ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that private land acquired for a specific purpose cannot, as a general rule, be diverted to a different purpose at the discretion of the beneficiary or his beneficiary.
“While we have no hesitation in observing that the acquisition of land under the Act being an exercise of the sovereign power of eminent domain, deprivation of private property can only be justified by the touchstone of public utility. Therefore, once land is acquired for a specified purpose, the same cannot generally be diverted for any other purpose at the pleasure of the beneficiary or his successor in title,” said a 17-page judgment written by Chief Justice Aminuddin Khan while upholding the Peshawar High Court order in which the provincial authorities had refused to allow conversion of the land for other purposes.
An FCC division judge, CJ Aminuddin, noted that the stated purpose in the acquisition notice is not a mere formality – it is the constitutional justification for overriding a citizen’s fundamental property right.
“This is the most serious scenario from a constitutional point of view and which admits of no justification under the legal framework. If the State acquires land, for example for a public hospital, and then transfers or rents it to a private developer or for commercial purposes, the constitutional basis for the initial acquisition is retroactively destroyed,” the judgment states.
“This amounts to indirect expropriation for the benefit of private interests – an outcome that Article 24 of the Constitution categorically prohibits.”
“The requirement of public utility is a substantial limitation: if the declared object is fictitious, abandoned or materially modified, the acquisition itself loses its constitutional basis.”
The judgment notes that the expression used in Pakistani jurisprudence – “acquisition” – is equivalent to the Anglo-American concept of “compulsory purchase” or the doctrine of eminent domain (dominium eminens), derived from Roman law.
“The power of the State to compulsorily acquire private property to achieve a public purpose is a doctrine of ancient origin, firmly anchored in jurisprudence and universally recognized in modern constitutional systems.
“In theory, the doctrine relies on 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 clarified that the exercise of the power of eminent domain, however, is not unbridled.
