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Petitioner: Ms. IMRANA TIWANA and others VS Respondent: PROVINCE OF PUNJAB and others
Court Name: Lahore High Court Judge(s): Muhammad Yawar Ali, Ayesha A. Malik, Syed Mansoor Ali Shah Title: Ms. IMRANA TIWANA and others vs PROVINCE OF PUNJAB and others Case No.: Writ Petition No,7955 of 2015 Date of Judgment:2015-04-17 Reported As: 2015 KLR Civil Cases 213, 2015 LHC 2551, PLD 2015 Lahore 522, 2015 CLD 983 Result: Petitions allowed
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, J.---Through this environmental public interest petition, concerned citizenry of Lahore, has invoked the constitutional and equitable jurisdiction of this Court to challenge the constitutionality and legality of the Signal Free Corridor Project (Project) proposed and initiated by the Lahore Development Authority (LDA). 2. The challenge rests on the following fundamental propositions of constitutional importance:- (it) Whether the foundational constitutional values of democracy, equality, political, economic and social justice; informed with fundamental rights and the principles of policy, recognize and acknowledge environmental justice and the international environmental principles as natural and integral concomitant of these values, rights and policies? (ii) Whether, the above constitutional values, rights and policies underline the constitutional requirement of an independent and autonomous regulator (in this case: The Provincial Environmental Protection Agency) to safeguard and protect the most primordial of fundamental rights i,e,, right to life, liberty and dignity of the people (Articles 9 and 14), by protecting the most essential element of human life i,e,, the environment? (iii) Whether the constitutional recognition and command to establish a third tier of elected self- government under Article 140A of the Constitution, actualizes the constitutional vision of a federalist state and of guaranteeing political, economic and social justice, encouraging local government institutions (Article 32), the right to liberty, dignity and political participation (Articles 9, 14 and 17)? Whether, the constitutional ethos of Federalism (reinvigorated through the 18th Constitutional amendment) introduce a new era of constitutional maturity complimenting the traditional doctrine of horizontal separation of powers between different organs of the State with a more enlightened
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constitutional design that in addition accounts for vertical and internal separation of powers within the organs of the State? And whether there exists vertical separation of powers and corresponding autonomy between the elected Provincial and Local Governments? Development Authority (LDA), a provincial body, to trump and usurp the powers of the elected local governments, which firmly rest on constitutionally devolved political, administrative and financial responsibility and authority under Punjab Local Government Act, 2013 ("PLGA") with clearly delineated powers ? (vi) Whether Provincial Legislature can curtail or abridge the powers already devolved under Article 140A and PLGA to the local governments by introducing amendments in the LDA Act or through introducing other provincial laws? 3. The Signal Free Corridor Project is a project that redesigns and remodels existing roads that start from Qartaba Chowk (roundabout) and end at Liberty Market Main Chowk spread over 7 K.Ms of the existing Jail Road and Main Boulevard. Remodelling would convert this stretch into a signal free, high speed expresswa y by introducing two underpasses at the Shadman and Fawara Chowks and seven U turns and five overhead pedestrian bridges at a cost of approx. Rs,1.5 billion of the taxpayers' money. 4. The petitioners submit that LDA in spite of having filed an Environmental Impact Assessment ("EIA") with the respondent Provincial Environmental Protection Agency ("EPA"), has in total disregard of the law, that is, without seeking the approval of EPA under Section 12 of the Punjab Environmental Protection Act, 1997 ("PEPA") mobilized the works and illegally commenced the construction of the Project. During the course of hearing, the Advocate General, Punjab confirmed that the EIA approval has been finally granted by the Director General, EPA on 19-3-2015 when the Project had commenced and after some of the petitioners had already approached this Court on 26-2-2015 by challenging the commencement of the Project without approval of EIA and before the availability of the EIA Report being made Public. It appears that EPA hurriedly granted the approval and placed it on the record, because the Court had taken cognizance of the matter and had questioned the LDA and the Provincial Government to explain how the Project had commenced without an EIA approval. The petitioners in the instant case and the subsequent connected petitions (all of them being public interest petitions) have also challenged the said decision of the DG, EPA. S. The petitioners, as a community of concerned citizens, have vehemently urged that EPA, currently, is not an autonomous statutory environmental protection agency but a mere Attached. Department of the Provincial Government, functioning on the dictates of the Provincial Government. It is argued that EPA suffers from complete Regulatory Capture by the Provincial Government and hence the impugned decision is a result of dictation and non-application of an independent mind. It is argued, that it is not possible for the beleaguered EPA to independently dispense environmental justice, within the statutory framework of PEPA, the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 ("Regulations-") and the Environmental Law Guidelines, namely: (i) Policy and Procedure for Filing, Review and Approval of Environmental Assessm ents. (ii) Guidelines for the Preparation and Review of Environmental Reports and (iii) Guidelines for Public Consultation. EPA also falls short of protecting the constitutional values of social justice and the fundamental rights under the Constitution. As a consequence, it is argued, that the entire EIA approval process, as well as, the preparation of the EIA report by the consultant is materially deficient and defective. 6. The petitioners, as concerned citizens, have also urged this Court to take notice of the sheer absurdity and irrationality of the Project. It is submitted that Rs,1.5 billion, of the tax payers' money is being spent to convert a 7 km road into a high speed corridor for only 8% motorists of the city, with no regard for the pedestrians, cyclists and other non-motorized persons who are in majority. It is
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also emphasized that the selection of the Project is at the cost of several other more important development projects in the Lahore Division. They vehemently submit that the sanction of the Project by the LDA, was without application of mind as is evident from the minutes of the meeting of LDA. They pleaded that while the patients languish in hospitals without doctors and medicines and government schools function without teachers, the need to spend Rs,1.5 billion on a small stretch of road, in the most developed part of Lahore, is cruel, inequitable and undemocratic. They urged that such nakedly irrational development policies are subject to judicial review. 7. On the role of LDA versus the Local Government, it was urged that after devolution of political, administrative and financial responsibility and authority to the elected representatives of the local government system under Article 140A of the Constitution, and after the provincial legislature having vested the municipal service relating to urban development under PLGA in the Lahore Metropolitan Corporation ("LMC"), LDA has no constitutional authority to initiate the Project within the devolved political, administrative and financial space of LMC. It is submitted that any such Project can ONLY be initiated and developed by the concerned elected Local Government. 8. It has been argued that the conclusions and recommendations drawn by the EIA Consultant are based on an inadequate, incompetent, unsubstantiated and biased appraisal of the Project, and are liable to be disregarded. The EIA, prepared by LDA, is itself a vacuous document and persistently violates the Guidelines which inform its preparation. The petitioners have given a detailed list of areas in which the EIA falls short of the legal requirements. The summary of their submissions is as under and references therein are to the EIA Report submitted by LDA before the EPA:-- HOW THE PROJECT EIA FALLS SHORT OF LEGAL REQUIREMENTS Sr. No Requirement with Source What has been done in EIAComments Project Description: Objectives; alternatives considered and reasons for rejection; description of location (with maps and photos of specific locations and layout) including land uses on site and surroundings, details of population centers and nearby dwellings, road access, topographic and vegetation features of site; description of project, including drawings showing project layout, components, etc. (EIA- G: para 2.3, p.6-7 and para 5.2, p. 24) Ferozepur Road MBS Project explained in more detail than actual Project (para 2.1, pp. 11- 12) States that the link requiring improvements plays important role in traffic and transport system of Lahore. On account of its importance, crossings need improvement, and making it signal-free are inevitable. (para 2.2, pp. 12-13) No map or photos whatsoever have been given of location. No detailing of land uses On site and surroundings, no details of population centers, nor of dwellings, roadImportant aspects of Project Description are omitted from the EIA, including a representation of the existing site (location) and description of the Project components. Hence, from reading the EIA, one is not certain of what the location looks like (from various perspectives, including vegetation, land use, population centers etc.) nor is one certain of what the. completed Project will look like, as the diagrams provided are glaringly insufficient, unclear, and incomplete1
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access, topographic or vegetation. As for description of project layout and components, it is done in point form (p. 18 for Jail Rd. and p. 22 Main Boulevard). Three miniscule layout drawings are provided (pp. 19, 20, 23), which are not legible and provide no details of what the Project will look like. These 7 drawings do not cover the entire project as described in the pints. Alternatives are discussed and rejected in two pages (pp. 16 17). No qualitative or quantitative analysis Goes into this Evaluation and rejection. Discussed in more details at Sr. No. 3 below. The existing traffic situation which presumably mandates such a major transport project is provided in the form of two diagrams for average Daily traffic for Shadman Chowk and Fawara Chowk at pp. 14-15. These diagrams apart from not Quoting the source of the data, fail to interpret the data presented in any Sense whatsoever. What do the figures actually mean in terms of traffic congestion? What is the extent of congestion presented by these diagrams, and what times of the day? Do these scats justify the Project, and if so, how? The Lahore Master Plan 2021, has the following to say of Project such as the present one, in para 8.11.2, p. 8-26: 'LOA made a preliminary effort to produce a Manual of Traffic Engineering, but that too is not being utilized because of lack of expertise and knowledge on the part of road building agencies and local consultancy houses. Major problem lies in project preparation
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and planning. Project Feasibilities are seldom based on traffic studies. For major projects, traffic counts are usually carried out to save from the scrutiny of the approving agencies, their utility for design solutions is witnessed in rare projects. This results Towards wasteful expenditure on projects with least priority of traffic demand. It is happening because of lack of expertise on the part of sponsoring and approving agencies on one hand and political compulsions on the other. Recently completed LRRP of ex - MCL is a classical example where more than Rs.3.4 billion are spent on a project of urban roads without carrying out any - traffic study. Traffic demand analysis justifying its engineering feasibility. Traffic impact assessm ent ensuring Its operational efficiency and Economic and financial viability for Any of its components." The EIA is more a predetermined
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justification for the Project. It does not comprehensively address the issue it is trying to address (traffic congestion on roads) as there is no validation of the problem being resolved by signal- free corridors.
2. Seopings Described as "a vital early step" and "a- process of interaction between the interested public, government agencies and the proponent. Scoping refers to the process of identifying, as early as possible: The appropriate boundaries of the environmental assessm ent: important issues and concerns; the information necessary for decision- making: and the significant impacts and factors to be considered. (EIA-G: pare 2.4; p. 5) Read further from this section Role of Stakeholders In ScopIng: Includes, environmental practitioners and experts, those affected, and the wider community. Read from EIA-G: pare 2.5, pp. 9.10) Note: The Punjab EP Act, 1997, and its regulations and guidelines envisage a two- tier public participation process. The first and most important of which is to take place during the preparation of the EIA. This is evident from the Scoping requirements laid down. It is at this stage thatFrom a reading of the EIA, it is apparent that a scoping exercise Has not been undertaken. There is a section devoted to public consultation (section 6). It stresses the importance of the consultation process in the assessm ent process (para 6.1. p. 91), however, it is apparent that a meaningful consultation process has not been carried out for the Project. The EIA states at pars 6.2.1 (pp. 91-92) that there are no primary stakeholders for the improvement of Jail Road and Main Boulevard. It groups local residents, shop keepers, vendors. pedestrians, and businessm en of the adjoining markets as secondary stakeholders. Stakeholders are identified in Table 6.2 (p. 93) and it appears that the Consultant has itself surmised as to whatIt is obvious from the reading of the Public consultation section of the EIA that A meaningful engagement with stakeholders has not been carried out. Whereas the EIA G, envisage a two-way Flow of ideas, knowledge, and concerns, between those affected, the wider community, environmental experts, and the proponent, so as to highlight important issues and concerns, the EIA evidently takes a non- serious and paternalistic approach to scoping. There is no mention of community groups, experts or NGOs having been consulted. No criteria are given for selecting stakeholders, and the atomised individuals consulted seem to
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meaningful and protracted input can be gained from various segments of society, especially those to be directly affected by the proposed projects. The second is the requirement to hold a public hearing on ElAs, and solicit comments/objections on proposed projects. Given the inherent constraints of such a hearing, and the fact that the scope and nature of the Project has already taken concrete form at this point, this public participation process is far less effective in Addressing genuine community concerns. their various concerns might be. It is stated that stakeholders (groups/individuals) were briefed about the project, and eventually their queries about the project were answered to their satisfaction (pars 6.3.1: p 94). It goes on to state that 77% of the respondents favoured the Project whereas 23% were against. (pars 6.3.3, p. 94). In pars 6.4, pp. 95.96. a summary of the comments and Discussions with Stakeholders is provided. It is stated that most of the public considers improvement of roads/provision of underpasses to be a priority project in the city. Concerns were raised as to road Crossings being disturbed (eliminated) by the Project; and Employment in Construction phase going to persons from outside the Project area. In response, it is stated that "all fears of the community were alleviated", and that positive impacts will abound from the Project. It states that "all the people showed their satisfaction for the improvement of jail roadhave been selected at random. Just some of the obvious stakeholders in the Project (some of which have been mentioned in other parts of the EIA) include Kinnaird College, Lahore College for Women (and other education providers along the Project route), Omer Hospital (and other hospitals/clinics on the Project route), owners of major shopping malls and plazas on the route, residents of Gulberg and Shadman, the custodians of the Christian cemetery on lad Road, urban planning and environment experts/NGOs, to name a few. It is evident from The overwhelming presence of concerned citizens and experts (many of whom filed comments/objections on the EIA) at the public hearing, that the Proponent and Consultant had not carried out a meaningful scoping/consultation process, but rather decided on its own the nature and scope of the Project to be foisted upon the City.
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and main boulevard/in the area. In para 6.5, p. 96 It is stated that 'several issues were raised by the community during the consultation, which Were immediately addressed by the Consultants' officials. Residents of the city were very much supportive to the implementation of the proposed project." After due consideration of the comments/observations of the people, it is stated in para 6.5, p. 96, inter alia, that in the absence of crossings by pedestrians, the comfort level presently available will be disturbed, therefore Pedestrian bridges should be take-up for completion simultaneously; The Difficulties and problems faced by Pedestrians during movement on roads will be eliminated': and "Public mental tension, frustration will be minimized" A list of persons consulted is provided on p. 97. It includes only 23 persons, for a 7-km long Project, at an estimated cost of Rs.1.5 billion. The list comprises entirely of individuals, no groups, organisations, NGOsAs for the concern raised as to ease of travel by pedestrians, the EIA seems to have resolved the issue in words alone. It is shocking that the Consultant's solution to this major issue is the construction of four (4) pedestrian bridges along the 7- km route (see: pp. 18 and 22), i.e. a bridge every 1.75 km!
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consulted has been provided. The Punjab EPA review proceedings refer to this as "random sampling at p. 23 of 87: 3 Generating Alter-natives: 'A rigorous approach to generating alternatives is more commonly associated with proposals from the public sector. where the allocation of public funds and priorities it recognised as a legitimate public interest...Alternatives are generated and examined to determine the best method of achieving project objectives, while minimizing environmental impacts. They can be grouped under such headings as: Activity alternatives leg providing public transport rather than increasing road capacity)- (EIA-G: pars 2, 6; p. 10) The alternative is often used as a base against which to measure the relative performance of other alternatives. In this case the relative impacts of the other alternatives are expressed as changes to the base case. If, overall, all the alternatives were judged to have unacceptable performance, the decision might be to adopt none of them, and stay with the status quo-- the no- build'. (EIA-G: pare 2,6; p. 11) EIA-G: Para 5.2, p. 25 states that for both the proposal and its alternative, the Environmental Report requires a description of the potential beneficial and adverseAlternatives to the Project are discussed in para 2.3, pp. 16-17 of the EIA. The two alternatives discussed and rejected as follows: * No Project Option: In the absence of the Project, the existing traffic problem and the level of service will further aggravate with the passage of time. Provision of Overhead Crossings: In addition to increased capital cost of construction, the "fibre of the area will be significantly disturbed. Less invasive alternatives which might not require large- scale construction have not been considered. No quantitative assessm ent of the alternatives over time has been provided. That fact that only 1.5 pages is devoted to alternatives speaks volumes of the seriousness with which other options were considered. It should be noted that the perspective of vulnerable road users has not been factored in when assessing alternatives, in contravention of, inter alia, the strategy forThe consideration of the No Project Option indicates an Extremely fatalistic and myopic approach to traffic management, as if the LDA (and TEPA) can exercise no control over future traffic flows apart from observing the increase in vehicular traffic, and providing further road space to accommodate it. Regretfully, the other options that are available to the LDA and other governmental organisations have not even been considered. These include: Enforcement of traffic discipline Relocation of critical activities Implementation of affordable and convenient public transport systems Parking discipline Proper signals and traffic control and traffic control Elimination of jay- walking by catering to the needs of VRUs. Unfortunately it seems that the LUA wishes only to
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environmental impacts. both direct and indirect, for each component of the environment identified as important during the screening and coping stages.- It goes on to state that 'alternative proposals should be compared, focusing on the significant adverse and beneficial impacts, after allowing for mitigation measures. The referred Alternative should be identified with a complete description of those impacts considered to be of greatest significance and the measures proposed to avoid, reduce or mitigate them, and opportunities for environ s mental enhancement." A very instructive summary of the evaluation of alternatives, indicating how each alternative satisfies the project objectives, is provided in the form of Figure 2, at p. 26. The objectives include 'least capital cost'. 'least impact of Physical environment', 'maximises community benefits, and 'long term return on investment'. road development laid down in the Lahore Master Plan 2021 (para 21.1.1) consider 'mega projects' and not look for simple effective solutions. The consultant reveals the self-serving nature of the EIA when it states in pars 1.4.1. p. 7, that the main objective of the EM study is to assess the environmental impacts likely to occur due to the construction of the roads improvement project, and to suggest mitigation measures to minimize the likely negative impacts'. This makes it crystal clear that Project alternatives were, in fact, not considered or evaluated. The consequential increase in traffic (especially private cars) will increase congestion, noise and air pollution. Thus signal-free express - ways and underpasses are 'band-aid solutions' which divert human, political and financial resources from the actual alternative solutions. The Lahore Master Plan in this regard states in para. 8.5, p.9-20: "Provision of additional road space over and above traffic requirements is a
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major source of traffic indiscipline and non- judicious any of utilizing network capacity having for reaching effects on traffic control and road discipline.' And again in pare 8.12.2. p. 8-29: 'Provision of additional road space more than the requirements of the traffic does not contribute to the capacity rather it acts otherwise-and is source of erroneous drive behaviour and bad safety situation in Lahore." Signal-free/high- speed roads cater to the minority who own cars, and ignore the requirements of the majority middle/low income stratas. The example of the signal-free corridor on Ferozepur Road has made it obvious that citizens find it dangerous to cross that road. Since the operation of that signal-free corridor has commenced, the TEPA has repeatedly had to re-design barriers and shoulders to route traffic in a safe manner, and has also been forced to install cat's-eyes even directly under
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overhead pedestrian bridges. For the existing Project, the proposed four (4) overhead pedestrian bridges for a 7-km route are insultingly inadequate. 4. Site Selection: While technical and operational aspects often dominate the initial selection of a site for a proposal, proponents should give equal weight to the suitability of the site in terms of compatible land use and adequate buffer distances.- EIA-G: para 2.7, p. 11 Separation Distances: The following performance objectives are listed for Residential areas, hospitals or schools: "Protect residential amenity and health; odour, fumes, visual amenity, noise,…
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