IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT HYDERABAD

CP.No.D-451 of 2016

Ghulam Ali S/o. Kamal Khan Leghari

Vs.
Province of Sindh & others

Before: SALAHUDDIN PANHWAR, J

ADNAN IQBAL CHAUDHRY, J

Petitioner : through M/s. Ali Ahmed Palh and Abdul

Sattar Sarki, Advocates.

Respondent: through Mr. Allah Bachayo Soomro,

Addl. A.G. Sindh.

Amicus curia: M/s. Jhamat Jethanand, Muhammad

Suleman Dahri, Jawad Ali Sahar.

Date of hearing: 30.07.2019.

Date of announcement : 01. 10.2019

JUDGMENT

SALAHUDDIN PANHWAR, J:- Petitioner has invoked constitutional

jurisdiction of this Court by filing captioned petition and has prayed that:

a) Direct the Respondents No.1 to 4 to take necessary actions for

recovery of the possession of land as the Petitioner
/Tenant/HARI was forcibly evicted by the Zamindar Mumtaz
Ali Junejo and his brothers without adopting the legal
procedure laid down in Tenancy Act and take stern legal action
against them in accordance with law.

b) Direct the Respondents No.5 to 7 to provide due protection to

the Petitioner and his family members and Respondents may
also be restrained from implicating or detaining the Petitioner
and his family members in any false case on behest of
Respondents No.8 to 13 and treat them as respectable citizens of
Pakistan as guaranteed in the Constitution of Islamic Republic
of Pakistan, 1973 and no any case be register against the
Petitioner or his other family members without prior permission
of this Honourable Court.

c) To direct the Respondents No.7 to 13 to restore the properties to

the Petitioner and his other family members, allowing them to
live in their respective houses with assurance that they would
not be harassed in any way.

d) Any other relief (s) which this Honourable Court deems fit, just
and proper may be awarded in favour of the Petitioner.
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2. Briefly, relevant facts, as set out in this petition, are that the

Petitioner was cultivating agricultural land of Zameendar Leemon Khan

Junejo as a Tenant/‖HARI‖ since last 35 years, where his pacca houses

were constructed. After the death of Leemon Khan, the tenancy/Harpship

continued with his sons Mumtaz Ali and others, but since last 32 years

Mumtaz Ali did not settle the accounts with Petitioner, however, some

neckmards were appointed to settle the account of Petitioner. Thereafter,

an amount of Rs.26,17,871/- were calculated as an outstanding amount by

neckmards to be paid to the Petitioner by the Zamindar Mumtaz Ali and

his other brothers. However, when Petitioner demanded above mentioned

amount from Mumtaz Ali, he became annoyed and directed the Petitioner

to vacate the said land as he intended to arrange another HARI/tenant in

place of Petitioner. Petitioner has made application before Assistant

Commissioner/Tenancy Tribunal Sinjhoro on 20.11.2013, but nothing

happened. Thereafter, Petitioner again made application before Assistant

Commissioner/Tenancy Tribunal Sinjhoro on dated 20.08.2014 and finally he

passed order dated 08.09.2014 declaring the Petitioner as a permanent tenant of

Zamindar Mumtaz Ali and Mumtaz Ali was restrained from evicting the

Petitioner from his lands. After passing of order dated 08.9.2014 by Assistant

Commissioner/Tenancy Tribunal Sinjhoro whereby he restored the

harpship of Petitioner, Zameendars Mumtaz Ali and his other brothers

became annoyed; that due to not settlement of accounts, Petitioner also

filed tenancy Appeal No.44/2014 before Additional Commissioner

Sanghar; that on 03.01.2015 due to said annoyance Zamindar Mumtaz Ali,

his relatives and brothers duly armed with weapons made firing in order

to dispossess the Petitioner and his family members from land and also

gave threats that if petitioner will not vacate the house from their land

they will have to face dire consequence; that the Petitioner filed
 3

Application for registration of FIR before Sessions Judge Sanghar and

after passing of order, Petitioner lodged FIR No.07/2015 of P.S Sinjhoro

but police of Sinjhoro malafidely conducted investigation of case under

the influence of private Respondents and FIR was disposed of under ‗B'

Class; that on 25.1.2015, Petitioner along with his other family members

was sleeping, at night time 5.00 there was firing in all four corners of the

house of the petitioner and private Respondents entered inside the house

of petitioner by making firing with deadly weapons with intention to kill

them, and fortunately petitioners saved themselves from the clutches of

the cruel Zamindar; that meanwhile Mumtaz Junejo and Ejaz Junejo set fire

to Lorho (hedge) surrounded to the house of Petitioner and resultantly

Lorho (hedge) and shelter of cattle became ash; that meanwhile 30 persons

were standing outside came inside they also harassed and illegally

detained Petitioner and his family members, thereafter Mumtaz Ali Junejo

and other respondents took away household articles and cattle from the

house of the petitioner forcibly; that the women folk prayed mercy in the

name of Allah & Rasool upon which they expelled them from houses,

petitioner and his family stayed outside under open sky and on the same

day Mumtaz demolished their pacca houses, taken away remaining

articles from houses and ply Tractor on Harp land; that Petitioner and his

family members approached local Police but nothing happened; that same

news were also published in different newspapers and some social and

political parties also condemned it and recorded protest against the

Zamindar Mumtaz Ali Junejo and other respondents; that Petitioner‘s son

submitted application for registration of FIR in the court of District and

Sessions Judge Sanghar and the court passed order for registration of FIR.

Petitioner‘s son lodged FIR No.9/2015 of PS Sinjhoro but police of Sinjhoro

malafidely conducted investigation of case under the influence of private

 4

Respondents and FIR was disposed of under ―B‖ Class; that thereafter

direct complaint was filed but the police is fully supporting the Zamindar

Mumtaz Ali Junejo and his accomplices; that during pendency of tenancy

Appeal No.44/2014 before Additional Commissioner Sanghar, petitioner

submitted application for restoration of HARPSHIP/Tenancy as he was

illegally dispossessed by the Zamindar without giving any notice; that

Additional Commissioner Sanghar sent office letter

No.REV/DC/SGR/4l3/OF 2015 Sanghar dated 27.05.2015 to the

Mukhtiarkar (Revenue) Sinjhoro and ordered him to restrain Zamindar

Mumtaz Ali Junejo from evicting the Petitioner, but due to high

influencing of Zamindar Mumtaz Ali Junejo, nothing happened; that on

08.09.2015 Additional Commissioner Sanghar/Additional Collector-I

Sanghar, dismissed the tenancy Appeal No.44/2014; that on 30.10.2015

Petitioner again submitted application before the Additional

Commissioner Sanghar/Additional Collector-I Sanghar for restoration of

HARPSHIP/Tenancy as he was illegally dispossessed by the Zamindar

without giving any notice; that Additional Commissioner Sanghar sent

his letter No.REV/DC/SGR/0853 of 2016 Sanghar dated 11.02.2016 to the

Assistant Commissioner/Tenancy Tribunal Singhoro and ordered him to

restrain Zamindar Mumtaz Ali Junejo from evicting the Petitioner forcibly

without adopting the legal procedure laid down in Tenancy Act, but due

to high influence of Zamindar Mumtaz Ali Junejo, nothing happened; that

the petitioner‘s family was being maltreated regularly by issuing threats

and attacked on the petitioner, his family members and relatives. As no

action was taken in the matter inasmuch as the police officials fully

support Zamindar Mumtaz Ali Junejo and Petitioner finding no

alternative, is invoking the constitutional jurisdiction of this court in the

public interest as after this incident he is shocked due to humiliation of

 5

their male and female persons, due to fear of their lives at the hands of

Police; that Petitioner also sent many applications to high-ups for

protection to his life and his family members and for justice; that

Petitioner cannot go back to his house unless protection is provided to

him by police and their animals and valuable articles are recovered from

Zamindar Aijaz Ali Junejo; that private Respondents tried to save their skin

and filed a false FIR against Petitioner, his sons and other HARI of locality

to pressurize him to withdraw from his claim; that on one hand local

police of Sinjhoro and District Sanghar declared the FIRs lodged by

Petitioner and his son as false and disposed them of under ―B‖ class and

on other hand they challaned FIR No.1/2015 of P.S. Sinjhor lodged by

Zamindar Aijaz Ali Junejo for which Sessions case (re-State vs. Ghulam Ali

& others) is pending adjudication before 2nd Additional Sessions Judge

Sanghar; that Petitioner never filed any false application against the

private Respondents or any of his family members; that all accused

persons are highly influential persons who have made high handedness

and due to the cruel act of landlords of the area have made the lives of the

petitioner, his family and relatives miserabe who are being deprived of

their fundamental rights; that irrespective of the alleged encounter, the

families cannot be deprived of their houses and the valuables articles,

which are seized by Zamindar and police without lawful authority. The

very act of police is illegal, unfair, malafide, against principle of natural

justice and also in violation of fundamental rights. The land and valuable

articles are required to be restored to the petitioner; that in the above

circumstances, when the petitioner & family are in the state of fear and

harassment, they have no courage to approach any authority for redress of

their grievances particularly when the incident has been colored to be an

adventure, hence invoking constitutional jurisdiction this court for

 6

protection and restoration of their properties, being their fundamental

right; that Petitioner is ―aggrieved person‖ within the ambit of Article 199

of the Constitution of Islamic Republic of Pakistan, 1973, as his

fundamental rights guaranteed and protected under the umbrella of the

Constitution of Islamic Republic of Pakistan, 1973 have seriously been

infringed; that under such compelling circumstances the petitioner has no

other efficacious and alternate remedy left but to knock the door of this

Court by invoking its extra ordinary constitutional jurisdiction.

3. By order dated 25.07.2019 a legal question was framed, being

relevant that order is reproduced herewith:-

―Urgency granted. Instant petition is emanating from

Tenancy Appeal No.44/2014. By order dated 08.09.2015
tenancy appeal was dismissed against order dated
08.09.2014 passed by Assistant Commissioner
Sinjhoro/Tenancy Tribunal Sinjhoro. By that tenancy
application petitioner was seeking direction to respondent
No.2 to maintain the harap right of petitioner and also pay
the amount of Rs.2,617,871/- being the saving of the produce
of 32 years crops.

Admittedly, Tenancy Act, 1950 provides a mechanism

which is a Tribunal headed by Mukhtiarkar and such
Tribunal has magisterial powers. Since the separation of
judiciary from Executive, it is strange that yet such Tribunal
under what law can be headed by a Mukhtiarkar instead of a
Civil Judge which is against the principle of separation of
powers enshrined in Articles 175, 202 and 203 of the
Constitution of Islamic Republic of Pakistan, 1973.
Accordingly, issue notice on this point to Additional
Advocate General as well Law Secretary to assist this Court.
Further to get assistance on this point it would be
appropriate to appoint amicus. Accordingly, Mr. Jhamat
Jethanand, Mr. Noor-ul-Haq Qureshi, Raja Jawad Ali Sahar
and Mr. Sajjad Ahmed Chandio, advocates are appointed as
amicus to address this issue. This order shall be
communicated to Law Secretary as well Chief Secretary and
shall be provided to above named amicus.‖

4. M/s. Ali Ahmed Palh and Abdul Sattar Sarki, learned counsel for

the petitioner raised the above legal question with regard to jurisdiction of

the Mukhtiarkar/Assistant Commissioner as head of tenancy tribunal.

 7

According to them Mukhtiarkar was heading the tenancy Tribunal,

however, in 2012 there was an amendment whereby Assistant

Commissioner was heading the tribunal but after abolition of Sindh Local

Government Ordinance 2002 again Mukhtiarkar is the head of the

tribunal. They referred Section 34 of the Sindh Tenancy Act, which is that:-

34. Penalty – (1) If any landlord or tenant contravenes any of

the provisions of this Act or of the Rules made thereunder,
he shall on conviction by a Magistrate, not lower in rank
than that of a second class Magistrate, be liable to a fine
which may extend to Rs.500 and in default of payment of
fine to simple imprisonment which may extend to one
month.

Provided that the penalty under sub-section (1) shall not be

enforced until the period of appeal has expired, or if the
appeal be actually filed until such time as the appeal is
finally decided.

(2) The court may, when passing judgment, order the

whole or any part of the fine recovered to be applied in the
payment to any part as compensation for any loss or injury
caused to him by the offence.

5. They contend that tenancy tribunal provides two types of

adjudication, one pertains to civil nature and second is of criminal nature.

According to them at present Mukhtiarkar(s) and Assistant

Commissioners are executive officers only and they have no magisterial

powers, therefore, this section is practically redundant and cannot be

exercised by the Mukhtiarkar.

6. Mr. Ali Ahmed Palh further contends that in original enactment of

1950 there was barring clause whereby family members of the HAARIs

were not allowed to work on beggar, however, in 2013 by amendment

zamindar has been allowed to take beggar (free labour) that is completely

against the humanity in this 21st Century present legislatures have

allowed Zamindars to take beggar of family members of the HAARIs

without any payment/compensation.

 8

7. As per learned amicus Mr Suleman dahri Advocate: though our

country is agro based country and 60% population are peasants but out of

them not a single person is member of legislative assembly and only the

influential persons and Zamindars are the members of legislative

assemblies, therefore, since 1950 there is no amendment or new legislation

in respect to the rights of peasants(harees) who live in rural areas having

no basic facilities and in routine their fundamental rights are being

violated by their Zamindars(landlords).

8. According to the facts set out in the petition: petitioner‘s father was

HARI of private respondent and there was issue of settlement of accounts

in respect of which, despite approaching the tenancy tribunal, he failed to

get any relief and due to his resistance he was evicted from the subject

matter land, however, subsequently its possession was again restored;

that respondents tried to forcibly evict the petitioner and Mukhtiarkar is

not so competent to pass any appropriate order by restraining Zamindars

from forcible eviction and to provide protection as he lacks Magisterial

powers.

9. Mr. Jhamat Jethanand, senior advocate/Amicus contends that a

committee was constituted by Province of Sindh regarding new legislation

of peasants and zamindar relations around fifteen years back and that

committee held a series of meetings wherein issues of HAARIs and

landlords were deliberated and a proposed draft was prepared in 2007 but

yet such proposed draft is without any sanctity. He contends that at the

time when Tenancy Act 1950 was promulgated, the Mukhtiarkar was

having magisterial powers and he was so powerful at that time to

maintain the writ. He also referred the story of a known landlord of

District Larkana; according to him due to misbehavior of that

 9

landlord/Zamidar with Mukhtiarkar that Zamindar was extradited from

the Province of Sindh, however, however at present revenue officers are

not effective and capable to protect the rights of peasants. Besides he

contends that there is mechanism of record of rights wherein temporary

and permanent HAARIs have different rights and in record of rights there

is a provision of entry of HAARIs in village form VI. Since Mukhtiarkar is

custodian of record of rights, therefore, it would be in the interest of

justice that he shall supervise marking of village form VI. According to

him even Land Revenue Act provides the mechanism with regard to

maintaining the record of rights and appellate authority and to challenge

that record of rights also lies in the revenue hierarchy.

10. Mr. Jawad Ali Sahar, learned Amicus contends that in view of PLD

2009 SC 507, confinement or beggar by the Zamindars is declared as illegal.

Also he referred Articles 175, 202 and 203 of Constitution and contends

that Tenancy Act is based on two different parts, one pertains to civil

nature and second pertains to criminal nature. Admittedly, Assistant

Commissioner or Mukhtiarkar are not competent to act as Magistrate,

hence, it would be in the interest of justice to declare that section ultra

vires and all cases including this case shall be transferred to the civil

judges.

11. At the outset learned AAG Sindh while conceding the plea of

jurisdiction raised, has contend that tenancy tribunal should be presided

over by judges like Labour Courts.

12. Before attending to question(s), involved, it is material to mention

that normally a HAARI (peasants) appears to be a labourer. Labouring,

normally defines a physical hard work and his availability and supervision at

the site which, if is with consent of two on equitable terms, the same is

recognized by God Almighty as righteous one. Labouring, in short, is a

 10

contract where one agrees to provide his services (doing hard physical work)

against certain considerations which, in no law, is an offence till the time

object (labour) is legal. The purpose of labouring could be nothing but to

earn a livelihood for needs of one‘s self, including his family but same

must never be at the cost of his liberty, life and dignity which, otherwise,

are considered as unalienable rights of a free man which, a man, even with

his consent, can‘t trade. Thus, where one becomes to be a Hari (peasant) he,

otherwise, agrees to provide his services against certain consideration

which the landlord / zamindar is always legally obliged to provide. This

meant existence of a contract between two (Hari/peasant and

Zamindar/landlord) wherein the rights and obligations are presumably

agreed therefore, mere naming of such rights and obligations as an ACT

were never of much importance, being already presumably agreed between

two individuals unless the ACT provides mechanism of enforcement of

rights and obligations couple with an action, in case of breach. Things had

never been so simple because normally there had always been serious

violation of obligations on part of the landlord / zamindar without any

specific law. This has been the situation which were portrayed in a single

verse by great poet Allama Iqbal as:-

‫جس کھیت سے دہقاں کو هیسر نہیں روزی‬

‫اس کھیت کے ہر خوشۂ گندم کو جال دو‬

We shall have to add that ‗rozi/livelihood‘ is never confined to bread only

but it always includes unalienable guaranteed fundamental rights which,

include, but not limited to liberty and dignity. There had been protest in

name of peasants‟ rights all over the world. The protests were never for;

or in relation to lands or agreed terms and conditions but begging was for
 11

those rights which a free soul always presumably carries while entering into

such like contracts even of labouring.

13. Here, it is important to give a background of enactment of the ―The

Sindh Tenancy Act 1950‖, in question, because it is always the

background of an enactment which, through law, is attempted to satisfy.

The year of enactment of the ACT i.e ‗1950‘ is itself an acknowledgment of

the fact that there accrued justification for making legislation addressing

specifically to such class of people, attempting not only to acknowledge

the status of HAARI as independent but also to ensure certain rights?.

Before giving details of reasons, it is worth to hammer here that diversity

of humanity into many races and ethnicities is a testament to God‘s

majesty and wisdom. Therefore, racial superiority and discrimination is

prohibited normally everywhere on chest of the earth. When it comes to

Allah (God Almighty), HE (ALLAH ALMIGHTY) sketches no line of

discrimination merely because of difference of birth place of a soul rather

always addressed all as mankind. In short, Allah clearly declares that in

His sight, the only distinguishing factors between humans are

righteousness and piety:

―People, We created you all from a single man and a single

woman, and made you into races and tribes so that you
should recognize one another. In God‘s eye, the most
honoured of you are the ones most mindful of Him: God is
all knowing , all aware.‖ (49:13).

14. Thus, the difference of caste, colour or creed and even status

should not be of any arrogance or shame whenever souls are to be

compared towards fundamental rights or that of rights and obligations

towards each other. This concept is exemplified in the final sermon of

Prophet Muhammad (‫ )صلى هللا علیه وسلن‬who proclaimed:

 12

“No Arab has any superiority over a non-Arab, nor does a non-
Arab have any superiority over an Arab. Nor does a white man
have any superiority over a black man, or the black man any
superiority over the white man. You are all the children of Adam,
and Adam was created from clay”.

However, we shall have to acknowledge that hearing of the word „HARI‟

normally brings a picture of some downtrodden, torn clothes; barefooted

person with a spade on his shoulder regardless of his / her sex or age

even. In short, perhaps the word HARI itself operated and operates as an

eraser to erase the guaranteed dignity of the soul who, not with his choice

but within wisdom of God Almighty, dressed in a Hari‟s family. Worth to

add that neither the God Almighty nor any civilized society permits any

such concept. The word Hari, regret to acknowledge, in our custom

(typical way of thinking) not only allows but even encourages feudal

(JAAGIRDAR/ZAMINDAR) to openly behave as MASTERS of soul and

body of HARI.

15. Now, before viewing present day, let‘s have a look at those reasons

which had occasioned in addressing such class of people within few days

of our independence. The record, available on chest of past (history) shows

that even before partition there was a serious protest regarding miseries of

Hari(s) thus to strengthen the movement for the rights of the Hari(s)

(peasants) Hyder Bux Jatoi joined the movement by resigning the post of

Collectorship. Realizing the gravity of the situation our National Hero

Quaid-e-Azam Muhammad Ali Jinnah, constituted the Sind Hari

Committee to submit its proposal with regard to legislation between

Zamindar and HAARI because he (the Qaid) was a true believer of ―all are

equal in rights” as he had stated:

“We follow the teachings of Prophet Muhammad (may

peace be upon him). We are members of the brotherhood of
Islam in which all are equal in right, dignity and self-respect.
 13

Consequently we have a special and very deep sense of

unity”.
(Broadcast Talk to the People of Australia, 19 February, 1948)

Further, he always knew (which, perhaps, we have ignored) that progress

and prosperity of a nation is always dependent upon prevailing of a sense

of equity among masses regardless of their stature or wealth. He stated in

Presidential Address to the Constituent Assembly of Pakistan, 11 August,

1947 as:-

“If we want to make this great State of Pakistan happy and

prosperous we should wholly and solely concentrate on the
wellbeing of the people and especially of the masses and the
poor”.

Let us remind that the creation of this (Pakistan) was always meant to

provide a place, assuring human rights to all, as was affirmed as:-

Brotherhood, equality and fraternity of man—these are all

the basic points of our religion, culture and civilization. And
we fought for Pakistan because there was a danger of denial
of these human rights in this sub-continent.
(Address to Public Reception, Chittagong, 26 March, 1948)

Islam stands for Justice, equality, fair play, toleration and

even generosity to non-Muslim who may be under our
protection. They are like brothers to us and would be the
citizens of the State.
(Address at The Muslim University Union, Aligarh, 2 November, 1941)

Mr. Masood Khadarposh, (Collector District Nawab shah) as a member of

the aforesaid Sind Hari Committee, dissented with the committee‘s report,

however, that dissenting report was not made public and thereafter, at a

belated stage, in the year 1952 due to serious protest that report was

published but till such time the ACT stood enacted, therefore, legally and

logically it cannot be presumed that the report, kept in dark, was

considered while making such legislation.

16. Before going any further, it would be appropriate saying something

onto concealed report and to refer dissenting note thereof. The living of the
 14

HARI was found too miserable to be compared with a slave. Even, in very

first chapter of the report, the Committee had to insist that the HARI is a

human despite admission of his importance in giving Sindh the

distinguished name of the Granary of Pakistan. Being relevant, chapter

No. I of the Khadarposh Report is reproduced herewith:-

―Chapter 1

The Hari and the Zamindar

They are human beings, and as such, rational animals and

though they drudge like domesticated animals, they enjoy
no privileges of rationality, nor any rights of human
beings. Such are the haris of Sindh, who form the bulk of its
population, who till the land and give Sindh the distinguished
name of the Granary of Pakistan.

17. Here, it is needful to add that declaring the HARI as

domesticated animal was never the word of some sympathy but it was

undeniable conclusion of facts, noticed by the pen (writer). The

Khadarposh Report further says:-

It has been my good fortune to have been associated with

the poor people as an Assistant Collector and Collector for
over eight years in Bombay Presidency and Sindh. In
Sindh, I was shocked to see the miserable conditions of the
haris and was at once reminded of the similar conditions
of the aborigines of India, the bhils, amongst whom I
worked for several years for their uplift. The haris of
Sindh are no better than serfs. They live in the most
primitive conditions with no concept of social, political,
or economic rights; they have only one interest in life;
food, with which to keep body and soul together. No
other aspect of life interests them because the fundamental
problem of living remains unresolved for them.

The haris have no organized life, nor has the consciousness

of organized living developed in them. They live
scattered, far from one another, in small hamlets
consisting of thatched mud houses. The average revenue
village, deh may have half a dozen scattered village sites
within it, some of which may be inhabited, others
deserted; Most of the haris share their huts with cattle. Their
 15

household belongings consist of a cot or two, a few earthen

pots and metal utensils, some tattered rags and an
occasional wooden box.

The hari, whose family may have cultivated a

piece of land for several generations, does not know
how long he will be allowed to stay on it. Fear reigns
supreme in the life of the hari; fear of imprisonment,
fear of losing his land or his wife. The zamindar may,
at any time, get annoyed with him and oust him; he
might have to leave his crop half ripe, his cattle
snatched, he may be beaten out of the village, may
suddenly find himself in police fetters under enquiry
for theft, robbery or murder or, more often, under
section 110 of the Criminal Procedure Code. The fate
of the haris who incurred the wrath of the zamindar
were wrongfully locked up in ill-ventilated, congested
and suffocating sub jails for very long periods,
eventually suffering longer terms of imprisonment and
awaiting trial than they would have - suffered on
conviction!

The hari fears the zamindar's punishment much

more than the torture of hell, as he frequently sees
the zamindar's bullies in action. 'Once a hari
abducted a woman, and his brother was summoned
by the zamindar to give information regarding him. He
denied any knowledge of his where abouts. The
zamindar did not believe him and ordered his men to
hang him upside down from a tree and beat him. So
violent was the beating that he became unconscious
and was carried home by another brother. The
zamindar posted a few watchmen at the house of the
injured hari to see that nobody went out to lodge
information with the authorities. The old mother of the
hari wept and wailed and was desperate to take her
unconscious, beaten, bleeding son to a doctor, but the
zamindar's watchmen did not permit anyone to go out.
After four days the son of the poor-wailing mother died.
The kamdars of the zamindar removed his corpse to a
graveyard and buried it. The old mother was allowed to
go out after a few days and, almost mad with shock and
grief, she went around telling her painful story to other
zamindars and begging them for help, but no avail. She
failed to secure the help of the police and, at last, came to
my Hindu Sub-Divisional Magistrate. The body of her
son was exhumed and the crime of the zamindar came to
light. Non-bailable warrants were issued but the
zamindar who, the day before the issue of the warrants,
 16

had been seen in town, was the next day reported by the
police to have absconded! This case occurred in
Kandiaro Taluka, a few days before I left charge of the
Nawabshah district. Such cases are not rare in the petty
feudal kingdoms of the zamindars, though very few of
them come to light.

The zamindar might at any time send for the hari for
begar (forced labour) for the construction of his house
or the sinking of a well, or some other minor work. He
might be called to come with his plough and bullocks to
cultivate the private fields of the zamindar or to spend a
few days on a shoot with him, or to render some
domestic service. He is thus always at the beck and call of
the zamindar, and dare not refuse him as that could spell
his doom.

A pretty wife is a constant source of danger for the

hari as he might be asked to surrender her. He may
be subjected to intimidation, threat or coercion and if
he does not yield, the wife could be kidnapped, or he
be arrested in a false criminal case and the wife left
alone is then compelled to live with the zamindar. The
hari can even be murdered if the zamindar sees no other
hope of success. A shocking case of this type was
narrated to me by a hari woman who, along with her
mother, had traveled about a hundred miles to tell me
her tragic story. Her husband had disappeared and her
mother had heard some body say that the zamindar's
men had murdered him. The facts of the case briefly
were that the zamindar had tried to seduce her and her
husband had expressed resentment. Thereupon the
zamindar dismissed him from his services and so he
shifted to another house in the same village. One day he
went out to graze his cattle and never returned home.
After a few days the wife received a message from the
zamindar: "Now that your husband is done away with,
will you not come over to be my mistress?"

Elections are a calamity for the poor hari. The rival

candidates pull him in opposite directions, but he is
interested in none. The zamindar, who will receive a
large amount of money or an alluring promise for future
gain for himself or his relatives in the form of a contract
for control shops or employment, calls the hari and
warns him to vote for his candidate. The hari gives a
submissive, "yes" and quickly takes the Quran in his
hands to assure the zamindar. When the voting is over
and the results are declared, the success of the rival
 17

candidate brings fresh miseries for the unfortunate voter.

He is troubled and harassed by the party men of the
newly elected Member of Legislative Assembly whom he
had opposed under orders of the zamindar. As the control
shops of the area are now under the direct or indirect
control of the MLA, the hari is unable to get his quota of
cloth and sugar. He may also be threatened with false
prosecution, theft of his cattle or injury to his person.

The hari behaves like a helpless slave when he has to

face the zamindar. It is not an unusual sight to see
numerous haris coming and touching the feet of the
zamindar. As soon as the zamindar appears on the fields
the hari and his children go and bow before him till they
touch his feet, then rise up to kiss his hand. They do this
neither out of respect for him, nor for his spiritual
attainments, nor for any other quality of his, but to
make him feel that they are his humble creatures who
prostrate before him and live at his mercy. I have not
seen a single hari who will stand before the zamindar and
greet him with dignity. What man has done to man never
wore a more tragic look than when helpless hari men
and children touch the feet of the zamindar.

Islam teaches the greatness of God and submission to no

one except Him, but when the hari's Islam is put to test in
the fields where the zamindar has taken hold of all the
resources of the Earth in the name of Islam and can at any
moment starve the poor hari to death, the great ideals of
Islam vanish from the hari's mind, he forgets the greatness
of God Almighty at once and bows in abject submission to
the zamindar.

The ideal of the equality of mankind, taught by Islam,

becomes a fiction to his mind. No hari can dare sit side by
side, with or even in front of a zamindar, or even as high as
the zamindar's level of seat, even if it be a stump of a tree
or a pile of bricks or a heap of sand. He must sit at a lower
level on the bare ground, and if he dares to sit on a level
equal to the zamindar's, he is impertinent, insolent and
unfit to live on the land on which his forefathers worked
for generations. Pirs and Maulvis who are friends of the
zamindar, console the hari with the doctrine of taqdir (fate)
which is he is low forever because God has made him so.

The hari, having lived under oppression and tyranny

for several generations, has now begun to feel that
perhaps this is the destiny chalked out for him by God
Almighty (his taqdir), and therefore it is no use
 18

bewailing his lot. He thus gets used to his misery and

appears to be an ease-loving man content with mere
requirements of himself and his family in food and
clothing. His forced and unreal contentment and
happiness is like that of a long-term prisoner who, after
long years in jail, gets reconciled to it by the sheer force of
circumstances. Given freedom from oppression, and
given the power of expression, which has been denied by
illiteracy, the hari would narrate a harrowing tale of woe
and misery. The age-long oppression has given him an
inextricable inferiority complex, and he dreads even
menial government servants and petty officials, such as a
kotar, a patawala, a constable or a tapedar, who can insult,
abuse or beat him without any fear of retaliation or
protest to their superiors.

The average holding of the hari varies from 16-18 acres;

he may have about 8 acres of Rabi and 8 acres of Kharif
crops every year. When the crop is ready, a kamadar of
the zamindar will demand that the crop be removed to the
threshold of the zamindar, where it will lie untouched by
the hari until the batai is over. The hari has laboured for a
year, and when the harvest is ready, he looks at it sadly,
knowing that all of it will go to the zamindar who will
decide how much will be given back to him. He is thus
like a hungry man who, having secured food after long
toil and suffering, has to surrender it to his cruel master
who takes away a large part of it, leaving the hungry
man only a small portion which does not suffice for his
empty stomach. An agent of the zamindar makes the batai.
The unwritten law is equal shares for the zamindar and
the hari, but illegal levies and abwabs under various
heads are imposed on the hari's share. These abwabs are
called customary abwabs probably imposed long ago by
the forefathers of the zamindars who were such powerful
feudal lords that it was impossible for the hari's elders to
contest; even today. If the zamindar wanted to impose a
new abwab, the hari dare not defy him. The so-called
sanction of custom in the abwab is purely a matter of
force and not of choice for the hari, who has no hope of
help or mercy if he does not submit. After the deduction
of abwabs, the share, which is left to the hari, is too little
to sustain him for the whole year and out of this he has
to give something to the village artisan, the pir and the
beggars! The question of batai does not arise in the case
of cash crops which are already mortgaged with the
zamindar against the debts which are due from the hari,
who is obliged to borrow from the zamindar for his
clothes and household necessities, for seed and bullocks.
 19

The produce of his land is insufficient to sustain him.

The hari has to borrow and labour year after year to pay
off the inextinguishable debt as generations die in
pursuit of the mirage of solvency. Debt accounts are kept
by a munshi of the zamindar, who is generally dishonest,
making false entries in the debit account of the hari
who has to accept them perforce. The bania zamindar and
the lessees fleece the hari mercilessly. The Muslim
zamindars, who do not charge interest, impose heavy
abwabs. As hari sees no hope of the debt being ever paid
off, he cannot even think of running away, as he would
have to surrender his cattle and few household
belongings, which mean everything to him. Besides, he
would not be accepted by another zamindar because of a
code of honour amongst them; that an indebted hari will
not be accepted unless his debt is paid off. Such a code of
honour existed among the slave traders of medieval
times. The poor hari has therefore to stay, and live in
misery and distress. The fetters of debt make him stick to
the cruel master.

What saves the hari from destitution in his cattle wealth?

Every hari has a number of cattle, which he breeds
enthusiastically and which give him supplementary
income for his household requirements. Zamindars
complain that the haris give more attention to cattle
breeding than to the cultivation of fields, but that is only
natural as since they share their cattle with no one else and
the cattle remain their property exclusively. If the breeding
of cattle had also been put on the batai system, the cattle
wealth of the whole Province would have dried up long
ago. The livestock from Sindh enjoy good reputation all
over Pakistan and India, and it is due to the kindness of
nature that this item of the haris industry did not come
under the control of the zamindar.

The Chapter-IV of the report speaks about Islamic commandments /

teachings which permit one to hold only such area which he himself can

cultivate. We however, would not go in such details because the same are

not subject of the issue.

18. The first Chapter of the report, however, made it quite obvious and

clear that normally the status of Hari is even worse than that of a slave
 20

who (slave), per Islamic commandments, requires to be assured of his

fundamental rights and that of dignity. He is to be given that food what

one (master) chooses for himself; he has to be given that clothing what one

(master) chooses for himself. In short, he (slave) is to be treated alike when

it comes to earthly needs and he (slave) must have fair opportunities to

compete. Islamic history, when speaking about personality, leaves the

label of slave much behind but requires one to remember a personality of

his qualities or lacking. Needless to add that presently there exists no

concept of slave and master in present days.

19. The first Chapter, referred above, had made it quite clear and

obvious that normally the status of a JAAGIR is nothing short of a

KINGDOM which has got complete command and control of the

ZAMINDAR / JAGIRDAR over his such territory / kingdom hence he may

act as MASTER not only of the body of his Peasant masses (Hari) but his

soul too. He (Hari) normally does not have a right of choosing but only has

to nod the words of Zamindar / Jagirdar.

20. Since, it is, prima facie, evident that such report was never published

till time of enactment of the Sindh Tenancy Act 1950 therefore, the ACT

never addressed those miseries which, otherwise, were the true causes of the

―protests”. These appear to be the reason that the ACT in question only

speaks about rights and obligations of these two i.e peasant (Hari) and

„Landlord (Zamindar) as is evident from preamble thereof which reads

as:-

―Whereas it is expedient to regulate by law the rights and

liabilities of agricultural tenants and their landlords in lands in
the Province of Sindh, and matters connected therewith; It is
hereby enacted as follows:-
 21

but nothing is there which assures measures to guarantee unalienable

fundamental rights of such class of people whose whole world , otherwise,

was / is believed to be territory and wish of the landlord / zamindar.

21. Here, we are compelled to add that disadvantage of keeping the

report into dark had been the cause that the ACT appears to be dealing

with issues of two free person (s) although the person (HARI), per report

and event facts, was never a free man therefore, things have not much

changed even today. Because of electronic source, we do come to know that

such miseries are continuing in such like self-built KINDGOMS. At this

juncture, it may well be added here that a legislation, unless meeting the

needs of its enactment, (objectives) can never be said to be a good law. The

special law (s) may not necessarily for general application thereof but are

always meant to tackle specific situations not only by admitting violation of

rights but also by providing legal remedies against such violation of rights.

Here, we are compelled to add that if a law only speaks about violation of

rights but does not provide remedy thereof shall be an unjust law which,

per St. Augustine, is no law at all. Needful to add that the motto (An

unjust law is no law at all) was used by St. Thomas Aquinas and quoted

by Martin Luther King Jr. during Civil Rights Movements to describe

racial segregation and discrimination against African Americans. The

segregation and discrimination (treating them as something else other than a

breathing body), surfaced in the report, we are compelled to say, were never

addressed despite enactment of the Act.

22. We do not want to go into causes of not touching such an issue by

quarter concerned (legislature) for such long period (more than seventy

years) which, otherwise, amounts letting ‗states/kingdoms‘ into „THE

STATE‟ and even resulted into cases of Mai Jundo Tando Bhawal includes
 22

MANNO BHEEL; e.t.c and even allows one to say in todays‟ time that

some Zamindars / Jagirdars keep their own JAILS whereby the very

guaranteed life and liberty is denied (CPs under section 491 constantly

filed with such plea). The issue always was requiring proper legislation but

today the importance of proper legislation has become unavoidable

because we (Pakistan):-

i) is a Islamic republic;

ii) has its Constitution, guaranteeing fundamental rights to

every single soul without any discrimination of colour,
caste, creed or stature;

which (constitution), at time of legislation of the ACT, was not in field. The

Constitution carries heavy burden of assuring true enforcement of Article

4(2) which reads as:-

(2) In particular—

(a) no action, detrimental to the life, liberty, body reputation

or property of any person, shall be taken except ‗ in
accordance with law‘

(b) no person shall be prevented from, or be hindered in

doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law

does not require him to do

This guarantee, however, normally is not available to a Hari though we are

in 21st Century and we have voted in favour of United Nation declaration

2018 regarding the rights of peasants and persons being in rural areas

which, brings nothing new, but affirms all those rights which were always

made available to every single soul by its Creator (God Almighty) but

were, in particularly, remained denied to peasants all over the world. We

are conscious that a question may be thrown that when the Constitution

and other general laws do provide a general protection to all then why

special enactments?. To this, we would insist that things were never so

 23

easy or simple else there would not have been long protests over /

regarding peasants rights all over the world. Such protests have been an

admission that normally those working / residing within private lands /

Jagirs and in far flung areas normally remain away from guarantee,

provided by the Constitution or other existing laws of a land.

23. At this juncture, it has become unavoidable to show how

legislatures have been unjust towards the Haris and even went on to

include such „amendments‟ which, even are against the Article 8 of the

Constitution but that of specific directives of honourable Apex Court,

hence in negation to Article 189. Before referring to such Article and that of

directives of Honourable Apex Court, it would be appropriate to say that

the original ACT has a barring clause whereby the landlord / zamindar

was not authorized to take any „begar‟ from the tenant or his family and

even this was affirmed when amendments were made in year 2002 (Sindh

Ordinance No.XXXII of 2002) as and clause (C) of section 24 of the ACT

was to read as:-

―(c) he shall be responsible for payment of land revenue, water

rate, zaket, ushr and other taxes, cess, surcharge and levies in
respect of land and for providing seed, and the cost of fertilizer
and pesticides shall be borne equally by the landlord and the
tenant but the landlord shall not take any free labour from the
tenant or a member of his family against his will.‖

However, such „begar / free labour” has been allowed by amendment,

made in section 24 of the ACT (Sindh Act No.XX of 1950) through the

Sindh Tenancy (Amendment) Act 2013, as:-

―6. In the said Act, in section 24, in clause (c), after the words
―and the tenant‖, the full stop be added and the words ―but the
landlord shall not take any free labour from the tenant or a
member of his family against his will‖ shall be omitted‖.

The reason for omitting such „barring clause‟ appears to be with no legal

reasoning or justification rather appears to be for giving a license to take

 24

„free labour‟ from tenant as well his family which, otherwise, is in

complete negation to what every citizen, per Article 4(2), has guarantee of.

We are unable to appreciate how one can be authorized to take free labour

even presumably which even is in complete negation to what has been

assured in Chapter-II of the Constitution. The STATE may have authority

to make any law but same cannot / shouldn‘t be in negation to Article 8

of the Constitution which says as:-

―8(1). Any law, or any custom or usage having the force of law, in
so far as it is inconsistent with the right conferred by Chapter,
shall, to the extent of such inconsistency, be void;

(2) The State shall not make any law which takes away or abridges
the right so conferred and any law made in contravention of this
clash shall, to the extent of such contravention, be void.‖

Though to declare such amendment as void the referral to article 8 of the

Constitution is always sufficient, however, we would also add that due to

frequent petitions regarding confinement and begars particularly at

Circuit Court Hyderabad many petitions were clubbed together and

decided in favour of zamindar but honourable apex court in the case of

Human Rights Commission of Pakistan and others vs. Government of

Pakistan and others reported in PLD 2009 SC 507 set aside that judgment

and declared that confinement or forced labour is against constitution. At

this juncture, it would be conducive to refer the relevant paragraphs of

referred dictum as under:-

―18. From the above provisions were are of the opinion that
the Sindh Tenancy Act does not, strictly speaking, create a pure
employer employees relationship between landlords and
tenants. On the contrary it creates a quasi-partnership whereby
the tenant acquires certain interests in the land and does not
receive wages but only a share in the produce in so far as his
obligations as a tenant are concerned. This nevertheless does not
lead to the conclusion that a tenant could be forced to perform his
obligations under the Act. The obligation to cultivate land is a
condition precedent for protection of a tenant's valuable rights in
property and in the event of his failure to do so the consequences
are spelt out in the Act itself inasmuch as his tenancy could be
terminated in accordance with section-13. Indeed a person may
forfeit his legal rights acquired under a statute or a contract upon
failure to perform his obligations but there could be no
 25

justification for forcing him to work against his will in flagrant

violation of his fundamental rights guaranteed by the
Constitution. The landlord's contention in the para-32 of the
impugned judgment, therefore, merited outright rejection.‖

―35. Our conclusion from the above somewhat lengthy

discussion may be summarized as follows:--

(i) that the Bonded Labour System (Abolition) Act, 1992

not merely ensures that no fetters on the workers rights
guaranteed under Articles 11, 15 and 23 are placed,
even through voluntary agreements but also wipes out
any financial liability that the worker might have
incurred on the basis whereof such fetters have been
imposed;

(ii) that the provisions of the aforesaid Act are also

applicable to all persons employed in agriculture other
than those enjoying rights as tenants under the Sindh
Tenancy Act;

(iii) that the above however does not mean that no

credit could be advanced by an employer to his
employee but only that a condition making the
employee subject to the Bonded Labour System cannot
be imposed. In cases of debts not accompanied by any
condition which makes an employee a bonded worker
under the Act, may be enforceable through ordinary
legal channels;

(iv) that even the Sindh Tenancy Act does not empower
a landlord to require a tenant to work on his lands
against the latter's will. The only consequence provided
for a refusal on the part of the tenant is forfeiture of his
tenancy rights on grounds of abandonment etc. and
through mechanism provided for in section 23 of the
Act;

(v) that even an undertaking by a tenant to work

without remuneration or for remuneration less than the
amount stipulated in section 22(2) would be
unenforceable;

(vi) section 25 of the Sindh Tenancy Act stipulates a

mechanism for appropriation of a debt from a tenant to
his landlord. Subsection (4) only stipulates that upon
termination of a tenancy the entire outstanding amount
of the debt would be recoverable notwithstanding the
provisions relating to appropriation through the
normal legal channels;

(vii) that in cases where wrongful detention or forced

labour is complained of the onus to prove that the
person detained was a tenant would lie on the
landlord. The person detained would nevertheless
invariably be entitled to restoration of his liberty and the
freedom of his movement and the only difference would
be that in the event of proof of his tenancy, the landlord
would be entitled to recover the debt through normal legal
 26

channels;

(viii) that in a petition under Article 199(1)(b)(i) of the

Constitution or section 491, Cr.P.C. it is the duty of the
court to satisfy itself that a person allegedly deprived of
his liberty is detained under some authority of law;

(ix) that there is no requirement of law that stricter

scrutiny of, a petition regarding detention in private
custody is to be made before issuing appropriate
directions. Nevertheless in cases where the right to keep a
person in private custody is claimed' on the basis of some
authority in law, the court may require that such right be
adjudicated upon in properly held proceedings before the
appropriate forum before issuing directions under section
491, Cr.P.C.; and

(x) the Jurisdiction of superior courts to enforce

fundamental rights under Article 199(1)(c) of the
Constitution is not merely exercisable against persons
performing functions in connection with the affairs of the
Federation or Province :or a local authority but against any
person or authority including a Government. Some of the
fundamental rights by their very nature may be impaired
by private persons and there is no embargo on the powers
of the High Court to issue such direction as may be
appropriate for enforcement of such rights.‖

24. In view of above the legislatures are always believed to be well

aware of four corners of their powers as well that of binding directives of

honourable Apex Court which, prima facie, have entirely been ignored

while making the amendment in Section 24 (c) of the ACT. This, perhaps,

has been done for the reason, as was pointed out by learned counsel for

the petitioner, that there is no representation of peasants / Haris in law-

makers. We do not want to go deep into reason for such amendment but

we feel it quite necessary to add that We are living in a globe and are

signatories/members of number of „International Councils‟, having

functions to deal with affairs, beyond limitation of a single state. Our

„Constitution‟ is, in fact, our representation to the „WORLD‟ so as to show

how the rights of people, living or stepping onto this piece of land

(Pakistan), are safe and protected therefore, Legislature despite enjoying

their authority / power, are required to honour the limitations which,

 27

otherwise, are created by the Constitution itself or interpretation thereof

by Apex Court. Hopefully, such limitations shall always be honoured and

legislations shall never be for pleasing one but to meet well with problems /

needs. Therefore, following the dictum of the Supreme Court in Human

Rights Commission of Pakistan v. Government of Pakistan (PLD 2009 SC 507),

the amendment brought into section 24 (c) of the Act, through section 6 of

the Sindh Tenancy (Amendment) Act 2013, is unconstitutional as ultra

vires Articles 11, 15 and 23 of the Constitution of Pakistan and „void‟,

hence section 24(c) of the Act is to be read as it was before such

amendment.

25. Resuming, we add here that after considerable protests, there came

an approval of peasants rights declaration in thirty-ninth session of

Human Rights Council. The reproduction of relevant portion of

declaration, being material, is made hereunder:-

Human Rights Council

Thirty-ninth session
10-28 September 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Algeria,* Bolivia (Plurinational State of),* Cuba, Ecuador, El

Salvador,* Egypt, Haiti,* Kenya, Nicaragua,* Paraguay,*
Philippines, South Africa, Togo, Venezuela (Bolivarian Republic
of), State of Palestine:* draft resolution
39/... United Nations Declaration on the Rights of Peasants and
Other People Working in Rural Areas
The Human Rights Council,
Recalling all relevant Human Rights Council
resolutions on the right to food, and recalling in
particular Council resolutions 21/19 of 27 September
2012, 26/26 of 27 June 2014, 30/13 of 1 October 2015, and
36/22 of 29 September 2017 on the promotion and
protection of the human rights of peasants and other
people working in rural areas,
Welcoming with appreciation the constructive
negotiations, participation and active engagement in the
open-ended intergovernmental working group on a United
Nations declaration on the rights of peasants and other
people working in rural areas during its five sessions, and
welcoming the report on its fifth session,'
1. Adopts the United Nations Declaration on the
Rights of Peasants and Other People Working in Rural
 28

Areas, as contained in the annex to the present resolution;

2. Recommends that the General Assembly, in
accordance with paragraph 5 (c) of its resolution 60/251 of
15 March 2006, adopt the following draft resolution:
"The General Assembly,
Welcoming the adoption by the Human Rights
Council, through its resolution [39/x] of 28 September
2018, of the United Nations Declaration on the Rights
of Peasants and Other People Working in Rural Areas,
1. Adopts the United Nations Declaration on
the Rights of Peasants and Other People Working in
Rural Areas, as contained in the annex to the present
resolution;
2. Invites Governments, agencies and
organizations of the United Nations system and
intergovernmental and non-governmental
organizations to disseminate the Declaration and
to promote universal respect and understanding
thereof"

* State not a member of

the Human Rights
Council.
A/HRC/39/67.

Annex
―United Nations Declaration on the Rights of
Peasants and Other People Working in Rural Areas**
The Human Rights Council,
Recalling the principles proclaimed in the Charter of the
United Nations, which recognize the inherent dignity and worth and
the equal and inalienable rights of all members of the human family as
the foundation of freedom, justice and peace in the world,
Taking into account the principles proclaimed in the Universal
Declaration of Human Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the International
Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, the Convention on the
Elimination of All Forms of Discrimination against Women, the
Convention on the Rights of the Child, the Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families, relevant conventions of the International Labour
Organization and other relevant international instruments that have
been adopted at the universal or regional level,
Reaffirming the Declaration on the Right to Development, and
that the right to development is an inalienable human right by
virtue of which every human person and all peoples are entitled to
participate in, contribute to and enjoy economic, social, cultural and
political development, in which all human rights and fundamental
freedoms can be fully realized,
Reaffirming also the United Nations Declaration on the Rights of
Indigenous Peoples,
Reaffirming further that all human rights are universal,
indivisible, interrelated, interdependent and mutually reinforcing and
must be treated in a fair and equal manner, on the same footing and
with the same emphasis, and recalling that the promotion and
protection of one category of rights should never exempt States from
the promotion and protection of the other rights,
Recognizing the special relationship and interaction
between peasants and other people working in rural areas, and the
land, water and nature to which they are attached and on which
they depend for their livelihood,
 29

Recognizing also the past, present and future contributions of

peasants and other people working in rural areas in all regions of the
world to development and to conserving and improving biodiversity,
which constitute the basis of food and agricultural production
throughout the world, and their contribution in ensuring the right to
adequate food and food security which are fundamental to attaining
the internationally agreed development goals, including the 2030
Agenda for Sustainable Development,
Concerned that peasants and other people working in rural areas
suffer disproportionately from poverty, hunger and malnutrition,
Concerned also that peasants and other people working in rural
areas suffer from the burdens caused by environmental degradation
and climate change,
Concerned further about peasants ageing around the world and
youth increasingly migrating to urban areas and turning their backs
on agriculture owing to the lack of incentives and the drudgery of
rural life, and recognizing the need to improve the economic
diversification of rural areas and the creation of non-farm
opportunities, especially for rural youth,
Alarmed by the increasing number of peasants and other people
working in rural areas forcibly evicted or displaced every year,
Alarmed also by the high incidence of suicide of peasants in
several countries,
Stressing that peasant women and other rural women play a
significant role in the economic survival of their families and in
contributing to the rural and national economy, including through
their work in the non-monetized sectors of the economy, but are often
denied tenure and ownership of land, equal access to land,
productive resources, financial services, information, employment or
social protection, and are often victims of violence and
discrimination in a variety of forms and manifestations,
Stressing also the importance of promoting and protecting the
rights of the child in rural areas, including through the eradication of
poverty, hunger and malnutrition, the promotion of quality
education and health, protection from exposure to chemicals and
wastes, and the elimination of child labour, in accordance with
relevant human rights obligations,
Stressing further that several factors make it difficult for
peasants and other people working in rural areas, including small-
scale fishers and fish workers, pastoralists, foresters and other local
communities to make their voices heard, to defend their human
rights and tenure rights, and to secure the sustainable use of the
natural resources on which they depend,
Recognizing that access to land, water, seeds and other natural
resources is an increasing challenge for rural people, and stressing the
importance of improving access to productive resources and
investment in appropriate rural development,
Convinced that peasants and other people working in rural
areas should be supported in their efforts to promote and undertake
sustainable practices of agricultural production that support and are
in harmony with nature, also referred to as Mother Earth in a
number of countries and regions, including by respecting the
biological and natural ability of ecosystems to adapt and regenerate
through natural processes and cycles,
Considering the hazardous and exploitative conditions that exist
in many parts of the world under which many peasants and other
people working in rural areas have to work, often denied the
opportunity to exercise their fundamental rights at work, and lacking
living wages and social protection,
Concerned that individuals, groups and institutions that
promote and protect the human rights of those working on land and
natural resources issues face a high risk of being subject to different
forms of intimidation and of violations of their physical integrity,
 30

Noting that peasants and other people working in rural areas

often face difficulties in gaining access to courts, police officers,
prosecutors and lawyers to the extent that they are unable to seek
immediate redress or protection from violence, abuse and
exploitation,
Concerned about speculation on food products, the
increasing concentration and unbalanced distribution of food
systems and the uneven power relations along the value chains,
which impair the enjoyment of human rights,
Reaffirming that the right to development is an inalienable
human right by virtue of which every human person and all peoples
are entitled to participate in, contribute to and enjoy economic,
social, cultural and political development, in which all human rights
and fundamental freedoms can be fully realized,
Recalling the right of peoples to exercise, subject to the
relevant provisions of both International Covenants on Human
Rights, full and complete sovereignty over all their natural wealth and
resources,
Recognizing that the concept of food sovereignty has been used in
many States and regions to designate the right to define their food and
agriculture systems and the right to healthy and culturally appropriate
food produced through ecologically sound and sustainable methods
that respect human rights,
Realizing that the individual, having duties to other
individuals and to the community to which he or she belongs, is
under a responsibility to strive for the promotion and observance of
the rights recognized in the present Declaration and in national law,
Reaffirming the importance of respecting the diversity of cultures
and of promoting tolerance, dialogue and cooperation,
Recalling the extensive body of conventions and
recommendations of the International Labour Organization on labour
protection and decent work,
Recalling also the Convention on Biological Diversity and the
Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilization to the
Convention on Biological Diversity,
Recalling further the extensive work of the Food and Agriculture
Organization of the United Nations and the Committee on World
Food Security on the right to food, tenure rights, access to natural
resources and other rights of peasants, in particular the International
Treaty on Plant Genetic Resources for Food and Agriculture, and the
Organization's Voluntary Guidelines on the Responsible Governance
of Tenure of Land, Fisheries and Forests in the Context of National
Food Security, the Voluntary Guidelines for Securing Sustainable
Small-Scale Fisheries in the Context of Food Security and Poverty
Eradication and the Voluntary Guidelines to Support the Progressive
Realization of the Right to Adequate Food in the Context of National
Food Security,
Recalling the outcome of the World Conference on Agrarian
Reform and Rural Development and the Peasants Charter adopted
thereat, in which the need for the formulation of appropriate national
strategies for agrarian reform and rural development, and their
integration with overall national development strategies, was
emphasized,
Reaffirming that the present Declaration and relevant
international agreements shall be mutually supportive with a view
to enhancing the protection of human rights,
Determined to take new steps forward in the commitment
of the international community with a view to achieving substantial
progress in human rights endeavours by an increased and sustained
effort of international cooperation and solidarity,
Convinced of the need for greater protection of the human
rights of peasants and other people working in rural areas, and for a
coherent interpretation and application of existing international human
rights norms and standards in this matter,
 31

Solemnly adopts the following declaration on the rights of

peasants and other people working in rural areas:
Article 1
1. For the purposes of the present Declaration, a peasant is
any person who engages or who seeks to engage alone, or in
association with others or as a community, in small-scale agricultural
production for subsistence and/or for the market, and who relies
significantly, though not necessarily exclusively, on family or
household labour and other non-monetized ways of organizing
labour, and who has a special dependency on and attachment to the
land.
2. The present Declaration applies to any person engaged in
artisanal or small-scale agriculture, crop planting, livestock raising,
pastoralism, fishing, forestry, hunting or gathering, and handicrafts
related to agriculture or a related occupation in a rural area. It also
applies to dependent family members of peasants.
3. The present Declaration also applies to indigenous peoples
and local communities working on the land, transhumant, nomadic
and semi-nomadic communities, and the landless, engaged in the
above-mentioned activities.
4. The present Declaration further applies to hired workers,
including all migrant workers regardless of their migration status, and
seasonal workers, on plantations, agricultural farms, forests and farms
in aquaculture and in agro-industrial enterprises.
Article 2
1. States shall respect, protect and fulfil the rights of
peasants and other people working in rural areas. They shall
promptly take legislative, administrative and other appropriate
steps to achieve progressively the full realization of the rights of the
present Declaration that cannot be immediately guaranteed.
2. Particular attention shall be paid in the implementation
of the present Declaration to the rights and special needs of
peasants and other people working in rural areas, including older
persons, women, youth, children and persons with disabilities,
taking into account the need to address multiple forms of
discrimination.
3. Without disregarding specific legislation on indigenous
peoples, before adopting and implementing legislation and policies,
international agreements and other decision-making processes that
may affect the rights of peasants and other people working in rural
areas, States shall consult and cooperate in good faith with peasants
and other people working in rural areas through their own
representative institutions, engaging with and seeking the support
of peasants and other people working in rural areas who could be
affected by decisions before those decisions are made, and
responding to their contributions, taking into consideration existing
power imbalances between different parties and ensuring active,
free, effective, meaningful and informed participation of
individuals and groups in associated decision-making processes.
4. States shall elaborate, interpret and apply relevant
international agreements and standards to which they are a party in
a manner consistent with their human rights obligations as
applicable to peasants and other people working in rural areas.
5. States shall take all necessary measures to ensure that non-
State actors that they are in a position to regulate, such as private
individuals and organizations, and transnational corporations and
other business enterprises, respect and strengthen the rights of
peasants and other people working in rural areas.
6. States, recognizing the importance of international
cooperation in support of national efforts for the realization of the
purposes and objectives of the present Declaration, shall take
appropriate and effective measures in this regard, between and
among States and, as appropriate, in partnership with relevant
international and regional organizations and civil society, in
particular organizations of peasants and other people working in
 32

rural areas, among others. Such measures could include:

(a) Ensuring that relevant international cooperation, including
international development programmes, is inclusive, accessible and
pertinent to peasants and other people working in rural areas;
(b) Facilitating and supporting capacity-building, including
through the exchange and sharing of information, experiences,
training programmes and best practices;
(c) Facilitating cooperation in research and in access to
scientific and technical knowledge;
(d) Providing, as appropriate, technical and economic
assistance, facilitating access to and sharing of accessible technologies,
and through the transfer of technologies, particularly to developing
countries, on mutually agreed terms;
(e) Improving the functioning of markets at the global level
and facilitating timely access to market information, including on
food reserves, in order to help to limit extreme food price volatility
and the attractiveness of speculation.
Article 3
1. Peasants and other people working in rural areas have
the right to the full enjoyment of all human rights and fundamental
freedoms recognized in the Charter of the United Nations, the
Universal Declaration of Human Rights and all other international
human rights instruments, free from any kind of discrimination in
the exercise of their rights based on any grounds such as origin,
nationality, race, colour, descent, sex, language, culture, marital
status, property, disability, age, political or other opinion, religion,
birth or economic, social or other status.

2. Peasants and other people working in rural areas have the

right to determine and develop priorities and strategies to exercise
their right to development.
3. States shall take appropriate measures to eliminate
conditions that cause or help to perpetuate discrimination,
including multiple and intersecting forms of discrimination, against
peasants and people working in rural areas.
Article 4
1. States shall take all appropriate measures to eliminate all
forms of discrimination against peasant women and other women
working in rural areas and to promote their empowerment in order
to ensure, on the basis of equality between men and women, that
they fully and equally enjoy all human rights and fundamental
freedoms and that they are able to freely pursue, participate in
and benefit from rural economic, social, political and cultural
development.
2. States shall ensure that peasant women and other women
working in rural areas enjoy without discrimination all the human
rights and fundamental freedoms set out in the present Declaration
and in other international human rights instruments, including the
rights:
(a) To participate equally and effectively in the formulation
and implementation of development planning at all levels;
(b) To have equal access to the highest attainable standard
of physical and mental health, including adequate health-care
facilities, information, counselling and services in family
planning;
(c) To benefit directly from social security programmes;
(d) To receive all types of training and education, whether
formal or non-formal, including training and education relating to
functional literacy, and to benefit from all community and extension
services in order to increase their technical proficiency;
(e) To organize self-help groups, associations and cooperatives
in order to obtain equal access to economic opportunities through
employment or self-employment;
(f) To participate in all community activities;
(g) To have equal access to financial services, agricultural
credit and loans, marketing facilities and appropriate technology;
 33

(h) To equal access to, use of and management of land and

natural resources, and to equal or priority treatment in land and
agrarian reform and in land resettlement schemes;
(i) To decent employment, equal remuneration and social
protection benefits, and to have access to income-generating activities;
(j) To be free from all forms of violence.
Article 5
1. Peasants and other people working in rural areas have the
right to have access to and to use in a sustainable manner the natural
resources present in their communities that are required to enjoy
adequate living conditions, in accordance with article 28 of the
present Declaration. They also have the right to participate in the
management of these resources.

2. States shall take measures to ensure that any exploitation

affecting the natural resources that peasants and other people working
in rural areas traditionally hold or use is permitted based on, but not
limited to:
(a) A duly conducted social and environmental impact
assessment;
(b) Consultations in good faith, in accordance with article 2.3
of the present Declaration;
(c) Modalities for the fair and equitable sharing of the
benefits of such exploitation that have been established on mutually
agreed terms between those exploiting the natural resources and the
peasants and other people working in rural areas.
Article 6
1. Peasants and other people working in rural areas have
the right to life, physical and mental integrity, liberty and security of
person.
2. Peasants and other people working in rural areas shall
not be subjected to arbitrary arrest or detention, torture or other
cruel, inhuman or degrading treatment or punishment, and shall
not be held in slavery or servitude.

Article 7
1. Peasants and other people working in rural areas have the
right to recognition everywhere as persons before the law.
2. States shall take appropriate measures to facilitate the
freedom of movement of peasants and other people working in rural
areas.
3. States shall, where required, take appropriate measures to
cooperate with a view to addressing transboundary tenure issues
affecting peasants and other people working in rural areas that cross
international boundaries, in accordance with article 28 of the present
Declaration.

Article 8
1. Peasants and other people working in rural areas have the
right to Freedom of thought, belief, conscience, religion, opinion,
expression and peaceful assembly. They have the right to express
their opinion, either orally, in writing or in print, in the form of art,
or through any other media of their choice, at the local, regional,
national and international levels.
2. Peasants and other people working in rural areas have
the right, individually and/or collectively, in association with others
or as a community, to participate in peaceful activities against
violations of human rights and fundamental freedoms.
3. The exercise of the rights provided for in the present
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such
as are provided for by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
(order public), or of public health or morals.
 34

4. States shall take all necessary measures to ensure

protection by the competent authorities of everyone, individually and
in association with others, against any violence, threat, retaliation, de
jure or de facto discrimination, pressure or any other arbitrary
action as a consequence of his or her legitimate exercise and defence
of the rights described in the present Declaration.
Article 9
1. Peasants and other people working in rural areas have the
right to form and join organizations, trade unions, cooperatives or any
other organization or association of their own choosing for the
protection of their interests, and to bargain collectively. Such
organizations shall be independent and voluntary in character, and
remain free from all interference, coercion or repression.
2. No restrictions may be placed on the exercise of this right
other than those which are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals or
the protection of the rights and freedoms of others.
3. States shall take appropriate measures to encourage the
establishment of organizations of peasants and other people working
in rural areas, including unions, cooperatives or other organizations,
particularly with a view to eliminating obstacles to their
establishment, growth and pursuit of lawful activities, including any
legislative or administrative discrimination against such
organizations and their members, and provide them with support to
strengthen their position when negotiating contractual arrangements
in order to ensure that conditions and prices are fair and stable and
do not violate their rights to dignity and to a decent life.

Article 10
1. Peasants and other people working in rural areas have the right
to active and free participation, directly and/or through
their representative organizations, in the preparation and
implementation of policies, programmes and projects that may
affect their lives, land and livelihoods.
2. States shall promote the participation, directly
and/or through their representative organizations, of
peasants and other people working in rural areas in decision-
making processes that may affect their lives, land and
livelihoods; this includes respecting the establishment and
growth of strong and independent organizations of peasants
and other people working in rural areas and promoting their
participation in the preparation and implementation of food
safety, labour and environmental standards that may affect
them.
Article 11
1. Peasants and other people working in rural areas have the
right to seek, receive, develop and impart information, including
information about factors that may affect the production, processing,
marketing and distribution of their products.
2. States shall take appropriate measures to ensure that
peasants and other people working in rural areas have access to
relevant, transparent, timely and adequate information in a language
and form and through means adequate to their cultural methods so as
to promote their empowerment and to ensure their effective
participation in decision-making in matters that may affect their lives,
land and livelihoods.
3. States shall take appropriate measures to promote the
access of peasants and other people working in rural areas to a fair,
impartial and appropriate system of evaluation and certification of the
quality of their products at the local, national and international levels,
and to promote their participation in its formulation.
Article 12
1. Peasants and other people working in rural areas have the
right to effective and non-discriminatory access to justice, including
access to fair procedures for the resolution of disputes and to
effective remedies for all infringements of their human rights. Such
decisions shall give due consideration to their customs, traditions,
 35

rules and legal systems in conformity with relevant obligations under

international human rights law.
2. States shall provide for non-discriminatory access,
through impartial and competent judicial and administrative bodies,
to timely, affordable and effective means of resolving disputes in
the language of the persons concerned, and shall provide effective
and prompt remedies, which may include a right of appeal,
restitution, indemnity, compensation and reparation.
3. Peasants and other people working in rural areas have
the right to legal assistance. States shall consider additional measures,
including legal aid, to support peasants and other people working in
rural areas who would otherwise not have access to administrative
and judicial services.
4. States shall consider measures to strengthen relevant
national institutions for the promotion and protection of all human
rights, including the rights described in the present Declaration.
5. States shall provide peasants and other people working in
rural areas with effective mechanisms for the prevention of and
redress for any action that has the aim or effect of violating their
human rights, arbitrarily dispossessing them of their land and natural
resources or of depriving them of their means of subsistence and
integrity, and for any form of forced sedentarization or population
displacement.
Article 13
1. Peasants and other people working in rural areas have the
right to work, which includes the right to choose freely the way they
earn their living.
2. Children of peasants and other people working in rural
areas have the right to be protected from any work that is likely to be
hazardous or to interfere with the child's education, or to be harmful
to a child's health or physical, mental, spiritual, moral or social
development.

3. States shall create an enabling environment with

opportunities for work for peasants and other people working in rural
areas and their families that provide remuneration allowing for an
adequate standard of living.
4. In States facing high levels of rural poverty and in the
absence of employment opportunities in other sectors, States shall
take appropriate measures to establish and promote sustainable food
systems that are sufficiently labour-intensive to contribute to the
creation of decent employment.
5. States, taking into account the specific characteristics of
peasant agriculture and small-scale fisheries, shall monitor compliance
with labour legislation by allocating, where required, appropriate
resources to ensuring the effective operation of labour inspectorates in
rural areas.
6. No one shall be required to perform forced, bonded or
compulsory labour, be subject to the risk of becoming a victim of
human trafficking or be held in any other form of contemporary
slavery. States shall, in consultation and cooperation with peasants
and other people working in rural areas and their representative
organizations, take appropriate measures to protect them from
economic exploitation, child labour and all forms of contemporary
slavery, such as debt bondage of women, men and children, and
forced labour, including of fishers and fish workers, forest
workers, or seasonal or migrant workers.
Article 14
1. Peasants and other people working in rural areas,
irrespective of whether they are temporary, seasonal or migrant
workers, have the rights to work in safe and healthy working
conditions, to participate in the application and review of safety and
health measures, to select safety and health representatives and
representatives in safety and health committees, to the implementation
of measures to prevent, reduce and control hazards and risks, to have
access to adequate and appropriate protective clothing and equipment
and to adequate information and training on occupational safety, to
work free from violence and harassment, including sexual harassment,
to report unsafe and unhealthy working conditions, and to remove
 36

themselves from danger resulting from their work activity when they
reasonably believe that there is an imminent and serious risk to their
safety or health, without being subject to any work-related retaliation
for exercising such rights.
2. Peasants and other people working in rural areas have the
right not to use or to be exposed to hazardous substances or toxic
chemicals, including agrochemicals or agricultural or industrial
pollutants.
3. States shall take appropriate measures to ensure
favourable safe and healthy working conditions for peasants and
other people working in rural areas, and shall in particular designate
appropriate competent authorities responsible, and establish
mechanisms for intersectoral coordination for the implementation of
policies and enforcement of national laws and regulations on
occupational safety and health in agriculture, the agro-industry and
fisheries, provide for corrective measures and appropriate penalties,
and establish and support adequate and appropriate systems of
inspection for rural workplaces.
4. States shall take all measures necessary to ensure:
(a) The prevention of risks to health and safety derived from
technologies, chemicals and agricultural practices, including through
their prohibition and restriction;
(b) An appropriate national system or any other system
approved by the competent authority establishing specific criteria for
the importation, classification, packaging, distribution, labelling and
use of chemicals used in agriculture, and for their prohibition or
restriction;
(c) That those who produce, import, provide, sell, transfer,
store or dispose of chemicals used in agriculture comply with national
or other recognized safety and health standards, and provide adequate
and appropriate information to users in the appropriate official
language or languages of the country and, on request, to the
competent authority;

(d) That there is a suitable system for the safe collection,

recycling and disposal of chemical waste, obsolete chemicals and
empty containers of chemicals so as to avoid their use for other
purposes and to eliminate or minimize the risks to safety and health
and to the environment;
(e) The development and implementation of educational and
public awareness programmes on the health and environmental
effects of chemicals commonly used in rural areas, and on alternatives
to them.
Article 15
1. Peasants and other people working in rural areas have the
right to adequate food and the fundamental right to be free from
hunger. This includes the right to produce food and the right to
adequate nutrition, which guarantee the possibility of enjoying the
highest degree of physical, emotional and intellectual development.
2. States shall ensure that peasants and other people
working in rural areas enjoy physical and economic access at all times
to sufficient and adequate food that is produced and consumed
sustainably and equitably, respecting their cultures, preserving access
to food for future generations, and that ensures a physically and
mentally fulfilling and dignified life for them, individually and/or
collectively, responding to their needs.
3. States shall take appropriate measures to combat
malnutrition in rural children, including within the framework of
primary health care through, inter alia, the application of readily
available technology and the provision of adequate nutritious food
and by ensuring that women have adequate nutrition during
pregnancy and lactation. States shall also ensure that all segments of
society, in particular parents and children, are informed, have access
to nutritional education and are supported in the use of basic
knowledge on child nutrition and the advantages of breastfeeding.
4. Peasants and other people working in rural areas have the
right to determine their own food and agriculture systems,
recognized by many States and regions as the right to food
sovereignty. This includes the right to participate in decision-making
 37

processes on food and agriculture policy and the right to healthy and
adequate food produced through ecologically sound and sustainable
methods that respect their cultures.
5. States shall formulate, in partnership with peasants and
other people working in rural areas, public policies at the local,
national, regional and international levels to advance and protect the
right to adequate food, food security and food sovereignty and
sustainable and equitable food systems that promote and protect the
rights contained in the present Declaration. States shall establish
mechanisms to ensure the coherence of their agricultural, economic,
social, cultural and development policies with the realization of the
rights contained in the present Declaration.
Article 16
1. Peasants and other people working in rural areas have the
right to an adequate standard of living for themselves and their
families, and to facilitated access to the means of production
necessary to achieve them, including production tools, technical
assistance, credit, insurance and other financial services. They also
have the right to engage freely, individually and/or collectively, in
association with others or as a community, in traditional ways of
farming, fishing, livestock rearing and forestry and to develop
community-based commercialization systems.
2. States shall take appropriate measures to favour the
access of peasants and other people working in rural areas to the
means of transportation, and processing, drying and storage facilities
necessary for selling their products on local, national and regional
markets at prices that guarantee them a decent income and livelihood.

3. States shall take appropriate measures to strengthen and

support local, national and regional markets in ways that facilitate,
and ensure that peasants and other people working in rural areas
have, full and equitable access and participation in these markets to
sell their products at prices that allow them and their families to attain
an adequate standard of living.

4. States shall take all appropriate measures to ensure that

their rural development, agricultural, environmental, trade and
investment policies and programmes contribute effectively to
protecting and strengthening local livelihood options and to the
transition to sustainable modes of agricultural production. States shall
stimulate sustainable production, including agroecological and
organic production, whenever possible, and facilitate direct farmer-to-
consumer sales.
5. States shall take appropriate measures to strengthen the
resilience of peasants and other people working in rural areas against
natural disasters and other severe disruptions, such as market failures.
6. States shall take appropriate measures to ensure fair wages
and equal remuneration for work of equal value, without distinction of
any kind.
Article 17
1. Peasants and other people living in rural areas have the
right to land, individually and/or collectively, in accordance with
article 28 of the present Declaration, including the right to have access
to, sustainably use and manage land and the water bodies, coastal
seas, fisheries, pastures and forests therein, to achieve an adequate
standard of living, to have a place to live in security, peace and dignity
and to develop their cultures.
2. States shall take appropriate measures to remove and
prohibit all forms of discrimination relating to the right to land,
including those resulting from change of marital status, lack of legal
capacity or lack of access to economic resources.
3. States shall take appropriate measures to provide legal
recognition for land tenure rights, including customary land tenure
rights not currently protected by law, recognizing the existence of
different models and systems. States shall protect legitimate tenure,
and ensure that peasants and other people working in rural areas are
not arbitrarily or unlawfully evicted and that their rights are not
otherwise extinguished or infringed. States shall recognize and protect
the natural commons and their related systems of collective use and
management.
 38

4. Peasants and other people working in rural areas have the

right to be protected against arbitrary and unlawful displacement
from their land or place of habitual residence, or from other natural
resources used in their activities and necessary for the enjoyment of
adequate living conditions. States shall incorporate protections
against displacement into domestic legislation that are consistent with
international human rights and humanitarian law. States shall
prohibit arbitrary and unlawful forced eviction, the destruction of
agricultural areas and the confiscation or expropriation of land and
other natural resources, including as a punitive measure or as a
means or method of war.
5. Peasants and other people working in rural areas who
have been arbitrarily or unlawfully deprived of their lands have the
right, individually and/or collectively, in association with others or as
a community, to return to their land of which they were arbitrarily or
unlawfully deprived, including in cases of natural disasters and/or
armed conflict and to have restored their access to the natural
resources used in their activities and necessary for the enjoyment of
adequate living conditions, whenever possible, or to receive just, fair
and lawful compensation when their return is not possible.
6. Where appropriate, States shall take appropriate measures
to carry out agrarian reforms in order to facilitate broad and equitable
access to land and other natural resources necessary to ensure that
peasants and other people working in rural areas enjoy adequate
living conditions, and to limit excessive concentration and control of
land, taking into account its social function. Landless peasants, young
people, small-scale fishers and other rural workers should be given
priority in the allocation of public lands, fisheries and forests.
7. States shall take measures aimed at the conservation and
sustainable use of land and other natural resources used in their
production, including, among others, through agroecology, and
ensure the conditions for the regeneration of biological and other
natural capacities and cycles.

Article 18
1. Peasants and other people working in rural areas have
the right to the conservation and protection of the environment and
the productive capacity of their lands, and of the resources that
they use and manage.
2. States shall take appropriate measures to ensure that
peasants and other people working in rural areas enjoy, without
discrimination, a safe, clean and healthy environment.
3. States shall comply with their respective international
obligations to combat climate change. Peasants and other people
working in rural areas have the right to contribute to the design and
implementation of national and local climate change adaptation and
mitigation policies, including through the use of practices and
traditional knowledge.

4. States shall take effective measures to ensure that no

hazardous material, substance or waste is stored or disposed of on
the land of peasants and other people working in rural areas, and
shall cooperate to address the threats to the enjoyment of their
rights that result from transboundary environmental harm.
5. States shall protect peasants and other people working
in rural areas against abuses by non-State actors, including by
enforcing environmental laws that contribute, directly or indirectly,
to the protection of the rights of peasants or other people working
in rural areas.
Article 19
1. Peasants and other people working in rural areas have
the right to seeds, in
accordance with article 28 of the present Declaration, including:
(a) The right to the protection of traditional knowledge
relevant to plant genetic resources for food and agriculture;
(b) The right to equitably participate in sharing the benefits
arising from the utilization of plant genetic resources for food and
agriculture;
 39

(c) The right to participate in the making of decisions on

matters relating to the conservation and sustainable use of plant
genetic resources for food and agriculture;
(d) The right to save, use, exchange and sell their farm-saved
seed or propagating material.
2. Peasants and other people working in rural areas have
the right to maintain,
control, protect and develop their own seeds and traditional
knowledge.
3. States shall take measures to respect, protect and fulfil
the right to seeds of
peasants and other people working in rural areas.
4. States shall ensure that seeds of sufficient quality and
quantity are available
to peasants at the most suitable time for planting, and at an
affordable price.
5. States shall recognize the rights of peasants to rely
either on their own seeds or on other locally available seeds of
their choice, and to decide on the crops and species that they
wish to grow.
6. States shall take appropriate measures to support
peasant seed systems, and promote the use of peasant seeds
and agrobiodiversity.
7. States shall take appropriate measures to ensure that
agricultural research and development integrates the needs
of peasants and other people working in rural areas, and to
ensure their active participation in the definition of priorities
and the undertaking of research and development, taking
into account their experience, and increase investment in
research and the development of orphan crops and seeds
that respond to the needs of peasants and other people
working in rural areas.
8. States shall ensure that seed policies, plant variety
protection and other intellectual property laws, certification
schemes and seed marketing laws respect and take into
account the rights, needs and realities of peasants and other
people working in rural areas.
Article 20
1. States shall take appropriate measures, in accordance with
their relevant international obligations, to prevent the depletion and
ensure the conservation and sustainable use of biodiversity in order to
promote and protect the full enjoyment of the rights of peasants and
other people working in rural areas.
2. States shall take appropriate measures to promote and
protect the traditional knowledge, innovation and practices of
peasants and other people working in rural areas, including
traditional agrarian, pastoral, forestry, fisheries, livestock and
agroecological systems relevant to the conservation and sustainable
use of biological diversity.
3. States shall prevent risks of violation of the rights of
peasants and other people working in rural areas arising from the
development, handling, transport, use, transfer or release of any
living modified organisms.
Article 21
1. Peasants and other people working in rural areas have the
human rights to safe and clean drinking water and to sanitation,
which are essential for the full enjoyment of life and all human rights
and human dignity. These rights include water supply systems and
sanitation facilities that are of good quality, affordable and physically
accessible, and nondiscriminatory and acceptable in cultural and
gender terms.
2. Peasants and other people working in rural areas have the
right to water for personal and domestic use, farming, fishing and
livestock keeping and to securing other water-related livelihoods,
ensuring the conservation, restoration and sustainable use of water.
They have the right to equitable access to water and water
management systems, and to be free from arbitrary disconnections or
the contamination of water supplies.
 40

3. States shall respect, protect and ensure access to water,

including in customary and community-based water management
systems, on a non-discriminatory basis, and shall take measures to
guarantee affordable water for personal, domestic and productive
uses, and improved sanitation, in particular for rural women and
girls, and persons belonging to disadvantaged or marginalized
groups, such as nomadic pastoralists, workers on plantations, all
migrants regardless of their migration status, and persons living in
irregular or informal settlements. States shall promote appropriate
and affordable technologies, including irrigation technology,
technologies for the reuse of treated wastewater, and for water
collection and storage.
4. States shall protect and restore water-related ecosystems,
including mountains, forests, wetlands, rivers, aquifers and lakes,
from overuse and contamination by harmful substances, in particular
by industrial effluent and concentrated minerals and chemicals that
result in slow and fast poisoning.
5. States shall prevent third parties from impairing the
enjoyment of the right to water of peasants and other people working
in rural areas. States shall prioritize water for human needs before
other uses, promoting its conservation, restoration and sustainable
use.
Article 22
1. Peasants and other people working in rural areas have the
right to social security, including social insurance.
2. States shall, according to their national circumstances,
take appropriate steps to promote the enjoyment of the right to
social security of all migrant workers in rural areas.

3. States shall recognize the rights of peasants and other

people working in rural areas to social security, including social
insurance, and, in accordance with national circumstances, should
establish or maintain their social protection floors comprising basic
social security guarantees. The guarantees should ensure at a
minimum that, over the life cycle, all in need have access to essential
health care and to basic income security, which together secure
effective access to goods and services defined as necessary at the
national level.
4. Basic social security guarantees should be established
by law. Impartial, transparent, effective, accessible and
affordable grievance and appeal procedures should also be
specified. Systems should be in place to enhance compliance
with national legal frameworks.

Article 23
1. Peasants and other people working in rural areas have
the right to the enjoyment of the highest attainable standard of
physical and mental health. They also have the right to have access,
without any discrimination, to all social and health services.
2. Peasants and other people working in rural areas have the
right to use and protect their traditional medicines and to maintain
their health practices, including access to and conservation of their
plants, animals and minerals for medicinal use.
3. States shall guarantee access to health facilities, goods and
services in rural areas on a non-discriminatory basis, especially for
groups in vulnerable situations, access to essential medicines,
immunization against major infectious diseases, reproductive health,
information concerning the main health problems affecting the
community, including methods of preventing and controlling them,
maternal and child health care, as well as training for health personnel,
including education on health and human rights.
Article 24
1. Peasants and other people working in rural areas have
the right to adequate housing. They have the right to sustain a
secure home and community in which to live in peace and
dignity, and the right to non-discrimination in this context.
 41

2. Peasants and other people working in rural areas

have the right to be protected against forced eviction from
their home, harassment and other threats.
3. States shall not, arbitrarily or unlawfully, either
temporarily or permanently, remove peasants or other people
working in rural areas against their will from the homes or land
that they occupy without providing or affording access to
appropriate forms of legal or other protection. When eviction is
unavoidable, the State must provide or ensure fair and just
compensation for any material or other losses.
Article 25
1. Peasants and other people working in rural areas have the
right to adequate training suited to the specific agroecological,
sociocultural and economic environments in which they find
themselves. Issues covered by training programmes should include,
but not be limited to, improving productivity, marketing, and the
ability to cope with pests, pathogens, system shocks, the effects of
chemicals, climate change and weather-related events.
2. All children of peasants and other people working in
rural areas have the right to education in accordance with their
culture, and with all the rights contained in human rights
instruments.
3. States shall encourage equitable and participatory farmer-
scientist partnerships, such as farmer field schools, participatory
plant breeding, and plant and animal health clinics to respond more
appropriately to the immediate and emerging challenges that
peasants and other people working in rural areas face.
4. States shall invest in providing training, market
information and advisory services at the farm level.
Article 26
1. Peasants and other people working in rural areas have the
right to enjoy their own culture and to pursue freely their
cultural development, without interference or any form of
discrimination. They also have the right to maintain, express,
control, protect and develop their traditional and local
knowledge, such as ways of life, methods of production or
technology, or customs and tradition. No one may invoke
cultural rights to infringe upon the human rights guaranteed
by international law, nor to limit their scope.
2. Peasants and other people working in rural areas have the
right, individually and/or collectively, in association with others or as
a community, to express their local customs, languages, culture,
religions, literature and art, in conformity with international human
rights standards.
3. States shall respect, and take measures to recognize and
protect, the rights of peasants and other people working in rural
areas relating to their traditional knowledge, and eliminate
discrimination against the traditional knowledge, practices and
technologies of peasants and other people working in rural areas.
Article 27
1. The specialized agencies, funds and programmes of the
United Nations system, and other intergovernmental organizations,
including international and regional financial organizations, shall
contribute to the full realization of the present Declaration, including
through the mobilization of, inter alia, development assistance and
cooperation. Ways and means of ensuring the participation of peasants
and other people working in rural areas on issues affecting them shall
be considered.
2. The United Nations and its specialized agencies, funds and
programmes, and other intergovernmental organizations, including
international and regional financial organizations, shall promote
respect for and the full application of the present Declaration, and
follow up on its effectiveness.
Article 28
1. Nothing in the present Declaration may be construed as
diminishing, impairing or nullifying the rights that peasants and
other people working in rural areas and indigenous peoples
 42

currently have or may acquire in the future.

2. The human rights and fundamental freedoms of all,

without discrimination of any kind, shall be respected in the
exercise of the rights enunciated in the present Declaration. The
exercise of the rights set forth in the present Declaration shall be
subject only to such limitations as are determined by law and that are
compliant with international human rights obligations. Any such
limitations shall be non-discriminatory and necessary solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others, and for meeting the just and most compelling
requirements of a democratic society.
(Underlining is provided for emphasis)

26. Thus, the State is, prima facie, left with no option but to make

legislation particularly in line of what has been chalked out in the said

declaration and the Constitution of Pakistan. Such law should not only

describe rights and obligations of peasant in respect of lands but should

also include such mechanism whereby:

i) eliminating the discriminative behavior with or

towards Hari / peasant;

ii) assuring not mere guarantee of fundamental rights but

enjoyment thereof;

iii) assuring restrain on sudden eviction as well illegal

eviction;

iv) assuring compensation against illegal and sudden

eviction;

v) assuring protection to education of children in case

of sudden and illegal eviction;

vi) assuring easy access to judicial system as well law

enforcing agencies;

vii) assuring easy access to healthcare facility;

viii) assuring compulsory education to children;

ix) assuring a sense of protection to their women and children;

x) ensure compulsory life insurance of the peasants and their

family members during or at time of creation of any such
relationship so as to cover accidental death, harm or serious
ailment of Hari, if receives while performing his any of the
duties as HARI;
 43

xi) ensure social security by the State for the laborers/peasants

working in the agricultural sector by introducing fair and
transparent mechanism for welfare and help of Hari in
event of dire need like daughter‟s marriage, higher
education of children etc; in that regard Province of Sindh
should allocate basic funds, establish board/authority to
receive requisite amount from landlord on yearly basis
which would be adjustable at time of settlement of account;

Since, the legislation is pure duty of the legislators therefore, things are left

open but with hope rather belief that such legislation shall meet chalked

out objective (s) and shall be made within least practicable period not

exceeding four months.

27. We would add here that no law shall serve its purpose and object

unless the peasants (Haris) are made enrolled / registered in some official

record. Such enrollment / registration shall not only operate as a caution

for Zamindar / Jagirdar in honouring his obligation (s) towards Haris but

shall also operate as a restrain in prejudicing any fundamental rights of

Hari. Such record should not confine to mere entry but must be required to

be maintained on yearly basis so that it could also help in managing and

maintaining the record of increase or decrease in number of Hari. The

maintaining of the record (Form VI), as insisted in the ACT, was aimed so

which, despite its legal existence, seems to have never been properly

maintained. Accordingly, such provision shall be kept alive even in new

enactments even by preserving or making better the Rule 3 of Sindh

Tenancy Rules, 2002 which reads as:-

―3. Maintenance of Record: (1) The Tapedar shall record during

each cropping season the Field Book prescribed under the Land
Revenue Rules and also in columns 11 and 27 of village Form VI,
the name of the actual cultivators in respect of each unit of
assessment.

(2) …

(3)…
 44

Since, such record shall not only help in new legislation on / towards

peasants rights but is also requirement of existing ACT, therefore, the

compliance of the above Rule must be made in letter and spirit.

28. At this juncture, we find it necessary to reiterate that normally no

one shall choose to part with his job (source of living) but the provision of

section 491 of the Code (habeas corpus petition (Article 199)) frequently are

used by Hari, which, ultimately, operates as a sword to terminate the

„tenancy‟ though same has to be resorted per provision of section 13 of the

ACT only. We are conscious that normally the Haris join same profession /

work but with other landlord / zamindar. This has been one of the reasons

of great concern for all those, involved in profession of cultivation. The

reasons, prima facie, could be nothing but negation to what, prima facie,

provided in the ACT itself i.e balancing rights and obligations between

two even in respect of land. The Hari, per ACT itself, is entitled to:-

i) an area for accommodation;

ii) know his legal status as „tenant‟ , having certain rights;

iii) have prescribed area (on prescribed conditions) for growing

cattle-fodder as well vegetable cultivation for personal use
(section 24 of the ACT);

If there have been protected and guaranteed rights of the Haris, the same

shall, hopefully and logically, shall operate as a „barrier‟ in termination of

the Tenancy by any other way but what the law (ACT) provides.

29. We are also conscious of the fact that because of imbalance as well

failure of true enforcement of the ACT and advancement through

technology also resulted in making the landlords / Zamindars to think to

introduce concept of AGRO LABOUR which, since, has been a completely

new phenomena therefore, such like labourers have no law to have their

rights and privileges protected like labourers working in industries. It is

 45

needless to say that since such agro labour cannot be prohibited being

creation of self-agreed contract between two but requires to be brought

under some „mechanism‟ so as to maintain a balance in obligations /

duties of employer / landlord and that of Government because legally the

rights towards labour / work is undeniable duty of employer / landlord

while assuring enjoyment of guarantee of fundamental rights is undeniable

duty of the State. The above principle of balance has been insisted not only

in our Constitution but also in religion (Islam) which obligation the

STATE did take by signing the referred declaration. The Prophet

Muhammad (‫ )صلى هللا علیه وسلن‬is reported to have said :

“Your employees are your brothers upon whom Allah has given
you authority, so if a Muslim has another person under his
control, he / she should feed them with the like of what one eats and
clothe them with the like of what one wears and you should not
overburden them with what they cannot bear and if you do so, help
them in their jobs.”

Thus, the government is under an obligation to make necessary legislation

for agro labourers like industrial labourers. It may, however, be added

that objective cannot be achieved unless first the Government:

i) makes it compulsory to bring on record all labourer

by adopting a mechanism to register every single
labourer, including agro labourer;

This shall make it easy not only to keep a watch over duties of an employer

or landlord/zamindar which he owes towards his employee / hari but

shall also help the Government in assuring providing him (employee /

hari) the right to enjoy life which, needless to add, is not limited to mere

act of breathing but includes:-

‗reasonable labour money, access to education; health care

facility; information, technology; legal help / aid and justice
etc‘
 46

Therefore, while making legislation on the subject, we expect that the

Government will keep in mind the concept of AGRO LABOURERS

discussed above including those aspects highlighted in DECLARATION

so as to ease a little what was complained by Dr. Allama Iqbal as:-

‫تو قادر و عادل ہے مگر تیرے جہاں میں‬

‫ہیں تلخ بہت بندۂ مزدور کے اوقات‬

30. Now, we would revert to the question of jurisdiction, so was

framed vide order dated 25.07.2019. There can hardly be any dispute with

regard to status of ‗Revenue hierarchy‘ as that „Executive/administrative‟

and this, prima facie, had been the sole reason because of which all the

judicial powers were taken away from such „Executives‟ which, earlier, were

being exercised by such Revenue Officers except one under issue. The

judiciary was, in fact, completely separated from executive through Law

Reforms Act, 1997 (which was promulgated in compliance of the

judgment of Hon‘ble Supreme Court passed in Sharaf Faridi Case [PLD

1994 Supreme Court 105]) read with Law Reforms Ordinance, 1972 which

manifests itself in Article 175(3) of 1973 Constitution of Pakistan.

31. To make things a little easy for understanding the issue, it would be

appropriate to refer the opening of the judgment of case of Sharaf Faridi

which reads as:-

―The Constitution of the Islamic Republic of Pakistan, 1973 in its

preamble (now made a substantive part thereof vide Article 2-A)
declares that ―the independence of the judiciary shall be fully
secured‖ therein.

Now according to consensus of the jurists, the

independence of the judiciary means---
a) That every Judge is free to decide matters before him in
accordance with his assessment of the fats and his
understanding of the law without improper
influences, inducements or pressures, direct or
indirect, from any quarter or for any reason; and
 47

b) That the judiciary is independent of the Executive

and Legislature, and has jurisdiction, directly or by
way of review , over all issues of a judicial nature;

In our Constitution, the specific provision designed to

secure this independence is contained in clause (3) of
Article 175 by enacting that:

―The Judiciary shall be progressively separated from

the Executive….‖

The above opening, to best of our belief and understanding, left

nothing ambiguous that all issues of judicial nature shall never be

available for adjudication / determination by any other person / authority

but a Court or least by a quasi-judicial Tribunal. The word „Tribunal‟, per

Black‘s Law Dictionary (Ninth Edition) means :-

―(1) A Court or other adjudicatory body. (2)The seat, bench, or place

where a judge sits.

The Black‘s Law Dictionary (Ninth Edition) does define the words

“adjudicate” and „adjudication” as:-

―Adjudicate:- (1) To rule upon judicially”

―Adjudication:- (1) The legal process of resolving a dispute; the process

of judicially deciding a case‖

32. Since, prima facie, both Court (s) and Tribunal (s) make judicial

determination therefore, both can be termed as synonyms to each other to

such an extent. However, if the erection of a Tribunal is meant “to impose

liability or to affect the rights” then such a Tribunal, though constituted

under special enactment for specific purpose (issue), would fall within

meaning of a “Court”. We would add that an AUTHORITY , even if

named as Tribunal, shall not necessarily fall within meaning of a „Court‟

but only those Tribunals shall fall within such definition which are to

exercise judicial power thereby passing a conclusive judgment

determining rights and liabilities, capable of being enforced by it. The

 48

difference of Court and Tribunal did come into discussion in the case of

Iftikhar Ahmed v. MCB Ltd. (PLD 1984 Lahore 69). The operative parts,

being relevant, are reproduced hereunder:-

[

―6. In order to appreciate the point, we must first know the

meaning and the difference between the two concepts i.e ―Court‖
and ―Tribunal‖. It is historically accepted that only the Courts
exercise judicial power. Coke said; Court is a place where justice is
judicially administered. According to ―Words and Phrases Legally
Defined‘ Volume 1, page 367, the term ―Court‖ has acquired the
meaning of the place where justice is administered and as come to
mean the persons who exercise judicial functions under
authority either immediately or immediately from the Sovereign
and not by reason of merely submission to their jurisdiction‖. The
20 Am. Jurisdiction 2nd page 386 gives the definition as under:-

―Generally speaking, the word ‗Court‘… describes an organ of

Government consisting of one person or of several persons,
called upon and authorized to administer justice. Whether a
government agency is a Court is determined not by its name or
title but by its organizational character, its purpose or its
function.‖

‗9. Many Courts and legal philosophers who attempted to

give the exact meaning and scope of the term „judicial power‟ have
opined that is not possible to adopt any exhaustive and exclusive
definition. However, in re: The Judiciary Act (2), it was stated that ‗
all these opinions indicate that a matter under the judicature
provisions of the Constitution must involve some right or
privilege or protection given by law or prevention , redress or
punishment of some act inhibited by law‘. A passage from R.V.
Local Government Board for Ireland (3), has been quoted by Dixon,
C.H of the High Court of the Commonwealth of Australia, in The
Queen v. Davison (4) as under:-

―I have always thought that to erect a tribunal or

‗jurisdiction‘, so as to make its determination judicial, the
essential element is that it should have powers, by its
determination within jurisdiction to impose liability or
affect rights. By this I mean that the liability is imposed, or
the right affected by the determination only, and not by the
fact determined, and so that the liability will exist, or the right
will be affected, although the determination be wrong in law
or in fact.‖

…..

Kitto, J. in a very learned judgment in The Queen v. Trade Practices

Tribunal (5) concluded:-
 49

―Thus, a judicial power involves, as a general rule, a decision

settling for the future, as between defined persons or classes of
persons, as to existence of a right or obligation, so that as
exercise of the power creates a new charter by reference to which
that question is in future to be decided as between those persons
or classes of persons. In other words, the process to be followed
must generally be an inquiry concerning the law as it is and the
facts as they are, followed by an application of the law as
determined to the facts as determined; and the end to be reached
must be an act which, so long as it stands, entitles and obliges
the persons between whom it intervenes, to observance of the
rights and obligations that the application of law to fact has
shown to exist‖.

―11. The Indian view also on the scope and extent of judicial
power is not much different. In Harinagar Sugar Mills Ltd. v. Shyam
Sundar Jhunjhun wala (8) Hidayatullah, J. observed :-

―In my opinion, a Court in the strict sense is a Tribunal which is

a part of the ordinary hierarchy of Courts of civil judicature
maintained by the State under its constitution to exercise the
judicial power of the State. These Courts perform all the judicial
functions of the State except those that are excluded by law
from their jurisdiction.‖

In contrast the tribunals are those bodies of men who are

appointed to decide controversies arising under certain special
laws. The same Supreme Court in Shankar Lal Aggarwal v. Shankar
Lal Poddar (9) observed that it is ‗conceived that an administrative
order would be one which is directed to the regulation or
supervision of matters as distinguished from an order which
decides the rights of the parties or confers or refuse to confer
rights to property which are subject of adjudication before the
Courts. One of the tests would be whether a matter which
involves the exercise of discretion is left for the decision of
authority, particularly if that authority were a Court, and if the
discretion has to be exercised on objective as distinguished from a
purely subjective, consideration if they were a judicial decision.‖
Later, Bachawal, J. of the Indian Supreme Court in A.C. Companies
v. P.N. Sharma devised a test to say:--

―For the purpose of this case it is sufficient to say that any

outside authority empowered by State to determine
conclusively the right of two or more contending parties with
regard to any matter in controversy between them satisfies the
test of an authority vested with the judicial power of the
State.‖
 50

…….Professor S.A. De Smith at page 41 of Judicial Review of

Administrative Action, 18th Ed. Discussed this aspect. The test
formulated by him is as under:--

―An authority acts in a judicial capacity when, after

investigation and deliberation it determines an issue
conclusively by the application of a pre-existing legal rule or
any fixed objective standard to the facts of the situation.‖

―15. The Supreme Court in Tariq Transport company‟s case (1) held that
it is not presence or absence of the trappings of a Court but the character
of action taken in a given case and nature of rights it operates which
determines whether that action is judicial, ministerial or legislative or
whether it is simply the act of a public agent. ..

Having discussed pros and cons, it was concluded as:-

―18. Despite the collection of elaborate views above, it has

been generally observed that the definitions so far attempted
are not exhaustive of the term ‗Court‟. However, inspired by all
that has been said so far, and without claiming that it will be
exhaustive, in my humble view, ‗judicial power‘ is the legal
right , ability and authority to hear and decide, objectively and
after allowing opportunity to produce evidence, a justifiable
issue, dispute, or controversy, concerning the existing legal
rights, duties or interests of persons or property, arising out of
relations and dealings, between two or more parties, who bring
the same for an authoritative decision, binding on them and
may include the authority to execute or get executed its
decision and protect rights prevent and redress wrongs and
punish offences through legal process. Further, the judicial
power must be conferred by the State and Constitution or law
and not the mere consent or parties, one person who are paid
by the State and removable by it only. The authority or body in
which this power is vested is generally called a ‗Court‘ and in
performing its functions it declares, construes and applies law
or custom or usage, having the force of law. The ‗judicial
power‘ is thus the instrument to be used by the Court.

33. Being guided by above legal position, now, we find ourselves quite

safe in concluding that all those „Tribunals‟ shall include into ‗Courts‘ if:

i) it has been erected for determination of rights and

liabilities with reference to a law;

ii) the determination of rights and liabilities is subject to

a „due process‟ ;

iii) it has to appreciate not only the facts/documents and

evidence but interpretation of provisions of law;
 51

iv) it has to pass a conclusive decision / judgment thereby

asking one party to do what specific law, per duty /
obligation, demands to do;

v) such decision / judgment has status of finality, may be

after exhausting other available remedies of appeal
etc;

We would add here that in Article 175, the use of phrase „progressively

separated‟ is always meant that at that time it, perhaps, was not practicable

to part the Executives from assigned judicial powers but since it, even at

such time, found to be not advisable to leave judicial powers with

executives so ‗progressive (complete) separation‘ was insisted because a

„judicial power‟ shall, as was insisted in case of Sharaf Faridi cannot be

asked unless the person, assigned such duty, :

a) his understanding of the law; and

b) without improper influences, inducements or pressures,

direct or indirect, from any quarter or for any reason; and

Understanding of the law, we shall emphasis, for determination of a right

and liability, shall always demand „judicial determination‟ which

without proper knowledge and skill in understanding and interpretation

of law cannot be hoped, hence mere acquaintance of law in addition to

specifically assigned „executive or administrative‟ duties / works to an

‗official‘ would never be sufficient to assign him with power of

jurisdiction, requiring judicial power. This, prima facie, has been the

reason that in referred para(b) of case of Sharaf Faridi it was categorically

stated that „judiciary is independent of the Executive and Legislature‘.

The term „complete separation and independence‟ of judiciary from

Executive / Administrative‟ shall never find satisfaction if any ‗Executive‘

is allowed to continue exercising jurisdiction which, otherwise, falls

within four corners of above criterion because such job can never fall

within meaning of Executive or Administrative and at the most could fall

 52

within meaning of quasi-judicial. Guidance is taken from the case of Younas

Abbas and others v. Additional Sessions Judge, Chakwal & others (PLD 2016 SC

581) wherein it is categorically held as:-

―11. …..The functions, the Ex-Officio Justice of Peace performs,

are not executive, administrative or ministerial inasmuch as he
does not carry out, manage or deal with things mechanically. His
functions as described in Clauses (i), (ii) and (iii) of subsection (6)
of Section 22-A, Cr.P.C., are quasi-judicial as he entertains
applications, examines the record, hears the parties, passes orders
and issues directions with due application of mind. Every lis
before him demands discretion and judgment . Functions so
performed cannot be termed as executive, administrative or
ministerial on any account. We thus don‘t agree with the ratio of
the judgments rendered in the cases of Khizar Hayat and others v.
Inspector General of Police (Punjab), Lahore and others (PLD 2005
Lah. 470) and Muhammad Ali v. Additional I.G. (PLD 2015 SC
753) inasmuch as it holds that the functions performed by the Ex-
Officio Justice of Peace are executive, administrative or
ministerial.‖

34. So far discussion couple with binding judgments, pronounced by

honourable Apex Court, help us in saying that an authority / form,

though not named as ‗Court‘, if is found to be exercising judicial powers

or has been vested with power to pass a „conclusive & binding judgment‟

then letting it continue functioning as such would be nothing but a

negation to all binding judgments of honourable Apex Court as well

violation of Article 175 of the Constitution. Such fact, once comes to notice

of this Court even, would always require an action so as to bring things, as

per commandment of binding legal position. In case titled "YOUNAS

ABBAS and others v. ADDITIONAL SESSIONS JUDGE, CHAKWAL and

others" (PLD 2016 Supreme Court 581), the apex Court has held that a

provision of law can be declared ultra vires if it is violative of the

provisions of the Constitution which guarantee fundamental rights,

independence of judiciary or its separation from the executive. In another

case titled "PROVINCE OF SINDH through Chief Secretary and another v.

 53

RASHEED A. RIZVI and others" (PLD 2012 Supreme Court 649), the

Hon'ble Supreme Court of Pakistan has also held as under:-

20. The SPSC, to which certain functions of the Provincial

Government of Sindh have by law been delegated under
Article 138 of the Constitution, has correctly been deemed by
the High Court as an executive authority. It is clearly
performing an executive function and for this very reason, it
cannot be given the task of making appointments to the
Judicature. It may, however, be noted that while it remains a
part of the Executive branch, for the effective discharge of its
duties, it has been provided a certain degree of autonomy
from the political executive. Where such autonomy is
unlawfully impinged upon by the Executive in a given
situation, the remedy lies in rectifying the specific
situation under Article 199 of the Constitution, rather than
declaring an Executive body to be incompetent or to be
acting mala fide."

In case titled "Sh. RIAZ-UL-HAQ and another v. FEDERATION OF

PAKISTAN through Ministry of Law and others" (PLD 2013 Supreme

Court 501), similar view was taken by the August Court and held that:-

"41. It is pertinent to mention here that as the Service

Tribunals are not only deemed to be a civil Court but also
exercise judicial powers, therefore, they are included in the
term 'Court' mentioned in Article 175 of the Constitution. As
such, these Tribunals are to be manned, controlled and
regulated in accordance with the law relating to
management, regulation and control of Courts in Pakistan.

42. It is to be noted that independence of judiciary has been

recognized as a universal human right. In terms of Article 10
of the Universal Declaration of Human Rights, G.A, 1948,
everyone is entitled to full equality to a fair and public
hearing by an independent and impartial Tribunal. In
Pakistan, the independence of judiciary is a basic principle of
the constitutional system of governance. The Preamble and
Article 2A state that "the independence of judiciary shall be
fully secured". This Court while interpreting Article 175 has
further strengthened the principle of the independence of
judiciary, by emphasizing the separation of Judiciary from
the Executive. The Constitution makes it the exclusive
power/responsibility of the Judiciary to ensure the
sustenance of the system of "separation of powers" based on
checks and balances. This is a legal obligation assigned to the
Judiciary. It is called upon to enforce the Constitution and
safeguard the Fundamental Rights and freedom of
individuals. To do so, the Judiciary has to be properly
organized and effective and efficient enough to quickly
address and resolve public claims and grievances; and also
 54

has to be strong and independent enough to dispense justice

fairly and impartially. .....

45. The Principle of separation and independence of

judiciary as envisaged in Article 175 of the Constitution is
also applicable to the lower judiciary as it is the part of the
judicial hierarchy. Thus, its separation and independence
has to be secured and preserved as that of superior
judiciary. In terms of Article 175 read with Article 203 of
the Constitution, the lower judiciary should be separated
from the Executive and the High Court shall supervise and
control all courts subordinate to it....As it has been held that
Service Tribunal discharges judicial functions, thus falls
within the definition of a "Court" in view of the above
discussion, therefore, the Tribunals have to be separated
from Executive following the principle of independence of
judiciary in view of Article 175(3) of the Constitution."

35. Here, it needs to be clarified that we are quite conscious of the fact

that mere performance of quasi-judicial functions by itself alone may not be

sufficient to bring such Authority / Forum within meaning of a ‗Court‘ if

the purpose thereof is solely meant to investigate / inquire into a dispute

for issuance of a direction / recommendation without a „binding effect‟

regarding rights and liabilities of contesting parties or that purpose

thereof is only to regulate affairs and to maintain the records. Conclusion

is, humbly, made while keeping in view of above conclusion as well view

of Honourable Apex Court, so recorded in case of Shafaatullah Qureshi v.

Federation of Pakistan PLD 2001 SC 142 wherein authority / forms,

performing quasi-judicial function, were not brought into definition of

‗Court‘ for reason of lacking jurisdiction to deliver a binding judgment.

The relevant portion thereof reads as:-

―10. It is significant to note that in the Order of 1983,

nowhere is stated that Ombudsman / Mohtasib is to serve as a
Court or Judicial Tribunal. Had, so being the intention of the
Legislature, the same would have been specifically been
mentioned therein. By implication status of Court cannot be
conferred upon the office of Wafaqi Mohtasib. He cannot
deliver a binding judgment which is a condition precedent
for being a Court….
 55

12. …Performance of quasi-judicial functions by itself does

not convert an authority into Court, whether an act is quasi-
judicial or purely executive depends on the interpretation of
rules/ law under which the authority exercises its jurisdiction.
It is true that the administrative authority also is to act bona
fide, but it is different from saying that it must act judicially.
Many authorities are not Court, although they have to decide
questions and have to act judicially in the sense that the
proceedings shall be conducted with fairness and impartiality.
In order to constitute a Court in strict sense, it shall have
power to give a decision or a definitive judgment which has
finality and authoritativeness.
(underlining has been supplied for emphasis)

The above discussed legal position has itself encouraged me to go on in

deciding the question, raised in the instant petition.

36. Now, we shall attend the ‗ACT‘ while keeping in above concluded

criterion which for sake of convenience are reproduced hereunder again:-

i) it has been erected for determination of rights and

liabilities with reference to a law;

ii) it has to appreciate not only the facts/documents and

evidence but interpretation of provisions of law;

iii) the determination of rights and liabilities is subject to

a „due process‟ ;

iv) it has to pass a conclusive decision / judgment thereby

asking one party to do what specific law, per duty /
obligation, demands to do;

v) such decision / judgment has status of finality, may be

after exhausting other available remedies of appeal
etc;

For point No.(i), we would say that since, the preamble normally operates

as a ‗key‟ to an enactment therefore, a referral to the preamble of the ACT,

being relevant, is made hereunder:-

―Whereas it is expedient to regulate by law the rights and

liabilities of agricultural tenants and their landlords in lands
in the Province of Sindh, and matters connected therewith; It is
hereby enacted as follows:-―
 56

The above referral is sufficient to show that the purpose of the ACT is

meant to determine the rights and liabilities between two independent

parties i.e agricultural tenants and landlords. we would add that word

‗regulate‘ , used in preamble, should not be of any substance so as to

prejudice the term ‗determination‘ which, otherwise, is the duty of the

Tribunal.

37. Be that as it may, let‘s proceed further. Perusal of the ACT further

shows that provisions of Sections 23 and 24 of the ACT describe specific

‗duties‘ of the ‗tenant‘ and that of ‗landlord‘ as:-

23. Duties of the tenant.—The following shall be the duties of a

tenant in respect of his tenancy, namely:--
(a) he shall be responsible for the provision of requisite
animal labour, and manual labour or use of mechanical
equipment or machinery for ploughing, leveling, weeding,
to enable the crops grown by him to be efficiently
cultivated;
Provided that in case of use of mechanical equipment or
machinery for ploughing, leveling, weeding, harvesting,
threshing or other work including carriage or transport of
farm inputs and produce; the expenses shall be calculated
at the prevalent market rates and shall be borne equally by
the landlord and the tenant;

(b) he shall be responsible for the proper weeding of all the

crops grown by him and for the cost of such weeding;

(c) he shall be responsible for necessary construction and

proper maintenance of irrigation funds and water-course
within the land allotted to him and for the cost of such
construction and maintenance;

(d) he shall not cultivate the land of any other landlord, if

he has been allotted a family holding;

(e) Omitted by Sindh Ordinance XXXII of 2002;

(f) Omitted by Sindh Ordinance XXXII of 2002;

(g) he shall be responsible for growing such crops and

such areas of crops and in such manner as may be
specified by the landlord;
Provided that the tenants cultivating right under this Act
shall not be affected;
 57

(h) any other duties as may be prescribed from time to

time;

24. Duties of the landlord.—the following shall be the duties of a

landlord namely:-

(a) he shall be responsible for the proper maintenance of the

main water-courses leading from the canal-modules to the
land, and for the cost of such maintenance; provided that
the tenant shall be bound to give his labour for the silt-
clearance of such water-course during the irrigation reason
and in return therefor the landlord shall be bound to
adequately compensate the tenant in cash;

(b) he shall be responsible for ensuring the supply of the

proper share of available irrigation water including lift and
tube-well to the land allotted to his tenant;

(c) he shall be responsible for payment of land revenue, water

rent, zakat, ushr and other taxes, cess, surcharge and levies
in respect of the land and for providing seed, and the cost
of fertilizer and pesticides shall be borne equally by the
landlord and the tenant but the landlord shall not take any
free labour from the tenant or a member of his family
against his will;

(d) any advance of food-grains by the landlord to a tenant for

domestic needs shall be repaid in cash at the time it was
lent or in kind of equivalent value;

(e) he shall be responsible for allotting a prescribed area on

prescribed conditions to the tenant for growing cattle-
fodder and vegetable cultivation for the personal use of the
tenant in areas where only cotton or sugar-cane or tobacco
or such other crops are grown which do not provide
fodder for the cattle;

(f) any other duties as may be prescribed from time to time;

38. It may safely be said that a „duty‟ always creates a „right‟ hence it is

the defined ‗duties‘ of the tenant/ hari which earn him certain rights which

is not limited to receive what tenant/ hari is entitled from cultivation only

but includes a right to enjoy protection against ejectment / termination of

tenancy.

The perusal of the ACT further shows that :

 58

(i) a permanent tenant has a right to transfer his tenancy

right with permission of landlord (section 3(a);

(ii) a permanent tenant has a right to transfer his

cultivation right to any other deh in which the
landlord holds land with permission of landlord
(section 3(b);

(iii) the rights of a permanent tenant is detailed as a

inheritable rights (section 10);

(iv) section 11 thereof gives the status of rights of

permanent tenant as unalienable and unattachable;

(v) section 12 thereof permits continuity of tenancy even

in case of incapacity of a permanent tenant;

All these have been detailed in the law itself hence a question of breach or

enforcement of any of the recognized rights shall always require

determination which, prima facie, is not requiring maintaining of a record

but of rights and duties.

39. Bet that as it may, the ACT does have section 13 which details how

a tenancy can be terminated. The section 19 thereof defines the production

of a land to be in ‗joint possession‘ of both tenant and landlord. If all

these provisions, detailing rights and obligations, are read with key of the

ACT, it can safely be concluded that purpose of Tribunal is nothing but to

decide such pre-existing / detailed rights and obligations thereby imposing

liabilities; remedies as well punishment for breach thereof (section 34 of

the ACT). This finds affirmation from provision of section 28 of the ACT

itself which reads as:-

―Procedure and powers.—(1) A tenant or a landlord may

personally or by their agent make an application to the Tribunal
appointed for the area in which the land in question is situated to
decide any dispute between the tenant and the landlord arising
out of the application of the provisions of the Act…‖

The above discussion makes it quite clear that purpose and object of the

ACT is one that shall require exercise of judicial power as it is meant to

 59

decide rights and liabilities, created by ACT itself, as well consequences

thereof.

40. The perusal of the subsections of section 28 of the ACT shows that:-

(a) Application must be in writing and must give full

particulars regarding nature of the dispute, ..;
(such detail is meant to know as to which right or claim
recognized in the ACT, requires determination)

(b) The Tribunal shall have to issue a notice to opponent;

(this is an assurance of right of hearing)

(c) The tribunal shall have power, as available to a Court

under CPC, for purpose of summoning parties and
witnesses as well to compel production of documents;
(this means that tribunal not only shall allow
examination of witnesses and production of documents
but can competently do so by itself if circumstances so
warrant to justly decide the dispute. This cannot be
hoped unless the man (performing such duty) is well
aware with pros and cons of such powers and right way
of exercising the same)

Thus, it is quite evident that such decision by a Tenancy Tribunal is not

confined to mere examination of record and hearing parties thereto but

involves application of number of laws including Qanun-e-Shahadat and

CPC. Such exercise shall always require judicial skill and complete

understanding of law. We may add here that Executives / Administrators

normally indulge in public dealings therefore their partiality is always easy

to be alleged which, normally, is rare / hard to allege in matters of judicial

officers who, per law, are to follow specific Code. Thus, point No.(ii) and

(iii) of given criterion also, prima facie, exist.

41. Point No.(iv) needs no much debate because the procedure and

power (section 28 of the ACT), prima facie, is aimed to pass a „conclusive

decision‟ which, however, has been termed as ‗award‘. Use of such word

alone since carries force of being enforcement hence shall be of no confusion

rather would operate as a judgment / order. Here a referral to explanation,

given at foot of section 13 of the ACT, shall make position clear which

reads as:-
 60

“A permanent tenant shall not (be) ejected otherwise than in execution of any
order of the Tribunal.”

For point No.(v), it would suffice to refer the section 32 of the Act

which reads as:-

―Orders to be final. – An order made by the Commissioner under

section 31 and subject to the provisions of that section an award of
the Tribunal or the order of the Collector shall be final and shall
not be called in question in any Court.‖

42. The above discussion is sufficient to conclude that purpose and

object of the Tribunal i.e regulating rights and liabilities of tenants and

landlord shall require exercise of judicial power therefore, it (Tribunal)

cannot be allowed to be headed by an Executive (Assistant

Commissioner), as provided in Section 27 of the ACT which reads as:-

―Constitution of Tribunals.—The Tribunal shall consist of one

member only who shall be the Assistant Commissioner for the
time being in office.‖

This, perhaps, had been the reason which had encouraged the learned

AAG to concede on competence of ‗Assistant Commissioner‘ to act as

Presiding Officer of Tenancy Tribunal which, being well in line, is worth

appreciating.

43. In addition to all above discussion on criterion, there is another

single fact which is sufficient to declare the Section 27 of the ACT as ultra

vires and void. A referral to section 34 of the ACT shall make things clear

that the ACT is never meant for correction of the record only but is

attempted to determine rights and obligations the contravention whereof

(rights and obligations) even has been made as liable to punishment. The

section reads as :-
 61

―34. Penalty.—(1) If any landlord or tenant contravenes any of

the provisions of this Act or of the Rules made thereunder, he
shall on conviction by a Magistrate not lower in rank than that of
a Second Class Magistrate, be liable to a fine which may extend
to Rs.500 and in default of payment of fine to simple
imprisonment which may extend to one month;

The bare reading of above shows that ‗punishment‘ is to be awarded by a

second class Magistrate which (punishment) undeniably could not be

without due process / trial. Undeniably, the Assistant Commissioner does

not have Magisterial powers but, per law, he (Assistant Commissioner) is

authorized to hear and determine all ‗disputes‘ regarding alleged

contravention of ‗ANY OF THE PROVISIONS OF THE ACT OR OF

THE RULES‘. Such position is nothing but portrays that „ASSISTANT

COMMISSIONER‟ can decide all such contravention but legally is not in a

position to pass a conviction as such powers are lying with Magisterial

Courts hence his status involves an authority to determine rights and

liabilities of people as well enforcement thereof. Accordingly, the legal

and binding position of law, allow us to declare the section 27 of the ACT

as ultra vires Article 175 of the Constitution of Pakistan. It may well be

added here that prima facie, the ‗Executives, including Assistant

Commissioner‘ cannot act as „Tenancy Tribunal‟ nor can deal with appeal,

revision etc, particularly when the Section 27 of the Act stood declared as

ultra vires and void, which legal position was, even, consented by learned

State representation. This, here, raises a question as to what would happen

to present pending petitions etc (arose because of the Act) before such

authorities or for those (landlord & Tenant), who gets a right to approach

such Tribunal TODAY? Since, right and entitlement, arose from the Act

itself, cannot be kept hanging for days together (till amendment) because

from now on any decision by Executives would but nothing but corum non
 62

judice, therefore, we find it in all fairness to authorize Civil Judge & JM to

exercise jurisdiction of Tenancy Tribunal and to entertain all petitions

which, per Act, are maintainable, till the section 27 of the Act is amended

by legislature by any mode within their wisdom subject to satisfaction of

true spirit of Article 175 of the Constitution.

44. In view of above discussions and directions the petition stands

disposed of. We, however, for easy compliance of all directives, reiterate
the same, in brief, as:-

(1) After the separation of the judiciary from the executive,

the Assistant Commissioner, the Additional
Commissioner and the Commissioner/Collector, do not
have jurisdiction to make judicial determination under
sections 27, 29 and 30 of the Sindh Tenancy Act, 1950,
and to that extent the said provisions are ultra vires
Article 175, 202 and 203 of the Constitution of Pakistan,
1973;

(2) Till such time necessary amendments are made to the

Sindh Tenancy Act 1950, the proceedings pending under
sections 27, 29 and 30 of the Sindh Tenancy Act, 1950
shall be transferred to the District Court concerned where
the District Judge shall assign tenancy applications under
section 27 to the Civil Court exercising territorial
jurisdiction, and the appeals and revisions pending
under sections 29 and 30 shall be decided by the
concerned District Judge or Additional District Judge;

(3) The amendment of section 27 of the Act shall, however be

made within a period of one month by legislature by any
mode within their wisdom subject to satisfaction of true
spirit of Article 175 of the Constitution. The jurisdiction,
exercised by Civil Judge & JM, till such amendment shall
also be kept in view by Legislature so as to keep rights
and interests of parties protected.

(4) The orders passed by the Assistant Commissioner and

the Additional Commissioner in the case of the Petitioner
under sections 27 and 29 respectively of the Sindh
Tenancy Act, 1950 are set-aside and the tenancy
application of the Petitioner shall be decided afresh by
the Civil Judge under section 27 of the Sindh Tenancy
Act, 1950 preferably within a period of three months;
 63

(5) Section 6 of the Sindh Tenancy (Amendment) Act, 2013,

whereby section 24(c) of the Sindh Tenancy Act, 1950 was
amended to omit the prohibition on „begar‟ /free labor, is
ultra vires Articles 11, 15 and 23 of the Constitution of
Pakistan and shall be treated to have never existed;

(6) The Chief Secretary, Sindh is directed to issue directions

to Secretary, Revenue department, Deputy
Commissioner(s) all over Sindh to ensure compliance of
Rule 3(1) of the Sindh Tenancy Rules, 2002 and such
report regarding maintenance of Form-VI shall be
submitted to this Court. Such process must be completed
within a period of four months;

(7) The Commissioner(s), while issuing directions for

preparation of Form VI, shall also direct the
„Mukhtiarkar(s)‟ to make sure that Haris have an area for
accommodation as well for cattle and vegetable
cultivation for the personal use of Haris without any
payment (Aero) as per the spirit of ection 24(e) of the
Sindh Tenancy Act, 1950

(8) The Government shall make necessary amendments in

Sindh Tenancy Act, 1950 so as to bring it in line with the
Constitution of Islamic Republic of Pakistan, 1973 as well
peasant rights, detailed in referred United Nations
Declaration while keeping in view the aspects, discussed
in para-26 supra which are:-

―Such law should not only describe rights and

obligations of peasant in respect of lands but should
also include such mechanism whereby:

i) eliminating the discriminative behavior with

or towards Hari / peasant;

ii) assuring not mere guarantee of fundamental

rights but enjoyment thereof;

iii) assuring restrain on sudden eviction as well

illegal eviction;

iv) assuring compensation against illegal and

sudden eviction;

v) assuring protection to education of children

in case of sudden and illegal eviction;

vi) assuring easy access to judicial system as well law

enforcing agencies;

vii) assuring easy access to healthcare facility;

viii) assuring compulsory education to children;

 64

ix) assuring a sense of protection to their women and

children;

x) ensure compulsory life insurance of the peasants

and their family members during or at time of
creation of any such relationship so as to cover
accidental death, harm or serious ailment of Hari, if
receives while performing his any of the duties as
HARI;

xi) ensure social security by the State for the

laborers/peasants working in the agricultural sector
by introducing fair and transparent mechanism for
welfare and help of Hari in event of dire need like
daughter‟s marriage, higher education of children
etc; in that regard Province of Sindh should allocate
basic funds, establish board/authority to receive
requisite amount from landlord on yearly basis
which would be adjustable at time of settlement of
account;

Since, the legislation is pure duty of the legislators

therefore, things are left open but with hope rather
belief that such legislation shall meet chalked out
objective (s) and shall be made within least practicable
period not exceeding four months.‖

(9) The Government shall, within six months, also

make necessary legislation for AGRO
LABOUR as discussed above, particularly in
para-29 supra of judgment which is:

―makes it compulsory to bring on record all

labourer by adopting a mechanism to register
every single labourer, including agro labourer;

This shall make it easy not only to keep a watch over

duties of an employer or landlord/zamindar which
he owes towards his employee / hari but shall also
help the Government in assuring providing him
(employee / hari) the right to enjoy life which,
needless to add, is not limited to mere act of
breathing but includes:-

‗reasonable labour money, access to education;

health care facility; information, technology;
legal help / aid and justice etc‘
 65

Copy of this judgment shall be sent to the Advocate General Sindh,

Chief Secretary Sindh and all learned District and Sessions Judges,

through MIT, for information and compliance.

JUDGE

JUDGE
IK