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Petitioner: STANDARD CHARTERED BANK LIMITED through Constituted Attorney VS Respondent: KARACHI MUNICIPAL CORPORATION through Administrator and 9 others
Court Name: Sindh High Court Judge(s): Ghulam Sarwar Korai, Munib Akhtar Title:STANDARD CHARTERED BANK LIMITED through Constituted Attorney vs
KARACHI MUNICIPAL CORPORATION through Administrator and 9 others Case No.: Constitutional Petition D-3851 of 2012, Date of Judgment:2013-07-18 Reported As: 2015 YLR 1303 Result: Petition dismissed Judgment ORDER ' MUNIB AKHTAR, J.---The question that arises in this petition is whether the respondents. Nos. 8-10 ("contesting respondents") are entitled to construct a ground plus eight storey apartment building on Plot No, 18/1, Civil Lines Quarter No, 6, Karachi ("subject property") comprising of 16 residential flats. This challenge has been mounted by the petitioner on two grounds. Firstly, it is contended that the construction of the proposed building would amount to a change of land use from residential to flat site and since no such permission has been granted would violate the Karachi Building and Town Planning Regulations, 2002 ("2002 Regulations"). Secondly, it is contended that the contesting respondents were required to file an environmental impact assessment (EIA) under section 12 of the Pakistan Environmental Protection Act, 1997 ("1997 Act") read with the relevant regulations framed pursuant thereto and obtain the approval of the concerned environmental agency. This not having been done, the construction is alleged to be unlawful. The petitioner seeks declaratory and injunctive relief accordingly. 2. The, petitioner is a banking company and owns a property that is perpendicular to the subject property. The petitioner's property has a residential bungalow, which is used by its chief executive for the time being, and this is the basis on which standing is claimed to file the petition. Learned counsel for the petitioner submitted that the subject property was a plot of around 1500 sq. Yards and only a residential bungalow could be built on it. It could not be used for construction of an apartment building. Learned counsel referred to Regulation 18-4.2 of the 2002 Regulations, which deals with change of land use of residential plots. This provides that "no residential plot shall be converted into any other use except with the approval of MPGO after the recommendations of the
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Concerned Authority". MPGO stands for "Master Plan Group of Offices", a -department established to implement the 2002 Regulations (see Regulation 2-78, as well as 2-37, which defines "concerned authority"). Regulation 18-4.2 lays down a detailed procedure as to how the conversion exercise is to be carried out, and learned counsel submitted that neither that 'procedure had been adopted nor the necessary approval accorded. Thus, the subject property could only be used for the construction of a residential bungalow and not an apartment building, as presently underway. 3. Learned counsel also referred to Chapter 25 of the 2002 Regulations, which deals- with zoning regulations and area standards. It was submitted that this separately and specifically provides for relevant standards for residential purposes (Regulation 25-2) and flat sites (Regulation 25-4) and other uses, such as amenity plots and commercial usage. Learned counsel contended that this clearly showed that the 2002 Regulations drew a distinction between residential use and the use of a plot for an apartment building. The one could not therefore be mixed up with the other. This submission was also in part a response to a ground taken by the contesting respondents in their reply, namely that the issue of land use had been settled by an unreported decision of a Division Bench of this Court dated 9-8-2001 (Farrokh K. Captain and others v. Karachi Building Control Authority and others Constitutional Petition D-549/1997 and other connected petitions). Learned counsel for the petitioner submitted that that decision (hereinafter "Farrokh Captain") dealt with the predecessor Karachi Building and Town Planning Regulations, 1979 ("1979 Regulations"). The relevant provision of the latter had provided that no residential plot shall be converted into any other use except with the approval of MP&EC (Authority under Sindh Building Control Ordinance 1979) after recommendations of the Concerned Authority" (see para 15 of the decision). This was paragraph 4 of Schedule D to Part II of the 1979 Regulations. Although this provision looked remarkably like Regulation 18-4.2 of the 2002 Regulations, reproduced above, learned counsel submitted that the 1979 Regulations had not catered, specifically and separately, for flat sites as was the case under the 2002 Regulations. Thus, it was submitted, Farrokh Captain did not apply to the facts at hand. In this context, learned counsel also referred to Zaheer Ahmed Chaudhry and others v. City District Government, Karachi and others 2006 YLR 2537 (SHC), where at pg. 2569 the learned Division Bench had agreed with a submission made by counsel "that the Honourable Supreme Court has already decided the issue that flats can be constructed on a residential plot", and held accordingly. Learned counsel respectfully submitted that to the best of his knowledge, the issue had not been decided by the Supreme Court. Thus, his case was that there was no binding authority as presently relevant to the effect that an apartment building could be constructed on a residential plot. The matter, according to him, clearly fell within the prohibitions contained in the 2002 Regulations, and the construction on the subject property violated the relevant provisions thereof. 4. Insofar as the second ground was concerned, learned counsel referred to section 12 of the 1997 Act and various definitions from section 2 thereof. Section 12(1) requires the proponent of a project to file an initial environmental examination (IEE) or environmental impact assessment (EIA), as the case may be, with the concerned environmental agency, and construction or commencement of the project is impermissible without its approval. Learned counsel submitted that the construction of the apartment building came within the meaning of "project" and the contesting respondents were its "proponent". Learned counsel also referred to the relevant regulations, the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessm ent Regulations, 2000 ("the Environmental Regulations") and submitted that in the present case, an EIA had to be filed. Learned counsel submitted that the present construction came within the ambit of Regulation 4 read with paragraphs A:3, G:2 and/or J:2 of the second schedule to the Environment Regulations. Since admittedly no EIA had been filed nor approved, the construction being carried out was in violation of the 1997 Act and liable to appropriate remedial
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action. Learned counsel relied on Farooq Hamid and others v. L.D.A. And others 2008 SCMR 468 and certain Division Bench decisions of this Court, being Nighat Jamal v. Province of Sindh and others 2010 YLR 2624, Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293, 2007 CLD 783 and Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Karachi 498. Our attention was also drawn to an unreported Division Bench decision of this Court, Clarissa James and another v. S.I.S. Builders and Developers and others (Constitutional Petition D-2924/2011 dated 2-11-2011). Learned counsel submitted that the petitioner was entitled to relief on both the grounds taken, and prayed accordingly. 5. Learned counsel for the contesting respondents strongly opposed the petition, and took a number of preliminary objections. It was submitted that the petition was hit by laches for the reason that although the project had been initiated by the contesting respondents in March, 2012 the petition had been filed in November, 2012. Learned counsel submitted that the project had been properly advertised and that the construction had been going on in full swing at the site. It was therefore not possible for the petitioner not to have been aware of it. Yet, the petitioner waited for several months before launching the present proceedings, by which time the construction had progressed substantially. The petition was therefore also barred by reason of waiver or acquiescence. Learned counsel submitted that the petitioner had concealed material facts from the Court and had come with unclean hands. It was submitted that in fact the petitioner had filed a petition against the contesting respondents in respect of the construction of a project on a neighbouring plot. That petition had been on identical grounds but was subsequently withdrawn. Learned counsel submitted that the present petition was therefore hit by constructive res judicata. Learned counsel also submitted that there were a number of high rise buildings in the area and provided a list of the same, which had not been objected to by the petitioner. He submitted that it would be discriminatory to grant the petitioner relief in the present petition in view of the existing construction of a similar nature. 6. On the merits, learned counsel submitted that the building was being constructed after all the approvals and permissions had been obtained and strictly in accordance with the same. In this regard, he pointed out that the Sindh Building Control Authority (SBCA) had confirmed this position and had also filed a para-wise reply praying that the petition be dismissed. Learned counsel contended that the area in which the subject property was located was an old part of Karachi (and in particular, the area was the Civil Lines) in which there were no flat sites, but there were numerous high rise buildings both commercial and residential. His case was that Regulation 25-4 did not apply at all in such circumstances. It only had relevance in relation to those areas where, and for which, flat sites had been demarcated. In the present case, the requirements or regulations for residential construction were applicable and these had been fully complied with. It was submitted that there was no material difference between the previous Regulations and the 2002 Regulations with regard to the use of residential plots for construction of apartment buildings. Thus, what had already been held by this Court in Farrokh Captain was fully applicable, and the present construction was lawful. In particular, learned counsel also submitter that proper compulsory open space had been left around the building as required by law and the necessary parking space had also been provided for. Insofar as the 1997 Act was concerned, learned counsel submitted that it was not applicable, but -by way of abundant caution, the contesting respondents had filed an initial environmental examination (IEE) with the provincial environmental agency, which had approved the same. Therefore, on any view of the matter, the grievance with regard to environmental issues was without substance. Learned counsel prayed that the petition be dismissed. Exercising his right of reply, learned counsel for the petitioner submitted that the preliminary objections were without substance and that the respondents had been unable to
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answer the case on the merits. At the conclusion of the hearing, we had allowed learned counsel to submit written synopses and they did to, along with the case-law that they wished to rely upon. 7. We have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. We begin with the environmental issue. The provisions of the 1997 Act and the Environmental Regulations are as follow:--- "2. Definitions.---In this , Act, relevant unless there is anything repugnant in the subject or context,-- (i) "adverse environmental effect" means impairment of, or damage to, the environment and includes- (a) impairment of, or damage to, human health and safety or to biodiversity or property; (b) pollution; and (c) any adverse environmental effect as may be specified in the regulations; (x) "environment" means- (a) air, water and land; (b) all layers of the atmosphere; (c) all organic and inorganic matter and living organisms; (d) the ecosystem and ecological relationships; (e) buildings, structures, roads, facilities and works; (f) all social and economic conditions affecting community life; and (g) the inter-relationships between any of the factors specified in sub-clauses (a) to (f); (xi) "environmental impact assessm ent" [EIA] means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formula-provisions of the 1997 Act and the section of environmental management Environmental Regulations are as follows:-- and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed; (xvi) "Federal Agency" means the Pakistan Environmental Protection Agency ... Or any Government Agency ... Exercising the powers and functions of the Federal Agency; (xvii) "Government Agency" includes ... (c) a Provincial Environmental Protection Agency; ... (xxiv) "initial environmental examination" [IEEJ means a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an adverse environmental effect for requiring preparation of an environmental impact assessment; (xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission of effluent or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity; (xxxv) "project" means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes- (a) construction or use of buildings or other works; (b) construction or use of roads or other transport systems; (c) construction or operation factories or other installations; (d) mineral prospecting, mining, quarrying, stone-crushing, drilling and the like; (e) any change of land use or water use; and
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(f) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installations; (xxxvi) "proponent" means the person who proposes or intends to undertake a project;". "12. Initial environmental examination and environmental impact assessment.---(1) No proponent of a project shall Commence construction or operation unless he has filed with the Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect an environmental impact assessment, and has obtained from the Federal Agency approval in respect thereof. (2) The Federal Agency shall- (a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessm ent by the proponent; or (b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, require that the environmental impact assessment be re- submitted after such modifications as may be stipulated or reject the project as being Contrary to environmental objectives. (3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to ... [there follow three sub-clauses which are not relevant for present purposes]. (4) The Federal Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations. (5) Subject to subsection (4) the Federal Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants. (6) The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed. (7) The Federal Agency shall maintain separate registers for initial environmental examination and environmental impact assessm ent projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3)." ' The Environmental Regulations provide in material part as follows:-- "3. Projects requiring an IEE ' A proponent of a project falling in any category listed in Schedule I shall file an IEE with the Federal Agency, and the provisions of section 12 shall apply to such project. 4. Projects requiring an EIA ' A proponent of a project falling in any category listed in Schedule II shall file an EIA with the Federal Agency, and the provisions of section 12 shall apply to such project. SCHEDULE II (See Regulation 4) List of projects requiring an EIA A. Energy ... 3. Transmission lines (11 KV and above) and grid stations. ... G. Waste Disposal ... 2. Waste disposal facilities for domestic or industrial wastes, with annual capacity more than 10,000 cubic meters.
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J. Other projects ... 2. Any other project likely to cause an adverse environmental effect." 8. Section 12 is one of the key provisions of the 1997 Act and a proper appreciation of its scope and application are essential to understand the scheme of the statute. Particular attention must be given to subsections (1) and (6). It will be seen that in section 2, the key terms such as "environment", "project", "pollution" and "adverse environmental effect" are defined in exceedingly broad terms (and this is so notwithstanding the use of the word A "means" in these definitions). This is understandable. After all, the complexity and diversity of the environment, and that what can affect it adversely are beyond any exhaustive description. Furthermore, the situation is not static. As time passes and technologies change, populations grow, material circumstances alter and (perhaps most importantly) awareness of and sensitivity towards environmental issues deepens and becomes more sophisticated, notions both of what constitutes the environment and impacts on it adversely, continue to evolve dynamically. Rather than having to alter the law periodically to meet these changes and challenges, the legislature has taken a proactive approach, in the sense of using broadly worded and flexible definitions. But, there is a catch. Subsection (1) of section 12 requires that in respect of every project, there must be the filing of an IEE or, if the project is likely to have an adverse environmental impact, the filing of an EIA. When this requirement is read in the light of the broad definitions used, the necessary consequence would be that an exceedingly large number of projects would fall in the net of subsection (1). As a, result, there would have to be a huge number of filings of IEEs at the very least, or EIAs as the case may be. It may even be that matters which, in practice, do not have (or at least are not now regarded as having) an adverse effect on the environment may get caught in the literality of the broad language used in the definitions. So the legislature has (if we may put it so) very sensibly provided a balance by means of subsection (6). This is a very important provision. It expressly limits the application of all of the previous subsections "to such categories of projects and in such manner as may be prescribed". The legislative intent is clear. The broad definitions used in section 2 read with section 12(1) have etched into the law an exceedingly wide ranging requirement and obligation. But, the applicability of this requirement and obligation at any given time, and for the time being, is controlled and modulated by subsection (6). It is for the executive agency to determine the categories of projects that are, in fact, for the time being, or at any given time, to actually fall in the net of subsection (1). The canvas provided by the legislature is large indeed; what is to be painted thereon at any given time or for the time being is in the hands of the executive agency. But this duty is not static. The agency cannot frame the regulations and specify the categories of projects under subsection (6) on a onceand-for-all basis. The role envisaged for the agency is dynamic. The regulations to be prescribed for subsection .(6) are quite obviously intended to be reviewed from time to time to take into account the various factors listed above (and no doubt others) that can affect the environment. For example, technologies undreamt of today may become commonplace tomorrow and impact on the environment: the regulations under subsection (6) can dynamically take this into account. Even those matters that exist today and for the time being are regarded as having no effect on. The Would require (or at least not such as ould require action) may in the future require a reappraisal, and the existing view may change. Again, the regulations under subsection (6) can cater for this situation. Indeed, it is conceivable that the reverse of what has just been postulated may also be true: that which is today regarded as adversely affecting the environment and therefore is included in the regulations may cease to be a problem in the future. Again, the regulations can be suitably altered. 9. In our respectful view therefore, it would be seriously misleading to read the 1997 Act ,without keeping in mind that the legislature has sought to achieve two objectives. On the one hand, it has balanced the competing (and perhaps to a certain extent conflicting) demands of describing
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environmental issues in broad and expansive terms and yet keep the requirements being imposed firmly anchored within a manageable framework at any given time and for the time being. On the other hand, it has also ensured that the anchor so provided does not become an unbreakable (and therefore unacceptable) chain that prevents a dynamic response to ever changing circumstances. The learned Division Bench in Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 was perhaps alluding to this vital balancing act when it observed:-- "Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus its mandate should be honoured in its true letter and spirit." (pg. 309) 10. In our view, the 1997 Act and the Environmental Regulations must be read, interpreted and applied in the foregoing manner. The interplay between the definitions, subsection (1) and subsection (6) constitutes a dynamic equilibrium that provides certainty at any given time as to what projects require the filing of an IEE or EIA, and also flexibility over time to cater for changing circumstances. It may also be noted that the requirement that the executive agency must adopt a dynamic and proactive approach and periodically update the regulations is a statutory duty. Should the agency fail to discharge it properly, an order in the nature of mandamus may lie in appropriate circumstances to (e.g.) include (or even exclude) a category of project in (or from) the regulations, or to shift an existing category from the first to the second schedule or vice versa. It will be seen later in the judgment that this aspect is of some relevance in understanding the cases cited before us. 11. As noted above, learned counsel for the petitioner contended that an EIA had to be submitted for purposes of the present project and when invited to particularize his case, placed reliance on paragraphs A:3, G:2 and J:2 of the second schedule to the Environmental Regulations. It is important to keep in mind that subsection (6) requires the regulations to specify the "categories" of projects, and…
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