ISLAMABAD: The Islamabad High Court (IHC) Monday directed the federal government to formulate a uniform policy regarding acquisition of land and determination of market value or giving rehabilitation benefit, in case of exercising the power of eminent domain by the authorities.
A single bench of Chief Justice Athar Minallah, in a 65-page verdict, passed various directions in 35 different petitions filed by the affected land owners, whose lands were acquired by the Capital Development Authority as well as the Federal Government Employees Housing Authority (FGEHA) for development of various sectors of Islamabad.
The IHC bench observed that the admitted and acknowledged vested rights had accrued in favour of the affected property owners long ago, in most of the cases decades ago.
They were to be compensated for the loss rather than being treated in a manner that would result in confiscation of their properties.
It added that their constitutionally-guaranteed rights have definitely been violated.
“Who is responsible for the unimaginable agony and suffering they have been exposed to? They are regrettably victims of a deeply-corrupted governance system.”
It also said, “The public functionaries, rather than serving the citizens, have usurped their rights and caused unimaginable pain and harm to them. The CDA has failed to enforce the acknowledged and admitted vested rights which were created long ago. There were no funds available and yet awards were announced in 2009 and 2008.”
The judgment said the power abuse of eminent domain stands established. Records are missing and innocent property owners were made to suffer the travails of criminal trials for no fault of their own. The public functionaries, who had created opportunities for corruption through abuse of the power of eminent domain by adopting unclear and non-transparent processes, have caused loss and damage to citizens whose vested rights are admitted and acknowledged.
It stated that the proceedings before this Court have established that the CDA neither have the capacity nor the will to ensure that acknowledged rights are enforced. The elected representatives, belonging to the party in the Federal Government, were appointed as amici by this Court and notified by the CDA and despite their commitment seemed to be helpless because of the mismanagement and bad governance prevailing within the CDA.
It further declared, “Likewise, the land acquisition by the FGEHA and the subsequent execution of schemes thereon has been explicitly made subject to the policy of the Federal Government under section 14 (1) of the FGEHA Act. It is, therefore, a statutory responsibility and duty of the Federal Government that there is no abuse of the power of eminent domain exercised by the FGEHA under the FGEHA Act. The refusal of the FGEHA to implement the settlement terms and conditions with the affected property owners is illegal and arbitrary.”
The Court allowed the FGEHA petition and declared that the negotiated settlement approved by the Executive Board of the FGEHA in its 6th meeting is binding and, therefore, the parties are committed to perform their respective obligations.
The court verdict said; “It is a constitutional and statutory duty of the CDA and the Federal Government to “compensate” all the affected citizens whose rights stand admitted and acknowledged.”
It ruled; “It is a statutory and constitutional duty of the Federal Government to formulate a policy regarding enforcement of acknowledged vested rights of the affected citizens who were subjected to the power of eminent domain but have not been compensated despite lapse of inordinate delay. The Federal Government will give such directions to the CDA as are necessary to enforce the acknowledged vested rights.”
The bench added that the federal government shall cause a probe to be conducted regarding failure on the part of the CDA to enforce the acknowledged vested rights and hold those officials accountable who were responsible for causing unimaginable agony and trauma to the citizens whose vested right to be compensated has been acknowledged.
It maintained that the market values determined through awards announced before 2010 have lost their efficacy and payment made on the basis thereof is likely to have confiscatory effect even if it is in addition to eight percent per annum. No property can be legitimately condemned by exercising the power of eminent domain if the owner is not “compensated”. It has, therefore, become mandatory to reassess the market values in a fair and transparent manner to avoid the likelihood of confiscatory effect, followed by prompt payment directly to the affected owner of the property. The reassessment of market value has already been done by the FGEHA.
“The Federal government shall formulate a policy to enforce the acknowledged vested right of allotment of plots to more than 10,000 affected property owners without further delay and shall give such directions to the CDA or any other authority as would be necessary in this regard,” added the court.
It continued that the federal government, while formulating a policy, shall, inter alia, prescribe a time frame for effectively enforcing the acknowledged rights and give such directions to the CDA as may be necessary in this regard.
The court directed, “The Federal Government shall formulate a uniform policy regarding the acquisition of land, determination of market value or giving rehabilitation benefit in case of exercise of the power of eminent domain by the CDA or the FGEHA, as the case may.”
The bench further said that the federal government is expected to review the laws enforced in the Islamabad Capital Territory relating to compulsory acquisition with the object of protecting the rights of the citizens who are subjected to the inherent power of the State.
It continued that the fundamental rights of the petitioners in the E-12 have also been violated.
They were issued allotment letters of plots in 1989 against payment of consideration. The sector was not developed. The Federal Government may, therefore, formulate a policy regarding development of sectors in order to ensure that Sector E-12 is developed and possession of plots is handed over to the allottees without unnecessary delay.
The court also directed the secretary Ministry of Interior to place copies of this judgment before the Federal Cabinet i.e. the Prime Minister and members of the Cabinet in one of the meetings scheduled to be held within two weeks from the date of receiving a certified copy.
Copyright Business Recorder, 2021
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