HYDERABAD: The Sindh High Court has directed the commissioner of Hyderabad to visit all the declared/notified protected properties in the division and submit a report with photographs to the quarters concerned as well as to the SHC bench through the additional registrar to confirm whether all these properties are protected in the spirit of the Sindh Cultural Heritage (Preservation) Act 1994.

In a detailed judgement of an earlier short order, the SHC has said this process should be completed in the least practicable time, not more than two months. During the process the commissioner should ensure that all properties, declared as heritage in the notification attached with the two identical constitutional petitions on the issue of a banquet hall’s construction in Dialdas Club, are protected under the Sindh Cultural Heritage (Preservation) Act, 1994. The court deplored the failure and negligence of the government and culture department, saying that their failure and negligence was not worth appreciating as the department seemed to have been negligent to the objective of its establishment which was likely even to prejudice culture.

The observations are made in the 16-page verdict penned by Justice Salahuddin Panhwar in the two petitions filed by Tahir Khan, a member of the club. He had questioned the construction of a banquet hall in Dialdas Club, which is a declared heritage site.

A division bench of the Sindh High Court Hyderabad circuit comprising Justice Salahuddin Panhwar and Justice Mohammad Iqbal Mahar on Dec 8, 2016 had allowed petitions while observing that detailed reasons would be recorded later on.

Justice Panhwar, in his judgement, quoted from Nigerian educationist and scholar Prof Dabatunde Fafunwa, as was reported in the Kamil Khan Mumtaz vs Province of Punjab case and referred to an apex court’s suo motu case of a canal widening project.

Justice Panhwar said: “It is expected that in future department shall prove its existence as functional authority and shall do everything required by laws for preserving and protecting the culture”. He said as the quarters concerned proved to be negligent it even resulted in the publication of an advertisement for the construction of something which materially prejudiced or harmed the value of a protected property.

“[Culture department’s] notification shows that in Hyderabad division as many as 67 properties are notified as protected property but alarmingly owners/occupiers prima facie have been dealing, managing and controlling such notified properties as per their own sweet wills without any care towards heritage value thereof”, read the verdict.

It observed: “‘Commissioner’ is not only ultimate administrator but a representative of government for such division, therefore, he is indirectly required to keep declared protected property alive or least to ask quarter concerned, operating/functioning, in division to proceed in accordance with law”.

It referred to a site inspection ordered by the bench last year which said that a ‘banquet’ hall had been built on the premises of Dialdas Club although the notification said that “any act intentionally to destroy, injure, alter and deface imperil protected Heritage or to build on or near sites will be unlawful and punishable under Section 18 of the Sindh Cultural Heritage (Preservation) Act, 1994.”

The judges did not accept that since the construction of a banquet hall would bring a handsome income for the club hence construction be allowed particularly when such a construction would not only prejudice historical, cultural or architectural value thereof but would also be in violation of Section 15 of the act which said “a protected heritage declared under this Act shall not be used for any purpose inconsistent with its character”.

They noted: “We are equally conscious of fact that though none claimed existence of agreement between government and club as per the act yet such a failure on part of the quarter concerned shall not prejudice the fact that the subject matter is a ‘protected property’ hence it must be preserved. Equally, it can also not be taken as an excuse for the club to avoid its legal obligations when it (club) does not deny the status of the property to have been a declared/notified protected property”.

The order said: “We would not hesitate in saying that it is not always excess of executives which can be called in question in court but negligence and failure thereof too because good governance shall never be achieved where executives do not follow dictates of law and things are left hanging”.

Published in Dawn, June 7th, 2017