Court ruling: ‘State must protect property left behind by minorities’

Members of minorities have left the country, leaving behind their properties

KARACHI:

The Sindh High Court (SHC) has ruled that the state is responsible for protecting property belonging to members of religious minorities, who have either died or gone into exile abroad.

The judgment appears to be a landmark with respect to properties in Karachi, which was once house to various religious minorities, many of whom have gone abroad to escape the growing persecution over the decades.

The proceedings emanate from a lawsuit filed by Nanney Khan in 2010, who sought an order for the transfer of a 120-square-yard plot in his name. The plot belonged to a member of a religious minority, who had reportedly died abroad in exile. Khan said he had purchased the land from a real estate agent, who had failed to hand over the physical possession to him.

A single bench, headed by Justice Nawaz Akbar, however, dismissed the lawsuit, declaring that the plaintiff was not entitled to claim specific performance of the contract he had signed with the real estate dealer on June 29, 2009. "He has lost his right to retain the possession of the suit property," the 14-page judgment read.

Judicial vigilance

The judge remarked that it was the duty of the court to ensure that unscrupulous estate agents such as the defendant should not meddle with suit properties or, for that matter, with any other immovable property on realising that the whereabouts of actual owners of were not available and the property was unclaimed or abandoned.

"The court cannot be oblivious to the present state of affairs in society, which at times compels owners of immovable properties to temporarily settle outside Pakistan without making proper arrangements for the protection of their properties," he said, adding that once the court was satisfied that the property was rendered ownerless, it would be escheated to the government as per Article 172 of the Constitution.

State's responsibility

The court also made it clear that the state would be allowed to take possession of such properties under Article 24, clause 3(d) of the Constitution for a limited period of time to protect it for the benefit of the owners. In a situation such as the one in hand, the court is required to find out the actual owner or their legal heirs before holding that the suit property is escheatable.

The court ordered its Nazir to visit the place within 48 hours and take photographs from inside the suit premises to preserve the status of the fitting and fixtures of the suit.

The Nazir was instructed to ensure that all the dues of electricity and gas were cleared and peaceful possession was handed over to him by the plaintiff within 15 days.

"Since the defendant belongs to a minority community in Pakistan, I believe it has become even more obligatory on the state and the court to extend maximum protection to safeguard the legitimate rights and interests of the defendant - a duty of protection of minorities enjoined on us by Article 36 of the Constitution," the judges observed.

Ordering the Nazir to complete the exercise within six months, the judge also ordered him to put up a board in front of the property stating that the "property is in possession of the high court and if anybody knows the whereabouts of the owner or claimant, they may approach the Nazir."

Searching the owner

The judge did not end here. He also ordered the Nazir (official) to approach the Nadra authorities for help in locating the actual owner of the property and also try to locate his heirs through Nadra records.

Penalty

The bench dismissed the lawsuit by imposing a fine of Rs 100,000 on the plaintiff for illegally possessing suit property since August 2009. The Nazir was ordered to 'attach' moveable properties of the plaintiff for the recovery of the amount, if he failed to pay the same within seven days.

Published in The Express Tribune, February 2rd, 2015.