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August 1, 2017

SHC sets aside culture dept’s notification listing 1,061 heritage sites


August 1, 2017

The Sindh High Court (SHC) has set aside the culture department’s notification listing 1,061 properties across Karachi, including the Metropole Hotel, as protected heritage sites. The court said on Monday that the notification was issued without fulfilling the requirements of the relevant law.

The SHC directed the government to prepare a list of protected heritage sites after proper survey and scrutiny of all such premises across the province in accordance with the heritage act and rules, and then issue a notification within six months.

The court directed the government to make proper and comprehensive rules under Section 20 of the heritage act to carry out the purpose of the act in an effective manner, and then submit a compliance report.

The SHC said that if objections were received from the owners of the properties, the government should consider and decide them within a month, but only after giving the owners the opportunity of a hearing, following which the notification would be withdrawn or confirmed, as the case may be.

The Karachi Property Investment Company and other private petitioners had approached the court to de-list the Metropole Hotel and other private properties as heritage sites.

Their counsel Salahuddin Ahmed told the court that the culture department had issued a list of 1,061 protected heritage sites in May 2011 that included the Metropole Hotel despite the fact that it had no historical or archaeological value.

Ahmed said that sanctioned by the then Karachi Building Control Authority, the hotel was partially demolished in 2004, at which time it was perceived as having heritage value, adding that the notification was patently irrational and deserved to be struck down. He sought de-listing the property as a heritage site so its renovation and repairs could be carried out.

The law officer told the SHC that 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 said 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, adding that after the body’s recommendations, the technical committee would decide the matter.

The officer said 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.

He said that if instant petitions were allowed, the very purpose of the heritage law would be frustrated and open the door for delisting of many properties declared as protected heritage sites.

The SHC’s division bench headed by Justice Nadeem Akhtar observed in the judgment 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 would apply only to those properties that were declared protected heritage through due process of the law and after fulfilling the requirements of the heritage act and by adhering to well-established principles of natural justice, failing which invocation of any of the provisions of the heritage act would be deemed to be clear violation of the inalienable fundamental right of the owner to acquire, hold and dispose of his property enshrined in articles 23 and 24 of the constitution.

The court said Chapter 15 of the regulations of the Sindh Building Control Ordinance (SBCO) regarding protection of heritage buildings ultra vires the SBCO were in clear conflict with the heritage act and inapplicable to protected heritage.

The bench observed that in order to protect and preserve such properties that fulfil the criteria of protected heritage once proper procedure was followed by the government in accordance with the law, status quo would be maintained in respect of all premises listed in the notification until its withdrawal or confirmation, as the case may be.