Unjust takeoversAuthor: Rafia Zakaria

Posted On: Wednesday, January 22, 2014Source/Reference: Dawn.com

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LIKE crumbling buildings, decrepit railway cars, and antiquated customs, the law governing the public taking of private land in Pakistan is a legacy of the British Raj. For 120 years, the Land Acquisition Act, passed on March 1, 1894, has deemed when the state can lawfully take over the private property of its citizens for the larger public good.Its provisions dictate that before the government can institute such a takeover, it must first undertake a survey of the land, providing occupiers and owners seven days’ written notice of its intent to survey. Further provisions detail wide public notification that the land is required for public purpose, a lengthy process of hearing objections, and also a thorough process of determining the correct compensation for the price of the land.

In sum, the law, despite its age, attempts to ensure that, in the instance of an urgent need for the government to take over the land of a private citizen, due process prevents the ultimate injustice of the government using its power to usurp private land.

The corrupt realities of contemporary times have found the colonial provisions inadequate. Recent years have revealed case after case of corrupt local government officials using the machinery of the state to enable takeovers of private property for the benefit of corporations and the well-heeled. The procedures and safeguards enumerated in the act are rarely, if ever, followed or are cleverly elided in the effort to enable as swift a

takeover as possible. One case from Faisalabad illustrates just how the cover-ups of illegalities can proceed. Hamida Begum, a retired primary school teacher and a widow, is the co-owner of a parcel of land on the outskirts of Faisalabad. She only discovered the government’s action to take over her land by accident. While attempting to retrieve the ownership papers of the property, Hamida discovered that the office of the commissioner had initiated the process of a government takeover without ever taking the trouble to inform her or any of the other owners.

Shockingly, the party requesting the land takeover was no government agency at all, but a private chemical company. It needed the land, it said, to build a housing society for its employees. How the construction of such a housing society related to “public use”, no one was willing to say.

The alacrity with which the process had been facilitated is an example of just how fast bureaucracies can move when swallowing the rights of small landowners. According to the public documents pertaining to the case, the company put in the request to the commissioner’s office in late December 2012. In the space of a little more than a week, the land revenue agency had already approved the request, skipping all the survey, notification, and investigation requirements listed in the Acquisition Act.

Early next month, a notice appeared in the official gazette announcing the government’s intention to take over the land. Of course, the fact that no one, especially not the actual owners of the land, has any access to this government gazette was beside the point.

But fate intervened and Hamida Begum did find out, if only due to a coincidence. After the discovery, she and the other owners of the land submitted their objections to the commissioner’s office. Unsurprisingly, there was no attempt to respond to these allegations or to halt the taking.

Neither has there been any effort to follow the provisions enumerated by law to determine the correct market price of the land so that it could be paid to the owners, in the event that the taking of the land is deemed legal.

Interestingly, the Lahore High Court has recently halted many such underhanded government takings of private land. In December 2011, Justice Mansoor Ali Shah of the LHC vacated the request of the Government Muslim Degree College in Narowal to construct a post-graduate block of the college on private land. The judge not only took notice of the misuse of Section 17(4) of the Land Acquisition Act of 1894, but also instructed that the section should only be invoked in “critical situations”.

More recently, this month Justice Ayesha Malik of the LHC restrained the Punjab government and others from private land acquisition for Garments

City in Sheikhupura. In that case, similar to the one in Faisalabad, no inquiry had been held under Section 40 of the act, and there was little connection to public welfare or use.

Based on the above, it would appear that the Faisalabad local government’s attempt to acquire private land on behalf of the company was beyond the definition of “public use”. The government officials not only failed to follow procedure but misused their power to deprive the hapless and unconnected of their small properties.

Justice in Pakistan, however, is not always a matter of who is right but rather a question of who is powerful. Under this scheme, the pleas of the poor rarely reach the ears of the mighty. The dealmakers and lawbreakers seem to believe that all land is their land and that they can take it away or give it away without heeding the objections of a retired schoolteacher, a woman, and a Pakistani who believes in the law and expects it to be followed.

The writer is an attorney teaching constitutional law and political philosophy.