ISLAMABAD:
The Federal Constitutional Court (FCC) has held that, as a general rule, private land acquired for a specific purpose may not be diverted to another purpose at the discretion of the beneficiary or his successor.
“Though we do not hesitate to observe that acquisition of land under the law is an exercise of the sovereign power of eminent domain, but the deprivation of private property can be justified only on the touchstone of public purpose. Accordingly, once land is acquired for a particular purpose, the same cannot ordinarily be diverted for another purpose according to its benefits or merits,” said judgment authored by Chief Justice Aminuddin Khan while upholding the Peshawar High Court order in which the provincial authorities had refused to allow the conversion of the land to other uses.
An FCC division bench of CJ Aminuddin observed that the purpose declared in the acquisition notification is not a mere formality – it is the constitutional justification for overriding a citizen’s fundamental right to property.
“This is the most constitutionally serious scenario and admits of no justification under the legal framework. If the state acquires land for, for example, a public hospital and subsequently transfers or leases it to a private developer or for commercial purposes, the constitutional basis for the original acquisition is destroyed with retroactive effect,” reads the judgment.
“This amounts to an indirect expropriation for the benefit of private interests – an outcome which Article 24 of the Constitution categorically prohibits.”
“The public purpose requirement is a substantive limitation: if the stated purpose is fictitious, abandoned, or substantially altered, the acquisition itself loses its constitutional basis.”
The judgment notes that the term used in Pakistan’s jurisprudence – ‘acquisition’ – corresponds 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 to achieve a public purpose is a doctrine of ancient origin, firmly rooted in legal jurisprudence and universally recognized in modern constitutional systems.
“Theoretically, the doctrine rests 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 that the exercise of the power of eminent domain, however, is not unfettered.
