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KARACHI PROPERTY INVESTMENT COMPANY (PRIVATE) LTD. versus GOVERNMENT OF SINDH

3 Section 3 ected Preserved Cultural Heritage - Declaration - Procedure - Government's decision to declare private person's property as a protected heritage under the Sindh Cultural Heritage (Protection) Act 1994 depends only on the recommendation of the Committee [p 708] A Is.

P L D 2017 Sindh 690 

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

KARACHI PROPERTY INVESTMENT COMPANY (PRIVATE) LTD. through Authorised Officer—Petitioner

versus

GOVERNMENT OF SINDH through Secretary > and 3 others—Respondents

Constitutional Petitions Nos.D-2386 of 2011, D-315/2012, D-3323/2012, D-3443/2013, D-1428/2015, D-5679/2016, D-1047/2017, D-1048/2017 and D-1092/2017, decided on 28th July, 2017.

(a) Sindh Cultural Heritage (Preservation) Act (XII of 1994)--

—S. 3—Protected Heritage—Declaration—Procedure—Decision of government to declare property of a private person entity as protected heritage under Sindh Cultural Heritage (Preservation) Act, 1994 depends only on recommendation of Committee. [p. 708] A

Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186 rel.

(b) Sindh Cultural Heritage (Preservation) Act (XII of 1994)—

—Ss. 8, 10, 12, 18 & 19— Sindh Buildings Control Ordinance (V of 1979), S. 21-A—Karachi Building and Town Planning Regulations, 2002, Chap. 15—Vires of Chap. 15 of Karachi Building and Town Planning Regulations, 2002—Heritage building—Preservation or protection—Scope— Preservation or protection of heritage

building/protected heritage mentioned in Chap. 15 of Karachi Building and Town Planning Regulations, 2002 does not fall within scope of Sindh Buildings Control Ordinance, 1979—Such power, authority and jurisdiction rests only with the Committee and government under Ss. 8, 10, 12 & 18 of the Sindh Cultural Heritage (Preservation) Act, 1994— Such jurisdiction has overriding effect by virtue of S.19 of Sindh Cultural Heritage (Preservation) Act, 1994—Sindh Cultural Heritage (Preservation) Act, 1994 and Sindh Buildings Control Ordinance, 1979 are special laws and independent of each other having specific provisions for making rules and regulations only for carrying out their respective purposes—Rules or regulations made under either of the two laws cannot be applied to subject matter of the other law—Provisions of

Chap. 15 of Karachi Buildings and Town Planning Regulations, 2002 are ultra vires the Sindh Cultural Heritage (Preservation) Act, 1994 and Sindh Building Control Ordinance, 1979 and in clear conflict with Sindh Cultural Heritage (Preservation) Act, 1994, therefore, cannot be applied to protected heritage declared under Sindh Cultural Heritage (Preservation) Act, 1994. [pp. 712, 715] B&G

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186 rel.

(c) Interpretation of statutes—

—Framing of rules—Principle—When legislature confers power on the government to frame rules, it is expected that such power has been used only bona fide, in a responsible spirit, in true interest of public and in furtherance of the object for attainment of which such powers have been conferred— Power conferred upon government to frame rules is not unlimited but subject to certain prerequisites and preconditions—Unlimited right of delegation is not an inherent in legislative power itself— Court may reject a regulation as invalid and ultra vires if it fails to comply with statutory essentials, [p. 713] C

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186 rel.

(d) Administration of justice—

—Statutory powers— Balance, maintenance of— Where authorities fail to regulate their discretion by framing of rules, policy statements or precedents, it becomes mandatory for Court to intervene in order to maintain requisite balance for exercise of statutory power, [p. 713] D

Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092; Ellahi Cotton Mills Limited and others v. Federation of Pakistan PLD 1997 SC 582 and Muhammad Amin Muhammad Bashir Limited v. Government, of Pakistan 2015 SCMR 630 rel.

(e) Sindh Cultural Heritage (Preservation) Act (XII of 'l994)-

—Ss. 3, 6, 7, 12 & 13—Constitution of Pakistan, Arts. 4, 10-A, 23, 24, 25 & 199—Constitutional petition—Protected heritage—Discretion, exercise of—Petitioners in the present case, are private persons who are owners of private properties subject matter of proceedings under Sindh Cultural Heritage (Preservation) Act, 1994—Plea raised by petitioners was that before declaring their properties as protected heritage, no prior notice of such decision/declaration was ever served

upon them and all proceedings were illegal and mala fide—Validity— While exercising discretion and taking decision in such behalf burden was upon government to show that discretion was not arbitrary, mala fide or biased and decision was taken after recording cogent and valid reasons fulfilling all requirements of Sindh Cultural Heritage (Preservation) Act, 1994 and rules made thereunder and by strictly adhering to well established principles of natural justice— Provisions of acquisition or compulsory acquisition of any property by government under S.7 or S.12 of Sindh Cultural Heritage (Preservation) Act, 1994 or agreement in respect thereof under S.8 of Sindh Cultural Heritage (Preservation) Act, 1994 or imposition of restrictions on its owner's rights under Ss. 8 or 10(1) or 15 of Sindh Cultural Heritage (Preservation) Act, 1994 or imposition of any penalty under S. 18 of Sindh Cultural Heritage (Preservation) Act, 1994 was applicable only to such properties which were declared as protected heritage through due process of law, rules made thereunder and by strictly adhering to well established principles of natural justice failing which any of such provisions of Sindh Cultural Heritage (Preservation) Act, 1994 would be deemed to be a clear violation of inalienable fundamental rights of owner to acquire, hold and dispose of his property enshrined in Arts.23 & 24 of the Constitution— High Court set aside all notifications issued without exercising proper discretion, without fulfilling requirements of Sindh Cultural Heritage (Preservation) Act, 1994, without making any rules under Sindh Cultural Heritage (Preservation) Act, 1994 or following such rules and in violation of well-established principles of natural justice—Constitutional petition was allowed accordingly, [pp. 715, 716] E, F, H&I

Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092; Kabushiki Kaisha Toshiba v. Ch.Muhammad Altaf PLD 1991 SC 27; Ellahl Cotton Mills Limited and others v. Federation of Pakistan, PLD 1997 SC 582; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; New Jubilee Insurance Company Limited v National Bank of Pakistan PLD 1999 SC 1126; Director Food NWFP and another v Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777; Waris Meah v. The State and another PLD 1957 SC 157; Briq. Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; lnamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Abid Hassan and others v. P1AC and others 2005 SCMR 25; Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Azam Wazir Khan v. Industrial

Development Bank and others 2013 SCMR 678; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630 and Government of NWFP through Secretary v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan, 1997 SCMR 1804 ref.

FOR PETITIONERS

Salahuddin Ahmed (in C.P.No.2386 of 2011).

Nasir Hussain Jafferi (in C.P.No.315 of 2012).

Mustafa Lakhani (in C.P.No.3323 of 2012).

Muhammad Abdur Rahman (in C.Ps.Nos. 3443 of 2013, 1428 of 2015, 5679 of 2016, 1047, 1048 and 1092 of 2017).

FOR RESPONDENTS

A

Miran Muhammad Shah, A.A.G, for Government of Sindh.

Rao Sarfaraz Khan for Sindh Building Control Authority.

Called absent (City District Government).

Dates of hearing: 19th, 26th April, 2016, 11th May 2016, 22nd February, 2017, 2nd, 21st 30th March and 29th April, 2017.

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