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Official Citation: 2025 CLC 650
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-03-06
Parties: Shah Jahan & another vs Province of Punjab & others
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-03-06, officially reported as 2025 CLC 650. In this matter between Shah Jahan & another and Province of Punjab & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025 CLC 650
Court Name: Lahore High Court Judge(s): Shahid Karim Title: Shah Jahan & another vs Province of Punjab & others Case No.: W.P.No.76524 of 2022 Date of Judgment:2023-03-06 Reported As: 2023 LHC 1127, 2025 CLC 650 Result: Petition Allowed
JUDGMENT
JUDGMENT Shahid Karim, J:- This litigation engages the questions of intergenerational and climate justice. The Govt. of the Punjab notified Gujrat as the 10th Division of the Punjab. The administrative purview of Gujrat Division encompasses four districts, that is, Gujrat, Mandi Bahauddin, Wazirabad and Hafizabad. It is the case of the Govt. of the Punjab that in order to cater to the operational and administrative requirements of the newly notified Division, a purpose-built Divisional Complex to host Divisional Headquarters in Gujrat is required including offices and residences of the Divisional Administration, police etc. as well as Divisional offices of other related administrative departments ("the Project"). For the purpose, the scheme titled Construction of Divisional Complex at Gujrat (Phase-I) was principally approved by PDWP in its meeting held on 30.09.2022 with a total cost of Rs.8.805 billion and accordingly the administrative approval was given by the Board of Revenue, Govt. of the Punjab on 18.10.2022 with IDAP as the executing agency of the project. The site situated at Mauza Machhiana and Samman Pindi was selected for the construction of the Project. State land earmarked for this purpose comprised of two forest areas measuring 594-Kanals 4-Marlas (Khasra No.2431 of Mouza Machhiana) and 107-Kanals 19-Marlas (Khasra No.2225 of Mouza Machhiana) respectively. These forest areas are property of Government of Punjab through irrigation department and is being maintained by the forest and wildlife department. 2. Through Notification under Section 4 of the Land Acquisition Act, 1894 ("the Act, 1894") dated 10.10.2022, issued by District Collector, Gujrat (impugned Notification) acquisition proceedings have been set in motion regarding private land measuring 184K-OM. This has been challenged in
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W.P.No.6063 of 2023 by the landowners. Both petitions are being decided by this common judgment. 3. Detailed replies were filed by the respondents. The Chief Secretary Punjab was required to file a report under his signatures which has been done and which alludes to the various aspects of the Project and finally concludes that the concerns of the petitioners are unrealistic as "drainage passage has been provided to cater to the disposal of rain water and forest regeneration activities will be carried out for environmental sustainability. Needless to say, the construction of Divisional Complex is not only imperative for service delivery improvement of the newly created offices at Divisional level but also to facilitate the general public in the Division." The report further states that "maximum effort will be made by the administrative department to protect the tree cover and trees will only be removed upon absolute necessity for the execution of the development work". With regard to the expansive tree cover/ forest on the area proposed to be taken over for the scheme, the Chief Secretary Punjab reported that "to ascertain the protection of tree cover and forest regeneration efforts in the area, the Committee constituted by the Forest Department would also prepare a replenishment plan for the project area. Forest Department has already finalized the replenishment cost of Rs.124 Million." Thus, in the opinion of the Chief Secretary Punjab, replenishment plan for the project area was sufficient compliance and would take care of the concerns raised by the petitioners regarding the forest cover on the entire land which is sought to be acquired for the purpose of project. This statement by the Chief Secretary Punjab is in tune with the one submitted by respondent No.5 which is the Secretary Department of Forest and Wildlife Punjab. Respondent No.5 while referring to the basic facts in respect of the project area and its current nature, stated that: "That the area along Upper Jhelum Canal at Machiana is the property of Punjab Irrigation Department but is maintained & planted by the Forest Department. Furthermore, (Eucalyptus, Kikar & Willow were planted in an area of 100 AV Miles/ 160 AV/KM (Pole crop) along Upper Jhelum Canal (UJC RD No.390-396) in 2009-10 under the Scheme afforestation on Blank Reaches along Canals in Gujrat Forest Division, Gujrat." 4. Thus, it is admitted on all hands and more particularly by the concerned administrative department and by its Secretary that the area is along Upper Jhelum Canal and has extensively been planted by the Forest Department. Different species of trees have been referred in the portion set out above in an area of 100 AV Miles/ 160 AV/KM along Upper Jhelum Canal (UJC) during the year 2009-10. These are now fully grown-up and mature trees. In the year 2022, the Assistant Commissioner/ Land Acquisition Collector, Gujrat vide letter dated 25.10.2022 requested the Divisional Forest Officer Gujrat to provide the demand notice / cost estimation of buildings, crops and trees as mentioned in the Notification under Section 4 of the Land Acquisition Act, 1894 to remit replenishment cost as well as compensation/ value involving pole crops/ plants hindering in acquisition proceedings and for the grant of NOC for the construction of Commissioner/ Divisional Complex Gujrat. In the same vein, the Secretary in the reply referred to the importance of protected forests and their role in environmental sustainability in the following words: "Protected Forests are important to maintain and enhance biodiversity as well as to conserve landscapes and provide recreation opportunities, these are either demarcated or un- demarcated, based on whether the limits of the forest have been specified by a formal notification. A protected forest is land notified under the provisions of the Forest Act, 1927. In protected forests, all activities are permitted unless they are expressly prohibited. A protected forest is land that is a reserved forest, and over which the government has proprietary rights, as declared by a government under section 29 of the Forest Act, 1927..." 5. In the final analysis it was concluded by the Secretary Department of Forest and Wildlife that there is no apprehension of serious implications on the flood mitigation for the area because as
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per approved plan of outfall channel of Machiana Siphon, there are 141 different types of hydraulic structures on UJC and Machiana Siphon. The purpose for which the Siphon is built was also given in paragraph 4 of the reply filed by respondent No.5. 6. In furtherance of the above, the Addl. Chief Secretary Irrigation Department appeared before this Court and submitted a report dated 10.02.2023 which is based on the report regarding transfer of land required for the construction of the project along Upper Jhelum Canal and prepared by the Chief Engineer Irrigation Pothohar Zone Rawalpindi/Islamabad. It has been mentioned in the report that an NOC was issued by the Department which was conditional upon exclusion of the area comprising 292 Kanal for the purpose of flood channel. The report goes on to state that: "3. Accordingly, a meeting was convened with Chief Potohar Zone along with his field staff relevant to the concerned area wherein, findings of the Report submitted by the commission as referred at para 1 were deliberated. Chief Potohar Zone, while contending that NOC issued by the Department was conditional upon exclusion of the area comprising of 292-K for the purpose of flood channel, shared his report contents of which are reproduced as under (Annex F): The land in question is situated at right bank of Upper Jhelm Canal (UJC) at RD 393+250 (Machiana Siphon). Upper Jhelum Canal off takes from Mangla Dam with design discharge of 8975 Cusec at its head. It was constructed during 1904 to 1915 to provide irrigation supplies to AJK, Districts Gujrat, Mandi Bahauddin and Sargodha. There are 141 different types of hydraulic structures on UJC and Machiana Siphon at RD. 393+250 UJC, is one of them. It was constructed to drain off rain water of Pubbi hills/adjoining catchment area and spill over water of Nullah Bhimber with discharge capacity of approximately 8500 Cusec. It has 6 number of barrels and each barrel having width of 12 feet. Given the fact that that the entire structure was built over a century ago, surrounding areas came under cultivation and urbanized in the past and to control spill water of Nullah Bhimber, flood protection bunds were constructed by this Department on both sides of Nullah, resulting in reduced water supply from catchment area. Visit of the existing structure and the surrounding area showed that due to continuous low flows barrels are silted up and choked. Furthermore, outfall channel of Machiana syphon which is passing through land proposed for the construction of Divisional Complex is heavily silted up and its bed level is at Natural Surface Level (N.S.L). Furthermore, Forest Department has carried out plantation during 2009-2010 under scheme afforestation on banks reaches alongwith canal by Gujrat Forest Division Gujrat. The aforesaid plantation was done on the land in question. It is pertinent to mention that, as per approved design of outfall channel of Machiana syphon, initial width of outfall channel is 150 ft and tail 350 ft in width with 20 ft width of both banks. Area under outfall channel is 292-K out of total area of 704-K 03-M. The remaining area comprising of 412-K 03-M in Khasra No.2225 and 2431 was, therefore, considered surplus as per the due diligence conducted by the field staff keeping in view design parameters and history of past floods in the last decade, while issuing the conditional NOC. For a more accurate assessment, a detailed study may be conducted if deemed necessary." 7. The above report gives a much more explicit depiction of the land which is proposed to be acquired for setting up the Project. As explicated above, the report alludes to the fact that there are 141 different types of hydraulic structures at UJC (Upper Jhelum Canal) and Machiana Siphon is one of them. It was constructed to drain off rain water of Pubbi hills and adjoining catchment area and spill over water of Nullah Bhimber with discharge capacity of approximately 8500 Cusec. Further the outfall channel of Machiana Siphon which is passing through the land proposed for the construction of Divisional Complex is heavily silted up and its bed level is at Natural Surface Level (NSL). It also refers to the plantation under the scheme afforestation on banks reaches along canal by Gujrat Forest Division Gujrat. The total land to be acquired for the purpose and which belongs to Irrigation and Forest Department comprises an area of 704 Kanal and 3 Marlas. More importantly,
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the report clearly stated that a more accurate assessment was required and for which a detailed study may be conducted. 8. We now come to the report filed by the Environmental Protection Agency (EPA). It makes it mandatory for any project to be commenced and constructed by submission of IEE or EIA for obtaining environmental approval prior to its commencement. This is the requirement of section 12 of the Punjab Environmental Protection Act, 1997 which obliges the proponent of project to do so. This has not been done by the proponent in the instant case and this fact is also admitted by all the respondents in this case and more particularly in the report submitted by the Chief Secretary Punjab who has stated that "the project will be executed on the basis of recommendations discerned in the pertinent studies to minimize the environmental, geo-technical and drainage / seepage / flood impacts." Further that "execution of the project will be commenced after finalization of detailed design of the Complex in the light of the environmental and other relevant assessment studies of the site." The report also attaches a letter dated 20.12.2022 written to the Govt. of the Punjab, S&GAD Lahore by the Environmental Protection Department, Govt. of the Punjab which categorically states that the scheme falls in Schedule-I of the Review of IEE/EIA Regulations 2000 and hence the project proponent is supposed to submit IEE report to obtain environmental approval as required under Section 12 of the Act, 1997. Thus, these petitions could receive a short shrift and be allowed on the simple and short question that the approval under Section 12 of the Act, 1997 has not been given by EPA to the Project. The proponent has not submitted IEE/ EIA which is a sine qua non and no project can be initiated or commenced for construction unless a prior approval has been granted by EPA under the law. The mandate of section 12 is clear and cannot be undermined by any proponent of a project. It states that neither the project shall be constructed nor commence operation unless an EIA has been prepared and submitted to the provincial agency where the project is likely to cause an adverse environmental effect, an environmental impact assessm ent and an approval has to be obtained from the provincial agency. The term operation used in section 12 is wide enough to include the acquisition process for, any approval by the provincial agency must be placed before the Collector in order to enable the Collector to form an opinion that a land in a locality is needed for a public purpose. It may be that the approval is withheld by the provincial agency underlying a certain project or it may impose conditions which should be fulfilled prior to commencing, construction and operation of the project. Unless mitigatory and compensatory measures in respect of a certain project have been taken by the proponent, there is no cause for acquisition to be made and for the persons to be deprived of their proprietary rights. 9. The Notifications as well as NOCs issued for the project are liable to be struck down and declared ultra vires on account of failure to submit IEE by the proponent of the project to the provincial agency. 10. Notwithstanding the above, it is imperative to proceed to discuss the strands of issues of far reaching impact on the environmental aspect which the proposed project is likely to generate in view of the suggestions by proponent of the project to acquire land which includes precious land of standing crops and grown up trees. In order to ascertain the true facts and to have a non-partisan and independent view on the ground, a Commission was constituted by this Court to visit the project area and to file a report. The Commission constituted the following eminent persons: 1. Dr. Masood Arshd, Senior Director, WWF. 2. Ali Hassan Habib, IGC (International Grown Centre)/ Managing Director Himareate. 3. Ms. Hina Hafeezullah Ishaq, Advocate. 4. Syed Kamal Ali Haider, Advocate. 11. The Commission filed its report on 27.1.2013 and in the section relating to summary, the following statement was set out:
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1.0 Summary The Lahore High Court Commission members visited the disputed site on 12 December 2022, met with the local government representatives and with the representatives of the petition applicants and affected villagers. This Commission concluded that the Machianna Siphon area of 702 Kanals is a critical flood mitigation facility that has prevented loss and damage to the Upper Jhelum Canal and 17 upstream villages, which therefore needs to remain intact and undisturbed. The existing tree plantation further enhances the protective flood mitigation function and therefore should remain intact without infringement or cutting. 12. The report thereafter stated that the area of 702 Kanal is under the legal ownership of Punjab Irrigation Department and contains Machiana Siphon designed for 8500 cusec for flash flood mitigation and protection for Upper Jhelum Canal and upstream urban areas. More importantly, the representative of the Punjab Irrigation Department clearly stated that the department does not agree to handing over the whole area of land for the construction of the Project since it includes critical flood mitigation area of 290 Kanal. The representative of the Punjab Environmental Protection Department reiterated that Initial Environment Examination (IEE) before design and construction of the project is essential which approval has not been obtained for the project. The officers representing the Punjab Forest Department made the following statement: 3.4Punjab Forest Department was represented by Divisional Forest Officer (DFO) and newly posted Conservator Forest (CF). Both the officers explained that it is not a protected forest, but this area is part of the floodplains. The plant species include 90% of Eucalyptus (Eucalyptus Camaldulensis) trees on 702 Kanals of land, whereas the other species include Shisham (Dalbergia sissoo) and Willow (Salix spp.) 13. According to the above statement, although the area is not a protected forest but is part of the floodplains. All 702 Kanal land has been planted with trees of different species mentioned above and which are grown up over the years and are mature trees. The Members of the Commission made visual observations regarding mature trees on 702 Kanal of land, ponds, wet lands, Marshy areas which were visible in the forest area and which is the true representation of a forest/ wetland ecosystem and helps mitigate flash floods. The entire population of the adjoining villages was against the proposed project. It has further been stated in the report that the surrounding area is a fertile land for multi- purpose cropping which ensures food security for the local population. Finally, the Commission made the following conclusions and recommendations: 6.0 Conclusion and Recommendations 6.1. The Commission strongly recommends that this site is not feasible for the construction of Gujrat Divisional Headquarters. 6.2. This 702 kanals of land is a critical infrastructure for mitigating the impacts of flash flood in the region. 6.3. District Administration, while planning for this project ignored the provision of the following Acts, Policies and Regulations: . Punjab Floodplain Regulation Act 2016. . Clause 6 Environmental Integrity of basin, Clause 20, 20.1 Water related hazards under the National Water Policy. .Punjab Forest Policy 2019 .Clauses 4.7, 5.4 and 6 "Disaster Preparedness, Urban Planning & Waste Management, Capacity building & Institutional strengthening" under the national climate change policy. . Punjab Forest Policy 2019 6.4. Considering the unpredictability of the climatic extreme events due to climate change, the precautionary measures must be followed to maintain this flood mitigation syphon.
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6.5. Gujrat Divisional Headquarters should be a green and smart building which can be a multistory within the Gujrat Urban Area. It should be model green and smart building following principles of climate resilience structures. 6.6. The Green Building Council of Pakistan should provide the technical assistance for this project. 6.7. Landuse figures of the District Gujrat, Tehsil Gujrat and Machianna Village are attached as figure 1, 2 and 3 respectively for assessing the meager forest cover of the city and its surroundings in addition to the land use of the area. 6.8. At the UN COP-27 Conference in November 2022, Pakistan led the discussion on loss and damage due to floods. In this context, it would create international embarrassment to the government of Pakistan if the largest provincial government itself compromises any existing flood mitigation facilities. 6.9. The commission further recommends that the irrigation Department provide the honourable Lahore High Court a list of all the flood management facilities and infrastructure in Gujrat District and Punjab and point out any encroachments of shortcomings in these considering the critical importance of flood management in the coming year due to Climate Change. The 2010 Lahore High Court Flood Tribunal report should be consulted for this purpose. 14. According to the recommendations of the Commission, the site was not feasible for the construction of Gujrat Divisional Headquarters and the area of 702 Kanal of land is a critical infrastructure for mitigating the impact of flash floods in the region. The Commission commented that the District Administration ignored the provisions of various statutes and laws as also policies and regulations formulated over the years to which a reference has been made in the conclusion drawn by the Commission. No objections were filed to the Commission s Report. 15. To reiterate, in the view of the Members of the Commission, the Project was not feasible to be constructed at the site which has been proposed by the proponent department of the Govt. of the Punjab. Critically the land on which the project site has been proposed comprises of 702 Kanal of precious agricultural and forest land and which ought to be protected under all circumstances. Unless the measure is absolutely necessary in the national interest which takes priority over all other interests no agricultural land and forest land can be acquired for the purpose of setting up of any infrastructure project. In this case, the respondents have not put forth any compelling reasons for acquisition of the land in question and have also not come up with a host of conditions which would justify the acquisition of the land in question. Clearly, the respondents would have alternate proposals for the setting up of Divisional Headquarter Complex on a land which does not require the acquisition of pristine agricultural and forest land. It would be an egregious act of insensibility to cut down mature trees on land consisting over 702 Kanal and which is also a critical flood mitigation facility that has been preserved to prevent loss and damage to Upper Jhelum Canal and 17 upstream villages and therefore needs to remain intact and untempered. 16. In a recent judgment rendered by this Court in W.P.No9429 of 2021 titled Public Interest Law Association of Pakistan v. Environmental Protection Agency Punjab through Director General and others, the various provisions of the Land Acquisition Act, 1894 have been read down in such a manner that no acquisition of agricultural and cultivable farmlands can be done on the basis that it offends Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. The relevant extracts of that judgment would shed further light on the proposition and are set out below: "139. Based upon the above report which has gone unrebutted, the food security situation and the issues confronting Pakistan paint a dismal picture as can be seen from the facts explicated above. Pakistan ranks 80 out of 113 countries on the global food security index and food safety score of 43.5 which is below average score of 60.4. This means simply that Pakistan has to take measures on an emergency basis to curtail the loss of agricultural and cultivated land in order to
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protect its food security paradigm. Aaminah Qadir, Advocate alludes to similar facts in the bundle submitted by her. Pakistan has a level of hunger that is categorized as serious with a score of 24.7 according to Global hunger Index. 44% of those under the age of 5 are stunted in Pakistan. In the case of Ahmad Pansota v. Federation of Pakistan (PLD 2020 Lah. 229) a learned Single Judge of this Court observed that food insecurity exists when people lack secure access to sufficient amounts of safe and nutrition food for normal growth. The Court noted that this is caused by unavailability of food, insufficient purchasing power etc. Reference has also been made to several international treaties (ratified by Pakistan) that guarantee that all citizens will be provided with a basic standard of living that includes food. The right to life under Article 9 has been invoked by the petitioners and supported by the amici curiae to contend that acquisition of agricultural and cultivated farmland cannot be permitted to be continued without statutory framework which would encompass the entire set of circumstances under which such farmland can be acquired and which should also provide for alternatives and other options. There is no doubt that such a statutory framework must underscore the need for preservation and sustenance of agricultural and cultivated farmland. Only under dire circumstances can a piece of land which is under cultivation be acquired and in case it has to be done the statutory framework must provide for a proportionate area of land to be allocated and which may be brought under cultivation so that the balance of food security should not be disturbed. Aaminah Qadir, Advocate cited two recent cases, one from the Lahore High Court and the other from the Sindh High Court which have taken note of these issues and have…
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