ISLAMABAD:
The Federal Constitutional Court (FCC) has held that private land acquired for a specified purpose may not, as a general rule, be diverted to a different purpose at the discretion of the beneficiary or its successor-in-interest.
“Although we have no hesitation to observe that the acquisition of land under the Act being an exercise of the sovereign power of eminent domain but the deprivation of private property can only be justified on the touchstone of public purpose. Consequently, once land is acquired for a specified object, the same cannot ordinarily be diverted to another purpose at the whims of the beneficiary or its successor-in-interest,” says a 17-page judgement authored by Chief Justice Aminuddin Khan while upholding the Peshawar High Court order wherein provincial authorities had refused to allow the conversion of the land into other purpose.
An FCC division bench by CJ Aminuddin noted that the purpose declared in the acquisition notification is not a mere formality – it is the constitutional justification for overriding a citizen’s fundamental property right.
“This is the most constitutionally serious scenario and admits of no justification under the legal frame work. If the State acquires land for, say, a public hospital and subsequently transfers or leases it to a private developer or for commercial purpose, the constitutional foundation of the original acquisition is destroyed retroactively,” the judgement reads.
“This amounts to an indirect expropriation in favour of private interests – a result that Article 24 of the Constitution categorically prohibits.”
“The public purpose requirement is a substantive limitation: if the purpose stated is fictitious, abandoned, or materially changed, the acquisition itself loses its constitutional foundation.”
The judgement notes that the expression used in Pakistan’s jurisprudence – ‘acquisition’ – is equivalent to the Anglo-American concept of ‘compulsory purchase’ or the Roman law-derived doctrine of eminent domain (dominium eminens).
“The power of the State to compulsorily acquire private property for the attainment of a public purpose is a doctrine of ancient origin, firmly embedded in legal jurisprudence and universally recognized in modern constitutional systems.
“Theoretically, the doctrine rests upon the sovereign authority of the State to appropriate private property for the public good, even in the absence of the consent of its owner.
The court said that the exercise of the power of eminent domain, however, is not unbridled.
