PESHAWAR: The Peshawar High Court (PHC) on Saturday issued an order retraining the settlement officer Chitral from handing over the land record to the commissioner Malakand, the deputy commissioners of Upper and Lower Chitral districts and Senior Member Board of Revenue (SMBR).
The two-member PHC bench comprising Justice Rooh-ul-Amin and Justice Nasir Mehfooz issued the restraining order on a writ petition filed in 2019 to challenge the issuance of a 1975 notification that had declared all the mountains, wastelands and riverbeds as the property of the provincial government.
The residents of Chitral, including former Member National Assembly Iftikharuddin and others, had filed the writ petition.
Barrister Asadul Mulk and Mohibullah Terichvi appeared for the petitioners.
Barrister Asadul Mulk argued before the court that the 1975 notification was contrary to Article 172 (1) of the Constitution.
He contended that the 1975 notification was issued pursuant to the Distribution of Property Chitral Regulation 1974. They argued that following the 25th Amendment to the Constitution all regulations issued pursuant to Article 246 and 247 of the Constitution had lapsed.
The lawyer said that 97 percent land of Chitral was registered in the name of the provincial government, which was contrary to the provisions of Article 172(1) of the Constitution.
He added instead of land settlement, land expropriation was being carried out in Chitral.
Barrister Asadul Mulk stated that there were several statutory and constitutional defects in the 1975 notification.
He told the court that the petitioners were not opposed to land settlement but they wanted that due process should be followed.
It was argued that the residuary clause in the Chitral Land Dispute Inquiry Commission Report from 1971 notified in the official gazette in 1975 was in conflict with the residuary clause in Article 172 (1) the Constitution of Pakistan and thus liable to be struck down.
The impugned residuary clause in the 1975 notification declares all “mountains”, “waste-lands”, “barren-lands” and “riverbeds” to be the property of the provincial government without defining those terms or demarcating their boundaries.
The result of implementing the 1975 notification has been that 97 percent of total land mass of the two districts has been entered in the name of the provincial government.
Barrister Asadul Mulk contended that the vagueness, nebulousness, imprecision and ambiguity inherent in the impugned parts of the 1975 notification represented the antithesis of law.
He told the court that the record of the land in Chitral was being handed over to the SMBR. He said that the local people had the record of the land, arguing that the government could not claim ownership of the mountains and the wasteland.
Moreover, it was argued that following the 25th Amendment to the Constitution all regulations issued under Article 246 and 247 of the Constitution had lapsed and the 1975 notification was also issued under the omitted provisions of the constitution and had therefore consequently lapsed.
The bench after hearing the arguments issued the restraining order and adjourned the hearing till July 6, the next date of the case.
The high court lamented that despite the lapse of three years neither the federation nor the province had submitted its comments in the writ petition.
In April 2021, the PHC chief justice in view of the gravity of the matter had transferred the writ petition from Dar-ul-Qaza Swat to the principal seat of the high court.
