Act and fiction
'Sarkari qabza' in the name of public interest leaves many displaced and without the promised compensation
By Azaz Hussain Syed
A rise in the demand of land by the state and the public has corresponded with an alarming increase in the number of cases related to land disputes in the lower and superior courts.

The qabza group or illegal occupation of land or property by a private party was too familiar an idea, until we discovered the role of state or authorities. For no qabza group, we discovered, operates without official connivance. They take great pains to get the documents ready beforehand to preempt any legal recourse. The state itself becomes the illegal occupier in the form of Evacuee Trust Property Boards and Auqaf deparments.

Lest you thought this was a purely urban phenomenon where property is becoming more prized by the day, wake up because the combined property in all villages, the shamlat, is under huge threat by the village influentials. The claim is that it was their own property in the first place and they only want it back. In many cases, they have already occupied it.

The state can choose to pick any land anywhere under the 1894 Land Acquisition Act. The purpose may vary from residential localities to industrial estates to canals to dams etc. Once again only those who have some degree of influence get the compensations. The rest just suffer.

Private qabza groups too offer some compensation to the rightful owners. And the legal advice is to get that compensation instead of going into a legal battle.

Interesting times, we live in.

They say possession is nine tenth of the law. In Pakistan the odds are even more favourable for those in possession of a certain property -- whether they own it or not being quite irrelevant. The best advice for the thousands who have been illegally dispossessed of their properties, is to either settle out of court or look for an opposing gangster and sell him the property for whatever low price offer for the papers of the property, because that is the best chance for recovering anything from the property.

In case they still want to pursue a legal recourse to try and recover their land, they have a number of options under law to pursue the matter.

"It is true that the law offers a number of solutions, but in effect none of these options is workable. The process is cumbersome, lengthy and has been corrupted beyond repair," says Raheel Mustafa who had one of his land taken over by a land grabbing mafia.

Part of Raheel's residential property was illegally occupied by a land grabbing mafia backed by the local police and powerful politicians.

"I tried for almost ten years and I never even came close to getting them to vacate my land. I did manage to get a number of decisions in my favour but they'd always file an appeal and have the earlier decision overturned. I was able to sell my land off for almost a quarter of its market price and I still believe I am lucky," explains Raheel.

Before detailing the legal remedies available to someone whose property is occupied illegally, it is important to realise how most of the land grabbers operate. Before the actual property is taken over by the land grabbers, fictitious documents for the specific property are fabricated with the active involvement of the relevant revenue officers. Another commonly employed procedure is to enter into a sale deed with the original owner on a backdate, usually preceding the date of the transaction of the bona fide owner of the land.

"In my case, the owner whom I bought the land from, later sold the same land to the grabbers as well, on a backdate which was earlier than the date on which I entered into a sale deed with the owner. They produced the documents in court and there was absolutely nothing I could do to prove them wrong. The original owner got almost double the amount than the cost of the property and I lost my entire investment," explains Raheel.

Once the land grabber has achieved such documents to validate his false claim on the property, he moves to physically take over the property -- thus having the physical possession of the property along with the legal documents to back this possession.

Theoretically, a person who has been illegally dispossessed from his land has remedies both under the civil law and the criminal law. Under the civil law, the remedies available are provided under Sections 8 and 9 of the Specific Relief Act, 1877 and under the criminal law, the remedies are available under the Illegal Dispossession Act, 2005, and Chapter XII of the Criminal Procedure Code, 1898.

"Once a person is dispossessed illegally from his land, he shall first of all institute a criminal case against his physical dispossession under the Illegal Dispossession Act. The District and Sessions Court then has to decide on the matter of the physical dispossession but not the ownership of the said property. In case, which it usually is, the land grabbers have forged documents to show for the property in question, the matter of illegal dispossession goes into the backburner and the dispute has to be taken to the civil courts for a suite for declaration to decide who the rightful owner of the land is," explains Barrister Asad Qayyum.

According to Asad, determining the title of property takes quite long and once the court goes into recording the evidence it is difficult to resolve the matter in one lifetime. This, however, is not due to a lack of supporting law or legislation, but because certain individuals are above the system.

"The people involved in land grabbing are well connected and resourceful enough to have the support of all those needed to pull off this kind of a scam -- police to help them get the physical possession of the property, the revenue officers to help them forge the required documents, lawyers to help them retain a legal possession of the property and political support to control the administrative machinery to their advantage," says Naeem Sultan Khan, a lawyer specialising in property laws.

In the presence of the Illegal Dispossession Act, 2005 and remedies under the Specific Relief Act, 1877 it is a shame that the most of the genuine owners and buyers of property have to lose their property to these land grabbers. "It is quite unfortunate, but the courts here are not responsible for ensuring justice, but only to ensure that the person with the more concrete evidence has his way. The people involved in land grabbing for a living have a perfect mechanism in place to play out the entire scheme. They have the means and resources to ensure that they have the evidence to retain the property. The real and genuine owner of the land is usually a harmless individual incapable of dealing with the land grabbers on all the fronts, including the legal front," Naeem Sultan tells TNS.

It is only prudent then for people like Raheel to settle out of court and protect whatever they can.

Jaorian, a small village with a population of around 1200, is spread over a land of 700 acres just six kilometres off main Sialkot city, towards the west. Some five years ago, a bunch of highly influential persons from different 'biradaries' of the village forcefully occupied the half-acre 'shamlat' land (collective land of the community) situated in the centre of the village.

"Earlier, the land was like a common meeting place for the village lot where they would socialise as well as hold wedding ceremonies, and offer Eid and funeral prayers," says Arif Hussain, 45, a resident of Jaorian.

Arif lamented the fact that no government agency was of any help when the land grabbers went on the loose.

"Most of them built houses on the land while some of the squatters have sold the land to other parties," he said.

The story, according to him, does not end here. The same group of people is now claiming occupation of a pond (also a 'shamlat' land) that is traditionally the dumping drain of the village's wastewater.

"Almost half the pond area has been occupied illegally and houses constructed over it," he told TNS.

The community, including the land grabbers, is faced with some real, on-the-ground problems. "Now we don't have enough space in our village where we could arrange weddings or other functions. We are left with no option but to look for places outside the village, that incurs travel and other uncalled for expenses besides unnecessary fatique."

Arif added that the drainage of wastewater had also become a nuisance, "Wastewater flooding the streets is a very common sight in our village now."

But the people who are supposed to have illegally occupied the land have nothing to be scared of. According to Arif, they have their own ways to prove that their act is very much legal.

"This land belonged to our forefathers and we have done nothing illegal by getting it back," says Malik Muhammad Abid, another resident of Jaorian.

'Shamlat' is a very common term used in our villages for a piece of land that is used for the collective purposes of a community. According to Muhammad Afzal Bajwa, a 'gardawar' in Punjab Revenue Department, shamlat land is deliberately shaped by the revenue department during the process of consolidation of land of any village. Even if the land was previously the property of the landowners of that village, once it is allotted as shamlat, the original owners are no more its holders and it becomes public property.

"During the process of consolidation, the whole village is regarded as one unit, and a part of the land proportional to the total land of all landowners of that village is taken which comes to be called as 'shamlat'," he tells TNS.

According to Bajwa, the various ponds in the village are also declared 'shamlat' because 40 years back they were a very important part of rustic life. People would use pond water to wash up clothes and also as a source of drinking water for their cattle.

"The reason why it was declared 'shamlat' was that the owners of the land could not stop 'non-owners' from carrying out such activities. In return, they were given the land from some other part of the village."

The purpose of forming 'shamlat' land is that those who do not own their land in a village or a community won't have to face any problem in using the land for social or religious activities. These lands are also used for making community centres, play grounds and graveyards in the villages.

"Generally, you will find 'shamlat' land close to a village centre, because the last consolidation of land took place in 1970-71 when the land near the villages or around the roads was considered cheap as it had little agrarian value," adds Bajwa.

However, over the last decade or so, due to population influx and commercial activities the price of the same piece of land has shot up. "That is the reason why people are now trying to grab 'shamlat' land in villages. As a matter of fact, much of these places have been occupied already."

Jaorian is not the only village facing forced occupation of 'shamlat' land. As a matter of fact, this phenomenon is common to almost all villages in Punjab, especially those situated close to the cities.

Shabbir Hussain, 85, is a resident of Mandranwala, a village just a kilometre from Daska. He tells TNS that more than 50 percent of 'shamlat' land in his village is illegally occupied by the influential residents of the place.

According to Shabbir, "About a hundred years ago, tradition had it that our ancestors would earmark a piece of land as their dera and leave an acre or two in surrounding areas for their workers' residence or for community use. Today, the 'shamlat' land is allotted by the government revenue department during land consolidation process."

Shabbir's family is the owner of a considerable portion of the agricultural land in Mandranwala. "Going by that fact, we can also stake a claim to the 'shamlat' land in the village," he continues, "Some members of my family have even hinted at the idea, but I am not ready to entertain it because this land was dedicated by our forefathers for the collective welfare of the villagers."

Shabbir says that till about three decades ago, the shamlats were treated as sacred land by the inhabitants of the village. But, now "the standards have changed, and these are considered to be the easiest targets because physically no one is the owner of shamlats."

Rao Fazl-ur-Rehman, a registrar at the Board of Revenue Punjab, does not go along with Shabbir. According to him, the government is the owner of the land; the land owners of a village or a certain locality are also considered its owners, but only after the government.

"To occupy 'shamlat' is illegal and the government, under Section 175 of Revenue Act Department, can use force against the groups or individuals who are out to grab 'shamlat' land.

"On many an occasion, the revenue department has recovered 'shamlat' land from its illegal occupiers, he told TNS.

"If the 'shamlat' land is in use for some agricultural purposes, the revenue department for the most part will let the individual go on with it, because it is better utilised as such than lying vacant," he added.

However, according to Fazl ur Rehman, using 'shamlat' for the sake of building houses is illegal and the government can use force to free this land from squatters anyday.

The forceful occupation of land or property is an act fraught with risks of confrontation with multiple claimants. Sometimes, such confrontations can lead to brawls and even armed conflicts resulting in deaths and serious injuries to members of the fighting groups. This does not mean that the illegal takeover of the disputed property is not possible without feuds and bloodletting. There have been cases where parties have tactfully occupied property thereby ensuring a longer control over it for decades through employment of several delaying tactics.

The modus operandi mentioned above is mostly adopted in cases where the property in question is in the custody or under the supervision of the state departments. For example, the property managed by the Evacuee Trust Property Board (ETPB) and Provincial Auqaf departments has been an easy target for those on constant watch-out for land-grabbing opportunities. Official inquiries into such incidents have shown that most cases of illegal occupation of trust property were facilitated by some corrupt officials of the related departments. They would guide private parties on how to take as well as prolong possession over trust property without following legal procedures.

A few ETPB officials have come under fire for violating their own laws and watching the interest of land grabbers.

ETPB was set up in 1960 to manage property attached to Hindu and Sikh charitable trusts and shrines. It was reconstituted in 1975 as a legislative act of parliament, authorising ETPB to lease out urban and rural lands under its jurisdiction. The ETPB property cannot be sold out according to the Liaquat-Nehru Pact and the income coming from its judicious use has to be spent on the welfare of the public and the maintenance of Hindu and Sikh shrines. The ETPB property is spread all over Pakistan including the most prime ones located in cities like Karachi and Lahore.

"The way some ETPB bosses have used their powers and obliged their near and dear ones is amazing," said a board employee on condition of anonymity.

He said that in the past only the federal ministry for religious and minority affairs could okay long-term leases but this power was given over to the ETPB bosses later on.

Another discretionary power -- that of declaring a property non-trust -- also paved the way for corruption in the department, he added.

A former ETPB chairman had to face charges like making Rs 3 billion from dubious deals involving evacuee trust property.

The official told TNS that there was other trust property whose documentary records were missing.

"The department insiders let people occupy such property on lease/rent. Once they have the possession, these insiders ask them (the occupants) to apply for regularisation of their possession on the grounds that the property does not fall under the purview of ETPB. In such a situation and the absence of property documents, the relevant authority does not have any other option but to declare it a non-trust property."

The official further cited the example of a Hindu temple in Wachoo Wali Bazar in Old Lahore, which was given on a 30 years' lease to a developer. This man demolished the temple and constructed a multi-storey plaza there.

"When it came into the notice of the high-ups, it was too late. Shops in the plaza had been sold out and the developer had made enough money. Razing the plaza to the ground at the time would have caused a loss worth millions to the occupants of the shops and offices in the building."

This incident took place despite ETBP laws categorically prohibiting the sale or demolition of an evacuee trust property "that is part of appurtenance to a shrine, a religious place or a building of historical or architectural importance," he added.

TNS tried to contact Vice Chairman ETPB Riffat Pirzada but the latter was not available for comments. All other officials contacted refused to talk on the pretext that only the vice president was authorised to talk to the media.

The provincial Auqaf departments (Muslim Auqaf) responsible for looking after property linked to shrines and mosques also have to face land-grabbing mafias. Ateeq Shah, Deputy Director Estate Management Punjab Auqaf Department, told TNS that the department had launched an aggressive drive to get its property vacated from illegal occupants.

He said that mostly the urban land under Auqaf department's management is occupied illegally whereas it is difficult to wrongfully possess agricultural property.

"That's because of the fact that the Auqaf department has evolved an efficient system to lease agricultural property on rent," he added.

Ateeq said that there were a few cases where the fault did not totally lie with the occupants of Auqaf land nor the department itself. Quoting an example, he said that sometime back the Auqaf land in Bagrian was given on 99 years' lease to Punjab Auqaf department employees. Many of these employees transferred their land to others against monetary considerations and the new occupants started construction activity here.

"Meanwhile, the Lahore High Court cancelled the lease altogether. The new occupants were in a fix and didn't know what to do. Can we call them illegal occupants? There have been reports that the Punjab government is passionately considering options to facilitate these people to the maximum," he revealed.

Naseem Abbasi, spokesman Punjab Auqaf department, refuted claims that people constructed fake shrines in connivance with Auqaf department employees in order to grab adjacent lands. It is not possible and only heard of in rustic tales, he said.

Abbasi told TNS that people had illegally occupied lands adjoining shrines and in many cases set up 'kachi abadies' (slums) there. "While the government, in principle, has decided to grant ownership rights to 'kachi abadies', our contention is that this is trust property and can only be given out on rent."

He further said that there had been takeovers of shrines by the Auqaf department "but this does not mean that these shrines were illegally occupied by anyone. In one such case, we received complaints that the caretakers had quarrelled with each other and were not looking after the shrine properly. At this, the department carried out a survey of the shrine and monitored the activities going on there. Once the allegations proved correct, an operation takeover was launched by the Auqaf department with full force."

A rise in the demand of land by the state and the public has corresponded with an alarming increase in the number of cases related to land disputes in the lower and superior courts.

Although our country achieved independence over 60 years ago, the people pursuing land-related cases in courts have yet to break free from centuries old colonial laws such as the Land Acquisition Act of 1894. This Act was introduced to regulate acquiring of land for different public interest projects by the then British government. If one goes through the draft of the Act, one will be shocked to learn that it invests enough powers to the government for any kind of 'sarkari qabza' under the ambiguous and ill-defined cover of 'public and national interest.'

As per law, the government can acquire a piece of land anywhere in the country if there is a kind of urgency in public interest. Section 17 of the Act, which deals with cases of urgency, says:

"(1) In cases of urgency, whenever the [42] [Executive District Officer (Revenue)] so directs, the Collector, though no such award has been made, may, on the expiration of 15 days from publication of the notice mentioned in sub-section (1) of section 9, take possession of any land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances: Provided that the [43] [Executive District Officer (Revenue)] shall not issue any direction to the Collector under this sub-section unless the Department of Government, the local authority, or Company, as the case may be, for which the land is being acquired, has first deposited the estimated cost of acquisition of such land as determined by the Collector of the district, keeping in view the provisions of sections 23 and 24. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or whenever owing to a similar emergency it becomes necessary for the [44][Executive District Officer (Revenue)] to acquire the immediate possession of any land for the purposes of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the [45][Executive District Officer (Revenue)], enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.

(3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.

(4) In cases where in the opinion of the [46][Executive District Officer (Revenue)], the provisions of sub-section (1) or sub-section (2) are applicable, the [47][Executive District Officer (Revenue)] may direct that the provisions of sections 5 and 5-A shall not apply, and, if he does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under sub-section (1) of section 4]."

Lawyers call this clause a violation of the basic citizens' right.

"This clause speaks of the colonial mind-set and it is a clear violation of the basic human rights," opines Hafiz Saeed, a senior lawyer who is an expert in the cases of Land Acquisition Act 1894.

According to Hafiz, the Act being one of the oldest laws in this part of the world needs a massive surgery since it is also a violation of our constitution.

"The Constitution of 1973 does not allow the government to involuntarily acquire any piece of land. However, this law under Section 17 gives the government powers to also acquire landing voluntarily," he adds.

Land Acquisition Act also does not recognise the right of the people who are working on lands acquired by the government. "If the government acquires a piece of agricultural land it does not admit the rights of the people working on it. In fact, the government only recognises the right of the owner of the land," said Mushtaq Gadi, an activist of 'Sindho Bachao Tarla', while talking to TNS.

His organisation is also striving for the rights of the victims of Chashma Right Bank Canal, who lost their lands thanks to the same Act.

Mushtaq Gadi was convinced that the colonial act is "obsolete, corruption ridden, has lengthy implementation, and does not recognise the rights of the people. In some cases, people have to wait for a very long time before getting any compensation."

In this regard, he said that the affectees of the Tarbela Dam, which was constructed in 1960s, have yet to be paid for their acquired lands.

He also related the case of Chashma Right Bank Canal wherein the government acquired more than 30 thousand acres of land whereas in the papers of the Revenue Department, the government mentioned only 24 thousand acres.

"When the government acquires a piece of land, the District Revenue Department controls all matters related to the imbursement to the victims. No public participation is available under the Land Acquisition Act of 1894. Therefore, generally the poor victims do not get their due compensation, and only the influential or the persons who bribe the department officials get the money. These people also influence raising the value of their land."

Interestingly, a large number of the displaced victims of Tarbela Dam whose lands were acquired under the same Act in late 1960s were not re-settled when the last report of the World Commission on Dams (WCD), titled 'Dams and Development A New Framework or Decision-making' was published. The report clearly says, "WCD case study on Tarbela reports that of the 96,000 physically displaced people enumerated for the Tarbela Dam in Pakistan, two thirds qualified for replacement agricultural land in Punjab and Sind provinces. Of these, some 2000 families or approximately 20,000 people did not receive land when the amount of land provided by the Sindh fell short of that promised."

If the government is interested in bringing about grassroot level changes in the lives of the victims of 'sarkari qabza' it will have to make drastic changes in the century old colonial Land Acquisition Act of 1894.