Illegal Dispossession Act 2005 And Instant Relief – Solace For The Deprived And The Dispossessed?

Illegal Dispossession Act 2005 And Instant Relief – Solace For The Deprived And The Dispossessed

Enacted on 30th June 2005 after a lengthy debate in Parliament, the Illegal Dispossession Act (IDA 2005) was introduced to clarify the ambiguities in the previously enacted legislation (i.e. the Specific Relief Act).

The preamble of this succinct Act (consisting of 9 sections) reads as under:

“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 there from by the property grabbers;”

The object of this Act was to provide deterrent punishment to property grabbers (qabza groups, land mafia, goondas, china cutters) and to provide adequate relief and speedy remedy to those illegally dispossessed of the immovable property. The following analysis provides an insight of the said Act section by section.

In order to curb the menace of property grabbing, the punishment for property usurpers is provided in S.3(1) of the Illegal Dispossession Act:

“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(Criminal Procedure Code).”

Nearly 11 years have elapsed since the enforcement of the Act and no substantial success has been accomplished as to the disposal of cases in a systematic manner. The real purpose was to distinguish between run-of-the-mill cases and cases involving land grabbing through coercion and unlawful means.

The punitive sentence and fine recorded in Section 3 of the IDA 2005 is a fine deterrent for such criminals who unlawfully expropriate the property.

Section 4 of the IDA 2005 reads:

“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.”

Now the real game changer is Section 4 of the Act which makes the offence non-cognizable. The parties involved in such cases really work their way to change the mode of dispossession from a simple civil nature of dispossession of property to a forcible ouster of the occupants, thus resulting in immense pressure on the other party to succumb to their demand. The Act reads further:

“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.”

As noted by senior lawyers, the cases on the basis of serious and genuine merit which fall under the category to be ruled out under this Act, move at a snail’s pace, contrary to the prompt of the Act which clearly outlines for the cases to progress day by day and are to be decided within 60 days of the commencement of the trial, while any delay is extremely abhorred unless sufficient explanation can be provided. Likewise, adjournment is only allowed in the interest of justice.

A very senior seasoned lawyer who has been practicing since 1972 and has been dealing with such cases, has shared with me in anguish that,“The Act itself is tailored to the need of time but the system altogether is not doing what it is ought to be doing and it is a must that the Act gets amended not to be abused further”.

Another notion expressed by the lawyer was the role of the investigation officer whose inquiry report is a contingent to the smooth and even running of the case and that also puts a heavy responsibility on his shoulders to procure an unbiased and factual investigation, which is regretfully crying for the moon as there are two types of officers

1. those who tactfully surpass the Hon’ble Court’s order under the garb of S. 5(1) of the Act,
2. and those who carry out their duty rationally.

The officers who contribute to unwarranted delays in the case not only make it even more complicated and burdensome for the Courts but they receive little or no departmental inquiry for their misconduct and are rarely demoted for their acts. And this is not all, we also have honest officers carrying out their duty sincerely and yet they are often regarded as a threat to the system and/or are persecuted within their fraternity for being indifferent to the common culture of embezzlement and bribery in the State. (In a recent case I happened to look into, the investigation officer submitted his report dutifully but was later mercilessly killed for not cooperating with the local hooligans and land grabbers).

The remaining part of the Act reads:

“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 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.”

It was noted carefully that the law was being abused by the litigants, co-sharers and persons claiming possession over lawful agreements and persons demanding possession on the foundation of their rights (legal or inherited) in the sense that instead of taking their case to the proper Court (i.e Civil Courts) for settlement, they reach out to the Court of Sessions under the Act whose redress is criminal in nature, is also speedy, but further aggravates the suffering of the affected party.

A full bench of Hon’ble Lahore High Court in a writ petition No 11952 of 2006 expressed the following:

• i. A complaint under IDA 2005 may be entertained by the Court of Sessions if the persons involved are connected with an organized or calculated, unlawful, unjustifiable illegal dispossession from the property of the aggrieved party. In case of an individual it must be the manner of execution of his design which may expose him as property grabber.
• ii. The Act does not apply to run-of-the-mill cases of alleged dispossession from immovable property by ordinary persons having no credentials or antecedents of being property grabbers i.e. cases of disputes between co-owners, co-sharers, between landowners and tenants etc.
• iii. A complaint under IDA 2005 cannot be entertained where the matter of the possession of the relevant property is being regulated by civil or revenue Court (under the doctrine of lis pendens).
• iv. The Courts of Sessions in the province were directed to examine all the complaints under IDA 2005 pending before them and dismiss those complaints forthwith which were found to be not maintainable in the terms of the above declaration.

Other ambiguities observed by the Hon’ble High Court were:

• i. The law does not define the person or class of persons whose illegal activities were desired to be curbed.
• ii. There is no provision of appeal to challenge the interim or final order which is unjust and un-Islamic.
• iii. There is no involvement of revenue authorities in the Act which would appear to be more relevant than the police authorities.

The Hon’ble Lahore High Court referred to the Ministry of Law, Justice and Parliamentary Affairs and suggested to examine the Act in the light of Andrha Pradesh Land Grabbing Act 1982 which deals with the issues nearly identical to the IDA 2005.

The single bench of  Hon’ble Peshawar High Court in PLD 2007 123 re: Yasfas Vs State, has observed that provisions of general law contained in section 410 of Criminal Procedure Code will apply in absence of any right of first appeal in any special statute.

The last section of the Act reads:

“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.”

The Supreme Court of Pakistan in the case Rahim Tahir Vs Ahmed Jan and others (PLD 2007-423) observed that:

• i. The Act has no retrospective effect and may not be applicable to the cases of unauthorized occupants pending before any other forum but if the case was not already pending before any other forum on the day of the enforcement of the Act, the same would squarely fall within the ambit of the Act (IDA 2005).
• ii. The contention that IDA 2005 is not applicable to an illegal occupant who was in possession prior to the promulgation of the Act, has no substance.The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.
  

The Supreme Court has not set aside the ratio settled by the Hon’ble Lahore High Court therefore its proposal for amendments are still relevant.

If the law is amended as prescribed, it will result as a deterrent in misusing the provisions in case of a genuine dispute between people.

The following flaws were found  by the Hon’ble Lahore High Court:

1. Involvement of the revenue officer, under section 5 of the IDA 2005, where dispute is primarily between the owners of the contiguous properties and it concerns only demarcation.
2. A provision needs to be added to provide a right of appeal within 30 days against an order made under subsection (1) of section 8 of the Act.

In a working paper released by the Law and Justice Commission of Pakistan in December 2009, while considering consequential amendments in the Act, as mentioned in its report 114, the Commission also suggested amendments to the Illegal Dispossession Act 2005.

The need of the hour is to implement the suggested amendments in order to reform the judicial system. There are nearly 1.8 million cases pending all over Pakistan. These reforms would surely help in decreasing this ratio in the country.

 

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.