ISLAMABAD   -  The Supreme Court on Wednesday referred the land disputes near Indian border areas to Border Area Committee (BAC) and directed the committee to decide the matters afresh within a year in accordance with law after hearing the allottees.

A three-judge bench headed by acting Chief Justice Gulzar Ahmed took up appeals filed by allottees against cancellation of NOCs to more than 20 allottees for hearing.

During the course of hearing, Acting Chief Justice Gulzar Ahmed in his remarks said that the border areas are sensitive and an ordinary person could do anything if he is allowed to settle in border area. Justice Ahmed further told the counsel for BAC that the committee has to determine the limits of area.  He further observed that the committee must look into the issue and decide the matter on merits.

“Even if authorities want to declare such area as buffer zone then they can do so because border area is a sensitive location,” Acting Chief Justice Ahmed further remarked.

During the hearing, when one of the affected persons objected, the acting Chief Justice asked him what he will do if war started someday. On this, the person responded that he along with other affected persons were present there during 1965 and 1971 war. He said that they will fight against Indian Army adding he himself is a retired army officer. He further argued that he purchased a land but it was not allotted.

Chairman Border Area Committee (BAC) in its report on the issue stated that major deviation in policies regarding border area will have serious national security repercussions and comprehensive policies were passed to eliminate Indian spy agents.

“Recent arrest of Indian Pilot (Abhinandan Varthaman) in the Border Area vindicates the very object of settlement of ex-soldiers, stalwarts in “the sensitive area”, which is the prime consideration/ theme of Indo-Pak Border Scheme adopted in the said regulation,” the Chairman BAC in its 14-page reply stated.

The top court on February 7 of 2019 while hearing more than 20 appeals of land dispute near border area had posed legal questions and directed the BAC to submit the reply.

The reply stated that Article 23 gives every citizen the right to acquire, hold and dispose of property in any part of Pakistan but subject to the Constitution and any reasonable restrictions imposed by law in the public interest.

“It is highlighted that there are specific reasons to transfer State/ Evacuee/ Evacuee Trust lands within border belt of 5 Miles/8.1 Kms to GHQ under Martial Law Regulation -9 (MLR-0) of 1959 and duly validate vide Article 225 (1) of the Constitution of Islamic Republic of Pakistan 1962 and Articles 268 and 269 of the Constitution of Islamic Republic of Pakistan 1973,” it added.

It said, “The reasonable restriction has to be seen in the larger context of National Interest/ National Security Interest/ Public Interest”.

It added that the public interest is supreme than the private interest and it has to be preferred over property interest even to the extent of their destruction when necessary.

The land involved in the cases in hand is situated within the 5 miles of the Indo-Pak Border Area.  The Central Government framed a Scheme in the year 1961 namely ‘Scheme for determination of price, terms and conditions for the allotment of land under MLR 9 Zone B’.

The theme and purpose of allotments was to make a 1st line of defence in the border area by means of permanent settlement of serving and retired army personnel which is evident from the Schedule III of the said regulation.

It is also highlighted that in the previous and recent escalations, the inhabitants of border belt/ sensitive areas are always the first responder as presence of Regular Force is not possible on every inch of ground.

Since, prohibition on alienation was there and no penalty was fixed in MLR-9/ Scheme of 1961, therefore, number of allottees sold the allotted lands without obtaining necessary permission, which frustrated the entire theme/purpose of the said Regulation.

“Undesirable elements/ individuals/ persons settled in Border Area who passed sensitive information before, during and after Wars of 1965 and 1971, RAW elements and Indian Agents were present in abundance. To mitigate the effects of such a situation along with the entire border, GHQ reviewed the Policies of Border Area. Resultantly, comprehensive instructions and orders were passed to ensure National Security of the country.”

The reply further stated that the allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Head Quarters.

It added that the West Pakistan Border Area Regulation 1959 has also been validated by the Superior Courts.

From the facts and circumstances it becomes clear that the right to acquire, hold and dispose of property in the Border Belt is subject to the restrictions imposed by the Special Law which was promulgated with the purpose to strengthen the Border Area, the most important and hyper sensitive area having pivotal role in the National Security.

It is submitted that the West Pakistan Border Area Regulation 1959 (Punjab Amendment) Ordinance 1981 was issued on January 28, 1981 and all the appellants purchased land after the promulgation of the said ordinance between 19 May 1984 to 10 August 2004.

After the enforcement of the said ordinance, all allottees and transferees are and were obliged to abide by the condition of NOC and the said Ordinance is applicable on all the allottees irrespective of the date of allotment.

All Border Area Lands were transferred to GHQ duly validated by in the Constitution and government policies issued from time to time. “There are specific National Security purposes of transferring the border land to GHQ.”

“Settlement of undesirable persons can jeopardise the Security of the State along border. In ongoing Hybrid War any settlement of undesirable elements in border belt even during peace time can accentuate the threat manifold.”

“Hostile Intelligence Agencies continuously make an utmost effort to exploit the border areas and try to establish covert basis. NOC is the only mean available to check/deny ingress in border areas to agents of adversaries. Abolishment of NOC will serve the purpose of adversaries.”