March 25th, 2021
By Rehan Piracha
In a historic judgment, the Balochistan High Court has declared that inhabitants of indigenous tribes have the right of ownership in unsettled lands of the province, rejecting a claim by the provincial government that it owns all such lands.
A five-member larger bench, headed by Chief Justice Jamal Khan Mandokhail, resolved the longstanding issue of ownership of unsettled land in the province in a 22-page order issued on 18th March in Quetta. The settled lands are areas where the revenue department has recorded right of ownership while unsettled lands are those where the revenue authorities have not done so. The court was told that 90 percent of the province falls under the unsettled lands.
The settled and unsettled land in Balochistan
The petitioners and inhabitants of the indigenous tribes of the province claimed that they are owners of the unsettled lands of their respective areas and districts. The provincial government denied their claims saying that the unsettled land belongs to the Government of Balochistan.
‘Unsettled lands belong to indigenous tribes’
The counsel for the petitioners 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, adding that till date the provincial government had raised no objection, which amounts to admission of ownership of the respective land owners concerned.
The petitioners 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, the rightful owners cannot be deprived of their ownership because of failure by the revenue authorities to compile the record of rights.
The petitioners 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 counsel told the court 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.
‘British Raj did not lay claim to unsettled lands’
The Amicus Curiae -Manzoor Shah, Muhammad Ishaq Nasar & Barrister Amir Lehri – told the court 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, the rest of the British Balochistan and the State Union remained unsettled. The Amicus Curiae stated that the British Raj did not claim ownership of the unsettled lands of present Balochistan according to the Gazetteers of India.
Unsettled lands belong to govt: AG
The Advocate General told the court that most of the lands of Balochistan are unsettled and have not been recorded on the names of the landowners concerned. Therefore, the unsettled lands should be presumed to belong to the government, as provided by Section 50(1) of the Land Revenue Act.
He said a huge area of unsettled and waste lands are lying barren and unoccupied throughout the province because there is no rightful owner or claimant of the same. According to Article 172 of the Constitution, these are unclaimed lands which shall belong to the government, the AG contended.
However, the court accepted the contention of the petitioners’ counsel that the British Raj had also accepted the indigenous inhabitants’ right of ownership of unsettled lands. The court rejected the contention of the government that the unsettled lands were ownerless properties stating that ‘rather the inhabitants of different tribes and sub-tribes are presumed to be owners of their respective lands’.
The court also allowed the provincial government to acquire land for development projects from the inhabitants in unsettled lands.
Court orders periodic settlement proceedings
“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 order reads.
The high court directed that the provincial government should conduct settlement proceedings periodically to prepare records of rights in unsettled areas in the province, adding that the government can frame policies, introduce land reforms and make enactments to deal with land issues, accordingly.