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Petitioner: Maulana AMAN ULLAH HAQANI VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWA
2018 C L C 355 [Peshawar] Before Yahya Afridi, C.J. and Syed Afsar Shah, J Maulana AMAN ULLAH HAQANI and another----Petitioners Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Transport and Mass Transit Department and 4 others----Respondents W.P. No.4217-P with C.Ms. Nos. 2153, 2188, 2203 and 2244-P of 2017, decided on 7th December, 2017. (a) Constitution of Pakistan--- ----Arts. 9 & 199---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Public interest litigation---Maintainability---"Aggrieved person"---Scope---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Grievance of petitioners was that the Project was carried out without lawful authority and it was also against the public interest; held, that present petition was in the nature of public interest litigation---Petitioners being residents of the city would surely be affected by the works to be carried out under the Project causing environmental impact upon their dwelling places and thereby infringing upon their right to life, as provided under Art. 9 of the Constitution---Petitioners would, thus, come within scope of an aggrieved person, as envisaged in Art.199 of the Constitution---Constitutional petition was held to be maintainable in circumstances. Riaz Ahmad's case 2013 CLC 1291; Molvi Haider's case PLD 2006 SC 394 and F-9 Park's case PLD 2010 SC 759 ref. (b) Constitution of Pakistan--- ----Art. 199---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Constitutional petition---Scope---Technical and financial aspects of a Government project---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Findings on technical and financial aspects of a project which was highly specialized requiring engineering and financial expertise, such as the present Project, ought not to be passed by a Constitutional Court, moreso, when the assertions of the petitioners on the factual aspect of the Project were disputed by the Provincial Government---High Court would not enter into such controversies and pass any findings on technical and financial viability of the Project---Besides the project in question was duly considered and approved, at the highest level of the Provincial and Federal Government. (c) Khyber Pakhtunkhwa Environmental Protection Act (XXXVIII of 2014)--- ----S. 13---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project")---Directions issued by the High Court regarding the steps that had to be undertaken for carrying out the works under the Project---High Court directed that prima facie, the prescribed requirements for rendering Environmental Impact Assessment (EIA), as provided under S.13 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 had been complied with; that the conditional EIA approval granted by the Director General, Environmental Protection Agency (EPA) purportedly under S.13 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 was required to be finalized; that the Director General EPA shall fortnightly consider the conditions highlighted in the EIA report, and thereafter, if found in order, extend the same till its final approval; that that the Provincial Inspector General of Police should ensure that the charge of the Deputy Inspector General (Traffic) was immediately assigned to an officer who may personally supervise the alternative traffic plan; that the Deputy Inspector General (Traffic) and Commanding Officer of the Military Police of Cantonment, should streamline an alternative traffic plan and ensure that senior officers personally supervised all the critical check points during the rush hours for the smooth flow of traffic and convenience of the public; that fortnightly joint reports of the Deputy Inspector General (Traffic) and Commanding Officer of the Military Police of Cantonment, were to be submitted to the Human Rights Cell of the High Court confirming the steps taken and their satisfaction regarding the efforts made in regard to the alternative traffic plan; that the senior Director of the Project on behalf of the concerned development authority was presently facing charges of corruption and his trial was pending before the Accountability Court, therefore, allowing him to proceed with supervising the Project would be contrary to the principle of good governance; that during the interim period the Director General of the concerned development authority should assume the role of the Project Manager instead and that a private company which was awarded certain work for the Project, and had previously entered into a plea bargain with the Accountability Bureau, shall in no way have any managerial or supervisory role in running the Joint Venture Companies or execution of works under the Project---Constitutional petition was disposed of with the said directions. (d) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)--- ----S. 19(c)---Constitution of Pakistan, Art. 140-A---Khyber Pakhtunkhwa Urban Mass Transit Act (XXVII of 2016), Preamble---Provincial Government and Local Government, powers of---Scope---Peshawar Sustainable Bus Rapid Transit Corridor Project ("Project") -- Constitutionality of the Project being undertaken by the Provincial Government under the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 without adhering to the procedure provided under the Khyber Pakhtunkhwa Local Government Act, 2013; held, that the action of Provincial Government in carrying out the Project under the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 was with lawful authority---Provisions of the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 were neither in violation of Art.140-A of the Constitution nor irreconcilably contradicted the provision of the Khyber Pakhtunkhwa Local Government Act, 2013. Muhammad Isa Khan for Petitioner, Shahid Nadeem Khan and Muhammad Khurshid Khan in person. Abdul Latif Yousafzai, Advocate-General Khyber Pakhtunkhwa along with Muhammad Bashir, Director General, Environmental Protection Agency, Riaz Ahmad, Superintendent Police (Traffic), Peshawar. Shumail Ahmad Butt for Respondents. Date of hearing: 23rd November, 2017. JUDGMENT YAHYA AFRIDI, C.J.--- Through this single judgment, this Court proposes to dispose of two writ petitions, as both have common questions of facts and law involved therein. The particulars of the said writ petitions are as follows:- 1. Writ Petition No.4217-P/2017 (Petition No.1) (Maulana Aman Ullah Haqani and another v. Government of Khyber Pakhtunkhwa through Secretary Transport and others) 2. Writ Petition No.4508-P/2017 (Petition No.2) (Abid Zareef Khan v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others) 2. In essence the grievance of the petitioners is that the Peshawar Sustainable Bus Rapid Transit Corridor Project ("BRT") is not only being carried out without lawful authority but against public interest. 3. Petitioner No.1 in petition No.1 is an elected representative who served as Provincial Minister from 2002 to 2008, while petitioner No.2 is the resident of District Peshawar. 4. The petitioner in petition No.2 during his submissions at the bar asserted that he, being a resident of Peshawar, was to be effected by the Project. 5. This Court finds both petitions to be public interest litigation, and test for its maintainability has already been adjudged by this Court in Riaz Ahmad's case (2013 CLC 1291), wherein seeking guidance from the pronouncements rendered by the Apex Court in Molvi Haider's case (PLD 2006 SC 394) and F-9 Park's case (PLD 2010 SC 759), held that; "In this regard, this Constitutional Court can even take cognizance of the matters agitated 'pro bono publico ', and the test for invoking the Constitutional jurisdiction in such matters has been determined by the august Supreme Court in Javed Ibrar Paracha v. Federation of Pakistan (PLD 2004 SC 482) on the touchstone that Firstly the matter is in public interest, and Secondly, that the petitioners aim for a 'public good' and for the welfare of the 'general public'. Thus, in view of clear enunciation on the issue of 'locus standi' settled by apex Court, this Constitutional Court can even take up the present petition as "Pro bono Publico." However, this would not diminish the 'locus standi' of the present petitioners to seek their legal remedy from this Court. It can safely be said that the petitioners are "aggrieved " persons within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as their fundamental rights under Articles 9 and 26 have been violated, as public funds for the establishment of a public park have been threatened to be mis-utilized for purpose other than for which they were validly allocated." 6. Even otherwise, the petitioners being residents of Peshawar would surely be affected by the works to be carried out under the Project causing environmental impact upon this dwelling place and thereby infringing upon their right to life, as provided under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), thus, the petitioners in both the petitions would come within scope of an aggrieved persons, as envisaged in Article 199 of the Constitution. 7. Now, to the assertions of the worthy counsel for the petitioners in petition No.1; that the respondents have violated the mandatory provisions of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 ("Act of 2014"); that the works under the Project have commenced without the requisite Environment Impact Assessment (EIA) Report; that acquisition of private property has been made without the requisite notice being issued under section 4 of the Land Acquisition Act, 1984 ("Act of 1984"); that works under the Project have commenced without their being valid contract with the Contractors; that the District Government Peshawar having the exclusive jurisdiction to introduce the mass transit in a District Peshawar has been totally ignored in the impugned Project, reliance was placed upon the judgment rendered by the apex Court in LDA's case (2015 SCMR 1739); that the Contractor awarded the Project, namely Chaudhry Amir Latif Brothers was not only black listed by the Punjab Government but in fact an inquiry against it had culminated in a plea bargain settlement with National Accountability Bureau ("NAB"); that the Project Manager of the Project, Mr.Amin-ud-Din Ahmad is under enquiry by the NAB; that the Project which was to conclude in the year 2021 would bring the entire City of Peshawar to a standstill because of the scope of works in the Project; and that finally the Project was not financially viable as would burden the tax payer and was thus against the public interest. 8. Abid Zareef Khan, the petitioner in Petition No.2 addressed the Court in person, and submitted that the works in the Project, if allowed to proceed would bring the City Peshawar to a halt; that 360 buildings under the Project were to be demolished and no notice had been issued to their owners or residents; that Cantonment Board, Peshawar and the Army had not granted any NOC for the works to be carried out under the Project; that logically and technically the Project was not feasible, and thus to result in disaster; that No Alternate Traffic Plan was in existence; and that finally the Project amount had been unilaterally enhanced without legal sanction. In support, he also placed on record 24 pictures, depicting the traffic congestion and the excavation being carried out under the Project. 9. During the proceedings, Shahid Nadeem Khan, applicant, filed C.M.No.2153-P/2017 for impleadment as a party in W.P.No.4217-P/2017. Similarly, Muhammad Khurshid Khan, Advocate also moved an application, C.M.No.2244-P/2017, to be impleaded as a party in W.P.No.4217-P/2017. Both C.Ms were allowed, Muhammad Khurshid Khan addressed the Court in person and also submitted his contention in writing which are in terms that;-
10. Mr. Riaz Ahmad, Superintendent Police (Traffic) Peshawar on notice appeared and explained the Alternative Traffic Plan. 11. To understand the apprehensions of the petitioners regarding the environmental impact of the Project, as highlighted in the petitions, the worthy Director General Environmental Protection Agency ("EPA") Khyber Pakhtunkhwa was also put to notice. He, in compliance with the directions of this Court, placed on record the Brief Report on the Project, which entailed that;- 1. Peshawar Development Authority submitted Environmental Impact Assessment Report (EIA) under Section 13 of Khyber Pakhtunkhwa Environmental Protection Act, 2014 and IEE/EIA Rules Regulation 2000 to EPA on 11.05.2017. The report is forwarded to internal IEE/EIA review committee member for review on 26.05.2017. 2. Presentation was made before the Review Committee on 19.06.2017 which was attended by the review committee members in EPA Conference Room. The following were the main issues raised in presentation. (a) Provide Land acquisition and its details. (b) Provide NOC from Archeology Department. (c) Provide Base Line Data and Laboratory results regarding ambient air, noise etc. (d) Provide details of community /household affected by the project and their compensation method. (e) Provide list of affected persons of the project with complete address and contact numbers. (f) Provide Traffic Management Plan for Reach-II and Excavation of land (in feet) for construction of pillars and other structures. (g) Provide Security clearance of the project from PAF/Army. (h) Provide alternate route for the project. (if any). (i) Provide details of tree cutting in the Row of the road. (j) Provide exact location of the batching plant and mitigation measures for impacts caused by batching plants. 3. Letter to proponent for clarification of the above issues on 19.07.2017 and reply submitted on 07.09.2017 by Peshawar Development Authority. 4. Advertisement for Public Hearing floated in newspaper on 20.06.2017. 5. Letters of invitation for Public Hearing to stakeholders on 07.07.2017. 6. Public hearing held on 20.07.2017 at Nishtar Hall, Peshawar. Following were the main issues raised in public hearing. (a) Traffic Management Plan during construction phase to be submitted. (b) Comments/response on construction of alternate market/shops prior to demolishing the existing structures. (c) Compensation status of the affectee in Sardar Gharhi and others as several shops/structures are being demolished for the purpose. (d) Alternate routes/arrangement during construction phase to be advertised. (e) Arrangement for pedestrian routes after demolishing the underground passage at Firos, Peshawar. (f) Justification of change of route from Saddar road to Sunehri Masjid road. (g) Current Compensation/resettlement status of Gul/Noor Centers/ Sunehri Masjid road etc. (h) Protection of sewer line passing though the Sunehri Masjid Road. (i) Alternate arrangement for running of escalator in case of load shedding. (j) Work plan/time frame of the project as per the proposed program to be completed in 6 months. (k) Protection of cultural heritage (Bala Hisar Forte) and details in case of consultation with Archaeology Department. (l) Provision of prayer place at stations. (m) Ensure provision of resettlement plan and design of overhead market to the affectees. (n) Dumping site for excavated materials. (o) Provide a complete list of the affectees with contact numbers. (p) Approval/Details of consultation with Corps Commander (FC), Corps Commander (Army) and CEO Cantonment Board etc as the project will pass through some strategic sites/check posts established by Pak-Army/ Security agencies for security purpose. (7) Letter to Proponent for clarification of the above issues sent on 08.08.2017. (8) Reply to the observations received on 18.08.2017. (9) Further Clarification of un-satisfactory reply was asked on 28.08.2017 and its reply submitted on 07.09.2017. (10) Decision/Approval on EIA on 08.09.2017. 12. The Brief Report was duly accompanied by the documents/ annexures mentioned therein and also supported by a personal affidavit of the worthy Director General EPA. 13. In addition to the Brief Report submitted by the worthy Director General EPA, he appeared and explained that the; I. Project envisaged three phases; First Phase being the civil works, was to be completed within six months; Second Phase being the operational part, would take three years; and Final Phase which was for the left over works which was to be concluded in one year. II. As far as the EIA Report is concerned, the worthy DG, EPA brought to the attention of the Court that the process envisaged under the Act of 2014 for grant of an approval was duly carried through in terms thereof. He further explained the steps taken, which were narrated in chronological terms that; 11.05.2017. Application under section 13 of the Act of 2014 was filed with EPA. 26.05.2017 Internal Review Committee processed the Project. 20.06.2017 A public notice was published in the National Dailies. 07.07.2017 Brief note on the Project was distributed along the route envisaged under the Project amongst two hundred affectees/ shop keeper/ residents. 20.07.2017 Public hearing took place as Nishtar Hall Peshawar. III. The worthy Director General EPA also responding to the anxiety of the petitioners as reflected in their petitions and oral submissions at the bar, assured the Court that all affectees shopkeepers/residents would be duly compensated, and the compensation plan was an integral part of the Project. He further assured the Court that in addition to the supervisory role of the Government of Khyber Pakhtunkhwa, Asian Development Bank ("ADB") is also appointing a consultant to monitor the works being carried out under the Project. 14. The worthy Advocate-General, Khyber Pakhtunkhwa in support of the viability, feasibility and legality of the project addressed the Court by contending that; I. The Project is in fact an outcome of dire public need and intense study, which dates back to the year 2013, when the Government of Khyber Pakhtunkhwa requested the City Development Initiative for Asia to help improve Peshawar Urban Transport System and to provide technical and financial support to implement the same. This request was accepted which led to the Prefeasibility of the Project being completed in May, 2014 laying out the 20 years Urban Transport Strategy with a ten year action plan. The Prefeasibility Study was followed by Feasibility Study, which on the request of the Government of Khyber Pakhtunkhwa was carried out by the Asian Development Bank, and the same was concluded in January, 2017. II. The worthy Advocate General further submitted that the engineering design of the Project was carried out by International Consultant appointed by ADB and cost estimates were also completed leading to the preparation of PC-2, which was approved by CDWD. The Project PC-1 was presented to CDWD on 28th March, 2017 and it recommended the Project for consideration of ECNIC, where the cost was rationalized, and was finally brought to Rs.59.346 billion, with ADB share as Rs.41.881 billion and that of Khyber Pakhtunkhwa at Rs. 7.465 billion. The Project infrastructure development was at the cost of Rs.31. 524 billion, which was to mainly cover the civil work station, bridges, tunnels etc. III. The total route envisaged in the project was 26 Kilometer, which was divided in to three sections, and the Contractors for each section was finally selected by the ADB through International competitive biddings. IV. In response to the query regarding acquisition of property required for the Project, the worthy Advocate General contended that 914 Kanal would be required for the Project, and in this regard notification under section 4 had already been issued under the Provisions of the Act of 1894. In support thereof, the said notification was placed on record. V. As far the permission to proceed with the Project in the Cantonment Area of Peshawar is concerned, the worthy Advocate General placed on record the NOC from the Cantonment Board, Peshawar. VI. Similarly, the worthy Advocate General also placed on record the NOC from the District Nazim, Peshawar and the minutes of the proceedings of the District Council, Peshawar dated 04.04.2017. The said documents, the worthy Advocate General contended clearly demonstrated that the District Government was kept abreast with the Project, and in this regard the District Nazim, Peshawar was included as a member of Board of Director of the Urban Mobility Company vide notification 05.08.2016, which was to supervise the Project. VII. The worthy Advocate General also explained that the scale of the Project was so vast and financial implication so steep that the District Government did not have the capacity to proceed with the same and for which International assistance was required. Keeping the nature and scope of the Project, the Government of Khyber Pakhtunkhwa introduced an enactment the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 ("Act of 2016") to ensure its safe execution and completion. VIII. The worthy Advocate General also placed on record the resettlement plan for the Project, and the contract agreements executed by the Government of Khyber Pakhtunkhwa through PDA and the Contractors for each track of Project. As for the legal issues, the worthy Advocate General vehemently contended that the Act of 2016 being later in time would prevail over the provisions of LGA, 2013. In addition, the worthy Advocate General also submitted written submissions on the legality of the Project being initiated and carried out under the Act of 2016 in terms that; 1. Article 140-A was inserted by Constitution (Eighteenth Amendment) Act, 2010. Under the said Article each Province shall by Law established a local government system and devolved political, administrative and financial responsibility and authority to the elected representatives of the Local Government. 2. Accordingly, the Khyber Pakhtunkhwa Local Government Act, 2013 was enacted and election to the Local Councils were held and the Local Councils had been functionalized. Under section 19(c) one of the functions of the District Council is to approve proposals for public transport and mass transit system, construction of express ways, fly-overs, bridges, roads, under passes and inter-town streets. 3. In order to overcome the transport problem in Peshawar City, the Government of Khyber Pakhtunkhwa decided to initiate a "Mega Project" by the name style of Bus Rapid Transit (BRT). 4. Since it was a Mega Project, beyond the resources and capacity of the Local Government, a law the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016 was promulgated for planning, establishment, regulation and management of modern, sustainable Mass Transit and Complementary Urban Mobility System in the Province of Khyber Pakhtunkhwa. It was provided in section 6 thereo, that for management and operation a Board shall be constituted under the Chairmanship of the Chief Minister, Khyber Pakhtunkhwa and beside other the Secretary to the Local Government Elections and Rural Development Department shall be one of its Members. Section 36 of the Act has provided for an over-riding effect to this law. 5. A question has arisen as to whether this law (Khyber Pakhtunkhwa Urban Mass Transit Act, 2016) is in conflict with Article 140 -A of the Constitution of Pakistan, 1973 or with the Khyber Pakhtunkhwa Local Government Act, 2013. The answer to this question has been provided by the Hon `ble Supreme Court of Pakistan in its Judgment Reported as 2015 SCMR 1739. 6. The rationale of the Supreme Court judgment cited hereinabove and paragraphs of which have been reproduced hereinabove is as under; - a. One that the Provincial Government shall by law establish a Local Government System under Article 140A of the Constitution of Pakistan. b. The creation of a Local Government System does not spell the end of the Provincial Government in the Province. c. Even after the insertion of Article 140A of the Constitutions the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with respect to Local Government and Local Authorities to enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries. d. Instead of enumerating Local Government Powers the Constitution makers left these to be worked out in harmony between the Provincial and Local Government. e. The Provincial Government can perform the functions and exercise the authority devolved on the Local Government in the following three situations; I. When the Local Government lacked capacity or was ineffective; II. When the function was of a nature which spilled over from the territory of one Local Government into that of…
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