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SPECIAL ARTICLE

History of Eminent Domain in Colonial Thought


and Legal Practice
Debjani Bhattacharyya

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.

Debjani Bhattacharyya (db893@drexel.edu) is at Drexel University,


Philadelphia. She is also a Visiting Associate Scholar at South Asia
Center, University of Pennsylvania.
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andownership 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 domain 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 contradiction
at the heart of our engagement with land acquisition rulings?
The proposition I am trying to develop is as follows: Exploring 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 delegitimising 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 participatory
parliamentary politics. Thus, LAA (Land Acquisition Act) is
now RTFCTLARRA (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act), and this has a tentacle which weaves in multiple acronyms, a major one being PAP or 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 economic 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 constitutive of the legislative power to take, and therefore, receives
immunity from legal scrutiny.
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SPECIAL ARTICLE

This article explores the prehistory of the LAA of 1894 to


trace the emergence, development and various legal justifications of the principle of eminent domain under the East India
Company (EIC) rule. By focusing on the case of colonial Calcutta, it argues that, if ideas of wasteland were instrumental in
laying claims to agricultural land by the EIC in certain parts of
India, then alluvial land accretions in the volatile river basin of
Ganges Delta laid the basis for articulating the eminent domain principle when it came to urban land. By closely focusing
on the judicial and municipal debates that facilitated the establishment of the Strand Bank Fund in 1837 and the construction of the Strand Bank (185253) in colonial Calcutta on
accreted land, this study shows how the existing laws and regulations were ignored, modified and misappropriated in order
to grab land along the riverbank in an extralegal fashion. It
reviews the various regulations prior to LAA of 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 the
eminent domain principle in Indian legal thought and then inquire 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 LAA was 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
LAA remained statutory in nature till the government undertook large-scale land distribution from the 1950s.1 The recent
revisions to the LAA of 1894, Land Acquisition, Rehabilitation
and Resettlement (LAAR) Bill in 2011 passed by the Ministry of
Rural Development (MoRD) and its most recent manifestation
as 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 importantly, 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 development and investment-friendly Modi government is in the
process of making changes to what had been hailed as a landmark 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 further expanded by the ever-increasing scope of eminent
domain, furthered by the marriage of public and private incarnated 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
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been undertaken, traces the prehistory of the LAA; how regulations and codes enacted by a corporate sovereignty impinged
upon the realm of law under the crown.2 It 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 coalesced 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 question of justice or ethics from within the space of law, it is necessary to first turn to the opening paragraph of the Tenth Report
of the Law Commission of India: Law of Acquisition and Requisitioning of Land (1958) dealing with land acquisition. A significant 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 property 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 public 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 India 1958: 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 property 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 public 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
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ground4

eminent domain begin to gain


(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 evocation of public purposes as one of the primary bases for
eminent domain emerged only gradually. Moreover, the analysis also reveals that eminent domain principles go back at
least 80 years prior to the LAA of 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 property and the statutory authority to grab land.
The 25th amendment of the Constitution in 1971 omitted
Article 31(1), following the Supreme Court judgment in Rustom
Cavasjee Cooper vs Union of India (1970), popularly known as
the Bank Nationalisation Case. Article 31(1) guaranteed that
No person shall be deprived of his property save by the authority 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 duty
of 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 Parliament passed a bill to amend Articles 31, 31A and 305 of the
Ninth Schedule to the Constitution under the Fourth Amendment Act of 1955. The reasons behind these amendments were
stated as follows:
Recent decisions of the Supreme Court have given a very wide meaning 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 provision of law and is not accompanied by an acquisition or taking possession 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 compensation 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
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given could not be called in question in any court on the


ground that compensation provided by the law was not
adequate.5 The 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 fundamental right. The new Article 300A stated 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 acquisition 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 heterogeneous articulations of eminent domain within colonial policies, regulations and surveys prior to the LAA of 1894, especially from 1820s onwards. This prehistory is not intended to
simply show the colonial lineages of eminent domain thought
within the various reformulations of the LAA in the postcolonial moment, but rather to mark the moments of contamination and discontinuities between the colonial and postcolonial. In this manner, we glimpse a thick history of the disparate moments that went into the making of the LAA in 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,9 the merchants
of the EIC passed 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 Marquis Charles Cornwallis attempted to give a formal shape to
the legislative functions in the eastern colony.10 As scholars
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have noted, these new powers introduced statutory laws relating 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 narrates a rather knotted historical trajectory of the states relation 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 acquisition 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 the zemindrs and of the officers in the Salt Department are to be
adjusted 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 expansion 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 (LCI 1).
In Bombay, on the other hand, it was the 1839 Building Act
XXVIII which for the first time enacted land acquisition legislation for the purposes of widening or altering any existing
public roads, streets, or other thoroughfare or drain or for
making any new public roads, street or thoroughfare within
the island of Bombay and Colaba (LCI 2). A similar Railway
Act XVII of 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
XX was 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 Act VI, 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 possession and under governance of the East India Company and for
the determination of the amount of compensation to be paid
for the same (LCI 2). While the different impulses that resulted 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 preceding and following that regulation.
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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 manufacture. The first purpose gave the EIC rights to acquire private 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 Railways 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 1850s regulations, 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 LAA of 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. These
rulings 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 principles 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 architecture 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 Government 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 relation 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 piecemeal 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 various 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
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of Indian history. Accordingly, the first section on the Hindoo


period declares that the term tenure is perhaps not applicable 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). Critiquing 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 that
cultivated 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 sovereigns right did not go beyond one-eighth, one-sixth or onetwelfth, according to the nature of the soil and the labour necessary 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 minerals under the earth, Phillips concludes that:
This would seem to indicate something less than an absolute or exclusive 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 (Phillips 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 drawing upon customs of the land. This report is significant because it captures an enactment of a principle of eminent domain 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 circumstances 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 ownership. 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
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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 misrecognition of propriety rights upon which the EIC built up its
revenue system. A similar claim can be found in a contemporary work by a Bengal civil servant and legal scholar
C D Field, who is perhaps most well-known for his book, The
Law of Evidence in British India. After mentioning the impossibility of ascertaining property rights and noting the asperity
with which the debate about land tenure in India was conducted, 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 the Regulations of the Bengal 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 to
them 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 corresponded 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 demystify proprietary rights in landed estate. Since land, unlike cattle 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
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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 Companys 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 owning the land itself. [] In popular phraseology the word estate is applied 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 XLVIII of 1793; cl 2 s 2, Reg XIX of 1795; s 1, Act VII
(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 such
things 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 different, 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 England and by extension in India by British officials. Fields comments are based upon not only his knowledge of textual sources 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 misappropriated the legal usage of the term estate as land, but also articulated principles of state domain in land in Calcutta. According to Holts own written statements, by the means of this
fallacious principle, the British squatters might 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 sections, 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 sedimentation 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
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first survey of urban property conducted by the revenue officials in 1797.11 The 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 deposited alluvial land approximately four miles long and roughly half a mile wide along the western banks of Calcutta.
In 1820, Esq Mackenzie, Secretary to the Territorial Department conducted the first survey of the riverbank and the newly
formed land in order to assess the extent and potential appropriation of this newly formed ground which the government
could then claim as its property (Territories Department Report 1820: Section 15). The Territories Department recommended 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 Department
gradually secured the appropriation of riverfront lands from
the wealthy Indians and British residents for beautification,
trade and warehouse purposes.12 The emergence of the new
strip of land opened up a discussion of property rights upon
that space and a larger debate about the EICs ownership status
within colonial Bengal.
Buried under countless land acquisition laws of Bengal, this
unpublished report has not previously been part of the discussions around urbanisation and land acquisition. Yet, as a governing 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 city
in comparison to the later town planning records and master
plans. The epistemological space of this report as a bureaucratic 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, contestation 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 alluvium 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 disposal (Territories Department Report 1820: Section 48). This
report illuminates how a corporate body of the joint-stock company produced itself as the sovereign body in a foreign land.15
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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 Revenue (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 (Territories
Department Report 1820: Section 8). The Territories Department hastened to create what it considered would be a public
wharf, but for that the department needed to demarcate spaces already in use by the public. Having planted Fort William in
the riverfront area, it was deemed that the ghats around 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 adjoining 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 Ghat
was 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 private 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 communal 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 pecuniary gains were at work here. Indeed, the economic basis of colonial legal production of spaces comes to light in this report.
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The Territories Department Report provides compelling evidence 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 concerned, was the changing course of the river. Moreover, the alluvial deposit meant that the earlier pattah measurements from
1797 had been nullified (Territories Department Report 1820:
Sections 11, 13, 15, 16, 17 and 21).16 The major thrust of the report 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 occasionally used for the deposit of old guns and anchor, and thus a dubious
sort of occupancy has been exercised over a part of it by Messers Clarke
and Co on behalf of Mr Johnson. It may nevertheless be proper to state
the 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 illuminating 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 translating 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 for
applying 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 eminent domain principle and justification for land grabs was perhaps 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 paperbased 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 corporate sovereigntyas the Company, in the course of the report becomes the zamindar, then the government, and finally,
the State. This deliberate slippage throws light upon the
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unique political power of the CompanyState and how it calibrated 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 the pattah was 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 stretching 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 connected with the trade, the traffic, the health and the convenience of the community (WBSA 2012: 95). The process of producing the land along the ghat as public property with stipulated
land-use regulation was anything but easy and existing landuse patterns became expressions of fictional claims 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, also
known as Regulation XI of 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 char or islands 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 government land (Regulation XI 1825: 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 stipulated that the Court of Justice in deciding upon such claims
and disputes (arising from land gained by alluvion or by dereliction 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 subsequent surveys, municipal debates and property dispute cases
that accompanied the construction of the Strand Bank, the stipulations laid down in this Regulation XI of 1825 were ignored.
Conclusion: Between Justice and Law

If wasteland was the justification for the creation of state domain in revenue-generating agricultural land and forestland,
then the accretion and sudden exposure of land due to changing 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 recorded regulations set forth by the colonial officials. Precisely by remaining outside the pale of written regulations, the
possibility of articulating just land acquisition for public purposes 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 undone
by an expanding scope of eminent domain doctrine, first
enacted feebly in the name of distributive justice in the 1950s,

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and later more emphatically in the name of administrative efficiency 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 LAA to RTFCTLARRA, perhaps a far grimmer proposition 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
Notes
1 For two recent overviews of this period, see
Sampat (2013) and Ramanathan (2011).
2 I borrow the term corporate-sovereignty from
Philip Stern (2011).
3 Chakravorty (2013), Sampat (2013) and Sarkar
(2011) have grappled with this question and
each has successfully addressed many of the
intractable problems within this debate.
4 Ramanathan (2011) defines this specific neoliberal logic as a stage in which the state acts
like a facilitator in a friction-free process of
land transfer, while guaranteeing profits, by
recasting itself as the public in publicprivate
partnerships or PPP.
5 Both quotes are from the Constitution (Fourth
Amendment) Act, 1955, 27 April 1955. Article 31
(2), accessed on 19 November 2014; in http://indiacode.nic.in/coiweb/amend/amend4.htm.
6 For instance, this ruling was challenged in the
celebrated Keshavananda Bharti vs State of
Kerala, (AIR 1973 SC 146).
7 I borrow this definition from Sampat (2013) for
distinction between totalitarian and exceptional power.
8 For a study that briefly touches upon this period see Gupta (2012).
9 Prior to 1833 the rules, ordinances and regulations passed by the members of the EIC could
be enforced only after the Supreme Court registered it. After 1833 governor general in council could pass regulations without registering
them in the Supreme Court and they were
henceforth called acts (Field 1875: iv).
10 The regulations that preceded Cornwallis are
found in Colebrook (1793).
11 The Chief Engineer of Calcutta, Mark Wood
and William Baillie prepared a map with details of property measurements in 1797. The appendix with the property measurements were
attached to the Extract from the Proceedings of
his Excellency the Most Nobel the Governor
General in Council in the Territories Department, 24 March 1820, Judicial [Criminal], 1
April, 1820 West Bengal State Archives
(WBSA), Kolkata. (Hereafter embedded citation 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 text
and as a non- and para-linguistic entity) mediates the act of governing with citizens acquiescence, contestation and use of governance. See
especially the Introduction and Chapters 1
and 4.
14 The master plans never become part of the
lived city, in ways smaller rulings, acts, reports
and surveys do. Reports of this nature become
important governing mechanism, as well as
petitioning mechanism in ways that comprehensive town plans never achieve. Yet, as Hull
(2012) shows scholars of South Asia turn to
these larger plans, and often ignore the smaller
reports which formed the everyday of
governmentality.
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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, superfluous. Given this foreclosure, perhaps it is more important to
document the moments, where the ethical question or questions of justice were repeatedly undermined, or declared irrelevant in the face of a pragmatic solution based on custom,
whether real or invented.

15 Stern (2011) used the term CompanyState to


capture this form of corporate sovereignty.
Stern breaks from earlier works, which, while
recognising EICs sovereign powers, have only
seen it as State-like, semi-sovereign, or quasigovernmental. He turns this conception
around to show how forms of corporation constituted the bedrock of the political form of the
early modern state, or what he calls corpus
politicum et corporatum or communitas perpetua. This report is a perfect example of the fine
negotiations between customary practices and
the aspiration to sovereign power that maintained the Company rule for over a century.
16 The report refers to several older reports, one
made by Gladwin in 1797, which prepared a
ground measurement of the properties along
the river frontage. It also mentions two other
reports dated in the Bengali calendar, but the
names of the surveyors are not mentioned. I
could not locate these reports.
17 Elsewhere I have analysed the legal cases of
property disputes that ensued following from
the stipulations of the report (Bhattacharyya
2014).

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