History of Eminent Domain in Colonial Thought and Legal Practice 1

7/23/2019 History of Eminent Domain in Colonial Thought and Legal Practice 1

1/9

SPECIAL ARTICLE

Economic & PoliticalWeekly EPW DECEMBER 12, 2015 vol l no 50 45

History of Eminent Domain in Colonial Thoughtand Legal Practice

Debjani Bhattacharyya

Debjani Bhattacharyya ([email protected]) is at Drexel University,

Philadelphia. She is also a Visiting Associate Scholar at South Asia

Center, University of Pennsylvania.

This paper explores the prehistory of the Land

Acquisition Act of 1894. By focusing on colonial Calcutta,

it traces the emergence, development and various legal

justifications of the principle of eminent domain under

the East India Company rule. It describes the legal,

bureaucratic and often extralegal methods employed to

enact land acquisition law and documents the processes

and narrative fictions that coalesced into our present

understandings of the states relation to land and laws

relation to ethics. It also throws light upon the workings

of the reality that law constructed and enacted in

devising the principle of eminent domain.

Landownership in India has been a risky business. Thus, it

is no wonder that property has emerged as one of the

central units of decolonising politics in India. Indeed,

contemporary politics across the ideological spectrum remains

deeply entangled in a battle in the name of private property

against eminent domain. The argument about eminent do-

main as eminent thievery has often been made. In spite of

that, we seem to be deeply invested in making land acquisition

a just process. How do we account for this basic contradictionat the heart of our engagement with land acquisition rulings?

The proposition I am trying to develop is as follows: Ex-

ploring the justificatory logic behind eminent domain laws is

important, since within this law, we see a state emerge (be it

colonial or postcolonial), that is very susceptible to de-

legitimising itselfyet it never becomes an illegitimate state.

Indeed, I will try to unpack some of the judicial logic of the

eminent domain principle in its earliest articulation to show

how illegitimacy is embedded within the judicial process of

land acquisition.

The project for justice, as far as land in India is concerned,

manifests itself often as a string of acronyms, where letters

accumulate with great rapidity as an expression of participatoryparliamentary politics. Thus, LAA (Land Acquisition Act) is

now RTFCTLARRA(Right to Fair Compensation and Transpar-

ency in Land Acquisition, Rehabilitation and Resettlement

Act), and this has a tentacle which weaves in multiple acro-

nyms, a major one being PAPor project-affected person. This is

all part of the process of legislating for justice in a land-deficit

people-surplus nation (Ramesh and Ali Khan 2015). This eco-

nomic language of law which speaks of compensation and greater

public goods cannot obscure another important, but rather

overlooked facet lodged in the principle of eminent domain.

Compensation secures the legitimacy of the act of taking

land. Yet, while such procedural transparency lends legitimacy

to the act, it does not diminish the exercise of emergency or

exceptional powers by the state through an argument of

necessity for taking. As a recent article by Daniel Skinner

and Leonard Feldman (2015) points out, the language of

necessity is critical, for it is through this language that the

politics of taking land plays out. While the definition of public

use has often been put under court scrutiny, although only to

make it incrementally expansive, it differs from the logic of

necessity. Indeed, declaration of necessity becomes constitu-

tive of the legislative power to take, and therefore, receives

immunity from legal scrutiny.


2/9

SPECIAL ARTICLE

DECEMBER 12, 2015 vol l no 50 EPW Economic & PoliticalWeekly46

This article explores the prehistory of the LAAof 1894 to

trace the emergence, development and various legal justifica-

tions of the principle of eminent domain under the East India

Company (EIC) rule. By focusing on the case of colonial Cal-

cutta, it argues that, if ideas of wasteland were instrumental in

laying claims to agricultural land by the EICin certain parts of

India, then alluvial land accretions in the volatile river basin of

Ganges Delta laid the basis for articulating the eminent do-

main principle when it came to urban land. By closely focusing

on the judicial and municipal debates that facilitated the es-

tablishment of the Strand Bank Fund in 1837 and the construc-

tion of the Strand Bank (185253) in colonial Calcutta on

accreted land, this study shows how the existing laws and reg-

ulations were ignored, modified and misappropriated in order

to grab land along the riverbank in an extralegal fashion. It

reviews the various regulations prior to LAAof 1894 and debates

by legal scholars through the 19th century to show how the

possibility for such legal manoeuvres was conditioned by the

multiple misreading of existing laws of India. It concludes by

reflecting on the legal fictions that undergird the birth of theeminent domain principle in Indian legal thought and then in-

quire into its afterlife by showing the limits of conceiving of

justice (or just land relations) within the domain of law.

Repeating a Well-Known Story of Omissions

In 1894, the LAAwas passed in British India and a version of

that act in its variously amended forms continues to be in force

even today (Bose 2013; Sathe 2014). After independence, the

LAAremained statutory in nature till the government under-

took large-scale land distribution from the 1950s.1The recent

revisions to the LAAof 1894, Land Acquisition, Rehabilitation

and Resettlement (LAAR) Bill in 2011 passed by the Ministry of

Rural Development (MoRD) and its most recent manifestationas the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement (RTFCTLARR) Bill

of 2012 have hugely expanded the scope of public. More im-

portantly, these revisions have incrementally whittled down

the consent clause for land acquisition as a capital-hungry

nation staggers violently to remake India, through the project

Make in India, consisting of building 100 smart cities, and

the 1,483-kilometre stretch of the DelhiMumbai Industrial

Corridor (DMIC).

Even these recent changes governed by the needs of finance

capital and its demands for smart cities have not altered the

structure or the premise of the colonial LAA. Indeed, the devel-

opment and investment-friendly Modi government is in the

process of making changes to what had been hailed as a land-

mark decision of the RTFCTLARRA, one of them being reducing

the 80% consent clause to half, if not less than that.

While fair compensation and consent are being diluted,

the states (and by default capitals) sovereignty has been fur-

ther expanded by the ever-increasing scope of eminent

domain, furthered by the marriage of public and private incar-

nated as publicprivate partnership (PPP) (Lahiri-Dutt et al

2012; Nilsen 2010; Sampat 2013; Sarkar 2011). This paper,

instead of tracing the afterlife of the LAA, which has already

been undertaken, traces the prehistory of the LAA; how regu-

lations and codes enacted by a corporate sovereignty impinged

upon the realm of law under the crown.2It also focuses on the

disparate moments, legal, bureaucratic and often extralegal

methods employed to enact land acquisition and justifies the

existence of eminent domain principles in precolonial in order

to document the processes and narrative fictions that coa-

lesced into our present understandings of states relation to

land and laws relation to ethics. Through this brief study, this

paper throws light upon the workings or the reality that law

constructs and enacts, often in counter-intuitive manner.

These recent revisions and articulations of land acquisition

laws, which are not only reshaping the landscape of a shining

India, but also unleashing dispossessions at an unprecedented

scale and restructuring relations between state and citizens,

necessitate a return to understanding the gaps between law

and justice on the one hand, and state relations to land on the

other. They also necessitate us to inquire more closely into the

premise from which we have been asking whether there can

be just land acquisition.3

In order to briefly address the ques-tion of justice or ethics from within the space of law, it is neces-

sary to first turn to the opening paragraph of the Tenth Report

of the Law Commission of India: Law of Acquisit ion and Requisi-

tioning of Land(1958) dealing with land acquisition. A signifi-

cant legerdemain occurs in this opening statement through

which the questions of both justice and ethics were rendered

inconsequential within the domain of land and rights to prop-

erty in the Constitution:

The power of the sovereign to take private property for public use

(called in America Eminent Domainan expression believed to have

been first used by Grotius) and the consequent rights of the owner to

compensation are well-established. In justification of the power, two

maxims are often cited:salus populi est suprema lex (regard for pub-lic welfare is the highest law) and necessitas republica major est quam

private(public necessity is greater than private necessity). A critical

examination of the various stages of evolution of this power and

its ethical basis will serve no useful purpose as the power has been

established in all civilised countries (Tenth Report on Law Commission

of India1958: 1).

The concluding sentence of the quote points to precedence

given to the customary practices of the established power over

the ethical basis of the application thereof. If the right to prop-

erty was guaranteed as a natural right, here precisely an

opposite position is being marked out. What does this facile

occlusion of the question of ethics, only four years after the

birth of the Constitution signal? More importantly, what did it

mean for the Constitution to turn to pre-constitutional and

pre-democratic (colonial) instances to formulate a law of pub-

lic welfare, and greater public necessities?

This paper does not hope to provide definitive answers to

these questions, but lays the groundwork to think critically

about the states relation to land (and landlessness). Is the

stateland relationship one of ownership, of trusteeship, one

of capital extraction, or all of them? There was perhaps never

one defining relation between the state and land. Scholars

have argued that only with the 1984 amendment of the LAA

did an open neo-liberal agenda with vastly expanded scope of


3/9

SPECIAL ARTICLE


eminent domain begin to gain ground4(Ramanathan 2011: 10).

But perhaps the relationship is far more complicated than this.

A longer genealogy of the eminent domain principles within

colonial policies vis--vis land reveals how the states relation

to land was repeatedly restaged by giving the state the upper

hand over land from both within and outside of law. The evo-

cation of public purposes as one of the primary bases for

eminent domain emerged only gradually. Moreover, the ana-

lysis also reveals that eminent domain principles go back at

least 80 years prior to the LAAof 1894, and extensive legal

debates about the existence of the provisions for sovereign

claims to land were raging around the turn of the 19th century.

In order to unravel the question about how the state visualise

its relation to land in law and practice, I will first address two

particular omissions from the Constitution which will frame

the article: omissions related to the fundamental right to prop-

erty and the statutory authority to grab land.

The 25th amendment of the Constitution in 1971 omitted

Article 31(1), following the Supreme Court judgment inRustom

Cavasjee Cooper vs Union of India(1970), popularly known asthe Bank Nationalisation Case. Article 31(1) guaranteed that

No person shall be deprived of his property save by the autho-

rity of law, where the authority of law emanated only when

the Parliament or state legislature passed an act, and not by

executive order or fiat. It also solidified a legal process of

eroding the obligation to define and pay compensation for

acquisition that had begun a decade earlier. The multiple and

gradual instances of citizens being stripped of their rights to

their property or the right to demand just compensation were

well underway for over a decade.

Defining just and correct compensation began as early as in

1954 in the State of West Bengal vs Mrs Bela Banerjee and

Others (1953). The litigation defined compensation as the dutyof the legislature to ensure that what it determined as payable

must be compensation, that is, a just equivalent of what the

owner has been deprived of. However, within a year, the Par-

liament passed a bill to amend Articles 31, 31Aand 305 of the

Ninth Schedule to the Constitution under the Fourth Amend-

ment Act of 1955. The reasons behind these amendments were

stated as follows:

Recent decisions of the Supreme Court have given a very wide mean-

ing to clauses (1) and (2) of Article 31. Despite the difference in the

wording of the two clauses, they are regarded as dealing with the

same subject. The deprivation of property referred to in clause (1) is

to be construed in the widest sense as including any curtailment of a

right to property. Even where it is caused by a purely regulatory provi-sion of law and is not accompanied by an acquisition or taking pos-

session of that or any other property right by the State, the law, in

order to be valid according to these decisions, has to provide for com-

pensation under clause (2) of the article. It is considered necessary,

therefore, to re-state more precisely the States power of compulsory

acquisition and requisitioning of private property and distinguish it

from cases where the operation of regulatory or prohibitory laws of

the State results in deprivation of property. This is sought to be done

in clause 2 of the Bill.

Thus, the Parliament redefined compensation as a fixed

amount and specified that the principles on which, and the

manner in which the compensation was to be determined or

given could not be called in question in any court on the

ground that compensation provided by the law was not

adequate.5The debate about compensation did not end with

that and continues to remain relevant, contentious and

unsettled even to this day.6

This brings me to my second omission. In 1970, one year

before the famous Bank Nationalisation Case, Parliament

passed a law to make changes to the fundamental rights as

laid down in the Constitution, which now saw the undoing of

the fundamental right to property as guaranteed by Article

19(1)(f). With the 44th amendment, the right to property was

transformed into merely a legal right, instead of a fundamen-

tal right. The new Article 300Astated that no person shall be

deprived of his property save by the authority of law. With

this act, the state granted itself an exceptional form of absolute

power vis--vis property issues, operationalised through a rule

of law within democratic provisions.7

This is not an unknown story. Rather, these omissions mark

the contours of an absence in our present preoccupation with

delving into the constantly expanding scope of land acquisi-tion on the one hand (Sampat 2013), and dispossession and

development on the other (Sanyal 2007). Within this space of

omission, the incongruity between justice and law also comes

alive: justice, which continues to remain unconditional, and

law, which is constantly proved to be circumstantial (Spivak

2013). This article reflects upon the legal arguments and

processes, the conditions that made possible the emergence

of this insurmountable gap between justice and law, a gap

where finance capital currently works in rather productive

and violent ways.

The prehistory of these omissions is marked by heteroge-

neous articulations of eminent domain within colonial poli-

cies, regulations and surveys prior to the LAA of 1894, espe-cially from 1820sonwards. This prehistory is not intended to

simply show the colonial lineages of eminent domain thought

within the various reformulations of the LAA in the post-

colonial moment, but rather to mark the moments of contami-

nation and discontinuities between the colonial and post-

colonial. In this manner, we glimpse a thick history of the dis-

parate moments that went into the making of the LAAin order

to show the entanglements of natural law of private property

rights, eminent domain within a pre-constitutional moment,

especially under the EIC.8

Prehistory of the LAA of 1894

From 1793, contemporaneous with the Permanent Settlement

of Bengal to 1834, a year after the Governor General of India

was vested with extensive legislative powers,9the merchants

of the EICpassed 675 regulations. Of these, 78 continued to be

in force, either wholly or partly, even following the British

Rajs assumption of power in 1857. Although the 23rd section

of the 21st Geo.III, Cap.70 passed in 1781, vested powers in the

Governor General and the Council to frame regulations from

time to time, it was not until 1793 that Governor General Mar-

quis Charles Cornwallis attempted to give a formal shape to

the legislative functions in the eastern colony.10As scholars


4/9

SPECIAL ARTICLE


have noted, these new powers introduced statutory laws relat-

ing to land and property in Britains overseas empire (Guha

1963; Singha 1998; Washbrook 1981). This section will focus

on how the issue of eminent domain emerged and how the

public was defined in the process of formulating issues of land

acquisition and just compensation. The following section nar-

rates a rather knotted historical trajectory of the states rela-

tion to land by demonstrating how the Company invoked both

customary law and statutory practice to delineate its authority

over land, especially wasted land in agricultural spaces and

accreted land primarily in urban spaces.

Early Legislation

One of the earliest pieces of legislation with respect to the ac-

quisition of property was passed under the Bengal Regulation

1 of 1824:

A Regulation for enabling the officers of Government to obtain at a fair

valuation land or other immovable property required for roads, canals

or other public purposes, and for declaring in what manner the claims

of thezemindrs and of the officers in the Salt Department are to beadjusted in certain districts, where lands are required for the purposes

of salt manufacture.

As stated within the regulation, it applied throughout the

whole of the provinces immediately subject to the Presidency

of Fort William. Almost a quarter century later, with the ex-

pansion of railways, the British passed act 1 of 1850 to extend

the provisions of the land acquisition law to the town of

Calcutta with the object of confirming the title to lands in

Calcutta taken for public purpose (LCI1).

In Bombay, on the other hand, it was the 1839 Building Act

XXVIIIwhich for the first time enacted land acquisition legisla-

tion for the purposes of widening or altering any existing

public roads, streets, or other thoroughfare or drain or formaking any new public roads, street or thoroughfare within

the island of Bombay and Colaba (LCI2). A similar Railway

Act XVIIof 1850 followed the previous act in order to facilitate

the transfer of land to railway authorities in the presidency

town. In Madras, the trajectory was again slightly different

and land acquisition laws were not enacted till the 1852 Act

XXwas passed.

Finally, following the crown takeover in 1857, one of the first

acts was passed that sought to legally encode the territory of

British India with ActVI, which repealed all the earlier laws

pertaining to acquisition. The premise of the 1857 Act was that

it sought to make better provision of the acquisition of land

needed for public purposes within the territories in the posses-

sion and under governance of the East India Company and for

the determination of the amount of compensation to be paid

for the same (LCI2). While the different impulses that result-

ed in the early regulations pertaining to the establishment of

the eminent domain principle in Bombay and Madras would

throw an important light upon the logic of how the companys

regulations in the various presidencies sought legal authority

as a justification for grabbing land, this paper instead, focuses

only on the first regulations of Bengal of 1824, the period pre-

ceding and following that regulation.

The 1824 Regulation I of the Bengal Code had two purposes,

one was to acquire land at a fair price for the construction of

roads, canals, or other public purposes, and the second one

dealt with the contentious issue of land required for salt manu-

facture. The first purpose gave the EICrights to acquire pri-

vate property at a time when it only had rights to tax, draw

revenue and trade. This consolidated the various forms of

legal machinations that enacted everyday forms of conquest

by wresting land (and not just extracting revenue) from the

indigenous populations. With the coming of the Indian Rail-

ways during the first half of 1850s, and the subsequent changes

to the laws pertaining to acquiring private property expanded

the scope of the public. The 1850sregulations, mentioned above,

in the Bengal, Bombay and Madras presidencies enabled the

Company, for the first time, to acquire private property in the

name of public purposes on behalf of private companies. Is this

a colonial version of what we today call a PPP? Finally, Act IV,

the LAAof 1870: An Act for the Acquisition of Land for Public

Purposes and for Companies equated public and private interests

in the expansion of the colonial states eminent domain. Theserulings leading up to the 1894 LAA entirely remapped state

authority, the subjects rights and legal scope of imperialism.

The question arises upon what rightswhether natural or

liberalthrough which colonial officials sought to justify their

right to eminent domain? What forms of eminent domain prin-

ciples existed, if at all, prior to the coming of the British? How

were new legal fictions enacted to produce eminent domain in

Britains Eastern colony under the guise of just and fair rule?

Before turning to bureaucratic reasoning and extralegal archi-

tecture employed to get land for the construction of the Strand

Bank in Calcutta, let us briefly turn to how both British and

Indian legal scholars read and understood the existing laws

pertaining to state or eminent domain.Arthur Phillips, an Officiating Standing Counsel to the Govern-

ment of India, lawyer and legal scholar, speaking at the Tagore

Law Lectures of 187475 on The Law Relating to the Land

Tenures of Lower Bengal, offered an extensive introduction to

the existing land laws. Significantly, Phillips articulates the re-

lation of land laws to sovereign authority both within the domains

of what the British were defining and ossifying as Hindoo Law

and Mahomedan Law. Phillips gave his lecture during a period

of legal consolidation of British India, a period when the piece-

meal local and presidency laws were slowly being consolidated

into uniform laws for the whole of British India (Cohn 1996;

Singha 1998; Washbrook 1981). The dust was just beginning to

settle in the Great Rent Case of Bengal, which raised important

questions about proprietary rights in land and revenue (Sartori

2014). Following the Great Rent Case and contemporaneous with

the legal production of the territory of India, bureaucrats and

scholars alike were beginning to investigate the existing land

laws prior to the coming of the British. It is at this moment that

the Tagore Law Lectures were initiated at Calcutta University,

with a significant number of lectures focusing primarily on vari-

ous facets of property, mortgage laws and land tenure in India.

It is, therefore, hardly surprising that Phillips divides his

legal history into the by then standard colonial periodisation


5/9

SPECIAL ARTICLE


of Indian history. Accordingly, the first section on the Hindoo

period declares that the term tenure is perhaps not applic-

able to India, but is instead, a convenient term, liable to little

misconception (Phillips 187475: 1). He then goes on to inform

us that the information about existing land tenure in precolonial

India at hand was at best vague, but oftener full of contradiction,

and one is haunted by the suspicion that anything like a definite

account of the matter must be wrong (Phillips 187475: 3). Cri-

tiquing earlier comprehensive accounts of Indian legal thought

by colonial officials constitutes one of the primary focuses of

his lecture, which in its printed form runs to 540 pages. Pointing

to the shortcomings in the established accounts, Phillips remarks:

We shall find that the State, the zemindar and the cultivator stand in

certain relations to the land, and have certain rights and interests in it, and

also have certain relations with each other which are not perhaps exactly

those of the landlord and tenant of English Law (Phillips 187475: 12).

The Sovereigns Right

Phillips discerningly points out that, in the absence of written

material, an investigation into the practised law revealed thatcultivated land was the property of him who cut away the wood,

or who cleared and tilled it (Phillips 187475: 4). Although he

argues that, based on the extant textual sources, while it was

not clear whether the owner had rights to the soil, or only to its

produce, it was nonetheless emphatically stated that the sover-

eigns right did not go beyond one-eighth, one-sixth or one-

twelfth, according to the nature of the soil and the labour nec-

essary to cultivate it (Phillips 187475: 5). These numbers

changed according to prosperity, war and urgent necessities

that a king might encounter. Given that, the kings rights over

land are restricted only to the produce of the land, or the min-

erals under the earth, Phillips concludes that:

This would seem to indicate something less than an absolute or ex-

clusive right to the soil in either (king, or the tiller). The share of the

king is what we shall meet with in all our future enquiries as the land

revenue or ml (Phill ips 187475: 6).

It will be important to keep this discussion in mind as we turn

to analysing a report of Land Survey from Calcutta in 1820

which articulates eminent domain thinking, spuriously draw-

ing upon customs of the land. This report is significant be-

cause it captures an enactment of a principle of eminent do-

main prior to the first Bengal Code of Land Acquisition in 1824

and the articulation was within the bureaucratic domain, in

contradiction to the legal arguments detailing under what cir-

cumstances certain land could become government property.

Phillips sources were presumably the works of Lieutenant

Colonel John Briggs (1830), who produced what he called the

true nature of Land Tax in India and argued that land in India

had never been the property of the State, and the State could

only impose taxes upon various forms of private property own-

ership. This widely-read book, a work somewhat critical of the

Companys misreading of land laws in India, has provided rich

material for legal studies into the land laws of the country.

Somewhat more overlooked was the fact that elsewhere Briggs

also provided one of the early and rather tenuous notions of the

idea of state domain in precolonial India. He mentioned that

waste or uncultivated land which was included in the

boundaries of the Indian villages was considered by some to

belong to the state (Briggs cited in Phillips 187475). In fact,

such assumptions provided one of the justifications for declaring

any char or alluvial land in the lower Bengal delta which was

not permanently settled as wasteland, which therefore, became

government property (Khas Mahal) under the Company rule

(Iqbal 2014). Briggs does not expand upon how wasteland

became state domain in precolonial law. Phillips, who takes this

issue up in his lecture, does not attempt to substantiate the issue,

but summarily mentions that it was only a branch of the general

controversy as to the proprietary right (Phillips 187475: 9).

Phillips concludes his chapter on the Hindu proprietary rights

by stating: But we see nothing approaching a proprietor in the

English sense, and very little of the relation of landlord and

tenant (Phillips 187475: 39).

Phillips was not the first British official to point out the mis-

recognition of propriety rights upon which the EICbuilt up its

revenue system. A similar claim can be found in a contem-

porary work by a Bengal civil servant and legal scholarC D Field, who is perhaps most well-known for his book, The

Law of Evidence in British India. After mentioning the impossi-

bility of ascertaining property rights and noting the asperity

with which the debate about land tenure in India was conduct-

ed, Field then demonstrates that the entire debate rests upon a

fallacious premise. In his chapter on The Tenure of Land in

the Bengal Presidency, attached to theRegulations of theBen-

gal Code Book (1875),he says:

And so it happened that to the English Gentlemanpossessed of

marvelous energy, great ability, the highest honesty of purpose, and

spotless integrity, but destitute of that light which alone could have

guided them to the truthfell the task of solving this problem [of

understanding existing land tenure]: and the solution appeared tothem to depend upon the answer to this questionWho owns the

land? (Field 1875: 29).

He then goes on to elaborate, in great detail, the fallacy

involved in this question. According to Field, the English were

familiar with estate ownership back home, and through their

familiarity with the English situation they went about looking

for similar tenure in India. However, he adds:

Now the fact really was that no class or members of a class owned the

land, or any portion of it in the sense in which an Englishman owns

his estate; the idea of property in land were wholly different in the

two countries and there was in India no kind of ownership which cor-

responded with that aggregate of rights, the highest known to English

law, and which is termed a fee-simple (Field 1875: 2930).

In a lengthy note to this statement he unfurls a critique of

the ignorance that beset most officials of the EIC, and English

liberal education at large. Field quotes Joshua Williams work

Principles of the Law of Real Property(London 1844) to demys-

tify proprietary rights in landed estate. Since land, unlike cat-

tle or things, is immovable and indestructible, there can never

be absolute ownership in land, not in India, not in England, nor

for that matter anywhere else in the world. He then recounts a

story of his travel from India with an English landowner who

toured the world to understand the different land-tenure


6/9

SPECIAL ARTICLE


systems and was absolutely horrified at being told that no

man could be the absolute owner of land and that no man was

so in England (Field 1875: 29). He then concluded that it was

misguided to search for a non-existent relationship. He also

argued that the ignorance that besets the company officials

about the laws not just of India, but also of England, resulted

in enactment of spurious legal fictions. According to him:

There is reason to believe that the first administrators of the Com-

panys territory in India had similar vague notions of the law of real

property in their own country. A very strong indication of this is the

use of the word estate, which in legal phraseology means the quantity

of interest in realty owned by an individual, the aggregate of the rights

over land vested in particular person. The dimension of this interest

may vary very considerably, e g, an estate for life, an estate-tail, an

estate in fee-simple, none of which phrases carried the idea of own-

ing the land itself. [] In popular phraseology the word estate is ap-

plied to the land itself, and this is the way in which it was applied

in India by the first administrators, and has continued to be applied

down to the present hour (see the Bengal Regulations passim , more

generally cl 2, s 2, Reg XLVIIIof 1793; cl 2 s 2, Reg XIXof 1795; s 1, ActVII

(BC) of 1868; and Mr Holt Mackenzies Minute of 1 July 1819, 562A).

Had they started with the right use of the word, they would not have

searched for an ownership which they never found, because no suchthings ever existed; but would have sought to discover what were the

estates in land in India; and it would soon have been clear to them

that no estates existed similar to those in England; that the carving

was in fact done on a different principle, the thing cut up being the

same in both countries, but the English system of cutting being differ-

ent, more exact and intricate (Field 1875: 29).

The historical significance of this extended footnote lies in

the legal architecture he lays out. This architecture annuls the

idea of absolute ownership in land by exploiting the slippage in

the way the termsestate and land are usedboth in Eng-

land and by extension in India by British officials. Fields com-

ments are based upon not only his knowledge of textual sourc-

es of law, but also upon his knowledge of and experience with

the everyday legal stratagems of colonial bureaucrats.The next section will focus on Holt Mackenzie, one of the

officials whom Field singles out for working with the fallacious

premises mentioned above. Mackenzie, a statistician who was

among the first civil servants to lobby for the establishment of

a Committee on Agriculture and Trade, not only misappropri-

ated the legal usage of the term estate as land, but also ar-

ticulated principles of state domain in land in Calcutta. Ac-

cording to Holts own written statements, by the means of this

fallacious principle, the British squattersmight be turned to

landowners in colonial Calcutta.

Company as the General Zamindar

In this section I turn to an unpublished report from the judicial

proceedings of the Bengal Presidency which, in spite of not

being part of the published laws discussed in the earlier sec-

tions, had a thick afterlife in the everyday practices of power

enacted by the Company.

Around 180405, the River Hooghly started changing in its

course as it flowed to the Bay of Bengal, resulting in the sedi-

mentation of shoals and mudflat along Calcuttas western

bank. Calcutta, located at the edge of this active delta, was

exposed to the vagaries of the shifting river course. The

deposit created a large strip of land and rendered obsolete the

first survey of urban property conducted by the revenue offi-

cials in 1797.11The decades following the emergence of the

strip of land, especially from 1820 to 1860, marked a crucial

period in establishing and amending land acquisition laws in

Bengal and the creation of the idea of eminent domain. By the

1820s, the Hooghly had meandered so far west that it had de-

posited alluvial land approximately four miles long and rough-

ly half a mile wide along the western banks of Calcutta.

In 1820, Esq Mackenzie, Secretary to the Territorial Depart-

ment conducted the first survey of the riverbank and the newly

formed land in order to assess the extent and potential appro-

priation of this newly formed ground which the government

could then claim as its property (Territories Department Re-

port 1820: Section 15). The Territories Department recom-

mended improvements in the riverbank area by establishing a

Strand Bank Fund to raise money to improve the riverbank,

which would also be named the Strand Road. However, a

functioning Strand Bank Fund was not established until 1837,

a full 17 years after this initial recommendation. Through the

efforts of the Strand Bank Fund, the Territories Departmentgradually secured the appropriation of riverfront lands from

the wealthy Indians and British residents for beautification,

trade and warehouse purposes.12The emergence of the new

strip of land opened up a discussion of property rights upon

that space and a larger debate about the EICsownership status

within colonial Bengal.

Buried under countless land acquisition laws of Bengal, this

unpublished report has not previously been part of the discus-

sions around urbanisation and land acquisition. Yet, as a gov-

erning document or a graphic artifact,13 this Territories

Department Report mediated and transformed many social

relations into political and economic contracts, and thus, became

a very significant part of the 19th century social life of the cityin comparison to the later town planning records and master

plans. The epistemological space of this report as a bureau-

cratic document is vastly different from the town planning

maps, sanitary reports and land acquisition laws, all of which

were enacted in the aftermath of the changing course of River

Hooghly from 180405, which rendered the earlier forms of

cadastral revenue plans from 1797 redundant. The provision of

the report embedded itself in the social and political lives of

the citys residents through techniques of negotiation, con-

testation and creation of a new paper regime of deeds and

titles, unlike those of a legal act or master plan which only

offers an ideological framing to urban planning.14

The report began by stressing that, in Calcutta, the Company

had the double right of both the sovereign and the zamindar, and

therefore, it harnessed the laws of the sovereign alongside the

established custom. The availability of the newly formed allu-

vium land along the river, due to its changing course, opened

up a variety of claims. Mackenzie stressed, throughout the report,

that [t]he company is the general Zamindar [landlord] and as

such any new lands must, we conceive, be considered at its dis-

posal (Territories Department Report 1820: Section 48). This

report illuminates how a corporate body of the joint-stock com-

pany produced itself as the sovereign body in a foreign land.15


7/9

SPECIAL ARTICLE


The report emphasised that even in the case of persons who

have long had possession, it is the practice for them when the

excess is discovered to apply for and obtain a pattah [lease]

from the Collector for such excess and pay corresponding Rev-

enue (Territories Department Report 1820: Section: 30). This

report, along with the surveys, and the materiality of a paper

lease emerged as a powerful tool of governance. However, at

the same time, the narrative within the report undercuts its

own power by revealing how the company agents were daunted

by the task at hand. The text is shot through with doubts of

ownership, ormore preciselywith an attempt to forge, in the

dual senses of creating and fabricating, a language of ownership.

What becomes clear is that the authority of the material paper

as a symbol or a graphic artefact attesting possession had the

power to supersede the written text within the paper.

The report recommended that the Strand Bank authorities

lay immediate claims to the newly acquired land exposed

by the spontaneous desertion of the stream, [the Company]

acquired lands [which] were to be converted to a public wharf

from Customs House to Cucha-goody Ghat (TerritoriesDepartment Report 1820: Section 8). The Territories Depart-

ment hastened to create what it considered would be a public

wharf, but for that the department needed to demarcate spac-

es already in use by the public. Having planted Fort William in

the riverfront area, it was deemed that the ghatsaround it

were chiefly used for military purposes, housing yards and

buildings for the reception of Garrison Stores. According to the

report, Babughat, one of the ghats adjoining the fort and an

important point of transport between Calcutta and its adjoin-

ing areas, was particularly convenient for the embankment of

troops and the loading and unloading of the military garrison.

Devoid of any form of circumspection about town planning,

the area from the north of the fort to that of Chandpal Ghatwas demarcated to be kept clear, and a public promenade was

planned. However, the Company servants soon realised the

fallacy of creating a public space out of a public space, and they

covered up their fatuousness through a plan that forbade pri-

vate individuals to enter or use that area until the promenade

was ready (Territories Department Report 1820: Section 5).

Judiciously, the term private individuals was left undefined.

Colonial Idea of Public

The British attempted to transfigure these heterogeneous com-

munal spaces of the riverbank or ghats along this stretch into

clearly demarcated public space and simultaneously codified

customs into a legal system (Cohn 1996). The codification was

coterminous with the production of a market in land, and the

market masqueraded as the colonial idea of the public, one that

can be regulated, measured and disciplined (Birla 2009: 910).

The report further mentioned that, although the government

stood to accrue a considerable amount of revenue from this, the

immediate pecuniary gain was hardly the driving force behind

the Strand Bank project (Territories Department Report 1820:

Section 65). However, impulses much larger than mere pecuni-

ary gains were at work here. Indeed, the economic basis of colo-

nial legal production of spaces comes to light in this report.

The Territories Department Report provides compelling evi-

dence for the frustration encountered in attempts at mapping

in the face of the moving river. The primary problem with the

ghat, as far as the Territories Department officials were con-

cerned, was the changing course of the river. Moreover, the al-

luvial deposit meant that the earlier pattah measurements from

1797 had been nullified (Territories Department Report 1820:

Sections 11, 13, 15, 16, 17 and 21).16The major thrust of the re-

port was to acquire lands which the Territories Department

found to be in excess of any previous documentation with the

pattah office, or spaces where inhabitants could not produce

any pattah, or recognisable land titles. Whenever residents,

mostly native, but sometimes also Europeans, failed to supply

the surveyors with documentation, the officials declared:

We are of the opinion that it is indisputably the property of the State and

it would be advisable to adopt measures for raising it with a view to the

appropriation of it to public purposes. We are not aware that any claim

is likely to be seriously maintained to this spot, though it has been occa-

sionally used for the deposit of old guns and anchor, and thus a dubious

sort of occupancyhas been exercised over a part of it by Messers Clarke

and Co on behalf of Mr Johnson. It may nevertheless be proper to statethe grounds on which we consider the title of Government to it to rest

(Territories Department Report 1820: Sections 2728).

At this point in time in 1820, paper became central in il lu-

minating how the operations of colonial law and economy

merged in a moment of regularisation. This report became the

conduit which crystallised the moment of struggle in trans-

lating squatting or occupation by early British merchants

into ownership, ormore precisely statedcolonial conquest.

Early British writings about life in Calcutta often use the term

squatting to express British presence in Calcutta, and the

report clearly states that this survey must seal the translation

from squatting to conquest through the redefinition of the idea

of legality. The report prescribed an arbitrary provision forapplying to have the extra land counted as part of existing

ownership. However, by a sleight of hand, it stipulated that

papers legitimising ownership must be produced to justify

claims upon the newly emergent land. Finally, it foreclosed

even that ludicrous provision in the next sentence by saying

that in spite of any legitimate claim one may produce, the state

may decide to take over the land or refuse granting rights to it

(Territories Department Report 1820: Section 31). The emi-

nent domain principle and justification for land grabs was per-

haps never articulated more clearly and bluntly. Through

these bureaucratic manoeuvres, merchants of a joint stock

company turned themselves into landlords and laid the legal

groundwork for land acquisition in the colony.

Two decisive aspects of colonial law and economy converge

here: on the one hand, there was the attempt by the Company

agents to initiate a process whereby a heterogeneous body of

ownership practices was condensed into contractual paper-

based exchange and establishment of rights. On the other

hand, the slippage between the terms interchangeably used in

the report points to the operation of colonial power as cor-

porate sovereigntyas the Company, in the course of the re-

port becomes the zamindar, then the government, and finally,

the State. This deliberate slippage throws light upon the


8/9

SPECIAL ARTICLE


unique political power of the CompanyState and how it cali-

brated its status between positions of deference and defiance,

between claims to be a mere merchant and an independent

sovereign (Stern 2011: 13). This unique position afforded the

Company the opportunity to produce itself as a precarious, yet

potent, form of corporate sovereignty, which forged its own

authority and delegitimised that of others with impunity. The

authority of thepattahwas in the process of being refurbished

in the form of property deeds, and concomitantly, the claims

of the squatters were also being legitimised in the process,

thus, providing new definitions of squatting.

Following the publication of the Territories Department

Report, a Strand Bank Fund was set up to improve the ghats

along the citys predominantly European quarters, but by the

middle of the 19th century, the Strand Bank Fund began stretch-

ing its tentacles, both North and South, to the native parts of

the city. The present Strand Road that runs through the city was

constructed between 1852 and 1853 by using the accreted land

permanently, and exclusively, for purposes of public utility con-

nected with the trade, the traffic, the health and the conveni-ence of the community (WBSA2012: 95). The process of pro-

ducing the land along the ghat as public property with stipulated

land-use regulation was anything but easy and existing land-

use patterns became expressions offictionalclaims to property

and were rendered recalcitrant in the domain of law.17

It is perhaps of great significance that while the debates,

administrative surveys and property disputes were raging

around the construction of Strand Bank in the newly accreted

land, the Governor-General in council passed a law in 1825,

five years after the Territories Department Report pertaining

to disputes about accreted land. The Regulation for Declaring

the Rules to be Observed in Determining Claims to Land

Gained by Alluvion or by Dereliction of a River or the Sea, alsoknown as Regulation XIof 1825 had strict stipulations based on

local customs with regard to land gained through alluvion. It

stated that the new land belonged to the proprietors of estates

in the contiguous areas, and nowhere does this law say that,

this land would immediately become state land. The only

stipulation for state-domain appeared in the case of charor is-

lands thrown up by large navigable riverbeds. When such

newly-formed islands were not fordable, the new regulation

decreed that such newly-formed land would become govern-

ment land (Regulation XI1825: 586). The land deposited along

Calcutta was not an island and was often contiguous with the

estates of the people living along the river. The regulation stip-

ulated that the Court of Justice in deciding upon such claims

and disputes (arising from land gained by alluvion or by dere-

liction of a river or sea) shall be guided by the best evidence

they may be able to obtain of established local usage, if there

be any applicable to the case or, if not, by general principles of

equity and justice (Regulation XI, 1825: 592). In all the subse-

quent surveys, municipal debates and property dispute cases

that accompanied the construction of the Strand Bank, the stipu-

lations laid down in this Regulation XIof 1825 were ignored.

Conclusion: Between Justice and Law

If wasteland was the justification for the creation of state do-

main in revenue-generating agricultural land and forestland,

then the accretion and sudden exposure of land due to chang-

ing course of the river offered justification for land acquisition

in colonial Calcutta. This justification, although enacted

through the force of law, remained beyond the purview of re-

corded regulations set forth by the colonial officials. Precise-

ly by remaining outside the pale of written regulations, the

possibility of articulating just land acquisition for public pur-

poses was and continues to remain as an impossibility.

To conclude, let us return to the omissions with which I

began the article. The fundamental right to property undoneby an expanding scope of eminent domain doctrine, first

enacted feebly in the name of distr ibutive justice in the 1950s,

Review of Womens StudiesOctober 31, 2015

Rethinking Violence Mary E John

Locating Hyderabad for Feminism in the Present Tejaswini Madabhushi,Struggle against Violence Maranatha Grace T Wahlang, Gitanjali Joshua

Rape as Atrocity in Contemporary Haryana Women against Sexual Violence and State RepressionReporting Sexual Violence in India:

What Has Changed since the Delhi Gang Rape? Divya Arya

Gathering Steam: Organising Strategies of the Indian Mens Rights Movement Srimati Basu

Protection of Women from Domestic Violence Flavia Agnes, Audrey DMelloSome Thoughts on Extreme Violence and the Imagination V Geetha

For copies, write to: Circulation Manager,

Economic and Political Weekly,

320321, A to Z Industrial Estate, Ganpatrao Kadam Marg, Lower Parel, Mumbai 400 013.

Email: [email protected]


9/9

SPECIAL ARTICLE


Notes

1 For two recent overviews of this period, seeSampat (2013) and Ramanathan (2011).

2 I borrow the term corporate-sovereignty fromPhilip Stern (2011).

3 Chakravorty (2013), Sampat (2013) and Sarkar(2011) have grappled with this question andeach has successfully addressed many of theintractable problems within this debate.

4 Ramanathan (2011) defines this specific neo-liberal logic as a stage in which the state actslike a facilitator in a friction-free process ofland transfer, while guaranteeing profits, by

recasting itself as the public in publicprivatepartnerships or PPP.

5 Both quotes are from the Constitution (FourthAmendment) Act, 1955, 27 April 1955. Article 31(2), accessed on 19 November 2014; in http://in-diacode.nic.in/coiweb/amend/amend4.htm .

6 For instance, this ruling was challenged in thecelebrated Keshavananda Bhart i vs State ofKerala,(AIR 1973 SC 146).

7 I borrow this definition from Sampat (2013) fordistinction between totalitarian and excep-tional power.

8 For a study that briefly touches upon this peri-od see Gupta (2012).

9 Prior to 1833 the rules, ordinances and regula-tions passed by the members of the EIC couldbe enforced only after the Supreme Court reg-istered it. After 1833 governor general in coun-

cil could pass regulations without registeringthem in the Supreme Court and they werehenceforth called acts (Field 1875: iv).

10 The regulations that preceded Cornwallis arefound in Colebrook (1793).

11 The Chief Engineer of Calcutta, Mark Woodand William Baillie prepared a map with de-tails of property measurements in 1797. The ap-pendix with the property measurements wereattached to the Extract from the Proceedings ofhis Excellency the Most Nobel the GovernorGeneral in Council in the Territories Depart-ment, 24 March 1820, Judicial [Criminal], 1April, 1820 West Bengal State Archives(WBSA), Kolkata. (Hereafter embedded cita-tion as Territories Department Report.)

12 Strand Bank Funds, Judicial, 10 October 1963,Prog 12331, WBSA, Kolkata.

13 I am borrowing from Hull (2012) formulation

to explain how paper (both as a linguistic textand as a non- and para-linguistic entity) medi-ates the act of governing with citizens acquies-cence, contestation and use of governance. Seeespecially the Introduction and Chapters 1and 4.

14 The master plans never become part of thelived city, in ways smaller rulings, acts, reportsand surveys do. Reports of this nature becomeimportant governing mechanism, as well aspetitioning mechanism in ways that compre-hensive town plans never achieve. Yet, as Hull(2012) shows scholars of South Asia turn tothese larger plans, and often ignore the smallerreports which formed the everyday ofgovernmentality.

15 Stern (2011) used the term CompanyState tocapture this form of corporate sovereignty.Stern breaks from earlier works, which, whilerecognising EICs sovereign powers, have onlyseen it as State-like, semi-sovereign, or quasi-governmental. He turns this conceptionaround to show how forms of corporation con-stituted the bedrock of the political form of theearly modern state, or what he calls corpuspoliticum et corporatumor communitas perpet-ua. This report is a perfect example of the finenegotiations between customary practices andthe aspiration to sovereign power that main-tained the Company rule for over a century.

16 The report refers to several older reports, onemade by Gladwin in 1797, which prepared aground measurement of the properties alongthe river frontage. It also mentions two otherreports dated in the Bengali calendar, but thenames of the surveyors are not mentioned. Icould not locate these reports.

17 Elsewhere I have analysed the legal cases ofproperty disputes that ensued following fromthe stipulations of the report (Bhattacharyya2014).

References

Bhattacharyya, Debjani (2014): Fictions of Posses-sion: Land, Property and Capital in ColonialCalcutta c 1820 to c 1920, (PhD thesis), EmoryUniversity, Atlanta, Georgia, United States.

Birla, Ritu (2009): Stages of Capital: Law, Cultureand Market Governance in Late Colonial India,Durham: Duke University Press.

Bose, Prasenjit (2013): A Land Acquisition Billwith Many Faultlines, Economic & PoliticalWeekly, XLVIII, Nos 2627.

Briggs, John (1830): The Present Land-Tax in India,London: Longmans.

Chakravorty, Sanjoy (2013): The Price of Land:Acquisit ion, Conflic t, Consequence, New Delhi:Oxford University Press.

Cohn, Bernard S (1996): Colonialism and Its Formsof Knowledge: The British in India, Princeton:Princeton University Press.

Colebrook, James (1773): Supplement to the Di-gest of the Regulations and Laws Enacted bythe Govenor-General in Council for the CivilGovernment of the Territories under the Presi-

dency of Bengal Containing a Collection of theRegulations Enacted Anter ior to the Year MDC-CXCIII, Delhi: National Archives of India.

Field, C D (1875): The Regulations of the BengalCode, Calcutta: Thacker and Spink.

Guha, Ranajit (1963):A Rule of Property for Bengal:An Essay on the Idea of Permanent Settlement,Paris: Mouton.

Gupta, Priya S (2012): The Pecul iar Circumstancesof Eminent Domain in India, The Osgoode HallLaw Journal, Vol 49.

Hull, Mathew (2012): Government of Paper: TheMateriali ty of Bureaucracy in Urban Paki stan,Berkley: University of California Press.

Iqbal, I (2014): Governing the Wasteland: Ecolo-gy and Shifting Political Subjectivities in

Colonial Bengal,Asian Environments: Connec-tions across Borders, Landscapes, and Times,Ursula Mnster, Shiho Satsuka and GunnelCederlf (eds), RCC Perspectives, Rachel Car-son Center, 3: 3943.

Lahiri-Dutt, Kuntala, N Ahmad and R Krishnan(2012): Land Acquisition and Dispossession,Economic & Political Weekly,XLVII, No 6: 3549.

Nilsen, Alf (2010): Dispossession and Resi stance inIndia: The River and the Rage, New York:Routledge.

Phillips, Ar thur (187475): The Law Relating to theLand Tenures of Lower Bengal, Tagore Law

Lectures Series.Ramanathan, Usha (2011): Land Acquisition, Emi-nent Domain and the 2011 Bill, Economic &Political Weekly, XLVI, No 4445: 1014.

Ramesh, Jairam and Muhamed Ali Khan (2015):Legislat ing for Justice: The Making of the 2013Land Acqusit ion Law, New Delhi: Oxford Uni-versity Press.

Rustom, Cavasjee Cooper vs Union of India(1970):AIR 564, 1970 SCR (3), 530.

Sampat, Preeti (2013): Limits to Absolute Power:Eminent Domain and the Right to Land inIndia, Economic & Political Weekly, XLVIII,No 19: 4052.

Sanyal, Kalyan (2007):Rethinking Capitali st Devel-opment: Primitive Accumulation, Governmen-tality and Post-Colonial Capitalism, London:Routledge.

Sarkar, Swagato (2011): The Impossibility of Just

Land Acquisition,Economic & Political Weekly,XLVI, No 41: 3538.

Sartori, Andrew (2014): Liberalism in Empire: AnAlternative History, Chicago: Chicago UniversityPress.

Sathe, Dhanmanjiri (2014): Vicissitudes in theAcquisition of Land: A Case Study,Economic &Political Weekly, XLIX, No 7: 7477.

Singha, Radhika (1998):A Despotism of Law: Crimeand Justice in Early Colonial India, Delhi:Oxford University Press.

Skinner, Daniel and Leonard Feldman (2015): Em-inent Domain and the Rhetorical Constructionof Sovereign Necessity, Law, Culture and theHumanities, 11: 393413.

Spivak, Gayatri (2013): Europe and the Bull Mar-ket, viewed on 30 November 2014, http://vimeo.com/59215616.

Stern, Philip J (2011): The CompanyState: Corpo-rate Sovereignty and the Early Modern Founda-tion of the British Empire in India , New York:Oxford University Press.

Territories Department Report (1820): The Territo-ries Department, 24 March, Judicial (Crimi-nal), 1 April 1820, Kolkata: West Bengal StateArchives.

The State of West Bengal vs Mrs Bela Banerjee andOthers (1953): 1954 AIR 170, 1954 SCR

558,11 December.

Washbrook, David (1981): Law, State and AgrarianSociety in Colonial India, Modern AsianStudies, 15(3): 649721.

WBSA (2012): Select Documents on Calcutta 18001900, Kolkata: West Bengal State Archives.

and later more emphatically in the name of administrative ef-

ficiency from the 1970s, and finally, violently under neo-liberal

development and growth in the last decade. Even if scholars

have turned to the exceptional status of eminent domain laws

from the LAAto RTFCTLARRA, perhaps a far grimmer propos-

ition can be found in the recent argument that under the

Indian Constitution eminent domain is not exceptional power

given that the right to property is not a fundamental right

(Sampat 2013: 47, emphasis mine). If there were ever any radical

potential to rethink eminent domain principle for land

redistribution, that was decisively foreclosed in the 1958 Tenth

Law Commission Report, which declared an examination of

the ethical basis of eminent domain laws as, at best, superflu-

ous. Given this foreclosure, perhaps it is more important to

document the moments, where the ethical question or ques-

tions of justice were repeatedly undermined, or declared irrel-

evant in the face of a pragmatic solution based on custom,

whether real or invented.

History of Eminent Domain in Colonial Thought and Legal Practice 1

Documents

Transcript of History of Eminent Domain in Colonial Thought and Legal Practice 1