EMINENT DOMAIN VERSUS THE RIGHT TO LIVELIHOOD

ANN THANIA ALEX ASST. PROFESSOR OF LAW MATS LAW SCHOOL, MATS UNIVERSITY RAIPUR

1. INTRODUCTION

Eminent Domain denotes the power of the state to acquire the property of a private person on grounds of satisfying a public purpose. The terminology that was adopted from the US jurisprudence had been the subject of extensive and long debates and fights before the Indian courts. The concept runs as a corollary to the right to property as was previously enunciated under Article 19(1) (f) of the Constitution of India. However, after the coming into place of the 44th Amendment to the Constitution in 1978, the position underwent drastic changes, owing to the repeal of Article 19(1) (f) and 31 from Part III of the Constitution of India. By relocating the right of every person not to be deprived of his property without authority of law, under Article 300 A of the Constitution, the right lost its status of fundamental right and was transformed into a constitutional right. However, persons victimised by the legislations and procedures of the government, lose something which is more than what could be protected by a mere constitutional provision. It might cause hindrance to ones right to life, right to profession of culture, right to carry out trade or occupation, right to environment etc. Here lies the importance of balancing the interests between the states duty towards the public as a whole and the individuals right to make the two ends meet. This article seeks to develop an understanding about the property rights granted to individuals under the Indian Constitution on a comparative scale with proprietary rights granted under other important Constitutions of the world.

1.1 Addressing Eminent Domain issues involved

While addressing the issue of eminent domain, it is imminent to understand the current scenario. When talking in terms of the democratic system existing in our country, compulsory acquisition of land mainly invokes two fold issues. 1.1.1. Sovereignty (process within the democracy) - In India, people are the sovereign. The sovereign powers stand transferred from the public to the hands of a democratically selected few to ensure that the system functions effectively. However, when that power is used to the detriment of the power donors, it would undermine the ethics of the system. This does not mean that the government does not have power to work towards the larger interest of the society at the cost of individual rights; but the place where distinctive lines between the individual right and social demands are to be drawn is to be made transparent. 1.1.2 Legitimacy (exercise of administrative discretion) The question of legitimacy arises with reference to the activities of the executive while functioning as agents responsible to carry out the procedures enunciated under the Land Acquisition legislations. The question involves aspects of compliance with natural, substantive and procedural justice1. However, the article would only be looking into the fundamental rights dimension of the issue solely based on the Constitution of India. Efforts are also made to analyse whether the protection guaranteed are sufficient, based on a comparison with the legal position existing in different countries. 2. CONSTITUTIONAL PROTECTION OF PROPERTY AND LIVELIHOOD

2.1. Scope and Ambit:

Jai Sen, THE RECLAIMING OF EMINENT DOMAIN, THE SOVEREIGNTY OF THE PEOPLE, THE LEGITIMACY OF THE STATE, THE RELEVANCE OF THE NARMADA HEARINGS, available at www.narmada.org/articles/JAI_SEN/reclaim.html last viewed on June 8, 2010.

The concept of property rights was given a wide interpretation to bring both tangibles and intangibles within the scope of Art.19 (1) (f). In West Bengal v. Subodh Gopal Bose2, the Court held that, while looking into the constitutional position accorded to right to property, it is necessary to look into the status which was conferred on this right prior to 1978 amendment and post 1978 amendment. The guarantee of right to property in the original constitution spread over Articles 19(1) (f), 19(5) and 31(1) to (6). While citizens right to acquire, hold and dispose of property was guaranteed under Article 19(1)(f) subject to reasonable restrictions through law under Art.19(5), the guarantee of right to property for persons under Art.31 incorporated the concepts of rule of law, eminent domain, police power, taxation and protection of agrarian reforms. In order to strengthen the policy of agrarian and economic reforms, more effective protections were contemplated under Arts.31A, 31B and 31C through constitutional amendments3. The same view was adopted by the Courts in R.C.Cooper4, wherein the Court observed that The constitutional scheme desires the right to property of the individual under Article 19(1) (f) and then delimits it by two different provisions. Article 19(5) authorising the state to make laws imposing reasonable restrictions on the exercise of that right and clause (1) and (2) of Art.31 recognising the authority of the state to make laws for taking the property5. Article 19(1) (f) was considered to be the most fragile among all the fundamental rights. The first (1951), fourteenth (1955) and seventeenth (1964) amendments created inroads into the rights to property prior to the 1978 amendment itself. These amendments reflected the socialist tendencies of our country by bringing in land reforms without payment of compensation6. Earlier the Courts adopted a view of treating Art.19 (1) (f) and 31 as mutually exclusive. Owing to the very same reason the laws expropriating property under Art.31 were not to be tested on the backdrop of reasonableness as given under Article 19(5) or on grounds of compensation and public purpose. However, a change was witnessed concerning the same by the majority decision in K.K. Kochunni v. State of Madras7. In the said case, the Supreme Court declared the existing position regarding Article 19(1) (f) and 31 will not hold ground anymore

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(1954) SCR 587. P. Ishwara Bhatt, FUNDAMENTAL RIGHTS, 1st edn. 2004, p.514. 4 R.C.Cooper v. Union of India, AIR 1970 SC 564. 5 Supra n.1. 6 M. Hidayatullah, CONSTITUTIONAL LAW OF INDIA, pp. 397-424. 7 AIR 1960 SC 1080.

and that Article 19(1) (f) was applicable to test the validity of a law, which came under Article 31(1)8. However, this success of property rights were short lived and were soon taken away by the 25th Amendment to the Constitution of India, whereby Clause 2B was inserted into Article 31 which expressed that nothing as given in Article 19(1)(f) shall affect any such law as is referred to in Clause 2. Again the word compensation as used in Article 31 was replaced by amount, which was a reason for further tussles between the legislature and judiciary. By the passage of time, Right to property under Arts. 19(1) (f) and 31 were removed from the ambit of fundamental rights and was safely placed under Article 300A of the Constitution by way of the 44th Amendment in 1978. Thus the right to property now adorns the status of a constitutional and human right9. In the case of Jilu Bhai Nanbhai Kachhar etc. v. State of Gujarat10, the Supreme Court held that the right to property under Article 300A is not a feature of the Constitution. However, different judges across the country opined that the said amendment was a blessing to the effect that the right to property stands better protected than ever before and share a similar protection as enjoyed by fundamental rights. The reasons given for the same are as follows: 1. Since 300A expects a valid law for the acquisition of property, the concept of eminent domain would be thereby attracted. 2. In the case of police power also, the concept of eminent domain may be set into service. 3. Since the protective umbrellas of Article 31A, 31B and 31C do not immunise economic reforms against challenges based on Art.300A, interpretation of Art.300A on substantive lines would open a floodgate of litigation and nullify the economic reforms. 4. Since Art.300A is placed in an entrenched area under Art.368 the requirement of ratification by the states make it more protected11. 5. Further the rights of citizens and noncitizens to property has been made more settled through this amendment12. 2.2. Developments in the field of Property Rights in India:
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According to Justice Jagan Mohan Reddy, Article 31(1) was a comprehensive package which included in it doctrines of police power and eminent domain which are correspondingly reflected in Art.19(5) and Art.31(2) respectively. Thus Article 31(1) and (2) must be read together and it would be absurd to hold that deprivation of property need not be accompanied by payment of compensation. 9 Indian Handicrafts Emporium v. Union of India, AIR 2003 SC 3240. 10 AIR 1995 SC 142. 11 Supra n.1. 12 Kanhaiyalal Sharma, RECONSTRUCTION OF THE CONSTITUTION OF INDIA, 2002, pp.143-146.

In the earlier decisions by the Supreme Court, the influence of the concept of eminent domain was clearly visible. Later on the judges of the country preferred to go by the meaning of the words used in the Indian Constitution as eminent domain and police powers concepts sprang from widely different resources. Though the terminology may not be used by the Indian jurists anymore, it has not brought in any commendable changes to the prevailing situation. The Acquisition of land in India is governed by the Land Acquisition Act, 1894. The Act, 1894 still domains the area despite the amendments made to the same. The Act provides for compulsory acquisition of property after complying with the procedures mentioned, on grounds of public purpose. At times, the courts of our country have gone against the traditional and even logical perceptions while interpreting public purpose in the context of acquisition. In Arnold Rodricks v. Union of India13, the Court went on to hold that when land was acquired by the government and given away to other private individuals; ultimately the states purpose was being carried out though the same may resemble a mechanism which brings profits to some individuals. In the said case, acquisition was justified on grounds of public good that was attained by means of expropriation. The Courts have also gone to the extent of jusityfing the acquisition of land and using it for a purpose different from that for which it was acquired. Further, the Act under Section 23 provides for payment of compensation at the rate of 30% of the market value of the acquired land14, which is again insufficient from the viewpoint of justice. 2.3 Eminent Domain v. Right to Livelihood - Balancing of Interests:

The procedures for compulsory acquisition of property have raised serious questions regarding the right to livelihood and natural justice for the persons who are suffering from deprivation of land. This has also initiated questions regarding safeguarding their fundamental rights as part of Article 19(1) (g) and 21 of the Constitution of India. There has been a lot of liberalized jurisprudence regarding right to property in the country, which espoused the view that deletion of the right to property has not actually brought in much of changes. This has been accepted by many jurists also. In the words of Prof.
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A. I. R. 1966 SC 1788. By way of the Amendment Act, 1984 available at http://www.nlsenlaw.org/land/articles/land-acquisition-act-itsscope/ last viewed on June 8, 2010.

T.K.Tope, if the liberal approach of the Court as seen in Maneka Gandhi case is any indication, it may be stated that property being essential for full development of personality of human being, the right to property is included in the concept of personal liberty15. As per Prof. S.P. Sathe, law under Article 300A would reflect the requirements of reasonableness of law under Art.21 as was enunciated in Maneka Gandhi16 case. Justice Jaganmohan Reddy viewed that because of the liberal interpretation of Article 21, when any property which is the sole source of livelihood of any person, is taken away, absence of proper compensation might mean the voluntary termination of life. If they can work, it might be submission into serfdom 17. According to Justice K.K. Mathew right to hold a job (which could be considered as livelihood) is akin to right to hold property for two reasons. The first being that right to live carries with it or should, right to means to live and for most human beings the same is made available through employment. The second being that to be deprived of ones job because of the arbitrary action of another is to treat a person like a thing without human dignity18. According to H.M. Seervai, deletion of the right to property disrupts the scheme of compulsory acquisition, which was carefully established by interweaving the Arts. 19 and 31 in a careful manner. He also refers to the intimate connection between the right to property and other freedoms under Arts. 19(1), 25, 26, 29 and 30. According to him, such interconnection is part of the scheme of maintaining unity and integrity of the nation along with other rights. F.S. Nariman observed The right to property deserves protection not because it is a rich mans right but because it encompasses the whole spectrum of rights and interests which in law are comprehended in the expression property, the right to office is property, so is the right to money and the right to claim pension or arrears of salary19. Although, there are umpteen number of arguments which support the right to property as part of the right to livelihood and right to life itself as ensured under Article 21 of the Constitution, the Courts have succeeded more in establishing a relation of right to livelihood in relation to Article 19(1)(g) in an elaborate manner. Thus, our discussion should cover decisions
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T.K.Tope, CONSTITUTION OF INDIA, 4th edn.1986, p.386; Ishwara Bhatt, FUNDAMENTAL RIGHTS, 1st edn.2004, p.528. 16 AIR 1978 SC 597. 17 P. Jaganmohan Reddy, Liberty, Equality and Property and the Constitution (Calcutta: Calcutta Univ.1982), p. 274; Ishwara Bhatt, FUNDAMENTAL RIGHTS, 1st edn.2004, p.528. 18 K.K. Mathew, Basic Structure Theory and the Fundamental Right to Property, (1978) 2 SCC (Jour) 66; Ishwara Bhatt, FUNDAMENTAL RIGHTS, 1st edn.2004, p.528. 19 Supra n.1.

wherein the acquisition of property was curbed as part of freedom of profession or trade. Examples for such an interpretation would be Gadigeppa Mahadevappa v. State of Karnataka20 and Chameli Singh v. State of U.P21.In the former case, by way of acquisition of land, a poor agriculturist was deprived of his sole means of livelihood as he was rendered landless and his right to carry on an occupation was also taken away wherein the said acquisition was not sustained. In M.Somasundara Mudaliar v. State of Tamil Nadu22the Madras High Court held that the legitimate rights of a citizen to have his property restored or its market value reimbursed could not be denied on the plea that there was no specific statutory provision for such restitution or reimbursement23. However, to look into the other side of the coin, in Bitu Prasad Kumbhar v. Steel Authority of India Ltd.24 and further in Air India v. United Labour Union25, the Court held that the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land for public purpose. What could be witnessed in the current scenario is the worsened situation of the above decisions of the Supreme Court wherein not even a single member of the family is provided employment in consequence of the acquisition of land for public purpose. Further, it is to be crucially considered whether the actual intentions, which justified the acquisition of property from private hands, is applicable in the present context.

3. CONSTITUTIONAL PROTECTION OF PROPERTY IN UNITED STATES The importance given to property in the American Jurisprudence could be understood by referring to the decision of Supreme Court in Lynch v. Household Finance Corporation26 wherein it was observed that the dichotomy between personal liberty and property is false. Neither could have meaning without the other. Walter Lipsne observes that only dependable foundation of personal liberty is the economic security of property. All this helps one to realise

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AIR 1990 Kant.2 AIR 1996 SC 1051. 22 W.P. No. 12488 to 12489 of 1989 dated 25-2-1992. 23 Narendra Kumar, Constitutional Law of India, 4th edn.2004, p. 674. 24 (1995) Supp 2 SCC 225. 25 AIR 1997 SC 645. 26 405 U.S. 538 (1972).

the significance attributed to property in the US context. The right to property is treated at par with the right to personal liberty. The Due Process Clause, as introduced in America by way of the 5 th and 14th amendments states that no person could be deprived of his life, liberty and property except by procedure established by law, thus giving equal respect to both rights. In Usery v. Turner Elkhorn27, Justice Marshall held that the person who is claiming violation of the due process clause must establish the exercise of power in an arbitrary manner by the legislature. The same principle is considered of application as far as the eminent domain clause is concerned, which does not provide that nor shall private property be taken for public use without just compensation.28 The said clause highlight different ingredients by way of express language as well as by implication. The first of these is whether the private property of the claimant has been taken. The second is whether the taking, if any, has been for a public use. The third is whether, if for a public use, the taking has been accompanied by just i.e., full compensation. The fourth question that could be implied from the situation is if the acquisition is not properly compensated can that be justified as police power of the state. As per the Eminent Domain Clause, the state has same rights and obligations towards acquisition of property as in the case of private parties. The distinguishing factors are that they can exercise police power in a reasonable manner and even force the purchase of the property that is against individual rights. The Due Process Clause applies only where the State has deprived an individual of life, liberty, or property without due process of law; where deprivation of property is the issue, the deeper concerns of the Eminent Domain Clause will also be implicated. However, if the property may be deemed abandoned, then there is simply no deprivation by the State, and hence no occasion to determine whether the Due Process Clause imposes substantive limitations upon State action that the Eminent Domain Clause does not. In Kelo et al v. City of New London29, the U.S. Supreme Court considered the question of whether a city's decision to take property for the purpose of economic development satisfies the "public use" requirement of the Fifth Amendment. In a decision written by Justice Stevens, the Court affirmed two guiding principles: (1) public use may be equated with public purpose; and (2) judicial deference to legislative determinations of public purpose. Applying these two
27 28

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1(1976). Richard A. Epstein, Not deference, but Doctrine: The Eminent Domain Clause, The Supreme Court Review, Vol. 1982 (1982), pp. 351-380, available at http://www.jstor.org/stable/3109561 last viewed on June 8, 2010. 29 Kelo v. City of New London, Conn., 545 U.S. 469.

principles, the majority found that the City's development plan, in fact, served a public purpose. Briefly summarized, the majority held its conclusion that the City's development plan served a public purpose on three principal reasons found in the record below: (a) the development plan is an integrated, comprehensive plan; (b) the development plan was thoroughly deliberated prior to adoption; and (c) the private developers of the development plan are required by contract to carry out the provisions of the plan30. Thus, the above said makes it clear that property cannot be procured from any private person without just reasons and a public utility to justify the acquiring of the particular piece of land. Further, the duty to rehabilitate the individuals who lost their property is constitutionally protected. 4. CONSTITUTIONAL PROTECTION OF PROPERTY IN CANADA The constitutional protection guaranteed to individuals regarding property in Canada could be better understood in relation to the constitutional protection guaranteed under the US Constitution. In Canada, there is no provision in the Charter of Rights that give protection to private property. This does not mean that there is absolutely no right for the individual to protect his property. As per the Canadian system, there is no concept, which could be read in lines with the Takings Clause, and eminent domain solely falls within the scope of statute law. Section 1(a) of the Canadian Bill of Rights states that the right of the individual to the enjoyment of property, and the right not to be deprived thereof except by due process of law. But the bill of rights is only a federal statute, and there is no comparable provision in the Constitution Acts of 1867 and 1982. This provides a lacuna of insecurity, which could be rectified efficiently only if there are proper systems and mechanisms in existence to tackle the situation. However, the government can go on to acquire the land on grounds of public use. The question is what all could be considered to be coming within the ambit of public use. Anyhow, the definition of taking in the Canadian context is much narrower as compared to the US situation31. At the Federal level, the protection is guaranteed by way of the Expropriation Act,
30

Available at http://international.westlaw.com/result/default.wl? rltdb=CLID_DB87115275713219&srch=TRUE&db=FEDLANDLAW&sv=Split&service=Search&eq=search&fm qv=s&method=WIN&action=Search&query=%22Eminent+Domain%22+AND+%22Livelihood %22&mt=WorldJournals&fn=_top&cfid=1&vr=2.0&utid=2&origin=Search&rlt=CLID_QRYRLT798643581321 9&rp=%2fsearch%2fdefault.wl&ifm=NotSet&sp=Nalsaruniv-04&rs=WLIN9.09 last viewed on June 8, 2010. 31 Mariner Real Estate Ltd. v. Nova Scotia (Attorney-General), (1999), 178 N. S. R. (2d) 294; (1999), 177 D. L. R. (4th) 696 available at http://www.canlii.org/en/ns/nsca/doc/1999/1999canlii7241/1999canlii7241.html last viewed on June 8, 2010.

1985, which permits the owner of the property to claim compensation and the right to appeal before Courts of Law regarding the amount. Further the protection of individual rights differs based on the status of the litigants. Canadas law requires that extra compensation be paid, in certain cases, when the property being condemned is occupied by the owner or is used as a residence. In the case of land occupied by the owner, the owner must be compensated for the value of any special economic advantage he receives from occupying the land. Additional compensation could be claimed for if the propertys location gave the owner an advantage that could not be replicated in a new location. In the case of residences, if the fair market value is insufficient to allow the owner to buy a new residence reasonably equivalent to his former residence, the amount of compensation must be increased to cover the difference. Apart from this, there are other provincial legislations, which gives the government the right of expropriation, which would differ from province to province. However, the absence of a constitutional protection mechanism is felt heavily while checking through the provincial statutes. That is the provinces can go to a great extent to deprive the citizen of his rights; for example, Saskatchewan Planning and Development Act of 1983 which allows municipalities to prepare development plans for issues ranging from infrastructure and public facilities to renewal, rehabilitation, and improvement of neighborhoods and urban core areas and the act allows the municipality to acquire land and to expropriate it if the municipal council cannot purchase the land at a fair price or otherwise acquire the land with the owners consent32. 5. CONSTITUTIONAL PROTECTION OF PROPERTY IN AUSTRALIA Australian laws do not permit the taking away of property without payment of compensation. Section 51(xxxi) of the Australian Constitution permits the federal government to make laws with respect to property acquisition on just terms for any purpose on which the parliament is entitled to make laws. Thus the scope and ambit of the concept of public purpose is extremely wide as regards acquisitions are concerned. This is also supported by Land Acquisition Act, which is the main federal statute on the topic.

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CONSTITUTIONAL LAW; ECONOMIC DEVELOPMENT; EMINENT DOMAIN; INTERNATIONAL AFFAIRS; REAL PROPERTY; available at http://www.cga.ct.gov/2005/rpt/2005-r-0321.htm, last viewed on June 1, 2010.

However, there are fair provisions for grant of just compensation. While determining the compensation, in addition to the propertys market value, the following aspects also should be considered by the respective authority. That is (1) the value of any financial advantage that the owner receives incidental to his ownership of the property and (2) the owners expense in obtaining advice regarding the acquisition and the amount of compensation. While residences are acquired for public purpose, the law entitles the owner, to the amount needed to acquire a reasonably equivalent interest in land that entitles him to occupy a reasonably equivalent dwelling. Further, the disputes between an owner and an agency regarding the amount of compensation would be submitted to arbitration. Apart from this, the state and territorial constitutions are silent on acquisition of property. However, there are statutory enactments that ensure the payment of just compensation that pertains to the particular state as the case may be. In addition, there is the Land Acquisition Act of South Australia, which permits private acquisition of land under the land Acquisition Act of 196933. Private acquisition of land refers to acquiring the land by the crown and conferring the title on some other instrumentality. Though, this may seem to be a pro-governmental legislation, it provides for clear principles regarding the payment of compensation. The Act also provides for methods other then monetary for compensating the person like transfer of some land to his ownership, modification of existing land under his control etc and clearly states about payment of compensation according to the market value of land at the time of acquisition and based on the actual loss incurred by the individual. 6. COMPARISON AND CRITICISM Most of the countries across the world permit the acquisition of property for purposes of economic development and the four countries discussed in this project are not exceptions to the same. However, out of the four countries discussed here, Canada does not have a constitutional mechanism for the protection of the private property. USA and Australia provides for specific provisions in the Constitution for the protection of individual rights while working for the development of the country. (This does not mean that there has not been cases of aggrieved

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Available at http://www.legislation.sa.gov.au/LZ/C/A/LAND%20ACQUISITION%20ACT %201969/CURRENT/1969.93.UN.PDF last viewed on June 8, 2010.

persons). Moreover, Australia clearly provides for situations of private acquisition and the rates to which compensation is to be guaranteed. Comparing the above with the Indian context, public purpose is a terminology that has been greatly misused in our country. The Courts have succeeded in bringing almost anything and everything within the gamut of public purpose. The author is not holding a view that the country should not opt for developmental efforts. But while striving to touch the sky, the base must be sound. In the present Indian context, the lack of protection of fundamental right to property is seriously felt in the practical level. Had there been a fundamental right to property or the liberal reading into of the right to property into Part III, the situation would have been much better and the individual and public interest would have been part of a better balancing procedure. Further, the Land Acquisition Act cannot be considered doing an efficient job. The Act does not provide for a reasonable compensation many a times and the most important factor is that all these activities are affecting only the economically weaker sections in the society.

7. CONCLUSION AND SUGGESTIONS The working of the concept of eminent domain must be scrutinized most importantly in a country like India, which has a system of mixed economy. Thus, the laws that sanction acquisition of private property in US or Canada cannot be blatantly followed in the Indian scenario. Though in the period immediately following independence and setting up of the constitution, the objective of speaking against right to property was purely socialist, in the phase of economic transitions happening all over the country, India has reached a position where the objective that favoured acquisition during that time, no longer holds ground. The fact that government enterprises permit the acquisition of land by business tycoons on the reasoning of satisfaction of public purpose could be justified only if the displaced and the relocated ones are provided with sufficient means of livelihood. If the economic development of the country is a part of public purpose, definitely the protection of the individual liberty is also duty of the same system. As of now, the situation is that battles on right to property stand to lose easily owing to the lack of sufficient protection granted to property rights and as expected, Art.300A is only doing a minimal job regarding protection of individual rights.

The provisions of the Land Acquisition Act does not even guarantee the payment of an adequate compensation, which is guaranteed in other countries. Thus the only resort is the Courts of the land. The judicial power should not be handled only with regard to the policy patterns of the government, but should be handled in a constructive manner to ensure that the minimum rights are not taken away from the claimants. For this purpose, the Courts should be at liberty to read the right to property associated with the right to livelihood as under Art.21 of the Constitution or the right to property alone under Art.21 as the extension of ones personal liberty34. Another drawback is that claims on violation of fundamental rights could be made only against the government. Thus, if a third person acquired land with the support of the government thereby depriving an ordinary man of his normal livelihood, the same could be challenged only against the government thereby restricting him of the chances of getting a better or adequate compensation. Thus, the need of the hour is to go for a liberalised interpretation by reading into of the right to property to Part III of the Constitution in lines with the right to life and livelihood.

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Rashi Sureka, THEORY OF EMINENT DOMAIN AND RIGHT TO PROPERTY IN INDIA: THE MASK DEMASKED, http://www.shvoong.com/law-and-politics/1673810-theory-eminent-domain-right-property/ last viewed on June 8, 2010.