Land Acquisition Law & Lawyers in Pakistan
Acquisition is the act of becoming the owner of certain property, the act by which one acquires or procures the property. The law relating to land acquisition is referred to in England as the law of "compulsory purchase" and it is an expression of what is known in Pakistan, as the "power of eminent domain". This law empowers the state, as an exception to the general rule, to compel an owner of property to sell it to the state or to an agency or entity authorized by the state because the same is required for the use of the state or such agency or entity. The law also provides that a proper price be paid to such owner.
Land of the public may be acquired by the State for a public purpose meaning hereby for the use of the public or people at large, or, for a company. Acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be paid on account of such acquisition. The purpose of land acquisition is two-fold: firstly to fulfill the needs of Government and companies for land required by them for their projects, and secondly, to determine and pay compensation to those private persons or bodies whose land is so acquired. The exercise of the power of acquisition has been limited to public purposes.
The principles laid down for the determination of compensation, as clarified by judicial pronouncements made from time to time, reflect the anxiety of the law-giver to compensate those who have been deprived of property, adequately enough in the sense that they are to be given gold for gold and not cooper for gold. In other words, the compensation has to be adequate compensation.
The Land Acquisition Act, 1894 deals with the acquisition of land in Pakistan by the State for public purpose or for company or for temporary period. The procedure for acquiring land both by Government for public purposes and for company has been described in the Land Acquisition Act.
Acquisition by Government
Whenever it appears to any Provincial Government that land in any locality is needed for public purpose, a notification to that effect shall be published in the official gazette. In a notification issued under the Act, the particulars of the land necessary for defining and identifying it need not be stated. All that is necessary is that the notification should mention that the land is needed for a public purpose. But the notification issued under subsequent sections must contain sufficient description of the land to be acquired and must indicate precisely the particulars and the identity of the land sought to be acquired. A notice which is vague, ambiguous and uncertain cannot be a valid notification. The purpose of a notification is only to enable the authorities to carry out a preliminary investigation for deciding whether the land intended to be acquired is suitable for the purpose for which it is needed. It is sufficient if the notification only mentions that the land is needed for a public purpose without specifying the boundaries or the cadastral numbers of the land.
The object of the service of the substance of the notice is to afford an opportunity to the interested persons to file objections under Section 5(a) of the Act which confers valuable rights on the interested persons. Purpose of issuance of notification is that landowners be vigilant and on alert. Such notification has to be published and its copies affixed at conspicuous places on the land to be acquired or at conspicuous place in the village where land was situate. Concerned agency after publication of such notice could proceed further or withdraw further proceedings in peculiar circumstances and situations.
Collector / Revenue Officer is required to take immediate necessary steps to have the area surveyed and submit his report to the Commissioner not later than 60 days from the date of publication of the notification.
After issuance of a notification, landowners are to be on alert that their lands are likely to be acquired. At that time they may raise objections within 30 days after the issue of the notification. Every objection shall be made to the Collector / Revenue Officer in writing, and the Collector/ Revenue Officer shall give the objector an opportunity of being heard either in person or by pleader and after hearing the objections, the Collector/ Revenue Officer shall make further inquiry and submit the case for the decision of the Provincial Government, together with the record of the proceedings held by him and report containing his recommendations on the objections. The decision of the Provincial Government on the objections shall be final.
Recital in notification under section 6 is a declaration which is conclusive evidence that land was needed for public purpose or for company. Requisition of property already in occupation of Government in such cases would be acquiring of property under Land Acquisition Act, 1894.
The Collector / Revenue Officer after all the process of notices shall thereupon cause the land to be marked out. He shall also cause it to be measured, and if no plan has been made thereof, a plan to be made of the same.
Section 9 prescribes the next step to be taken by the Collector/ Revenue Officer and its object is to ascertain who are the persons interested in the land and to give them opportunity to put their claims to compensation for their respective interests, and their objections (if any) to the measurements made under section 8. With this view he must issue two notices. The one is a general or 'public notice' to be given in the locality, intimating the fact of the proposed acquisition and inviting claims for compensation from all persons interested in the land. The other is a special or personal notice to be served on the occupant and on all other persons believed to be interested in the land, and to the same effect. The former thus throws a duty on all persons interested, to apprise the Collector/ Revenue Officer of his interest and claim within the specified time; and the latter enjoins the Collector / Revenue Officer to ascertain with all reasonable means, the names of persons interested. The issue of a notice to requiring any person to make a statement containing the name of every person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee and tenant or otherwise is discretionary and not compulsory. Section 10 of the Land Acquisition Act, 1894 requires the amount of rents and profits to be given for a period of three years next preceding the date of the statement. It is not possible to assess claim for compensation on the rents and profits for one year only. Three years is the period taken in Government estimates; hence a statement for three years was considered as fair. The Collector/ Revenue Officer may also require information about the person or persons interested in the land or any part thereof.
On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector/ Revenue Officer shall proceed to enquire into the objections (if any) which any person interested [and a Department of Government, a local authority, or a Company, as the case may be] has stated pursuant to a notice given under section 9 to the measurements made, and into the value of the land [at the date of the publication of the notification under section 4, subsection (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of:
The true area of the land;
The compensation which in his opinion should be allowed for the land; and
The apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him; and
The costs which, in his opinion, should be allowed to any person who is found to be entitled to compensation and who is not entitled to receive the additional sum of fifteen percent, mentioned in subsection (2) of section 23 as having been actually and reasonably incurred by such person in preparing his claim and putting his case before the Collector/ Revenue Officer:
Provided that the Collector/ Revenue Officer may disallow wholly or in part the costs incurred by any person if he considers that the claim made by such person is extravagant. (Clause (iv) as mentioned above only applies to Karachi city).
An award shall be final and conclusive evidence as between the Collector/ Revenue Officer and the person interested and not between co-claimants. Inquiry should not be of summary character. Persons effected should be heard and given opportunity to adduce evidence. Collector's functions cannot be delegated. Land Acquisition Collector/ Revenue Officer while making inquiry and award is not bound by any particular procedure or mode of inquiry. In making award, Collector/ Revenue Officer does not act as a Judicial Officer and is only bound to exercise his own judgment in respect of assessment of compensation. Proceedings before Collector resulting in award are administrative and not judicial in nature. Award would become final when filed in the office of Collector unless it was modified, reversed or annulled by the Court in a reference or appeal. Finality is attached to the award in so far as the parties before the Collector or District Judge are concerned but a person who is not a party to the proceedings would obviously be at liberty to file a suit as he would not be bound by the award. It refers to an interested person whether he has appeared before the Collector or not, to be bound by the award in relation to the specified matters. Award under section 11 is final and conclusive evidence as between Collector and persons interested and not between co-claimants.
Collector/ Revenue Officer though is not a judicial officer but he is empowered by section 14 to exercise certain quasi-judicial functions and he has the powers to summon and enforce the attendance of witnesses including the parties interested or any of them and to compel the production of documents by the same means as is provided for Civil Courts, under Code of Civil Procedure. Collector's jurisdiction in acquisition cases under the Act is dependent upon prior publication of notice under section 4(1). A Collector/ Revenue Officer, in the performance of his functions under the Act, would appear to be simply an Inquiry officer charged with the duty to acquire land for public purposes, to ascertain its value and to deliver his award from which no appeal/ revision would lie to any Court.
When the Collector has made an award then he may take possession of the land, which shall vest absolutely in the Government and the land will be free from all encumbrances.
In cases of Urgency
Question whether urgency to acquire land for a particular purpose existed or not, was a matter for sole determination by the Government and concerned authority and was not subject to review by Courts. The scope of the provisions deals with this procedure is limited in its operation to case of emergency. The purposes mentioned in that section cannot be turned into a general definition of what are public purposes.
The existence of urgency is a matter solely for the determination of the Government and is not a subject of judicial review. In case of acquisition of land in cases of urgency the acquiring authority has to apply its mind in deciding whether urgency clause is to be made use of.
In case of urgency, the procedure will remain the same except the notice under Section 5-A. The Government, if satisfied that the urgency exists then they are entitled to pass an order to suspend the application of Section 5-A (i.e. hearing of objections after the issue of notification within 30 days). The period of 30 days will be excluded in cases of urgency; the procedure will remain the same. Urgency procedure does not apply to cultivated land. The urgency procedure applies not only to arable or waste land but to all lands.
Acquisition of land for Companies
The procedure taken for the acquisition of land for Companies is very simple. Of course, the first step to be taken by a Company desiring to acquire land under the Land Acquisition Act is to apply to the Collector giving particulars of the lands it needs and the work which it proposes to do on it, explaining that it is one which will be useful to the public. If, on the report of the Collector, the Provincial Government is satisfied that the work is apparently so, a notification including invitation of objections would be published; or, the Provincial Government may direct that an enquiry should be made according to the special procedure laid down for it.
The Company should satisfy the Provincial Government that (i) the acquisition is needed for the construction of some work; such work is likely to prove useful to the public (ii) that the purpose of acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith. Industrial concerns employing not less than 100 employees shall be considered as Company for the purposes of acquisition.
The enquiry shall be held by the officer (who is appointer by the Provincial Government to conduct enquiry) at such time and place as the Provincial Government shall appoint and will make a report on it and if the Provincial Government is satisfied after considering the report, if any, of the Collector that the purpose of the proposed acquisition is the same as mentioned in the Notification then it will require the Company to enter into an agreement with the Provincial Government for the following matters: (1) the payment to the Provincial Government of the cost of acquisition; (2) the transfer, on such payment, of the land to the Company; (3) the terms on which the land shall be held by the Company; (4) where the acquisition is for the purpose of erecting dwelling houses or provision of amenities connected therewith, the time, within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided; and (5) the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public will be entitled to use the work.
Every such agreement will be published in the official Gazette as soon as it is executed.
Acquisition of land for Railway Companies
In case of acquisition of land for use of Railway Company, the same procedure will be adopted as for Companies except the mode to prove the existence of agreement with the Railway Companies, existence of agreement for such acquisition may be proved by production of a printed copy thereof purported to be printed by order of Government.
This kind deals with the temporary occupation of waste or arable land as distinguished from permanent acquisition of land in general. When such waste or arable land is needed for any public purpose or for a Company the Provincial Government may direct the Collector to procure the temporary occupation and use of the same. It obliges Collector to issue public notice of substance of direction to be given and normally requires compliance of such provision of law nevertheless does not confer any right upon owners or persons interested in land, since such persons not required to do any particular act on issuance of such notice. There must apparently be an agreement in writing in all cases; such temporary occupation may not exceed three years from the commencement of the occupation. The Collector/ Revenue Officer has also to give in writing to the persons interested which virtually takes the place of a declaration, and should pay the amount agreed upon to them either in a gross sum of money or other periodical payments as may be agreed upon.
Acquisition of part of house or building
Government in proceedings under Land Acquisition Act, is bound to acquire all interest of owner of building including land. Where notification is for acquisition of a portion of certain land, but claimant desires acquisition for whole land and Collector/ Revenue Officer proceeds to make an award without fresh declaration whole proceedings beginning with Collector's award are void and question is illegal.
Reference to Court
Under Section 18 the reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same amongst the persons interested. This reference is strictly limited to the above matters. The Act provides for two classes of references, one under section 18 and the other section 30 of the Act. The scope and the object of the two sections are quite distinct. A person who has not accepted the award has an absolute right of reference to the court provided he conforms to the formalities laid down in the section, the reference under section 30 may be made suo motu by the Collector/ Revenue Officer and is confined to cases where a question of title arises or the dispute is as regards the apportionment of the compensation money.
The conditions prescribed by the section must be complied with before the Collector / Revenue Officer can make a reference and for the Court to exercise jurisdiction and entertain the reference. Those conditions are: (1) a written application to the Collector (2) by a person interested who had not accepted the award (3) stating the grounds of objection as to the measurement of the land or to the amount of compensation or as to the persons to whom it is payable or as to the apportionment of the compensation money among the persons interested (4) within the period of time prescribed therefore. These formalities are matters of substance and their compliance is a condition precedent to the exercise of the power of reference under the section.
Matters to be considered in determining compensation
According to Land Acquisition Law, there are certain matters to be taken into consideration by Collector / Revenue Officer in determining the amount of compensation to be awarded for land acquired under the Law. These are as: (1) The market value of the land at the date of publication of the notification; (2) the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; (3) the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of land, by reason of severing such land from his other land; (4) the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; (5) if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and (6) the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration and the time of the Collector's taking possession of the land.
Matters to be neglected in determining compensation
But the Court shall not take into consideration: (a) the degree of urgency which has led to the acquisition; (b) any disinclination of the person interested to part with the land acquired; (c) any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; (d) any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration or in consequence of the use to which it will be put; (e) any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; (f) any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or (g) any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector/ Revenue Officer after the date of the publication of the notification.
Power to Withdraw from Acquisition
Government alone is at liberty to withdraw from acquisition proceedings of any land of which possession has not been taken. Secretary, Revenue Department, can competently pass order on behalf of the Government for withdrawal of acquisition. Withdrawal only takes place before the possession of party who acquires it. Where the Government withdraws from any such acquisition, the Collector / Revenue Officer shall determine the amount of compensation due for the damage suffered by the owner in consequence of the proceedings taken under the first notification to acquire it.
Exemption from Stamp Duty and Fees
Award and Agreement made under Land Acquisition Act have been exempted from stamp duty and any person claiming under such award or agreement can get copy of same without paying any fee thereon.
Notice in case of suit or other Proceedings
If a person or body of persons, having statutory authority for the construction of works, exceeds or abuses the powers conferred by the Legislature, the remedy of person injured in consequence is by action or suit, and by a proceedings for compensation under the statute which has been so transgressed. A notice of one month as a condition precedent is required before the institution of certain suits or proceedings.
Appeals in Proceedings before the Court
Establishment for whose benefit land in question has been acquired has no locus standi to file appeal against referee Court's award. The right to appeal has been conferred to the person who is effeted by Award or proceedings taken under notification.
In short, if no steps were taken within one year of publication of first notification, acquisition proceedings would come to an end according to the rules framed under Land Acquisition Act, 1894.
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