JAMAL KHAN MANDOKHAIL, C.J. The petitioner in C.P. No.1128 of 2020 is an Advocate by profession, whereas the petitioners and intervenors in C.P. No.1269 of 2018 are the Agriculturists of the area. The claim of the petitioners in both the petitions is identical, therefore, both are clubbed. According to the petitioners, most of the lands throughout the province are unsettled and few districts are completely unsettled till date. Through the Constitutional Petition No.1128 of 2020, the petitioner has requested for determination of the status of unsettled lands of the Province. The petitioners and inhabitants of the indigenous tribes of the Province are claiming to be owners of the unsettled lands of their respective Mohals, Moans and Districts, whereas, the Government of Balochistan denies their claim and presumes that the unsettled land belongs to the Government of Balochistan. The question of ownership of unsettled land is a longstanding issue, which is required to be resolved, therefore, keeping in view the importance of the issue, notices were published in the newspapers for General Public. Pursuant to the general information, a number of people filed applications under Order I, Rule 10, C.P.C., bearing C.M.A. No.2423 of 2019, C.M.A. No.3249 of 2019, C.M.A. No.3290 of 2019, C.M.A. No.3291 of 2019, C.M.A. No.3407 of 2019, C.M.A. No.1840 of 2020, C.M.A.
No.2515 of 2020, C.M.A. No.2657 of 2020, C.M.A. No.2878 of 2020, C.M.A. No.3001 of 2020, C.M.A.
No.3006 of 2020 and C.M.A. No.3167 of 2020, which were allowed and all the applicants/interveners were impleaded as petitioners. Notices were issued to the learned Attorney General, who authorized Mr. Tahir Iqbal Khattak, the Assistant Attorney General to assist the Court, whereas, the learned Advocate General represented the Government of Balochistan. A "Larger Bench" has been constituted to resolve the issue once and for all. M/s. Muhammad Ishaq Nasir, Manzoor Shah and Amir Lehri, Advocates were appointed as Amicus Curiae to assist the Court. The Senior Member Board of Revenue (SMBR) and the Legal Consultant of the Government on revenue Mr. Javed Iqbal filed parawise comments through the learned Advocate General and also made their respective submissions.
2. The learned counsel for the petitioners in both the petitions 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. The learned counsel stated that the people of the indigenous tribes are occupying and utilizing the open fields as pastures and also collecting firewood stones, etc. therefrom for their benefits, despite the fact that most of the lands are unsettled, but till date, the Government raised no objection, which amounts to admission of ownership of the respective land owners concerned.
They added that most of the cultivable areas of the province are uncultivated because of non- availability of resources for cultivation and scarcity of water. According to them, most of the lands in the Province are unsettled, but still, the inhabitants of the respective areas claim ownership of the same. The learned counsel 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, because of non-compiling the record of rights by the revenue authorities, the rightful owns cannot be deprived of their ownership. The learned counsel 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 learned counsel added '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. The learned counsel contended that through presumption of truth is attached to the revenue record, but in absence whereof, proof of ownership should be based upon longstanding possession and control over the land and keeping in view the custom of the area, having a force of law. According to them, admittedly the indigenous tribes are residing for centuries and occupying and utilizing the lands in their respective areas, therefore, presumption of ownership is in favour of the land owners concerned, as provided by Section 50(2) of the LRA 1967, hence the Government cannot claim ownership of the unsettled land for the reason that there is no provision of law, entitling it so. The learned counsel added that once the Government had constituted a committee, comprising of the Ex-Speaker and Members of the Balochistan Assembly for resolution of the issue of unsettled property of Quetta, who concluded that the Government is not the owner of the unsettled lands, but despite such fact, the Government is still claiming to be its owner, which is an illegality. They in the end concluded that such act of the Government amounts to deprivation of their rights in their respective unsettled lands, which is contrary to the provisions of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan. All the interveners relied upon the arguments of the learned counsel for the petitioners.
3. Messrs Manzoor Shah, Muhammad Ishaq Nasar and Barrister Amir Lehri, learned Amicus Curiae, contended 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, rest of the British Balochistan and the State Union remained unsettled. They added that in the Gazetteers of India, facts about the unsettled lands of present Balochistan have been discussed in detail, where the Britishers did not claim ownership of the same. The learned Amicus relied upon the Land Revenue Act and the Settlement Manual.
4. Learned Advocate General, stated that most of the lands of Balochistan are unsettled and have not been recorded on the names of the landowners concerned, therefore, it shall be presumed to belong to the Government, as provided by Section 50(1) of the Land Revenue Act. He added that even otherwise, throughout the Province, huge unsettled and waste lands are lying barren and unoccupied, because there is no rightful owner or claimant of the same, therefore, according to Article 172 of the Constitution, these are unclaimed lands, which shall belong to the Government.
The learned AG contended that if the presumption of ownership is not considered in favour of the Government, it will be property-less and it will be difficult for it to execute Public Sector Development Programs (PSDP) for the amenity purposes. The learned AG stated that the Government has taken steps to resolve the issue of unsettled land and hopefully, it will be resolved soon.
5. Arguments heard and perused the record. Before dilating upon merits of the case, it would be appropriate to highlight historical background of the Province of Balochistan. In this behalf, the Balochistan Chapter of Gazetteers of India and the Settlement Manual have been relied upon. Prior to creation of Pakistan, the Province of Balochistan was divided into the territory of British Balochistan, comprising of Chagai, Quetta, Zhob, Sibi and Naseer Abad Divisions, which was under the British colonial system of Governance and the other part was Balochistan Agency, consisting of Princely States, namely Khanate of Kalat (the Premier State), Kharan, Mekran and Las-Bela, which was self-governing, but was indirectly ruled by Britishers, subject to subsidiary alliance. As compared to these two areas, Punjab, Sindh and Khyber Pakhtunkhwa were relatively well integrated into Colonial system of governance, where the district-wise land settlement was a prime concern of the Colonial administration. On the other hand, lands of the British Balochistan, the Balochistan Agency and the Provincially Administered Tribal Areas (PATA) remained unsettled, which were mostly joint and uncultivated. The tribes and sub-tribes are settled in their respective areas since centuries, who claim to be owners of these lands through their respective ancestors, having their respective shares according to their internal arrangements. Collective identity of the tribes and sub-tribes remained intact by way of having a longstanding possession and control over these lands, collecting and distributing rents and deriving benefits therefrom. Large tracks of lands are being used as grazing fields since their forefathers. In some forest regions, there were well established systems for sharing of timber royalties amongst the tribe members.
6. The British administration accepted by default, the traditional claims of collective and individual ownership of the tribes and sub-tribes by recognizing their possession and control over their respective unsettled lands. Whenever, the British administration required a land for any public purpose, they used to acquire the same from the land owners concerned, but mostly, the local tribes did not accept the findings of the acquisition, however, in some cases, the tribes accepted the acquisition of lands, subject to compensation. To give legal effect to the process of acquisition of land from the land owners and empowering the British Administration to forcibly acquire lands for public purposes, the Land Acquisition Act of 1894 was introduced and subsequently acted upon.
In this behalf, the learned counsel for the petitioners produced some documents as a precedent, showing that in the British regime, unsettled lands were acquired from time to time from different local tribes of the Balochistan Agency and the British Balochistan. Some of these lands were for the purpose of establishment of renowned Central Jail Mach, establishing railways, roads, schools, hospital and for other public purposes, despite the fact that the lands were unsettled.
7. It is a fact that before introducing settlement in the Province of Balochistan, the entire lands had no record, therefore, it is called unsettled land and in Urdu, it is called as, In British era, it was decided to conduct the settlement proceedings in the area, to prepare a record of right. In this behalf, guidelines have been provided by Section 39 of the Land Revenue Act, which is reproduced herein below: "39. Record of rights and documents included therein. (1) Save as otherwise provided by this chapter, there shall be a record-of- rights for each estate.
(2) The record of rights for an estate shall include the following documents:-
(a) Statements showing, so far as may be practicable:
(1) the persons who are land-owners, tenants or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;
(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; and
(iii) the rent, land-revenue, rates, cesses or other payments, due from and to each of those persons and Government.
(b) a statement of customs respecting rights and liabilities in the estate;
(c) a map of the estate; and
(d) such other documents as the Board of Revenues may with the previous approval of Government prescribe.
8. The main objective of the land settlement is to formalize and make a record of actual facts, recognizing ownership rights, title, interest and liabilities of the indigenous human civilization over the unsettled lands they physically possess, utilize and having control over it. Through the settlement proceedings, the authorities prepare a record of right for fiscal purposes, enabling the Government to assess revenue and taxes to be collected from the produce of the land owner concerned. The process includes preparation of pedigree of the tribes and sub-tribes, recognize and record water and grazing rights of the tribes and sub-tribes, prepare maps and demarcate lands for public purposes, such as graveyard, mosques, educational buildings and other amenities.
For the purpose of conducting the settlement, the settlement authorities also follow the principle reflected in Para-1 of Chapter-I (introductory) of the Douie's Settlement Manual which is reproduced herein below: "1. Right of State and private land-owners in land and its produce- The State has always claimed a share of the produce of the land from the person in whom it recognized a permanent right to occupy and till it or arrange for its tillage. It is needless to discuss the various ways in which this permanent title was. acquired by families or individuals; it is enough to note that the right of the ruler to his share and the right of the occupier to hold the land he cultivated and pass it on to his children both formed part of the ancient customary law of the country, however, the later might occasionally be denied in practice by an unjust Government."
Similarly, Book-II of the Manual relates to Record of Rights and its Chapter-VIII is about tenure add rights of land owners, which is being followed by the Settlement authorities, while conducting settlement proceedings.
9. Before introducing first settlement in the British Balochistan, there were three categories of lands; first the State owned lands, which were acquired either subject to compensation, through gift or subject to certain commitments with the concerned tribes; second, private owned lands and third, village common lands, however all the three categories of lands had no record, because they were unsettled. During the first settlement in the limited area of the British Balochistan, the State owned lands were recorded on the name of the British Administration, whereas the cultivated and utilized lands were recorded on the names of individual and certain common village lands were recorded as collective ownership of the members of the tribes or sub-tribes concerned, as the case may be, irrespective of the fact that these were physically unoccupied, but were under the control of the respective tribes. It is important to mention here that settlement proceedings in Punjab. Sindh and Khyber Pakhtunkhwa (KP) were conducted at large scale, much prior to conducting it in some areas of the British Balochistan. Before introducing the settlement proceedings in sister Provinces, there too, was no record, as such, their lands were also unsettled, but during the settlement proceedings, the land owners concerned of those Provinces were recorded as such and the State did not claim its ownership. This is the reason that the State has very limited lands in the sister Provinces as well.
10. After creation of Pakistan, the British Balochistan and the Balochistan Agency (the present Balochistan) merged its sovereignty into Pakistan and came under its administrative control, but the land owners did not surrender their collective or individual rights of ownership of their properties to the State, that is why, after creation of Pakistan, the lands which were recorded by the Britishers on the names of the private persons either collectively or individually, were remained on their names, whereas only the properties recorded in the name of the British Administration, were transferred on the name of Central Government and subsequently, after establishment of the Provinces, it was transferred on the name of the Provincial Government, however, still most of the lands in the Province is unsettled. It is a fact that whenever a land was required for the establishment of Government buildings for amenities purposes like District Administration Offices, Courts buildings, School buildings, hospitals and roads etc., the Federal or the Provincial Governments used to acquire the same, subject to compensation or through gift or upon certain terms and conditions from the land owners concerned, considering them as owners irrespective of the fact that the lands were settled or unsettled.
11. For a long period of time, the Government did not claim ownership of the unsettled lands, but now the Provincial Government is claiming its ownership, but the respective tribesmen do not recognize the Government's claim. In the year 1991, in some areas of Quetta, without conducting land settlement, the Government recorded certain unsettled lands in its name and thereafter, allotted some of these lands to some private persons, other than the indigenous tribesmen.
Consequently, the land owners concerned raised objections and strongly resisted the act of the Government. Considering the gravity of the resistance and protest from the people, the Government constituted a committee comprising the Ex-Speaker Balochistan Assembly, viz, Malik Sikandar Khan, Advocate as its Chairman and Mr. Muhammad Aslam Raisani, the Ex-Minister, as members, to resolve the issue, which concluded as under: 2) When in any record of rights completed after the eighteenth day of November, 1871, or the seventeenth day of July, 1879, as the case !nay be, it is not expressly provided that any forest or quarry, or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the land owners concerned.
12. The learned AG and the SMBR submitted parawise comments, alleging therein that in order to resolve the issue unsettled lands, the Government has taken up the matter, but without any decision. In the parawise comments, there is no clear stance of the Government, with regard to ownership of the unsettled lands, however, the learned AG stated that the Government is presumed to be the owner of such lands. He relied upon Section 50 of the Land Revenue Act, 19th (the LRA, 1967), which is reproduced herein below: "50. Presumption as to ownership of forests, quarries and wastelands. (1) When in any Record of Rights completed on or before the eighteenth day of November, 1871, in territories where the Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887), was, with or without modifications, in force immediately before the commencement of this Act, or completed on or before the seventeenth day of July, 1879, in territories where the Bombay Land Revenue Code, 1897, (Bombay Act V of 1879), or the Sindh Land Revenue Code, 1879 (Sindh Act V of 1879), was so in force, it is not expressly provided that any forest or quarry, or any unclaimed, unoccupied, deserted or wasteland, or any spontaneous produce or other accessory interest in land belongs to the land owners, it shall be presumed to belong to Government.
(2) When in any Record of Rights completed after the eighteenth day of November, 1871, or the seventeenth day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry, or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the land owners concerned.
(3) The presumption created by subsection (1) may be rebutted by showing--
(a) from the record of report made by the assessing officer at the time of assessment, or
(b) if the record of report is silent, then from a comparison between the assessment of villages in which there existed, and the assessme nt of village of similar character in which there did not exist, any forest or quarry, or any such land, produce or interest, that the forest, quarry, land, produce or interest was taken into account in the assessment of the land revenue.
(4) Until the presumption is so rebutted, the forest, quarry, land, produce or interest shall be held to belong to Government"
13. Section 50(1) of the LRA, 1967, speaks about two specific dates i.e. 18th day of November 1871 and 17th day of July 1879 and only in respect of the territories where the Punjab Land Revenue Act, 1887, the Bombay Land Revenue Code, 1897 and the Sindh Land Revenue Code, 1879 were so enforced.
This provision of the LRA, 1967 is time bound and pertained to limited areas, where the stated enactments were so enforced. Admittedly, by or before 18th day of November 1871 and 17th day of July 1879, none of the stated three enactments were enforced in the British Balochistan and the Balochistan Agency, therefore, the provisions of section 50 subsection (1) of the LRA, 1967 is not made applicable to the Province of Balochistan. For this reasons, while taking over charge or these two areas, the British Administration, did not claim ownership of the unsettled lands, rather accepted the indigenous tribes as owners of the same.
14. To the contrary, according to subsection (2) of section 50 of the Act, 1967, when in any record of right, completed after the 18th day of November 1871 or the 17th day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry or any such land produced or interest as aforesaid belong to Government, it shall be presumed to belongs to the landowners concerned.
Since in the areas forming part of the current Province of Balochistan, no record of right was completed on or before 18th November 1871 and 17th July 1879, as such no forest, quarry, unoccupied, deserted or waste land was recorded on the name of the Government. During the first settlement conducted in the areas farming the current Province of Balochistan, the British Administration, accepted the presumption of ownership of the unsettled lands in favour of the land owners concerned, therefore, they did not record the Government as owner of such lands.
15. After creation of Pakistan, the Pakistani Administration stepped into the shoes of the British Administration and got control of the revenue record and maintained it in a manner, as it was in the British Era. It is the responsibility of the Provincial Government to conduct settlement proceedings periodically, as provided by the LRA, 1967 and the Settlement Manual, but the needful has not been done, resultantly, almost 90% of the lands of the Province are still unsettled. Had the record of right been prepared periodically and in time, the issue of unsettled land could have been resolved in accordance with the provisions of Section 50(2) of the LRA 1967, keeping in view the Customary Law and usage, on the basis whereof, the tribesmen would have been recorded as owners. This fact has also been thoroughly discussed by the committee in its report referred to herein above.
16. Articles 23, 24, 172 and 173 of the Constitution of the Islamic Republic of Pakistan deal with the proprietary rights of a citizen. Giving effect to these Constitutional provisions, there are various laws that regulate ownership, transfer, acquisition and registration of immovable property. None of these laws recognize the Federal or the Provincial Government as owner of the unsettled lands. It is important to mention here that the United Nations General Assembly has mandated to promote socially and environmentally sustainable towns and cities with the goal of providing adequate shelter for all. For this purpose, the UN Agency namely, UN-Habitat, carried out detailed research with the assistance of the Government officials and has prepared documents in the year 2011 and 2012 respectively with the name and title, 'A GUAID ON LAND AND PROPERTY RIGHT IN PAKISTAN'.
These documents provide the basic understanding of the principles of the Pakistani land and revenue administration system, including the right of its ownership. It is an exhaustive document covering history of land administration, law regulating property rights, land record, structure of land administration, sources of acquisition of properties, rights of its transfer, duties and responsibilities of revenue and settlement authorities. It also contains a detail about land reforms introduced in the Country from time to time. "Guide on Land and Property Right in Pakistan", is therefore, an authentic document, prepared by an independent Agency of United Nation (UN), but it also did not collect any evidence or law to recognize the Government, as owner of the unsettled lands.
17. One of the main stance of the learned AG is that, in absence of documentary proof, the unsettled property shall he considered as ownerless property, which shall vest in the Government, as provided by Article 172 of the Constitution, which is reproduced herein below: "172. Ownerless property. (1) Any property which has no rightful owner shall if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.
(2) All lands, minerals and other things of value within the continental shelf or underlying the ocean beyond the territorial waters of Pakistan shall vest in the Federal Government.
(3) Subject to the existing commitments and obligations, mineral oil and natural gas within the Province or the territorial waters adjacent thereto shall vest jointly and equally in that Province and the Federal Government"
This Article relates to the law of escheat, on the basis of which, the Government becomes owner of the property, which has no rightful owner. Escheat has been defined in the Cambridge dictionary as "a situation in which, property or money becomes the property of the State, if the owner dies without a will (an official statement of what should happen to their property) and without legal heirs (a person who can receive property or money from someone who dies):" According to this definition, the property or money, for which no owner can be found, it becomes the property of the State by transferring to it by escheat. Thus, any property which is unclaimed because of death or disappearance of its owner, leaving behind no legal heir, his/her property passes to the Government concerned, after declaring it as ownerless.
18. Though most of the properties in the province are unsettled, having no document or record of right, but still the indigenous tribes and sub-tribes who are residing there since centuries, are claiming to be its owners by way of inheritance. By not conducting settlement in the area, naturally the landowners concerned will have no documentary proof, for which, they cannot be held responsible, hence cannot be deprived of their rights. In Article 172 of the Constitution, the words 'rightful owner' have been used, which means a person having a just or legally established claim, which can be either in the form of document or in case there is no record of right, longstanding possession or control over the land is a prima facie just and legally acceptable proof of ownership.
Admittedly, most of the lands in the Province are unsettled, therefore, there is no document to prove ownership. For arguments sake, if documents are believed to be the only source of proof of ownership, then such principle is equally applicable to the Government. Under such circumstances, other sources of evidence shall be acceptable to prove ownership of such land. In absence of a record of right, longstanding possession and control of the tribes or sub-tribes over the undocumented unsettled lands give a good legitimate title to them against the Government, on the basis whereof, they claim to be owners of the same. 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 Articles 23 and 24 of the Constitution.
19. It is important to mention here that whenever a dispute arose amongst the inhabitants of the tribes or between two or more tribes, they used to get the services of the strongest systems of alternate dispute resolution called "Arbitration", for resolution of their dispute, which is successful in resolving most of the land disputes. They also invoke the jurisdiction of the Courts established during the British Era and also of the Courts of the Country, which accepted the informal documents and other sources, as proof of ownership. Most of the claims of the landowners are based on collective possession and control over the unsettled lands, since their forefathers, as a strong proof of ownership. Different Courts of law accepted such proof, despite the fact that the subject matter of those suits were unsettled lands. In this behalf, this Court decided the status of the unsettled lands in different cases, some of them are as under:
(1) In the case titled Mir Muhammad Nawaz v. Mewand Rifles Kohlu, this Court in C.P. No.90 of 1987 held on 1st August 1998 as under: "9. There is not an iota of evidence placed on record to indicate that the lands which were allotted to respondent No.1 belonged to the Government. It is also an admitted position that the lands in dispute were unsettled (bila pemooda). The learned AG failed to refer to any law by dint of which bila pemooda should necessarily belong to the Government---"
(2) In the case titled Deputy Commissioner cum Collector Kalat v. Haji Baran Khan, this Court in Civil Revision Petition No.220 of 1989, held on 10.11.1991 as under: "13. Now proceeding to deal with the main legal objection regarding entitlement of the Government. Learned Advocate relying on Article 172 of the Constitution of Islamic Republic of Pakistan, 1973 urged that any property which has no righul owner, shall if located in a province vest in the Provincial Government and in every other case in the Federal Government Being unsettled land therefore said land escheats to the State.
14. It may be pointed out that according to plaint the land has been in continuous possession of the plaintiff/respondent and is surrounded by lands belonging to the patidars of the area. Simply because of the fact that the land was not settled during the settlement operation, therefore, it should ipso facto belong to the Government is a contention which has no force in the eye of law. It is now well settled that entries in the revenue record create presumptions which are rebuttable without challenge before competent court of civil jurisdiction. Reference if at all necessary may be made to the case of Muhammad Hussain v. Ghazi and 2 others (PLD 1972 Quetta 47). However in this case admittedly the land has not been settled even in favour of the Government because it was left unsettled. Therefore, mere assertion that this was a Banjer land hence it belong to the Government in view of section 50(1) of Land Revenue Act, 1967 can not be accepted. In fact section 50 subsection (2) is clear that when in any records of rights it is not expressly provided that any forest or quarry or any such land, produce or interest as aforesaid, belongs to the Government, it shall be presumed to belong to the land-owners concerned. In any case these provisions do not apply because the land in dispute is not entered in the name of any of the parties in the revenue record. However, Government claims the same on the strength that it being a barren land should belong to the Government."
(3) In the case titled Rahim Khan v. Station Commander 5th Zhob, this Court in Civil Misc: Appeal No.18 of 2009, held on September 2018, as under:
7. I have heard the learned counsel for the parties and have gone through the record. On the basis of the material available on the record, the following points are framed for determination of the appeal: What is the locus-standi of the appellants to file the suit in respect of the property in question?
What is the status of the respondents, with regard to the land in question? And whether they can restrain the appellants the inhabitants of the area from using the land?
The appellants claim to be owners in occupation of the property in question, on the basis whereof, they have filed the present suit During the pendency of this appeal, a Civil Misc: Application bearing No.536 of 2010 was filed by an intervener, which was allowed on 5th of November 2015. In the application the intervener alleged that this is a huge and joint property, which belonged to one Khud-ae-Nazar, who was the predecessor of the appellants, the intervener and others, upon whom, the properly in question has been devolved. Admittedly, settlement of the area has not been conducted by the revenue authorities, therefore, there is no revenue record of the land in question. However, the documents available on the record would reveal that previously some litigations were carried amongst the inhabitant of the areas and between the appellants and the respondents, from time to time and some of these litigation pertains to a period, before the creation of Pakistan. Facts and circumstances prove that the land is being claimed by the appellants, the intervener and several others and they are occupying the same as well. Though the Government did not conduct a settlement proceeding in the area to maintain a record, but it does not dis-entitled a person to be owner of an unsettled property. If he/she proves his/her ownership through other sources or evidence, such claim of an ownership and entitlement shall not be disbelived merely because of non-availability of revenue documents. The evidence and the documents available on the record would shows that a large portion of the property has been occupied by a number of people of the area, including the appellants and the intervener. It is established that several houses, official and religious buildings are built thereon for decades. The open area is being used as pasture and for other beneficial purposes by the people of the areas.
Under such circumstances, if an owner or occupier of the land in question has any grievance, he/she can approach a competent court of law. Since the appellants have claimed to be owners in possession of the property in question and alleged their grievance of interference by the hands of the respondents, therefore, they have a locus-standi to file this suit"
20. Without prejudice to above, one of the arguments on behalf of the Government is that how such a large track of unsettled and unoccupied lands can be owned by the land owners concerned. It is to be noted that the area of the Province of Balochistan is more than 43% of Pakistan, which consist upon mountains, residential and agriculture lands, grazing fields, collecting fire woods for energy purposes and stones for the purpose of construction of houses there from. Out of these large tracks, a limited area is used for cultivation, residential and commercial purposes. Most of the cultivable lands are uncultivated because of scarcity of water, lack of human and financial resources; however, limited areas are cultivated through the irrigation system of underground water or through rainwater. Similarly, most of the areas are undeveloped, because the same are joint, which the inhabitants of the concerned areas partition gradually, as per their requirements and their internal arrangements, in accordance with the custom. The major source of income of the people of Balochistan is livestock, for which, large grazing field are demarcated amongst the indigenous tribes and sub-tribes who are residing over there for centuries, since their forefathers.
Boundaries between the adjoining villages are specified and no one interfere in the territories of others. People honour this established custom and traditional and widely accept principle of collective and individual ownership. These are the reasons that the landowners are claiming to be the owners of such a large track of unsettled lands, which have no comparison with the lands of big and developed cities. However, some of the common unsettled lands gained a little bit importance by lapse of time and because of increase in the population, therefore, such lands have been converted by the landowners concerned into residential or for a limited commercial use.
Articles 23 and 24 of the Constitution gives right to every citizen of Pakistan to acquire, hold and dispose of property in any part of Pakistan, therefore, no person shall be deprived of this property, save in accordance with law. There is no bar under the Constitution or under any law of the Country to acquire, hold or dispose of nor is there any restriction upon number or size of a property, therefore, having a large track of lands from their predecessors, does not disentitle any citizen or community from his/their property.
21. In view of the above discussion and keeping in view the dictum laid down in the above referred judgments, since most of the unsettled lands are being claimed by the landowners concerned, therefore, having rightful owners, these cannot be considered as ownerless properties, rather the inhabitants of different tribes and sub-tribes are presumed to be owners of their respective lands.
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.
Thus, in view of above, it is held as under: a) Presumption of ownership, as provided by Section 50 subsection (2) of the LRA, 1967 with regard to the unsettled land is in favour of the land owners concerned. b) The Government should conduct settlement proceedings to prepare record of right and to continue settlement proceedings periodically, in accordance with law. c) The Government can frame policies, introduce land reforms and make enactments to deal with land issues, accordingly. d) This judgment shall have no effect upon past and closed transactions. The petitions are disposed of in the above terms.