KARACHI: The Sindh High Court set aside the ministry of religious affairs order which declared the pre-Partition era Guru Mandir building in the Jamshed Quarter area as evacuee trust property and held that the property is owned by the ministry of finance of the federal government.
The chief commissioner inland revenue of the FBR’s corporate tax office had challenged the ministry of religious affairs order in which the pre-Partition era Guru Mandar building was declared as evacuee trust property.
The petitioner’s counsel submitted that the building is owned by the federal government’s ministry of finance in which the petitioner has held possession for over sixty years, i.e. since July 4, 1961.
He further submitted that building was initially owned by the Guru Mandir Association (GMA), which was granted to them by the Hyderabadi Amil Cooperative Housing Society on February 2, 1939. He said the building was purchased from GMA by a private entity, namely, Fredrick Sidney Cotton, vide an agreement on June 24, 1948 , and the agreement was entered into on behalf of the GMA by their duly authorized agent, namely Bhagwan Singh D. Advani.
The counsel noted that the certificate of approval dated January 11, 1951 for such transfer of property was issued by the Evacuee Property Department in favour of the sale. The court was informed that the FSC sold the building to the GoP (Ministry of Finance) vide sale deed on July 4, 1961 since which time the GoP handed over possession to the petitioner, who occupied the same and continues to use the same as an integral part of their offices, for conducting their work on behalf of the GoP (Ministry of Finance).
The respondent’s counsel opposed submissions made by the petitioner’s counsel and submitted that since the building was declared evacuee trust property, it must be reverted to them.
A high court division bench comprising Justice Mohammad Iqbal Kalhoro and Justice Mohammad Osman Ali Hadi, after hearing the arguments of the counsel, observed that a vested right in the building was created in favour of the government of Pakistan by virtue of having gone through the legal process of its purchase, and longstanding ownership/possession.
The court observed that such rights of the petitioner are to be safeguarded under articles 4, 8, 23 and 25 of the constitution, and it is trite law that there needs to be an end to litigation and the doctrine of finality followed.
It further observed that impugned judgments and orders have further erred by not considering that the evacuee property legislation succeeding the 1949 Ordinance was the Pakistan (Administration of Evacuee Property Act 1957 (1957 Act).
The court held that the declaration status of the building as evacuee trust property is void; therefore, the respondent would not have power to adjudicate on the matter.
The SHC said the respondent’s power is limited to deciding matters pertaining to evacuee property, which the building was not when the matter was presented before the respondent as such the impugned order was liable to be set aside.
It also observed that since all evacuee trust property vests with the government of Pakistan, it would appear preposterous to take away the building from the petitioner (operating under the GoP), and then give it to another branch of the GoP (the respondent).
The high court stated that emphasis must also be given to the fact that it is the government of Pakistan through the petitioner who themselves are claiming the building, and who have stated the building does not fall within the domain of evacuee property.
Ii said it does not feel under law that the petitioners (operating under the GoP) can be deprived of the property. The court observed that the building is being used by the GoP for their own purposes, even the shelter of Article 173 of the constitution would offer protection to the petitioner.
The court observed that the impugned judgments and order have erred under numerous provisions of law and have failed to consider key legal aspects, resulting in violation of the petitioners’ fundamental rights. It set aside the impugned judgments and impugned notices and held that government of Pakistan is the owner of the building.