History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v3.c43.96

v3.c43.96

The question whether the king is the owner of all land in his kingdom has been discussed from very ancient times. Jaimini (VI. 7. 3) states the proposition that in the Viśvajit sacrifice (where the sacrificer has to donate everything that belongs to him) even the emperor cannot make a gift of the whole earth of which he may be the ruler, since the earth is common to all (to the sovereign as well as to those who cultivate it and make use of it). Śabara²⁰³² elaborates this by adding that others have as much right over the earth as the emperor, that the emperor is entitled to a share of crops produced from the earth as his since he protects them; but that all other persons also walk on the earth, produce crops on it, get their sustenance from it and so they also have rights over the earth and therefore there is no difference between the emperor and other persons as to rights over the earth. This view is relied upon by the Vyavahāramayūkha²⁰³³ which says 'therefore it is said in the 6th chapter of Jaimini that the whole earth cannot be given away by the emperor and a province by a feudatory chief. The ownership in the several villages and fields on the entire earth or in a province belongs to the holders of the land alone, while kings are entitled only to collect taxes. Therefore when kings now make what are technically called gifts of fields, no gift of land (soil) is effected thereby, but only provision is made for the maintenance of the donee (from the taxes which are alienated by the king). Where however houses and fields are purchased from the holders thereof (by the king) he has also ownership (over the fields &c.) in those cases and he in such cases secures the full merit of the gift of land (if he makes a gift of such fields)'. These passages embody the important proposition that the state is not the owner of all lands, but is only entitled to levy taxes from the holders of land.