The power of compulsory acquisition constitutes one of the most significant intrusions upon the constitutionally protected right to property. In a constitutional democracy, such power derives its legitimacy not merely from the payment of compensation, but from its exercise for a clear, objective, and legally ascertainable public purpose. Yet, more than seven decades after independence, Pakistan continues to rely on the colonial conception of “public purpose” embodied in Section 3(f) of the Land Acquisition Act, 1894, which remains inadequately defined and susceptible to arbitrary executive discretion. This article argues that legislative reform of Section 3(f) is constitutionally imperative to align the law with the guarantees of Articles 23 and 24 of the Constitution, and ensure that compulsory acquisition serves genuine public welfare rather than unchecked state power.
Property rights are accorded the highest protection in the constitutional scheme of Pakistan due to their stipulation in the fundamental rights of the constitution. Collectively, Article 23 & 24 recognize the right to acquire, hold and dispose of property, and protect against unlawful deprivation of property. Protection under both the aforementioned fundamental rights is limited, with the right to acquire, hold and dispose of property subject to reasonable restrictions imposed by law, and Article 24 leaving a window for deprivation of property only in accordance with law. Sub-clause (2) of the said Article provides a mechanism by establishing certain rights and procedural safeguards for those whose property is compulsory acquired or taken by the Government.
Eminent Domain is considered to be an inherent power of a sovereign government. In Pakistan, it is recognized as a legitimate limitation on the right to property under Article 24 of the Constitution. The Constitution itself provides the government with the power of requisition of property but places the following conditions on it, namely that property shall be acquired only for a public purpose and by the authority of law. It further mandates that such law shall provide compensation for the property acquired. Either by fixing the amount of compensation, or by ascertaining the principles or mechanism through which the compensation will be determined and provided.[1]
The constitution provides that property may only be acquired for public purpose, but conspicuously leaves the expression undefined, leaving it to the ordinary legislation (Acts of Parliament). The Land Acquisition Act, 1894 hereinafter (“LAA”) principally governs eminent domain in Pakistan.
The current definition of public purpose provided in the LAA, 1894 creates an unconstitutional framework for compulsory acquisition of land which is antithetical, both to the fundamental guarantees of protection of property in the constitution (Article 23 & 24), spirit of constitution, modern constitutional democratic governance, and rule of law.
Section 3(f) of LAA, 1894: An Undefined “Public Purpose”
Prima facie, the word ‘includes’ in the definition demonstrates that it is open ended and non exhaustive in nature. In simple terms the definition[2] means that if the provincial Government has officially recognised (declared by notification in the official Gazette) that providing land for villages is a customary governmental function in a particular district, it may acquire land for that purpose. For the purpose of this section, the expression “village site” has been defined by courts as “land whereon houses have been built and land reserved for house sites.”[3]
The definition of public purpose is excessively vague upon which the statute places no limitation or restrictions. It provides almost unlimited discretion to the executive in determining what constitutes public purpose.
Any law which interferes with, or limits fundamental rights must contain intelligible principles, limited scope and certainty[4]. The well entrenched principle of rule of law mandates legal certainty and non-arbitrariness. The constitutional scheme, therefore requires laws restricting or limiting fundamental rights to be proportionate and clear. In its current shape and form, it is difficult for section 3(f) to qualify the test of constitutionality.
Judicial Interpretation of Section 3(f): A Survey of Case Law
Since the definition is inadequate and fails to explain what is public purpose, the burden naturally shifts to the courts to clarify it, and provide a case by case explanation of the term. But the central question is; can judicial interpretation adequately cure the legislative vagueness inherent in the definition of public purpose? After an assessment of the jurisprudence developed around section 3(f), it can be categorized into the following categories; Deference to whims of the executive (sovereign authority of eminent domain), heightened scrutiny of public purpose, elusive definition of public purpose and protection of property rights. The interpretation has varied significantly as evident from the analysis of the judgements as follows.
- Expansionist Judicial Interpretation of Public Purpose
The Lahore High Court defined “Public Purpose” as a purpose ‘furthering general interest of community as opposed to particular interest of individuals’. The judgement also held that public purpose was to be ‘construed according to the spirit of times in which legislation enacted’.[5] In another judgment, the court reiterated the aforementioned that public purpose is such a purpose which is in furtherance of general interest of the community at large as opposed to the particular interest of an individual.[6]
In another judgment, court defined public purpose as meaning ‘any purpose aiming at protection of general welfare.’ [7]
However, the jurisprudence takes a different turn in a subsequent decision where the court held that Land acquired by WAPDA Cooperative Housing Society for construction of residential colony would fall under the definition of “public purpose.”[8] This definition of public purpose is difficult to reconcile with the those discussed above because a residential colony specifically for WAPDA employees would not qualify as something which furthers the general interests of the community as a whole. It’s something which will further the interests of a particular segment of the community, namely WAPDA Employees.
The objectives of a cooperative society, including education, improved living standards, social recreation, and mutual aid among agriculturists and other persons with common economic needs, were ruled as constituting public purpose, in another judicial determination.[9]
These decisions highlight the elasticity of Section 3(f), where the absence of objective legislative standards permits diverse welfare activities to be incorporated into the undefined concept of “public purpose.”
- Judicial Deference to Executive Determination
In deference to the executive vis-à-vis land acquisition, the High Court held that the ‘question of public purpose could not be determined by High Court in its exercise of writ jurisdiction. Collector, land Acquisition was declared to be the appropriate forum who could determine public purpose under section (4) of LAA, 1894 in light of the peculiar facts and circumstances of the case. The court stated that whether a ‘purpose amounted to public purpose, was a matter for Government and not for the High Court to decide.’[10]
This position taken above has been reaffirmed by subsequent decisions wherein the court has held that, ‘declaration by government would be the conclusive evidence of public purpose’.[11]
This judicially sanctioned elasticity has granted significant latitude to executive for the determination of the public purpose. Primarily because the governing statute provides no framework (or grounds) for courts against which the executive decision regarding a particular acquisition for public purpose can be assessed or scrutinized.
- Judicial Recognition of the Indeterminacy of Public Purpose
Notably, courts have recognized that “Public purpose” cannot be defined strictly as the ‘same is liable to change from time to time, from place to place and matter to matter. Definition has to be used in an elastic sense so that it may satisfy changing facts, circumstances, and requirements of society and needs of public.’[12]
A different standard of public purpose applies to acquisition of land for a company, further obscuring the definition of public purpose. The Supreme Court has held that such acquisition ‘may not necessarily be for “public purpose” as defined and contemplated by law with the same strictness as the said expression was made applicable in other cases’.[13]
- Heightened Constitutional Scrutiny
More recently, the Federal Constitutional Court (FCC)[14], the apex constitutional court of Pakistan, recognised public purpose as a substantive limitation on the State’s power of eminent domain under Article 24. The Court observed that ‘deprivation of private property can only be justified on the touchstone of public purpose, and that it constitutes a substantive limitation on eminent domain.’[15] However, despite emphasising the constitutional significance of public purpose, the FCC did not explain what the term actually means or articulate a clear legal standard for determining its existence.
Previously, the august Supreme Court articulated that ‘although “public purpose” has no precise or rigid meaning, it must confer a benefit or advantage upon the public rather than private individuals’. The Court further observed that where the public purpose is in conflict with public interest, the latter would prevail. Furthermore, if use of acquired land is prejudicial to the public interest, it highlights that eminent domain has not been used for legitimate public purpose. The state is expected to use its power of eminent domain in a bona fide manner for public benefit.[16]
Analysis of Case laws
The interpretation of 3(f) has been sporadic. However, judiciary is not to be blamed for this inconsistency. Reason being that our constitutional structure provides judiciary the power to interpret the law, and not to make laws. Albeit, sometimes judges do read principles or their understanding of the law into the text of the statute, but that is when the gap or inadequacy is minor. Courts cannot derogate from the letter of the statute. That’s how the system functions.
In such circumstances, courts are handicapped to conclusively provide what constitutes public purpose. Doing so would risk stepping outside their constitutional boundary, and assuming the role of legislature, which is not permissible and unconstitutional. They have to interpret laws in the framework delineated by the statute. But when the definition is excessively elusive, and practically, has no ceiling or restrictions, it is difficult for courts to clearly define such terms. The bottom line is that courts may mitigate the defect but cannot replace the legislature.
A Colonial Relic in a Constitutional Democracy
In order to understand the ambiguity in 3(f) of LAA, 1894, it is imperative to provide a brief overview of its colonial context. LAA, 1894 was enacted during the British Raj. It was a colonial statute designed around colonial priorities, which were inter alia, colonial extraction and administrative efficiency. These priorities permeate within the colonial era statutes/laws. The colonial state did not take into consideration the modern constitutional doctrines and values of legal certainty and fundamental rights.
Therefore, the ambiguity was not accidental. It was carefully designed to serve colonial objectives.
Post 1947, the context changes drastically. Our constitution does not merely create government organs and institutions. It transforms the legal relationship between state and citizen, and changes the objectives of the state, from the erstwhile colonial philosophy of governance.
Today, Pakistan is a constitutional democracy. Sovereignty belongs to Allah and is exercised through the people according to the Constitution. Consequently, the citizen is no longer a subject. The citizen is a rights-holder. Therefore, the continuation of the colonial legal logic post-Independence seems erroneous, and contrary to the spirit of the constitution. Thus, the vagueness justified during the British raj cannot be justified in a constitutional democracy where property is protected as a fundamental right.
The Socio-economic and cultural consequences of an ‘Indeterminate public purpose’ standard are dire. Transaction costs will rise due to legal uncertainty surrounding compulsory acquisition, thereby reducing investor confidence owing to the lack of predictability and stability in the market. Land is treated merely as a market commodity by ignoring family structures, community ties, livelihood, neighbourhood networks, cultural attachment. Consequently, monetary compensation alone cannot restore what compulsory acquisition destroys.[17]
Lessons from India
Pakistan can follow the lead of its eastern neighbour, India, which has repealed the colonial-era Land Acquisition Act, 1894 and replaced it with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act), a statute that provides a more particularised and structured, though not entirely exhaustive definition of public purpose.[18] The Act also inculcates social impact assessment and consent requirements.[19]
Recommendations
Pakistan’s Pakistan’s Land Acquisition Act, 1894, Section 3(f) remains an inclusive, and open ended colonial definition, leaving significant room for executive discretion. Therefore, it should replace the vague definition with an exhaustive statutory enumeration of permissible public purposes. This legislative move will limit executive discretion, reduce ambiguity and provide definitive limits on the eminent domain.
Moreover, Independent Land Acquisition Tribunals can also be established to review public purpose declarations, necessity and balancing of interests.
Once the exhaustive or a circumscribed definition of public purpose is enumerated in the statute, then judiciary can focus on the more important questions. For example, whether education in every case would amount to public purpose? If a city has adequate educational facilities, would making another educational institute amount to public purpose?
Conclusion
Section 3(f)’s vagueness was never accidental; it served a colonial state built on extraction, not a constitutional order built on rights. Courts have managed this defect but cannot cure it, as doing so would exceed their interpretive mandate. Until Pakistan’s Parliament acts, eminent domain will remain incompatible with the certainty and clarity the Constitution demands. It will continue to remain susceptible to abuse and exploitation.[20]
[1] The Constitution of Islamic Republic of Pakistan, Article 24(2)
[2] Section 3(f) of the LAA, 1894 defines public purpose, which is reproduced verbatim as follows. “the expression “public purpose” includes the provision of village-sites in districts in which the [Provincial Government] shall have declared by notification in the official Gazette that it is customary for the Government to make such provision: and”
[3] AIR 1925 Mad. 837 = 49 Mad. 237.
[4]“The principle of strict interpretation is grounded in the understanding that any law, which imposes restrictions on fundamental rights, must be clear, precise, and unambiguous. Fundamental rights are paramount to ordinary state-made laws and cannot be curtailed without clear legislative intent and such law is required to be scrutinized rigorously to ensure it does not violate constitutional guarantees.” (MUNAWAR KHAN Vs THE GOVERNMENT OF BALOCHISTAN 2025 PLD 25)
[5] PLD 1983 Lah. 552
[6] 2001 CLC 1853
[7] 1980 CLC 1504 ref. 2001 YLR 3367(d))
[8] 1979 CLC 1180; PLD 1983 Lah. 552; PLD 1983 Lah. 355; ref. 2001 CLC 1853(c).)
[9] PLD 1983 Lah. 552
[10] 1980 CLC 1504 ref. 2001 YLR 3367(d))
[11] “Declaration by concerned Government under Section 6 of Land Acquisition Act, 1894, would be the conclusive evidence of the fact that land was needed for the ‘public purpose’. Only exception to such rule could be in a case where land was being acquired under colorable exercise of power”. (2007 YLR 558 (a))
[12] PLD 1983 Kah. 602
[13] 2002 SCMR 1652(a).
[14] https://tribune.com.pk/story/2617269/acquired-land-cannot-be-repurposed
[15] FCC further ruled that “if the purpose stated is fictitious, abandoned, or materially changed, the acquisition itself loses its constitutional foundation and the sovereign authority of the State to appropriate private property for the public good.”
[16] PLD 1983 SC 457
[17] Tassadiq, F. (2024). Colonial laws, postcolonial infrastructures: Land acquisition, urban informality, and politics of infrastructural development in Pakistan. Environment and Planning D: Society and Space, 42(3), 401-421.
[18] Section 2(1)(b)(vii) of the Act still permits the Central Government to notify “any infrastructure facility” as falling within public purpose, subject only to the notification being tabled in Parliament, preserving a residual element of executive discretion even within the enumerated list.
[19] The Land Acquisition Act 1894: Navigating Through India’s Primary Framework for Land Acquisition • Law Notes by TheLaw.Institute
[20] Islamabad High Court (W.P. No. 244/2018)
“If the process (of acquisition) is unclear, non-transparent and based on the arbitrary exercise of discretion by the executing public functionaries, it creates opportunities for corruption and thus the power of eminent domain is abused.”
“The abuse of this sovereign power (eminent domain) causes gross violations of human rights and the constitutionally guaranteed rights, particularly in the case of those who are poor and belong to the weaker segments of the society.”
