::Laws against Qabza Groups/Illegal Land Grabbers in Pakistan

IN THE LAHORE�HIGH COURT LAHORE

Case No: W.P. 25686/2011

“The Specific Relief Act, 1877 or the Illegal Dispossession Act, 2005. Unless a suit or a complaint is filed under these laws, no person can be dispossessed from private property.”

“Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless they are backed by law. In a country governed by laws and not by men, good intentions of the executive must follow the law.”

Syed Mansoor Ali Shah, J:- Factual version of the case as narrated by the petitioner is that the petitioner is owner in possession of land measuring 4-Kanals�10-Marlas (“Property”) in the urban limits of Tehsil Sialkot whereupon the petitioner has raised/constructed a Cinema which is functioning in the name and style of “Mehfil Cinema.” As a matter of background, it is submitted that the Property was subject matter of a partnership between the petitioner and predecessor-in-interest of respondent No.4. Thereafter, the said partnership was dissolved and after prolonged litigation up to the level of august Supreme Court of Pakistan it was finally settled that the petitioner is owner of the Property.

2. Grievance raised in this petition is that the District Coordination Officer/Chairman District Task Force, Sialkot (respondent No.1) vide impugned order dated 03.11.2011 dispossessed the petitioner from the Property and handed over the possession of the same to respondent No.4.

3. Learned counsel for the petitioner contends as follows:

(a) That the DCO or the District Task Force does not enjoy any power under the Rules of Business or the Colonization of Government Lands Act, 1912 to dispossess the petitioner from private land.

(b) The guidelines/ departmental instructions (notifications) relied upon by the respondents cannot touch upon matters relating to private parties or provide for alternate dispute resolution through arbitration between private parties pertaining to private property.

(c) That at any rate the departmental instructions/ guidelines are invalid as they do not pass the test of conforming to the basic principles of natural justice as any action taken on the said guidelines may result in an unlawful identification of a person as an illegal occupant without there being�any provision of a fair opportunity of hearing which, is a sine qua non for passing an order adversely affecting the rights being enjoyed by a party. Reliance is placed upon cases reported as Messrs Shaheen�Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120), Chief Justice of Pakistan Iftikhar�Muhammad Chaudhry�v. President of Pakistan through Secretary and others (PLD 2010 SC 61) and Federation of Pakistan and another v. Irfan Tariq�and others (2009 SCMR 1018).

(d) That the Land Revenue Act, 1967 has no application to the controversy involved as the Land Revenue Act is a fiscal�statute made for maintaining revenue record, assessment and collection of land revenue thereupon and for resolution of disputes between agricultural landlords and tenants thereon through the Revenue Courts. Furthermore, the revenue record is not a record of title when compared with declarations made by the superior courts of competent jurisdiction.

(e) That the action taken by the official respondents is a glaring example of violation of the principle of good governance enunciated by this Court, as well as, the Hon’ble Apex Court. Reliance is placed on Human Rights Case titled Tariq�Aziz-ud-Din�and others (2010 SCMR�1301), Ashfaq�Hussain�v. Government of the Punjab and others (2011 PLC (C.S.) 799), Iman Hussain�v. Water and Power Development Authority through Chairman WAPDA�and 4 others (PLD 2010 Lahore 546) and Muhammad Aslam v. Vice-Chairman and others (2010 PLC (C.S.) 266).

(f) That it is trite law that nobody can be prejudiced by wrongful act of a public authority, therefore, public authorities are liable to restore to the persons so prejudiced to the same position, which existed before the illegality was committed. Reliance is placed on Abdul Haq�and 2 others v. The Resident Magistrate, Uch�Sharif, Tehsil Ahmedpur East, District Bahawalpur and 6 others (PLD 2000 Lahore 101).

4. The District Coordination Officer (DCO), Sialkot also acting as Chairman District Task Force, Sialkot appeared, in person, before this court on 21.11.2011 and submitted that he had passed the impugned order under notification dated 30.12.2009  (“Notification-I”) issued by the Colonies Department, Board of Revenue, Punjab. Under the said notification, District Committees have been constituted against Qabza Groups/Illegal Land Grabbers. Relevant extracts of the terms of reference of Notification-I are:

iv. To examine the issue of massive public complaints against the new privately owned and publicized housing societies and other lands under unauthorized occupation and to identify measures to provide relief to public through the revenue department in a tangible, manner. The cases of widows and overseas Pakistanis will be given top priority. Establishment of Complaint Redressal�Cell in the office of District Coordination Officer under the chair of a “Focal Person.” Wide publicity to be given about the Complaint Redressal Cell;

v. Identification of Qabza�Groups and of revenue officers/officials and other Government officials who have been allegedly involved in land grabbing in collusion with Qabza Groups and to recommend departmental and criminal action against them;

vi. To examine the issue of massive public complaints against the new privately owned and publicized housing societies. To develop a phased strategy to deal with the menace of Qabza�groups with regard to state owned and private properties separately, and to identify measures to provide relief to public through the revenue department in a tangible manner. (Emphasis supplied)

5. District Coordination Officer failed to show under what law the Board of Revenue, Punjab, had issued Notification-I. Member (Colonies), Board of Revenue, Punjab was also summoned who appeared in the Court today and submitted that notification dated 30.12.2009 has been followed by another notification dated 18.05.2011 (“Notification-II”) issued by the Board of Revenue,

Punjab and after placing it on the record referred to one of the terms of reference of the said notification which states as follows:-

On receipt of a private complaint, the Committee shall immediately proceed to redress the grievances and resolve the issue under available legal frame work and if required, resort to alternate dispute resolution mechanism through arbitration.

6. Member (Colonies) submitted that both these notifications were in the nature of guidelines to facilitate the working of the District Committees and the purpose was to identify Qabza�Groups in case of private lands and after identification of the same to avail the remedy available under the existing legal framework. Member (Colonies) submitted the DCO�or Chairman District Task Force cannot directly take action against a citizen under the said Notification and did not support the impugned order passed by DCO/Chairman District Task Force. Learned Law Officer also supports the contention of the Member (Colonies), Board of Revenue, Punjab.

7. I have heard the arguments of the counsel and perused the record including Notification-II placed before me by Member (Colonies).

8. In order to examine the legality of the impugned Order dated 3-11-2011 passed by Respondent no.1, the legality of the abovementioned notifications issued by the Board of Revenue, Punjab, which allegedly empowered the DCO to pass the impugned order, also require to be examined. In order to judicially review the impugned order and the notifications, I do not require to comment on the veracity of the claim made by respondent no.4, therefore, without touching the merits of the private dispute between the petitioner and Respondent no.4, I venture to discuss and analyze the scope and legality of the impugned order and its supporting notifications.

9. The questions that need to be answered in this case are:

a. Whether, under the law, the Board of Revenue, Punjab was authorized to issue Notifications dated 30-12-2009) (“Notification-I”) and 18-5-2011 (“Notification-II”) relating to private land and private parties? and

b. Whether the District Coordination Officer/Chairman District Task Force, Sialkot could dispossess or deprive a person from his private property through an executive order under Notification-I?

10. Notification-I dated 30-12-20091 titled as: “CONSTITUTION OF COMMITTEES AGAINST QABZA�GROUPS/ILLEGAL LAND GRABBERS.” has been issued by the Colonies Department of the Board of Revenue, Punjab whereby various Committees have been constituted against Qabza�Groups/Illegal Land Grabbers. The Provincial Committee, being the apex committee under the said notification is to provide policy guidelines and steer initiative against the Qabza�Groups, monitor the performance of other committees and provide support at provincial level in combating Qabza�Groups/illegal land grabbers and finally to examine the recommendations/ proposal on legal reforms and finalize these for implementation. Under this notification, the District Committee is headed by DCO�(Chairman) and, inter alia, comprises Chief City Police Officer (CCPO) or District Police Officer, EDO (Revenue), DO (Revenue), etc. The relevant Terms of Reference of the District Committee are as follows:

ii. To examine the issue of massive public complaints against the new privately owned and publicized housing societies and other lands under unauthorized occupation and to identify measures to provide relief to public through the revenue department in a tangible, manner. The cases of widows and overseas Pakistanis will be given top priority. Establishment of Complaint Redressal�Cell in the office of Commissioner under the chair of “Focal Person”. Wide publicity to be given about the Complaint Redressal Cell;

iii. Prepare a list of all pending cases of illegal/unauthorized occupation of Government land within the Divisions and carve out action plan to rectify the situation. As regards private land, a separate list will be maintained upon the complaints received;

iv. Identification of Qabza�groups and of revenue officers/officials and other Government officials who have been allegedly involved in land grabbing in collusion with Qabza�groups and to recommend departmental and criminal action against them. The Divisional Commissioners, in consultation with RPOs, will identify the gangs involved. Detention of chronic cases will be moved to the Home Department.

11. Member (Colonies), who appeared in person, submitted that latest position in the matter is governed by Notification-II2�(it is pointed out that Notification-II does not superseded Notification-I). The said notification titled ACTION AGAINST QABZA�GROUPS/MAFIA provides for constitution of Sub- Committees in the Districts “to deal with privately owned land grabbing issues.” The Terms of Reference, inter-alia, of the said Sub Committee are:

iii. On receipt of a private complaint, the Committee shall immediately proceed to redress the grievances and resolve the issue under available legal frame work and if required, resort to alternate dispute resolution mechanism through arbitration.

12. Member (Colonies) further submitted that both the notifications are mere guidelines and action can only be taken against Land Grabbers or Qabza groups in accordance with law under the prevalent legal framework or the committees could additionally resort to alternate dispute resolution through arbitration. Member (Colonies), as well as, the Learned Law officer did not defend the impugned order dated 3-11-2011 passed by Respondent no.1 and submitted that the matter ought to have been dealt with in accordance with the legal framework available i.e., either by filing a suit for possession or a complaint under the Illegal Dispossession Act, 2005. From the above it is clear that the impugned order of Respondent no.4 traverses and violates the power vested under the Notifications.

13. Proceeding further, it is important to analyze whether the above notifications could have been lawfully issued by the Board of Revenue, Government of the Punjab. Under Notification-I, inter alia, District Committees have been set up to deal with the Land Grabbers and Qabza Groups over Private Lands and to “provide relief to public through the revenue department in a tangible manner” and under Notification-II it is stated that the Committees shall “resolve the issue under available legal framework” or “resort to alternate dispute resolution mechanism through arbitration.” Both the notifications, issued by Secretary (Colonies), Board of Revenue, Punjab, fail to refer to the governing law under which they have been issued. Respondent no.1 and the learned Law officer also failed to show under what law the said notifications have been issued. Counsel for the private respondent, however, submitted that the said notifications have been issued under Rule 67-B of the Land Revenue Rules, 1968.

14. Perusal of Board of Revenue Act, 1957, Land Revenue Act, 1967, Colonization of Government Lands (Punjab) Act, 1912 and Rules of Business of the Provincial Government show that Board of Revenue is not empowered to deal with disputes relating to Qabza Groups/Land Grabbers over private land or to resolve disputes between private parties arising out of private land through arbitration. At the most, section 32 of the Colonization of Government Lands (Punjab) Act, 1912 provides that when the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, forthwith re-enter upon the land and resume possession of it and take of all crops, trees and buildings on behalf of the government without compensation. Rule 67-B of the Land Revenue Rules, 1968 read with sections 117 and 122 of the Land Revenue Act, 1967, provide that a land owner can be evicted if found in wrongful possession of a land as a result of demarcation proceedings taken under section 117 of the Land Revenue Act, 1967. The Collector hearing the said application moved under section 122 of the Land Revenue Act, 1967 may direct fresh demarcation proceedings or order eviction of the landowner who is in wrongful possession of the land. This power is qualified by the proviso to sub-rule 5 of Rule 67-B which provides that where proceedings involve substantial question of title or an intricate question of law, the collector shall refer the matter to the civil court.

15. From the above it is clear that Notifications-I and II have no legal cover to justify their existence, to the extent of the private dispute arising from private land. These notifications cannot even pass as guidelines or administrative instructions as the very subject matter of the said notifications (to the extent of private land and private disputes) is ultra vires the laws governing the working of the Board of Revenue. Resultantly, impugned order dated 3-11-2011 passed by DCO and Notifications-I and II issued by the Board of Revenue, Punjab have no legal sanction and are therefore declared to be without lawful authority.

16. Our constitutional democracy rests on the fundamental principle of RULE OF LAW. Article 4 of the Constitution is its principal manifestation. The said article provides that “to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.” This means that every citizen and every person for the time being in Pakistan enjoys the protection of laws of the land. These laws and the Constitution are like a protective shield guarding the life, liberty, reputation, body and property of the persons within Pakistan. Any action adverse to the rights of a person, must, therefore, be through the mechanism or in accordance with the very laws which protect the said persons. To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the person in the first place. Case in point, in the instant matter, is the Specific Relief Act, 1877 or the Illegal Dispossession Act, 2005. Unless a suit or a complaint is filed under these laws, no person can be dispossessed from private property.

17. The right to fair trial under article 10A�further buttresses article 4. The right to fair trial provides for the determination of civil rights and obligations of a person through a fair trial and due process. Dispossession of the person from property without recourse to the available law or in accordance with law also offends article 10A and deprives the petitioner of his right to fair trial and due process. Article 23 of the Constitution guarantees the petitioner the right to hold and enjoy his property subject to reasonable restrictions imposed by law. The two notifications and the impugned order do not pass the test of “reasonable restrictions” under article 23 of the Constitution, as they are not imposed under the law, hence the impugned order as well as the notifications to the extent of private lands offend Article 23 of the Constitution.

18. It has been pointed out by the respondents, rather proudly, that the initiative against Qabza�Groups & Illegal Land Grabbers under the Notifications are well intentioned�and has done a lot of public good. Let us not forget that road to hell is also paved with good intentions. The executive in their over zealousness to do good have lifted their eyes off the law. Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless they are backed by law. In a country governed by laws and not by men, good intentions of the executive must follow the law.

19. For the above reasons the impugned order dated 03.11.2011 passed by respondent No.1 is set aside with the direction that possession of the land in question be restored to the petitioner forthwith. Notifications-I and II dated 30.12.2009 and 18.05.2011, respectively, issued by the Board of Revenue, Punjab, are also set aside to the extent of private lands and private disputes as having been issued without lawful authority.

20. Respondent No.1 has blatantly offended the Constitution and the fundamental rights of the petitioner besides having recklessly applied Notification-I. Respondent no.1 as Chairman District Task Force, Sialkot is, therefore, burdened with compensatory costs in the sum of Rs.50,000/- which shall be deposited with any civil society organization in Punjab certified by the Pakistan Centre of Philanthropy (PCP) (www.pcp.org.pk) within one month from today. Reliance is placed on Kawas�B. Aga�and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others, (PLD 2010 Karachi 182), The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir�and 2 others, (1998 SCMR�2386), Province of Sindh�through Secretary, Home Department and others v. Roshan Din and others, (PLD 2008 S.C. 132), Inayatullah�v. Sh. Muhammad Yousaf�and 19 others, (1997 SCMR�1020), Mst. Afsana�v. District Police Officer, (Operation), Khairpur�and 5 others, (2007 YLR�1618) and M.D. Tahir, Advocate v. Federal Government and others, (PLD 1999 Lahore 409).

21. This petition is allowed in the above terms alongwith costs.

(Syed Mansoor Ali Shah)

Judge

::Illegal Dispossession Act in Pakistan… Free Legal Advice

The Illegal dispossession Act, 200 (XI of 2005)

6th July, 2005

An Act to cure the activities of the property grabbers

WHEREAS it is obedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers;

It is hereby enacted as follows:-

1. Short title, extent and commencement.—(1) This Act may be called the illegal Dispossession Act, 2005

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.— In this Act, unless there is anything repugnant in the subject or context:-

(a) “Court” means the court of Session;

(b) “Code” Means the Code of Criminal Procedure, 1898 (Act V of 1898)

(c) “Occupier” means the person who is in lawful possession of a property;

(d) “Owner” means the person actually owns the property at the time of his dispossession, otherwise than through a process of law, and

(e) “Property” means immovable property.

3. Prevention of illegal possession of property, etc.—(1) No one shall enter into or upon any property to dispossess, grab, control of occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code.

4. Cognizance of offence.— (1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.

(2) The offence under this Act shall be non-cognizable.

(3) The Court at any stage of the proceedings may direct the police to arrest the accused.

5. Investigation and procedure.—Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court.

Provided that Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-section.

(2) On taking cognizable of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay sufficient reasons shall be recorded.

(3) The Court shall not adjourn the trial for any purpose unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.

6. Power to attach property.—(1) If the Court is satisfied that none of the persons are in possession immediately before the commission of the offence; the Court may attach the property until final decision of the case.

(2) In case of attachment, the methods of its management safeguard against natural decay or derioration shall be determined by the Court.

7. Eviction and mode of recovery as an interim relief.—(1) If during trail the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall as an interim relief direct him to put the power or occupier as the case may be, in possession.

(2) Where the person against whom any such order is passed under sub-section (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put owner or occupier in possession.

(3) The Court may authorize any official or officer to take possession for securing compliance with it orders under sub-section (1). The person so authorized may use or cause to be used such force as may be necessary.

(4) If any person, authorized by the Court, under sub-section (3) requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.

(5) The failure of the officer-in-charge of police station to render assistance under sub-section (4 shall amount to misconduct for which the court may direct departmental action against him.

8. Delivery of possession of property to owner, etc.— (1) On conclusion of trail, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at any time of passing order under sub-section (2) of that section direct the accused or any person claiming through him for restoration of the possession of the property to the owner or , as the case may be, the occupier, if not already restored to him under section 7.

(2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or as the case may be, the occupier.

9. Application of Code.— Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (v of 1898), shall apply to proceedings under this Act.

::Law against Land Grabbing in Pakistan

Illegal Dispossession Act, 2005

ACT NO.XI OF 2005

An Act to curb the activities of the property grabbers

WHEREAS it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession there from by the property grabbers;

It is hereby enacted as follows:-

1. Short title, extent and commencement

(1) This Act may be called the Illegal Dispossession Act, 2005 It extends to the whole of Pakistan. It shall come into force at once.

2. Definitions

In this Act, unless there is anything repugnant in the subject or context, “Court” means the Court of Session; “Code” means the Code of Criminal Procedure, 1898 (Act V of 1898); “occupier” means the person who is in lawful possession of a property; “owner” mean the person, who actually owns the property at the time of his dispossession, otherwise than through a process of law; and “Property” means immovable property.

3. Prevention of illegal possession of property, etc

(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544 A of the Code.

4. Cognizance of offence

(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint. (2) The offence under this Act shall be non-cognizable. (3) The Court at any stage of the proceedings may direct the police to arrest the accused.

5. Investigation and procedure

(1) Upon a complaint the Court may direct the officer-in-charge of police station to investigate and complete the investigation and forward the same within fifteen days to the Court. Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-section.

(2) On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.

(3) The Court shall not adjourn the trial for any purpose unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted fro more than seven days.

6. Power to attach property

(1) If the Court is satisfied that none of the persons are in possession immediately before the commission of the offence, the Court may attach the property until final decision of the case. (2) In case of attachment, the methods of its management, safeguard against natural decay or deterioration shall be determined by the Court.

7. Eviction and mode of recovery as interim relief

(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession.

(2) Where the person against whom any such order is passed under sub-section (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession.

(3) The Court may authorize any official or officer to take possession for securing compliance with its orders under sub-section (1). The person so authorized may use or cause to be used such force as may be necessary.

(4) If any person, authorized by the Court, under sub-section (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.

(5) The failure of the officer-in-charge of police station to render assistance under sub-section (4) shall amount to misconduct for which the Court may direct departmental action against him.

8. Delivery of possession of property to owner, etc.

(1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under sub-session.

(2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7. (2) For the purpose of sub-section (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case maybe, the occupier.

9. Application of Code.

(1) Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings under this Act.