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Petitioner: Ms. SALMA IQBAL CHUNDRIGAR and others VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Environmental Protection, Islamabad and others
Court Name: Sindh High Court Judge(s): Azizullah M. Memon, Abdur Rehman Faruq Pirzada Title:Ms. SALMA IQBAL CHUNDRIGAR and others vs FEDERATION OF PAKISTAN
through Secretary, Ministry of Environmental Protection, Islamabad and others Case No.:C.Ps. Nos.D-756 and D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D-2168 of 2008 C.P. No,D-756 of 2008 C.P. No,D- 2168 of 2008 Date of Judgment:2009-02-27 Reported As: 2009 CLD 682 Result: Petition disposed of Judgment ORDER ' ABDUR REHMAN FAROOQ PIRZADA, J.---By this single order we propose to dispose of the petitions viz. C.P. No,D-756 of 2008 and C.P. No,D-2168 of 2008, as both pertain to same subject matter. 2. The brief facts leading to C.P.No,D-756 of 2008, are that the petitioners are residents of Khayaban-e-Hafiz, D.H.A, Phase-V, along the Main Gizri Road, Karachi. The petitioners invested huge amounts to either purchase or construct their respective houses and are sub-lessees of Defence Housing Authority. The respondent No,3 Environmental Protection Counsel and Respondent No,4 Clifton Cantonment Board engaged respondent No,8 NESPAK (Private) Limited for the construction of the proposed overhead bridge upon Main Gizri Road, on account of traffic congestion on the road, since a major portion of Gizri had been commercialized. For the purpose of construction, the road was dug 20' (twenty feet) below the surface level. The petitioners were informed that the ramp was to be built from the Khayaban-e-Tanzeem junction rising to a height of 60' (sixty feet) in the form of 'flyover', which was in gross violation of the law which required that the public notice be issued by the authorities inviting objections, if any, from residents of the area. It was a mandatory requirement under section 12 of the Pakistan Environmental Protection Act, 1997, that no construction could commence without initial Environment Examination, or, where project
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was likely to cause an adverse environment impact, an Environment Impact Assessment. The two- third of Main Gizri Road had been commercialized, but for the portion of the road across the Total Petrol Station, where the petitioners were residing; the area across the Total Petrol Station had been protected by respondent No,5 Defence Housing Authority from any commercialization. The D.H.A had, at all material times assured the petitioners and other potential investors/buyers of houses and land in the area, that their area would be protected from nuisance, pollution and petty crime, which resulted as a natural corollary of commercialization, and that the residents of the area would be consulted, before any plans to change the general character of the said area. The commencement of construction of the flyover in Gizri was in manifest violation of the law, since no notices were issued by respondents Nos.4 and 5 to the residents of affected area, and the same was violative of the Karachi Building and Town Planning Regulations, as well as Articles 4, 9 and 14 of the Constitution of Pakistan. The petitioners as well as other residents of area were completely kept away from the entire process of planning and subsequent commencement of the construction work, which rendered the entire exercise of the respondents as illegal, void, ultra vires and unconstitutional. Despite repeated representations made by the residents of the area, including the petitioners, no remedial measures were taken by the respondents. The process of construction of an overhead bridge in a densely p9pulated area had serious repercussions upon the infrastructure and use of the land. Deep ground digging for erecting pillars and placing heavy slabs on those pillars, had potential disastrous and hazardous effects on the surroundings, and the same was likely to damage the houses of petitioners and other residents of the area. Moreover, the proposed flyover posed a high risk of accidents. The construction of flyover had severely devalued the price of land of petitioners, apart from infringing their rights of easements. The entire process of planning and commencement of construction was tainted with mala fides. 3. The petitioners in C.P.No,D-756 of 2008 prayed for the following reliefs:-- (i) To declare that action of respondents in respect of the construction of the overhead bridge is unlawful, illegal, ultra vires and unconstitutional, being in violation of the constitutional and legal rights of the petitioner. (ii) To declare that the excavation/construction performed till today has been done illegally, without authority and in contravention of section 12 of Pakistan Environmental Act, 1997, and in violation of the Karachi Building and Town Planning Regulations, 2002, and in excess of their legal authority. (ill) To declare that the action of the respondents in commencing construction is in breach of Articles 9 and 14 of the Constitution. (iv) To declare that the commencement and or construction of the project by the respondents is in breach of Article 25 of the Constitution. (v) To restrain the respondents, their employees, representatives, assignees, attorneys or any person acting on their behalf from doing further construction. (vi) To grant costs of the petition. (vii) Any other relief which this Honourable Court deem fit and proper in the circumstances. 4. Vide order dated 28-4-2008, pre-admission notice was issued to the respondents, and by an interim order the respondents were restrained from carrying on further construction of the overhead bridge on Main Gizri, beyond total Petrol Pump in Main Khayaban-e-Hafiz. 5. It appears that after the above mentioned interim order dated 28-4-2008 passed in C.P.No,D- 756 of 2008, the D.H.A. Had stopped further construction of the flyover road beyond Total Petrol Pump; later on, with the purpose of resolving the dispute the design of flyover was amended, by way of ending the flyover at Total Petrol Pump. However, the proposed place of termination of flyover at Total Petrol Pump caused grievance to the petitioners in C.P. No,D-2168 of 2008.
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6. Consequently, the petitioners Syed Azharul Hassan Qadri and others filed C.P.No,D-2168 of 2008, stating therein that the petitioners were old residents of Gizri area, and they were engaged in various business, so also their children were getting education in various schools in the same area. The petitioners had been initially informed that the flyover project was to be constructed from Sub- marine Chowrangi upto C-Street, Phase-V, D.H.A, Main Gizri Road, Karachi. However, later the construction work of flyover bridge was stopped at Total Petrol Station in front of the schools, as well as the residences and business places of the petitioners. On enquiry, the petitioners were informed that the original scheme of the flyover in question had been changed as the residents of Khayaban-e-Hafiz (Main Gizri Road), being in active collusion and connivance with the D.H.A. And other respondents, wanted to get their residential properties converted into commercial, for which they had sought approval from the respondent D.H.A., as a result of which the flyover would now end at Total petrol Station, Main Gizri Road, opposite to the schools of the petitioners' children and Mubarak Mosque, which had put into jeopardy the lives of the petitioners and their children. Despite various representations made to the respondents, besides personal meetings, no heed was paid by the respondents. It was stated by the said petitioners that the actions of respondents were discriminatory in nature, in order to favour some persons who were close to them; while changing the whole scheme of flyover, the area residents were not consulted nor any suggestions were invited from them, which was in derogation to their fundamental rights, as protected under the Constitution. The following prayer was made by the petitioners in C.P. No,D-2168 of 2008:-- "It is therefore prayed that this Honourable Court may be pleased to declare that the actions of the respondents ending the over head flyover on Main Gizri Road at Total Petrol Station are illegal, ultra virus, un-constitutional, void-ab-initio, and not warranted by law and in utter disregard and in violation of the constitutional rights granted to the petitioners and other residents of the area arid that the acts of the respondents tantamount to pure illegality, transgressing the limits of law, cost of the petition be also awarded to the petitioners." 7, The Defence Housing Authority, being respondent No,5 in C.P.No,D-756 of 2008 and respondent No,2 in C.P.No,D-2168 of 2008, filed their counter-affidavits, stating therein that the D.H.A., at the first instance, had planned to establish a flyover to allow smooth flow of traffic from. Submarine Chowk to Khayaban-e-Hafiz without any obstruction. The same proposal was made in view of extreme congestion at the Gizri Commercial Area. The flyover bridge was being constructed to ease the said congestion, so that the people who wanted to shop, could use the road at grade, whereas the fast moving traffic could use the said bridge. The D.H.A. Had decided to spend huge amount of money for its residents and shopkeepers, who would be equally facilitated with the bridge, as sufficient space would be created at grade for parking also. Prior to implementing the project, which might have had potential impact on the environment, D.H.A. Appointed NESPAK to carry out an Initial Environmental Examination (IEE) as a first stage to identify the pre-feasibility for Environmental Impact Assessm ent (EIA) viz. Second stage. The IEE for the proposed flyover was carried out in accordance with relevant requirement. The objectives of Study were to establish baseline environmental conditions, identifying anticipated potential impact and proposed mitigation measures to be adopted during construction and operation of the project. The study concluded that during construction of infrastructure, the dust and noise levels within the project site would need to be controlled by providing proper mitigation measures. No significant negative impact was foreseen on flora and fauna in the project site. Due to construction of flyover the economic activities would be enhanced. After the assessment of proposed project, it was concluded that the same would not result in any significant negative impact on the community or the environment. It was ensured that the project would comply with all the regulatory requirements, guidelines, safety standards, and that the recommended environmental mitigation measures would be followed. After evaluation of IEE, no significant negative environmental impact
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was foreseen due to the construction of flyover, hence it was concluded that Environmental Impact Assessm ent (EIA) Study (second stage) was not required. The National Engineering Services Pakistan (Pvt.) Limited (NESPAK) was appointed as the Design consultant for the construction of flyover starting from Submarin Chowk parallel to Ch. Khaliq-uz-Zaman Road. NESPAK submitted IEE to D.H.A., in December, 2006. It was further stated that the flyover was a project to facilitate the public and to provide safety to general public. But the petitioners had started objecting to construction of flyover with the sole object to pressurize the D.H.A. For commercialization of their residential plots, as in such an eventuality the value of their respective plots would be multiplied. The petition was filed with mala fide intention and ulterior motives on baseless grounds. However, since the petitioners had succeeded in getting ad-interim injunction from this Court, thereby restraining the respondents from carrying on further construction of the said flyover bridge beyond Total Petrol Pump, as such the construction work was stopped beyond Total Petrol Pump towards Saudi Consulate. Later on, meetings between petitioners and D.H.A. Officers were held, and on the demand of petitioners, the design of flyover was amended, by way of ending it at Total Petrol Pump i,e, before the houses of the petitioners C.P.No,D-756 of 2008. 8. Respondent National Engineering Services Pakistan (Private) Limited (NESPAK) filed their reply to the petition in C.P.No,D-756 of 2008, stating that the said respondent was a company providing engineering and allied consultancy services, but it was not a construction company as alleged by petitioners. It was stated that the NESPAK had carried out the IEE in accordance with the provisions of the Pakistan Environmental Protection Act, 1997. The flyover project did not fall in any category identified in either Schedule I or in Schedule II of the Regulations (Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000. As stated, IEE Study was carried out and such report was submitted by NESPAK. However, neither an IEE nor an EIA was required in respect of the project that consisted of the construction of a flyover on an existing road. The IEE conducted by NESPAK precisely followed the same guidelines, standards and requirements as set out in the Act for conduct of such examination. Subsequently, in view of the interim order passed by this Court, the Defence Housing Authority had instructed the respondent NESPAK to revise the design of the flyover to make a provision that it would end near Total Petrol Station situated on Khayaban-e- Hafiz. 9. The respondent City District Government Karachi had filed a statement, to state that the project of flyover on Main Gizri Road, the subject matter of present petitions, did not belong to CDGK. 10. The counter-affidavit on behalf of respondent Karachi Building Control Authority was also filed, wherein it was stated that the proposed flyover was a public project, which was being constructed to facilitate the public traffic and provide safety to the general public. However, the project was being constructed in the thickly populated and congested traffic area of Gizri, which was situated within the limits of Clifton Cantonment Board, Karachi, and that the KBCA had no jurisdiction over the area situated in the cantonments of the city. 11. Learned counsel for petitioners in both the petitions submitted that the proposed flyover was being constructed in violation of the express provisions of the Environmental Protection Act, 1997, and the Karachi Building and Town Planning Regulations, 2002. The project was manifestly hazardous and dangerous to public lives and properties, and was violative of the Articles 4 and 5 of the Constitution of Pakistan. The project was further in contravention of Articles 9 and 14 of the Constitution, which provide protection to every citizen from a polluted, congested and undignified environment. The said project also sought to discriminate against the petitioners, who resided in the residential/non-commercial area of Gizri, thereby causing gross devaluation of their properties, without any commensurate compensation, thus causing violation of Article 25 of the Constitution. Moreover, the construction of an overhead bridge over a residential area would infringe the easement rights of the petitioners. The entire process of planning and commencement of
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construction was based on mala fides, and the same had been deliberately carried out in secrecy without inviting any objections from the public. 12. Learned counsel for petitioners further contended that the construction work of flyover had been commenced, without abiding by the mandatory provisions of law, especially sections 12 and 19 of the Pakistan Environmental Protection Act, 1997, (PEPA). It was clearly provided by section 12 of the Act, that where the project was likely to cause an adverse environmental effect, then EIA was to be filed by the proponent of a project with Government Agency and approval from such Government Agency was to be obtained, prior to operation in question. Since the proposed flyover bridge was bound to have adverse environmental effects, the EIA had to be necessarily submitted; but the D.H.A. Had simply submitted the IEE, and then did not proceed ahead to file an EIA, although the same was required by law. Moreover, every review of the EIA was to be carried out with public participation, which was lacking in present case. The D.H.A., by way of violating the provisions of law, had committed the offences and were also liable to action to be taken against them as envisaged under sections 17 and 19 of the Act. Learned counsel for petitioners stressed the need for stopping the construction work of the flyover in question, and that the same could only be undertaken by D.H.A, after fulfilling the requirements of section 12 of PEPA. 13. Learned counsel for D.H.A and NESPAK seriously contested the case, while rebutting the above contentions advanced on behalf of petitioners. Learned counsel submitted that the requirements of section 12 of PEPA were complied with, while commencing the construction work of flyover. The present case was not covered either by schedule I or schedule II of the Regulations, as such there was no legal binding to file the IEE or EIA with the Federal Agency, and obtain their approval, prior to commencement of construction work. Nevertheless, the Initial Environmental Examination (IEE) Study was duly carried out through NESPAK, and such IEE report was submitted in December, 2006. Subsequently, another IEE Study was prepared by Messrs Global Environmental Management Services (Pvt.) Limited, and filed with the Environmental Protection Agency, Government of Sindh, Karachi, in May, 2008. Both the IEE reports had stated that the main objectives of the said IEE reports were to establish the baseline environmental conditions and identify the potential impacts along with the formulation of suitable mitigation measures for an environment friendly for execution and operation of the project. The IEE had concluded that all impacts were insignificant in quantitative and qualitative terms and were of short term duration. All the conditions in the IEE were incorporated in the project design. On completion the project would have positive environmental< impacts on the area. 14. It was further contended by learned counsel for D.H.A. That the flyover project was of utmost importance for the welfare of public at large, and the same project would ease the traffic congestion on the Main Gizri Road, and would ensure smooth traffic as well as better shopping facilities in the area. Huge expenses were incurred on the same project, and the same could not be stopped according to whims of some motivated persons. 15. Learned counsel appearing for remaining respondents submitted that the project was basically initiated by the Defence Housing Authority, as such they did not have anything more to supplement the above arguments. 16. We carefully heard the learned counsel for respective parties, and also perused the material available on record. 17. It may be pertinent to refer to the provision of section 12 of the Act No,XXXIV of 1997 the Pakistan Environmental Protection Act, 1997, which is reproduced as under:-- "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 Government Agency designated by Federal Environmental Protection Agency or Provincial Environmental Protection Agencies, as the case may be, or, where the project is likely to cause an adverse
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environmental effects an environmental impact assessment, and has obtained from the Government Agency approval in respect thereof. (2) The Government Agency shall subject to standards fixed by the Federal Environmental Protection Agency-- (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 trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director General of the Federal Agency is of the opinion that the request for confidentiality is not well- founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or (ii) international relations, national security or maintenance of law and order, except with the consent of the Federal Government; or (iii) matters covered by legal professional privilege. (4) The Government 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 appropriate 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 Government Agency shall maintain separate registers for initial environmental examination and environmental impact assessment 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)". 18. The terms 'environment', 'environmental impact assessment', 'initial environmental examination' and 'project', have been defined in section 2(x), (xi), (xxiv) and (xxxv) of the Act, as herein under:-- "(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; (1) 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); (ix) "environmental impact assessm ent" means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of
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preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed; (xxiv) "initial environmental examination" 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; (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 of 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 (I) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport system, factories or other installations." 19. It is clear from the bare reading of section 12(1) of PEPA, 1997 that where the project is likely to cause an adverse environmental effect, then the EIA has to be submitted by the proponent of a project and approval in respect thereof has to be obtained from the Government Agency, prior to the commencement of construction/operation of such project. The relevant provisions providing guidelines to determine as to which projects would require an IEE and EIA,…
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