Friday, February 26, 2010

Rajora on Land Acquisition in the U.S. and India

Varsha Rajora has posted Land Acquisition: Its Legal and Constitutional Implications.  The abstract:

Property is the most ancient, the most vital institution, with which man became concerned. Its original function is to secure physical existence. It is a social concept and being a social concept is a creation of law.

According to Bentham, Property and law are born together and die together. He felt that before laws were made there was no property and that if the laws were taken away property would cease . If the definition of property is examined from the Anglo-American Jurisprudence and from the Russian Jurisprudence, they apparently reflect the contradictory views.

The 5th and 14th Amendment to the Constitution of the United States of America says that, “No person shall be deprived of his life, liberty or property, without due process of law”. According to it, property, the term in its broader sense, is the right of dominion, possession, and power of dispossession which may be acquired over a physical thing, and not the thing itself.

Property, in a sense, is the projection outside, of a man’s personality. Man is identified by his physical and mental characteristics. And in the image of the person must be included not only his tastes, preferences, but also the objects of personal possession indissolubly associated with him. These things achieve an immorality of their own.

The Indian view has always been that property, or at any rate, the right to the possession of it, belonged to the person who put the land first to beneficial use. There is nothing anti-social in the concept of personal possession. Even in socialistic countries, the private ownership of articles that are manufactured by the persons themselves is recognized. Ownership of property was an item in the Declaration of Human Rights. In the American Constitution, the importance of this aspect was recognized to the extent that it was said that the guarantee of liberty of a person by itself included protection of the rights of property and it was not necessary to have word ‘property’ included in the amendment to the constitution. A citizen of India has the right to acquire, hold and disposed of the property. The ownership and control of the material resources of the community are so distributed as best to sub serve the common good.

Matt Festa

Comparative Land Use, Constitutional Law, Property Rights, Property Theory, Scholarship | Permalink

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