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Official Citation: 2024 CLC 1984
Court / Jurisdiction: Balochistan High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Balochistan High Court on 2023-12-31, officially reported as 2024 CLC 1984. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 CLC 1984
Court Name: Balochistan High Court Judge(s):Naeem Akhtar Afghan, Muhammad Hashim Khan Kakar, Abdullah Baloch,
JUDGMENT
Reported As: 2024 CLC 1984 Result: Order Accordingly Judgment
JUDGMENT JAMAL KHAN MANDOKHAIL, C.J. The petitioner in C.P. No.1128 of 2020 is an Advocate by profession, whereas the petitioners and intervenors in C.P. No.1269 of 2018 are the Agriculturists of the area. The claim of the petitioners in both the petitions is identical, therefore, both are clubbed. According to the petitioners, most of the lands throughout the province are unsettled and few districts are completely unsettled till date. Through the Constitutional Petition No.1128 of 2020, the petitioner has requested for determination of the status of unsettled lands of the Province. The petitioners and inhabitants of the indigenous tribes of the Province are claiming to be owners of the unsettled lands of their respective Mohals, Moans and Districts, whereas, the Government of Balochistan denies their claim and presumes that the unsettled land belongs to the Government of Balochistan. The question of ownership of unsettled land is a longstanding issue, which is required to be resolved, therefore, keeping in view the importance of the issue, notices were published in the newspapers for General Public. Pursuant to the general information, a number of people filed applications under Order I, Rule 10, C.P.C., bearing C.M.A. No.2423 of 2019, C.M.A. No.3249 of 2019, C.M.A. No.3290 of 2019, C.M.A. No.3291 of 2019, C.M.A. No.3407 of 2019, C.M.A. No.1840 of 2020, C.M.A. No.2515 of 2020, C.M.A. No.2657 of 2020, C.M.A. No.2878 of 2020, C.M.A. No.3001 of 2020, C.M.A. No.3006 of 2020 and C.M.A. No.3167 of 2020, which were allowed and all the applicants/interveners were impleaded as petitioners. Notices were issued to the learned Attorney General, who authorized Mr. Tahir Iqbal Khattak, the Assistant Attorney General to assist the Court, whereas, the
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learned Advocate General represented the Government of Balochistan. A "Larger Bench" has been constituted to resolve the issue once and for all. M/s. Muhammad Ishaq Nasir, Manzoor Shah and Amir Lehri, Advocates were appointed as Amicus Curiae to assist the Court. The Senior Member Board of Revenue (SMBR) and the Legal Consultant of the Government on revenue Mr. Javed Iqbal filed parawise comments through the learned Advocate General and also made their respective submissions. 2. The learned counsel for the petitioners in both the petitions stated that different indigenous tribes are residing in their respective areas of the Province for centuries, having their villages agricultural lands, grazing fields and forests, which belong to them collectively or individually. The learned counsel stated that the people of the indigenous tribes are occupying and utilizing the open fields as pastures and also collecting firewood stones, etc. therefrom for their benefits, despite the fact that most of the lands are unsettled, but till date, the Government raised no objection, which amounts to admission of ownership of the respective land owners concerned. They added that most of the cultivable areas of the province are uncultivated because of non- availability of resources for cultivation and scarcity of water. According to them, most of the lands in the Province are unsettled, but still, the inhabitants of the respective areas claim ownership of the same. The learned counsel pointed out that it is the responsibility of the Government functionaries/revenue authorities to do settlement in the province after every twenty-five years, but they have failed to perform their duty, therefore, because of non-compiling the record of rights by the revenue authorities, the rightful owns cannot be deprived of their ownership. The learned counsel stated that the unsettled lands of the entire province have not been recorded on the name of the Government during the previous settlements, therefore, under section 50(2) of the Land Revenue Act, 1967 (LRA, 1967), it shall presume to belong to the respective indigenous tribe. The learned counsel added 'that before and after creation of Pakistan, whenever the Government required any land for public purposes, it was acquired from the inhabitants of the areas, subject to compensation or through gift, despite the fact that the lands were unsettled. The learned counsel contended that through presumption of truth is attached to the revenue record, but in absence whereof, proof of ownership should be based upon longstanding possession and control over the land and keeping in view the custom of the area, having a force of law. According to them, admittedly the indigenous tribes are residing for centuries and occupying and utilizing the lands in their respective areas, therefore, presumption of ownership is in favour of the land owners concerned, as provided by Section 50(2) of the LRA 1967, hence the Government cannot claim ownership of the unsettled land for the reason that there is no provision of law, entitling it so. The learned counsel added that once the Government had constituted a committee, comprising of the Ex-Speaker and Members of the Balochistan Assembly for resolution of the issue of unsettled property of Quetta, who concluded that the Government is not the owner of the unsettled lands, but despite such fact, the Government is still claiming to be its owner, which is an illegality. They in the end concluded that such act of the Government amounts to deprivation of their rights in their respective unsettled lands, which is contrary to the provisions of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan. All the interveners relied upon the arguments of the learned counsel for the petitioners. 3. Messrs Manzoor Shah, Muhammad Ishaq Nasar and Barrister Amir Lehri, learned Amicus Curiae, contended that before creation of Pakistan, the Province of Balochistan comprised of the British Balochistan and the State Union. They stated that in the British era, the settlement proceeding was conducted in limited areas of District Quetta, whereas, rest of the British Balochistan and the State Union remained unsettled. They added that in the Gazetteers of India, facts about the unsettled lands of present Balochistan have been discussed in detail, where the Britishers did not claim
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ownership of the same. The learned Amicus relied upon the Land Revenue Act and the Settlement Manual. 4. Learned Advocate General, stated that most of the lands of Balochistan are unsettled and have not been recorded on the names of the landowners concerned, therefore, it shall be presumed to belong to the Government, as provided by Section 50(1) of the Land Revenue Act. He added that even otherwise, throughout the Province, huge unsettled and waste lands are lying barren and unoccupied, because there is no rightful owner or claimant of the same, therefore, according to Article 172 of the Constitution, these are unclaimed lands, which shall belong to the Government. The learned AG contended that if the presumption of ownership is not considered in favour of the Government, it will be property-less and it will be difficult for it to execute Public Sector Development Programs (PSDP) for the amenity purposes. The learned AG stated that the Government has taken steps to resolve the issue of unsettled land and hopefully, it will be resolved soon. 5. Arguments heard and perused the record. Before dilating upon merits of the case, it would be appropriate to highlight historical background of the Province of Balochistan. In this behalf, the Balochistan Chapter of Gazetteers of India and the Settlement Manual have been relied upon. Prior to creation of Pakistan, the Province of Balochistan was divided into the territory of British Balochistan, comprising of Chagai, Quetta, Zhob, Sibi and Naseer Abad Divisions, which was under the British colonial system of Governance and the other part was Balochistan Agency, consisting of Princely States, namely Khanate of Kalat (the Premier State), Kharan, Mekran and Las-Bela, which was self-governing, but was indirectly ruled by Britishers, subject to subsidiary alliance. As compared to these two areas, Punjab, Sindh and Khyber Pakhtunkhwa were relatively well integrated into Colonial system of governance, where the district-wise land settlement was a prime concern of the Colonial administration. On the other hand, lands of the British Balochistan, the Balochistan Agency and the Provincially Administered Tribal Areas (PATA) remained unsettled, which were mostly joint and uncultivated. The tribes and sub-tribes are settled in their respective areas since centuries, who claim to be owners of these lands through their respective ancestors, having their respective shares according to their internal arrangements. Collective identity of the tribes and sub-tribes remained intact by way of having a longstanding possession and control over these lands, collecting and distributing rents and deriving benefits therefrom. Large tracks of lands are being used as grazing fields since their forefathers. In some forest regions, there were well established systems for sharing of timber royalties amongst the tribe members. 6. The British administration accepted by default, the traditional claims of collective and individual ownership of the tribes and sub-tribes by recognizing their possession and control over their respective unsettled lands. Whenever, the British administration required a land for any public purpose, they used to acquire the same from the land owners concerned, but mostly, the local tribes did not accept the findings of the acquisition, however, in some cases, the tribes accepted the acquisition of lands, subject to compensation. To give legal effect to the process of acquisition of land from the land owners and empowering the British Administration to forcibly acquire lands for public purposes, the Land Acquisition Act of 1894 was introduced and subsequently acted upon. In this behalf, the learned counsel for the petitioners produced some documents as a precedent, showing that in the British regime, unsettled lands were acquired from time to time from different local tribes of the Balochistan Agency and the British Balochistan. Some of these lands were for the purpose of establishment of renowned Central Jail Mach, establishing railways, roads, schools, hospital and for other public purposes, despite the fact that the lands were unsettled. 7. It is a fact that before introducing settlement in the Province of Balochistan, the entire lands had no record, therefore, it is called unsettled land and in Urdu, it is called as,
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In British era, it was decided to conduct the settlement proceedings in the area, to prepare a record of right. In this behalf, guidelines have been provided by Section 39 of the Land Revenue Act, which is reproduced herein below: "39. Record of rights and documents included therein. (1) Save as otherwise provided by this chapter, there shall be a record-of- rights for each estate. (2) The record of rights for an estate shall include the following documents:- (a) Statements showing, so far as may be practicable: (1) the persons who are land-owners, tenants or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; (ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; and (iii) the rent, land-revenue, rates, cesses or other payments, due from and to each of those persons and Government. (b) a statement of customs respecting rights and liabilities in the estate; (c) a map of the estate; and (d) such other documents as the Board of Revenues may with the previous approval of Government prescribe. 8. The main objective of the land settlement is to formalize and make a record of actual facts, recognizing ownership rights, title, interest and liabilities of the indigenous human civilization over the unsettled lands they physically possess, utilize and having control over it. Through the settlement proceedings, the authorities prepare a record of right for fiscal purposes, enabling the Government to assess revenue and taxes to be collected from the produce of the land owner concerned. The process includes preparation of pedigree of the tribes and sub-tribes, recognize and record water and grazing rights of the tribes and sub-tribes, prepare maps and demarcate lands for public purposes, such as graveyard, mosques, educational buildings and other amenities. For the purpose of conducting the settlement, the settlement authorities also follow the principle reflected in Para-1 of Chapter-I (introductory) of the Douie's Settlement Manual which is reproduced herein below: "1. Right of State and private land-owners in land and its produce- The State has always claimed a share of the produce of the land from the person in whom it recognized a permanent right to occupy and till it or arrange for its tillage. It is needless to discuss the various ways in which this permanent title was. acquired by families or individuals; it is enough to note that the right of the ruler to his share and the right of the occupier to hold the land he cultivated and pass it on to his children both formed part of the ancient customary law of the country, however, the later might occasionally be denied in practice by an unjust Government." Similarly, Book-II of the Manual relates to Record of Rights and its Chapter-VIII is about tenure add rights of land owners, which is being followed by the Settlement authorities, while conducting settlement proceedings. 9. Before introducing first settlement in the British Balochistan, there were three categories of lands; first the State owned lands, which were acquired either subject to compensation, through gift or subject to certain commitments with the concerned tribes; second, private owned lands and third, village common lands, however all the three categories of lands had no record, because they were unsettled. During the first settlement in the limited area of the British Balochistan, the State owned lands were recorded on the name of the British Administration, whereas the cultivated and utilized lands were recorded on the names of individual and certain common village lands were recorded as collective ownership of the members of the tribes or sub-tribes concerned, as the case may be, irrespective of the fact that these were physically unoccupied, but were under the control of the respective tribes. It is important to mention here that settlement proceedings in Punjab. Sindh and
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Khyber Pakhtunkhwa (KP) were conducted at large scale, much prior to conducting it in some areas of the British Balochistan. Before introducing the settlement proceedings in sister Provinces, there too, was no record, as such, their lands were also unsettled, but during the settlement proceedings, the land owners concerned of those Provinces were recorded as such and the State did not claim its ownership. This is the reason that the State has very limited lands in the sister Provinces as well. 10. After creation of Pakistan, the British Balochistan and the Balochistan Agency (the present Balochistan) merged its sovereignty into Pakistan and came under its administrative control, but the land owners did not surrender their collective or individual rights of ownership of their properties to the State, that is why, after creation of Pakistan, the lands which were recorded by the Britishers on the names of the private persons either collectively or individually, were remained on their names, whereas only the properties recorded in the name of the British Administration, were transferred on the name of Central Government and subsequently, after establishment of the Provinces, it was transferred on the name of the Provincial Government, however, still most of the lands in the Province is unsettled. It is a fact that whenever a land was required for the establishment of Government buildings for amenities purposes like District Administration Offices, Courts buildings, School buildings, hospitals and roads etc., the Federal or the Provincial Governments used to acquire the same, subject to compensation or through gift or upon certain terms and conditions from the land owners concerned, considering them as owners irrespective of the fact that the lands were settled or unsettled. 11. For a long period of time, the Government did not claim ownership of the unsettled lands, but now the Provincial Government is claiming its ownership, but the respective tribesmen do not recognize the Government's claim. In the year 1991, in some areas of Quetta, without conducting land settlement, the Government recorded certain unsettled lands in its name and thereafter, allotted some of these lands to some private persons, other than the indigenous tribesmen. Consequently, the land owners concerned raised objections and strongly resisted the act of the Government. Considering the gravity of the resistance and protest from the people, the Government constituted a committee comprising the Ex-Speaker Balochistan Assembly, viz, Malik Sikandar Khan, Advocate as its Chairman and Mr. Muhammad Aslam Raisani, the Ex-Minister, as members, to resolve the issue, which concluded as under: 2) When in any record of rights completed after the eighteenth day of November, 1871, or the seventeenth day of July, 1879, as the case !nay be, it is not expressly provided that any forest or quarry, or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the land owners concerned. 12. The learned AG and the SMBR submitted parawise comments, alleging therein that in order to resolve the issue unsettled lands, the Government has taken up the matter, but without any decision. In the parawise comments, there is no clear stance of the Government, with regard to ownership of the unsettled lands, however, the learned AG stated that the Government is presumed to be the owner of such lands. He relied upon Section 50 of the Land Revenue Act, 19th (the LRA, 1967), which is reproduced herein below: "50. Presumption as to ownership of forests, quarries and wastelands. (1) When in any Record of Rights completed on or before the eighteenth day of November, 1871, in territories where the Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887), was, with or without modifications, in force immediately before the commencement of this Act, or completed on or before the seventeenth day of July, 1879, in territories where the Bombay Land Revenue Code, 1897, (Bombay Act V of 1879), or the Sindh Land Revenue Code, 1879 (Sindh Act V of 1879), was so in force, it is not expressly provided that any forest or quarry, or any unclaimed, unoccupied, deserted or
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wasteland, or any spontaneous produce or other accessory interest in land belongs to the land owners, it shall be presumed to belong to Government. (2) When in any Record of Rights completed after the eighteenth day of November, 1871, or the seventeenth day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry, or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the land owners concerned. (3) The presumption created by subsection (1) may be rebutted by showing-- (a) from the record of report made by the assessing officer at the time of assessment, or (b) if the record of report is silent, then from a comparison between the assessment of villages in which there existed, and the assessme nt of village of similar character in which there did not exist, any forest or quarry, or any such land, produce or interest, that the forest, quarry, land, produce or interest was taken into account in the assessment of the land revenue. (4) Until the presumption is so rebutted, the forest, quarry, land, produce or interest shall be held to belong to Government" 13. Section 50(1) of the LRA, 1967, speaks about two specific dates i.e. 18th day of November 1871 and 17th day of July 1879 and only in respect of the territories where the Punjab Land Revenue Act, 1887, the Bombay Land Revenue Code, 1897 and the Sindh Land Revenue Code, 1879 were so enforced. This provision of the LRA, 1967 is time bound and pertained to limited areas, where the stated enactments were so enforced. Admittedly, by or before 18th day of November 1871 and 17th day of July 1879, none of the stated three enactments were enforced in the British Balochistan and the Balochistan Agency, therefore, the provisions of section 50 subsection (1) of the LRA, 1967 is not made applicable to the Province of Balochistan. For this reasons, while taking over charge or these two areas, the British Administration, did not claim ownership of the unsettled lands, rather accepted the indigenous tribes as owners of the same. 14. To the contrary, according to subsection (2) of section 50 of the Act, 1967, when in any record of right, completed after the 18th day of November 1871 or the 17th day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry or any such land produced or interest as aforesaid belong to Government, it shall be presumed to belongs to the landowners concerned. Since in the areas forming part of the current Province of Balochistan, no record of right was completed on or before 18th November 1871 and 17th July 1879, as such no forest, quarry, unoccupied, deserted or waste land was recorded on the name of the Government. During the first settlement conducted in the areas farming the current Province of Balochistan, the British Administration, accepted the presumption of ownership of the unsettled lands in favour of the land owners concerned, therefore, they did not record the Government as owner of such lands. 15. After creation of Pakistan, the Pakistani Administration stepped into the shoes of the British Administration and got control of the revenue record and maintained it in a manner, as it was in the British Era. It is 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% 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, keeping in view the Customary Law and usage, on the basis whereof, the tribesmen would have been recorded as owners. This fact has also been thoroughly discussed by the committee in its report referred to herein above. 16. Articles 23, 24, 172 and 173 of the Constitution of the Islamic Republic of Pakistan deal with the proprietary 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. It is
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important to mention here that the United Nations General Assembly has mandated to promote socially and environmentally sustainable towns and cities with the goal of providing adequate shelter for all. For this purpose, the UN Agency namely, UN-Habitat, carried out detailed research with the assistance of the Government officials and has prepared documents in the year 2011 and 2012 respectively with the name and title, 'A GUAID ON LAND AND PROPERTY RIGHT IN PAKISTAN'. These documents provide the basic understanding of the principles of the Pakistani land and revenue administration system, including the right of its ownership. It is an exhaustive document covering history of land administration, law regulating property rights, land record, structure of land administration, sources of acquisition of properties, rights of its transfer, duties and responsibilities of revenue and settlement authorities. It also contains a detail about land reforms introduced in the Country from time to time. "Guide on Land and Property Right in Pakistan", is therefore, an authentic document, prepared by an independent Agency of United Nation (UN), but it also did not collect any evidence or law to recognize the Government, as owner of the unsettled lands. 17. One of the main stance of the learned AG is that, in absence of documentary proof, the unsettled property shall he considered as ownerless property, which shall vest in the Government, as provided by Article 172 of the Constitution, which is reproduced herein below: "172. Ownerless property. (1) Any property which has no rightful owner shall if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.…
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