DOCTRINE OF EMINENT DOMAIN VIS-A-VIS RIGHT TO FRESH AIR UNDER EASEMENT LAWS – A COMPARATIVE STUDY

Abstract

Right of easement is necessarily grown with the right to property. Origin of this right can be traced back from the days when people started acknowledging the rights of each other with respect to property. Owners right over the property were subjected to the condition that enjoying one’s property should not result in disturbing the right of his neighbor to enjoy his property. Right to fresh air is one of the easement rights which is statutorily recognized in every civilized country. However, this right is superseded by the doctrine of eminent domain, wherein the state is empowered to use public property to construct dams, roads, etc. on public property or by acquiring private property. To validate this action of the government, modern law of environment protection, fixes a mandate upon the government to get environmental clearance for such developmental activities. Municipal corporations and other local bodies of the government decide the width of the road and further need of expansion of road or construction of bridges and flyover based upon the need to regulate the motor vehicle traffic on roads. This paper, examines the impact of such activities on easement right to fresh air of the people residing in the nearby areas. In a developing country like India, most of the traffic conjunction is on the business roads, where such kinds of developments are carried out by states. Acquisition of lands for construction of cement roads, flyover near residential places are affecting these private rights as well. Through this paper the researcher also wishes to point out the importance of easementary and private right to fresh air, statutory framework in India and other developed countries as well as international mandate for developing countries.