land is necessary for the defence India or to resolve natural calamities. The LARR act limits the use of the urgency clause by requiring permission to be provided by the Parliament.

In order to satisfy industrialists, the 2015 amendment to the LARR Act 2013 tried to assuage their concerns[24]. The social impact assessment is no longer required in five specific sectors which

are a) national defence b) rural infrastructure c) Industrial corridors d) low cost housing and e) social infrastructure. Moreover, the 2015 amendment uses the term “private entity” instead of “private company” so that land acquisitioning can be completed by private entities as diverse as trusts, partnerships, societies, trusts etc.

Moreover, under the 2013 LARR Act if land was acquired five years prior to the enactment of the 2013 act but no compensation has been provided, the process of requisitioning the land must start afresh[25].  If the land has not been utilized after the land requisitioning has been completed, then the act requires the state to return the land to the owner of the land.

Originally, the 2013 LARR Act deemed that the head of a government would be responsible if an offence has been committed under the act by individuals working within his department unless the head of department had used all due diligence to ensure no offence was committed under the 2013 LARR act. However, under the 2015 amendment, the head of the department will no longer be held responsible for offences committed by the department under this act. Moreover, if a government employee commits an offence under the 2013 LARR act, the employee will only be prosecuted after permission has been obtained from the government allowing the employee to be prosecuted. Interestingly, the need to obtain permission from the government goes against the Lokayukta Act 2013 which forbade the need for governments to have a say in the prosecution of its employees.

If India is to significantly grow its economy, it will have to become a strong manufacturing hub by outperforming other neighbouring countries in terms of its ease of doing business. The LARR act will disincentivise business. Unlike India, where compensation is up to four times the market value of land, in China, compensation is calculated on the basis of the average value of annual production of land in the past three years[26]. This makes China cheaper for land acquisition. According to the Confederation for Indian Industry, the effect of the act would be to increase costs by 3.5 times[27]. Malaysian land acquisition is even cheaper than in India and China because compensation is only calculated as the market value of land plus the incidental expenses incurred of the individual seller having to change his residence.

Part E

The following section considers whether eminent domain is useful against the right to property. Importantly, this section examines issues relating to the right to property against eminent domain that still need to be resolved. It addresses how the benefits of eminent domain may not trickle down sufficiently to the local communities whose lands are being acquired.

It can be argued that Eminent Domain today is no longer necessary[28]. After all, the original purpose of eminent domain was to create wealth with the poor by giving them property rights using land reforms.  Now however, it has become easier to take away land for the poor for much smaller returns.  Public purpose is interpreted with so much flexibility now that in Sooram Pratap Reddy & Ors v District Collector, Ranga Reddy Dist & Ors, it was held that a land acquisition can satisfy the public purpose requirement if even "only a fraction  of the local community" would benefit. The result of this is that land that has been acquired from the poor for building shopping malls to obtain profits, can still fulfil the public purpose requirement even if there is only a small illusory benefit like local employment for a few hundred locals. In practise, as Gupta shows, even if many of these projects promise local employment, normally the projects only provide a job per family which fails to make up the loss in local employment because previously when landholders possessed their own land, every family member would likely be working on the land. Unfortunately, there is often no way for the local community to force the project company through law to provide the socio-economic public purposes that the project had claimed it would bring. 

One other way in which eminent domain has had a negative impact is because compensation is  priced at the market value of land which undervalue the social and economic costs of individuals being dispossessed. This is because compensation for land acquisition does not often consider the costs of the destruction of the environment  and  the loss of ancillary jobs that would support those communities. Ideally the compensation should be valued on the market value of land plus the costs incurred by local communities for the loss of livelihoods and the destruction of the local environment.  Often, as during the 2000 Nagpur project for an additional runway, the government only provides the market value of the land seized when it was widely felt that the government

should also compensate the sellers for the crops lost[29] . Moreover, due to the black market for property in India, the value of property is often half of the real price. As a result the government sets the price based on the market listing which leads to the compensation being undervalued.  In the Surendra Singh case, the court prohibited the use of the urgency clause when acquiring land because from the perspective of social and economic justice, the courts must prima facie sympathise with the common man instead of the enterprise purchasing the land. It felt that courts must judge whether the land acquirer truly needs the individuals small plot of land to fulfill the public purpose or if there is an alternative to making the landholder homeless.

 The Coal Bearing Areas act allows the central government to acquire possible coal areas within seven days after serving a notice to the land owner[30]. The compensation is valued such that predicted profits obtained by the government from coal and other minerals below the surface cannot be considered in the valuation of compensation . The result of this is that people who sell their land at market value ( and who are often poor) , do not get a share of the wealth that the land generates and so these  people  get paid an undervalued compensation.

One way in which eminent domain has been misused to benefit the rich is through Specialised Economic Zones. When special economic zones were first legalised under the Specialised Economic Zones Act, the acquisition of land was justified in the name of economic growth in order to fulfil the public purpose requirement. Special economic zones continue to be classified as "commercial infrastructure" to justify the acquisition of land. Under the National Manufacturing Policy, large SEZs of 250 m each will be built with integrated townships.   Recent state policies with regards to special economic zones corporations  often do not obey local panchayat regulations .The Pohang Steel project in Orissa is an example where panchayat decisions and resolutions have been continuously disobeyed. Here, a South Korean company seized land in spite of the fears that the land acquisition would damage coastlines, and take away livelihoods.

Another issue with eminent domain is that often individuals may have had possession of the land for millennia but may not have documentary evidence of their right to this land ( such as a land deed). This is because in tribal and rural areas, many families have existed on the same ancestral land for many generations. They might have possessed the land from a time when there was no registration required of the land or they might have possessed land that had no previous owner.  Under the land acquisition act, such individuals’ interests ( who do not have land deed proof of their ownership) are not recognised and so they are unlikely to benefit from compensation provided through the land acquisition.  Although many states such as Karnataka are progressing towards the digitalisation of property, this will be of no use to those who do not have a land deed.As a solution to this problem it is recommended that the state recognises people’s right to land even if no documentary evidence exists of their ownership. One way of providing recognition is if  people provide evidence of having resided continuously on the land for atleast 12 years and  no other party is claiming ownership of the same piece of land. I mentioned a time period of 12 years because under the 1963 Limitation act, a squatter becomes an owner if he has stayed continuously for 12 years. Evidence can be provided through documentation such as electricity bills or tax details.  Moreover, a second solution is for those not having a property deed is that  property recognition should be given to those individuals who can prove that they and their ancestors have occupied the same property land since the beginning of the Land Register.