Land Reforms: History, Legal issues & Future

Introduction
a. The politics of land reform have always been tenuous in this country, the populist rhetoric very much opposed to the reality.
It has the support of a large segment of the public who view abolition of large land holdings as a big step towards social
progress.
b. Land Reform has always been a very popular slogan, especially amongst the urban upper middle and middle classes in whose
view feudalism alone is the biggest problem that this country faces; but while advocating for such a change, they ignore the
historical realities and legal problems that land reforms face.
c. This is merely populist rhetoric that aims to please the urban masses that already have a skewed and outdated view of what
defines feudalism and how it should be appropriately tackled and ignores the bigger legal problems that challenge land
reforms.
d. Land reform, as it has been classically understood in Pakistan is very much a complex legal issue that faces innumerable
legal challenges, the most important of which is the fact that ceiling on land holdings and various other land reform measures
have been declared un-Islamic and therefore unconstitutional by the Shariat Appellate Bench of the Supreme Court of
Pakistan in the famous Qazalbash Waqf case. The court termed the imposition of any ceiling on land holdings as repugnant
to the injunctions of Islam and declared previous legislations as bad law.
e. Moreover, it is necessary to look at the history of land reforms and see that Ayub Khans reforms were not the first and not
revolutionary at all. One must also realize that East Pakistan, where landlords were historically weak in comparison to Weak
Pakistan, pursued land tenure and tenancy reforms soon after Independence and empowered the peasants. In light of history,
political realities and judicial decisions, the future of land reforms looks weak.
History
a. There is no need to go into the historical perspective of how the landed aristocracy was solidified by the British Raj in order
to cement its control in the region and rule the canal colonies.
b. The system existed since the Mughal Era, however the nature of the contract between the state and the zamindar was much
different.
c. Skipping major portions of what happened and how it happened, the landed aristocracy practiced executive, judicial and
revenue duties for the colonial government in exchange for land grants and its right to rule the people.
d. At the time of Independence, the first government review of land and tenure reforms was tackled in the province of Sind.
Constituted by the Government of Sind in March 1947.
e. Government Haaari Enquiry Committee (1947-48) declared that the problems of Haaaris were of the their own creation or
natural problems or government neglect, the landlord (jagirdar, zamindar, sardar, etc) was in fact a friend of the haaari and
land reforms were deemed undesirable and even a loss for the haaari.
f. The Pakistan Muslim League constituted a five member committee, headed by Mian Mumtaz Khan Daultana, in February
1949 to recommend necessary actions that must be taken in order to bring drastic changes to the existing system of land
tenure.
g. The committee presented its report in June 1949, often called the Agrarian Reforms Committee. It proposed short term
measures ranging from security of tenure, abolition of jagir and inam, reduced share of owner from share croppers and
abolition of occupancy tenancies. The long term measures proposed included restriction on large land ownership and
expropriation of excess land to cultivating tenants with compensation. The report suggested seek adjustments of the social
structure in an evolutionary rather than violent manner in other words, ceiling on land holdings was too drastic and should
be avoided, a classic attempt at trying to appease both the masses and its party members from West Pakistan most of whom
had large land holdings. The recommendation on land holdings to be implemented at a later time was 150 acres for
irrigated and 450 acres for un-irrigated land and the committee was undecided on the issue of land redistribution, proposing
three alternatives.
h. Keeping in line with the short term measures proposed, The Provincial Tenancy Acts (1950) were implemented in Sind,
Punjab and NWFP between 1950 and 1952 although did very little to alleviate the problems of the farmers. Note that
nothing was done to help the farmers of Baluchistan and the princely states (Bahawalpur, Khairpur, etc.). Later, the First
Five Year Plan of 1955-1960 proposed similar land holding ceilings, again never to see the light of day.
i. In East Begal (later East Pakistan) however, land reforms were taken to task just after independence in contrast to West
Pakistan. The East Bengal Land Acquisition and Tenancy Act, 1950 abolished rent receiving interests between cultivating
tenants and the state, transformed tenants into owners, forbade subletting and fixed the ceiling of self-cultivated land at 33
acres. Moderate compensation was paid to the landowners. Armed with a ruling class of mostly urban professionals and a
very much progressive political environment in contrast to West Pakistan, not surprisingly the landed class became extinct in
East Bengal within a few years.
j. Not surprisingly then, in the Second Constituent Assembly (1955-56), none of the 40 East Pakistan representatives were
landlords compare to 28 from West Pakistan (70 percent).
Ayub Khans reforms
a. The first of our self-styled savior generals also disliked the notion of feudalism. A commission was set up present
recommendations and it presented its report within three months of the military takeover in January, 1959.
b. Recommendations included:- A ceiling of 500 acres for irrigated and 1000 acres for un-irrigated land be imposed with due
compensation to owners. Land was to be redistributed amongst to tenants already cultivating the land. Abolition of Jagirs
which had already been abolished in Punjab and NWFP in 1950. However, the 1.1 million acres of Jagirs in Sind were
abolished alongwith 150 and 258 acres in Bahawalpur and Balochistan respectively. Permanent proprietary rights for
occupancy tenants. Idea of economic holdings and subsistence holdings of no less than 50 acres was proposed in order to
consolidate holdings.
Zulfiqar Ali Bhutto and Land Reforms
a. Riding a wave of socialism, a feudal lord from Sind came into power after the country split into two. As the Civilian Martial
Law Administrator (CMLA) and then President, he promulgated on March 1, 1972, Martial Law Regulation No. 115 of 1972,
often called Land Reforms Regulation 1972.
b. The ceiling on land holdings was lowered to 150 and 300 acres from irrigated an un-irrigated land respectively, down from
the 500 and 1000 imposed earlier.
c. No compensation was to be given to the land owners. Exemptions for orchards, stud farms, etc. were abolished.
d. The reforms failed to produce the expected results and a second wave of reforms were introduced through the Land Reforms
Ordinance, 1977 (Ordinance II of 1977) on January 5, 1977.
e. Ceiling on land holdings was reduced to 100 acres for irrigated land and 200 acres for un-irrigated land, this time
compensation was to be given to the landowners.
Major Differences between 1959 Reforms, 1972 Reforms and 1977 reforms
1. Differences in land ceilings varying by region due to the concept of PIU (Produce Index Units) Overall 500/100 acres vs.
150/300 vs. 100/200.
2. Owners of expropriated excess land received compensation through non-negotiable, non-transferable but heritable bonds vs.
no compensation vs. compensation in the form of bonds
3. Beneficiaries to pay Rs. 8 per PIU vs. no charges vs. no charges
4. Exemptions for orchards, stud farms abolished by 1972 reforms and exemptions for religious holdings (waqf) abolished in
1977.
5. Income tax on agriculture was introduced in 1977 (exemptions for small holdings)
Effect of the 1972 and 1977 reforms
a. Under the 1972 reform, 1.3 million acres of land was resumed and 0.9 million of that was distributed amongst 76,000
beneficiaries. Under the 1977 reform, another 1.8 million acres of land was resumed of which 0.9 million acres was
distributed amongst 13,143 beneficiaries.
b. The reforms did not yield the expected results due to a variety of reasons.
c. The commonly held view that it somehow failed merely due to the lack of application of the law
d. The lack of meaningful reform in Sind affirms this viewpoint (average land holding in Punjab had come down to 466 acres
compared to 566 acres in Sind both in violation of the ceiling imposed).
e. In Punjab, only 42% of the holdings in excess of the ceilings were taken over compared to 59% in Sind.
f. However, still 30% of the nations farm lands were owned by less than 0.5% percent of the population.
g. Meanwhile, wage laborers in rural areas had become a burning socio-economic issue. Needless to say, the reforms did not
radically change the nature of land tenure in the Pakistan in practice, however it infuriated the landed aristocracy who were
up in arms over the issue and the 1977 abolition of exemption to religious holdings sent the religio-political groups running
around with their slogans against land reforms.
Legal Problems and the fate of Land Reforms
a. On 5 July 1977, the third of our martial saviours, Muhammad Zia ul Haq overthrew the government of Zulfiqar Ali Bhutto.
He brought with him the notion of Islamization and pursued his goal of Islamization of the countries laws. Muhammad Zia ul
Haqs Islamization created the Federal Shariat Court (FSC) for the first time, its aim being to review whether a law is
repugnant to the injunctions of Islam.
b. Qazalbash Waqf banged the doors of the then created Shariat Benches in the High Courts and Supreme Court (FSC was
constituted on June 26, 1980).
c. In total, 67 Shariat petitions were filed in various courts challenging the land reform, the FSC started hearing the cases and
delivered its judgment on December 13, 1980 in the case of Muhammad Ameen v. Islamic Republic of Pakistan . The court
held that courts did not have the power to declare anything declared valid by the constitution as invalid or repugnant to the
injunctions of Islam.
d. Haji Niamatullah v. NWFP Government the Peshawar High Court declared ceiling on land holdings as un-Islamic that laws
providing for the states regulation of land, including pre-emption rights for tenants, ceilings on landownership, and the
resumption of lands by the state for public use, were not wholly prohibited by Islam.
e. Later in 1986, pre-emption claims were deemed un-Islamic in Government of NWFP v. Said Kemal Shah, Punjab Pre-
emption Act, 1913 the NWFP Pre-emption Act, 1950 and Section 25 of MLR 115 were declared un-Islamic and would
cease to have legal effect on 31 July 1986.
f. The legal history concluded with the ultimate and landmark judgment of the Shariat Appellate Bench of the Supreme Court
of Pakistan in the (Qazalbash Waqf v. State). The lead judgment has been penned down by Mufti Muhammad Taqi Usmani.
Arguing that the land reform legislations were repugnant to the injunctions of Islam.
g. Later In Maqbool Ahmad v. Government of Pakistan, Limitation Act 1908 was declared un-Islamic as well.
The future of land reforms
a. In the mode of the classical application of land reforms vis a vis ceiling on land holdings, the door for reform is pretty much
closed unless the state wishes to undertake the thorny issue of the nature of land ownership at the time of Independence.
b. Fact is that the use of Islamic notion of social welfare no longer is applicable in order to justify state intervention in property
rights of individuals.
c. It is a known fact that modern property laws were introduced and recognized in this region by the British by virtue of the
capacity of the local individuals to extract revenue for the colonial state.
d. If one is to review that situation and perhaps deem land granted by British as illegitimately acquired owing to their shady
origins, then one is looking at a wholly different scenario. That will also raise questions as to whether land grants post-
Independence in the form of huge agricultural and urban land grants largely to military officers, but to bureaucrats and other
state functionaries as well are illegitimately acquired. Certainly, this is far from realizable. However, it still remains a
possibility for future legislators.
e. Another possibility that lays at the doors of the legislators, is to review the existence of the Federal Shariat Court (and the
Shariat Appellate Bench) itself and there-after re-introduce legislation along the lines of the 72 and 77 reforms. Certainly,
this too is a non-realizable one at least in the short term considering the power of the religious groups and the right wing,
both street power and their vocal power. If such a radical step were to be taken, it would not be surprising that the legislators
would be declared enemies of Islam, traitors, agents and the usual labels.
f. The door for land reforms is not close, yet, but there are huge challenges in pursuing such an agenda.