RASTA: Local Research, Local Solutions: Sludge & Dead Capital, Volume Xiv

ABSTRACT

This study was undertaken to analyse the revenue court system of Pakistan, which is arguably a neglected segment of the country’s justice system. As opposed to the civil courts, which deal with civil disputes involving (mostly urban) property, the revenue courts, although the term is a misnomer, deal with rural and agricultural property-related cases. Using Cass R. Sunstein’s concept of “sludge”, the research focussed on the economic impact of the debilitating legal and institutional structure of these courts at the individual as well as the collective levels. At the individual level, the focus was on the economic costs of litigation to the individual litigant such as the direct expenses like court fees, indirect costs such as travelling, and, finally, the psychological costs to them due to the stress and strain of prolonged litigation. At the macro level, the collective costs of the sludge in revenue courts were calculated to ascertain how much of a drag it is on the national gross domestic product (GDP). This entailed quantifying all those issues that make it difficult for litigants, possessing agricultural property, to achieve their desired outcome of an early adjudication and secure property rights. “Sludge” is any excessive friction that makes it harder for people to do what they want to do. In economic terms, sludge was calculated by measuring avoidable costs that the litigants had to endure. The current study has built upon the pioneering study on sludge audits in Pakistan undertaken by the Pakistan Institute of Development Economics (PIDE) by Haque et al. (2022) by focussing on sludge audits of another sector, i.e., the revenue courts. The study found that if a person gets involved in litigation related to agricultural property, it may cost up to four-fifths of their annual income in litigation-related costs, at least in the year the case was instituted. The value of disputed land held up in litigation comes to nearly one-fifth of the rural GDP. Much of this sludge is avoidable through smart governance, such as digitisation initiatives. Deriving from best practices across Asia, the study concluded with making recommendations for sludge minimisation in revenue case adjudication by proposing integrated solutions through enhanced digitisation and simplified procedures, incentivisation of judicial work for administrative officers and institution of mandatory training for officers working in the subordinate judiciary.

INTRODUCTION

Background and Context of the Study

Land is probably the most expensive and most important asset for the people, especially in the rural areas of Pakistan. This is depicted by the fact that not only 60%-70% of the civil litigation in the country pertains to landed property but also 40%-50% of criminal litigation is invariably due to land-related matters (Siddique, 2020). The latter fact was further substantiated by our interviews with various police officers in the Central Police Office as well as in the field formations.1 A former senior police officer in Sargodha stated that in rural areas, around 90 per cent of murder and violent crimes could be attributed to land and water disputes. These agricultural land and irrigation water disputes are the preserve of revenue courts in Pakistan. It is a sad fact that it ordinarily takes decades to get a ruling on a property case. A testament to this fact is that in 2018, the Supreme Court of Pakistan announced its verdict in a property dispute case that was instituted a century back circa 1920 (The News, 2018).

Revenue courts, though the name may be a misnomer, are, in simple terms, specialised courts that specifically deal with disputes and issues of agricultural land matters as opposed to civil courts that deal with disputes involving urban property, family matters, or monetary issues. The revenue courts have been defined in section 5(2) of the Code of Civil Procedure (1908) as “[a] Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes.” These courts and their procedures are governed by the West Pakistan Land Revenue Act, 1967 which excludes from their jurisdiction any dispute arising out of a land “which is occupied as the site of a town or village [because that] will not be deemed as agricultural land.”

In short, the revenue courts have exclusive jurisdiction on matters of mutation, partition, inheritance, delimitation, eviction, and cases related to agricultural produce. These courts are presided upon by civil servants from administrative services, unlike the civil courts which are manned by members of the judicial cadre. Starting from Tehsildar to Assistant Collector, the route in a revenue court goes up to the Commissioner and then to the Board of Revenue. Collectively, these officers are known as Revenue Officers (ROs) under Section 7 of the West Pakistan Land Revenue Act, 1967.2

Property-related cases in Pakistan, both urban and rural, take decades to resolve. Lack of understanding of law and procedures, both by revenue and civil courts, lawyers, and litigants alike, is often a reason behind inordinate delays in property-related cases. Ineffectual processes are another contributing factor to what the contemporary literature refers to as sludge. Coined by Cass R. Sunstein in his book, sludge has been explained as all those factors that act as impediments to rightful gains and even constitutional rights. He says that sludge is pervasive because it is found everywhere, be it a private entity, a public institute, or a court. The officers, lawyers, and doctors, inter ali, all seemed to be imposing sludge in one manner or another. Hence, at some point, people give up on the desired outcome due to the various hurdles they face (Sunstein, 2021).