PESHAWAR: The Peshawar High Court on Monday admitted to hearing a petition against a notification issued over four decades ago to declare Chitral region’s all mountains, wastelands, jungles, pastures and riverbeds the property of the provincial government.
A bench consisting of Justice Syed Arshad Ali and Justice Waqar Ahmad after preliminary hearing of the petition sought comments from the Federal Secretary of Law and Justice, the Chief Secretary of Khyber Pakhtunkhwa, the Senior Member Board of Revenue (SMBR) and the deputy commissioners and settlement officers of the districts of Upper and Lower Chitral.
Over 100 Chitral residents, including former MPA Ghulam Mohammad and elder Muhibullah, have moved the court claiming to be aggrieved by the ongoing land settlement in Upper and Lower Chitral districts.
Asadul Mulk, lawyer for petitioners, enumerated the statutory and constitutional defects in the 1975 notification.
He said apart from the ‘vagueness doctrine’, the case also involved the gauging of the 1975 notification in light of Articles 23 and 24 of the Constitution, which entrenched proprietary rights as fundamental rights, and Article 25, which prohibited discrimination.
Residents challenge notification to declare region’s mountains, pastures, riverbeds govt property
The lawyer said the 1975 notification’s reconcilability with Article 171 of the Constitution, which deals with ownerless properties, was also questioned, as was its reconcilability with the report of the Land Dispute Inquiry Commission, constituted in the 1970’s.
He said the petitioners were not opposed to land settlement and instead, they were opposed to any process, which did not follow due process and trampled on their proprietary rights.
Justice Syed Arshad Ali observed that the high court would evaluate the constitutionality of the 1975 notification independently and the petitioners should not worry about their proprietary rights being invaded and in case they were, then the high court would interfere.
The petitioners requested the court to order a halt to the land settlement process for being ‘sequestration of their private or collective properties’.
They sought the striking down of the notification saying unless the notification is there, the government will proceed to declare over 95 per cent of the districts of Upper and Lower Chitral its property.
Barrister Asad said following the abolition of the Frontier States, a phenomenal amount of disputes concerning the immovable property suddenly shot up in the region.
He said the Dir, Swat and Chitral Land Disputes Enquiry Commission was formed to address disputes and that it was tasked with bifurcating the private property and official property of the ex-Mehtar of Chitral.
The lawyer said the property belonging to the Mehtar in his official capacity was to vest in the government of the NWFP.
He said the Commission confined itself to looking at detail into only those 6,000 or so petitions, which were lodged with it, giving its findings thereon.
“As regarding those properties which were not disputed, and never found mention in the Final Report of the Commission, the Commission gave no findings in respect thereof.
“Similarly, since the title of the vast majority of area forming the district of Chitral, never came before the Commission for determination, the Commission abstained from holding whether the same was private property of someone or state property,” he said.
The lawyer said to make up for the commission’s shortcomings, the government issued the 1975 notification pursuant to a special law called the Distribution of Property (Chitral) Regulation 1974.
He said lately, the government had been according very encompassing definitions to undefined terms such as mountains, wastelands, jungles, pastures and river beds as used in the notification and claiming the same.
The counsel said the impugned parts of the 1975 notification were too vague and ambiguous, to be the subject of legal enforcement, without judicious illumination.
He claimed that the revenue office concerned had proven itself to be oblivious of the historical, geographical and legal background of the region, and the contextual environ in which the 1975 Notification was issued.
The lawyer said less than three per cent of the upper and lower Chitral consisted of arable land and if the 1975 notification was allowed to stand, the residents were at risk of being deprived of their ancestral property and reduced to non-entities.
Published in Dawn, October 29th, 2019