KARACHI: The Sindh High Court (SHC) has set aside the culture department’s notification, which declared 1,061 properties across Karachi, including the Metropole Hotel, as protected heritage sites.
While announcing its order which was earlier reserved on April 29 after hearing lengthy arguments from the lawyers representing the petitioner and the provincial government, a two-judge bench, headed by Justice Nadeem Akhtar, maintained that the notification was issued without fulfilling the requirements of the relevant law.
“All the impugned notifications, issued without exercising proper discretion, without fulfilling the requirements of the Sindh Cultural Heritage (Preservation) Act, 1994, without making any rules under the heritage act or following such rules, in violation of the well-established principles of natural justice, are hereby set aside,” the judges ruled in their order on Monday.
They held that the “impugned Chapter 15 of the Karachi Building and Town Planning Regulations, 2002, being ultra vires the Sindh Building Control Ordinance, 1979 and in clear conflict with the heritage act, is inapplicable to be a protected heritage as declared under the heritage act.”
The court directed the government to prepare a list of the protected heritage sites after conducting a proper survey and scrutiny of all such premises across the province in accordance with the heritage act and rules. After completion of this exercise, the authorities were directed to issue a notification afresh within six months.
The judges further directed the government to make proper and comprehensive rules under Section 20 of the heritage act, to implement the act in an effective manner and then submit a compliance report.
“If objections are received from the owners of the properties, the government should consider and decide on them within a month, but only after giving the owners the opportunity of a hearing,” the government was told. “Following this, the notification would be withdrawn or confirmed, as the case may be,” the judges ordered.
The Karachi Property Investment Company and other private petitioners had approached the court, pleading to order the heritage department de-list the Metropole Hotel and other private properties from the list of the declared heritage sites.
The company said it had acquired ownership of the land and building belonging to Metropole Hotel in 1967. Today, many commercial offices have been rented out to different parties, it added.
The petitioners’ lawyer, Barrister Salahuddin Ahmed, said that the culture department had issued a list of 1,061 protected heritage sites in May 2011, which included the Metropole Hotel despite the fact that the hotel had ‘no historical or archaeological value’.
Ahmed told the judges that the building of the Metropole Hotel was partially demolished by the then Karachi Building Control Authority in 2004, at which time it was not perceived as having heritage value. “The notification was patently irrational and deserved to be struck down,” he had argued.
Therefore, the court was pleaded to issue a direction to the culture department authorities to de-list the property as a heritage site so its renovation and repairs could be carried out.
A provincial law officer had argued that the surveys, listing and notifying were carried out with due care and diligence and in the best interest of preserving the rich culture of Sindh so that the provisions of the heritage law could be implemented in letter and spirit.
He explained that any kind of objection regarding the listing of a property should be forwarded to the advisory committee within 30 days as per the provision of the law. After the body’s recommendations, the technical committee would decide on the matter, he added.
The law officer had argued that in the instant matter, the objections had been referred to the technical committee of the advisory body, but no final decision could be taken as the matter was still pending.
Opposing the petitions, the government law officer had argued if petitions were allowed by the court, it will frustrate the very purpose of the heritage law and open the door for delisting of many properties declared as protected heritage sites.
In the judgment, Justice Akhtar observed that the provision of acquisition or compulsory acquisition of any property by the government, imposition of restrictions on its owner rights or imposition of any penalty will apply only to those properties that were declared protected heritage through due process of the law and after fulfillment of the requirements of the heritage act and adherence to the well-established principles of natural justice. Failure to follow any of the provisions of the heritage act will be deemed to be a clear violation of the fundamental right of the owner to acquire, hold and dispose of his property enshrined in Articles 23 and 24 of the Constitution, he observed.
The bench observed that in order to protect and preserve such properties that fulfil the criteria of protected heritage sites in accordance with the law, the status quo would be maintained in respect of all premises listed in the notification until its withdrawal or confirmation.