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Petitioner: Kamil Khan Mumtaz etc. VS Respondent: Government of Punjab etc.
Court Name: Lahore High Court Judge(s): Abid Aziz Sheikh, Shahid Karim Title: Kamil Khan Mumtaz etc. vs Government of Punjab etc. Case No.: Writ Petition No.39291/2015 Date of Judgment:2016-08-19 Reported As: 2016 LHC 2454 Result: Petition partly allowed
Judgment ABID AZIZ SHEIKH, J. The petitioners have filed this constitutional petition challenging the legality of major transport project commonly known as "Lahore Orange Line Metro Train Project" (hereinafter referred to as project). Relevant facts are that in order to cater for traffic congestion and future transport demand in city of Lahore, a Metro Train Project was proposed by Government of Punjab. To execute said project, the Punjab Mass Transit Authority ("PMA") was established under Punjab Mass Transit Authority Act, 2015 ("Act of 2015"). PMA entered into contract dated 20.05.2015 with Chinese Contractor M/s CR-NORINCO (hereinafter referred to CR-Norinco). A supplementary agreement dated 25.08.2015 between PMA and CR-Norinco was executed to assign civil work part of the project to Lahore Development Authority ("LDA") being nominee of PMA. In the prayer of this constitutional petition, the petitioners are seeking multiple reliefs. However, during arguments, learned counsel for the petitioners agreed that as legality of project being allegedly violative of Punjab Public Procurement Act, 2009 (PPRA), is also subject matter of separate writ petition No.5793/2016 (which is not yet ripe up for final arguments), therefore, in this constitutional petition, the petitioners will confine their submissions and relief to the extent of "Heritage" i.e. construction within the prohibitory zone of immovable protected antiquity/special premises and secondly "Environment" i.e. legality of Environmental approvals for project granted by Environmental Provincial Agency ("Provincial Agency"). Petitioners arguments on "Heritage" 2. Mr. Mohammad Azhar Siddique and Khawaja Ahmed Tariq Rahim, advocates on behalf of petitioners argued that the project will severely damage and harm various properties including 26 heritage sites of Lahore City (detail of which are given in para No.23 of writ petition). Learned counsel submits that the said properties being immoveable antiquities under section 2(g) of the Antiquity Act, 1975 (Act of 1975) and special premises under section 2(a) of the Punjab Special Premises (Preservation) Ordinance, 1985 (Ordinance of 1985) are required to be preserved and protected and no construction can be carried out within 200 feet distance of these properties as required under section 22 of Act of 1975 and section 11 of Ordinance of 1985. Submits that if construction allowed to be continued within 200 feet distance, these
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heritage sites will not only be destroyed, damaged, defaced but will also be mutilated. Submits that these heritage sites and monuments are also to be protected by the state under various international conventions, to which Pakistan is signatory . Contends that Director General Archeology (Director General) was bound under Act of 1975 and Ordinance of 1985 to protect these sites and NOC for construction within 200 feet distance could only be given to advance and achieve the purpose of these laws and not to frustrate the object of these laws. Submits that NOC issued by Director General dated 16.11.2015 under section 22 of the Act of 1975 and NOC dated 30.11.2015 issued by the Committee under section 11 of the Ordinance of 1985 giving permission to carry on construction within prohibited limits of 200 feet of protected antiquities and special premises are not only arbitrary , malafide, patently illegal, without lawful authority but same are also without application of independent mind. Submits that before granting said NOCs, the purpose of the Act of 1975 and Ordinance of 1985 to preserve and protect these heritage sites and monuments was grossly compromised. Submits that NOCs are based on extraneous and irrelevant considerations and were also given in blanket form without assessing individually that how much harm may be caused to each of these heritage sites by new construction within prohibited limit of 200 feets prescribed under the law. Submits that even provisions of Act of 2005 and various international conventions to which Pakistan is signatory, were not kept in mind by Authorities before granting NOCs and putting these precious heritage sites under serious threat and danger of being destroyed, damaged and mutilated. Further submits that no Archeological experts, historians or even the stakeholders including the petitioners were consulted or heard before granting NOCs. Contends that NOCs were granted due to undue influence of higher authorities as the Committee which granted NOC was headed by the Chief Secretary, Government of the Punjab and similarly Director General being an employee of Government was also pressurized to issue NOC within two days time without consulting any independent experts, therefore, entire process was just an eye wash. Further submits that Government can carry out development in accordance with law but at the same time, State being custodian of national heritage and historical monuments, it is also the duty of State to protect these sites while under taking these developments. 3. Mr. Shakil-ur-Rehman Khan, Learned Advocate General, Punjab during course of arguments apprised this Court that NOC dated 16.11.2015 regarding antiquity properties has already been revised by Director General (Archeology) on 06.5.2016 in respect of each antiquity property separately . He also informed this Court that addendum dated 20.5.2016 has been issued to the NOC dated 30.11.2015 separately regarding each special premises. Learned Advocate General, Punjab recorded categorical statement, that after above revised and addendum NOCs, impug ned NOCs dated 16.11.2015 and 30.11.2015 are no more are in the field. After the above development, the learned counsel for the petitioners thoughfiled formal application to amend this constitutional petition. However , it was agreed between the parties that as this Court can take into account subsequent events, therefore, the petitioners will make their submissions regarding revised and addendum NOCs and there is no need to formally amend this constitutional petition. In view of above, learned counsel for the petitioner made following further subm issions regarding revised NOCs dated 06.5.2016 in respect of antiquities properties and addendum NOC dated 20.5.2016 in respect of special premises. 4. They contends that revised NOCs are also violative of provision of Act of 1975 because NOCs should have been issued at the time of making of plan and scheme under section 22 of the Act and not at subsequent stage when project is already started. Argued that revised NOCs regarding antiquity property and addendum NOCs regarding special premises are not only violative of the Act and the Ordinance but same have been issued in violation of international convention regarding buffer zone of 200 feet meant to protect and safeguard heritage sites. Submits that revised and addendum, NOCs have been issued without associating independent and impartial experts and reports relied upon are prepared by persons who are either government officials or associated with government in various projects/departments. Submits that notificatio n of Advisory Committee dated 13.2.2016 is also not transparent as none of the members of Advisory Committee was independent and despite repeated requests, names proposed by petitioners were not considered for inclusion in Advisory Committee. Submits that even otherwise, NOCs could not be revised or added during their suspension by this Court through interim order . Submits that in revised NOCs, reliance has been placed on EPA report dated 09.7.2015 which has already become redundant and fresh report dated 09.5.2016 was not considered. Submits that revised and addendum NOCs are based on Advisory Committee report, report of Dr. Javed Younas Uppal (Dr. Uppal) and Heritage Impact Assessment (HIA) prepared by Dr. Ayesha Pamela Rogers (Dr. Pamela) but all these reports are based on NESP AK report which was inadequate and defective. Submits that these reports and HIA are neither independent nor in accordance with international
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standard for preparing such reports and HIA. Submits that petitioner already filed objections on constitution of Advisory Committee and against Dr. Uppal, being associated with government and LDA in number of their projects. Submits that HIA has also not been conducted by independent commission as Dr. Pemela was not only part of Advisory Committee but she also represented Government of Punjab before UNESCO in proceedings regarding Shalimar Garden at Turkey . Submits that HIA does not fulfill even international standard prescribed by UNESCO for preparing HIA. Submits that though revised and addendum NOCs are separately made in respect of each antiquity properties and special premises, however , they all are identical and ditto in letter and form. No independent assessment was carried out by the competent authority of each heritage site separately before issuing the NOCs. He submits that HIA report prescribed different levels of risk and damage which may be caused to each heritage site but none of aforesaid risk was taken into consideration while prescribing the stereo type same conditions and mitigating measures for each heritage sites in the revised and addendum NOCs. Submits that in HIA, it is pointed out that there will be permanent visual damage to heritage sites and therefore, no revised and addendum NOCs, could possibly be issued. Adds that advisory committee in its report asked for independent structure engineer however , LDA instead of appointing independent structure engineer submitted the report of Dr. Uppal who was already appointed by LDA to confirm the NESPAK defective report. Submits that in HIA, it was specifically mentioned that there is risk to fabric as well as permanent damage to the heritage sites but even that part of report was not considered while giving revised and addendum NOCs. 5. Ms. Asma Jahangir , learned counsel for the petitioners argued that petitioners are concerned citizens of Pakistan and resident of Lahore, therefore, they have fundamental right under Article 28 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) that their culture and heritage may be preserved. Submits that Article 28 of the Constitution being a fundamental right must be given effect through judicial review. Adds that this Article is unique and there is no corresponding provision even in Indian Constitution. Submits that Article 29 of Indian Constitution only deals with right of minorities regarding their culture. She argued that NOC dated 16.11.2015 regarding antiquity properties and NOC dated 30.11.2015 regarding special premises are not sustainable. She elaborates that project commenced on 25.10.2015, whereas request for approval of NOC was referred to Director General Archeology by LDA much after commencement of work. Submits that said request for NOC was refused on 05.11.2015, but just after few days on 12.11.2015, Director General was transferred and on 16.11.2015, NOC was issued by newly appointed Director General Archeology. Adds that even otherwise LDA could not apply for NOC and it was only PMA who could apply for NOC to the authorities. Submits that NOC dated 16.11.2015 was issued in violation of provision of Act of 1975 including section 22 thereof. Submits that NOC dated 30.11.2015 regarding special premises was issued by Committee in violation of section 5 and 11 of Ordinance of 1985 that the said committee was not independent but consists of Government Officials and there was no way they could refused NOC. Adds that there were only two independent Members of the committee and they both refused to sign the minutes of the meeting, therefore, even this NOC was not validly issued. Submits that impugned NOCs are based on presentation by LDA and NESPAK report, however both are not expert in heritage and NESPAK Report even otherwise has no basis because NESPAK was not appointed as "consultant" after fulfilling the requirement of PPRA Rules. Further submits that there is no correspondence on the record to show that NESPAK was appointed by PMA or LDA to carry out the inspection of special premises and said report was apparently issued after the NOC dated 15.11.2015 and 30.11.2015. Further submits that Heritage Impact Assessment Report dated February 2016 by M/S Dr. Ayesha Pamela Rogers of M/S Rogers, Kolachim Khan Associates (RKKA) was also after the issuance of these NOCs, therefore, does not cure the defect in the NOCs. Submits that notwithstanding the above legal position, even in the said HIA report, it is mentioned that there is high risk to the heritage site, which proves that the NOCs were not issued with due consideration and application of mind. Learned counsel placed reliance on Jaffar Ali vs. Station House Officer , Airport Police (PLD 2016 Sindh 31), Binay Kumar Mishra vs. State of Bihar and others (AIR 2001 Patna 148) and Ramsharan Autyanuprasi vs. Union of India (AIR 1989 SC 549) to argue that balance must be drawn between sustainable development and protection of heritage sites. Further submits that u/s 5 of the Ordinance of 1985, no alternation or renovation etc can be made in respect of special premises without permission of the Government or the committee. Submits that no such separate approval has been granted u/s 5 and the NOC dated 30.11.2015, only related to construction within 200 feet which was also defective for reasons explained above.
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6. She further contends that UNESCO Convention of 1972 (Convention) was implement ed by introducing Act of 1975 and Ordinance of 1985 and u/s 22 of the Act of 1975 and section 11 of the Ordinance, 1985, the Director General and Committee could only issue NOCs in exceptional circumstances but in present case, NOCs were issued without ensuring protection of immovable antiquities and special premises. Ms. Asma Jahangir , Advocate concluded that approval, plans and construction of project are violative of various laws including Act of 1975 Ordinance of 1985, Punjab Heritage Foundation Act, 2005 (Act of 2005), various international conventions and various Articles of Constitution including Article 9, 10- A,14,23,24,25,28,32,38 and 140-A of the Constitution. 7. Mr. Ali Zafar Advocate while appearing as Amicus Curiae referred to interim order passed by this Court dated 28.01.2016 and submits that this Court had rightly observed that under the Act of 1975 and Ordinance of 1985 there is a positive as well as negative duty on the part of Government to ensure protection of heritage sites. He submits that no doubt this Court cannot substitute the decision of policy makers however, discretion to be exercised by the policy makers must be structured and the order which is arbitrary, can always be interfered by this Court in judicial review. He submits that in such like mega projects where number of heritage sites and emolument are likely to be affected, the authorities concerned should have taken independent expert opinion from a penal of experts of international fame and not from an individual. He submits that each heritage site, require different expertise and tools, therefore, HIA should have been conducted by a team with professional skills and not by individual. He submits that original NOCs were totally non-speaking and were rightly suspended by this Court. Submits that Government also by realizing the said defects in the said NOCs though issued revised and addendum NOCs but this does not cure the defects in original NOCs because they are not based on independent assessment and expert opinion. He submits that Advisory Committee based its findings on the presentation by LDA and report of NESPAK but neither LDA nor NESPAK are experts on the heritage sites. He adds that report of LDAs appointed consultant Dr. Uppal on vibration and HIA by Dr. Pamela who has represented government before UNESCO, cannot be treated as independent as both have either links or commercial interests with government. He submits that these reports could be sufficient if project was only to build a house or building but in such like mega project which is likely to effect number of heritage sites and entire look of the city, much more efforts should have been made including seeking independent experts opinion by the competent authority, before issuing NOCs. He submits that every one including, Advisory Committee, LDA, the HIA by AKKA and report of Dr. Uppal, relied upon NESP AK Report. However , NESP AK report was neither independent nor sufficient document on heritage. Submi ts that in absence of any other independent assessment, the superstructure based merely on NESP AK report is not sustainable. Mr. Ali Zafar argued that under Section 22 of the Act of 1975 and Section 10 of the Ordinance of 1985, the NOC for construction within 200 feet could only be issued when there is a clear report that such construction will not harm historical sites. He submits that once the HIA has given report that the construction of project will cause harm to the heritage sites including permanent harm of visual nature, no NOC could be issued by the competent authority . He submits that NOC under the Act of 1975 and Ordinance of 1985 is not the matter of mitigation but it is a matter of ruling. Mitigation stage will only come if NOC was originally issued on the bases that there is no likelihood of any harm to heritage sites and subsequently , some unexpected circumstances arises for which mitigation measures were required. He submits that under the law no NOC can be issued simultaneously to harm historical sites and then also prescribing mitigating measures in same NOC against said harm. He submits that heavy construction just few feet away from historical sites will definitely cause damage to it and there is always likelihood of some unfortunate incident like fallen of crane etc, which may permanently destroy the heritage sites. He in these circum stances concluded that in absence of any independent expert opinion of penal of experts no construction can be allowed within 200 feet of heritage sites. Petitioners arguments on environmental approval 8. On the issue of Environment Impact Assessment approval, learned counsel for the petitioners argued that Environment Impact Assessment Approval dated 09.07.2015 (Approval) was passed by the Provincial Agency on the request/application of LDA dated 07.05.2015. He submits that on 07.05.2015, the LDA had no concern with the project as for the first time, LDA was assigned civil work being a nominee of PMA through supplementary agreement between PMA and CR-Norinco on 25.08.2015. He submits that the only Authority which could file application for EIA was PMA which had to carry out the project in view of contract dated 20.04.2015. He submits that u/s 12 of the Punjab Environmental Protection Act, 1997 ("Act of 1997"), only the proponent of project could apply to Provincial Agency for EIA. He submits that the word "proponent" as defined in section 2(XXXVI) means a person who proposes or intends to undertake a project. He
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submits that as the EIA was not only confined to civil work but was in respect of entire project, therefore, it was only the PMA who could apply for approval the EIA and LDA was not a proponent to undertake a project or seek EIA approval. Learned counsel further submits that notwithstanding the fact that approval dated 09.07.2015 could not be issued even otherwise one of the conditions of approval was that unless the approvals and NOCs are obtained from other authorities, the project shall not be commenced. He submits that in clear violation of said approval, the civil work of the project was commenced in September 2015 whereas the NOCs by the Director Archeology under Act of 1975 and the NOC by Committee under Ordinance of 1985 were obtained much after the commencement of the project on 16.11.2015 and 30.11.2015. Learned counsel further submits that even as per clause 7 of Contract dated 20.04.2015 between PMA and contractor , the contract was to be given effect after effectiveness of the loan agreement. Submits that loan agreement was finally approved in January 2016 whereas the project commenced in September 2016 which is clear violation of contract dated 20.04.2015. Further submits that originally Punjab Mass Transit Authority Act, 2012 ("Act of 2012") was promulgated for the purpose of Metro Bus Project and allied functions. Submits that said Act does not relate to Train Project which is evident from the fact that Act of 2012 was repealed and Punjab Mass Transit Authori ty Act of 2015 (Act of 2015) was promulgated on 26.06.2015 to include the Metro Train Project within purview of PMA. He submits that before the promulgation of Act of 2015, on 26.06.2015, the agreement was already executed by PMA with the CR-Norinco on 20.04.2015, when PMA had no legal authority and jurisdiction to enter into an agreement as its is functions were only confined to Metro Bus under the Act of 2012 and therefore even PMA could not be treated as proponent for the purpose of EIA approval. Further submits that permission was allowed by the Provincial Agency notwithstanding the fact that the EIA did not fulfill the requirements to grant permission for EIA. He elaborates that as per various publications in newspapers, non-certified private laboratory had prepared the baseline profile regarding the environm ent impact assessment with sub- standard equipment. 9. Submits that environmental approval was granted in slip shod manner without making any quantitative and qualitative assessment of the documents and data furnished by proponent.He submits that under regulation 11 of Review of IEE and EIA Regulations, 2000 (Regulation 2000), the relevant environment Agency was required to constitute a committee of experts and also solicit views of concerned Advisory committee. Submits that Director General in such Mega Project was also required to constitute a special committee to inspect site of the project and thereafter based on quantitative and qualitative assessment of the documents and data furnished by the proponent and after obtaining views from the public and concerns agencies and committees was to give his independent decision an EPO. He submits that even requirements of regulation 13 has not been complied with. He referred to various documents filed by respondents No.9 and 10 and submits that after request dated 07.5.2015 by LDA, environmental Agency vide letter dated 14.5.2015 requested for detail information. He submits that no information was provided, therefore, on 22.5.2015, EIA was returned for resubmission after incorporating replies to certain observation made on 22.5.2015. He submits that on 26.5.2015, copies of EIA report was resubmitted but on 27.5.2015, environmental Agency again asked for additional information including NOCs from stake holders, public and private institutions as well as letter that no archeological site will be damaged/disturbed by the project. Submits that on 27.5.2015, District Officer Environment (DOE) was also directed to visit the site and furnish comprehensive and suitable report by considering environmental, social and economic aspect of the project to proceed further . Submits that on 28.5.2015, LDA merely replied that NOCs are under process. Contends that notwithstanding the above fact, on the same day i.e.28.5.2015, without waiting for the quarries raised on 22.5.2015 for the NOC and site inspection report, the Assistant Director Environment confirmed that EIA is complete. He submits that in similar fashion, on 30.6.2015, committee of so called experts, discussed four different projects including Mega Orange Line Train Project and just in two paragraphs recommended the project for issuance of environmental approval. He submits that in the said report of experts, none of the documents and data filed with EIA were discussed or assessed quantitative or qualitative. Submits that the impact of the project on environment, noise, pollution vibration impact on heritage site etc and mitigating measures required were not even considered by the experts but they only discussed crossing of pedestrian and parking places. He submits that non of the so called experts had any expertise and they were merely employees of various government departments, therefore, had not exercised their jurisdiction and applied their mind independently. Learned counsel submits that in order to cover up defect in expert report, a letter dated 11.6.2015 was written requesting information, which was actually never called by committee of experts who had already recommended issuance of environmental approval in its meeting dated 30.6.2015.
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