Abstract:
Nothing else has caused greater conflicts among humans than land, which is a product of geologic and geomorphic processes. Land being the primary resource for producing food, the principles relating to its ownership and usufruct rights have always drawn attention of the thinkers of all ages. Manu in India or Aristotle in early Greek civilization documented rules on ownership and management of land. In the Egyptian and Sumerian history or in that of the Inca civilization, land related principles abound. In spite of varying degrees of ownership rights on land, the sovereign’s right to expropriate land for a greater need of the society (in some cases for the king during the early days) has always been accepted. But in spite of this, expropriation of land always posed many challenges. Conflicts were endemic. Even in today’s world the conflicts continue, the norm and forms of acquisition differ between the developed world and the under developed countries but in all cases it is the land losers who are up in arms against the state when it tries to expropriate. Contemporary world irrespective of their political beliefs follow the guidelines as laid down in the legal treatise of De Jure Belli et Pacis written by the Dutch jurist Hugo Grotius in 1625. He enunciated the principle of dominium eminens (Latin for supreme lordship). He argued that the sovereign power of the state to acquire property for public utility was subjected to making good the loss to those who lost their property. In principle this should put the owner in the same "pecuniary" position, had the land being not taken from her through eminent domain. But what was the right value to make good of the loss incurred remained unresolved. Epstein argued that the amount of compensation should be in consonance with the degree of public interest to make it just. In cases there were lower public interest, the compensation should be higher. (Epstein R. A., 1985). He also brought the tax payer’s perspective in the ‘takings’ when he said that the money raised to finance compensation was a ‘taking’ from the taxpayers, who received compensation ‘in kind’ in the form of benefits from the public project. This necessitated the need to balance the compensation to land losers with the loss incurred by payment of higher taxes (Ibid, Ch.18). Subjectivity in determining the amount of compensation to be paid becomes unavoidable as the compensation should at least match the owner’s loss rather than the condemner’s gain and it is all but natural that different owners put different value tags to the same property depending on their perceived benefits. Based on the owner’s loss the market value becomes indeterminant.
