ISLAMABAD:
The Federal Constitutional Court (FCC) has ruled that private land acquired for a specific purpose cannot, as a general rule, be diverted to another purpose at the discretion of the beneficiary or his successor in title.
“Though we do not hesitate to observe that acquisition of land under the Act is an exercise of the sovereign power of eminent domain, but deprivation of private property can only be justified on the basis of public purpose. Accordingly, once land is acquired for a specific purpose, the same cannot ordinarily be diverted to another purpose at the whims of the beneficiary or his successor in interest,” reads a 17-page judgment written by Chief Justice Aminuddin Khan, while upholding the High Court order of Peshawar in which the provincial authorities had refused to allow the conversion of the land for other purposes.
An FCC division bench headed by 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 right to property.
“This is the most serious scenario from a constitutional point of view and does not admit any justification in the legal framework. If the State acquires land for, for example, a public hospital and subsequently transfers it or rents it to a private developer or for commercial purposes, the constitutional foundation of the original acquisition is destroyed retroactively,” the ruling reads.
“This amounts to an indirect expropriation in favor of private interests, a result that article 24 of the Constitution categorically prohibits.”
“The public purpose requirement is a substantive limitation: if the declared purpose 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 “forced purchase” or the doctrine of eminent domain (dominium eminens) derived from Roman law.
“The power of the State to compulsorily acquire private property for the achievement of a public purpose is a doctrine of ancient origin, firmly rooted in legal jurisprudence and universally recognized in modern constitutional systems.
“Theoretically, the doctrine is based 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 said the exercise of the power of eminent domain, however, is not unbridled.
