PESHAWAR: A Peshawar High Court bench on Thursday declared illegal and unconstitutional a law’s provision, which permits the sale or transfer of any communal property of religious minorities after the issuance of a no objection certificate (NOC) by the Khyber Pakhtunkhwa Commission for Minorities Affairs.

The development came as Justice Waqar Ahmad Seth and Justice Mohammad Younas Taheem accepted a petition of provincial chief of Save the Church Properties Movement, Reverend Jimmy Mathew, who had challenged Section 4 of the Khyber Pakhtunkhwa Protection of Communal Properties of Minorities Act, 2014, saying instead of giving protection to communal properties, the government had given permission for their sale and transfer on the production of a simple NOC by the KPCMA.

The bench pronounced a short order after completion of arguments by the relevant parties on the petition.

Khalid Rehman, lawyer for the petitioner, said the provincial government had enforced the KP Protection of Communal Properties of Minorities Act, 2014, repealing the Protection of Communal Properties of Minorities Ordinance, 2001, to the extent of the province.

PHC accepts petition against sale or transfer of minorities’ communal property over govt NOC

He said under Section 3 of the law, the provincial government should set the KP Commission for Minorities affairs comprising the provincial minister for minorities affairs as its chairman and others members including secretary of Auqaf department and representatives of home department, law department, revenue and estate department, a member of the provincial assembly belonging to Christian community, etc.

Mr Rehman said Section 4 of the law stated that no property of a minority community meant for its communal use would be bought, sold or transferred by any person without NOC from Government.

He added that the NOC should be given by the government on the recommendation of the KP Commission for Minorities Affairs.

The counsel said the law was faulty and in the garb of giving protection to communal properties the government had in fact given blanket powers to the so-called commission to sold out or transfer these properties.

He added that the commission would be acting on the whims of the minister and the NOC had to be issued on its recommendation.

Mr Rehman argued that no where it was mentioned as to who could be the applicant to whom such properties could be sold and for what purpose. He added that the mode of selling out was also not given whether these properties could be auctioned or could be simply sold out or transferred to any individual who filed application in this regard.

He said there were scores of communal properties including churches, graveyards, missionary institutions, vacant areas, but no classification was made in this law as to which of the properties could be sold out.

Also, the bench summoned a Christian contractor, relevant official of Diocese of Peshawar and other relevant government officials to indict them for contempt as despite a stay order issued by the court, the said contractor had constructed shops in the compound of Saint John’s Church in Dera Ismail Khan.

The bench fixed indictment for Oct 26.

The petitioner has said during the hearing into the main petition, the high court had issued a stay order on Dec 1, 2015, banning the sale and transfer of all communal properties, including any sort of modifications in it.

He added the auqaf secretary had circulated the said order of the high court on Sep 28, 2016, among all the divisional commissioners.

The petitioner insisted that despite that order, contractor Younas Masih began constructing shops in the said compound.

Younas Masih in his statement claimed that he was given permission by the administration in DI Khan and the Diocese of Peshawar to carry out the said construction work.

Published in Dawn, October 6th, 2017