Land Acquisition: an appraisal perspective of parliamentary inroads and judicial paradigms in Pakistan.

 
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Byline: Iftikhar Ahmad Tarar

Introduction

Compulsory acquisition of land has been stated to be the prerogative of the government and such practice of the government to take property not owned by it for public use is prevalent in those countries that allow private land ownership1.

The action of acquisition has been termed as 'condemnation' under the prerogative of "eminent domain" in the United States and 'expropriation' 'compulsory purchase' and compulsory acquisition or resumption in Canada, the United Kingdom and Australia respectively2.

Historical Background

For better comprehension of the issue, it is imperative to cast a glance at almost two hundred years back fromwhere the path ought to be traced. Legislative history of land acquisition in the subcontinent dates back to the Bengal Regulation I of 1824, the primary object of which was to enable the officers of the East India Company to obtain, at a fair valuation, land or other immoveable property required for raising infrastructure of various descriptions3. The said law couldn't hold ground any longer and was followed by a new law in 1850 which again was repealed in 1863 by the Act XXII of 1863. The same was replaced by the Act X of 1870 and finally by the Act I of 18944, which ultimately had to be adapted by Pakistan after emerging as an independent state in 1947.

In Pakistan, Certain rights have been guaranteed to the citizens some of which are recognized as fundamental rights. Right of acquiring, holding and disposing of property any where in Pakistan has, subject to the restrictions imposed by the constitution and any other reasonable restrictions prescribed by the statute in larger interest of the public, been stated to be one of the fundamental rights5. However, at the same time, adequate guarantee for the protection of such rights has been provided under article 24(1) thereof. The process to be employed for depriving some one of his property has to be in line with criteria/yardsticks adumbrated in article 24(2) and (3) of the constitution6.

As, under the umbrella of 'eminent domain', the state has been enabled, by mobilizing the provisions of the law to take the property of a citizen for using it for public purpose, therefore, notwithstanding his unwillingness to depart from is property, no one can refuse from such acquisition, and owner of such property can, maximumly, ask for compensation7. If, however, the property to be acquired is to be applied for serving any public purpose/ interest, the potential compensation, in such case, should be due, just, adequate and fair as the asset in question may be the sole source of livelihood or the deprivation may make the owner shelterless8. In this context, being the savior of rights of the public, the court has to be vigilant as to all such aspects while disposing of cases of such nature and ensure prompt award of fair and due compensation to the land owner9.

Land, under the provisions of extant law, is to be acquired subject to a couple of restrictions: firstly, the acquisition should be for public purpose and secondly, by paying compensation to be determined by the competent forum provided under Land Acquisition Act, 1894. Likewise, the process of acquisition can be executed through two ways: either through mutual negotiations or under the state powers conferred upon the state functionaries10

Privately owned lands are acquired, under the mandate of the Land Acquisition Act, 1894, firstly, for public purpose and secondly, without the consent of the owners. Paramount urge, however, behind the move emerges to be the uplift of the public at large11. Thus, the motive behind the legislative initiative is not to deprive the owners of their constitutional right of acquiring, holding and disposing of property. The constitution reiterates that no owner of the property will be deprived of his property except by the mandate of law and the acquisition will, followed by compensation, be resorted only and only for public purpose12.

Albeit the existing law is a confiscatory statute promulgated to dispossess the public of its valuable rights in property through forcible measure by the state exercising authority under a statute13, yet it has been held to be a complete code which apart from mode of acquisition of land, provides a scheme containing machinery for taking measurement of land, assessment of value, payment of compensation to interested persons, and in case of any dispute provides a remedy through a reference by collector to civil court14. It also, in itself, prescribes provisions for fair and adequate compensation to land owners whose lands have been acquired compulsorily15. It is owing to this flavor of the statute that the same is not to be interpreted liberally to jealously ensure protection, conservation and alimony of rights and interests of citizens16.

Determination of Compensation

Before pondering upon the judicial dicta pertaing to determination of compensation for expropriated land, it is apt to make recourse to an Indian judgment17. In the said judgment, the apex court held that judicial approaches to the issue of determination of compensation for acquired land have been varying according to the nature of the land. The exigencies entailing variation in applicable principles, the court added, was mainly visible in case of sale of non marketable commodities and the court reiterated that lands...

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