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Petitioner: PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Environmental Protection and 6 others
Court Name: Sindh High Court Judge(s): Munib Akhtar Title:PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY vs FEDERATION OF
PAKISTAN through Secretary, Ministry of Environmental Protection and 6 others Case No.: Suit No.538 of 2014 Date of Judgment:2014-04-29 Reported As: 2014 CLD 1279, PLD 2014 Sindh 511 Result: Order accordingly Judgment ORDER ' MUNIB AKHTAR, J.---This suit raises issues in relation to the Pakistan Environmental Protection Act, 1997 ("1997 Act") read with certain regulations framed thereunder, being the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessm ent Regulations, 2000 ("2000 Regulations"). The issues arise in the context of a project currently under construction, known as the "Grade Separated Traffic Improvement Plan from Park Tower Intersection to A.T. Naqvi Foundation" ("Project"). The proponent of the project is the defendant No.5 ("KMC"). The defendant No.6, the Sindh Environmental Protection Agency ("Agency") has accorded its approval to an "initial environmental examination" (IEE) that was submitted by KMC for the Project. At the heart of the dispute is the question whether the Project requires an IEE (as contended by KMC, the Agency and the defendant No. 7) or an "environmental impact assessm ent" (EIA), as contended by the plaintiff and the defendant No. 2. On 2-4-2014, the plaintiff sought ad interim orders by its C.M.A. 4314 of 2014. On that application, an interim order was made directing that construction of the Project be stopped. KMC has filed C.M.A. 4500/2014 seeking recall of the aforesaid order. These are the two applications that fall for determination. 2. The plaintiff is a statutory authority established by the Pakistan Defence Officers Housing Authority. Order, 1980 ("1980 Order"), commonly (and herein after) referred to as "DHA". The 1980 Order empowers DHA to undertake various development schemes, projects and works, and section 12 deems all such schemes, etc. To be works for public purposes. As is well known, DHA has a vast
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area under its administration, divided into various "phases". Learned counsel for DHA referred to the approval accorded by the Agency to the IEE submitted by KMC for the Project. Learned counsel submitted that the IEE was filed on 11-3-2014 and approved on 18-3-2014. Learned counsel referred to section 12 of the 1997 Act and submitted that, as made clear by subsection (6), its provisions had to be read with the 2000 Regulations. The latter listed, in Schedule I, those projects for which an IEE was required, and in Schedule II those for which an EIA was necessary. Learned counsel submitted that the Project came within paragraph D:2 of Schedule II and hence an EIA was necessary. This reads as follows: "Federal or Provincial highways or major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cost of Rs.50 million and above." ' Learned counsel submitted that the total cost of the Project was around Rs.1.8 Billion and thus well over the threshold set by paragraph D:2. Learned counsel relied strongly on a Division Bench judgment of this Court reported as Salma lqbal Chundrigar and others v. Federation of Pakistan and others 2009 CLD 682 (herein after referred to as the "Defence Flyover case"). In that case, DHA was the respondent-proponent of a project to construct a flyover. DHA had obtained an IEE for its project and the petitioners challenged its construction on the ground, inter alia, that an EIA was required. Learned counsel submitted that the learned Division Bench held that an EIA was required. Learned counsel contended that the present Project comprised of a network comprising a flyover and underpasses and was, in effect, a much more sophisticated scheme for traffic flow and management. It was submitted that if a 'mere' flyover required an EIA, there could be no doubt that the Project also required such approval. Therefore, the IEE approved in the present case was contrary to law and continuance of the Project in terms thereof a flagrant breach of the 1997 Act. A gross illegality was being committed and the construction ought to be stopped forthwith. This submission constituted the core of the plaintiff's case. 3. Developing the core submission, learned counsel submitted that the Project was at an initial stage of construction. As noted above, the IEE was approved on 18-3-2014. It was submitted that the plaint was presented on 2-4-2014. Thus the Suit was instituted at the very inception of the Project. Learned counsel submitted that although in the Defence Flyover case the learned Division Bench allowed the construction to continue notwithstanding its conclusion that an EIA had been necessary, the factor that weighed with the Court was that the construction was at an advanced stage. That crucial factor was absent in the present case. Learned counsel submitted that section 12 of the 1997 Act required that the necessary permission (here, the EIA) be obtained before any construction was commenced. This was a mandatory requirement. Referring to Regulation 10 of the 2000 Regulations, learned counsel submitted that it provided for an elaborate procedure for public participation (i.e., a public hearing) in respect of those projects that required an EIA. Had the law been properly followed and a public hearing held, DHA would have been able to participate in the same and provide its input to the Agency, which would then have been best able to make a lawful determination as to whether the EIA was to be approved and if so, what ought to be the appropriate conditions. Since the Agency proceeded instead to process and approve the IEE, DHA was denied the right to participate in the decision making process as mandated by law. Learned counsel submitted that DHA was a vital stakeholder in the determination of whether the Project was compliant with the environmental law. It was submitted that the Project would have a serious impact on the areas administered by DHA. In particular, the flow of traffic resulting from the Project would impose a huge burden on the 26th Street (in Phase V). Learned counsel submitted that this was a 60 feet wide road, which had no capacity for expansion or enlargement. The street already serviced a huge amount of traffic and was essentially being used at maximum load, which would increase manifold as a result of the Project. Other roads within the DHA areas would also be affected and could remain closed or become inaccessible on account of the access and exit
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points for the Project. Had the Agency followed the applicable procedure (i.e., in relation to the EIA) DHA would have been able to present its case properly, enabling the Agency to make a lawful determination. Thus, a patent illegality to the manifest detriment of DHA had been committed. Learned counsel submitted that the plaintiff had standing to institute the suit because the areas being administered by it would be seriously and adversely affected. The DHA' had a right to be heard under the 1997 Act read with the 2000 Regulations, which had been denied and this had led to the institution of the Suit. 4. Continuing with his submissions, learned counsel submitted that although the Project was being presented as being in the public interest, the public would in fact be adversely affected and worse off as a result thereof. Traffic flows would be choked rather than being eased. Learned counsel contended that in fact the Project was being designed to facilitate access to a building project in which the defendant No. 7 was involved and which was also was under construction. This was known as the Icon Tower project. It was a private, commercial venture of the defendant No .7 . 5. Without prejudice to the foregoing submissions, learned counsel submitted that the IEE was also fatally flawed. Reference was made to the haste in which it was approved, in only one week. Learned counsel referred to Regulation 9, which permitted 10 days for the preliminary scrutiny of the IEE or the EIA. Learned counsel submitted that it was inconceivable that a project of such complexity could be scrutinized and approved in such a short period. Reliance was placed on certain other provisions of the 2000 Regulations. Reference was also made to the many conditions laid down in the IEE and it was contended that many of those conditions had not been or could not be fulfilled. Reliance was placed, in particular, on conditions (ii), (iii), (vi) and (xii). 6. Learned counsel submitted that the DHA had made out a clear case for interim injunctive relief. All the ingredients for such relief were in its favour and it was prayed accordingly. Learned counsel also relied on two other Division Bench decisions of this Court, being Salim Godil and others v. Province of Sindh and others 2014 CLD 222 ("Salim Godil") and in C.P. D-3851/2012 dated 18-7-2013 (titled Standard Chartered Bank v. KMC and others, unreported, available on the website of the High Court; herein after referred to as "Standard Chartered"). I may note that I was a member of the Bench that decided the latter case. Learned counsel for the defendant No. 2, the Clifton Cantonment Board, supported DHA's case and adopted the submissions made by learned counsel for the latter. 7. Learned counsel for defendant No. 7 ("Bahria Town") opposed the grant of any interim relief. Learned counsel submitted that the Project required only an IEE and not an EIA. Reference was made to section 2(xxiv) (the definition of IEE) and section 12. Relying on subsection (2) learned counsel submitted that in respect of each project, initially an IEE had to be submitted and it was only if the Agency, after due scrutiny and deliberation, concluded that an EIA was required that the latter exercise had to be undertaken. In the present case, the Agency had fully satisfied itself with regard to the Project on the basis of the IEE and had approved the same. Learned counsel submitted that even otherwise, only an IEE was required because the Project came within the scope of paragraph 1:3 of Schedule I to the 2000 Regulations. This provided as follows: "Urban development projects" ' Thus, it was submitted that the nature of the Project was that it related to urban development and not construction of a major road as contended by DHA. However, even if did come within the scope of paragraph D:2, of Schedule II, the Project was nothing but "reconstruction". As regards the Icon Tower project, learned counsel submitted that it was not the project that was in issue in the present case. However, that project had also been accorded approval by the Agency in respect of the 1997 Act. It was submitted that the Project would help ease and regulate the traffic flows generated once that project became operational. It was submitted that DHA would not be adversely affected at all. Learned counsel also emphasized that Bahria Town was not involved in the construction of
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the Project, which was being carried out by builders of high repute. Rather, Bahria Town was providing the financing for the Project, and this was being done in the public interest. Learned counsel also relied on the Defence Flyover case to submit' that there construction had been allowed to continue in the larger public interest and submitted that exactly those circumstances existed in the present case. It was prayed that the plaintiff's application be dismissed. 8. Learned counsel for KMC also strongly opposed the grant of any interim relief. Both Mr. Farooq H. Naek and Mr. Murtaza Wahab made submissions on behalf of KMC. Their submissions were obviously complementary and therefore, without intending any disrespect, I will note them together. Learned counsel submitted that the perception sought to be created that the Project was being undertaken to facilitate the Icon Tower project was totally erroneous. The Project would serve a number of other high rise, large capacity buildings in the area. It would smooth traffic flows and reduce or avoid congestion and the attendant environmental problems that were thereby created. Learned counsel submitted that in fact these issues had been of concern to KMC, which had considered a number of options in this regard. After careful scrutiny, it was decided to go ahead with the Project for which the necessary approval under the 1997 Act had been obtained. The project was, in the circumstances, the only viable option. It was submitted that the only realistic option available spatially was "verticality", i.e., constructing a project of a flyover, underpasses and interchanges. Spreading the project horizontally was simply not possible. It was emphasized that the Project was in the public interest and had been conceived and was being implemented in that spirit. The public convenience was the dominant object and it was submitted that that ought to prevail. The city at large would also benefit from the Project. Work was progressing rapidly and on schedule and the entire Project was to be completed within four months or thereabouts. It ought not therefore to be interfered with. 9. Learned counsel also strongly contested the standing of DHA to bring the present proceedings. It was submitted that both KMC and DHA had their own areas of jurisdiction and it was not legally permissible for one authority to interfere with work being done by the other in its own jurisdiction. Reliance was placed on sections 42 and 56 of the Specific Relief Act, 1877. Learned counsel submitted that the present proceedings were in the nature of a declaratory suit, but did not come within the scope and ambit of section 42 and hence were not maintainable. Reliance was also placed on clauses (d) and (k) of section 56 to contend that no permanent, and hence no interim, injunction could be granted in the facts and circumstances of the present case. Referring to Order XXXIX, C.P.C., learned counsel submitted that the case sought to be made out by DHA did not come within the scope of either Rule 1 or 2 thereof and on this basis also no relief could be granted. It was submitted that if at all, it was only the residents in the DHA areas who could bring suit and none of them had done so. Even otherwise, the grievance aired by DHA did not come within the meaning of section 2(i) of the 1997 Act, which defined "adverse environmental impact". It was also contended that if at all an EIA was required, that was something that the Agency ought to have pointed out or insisted upon. However, it had not done so and KMC could not be penalized for the Agency's negligence. Learned counsel also contended that paragraph D-2 of Schedule.II of the 2000 Regulations was inconsistent with the parent statute, the 1997 Act. This was so because it imposed an arbitrary limit of Rs.50 million. Projects costing less than this limit only required an IEE, and those above the limit warranted an EIA. It was submitted that this was contrary to section 12 of the 1997 Act and hence unenforceable. Only an IEE was required and that had been obtained. In support of their submissions learned counsel relied on In the matter of cutting of trees canal widening project, Lahore 2011 SCMR 1743, Matloob Ali Khan v. Additional District Judge East, Karachi and another 1988 SCMR 747, the Defence Flyover case, SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Kar. 293 and Sultan v. Province of Sindh 2004 CLC 392.
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10. Learned AAG also opposed the grant of any interim relief. Referring to the plaintiff's application, it was pointed out that it sought relief only against the defendant No. 7 and hence even if granted, such relief would be so confined, and not be enforceable against KMC, the proponent of the Project. Learned AAG also relied on section 42 of the Specific Relief Act to contend that the Suit did not come within the scope or ambit thereof. Relying on section 56(d), learned AAG submitted that the grant of interim relief would interfere with "public duties" and hence was prohibited by reason of this clause. It was emphasized that in constructing the Project, the KMC was lawfully acting within the scope of its powers and duties and in the public interest. No restrictions could or ought to be imposed on it in this regard. Learned AAG relied on Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139 and Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92 in support of his submissions. 11. Learned counsel for DHA exercised his right of reply. It was submitted that the only grievance aired by DHA was that the proper procedure mandated by law had not been followed and the permission and approval that ought to have been granted (i.e., for an EIA) had not been sought nor granted. DHA was directly and adversely affected as a result thereof. Relying on the Defence Flyover case, learned counsel submitted that this decision had clarified and settled the law to the effect that a flyover required an EIA. Thus, even if there were some doubts or confusion at the time of the decision (so that the DHA had applied for an IEE), that situation did not prevail at present. The Agency and KMC knew exactly what the law was and in light of what was decided by the learned Division Bench, the nature of the Project was such that an EIA was required. Construction without such approval was unlawful. Furthermore, ignorance of the law was no excuse. It was emphasized that the matter came squarely within the ambit of the 1997 Act and the necessary and proper approval and sanction had to be obtained, which was manifestly not the case. Learned counsel relied on Nestle Milkpak Ltd. v. Sindh Institute of Urology and others PLD 2007 Kar. 11. 12. I have heard learned counsel as above, examined the record and considered the case-law relied upon. Before proceeding further, I may note that against the ad interim order made on 2-4- 2014, an appeal was preferred by Bahria Town against DHA, being HCA 94/2014. In that appeal a learned Division Bench was pleased, by order dated 11-4-2014, to suspend the order of 2-4-2014. The learned Division Bench observed as follows: "However, it is clarified that the learned Single Judge is at liberty to pass appropriate order on the application under Order XXXIX Rules 1 and 2 C.P.C. Pending before him strictly in accordance with law without being influenced from any of the observations made herein above, which are of tentative nature". 13. I begin by setting out the relevant statutory provisions of the 1997 Act and the 2000 Regulations. These, as presently material, are as follows: "2. Definitions.-In this Act, 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; (xi) "environmental impact assessme nt" [HA] means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts; comparison of alternatives, evaluation of 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; (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-
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(a) a division, department, attached department, bureau, section, commission, board, office or unit of the Federal Government or a Provincial Government; (b) a developmental or a local authority, company or corporation established or controlled by the Federal Government or Provincial Government; and (c) a Provincial Environmental Protection Agency; (d) any other body defined and listed- in the Rules of Business of the Federal Government or a Provincial Government. (xxiv) "initial environmental examination" [IEE] 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 (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 resubmitted 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
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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 2000 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. 9. Preliminary scrutiny.--(1) Within 10 working days of filing of the IEE or EIA, the Federal Agency shall - (a) confirm that the IEE or EIA is complete for purposes of initiation of the review process; or (b) require the proponent to submit such additional information as may be specified; or (c) return the IEE or EIA to the proponent for revision, clearly listing the points requiring further study and discussion. (2) Nothing in sub-regulation (1) shall prohibit the Federal Agency from requiring the proponent to submit additional information at any stage during the review process. 10. Public participation. (1) In the case of an EIA, the Federal Agency shall, simultaneously with issue of confirmation of completeness under clause (a) of sub-regulation (1) of Regulation 9, cause to be published in any English or Urdu national newspaper and in a local newspaper of general circulation in…
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