ISLAMABAD:
In a landmark judgment, the Balochistan High Court (BHC) has declared that the “unsettled land” of the country’s largest province belongs to the indigenous tribes – inhabiting these plains and mountains for centuries – and not to the provincial government.
Interestingly, 90 percent of the total area of Balochistan is unsettled or undocumented land. Though scantily populated, the province is the biggest federating unit of Pakistan in terms of its size, making up over 43% of the country’s total area.
A number of agriculturists had moved the BHC, requesting the court to determine the status of unsettled lands of the province. According to the petitioners, most of the lands throughout the province are unsettled with lands of a few districts completely undocumented to date.
The petitioners and members of the indigenous tribes had claimed ownership of these lands. The government of Balochistan had, however, denied their claim and argued that the unsettled land belonged to the provincial government.
After hearing arguments of both sides, BHC Chief Justice Jamal Khan Mandokhail issued a 22-page judgment, noting that presumption of ownership – as provided by Section 50 Sub Section (2) of the Land Reforms Act (LRA), 1967 with regard to the unsettled land – is in favour of the land owners concerned.
It noted that the government should conduct settlement proceedings to prepare records of right and to continue settlement proceedings periodically, in accordance with law.
"The government can frame policies, introduce land reforms and make enactments to deal with land issues, accordingly. This judgment shall have no effect upon past and closed transactions," it said.
The BHC said after independence, the Pakistani administration stepped into the shoes of the British administration, got control of revenue record and maintained it in a manner as it was in the British era.
"It was the responsibility of the provincial government to conduct settlement proceedings periodically, as provided by the LRA, 1967 and the Settlement Manual, but the needful has not been done…
“Resultantly, almost 90 percent of the lands of the province are still unsettled. Had the record of right been prepared periodically and in time, the issue of unsettled land could have been resolved in accordance with the provisions of Section 50(2) of the LRA 1967,” it said.
The court said Articles 23, 24, 172 and 173 of the Constitution deal with the property rights of a citizen.
Giving effect to these constitutional provisions, there are various laws that regulate ownership, transfer, acquisition and registration of immovable property. None of these laws recognize the federal or the provincial government as owner of the unsettled lands, said the judgment.
The court said though most of the properties in the province are unsettled, having no document or record of right, but still the indigenous tribes and sub-tribes who are residing there for centuries, are claiming to be its owners by way of inheritance.
“By not conducting settlement in the area, naturally the landowners concerned will have no documentary proof, for which they cannot be held responsible, hence cannot be deprived of their rights.
“In Article 172 of the Constitution, the words ‘rightful owner’ have been used, which means a person having a just or legally established claim, which can be either in the form of document or in case there is no record of right, longstanding possession or control over the land is a prima-facie just and legally acceptable proof of ownership,” said the judgment.
The court said most of the lands in the province are unsettled and therefore, there is no document to prove ownership. For argument's sake, if documents are believed to be the only source of proof of ownership, then such principle is equally applicable to the government. It said under such circumstances, other sources of evidence shall be acceptable to prove ownership of such land.
The court said in absence of a record of right, longstanding possession and control of the tribes or sub-tribes over the undocumented unsettled lands give a good legitimate title to them against the government, on the basis whereof, they claim to be owners of the same.
“In presence of claimants, the unsettled lands cannot be considered as ownerless property, therefore, the land owners concerned who prove their entitlements are deemed to be the rightful owners and being a citizen of the country, their rights have been protected by Article 23 & 24 of the Constitution.”
The court noted that whenever a dispute arose amongst the inhabitants of the tribes or between two or more tribes, they used to get the services of the strongest systems of alternate dispute resolution called “arbitration” for resolution of their dispute, which is successful in resolving most of the land disputes.
“They also invoke the jurisdiction of the courts established during the British era and also of the courts of the country, which accepted the informal documents and other sources, as proof of ownership.
“Most of the claims of the landowners are based on collective possession and control over the unsettled lands, since their forefathers, as a strong proof of ownership. Different courts of law accepted such proof, despite the fact that the subject matter of those suits was unsettled lands.”
The court said one of the arguments on behalf of the government is that how such a large track of unsettled and unoccupied lands can be owned by the land owners concerned.
It noted that the area of Balochistan is more than 43 percent of Pakistan, which consist of mountains, residential and agriculture lands, grazing fields.
Fire wood is collected from these lands as fuel and stones for the purpose of construction. Out of these large tracks, a limited area is used for cultivation, residential and commercial purposes.
“Most of the cultivable lands are uncultivated because of scarcity of water, lack of human and financial resources; however, limited areas are cultivated through the irrigation system of underground water or through rainwater.
“Similarly, most of the areas are undeveloped, because the same are joint, which the inhabitants of the concerned areas partition gradually, as per their requirements and their internal arrangements, in accordance with the custom.
“The major source of income of the people of Balochistan is livestock, for which large grazing fields are demarcated amongst the indigenous tribes and sub-tribes who are residing over there for centuries.”
The court said boundaries between the adjoining villages are specified and no one interferes in the territories of others. People honour this established custom and traditional and widely accepted principle of collective and individual ownership.
“These are the reasons that the landowners are claiming to be the owners of such a large track of unsettled lands, which have no comparison with the lands of big and developed cities.
"Articles 23 and 24 of the Constitution gives right to every citizen of Pakistan to acquire, hold and dispose of property in any part of Pakistan, therefore, no person shall be deprived of his property, save in accordance with law.
“There is no bar under the Constitution or under any law to acquire, hold or dispose of nor is there any restriction upon number or size of a property, therefore, having a large track of lands from their predecessors, does not disentitle any citizen or community from his/their property.
"Since most of the unsettled lands are being claimed by the landowners concerned, therefore, having rightful owners, these cannot be considered as ownerless properties; rather the inhabitants of different tribes and sub-tribes are presumed to be owners of their respective lands.
“Needless to observe here that the government always requires lands for public purposes such as education, health, research, sports, parks, dams, waters supply schemes, mosques, graveyards and other amenity purposes.
“The government is therefore required to earmark reasonable land only for such purposes during the course of settlement proceedings," the court added.
Talking to The Express Tribune, Advocate Umer Gilani said the court has essentially ruled that the unsettled lands belong to indigenous tribes who have occupied it for centuries and not to the state.
“This is a very significant and progressive interpretation of Article 172. It is a commendable, rights-protective judgment which has implications for a very large part of Pakistan, since Balochistan is almost half of Pakistan's landmass and most parts of Balochistan are ‘unsettled’ in terms of revenue records.”
Gilani said the issue of "rights of indigenous peoples" is also of international significance.
“In South America, Africa as well as in India, indigenous tribes are fighting to claim legal rights over their ancestral lands from post-colonial states. In all those countries, this judgment will be read and relied upon,” he added.
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