1984 PLP 1036 (SCMR)

Mian Nazir Akhtar, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing : 12th November, 1983. M.S.H QURAISHI, J.‑The petitioners in these petitions had claimed ownership of the lands and pastures (charagahs) in question, situate in the former State of Chitral. As the petitioners had admittedly been paying "qalang" regularly, the Dir, Swat and Chitral Land Disputes Enquiry Commission constituted by the Government of the N ‑W. F. P., recommen ded that the petitioners be treated as tenants who should pay rent at the rate of 2/5th of the produce for irrigated and 1/4th for unirrigated land to the contesting respondents while the charagahs be treated as State pro perty and qalang paid on charagahs be abolished The petitioners claiming their ownership of the lands preferred appeals but the same were dismissed by the Additional Deputy Commissioner, Chitral, and the recommendations of the Commissioners were upheld. The petitioners moved the Government in revision but the same too having failed on 13‑5‑1982, they invoked the con stitutional jurisdiction of the Peshawar High Court. Their case was that they were owners of the land, that the general public in Chitral State had been subjected to three types of services to the ruling family, that is, (1) "Begar" (2) service as bodyguard, and (3) payment of qalang, which were all in the shape of tax on the general public, that Qalang was directly paid to the State and deposited in the State treasury and that there was no proof on record that rent was due in respect of any of the lands, in dispute. Another ground taken was that the petitioners also paid Usher to the State which under the Islamic laws is payable by the owner and not the tenant. The learned Judges of the High Court, however, dismissed the petitions in limine by the impugned order dated 21‑2‑1983, holding that the petitioners had failed to prove their ownership of the land in dispute, that they had also failed to point out any material on record to show that they were not tenants under the contesting respondents, particularly when "they were paying Qalang to respondents 1 and 2 in the capacity of tenants".

3. The Dir, Swat and Chitral Land Disputes Enquiry Commission went into the question of the status of holders of land who were paying qalang. They found that "the ruling family claim that all lands in the State belonged to the ruler who could transfer them to whomsoever he liked", that "the Mehtar for all practical purposes exercised full powers with regard to all lands", that "there is no Batai system in Chitral. Only services were rendered or Qalang was paid by a tenant for holding an owner's land", that in some areas qalang was paid by persons in the form of ghee and goats etc. for grazing of cattle in the pastures and for cultivating lands with which pastures are interspersed, who are known as Qalangi tenants while in some areas the tenants instead of paying rent in any form rendered service to the landlord and were known as khidmati tenants. The Commission further found that in some area the land was given on lease for cash rent but this was not a common practice. In dealing with the claim of the tenants to ownership, the Commission observed : "The majority of the tenants asserted their claims to ownership. Even those, who paid Qalang asserted that they were paying Qalang in lieu of `begar' and since the `begar' had been abolished they were no longer liable to pay Qalang. This of course was an unwarranted conclusion. There is no doubt that the majority of tenants (particularly in the Qalangi areas) had remained in possession of their lands for generations and they believed that their continuous long possession would justify their claims to ownership. In making recommendation, however, the Commission bad to take many factors into consideration besides long possession as lapse of time alone cannot entitle anyone to rights of ownership or even occupancy rights." 4. "Qalang" according to Henry Walter Bellew's "Dictionary of the Pukkhto or Pukshto language", means "Revenue, tax". The term has also been defined, according to submission of learned counsel, in "Dictionary of Pukshto Language" by Captain H. G. Raverty as "Land tax, revenue, tax, in general". From this it has been argued that qalang is in the nature of land‑revenue or tax the payment of which is characteristic of owner Tip and that in any case qalang was neither rent nor batai. In this conviction it was submitted that the Commission had no material basis upon which to justify its view that the payment of qalang was in the nature of rent. Further, the fact that the payment was also being made direct to the State was not compatible with tenancy.

5. The points raised require to be examined in some depth. Leave to appeal is, therefore, granted in all the three petitions. Security shall be in the sum of Rs. 1,000 in each petition. S. Q. Leave granted.