ISLAMABAD: The Supreme Court seems keen to lay down a new legal principle by interpreting Articles 23 and 24 to determine whether a private company — even if it is a charitable trust — can acquire state land for anything other than public purposes, i.e. to build a housing society or a residential township.

Articles 23 and 24 of the Constitution, which deal with property rights, ensure an individual’s right to acquire or dispose of property in any part of Pakistan. The articles also provide protection from compulsory acquisition or taking possession of a piece of land for anything other than a public purpose.

The legal question arose after a three-judge Supreme Court bench, headed by Justice Mian Saqib Nisar, took up an appeal moved by the Ahbab Cooperative Housing Society Limited.

The controversy at hand revolves around the allotment of land to the housing society, which applied to the Lahore district collector in September 1970 for the acquisition of land in the Hanjerwal and Thokar Niaz Baig localities on the outskirts of Lahore. The society wanted to establish boys and girls colleges on the land, in collaboration with the Quranic Education Society, as well as a small township appurtenant to these institutions.

Apex court may lay down new legal principle in deciding long-drawn dispute

On Feb 1971, a notification under Section 4 of the Land Acquisition Act 1894 was issued in respect of the land, measuring 209 kanals and seven marlas. But in November that year, through a corrigendum, the purpose of the acquisition was shown to be for a ‘private purpose’.

In the meantime, Martial Law Regulation 118 was issued on Apr 1972, under which it was no longer possible to establish privately-managed schools and colleges. Thus, on March 29, 1973, the objective of the acquisition of the land was changed to the establishment of a Quranic Research Centre and a residential colony.

However, the validity of the acquisition proceedings was challenged by Noor Muhammad and former Punjab governor Sadiq Hussain Qureshi. As a result, the Lahore division commissioner cancelled all notifications of the said piece of land through an order issued in July 1975.

This order was then challenged before the Lahore High Court by the housing society. The court set aside the land acquisition for a number of reasons, such as whether the land can be acquired at all for the purposes of a company, following the enforcement of the Constitution, particularly in the light of Articles 23 and 24.

Later, when the Supreme Court took up the matter, it framed four questions. Firstly, whether land can be acquired for a company’s private purposes after the enforcement of the Constitution, particularly when such an acquisition falls under the concept of ‘undue enrichment’.

Here, the concept of undue enrichment refers loosely to the principle that state land should not be used for the benefit or enrichment of private parties and can only be used for the public good.

Secondly, whether the acquisition of land can be tested on the touchstone of the Constitution when the matter at hand pertains to a period prior to the enforcement of the Constitution.

Thirdly, whether the controversy raised in the case was a ‘past and closed transaction’; and lastly, whether the first question is relevant for the purpose of a resolution or a decision on the case at hand, even though it has remained pending all this time.

Representing the petitioner, Abid Hassan Minto highlighted that no objection was ever raised by the respondents to the acquisition of the property, therefore they were not competent to agitate the matter before the court through a writ petition.

He also argued that the transaction had become ‘past and closed’ and that the high court had exceeded its jurisdiction by setting aside the allotment.

However, the bench has decided to refer the matter back to Chief Justice Anwar Zaheer Jamali, asking him to consider constituting a larger bench – preferably a five-member one – to hear and decide the constitutional questions that have been raised regarding the protection of property rights.

The matter was referred to the chief justice when Punjab Assistant Advocate General Mudassir Khalid Abbasi highlighted that similar petitions entailing the right of acquisition of properties by a company were pending before the Supreme Court. Now, all cases of a similar nature will be clubbed and heard together.

Published in Dawn, October 9th, 2016