Barrister Asad Ul Mulk
Land settlement in the districts of Upper and Lower Chitral, the total area of which cumulatively stands at around 14,850 square kilometers, is in its final stages. The term land settlement is understood as referring to the process via which the details of land belonging to the government as well as those belonging to private individuals, etc, are recorded in a register. At the conclusion of the settlement process, the recordings in the register acquire authoritative status.
Thereafter, the enjoyment of proprietary rights must be consistent with what is contained in that register. Thus only if you have rights which are recorded in the register can you exercise land rights such as the rights to use, alienate, dispose, or exclude others from that land and not otherwise.
Land settlement promotes certainty, transparency and safeguards proprietary interests. This should be glad news for the people of Chitral. But to the contrary, they seem bedeviled by the process. Their anxiousness is rooted in the fact that according to the records, which have been prepared, 97% of the land mass of the districts of Chitral has been entered in the name of the provincial government, and less than 3% in the name of the people of Chitral. The question is how could this be?
The settlement office in Chitral has started to follow, almost to the point of worshipping, a notification of the Home and Tribal Affairs Department dating back to 1975. An ignominious part of the notification, which was issued pursuant to a special law called the Distribution of Property Chitral Regulation 1974, promulgated to provide a hierarchy for then existing land disputes, conveniently declares all “wastelands,” “riverbeds”, and “mountains” to be property of the Provincial Government.
Surprisingly, the notification has no definition clause to define the term wastelands, riverbeds, and mountains. And till now it has never been acted upon by the Government. Coming to the question; how can the government be the owner of 97% of the land mass of the districts of Chitral?
The settlement office in Chitral appears to have proceeded to unilaterally assign meanings of its choice to the term wastelands, riverbeds, and mountains, all to the benefit of the government and detriment of the people of Chitral. For example, it is perfectly legit to ask whether a mountain includes a hill, a hillock or a mound. Similarly, whether wasteland includes barren land and idle land.
In his book The Morality of Law, Professor Lon Luvois Fuller, while dilating upon the eight inner moralities of law, echoingly writes that “The desideratum of clarity, represents one of the most essential ingredients of legality”. According to most eminent jurists, law loses its legality when it is marred by lack of clarity.
The settlement office ostensibly did not appreciate this very plausible legal question, and proceeded to fit any land feature it could within those terms, with the result that; 97% of the land mass of the districts of Chitral has been entered in the name of the provincial government.
What led to this error was that the settlement office could not see beyond the 1975 notification and appreciate the context in which it was issued. Chitral was a princely state until 1969 when it was merged into West Pakistan along with neighboring princely states of Dir and Swat. In 1971, the Chitral Land Dispute Inquiry Commission was set up to look into the merits of claims made by individuals against each-others and the general agrarian problems. The report of the Commission on the face of it admits that it looked into some 6,000 active disputes, covering less than 2% of the land mass, and the determination of title of the remaining area should be decided at a future date.
Instead of bothering to understand the working of the Commission, which would have engaged them in an intellectual enterprise, the settlement office in typical bureaucratic fashion proceeded with the fallacious assumption that no more than 3% of the land mass of Chitral belongs to the people. Quite to the contrary, the Commission in its report admitted that many tracts of lands were not disputed and therefore their title did not crop up before it for determination. It abstained from commenting whether these other lands were private or belonged to the Government.
Well aware of the limitations of the Commission and its report the Provincial Government endeavouring to preserve the integrity of the Commission’s work, and the potential proprietary interests of the Provincial Government, inserted a number of ambiguous and inexplicit declarations in the 1975 Notification, as mentioned above, so as to keep alive any legitimate claim of the Provincial Government, which could be substantiated at the time of settlement.
The interesting part is that the ignominious portion of the 1975 Notification are in conflict with Article 172 (1) of Pakistan’s Constitution. Accordingly, “any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province”. Thus the altitude or elevation, gradient or incline, precipitous or rugged nature of a land or property, cannot in itself form the basis for the denial of someone’s title over it by the state. Neither can the existence of ridges, ravines or gullys etc. or other geological features, which lend a land or property its irregular or asymmetrical nature, rob the title holder of his title, or extinguish the same.
Recently a five-member bench of the Balochistan High Court in a case titled Sher Zaman and others Versus the Government of Balochistan and others delivered a rebuking blow to the provincial government of Balochistan, which was relying on similar notifications to deny land owners the title of their lands. Moreover as regarding Article 172 (1) of Pakistan’s Constitution the judgment finds that; “In presence of claimants, the unsettled lands cannot be considered as ownerless property, therefore, the land owners concerned who proves their entitlement 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”.
In spite of the fact that the law is clear, the people of Chitral face a bureaucracy of revenue authorities who are not amenable to reason, and have renounced common sense. “It is folly to argue against determined hardness” wrote Thomas Paine in Common Sense and continued “[E]loquence may strike the ear, and the language of sorrow draws forth the tear of compassion, but nothing can reach the heart that is steeled with prejudice”. –The News