Settlement of unsettled landform
A. M. Khan
The West Pakistan Regulation No. I of 1969 conferred legislative and administrative competence in Dir, Swat and Chitral states to exercise any power (s) or perform any functions with respect to any matter with the provincial legislature. As a tribal state, Chitral got the status of a settled district in Malakand Division under Article 246-B of the Constitution of 1973.
Before this notification, in respect of property ownership in the state, the West Pakistan Land Dispositions (saving of shamilat) Ordinance 1959, and West Pakistan Ordinance No. I of 1959 had defined “shamilat” although it contained a glaring ambiguity. Accordingly, shamilat is a “land described as such in the record of rights and the land so described shall be deemed to be shamilat notwithstanding that the whole or a part of it is in the possession of one or more of the proprietors in the estate, or of any other person.”
Later, the notification of 1975, despite making no distinction in land form, formations, useability, primeval ownership and features, summarily set aside shamilat of whatever sort as state property or in other words as property of said provincial government.
The ambit of ‘shamilat’ lost its status after the notification of 1975 which declares out of 3% landform as property of provincial government of Khyber Pakhtunkhwa. This land may not be ‘ownerless’, with some exceptions since people have had different de facto appurtenant and primeval holding of a vast landform i.e. riverbeds, wetlands, natural forests, hunting grounds, barren land pastures being used over the years seasonally, and in different manner. The barren lands and highlands have however been under common usage as pastures and transhuman till now are quite different from other holdings.
If we take up the case of land settlement in any part of Chitral, whatsoever is the landform, it falls into two categories: settled and unsettled landform. Former is settled in someone’s name in settlement register and latter considered to be de facto shamilat or common land of general populace not recorded in settlement register. As said that around 3% landmass in Chitral is registered, with few exceptions, is a land under irrigation and cultivated by people.
Out of 3% land resolved in the settlement register, the rest of the landform turned out to be the property of the provincial government according to its de jure legal status in 1975 notification is quite complex in understanding of its nature and extent of ownership or declaring it ownerless land.
The International Union of Conservation of Nature (IUCN 2004) ‘conservation strategy’ study divides the landform in Chitral. It says Chitral has ‘28.5% of the region covered in glaciers, snow-clad mountains, bare rock and barren ground, and 62% of the land supporting only pasture with sparse vegetation’. If we could rely on landform estimation of this study, the former, (28.5% landmass) has been neither accessible nor usable thus no de facto claim could be made on its possession whatsoever, and latter (62%), although forms a major chunk of landmass, falls on de facto shamilat which the people(s) have used over the years. Indeed, this land has been a major source of income and food for people from livestock farming until the near past. Interestingly the nature and extent of common property (shamilat) is overlapping from place to place, as land formations taking place.
Let us take a recent example. a few years back Chitral river washed away cultivated lands, forests, houses and orchards in Sarghuz, Junalikoch, Reshun and Green Lasht. Could we also call these areas riverbed? If not, how can we prove them now in the court of law?
Chitral’s most productive farmland (falls between 2.4 to 3 percent) forms ‘45,017 hectare’ is or has been under irrigation used to feed and provide employment to the majority of its people is a settled land with few exceptions whatsoever they are.
The 25.8 percent area in Chitral covered in glaciers, snow-clad mountains, bare rock and barren ground is hitherto not courted of any sort either in public forums and government at district or provincial level only because of its texture, unusability, whatever it incurs; and de facto appurtenant on it.
The rest of 62% of the landmass continued to supporting only ‘pasture with sparse vegetation’ and rich in vegetation, (different in terms of ownership and possession in different parts of Chitral) is a case of dispute that recently arose about Khotan Lasht and Qaqlasht plateau in upper Chitral. And there are lands of this sort in other parts of Chitral also. The landmass of this nature and others, have been held and used by populace, families, tribe/s, and people living adjacent to it. The nature of appurtenance of such a landmass in one place, however, is different from another in Chitral. It is glaringly different in lower and upper Chitral also.
Historically, differing uses of the terms for ‘unproductive land’ owned by locals as labelled ‘waste’ (or commons), and it has been an interesting case in point of pastoral families and nomadic tribes started to settle in different places across the world, and in Chitral. The pastures and the transhumance were not an ‘isolated phenomenon, but was much more integrated into the mainstream structure of rural life than it is today’ across among mountainous people.
And there are places people still have seasonally use, in some places people have indispensable settlement arrangements on it, spending the season especially summer but all these landholdings as common property, and holdings of different tribes of Chitral are difficult to solicit in the court of law on documentary proves, resultantly fall on provincial government’s property regime unless the notification of 1975 is done away with. It is unjust to convert village commons (de facto common property) into state’s de jure possession by legal formalism without considering the years long possession of the land on which people have survived, and commonly used for mutual benefit. Unless the notification which declares the landform in Chitral is de-notified in the court of law the case justifies the government to assert its de jure possession on the land. Even if it’s denotified it opens a flood of complex issues on the possession of the landforms by different people, tribes, and communities over the years in different parts of lower and upper Chitral.
(The writer is PhD scholar at the Department of Political Science, University of Peshawar.)