::Illegal Dispossession Act in Pakistan…

::Illegal Dispossession Act in Pakistan… The purpose of the Act was to discourage and curb land grabbing and to protect the possession and rights of the owners and lawful occupiers against unauthorized and illegal occupants.

ILLEGAL DISPOSSESSION ACT, 2005

This program was held in the Conference Room of the Sindh Judicial Academy.

Knowledge and information was imparted to the learned participants on the following subjects:

Illegal Dispossession Act,2005

Session 1

Ms.Huma Ikramullah, Faculty Member of Sindh Judicial Academy gave a brief introduction of Hon’ble Mr. Justice ®Nadeem Azhar. Hon’ble Mr. Justice ®Nadeem Azhar spoke on the Purpose and Object of the Illegal Dispossession Act, its History, Background and Scope. He explained that the purpose of the Act was to discourage and curb land grabbing and to protect the possession and rights of the owners and lawful occupiers against unauthorized and illegal occupants. He touched upon some very important aspects also, such as the comparison of the Act with the remedy provided in Specific Relief Act, which resulted in a long discussion on the viability and utility of Act.

Hon’ble Mr. Justice ®Nadeem Azhar discussed the Definitions under the Act and a long discourse was conducted on the definition of “Owner” and “Occupier” provided in the Act.

Discussion was also held on another important aspect of law, as to whether the application of the Act is prospective or retrospective. The settled law is that all laws are prospective, however the legislature has the power to enact a law retrospectively subject to Article 12 of the Constitution of Pakistan 1973 which provides that no law shall authorize the punishment of a person (a) for an act or omission that was not punishable by law at the time of the act or omission, or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed .

Hon’ble Mr. Justice ®Nadeem Azhar remarked that the Honorable Supreme Court in the case of Rahim Tahir V/s Ahmad Jan PLD 2007 SC 423 has held that the Act having no retrospective effect may not be applicable to the case of unauthorized occupants pending before any other forum on the date of promulgation of the said Act, but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of the Act the same would squarely fall within the ambit of the Act. By holding this the Supreme Court has retrospectively applied the Act.

He mentioned that retrospectively of the Act was again considered by the Supreme Court in the reported case of Dr. Muhammad Safdar V/s Edward Henry Louis PLD 2009 SC 404 and the court has held that the reference to the case of Rahim Tahir (supra) was in-apt as it did not lay

down the correct law to the extent of retrospective application of the Act. The Court has further held that “the making of a law providing for retrospective punishment of a person is specifically prohibited by Article 12 of the Constitution and there is nothing to indicate that the Act of 2005 was intended to have any retrospective operation.

He further remarked that the retrospective operation was again considered by the Honorable Supreme Court in the reported case of Mumtaz Hussain (supra). He quoted that the Court has held that:

“As regards Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 it does not deprive the Legislature of its powers to give retrospective effect to an enactment which the Legislature is competent to enact. It merely provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission or for an offence by penalty greater than or of a kind different from the penalty prescribed by and for that offence at the time of offence was committed. Reference is invited to the case of Khan Asfandyar Wali V/s Federation of Pakistan PLD 2001 SC 607”.

During his lecture he mentioned that the matter of applicability of the Act was again considered in the reported case of Shahabuddin versus the State PLD 2010 SC 725 and it was held that Illegal Dispossession Act, having no retrospective effect may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the said Act, but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act. It was further held that Act cannot be restricted to the illegal occupants who entered into the premises subsequent to the promulgation of the Act; rather all cases of illegal and unauthorized occupants would be subject to the Act, except the cases which are pending adjudication before other forums.

In his discussion he cited the following judgments

1. Zahoor Ahmed v/s the State PLD 2007 Lahore 231

2. Mumtaz Hussain vs Dr. Nasir Khan 2010 SCMR 1254

3. Muhammad Ikram and 9 others vs Muhammad Yousuf and another 2009 SCMR 1066

4. Rahim Tahir vs Ahmad Jan PLD 2007 SC 423

5. Dr. Muhammad Safdar vs Edward Henry Loius PLD2009 SC 404

6. Adnan Afzal vs Capt Sher Afzal PLD 1969 SC P 187

Session 2

This was followed by tea break after which the Advocate Mr. Mahmood Ahmed Khan elaborated on the Cognizance of the Offence with special emphasis on Offence and Punishment. During his lecture he discussed and elaborated on the following cases:

1) 2010 S C M R 1584

2) 2010 SCMR 1254

3) P L D 2010 Supreme Court 725

4) P L D 2010 Supreme Court 661

5) 2010 Y L R 2139

6) 2010 Y L R 1969

7) 2010 P Cr. L J 666

8) 2010 Y L R 1997

9) 2010 Y L R 593

10) 2010 M L D 100

11) P L D 2010 Lahore 394

Session 3

The last session for Day 1 was conducted by Hon’ble Justice ® Ali Sain Dino Methlo.He discussed Investigation and its Procedure in detail. He elaborated on Section 5 of the Act which provides the procedure of investigation in conjunction with Section 9 of the Act which states that unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 shall apply to the proceedings. He therefore mentioned Section 4 (1) of the Code of Criminal Procedure which defines the word Investigation as under:-

“Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf.”

A Police Office is required to take the following steps during investigation:

i) Proceeds to the spot and inspects it,

ii) Ascertains the facts/circumstances of the case,

iii) Discovers and Arrests the suspected offender,

iv) Collects evidence relating to the commission of the offence which may consist of (a) examination of various persons including the accused and to reduce their statements into writing, and (b) the search of place or seizure of things considered necessary for the investigation and to be produced at the trial, and

v) Forms an opinion as to whether on the material collected there is a case to place the accused before the magistrate for trial.

Hon’ble Justice ® Ali Sain Dino Methlo explained that a procedure is a mode of proceeding by which, a legal right is enforced and the Law of procedure is commonly called as adjective law. (Black’s Law Dictionary Eighth Edition)

A procedure may be general as given by the general law and a procedure may be special as given by the special law on the same subject. The rule is that unless otherwise provided in the statute, the special law overrides the general law.

He remarked that a special Procedure and time limit has been prescribed under this Act and the court has to proceed with the trial, day to day and no adjournment can be granted for more than seven days and the case is to be decided within sixty days. If there is delay in disposal within that period sufficient reason shall be recorded by the Court.

Day 2

Session 1

Day 2 started with the recitation of the Holy Quran by one of the participants. Then Hon’ble Justice ® Ali Sain Dino Methlo proceeded with a recap of the Day 1 Session on Illegal Dispossession Act before going discussing the remaining provisions of the Act. A lot of interactive discussion was held regarding the remedy provided under Illegal Dispossession Act in which remedy is provided to the actual owners and occupiers in lawful possession of the property who are dispossessed, whereas remedy is also provided under Section 9 of the Specific Relief Act even to a person in unauthorized possession of the property who was dispossessed without his consent or otherwise then in due course of law.

Hon’ble Justice ® Ali Sain Dino Methlo also discussed in detail Section 6 of the Act which relates to the Power of the Court to Attach Property.

Session 2

This session was followed by tea break and then Mr. Mahmood Ahmed Khan elaborated on Section 7 of Act. He remarked that the Court has the power to order Eviction if during the trial the Court is satisfied that a person is found prima facie to be not in lawful possession then as an interim relief the court can order to put the owner or occupier in possession. For achieving this, the court can order any official to take possession of the property.

Session 3

Mr. Mahmood Ahmed Khan elaborated on Section 8 of the Act, which relates to the Delivery of the Possession to the owner. He remarked on the fact, that, if on conclusion of the trial the Court finds that the owner of the property was illegally dispossessed then the court can direct the accused to restore the possession of the property to the owner or occupier.

Concluding Session

Mr. Nazar Akbar summed up the two days training on Illegal Dispossession Act, 2005. He gave the participants the following points to ponder on as food for thought. His discourse was directed at bringing out the fact, as to whether this law had been successful in achieving its purpose and aims. In his discussion he compared the Illegal Dispossession Act, 2005 with provision of Section 145 Cr. P.C. regarding dispute concerning the land. He then further discussed whether the Illegal Dispossession Act is an additional law / separate law dealing with dispute of immovable property or modified form of Section 145 Cr. P.C.

He questioned the participants, as to whether it is the choice of complainant to evoke Illegal Dispossession Act, 2005 or it is for the police to take cognizance under Section 145 of Cr. P.C and whether every dispute over possession of immovable property is a dispute amenable to the Act, 2005.

He further provided food for thought to the participants by asking them how the Court could distinguish the dispute of immovable property regarding its possession is a dispute of civil nature or criminal nature, where the line would be drawn and whether the Illegal Dispossession Act, 2005 is practicable as it appears to be more in favor of prosecution as there is hardly any remedy under the Illegal Dispossession Act available with the accused.

His discussion was based on the following case laws:

1. PLD 1970 SC 470 (Shah Muhammad Vs Haq Nawaz & Another)

2. PLD 2007 LAH 231 (F.B) (Zahoor Ahmad & 5 Others Vs the State & 3 Others)

3. PLD 2007 SC 423 (Rahim Tahir Vs Ahmed Jan & 2 Others)

4.2010 SCMR 1254 (Mumtaz Hussain Vs Dr. Nasir Khan & Others)

5.S.B.L.R. 2010 Sindh 1376 (Mrs. Fatima Vs Imam Zada & another) on reported judgment of Supreme Court available on Supreme Court website decided on 23rd November, 2010 (Waqar Ali & Others Vs The State).

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