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Petitioner: Sheikh Asim Farooq VS Respondent: Federation of Pakistan etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Sheikh Asim Farooq vs Federation of Pakistan etc Case No.: Writ Petition No.192069 of 2018 Date of Judgment:2019-08-30 Reported As: 2019 LHC 3025, KLR 2020 Civil Cases 106, PLD 2019 Lahore 664 Result: N/A
Judgment JAWAD HASSAN, J. Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution '), the Petitioner has sought directions to the Respondents to, inter alia: (a) appraise as to how the National Clima te Change Policy , 2012, the National Forest Policy , 2015 and the Forest Policy Statement, 1999 have been implemented to increase the forest cover in Pakistan and Punjab; (b) implement the Forest Act, 1927 (the "Forest Act') and the Punjab Plantation and Maintenance of Trees Act, 1974 (the " Trees Act') by planting trees ; (c) provide reasons for drastic reduction in forest cover in Pakistan particularly in Punjab, (d) increase the forest cover to reach the minimum satisfactory standards of 20-25% necessary for a balanced economy; (e) present a time-line map for the said purposes, and (f) initiate appropriate proceedings against the delinquent officers who have failed to discharge their duties. 2. At the outset, M/s Saima A. Khawaja and Mehnaz Shiraz, Advocates filed an application for impleading Syeda Zahra Gilani, Ambreen Khurram Zafar and Zonaira Aziz Rathore. Aforementioned ladies are members of civil society and are running a pro bono publico organization under the name of "Go Green Lahore" (GGL). Mr. Mohammad Azhar Siddique, Advocate also filed an application for impleading Abdullah Malik in the array of the Petitioners in this petition; who is also member of civil society and is involved in various public interest issues, including restoration of forests in their original condition. Mr. Sheraz Zaka, Advocate also filed an application on behalf of Human Voice to become as the Petitioner in this petition. The learned counsel for the Petitioner had no objection on acceptance of these applications, and therefore, abovestated applications were allowed. 3. It may also be noted that learned counsel for the Petitioner requested to implead certain government departments including Planning and Development Department; Punjab Environmental Protection Department; Housing & Urban Development Department; Local Government and Community Development Department;
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Cooperative Department, Lahore Development Authority ("LDA") and Defense Housing Authority ("DHA") as the Respondents in this petition, and his request was allowed. Mr. Ahmad Rafay Alam, Advocate filed an application on behalf of activist namely Amer Azam Bakhat to become as the Respondent in this petition. The Petitioner , therefore, filed amended petition by including the names of these Respondents; and notices were issued to the newly added Respondents to file report and parawise comments. I. PETITIONERS' ARGUMENTS 4. The learned counsel for the Petitioner submits that the Petitioner is a practicing advocate and filing this constitutional petition seeking, inter alia, a writ of mandamus to the Respondents for the implementation of the law and the above mentioned policies, and for enforcement and protection of his fundamental rights guaranteed under Article 9 (right of life liberty), Article 14 (right of dignity), Article 26 (right of access to public places of entertainment) and Article 38(b) (provision of available leisure places) of the Constitution. He submits that Government should implement the Forest Act, the Trees Act, the National Climate Change Policy , 2012, the National Forest Policy , 2015, the Forest Policy Statement, 1999 , and the Punjab Forestry Sector (Forests, Watershed, Rangelands and Wildlife) Policy , 1999 because forest area in Pakistan is decreasing rapidly over a year with massive percentage and now as per report, is only 1.9%. He states that trees in forests and other natural resources are covered under the Doctrine of Public Trust and the Government ought to protect them for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. He adds that the government's inaction is clearly seen by not protecting the existing forests and trees with massive cutting and also their lack of commitment in planting trees despite of mandatory requirement of Section 3 of the Trees Act. The learned counsel for the Petitioners in their respective petitions also submitted their written arguments and reiterated the contents of the petitions. 5. The learned counsel for the Petitioners further submits that the concept of public trust doctrine in protecting the natural resources has fully been elabora ted in "SINDH INSTITUTE OF UROLOGY AND TRANSPLANT ATION Versus NESTLE MILKP AK LIMITED AND OTHERS "(2005 CLC Karachi 424), which was upheld by the learned Division Bench in "NESTLE MILKP AK LTD VERSUS SINDH INSTITUTE OF UROLOGY AND OTHERS" (PLD 2007 Karachi 11). Further contends that Hon'ble Supreme Court of Pakistan in "GENERAL SECRET ARY SALT MINERS LABOUR UNION (CBA) KHEWRA, JHELUM Versus THE DIRECT OR, INDUSTRIES & MINERAL DEVELOPMENT PUNJAB LAHORE "(1994 SCMR 2061 ) has held that the right to have unpollute d water is the right of every person wherever he lives. They further argued that it is the fundamental right of every citizen to live in clean atmosphere and relied upon the landmark judgment of Hon'ble Supreme Court of Pakistan reported as "MS. SHEHLA ZIA AND OTHERS Versus WAPDA "(PLD 1994 SC 693). They also relied upon Suo Moto Case No.13 of 2009 (PLD 2011 SC 619) wherein it has been held that "right to life implies the right to food, water , decent environment, education, medical care and shelter , thus fundamental right cannot be snatched away or waived off pursuant to any agreement" . They submit that Hon'ble Supreme Court took suo moto action in NEW MURREE PROJECT (2010 SCMR 361), because of grave environmental hazards by destroying 5,000 acres of forest and adversely affecting the annual rainfall in Islamabad, with the result that the supply of water to the nearby dams was depleted. In 2010, the Supreme Court decided the case with directions that need was to sensitize general public to fundamentals of sustainable development so as to achieve goal of healthy environment, not only for present population but also for future generations. As the project had been disbanded, therefore, there was no threat of environmental hazard in the area on account of the project, thus no further action was called for in the proceedings. 6. They further argued that the Respondents are not adhering to their own forest and climate change policies which is in violation of case law reported in "DEWAN SALMAN FIBRE LTD. Versus FEDERATION OF PAKISTAN AND OTHERS"(2015 PTD 2304 Islamabad), "NATIONAL BANK OF PAKISTAN Versus IFTIKHAR RASOOL ANJUM AND OTHERS" (2017 PLC(C.S.) 453 Lahore). It was held in "BAHADUR KHAN AND OTHERS Versus FEDERATION OF PAKISTAN THROUGH SECRETARY M/O FINANCE, ISLAMABAD AND OTHERS"(2017 SCMR 2066) that great importance is attached to government adhering to sovereign commitments made by it, whether in form of statutory orders or notifications issued by it or in the shape of policies announced by it. Commitment made on behalf of government should neither be lightly disregarded nor
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deliberately ignored. Orderly developmen t of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of duly constituted governmental authorities. They state that the Forestry , Wildlife and Fisheries Department (the "Department ") is duty bound to administer the Trees Act under the Punjab Rules of Business 2011 (the "Punjab Rules of Business "), Schedule 2, Item No.18 (vii). 7. The learned counsel for the Petitioners also submits that recently in the Cutting of Trees for Canal Widening Project Lahore (2011 SCMR 1743), the Hon'ble Supreme Court held that green belt around both sides of the canal is a public trust resource and cannot be converted into private or any other use other than public purpose. Thus widening of the road is a public purpose and a minimum area is being affected and the remaining green belt/public park is much larger because said public park has been recommended by the Mediation Committee to be declared as Heritage Park and recommendations of the Committee have been accepted by the Provincial Government in totality. 8. Lastly , it has also been submitted that Respondents have failed in performing their obligations outlined in laws and policies, in safely managing, conserving, sustaining, maintaining, protecting and growing forests and as a result the current state of affairs is now prevalent, where the forests in Pakist an and in Punjab are close to extinction. Further , for decades, there has been no improvement or enlargement of forest areas or plantation of trees in private areas, and that the Respondents have failed to regulate as to what type of trees are to be planted in a particular locality that would be environment friendly , provide maximum canopy and produce more oxygen. II. RESPONDENTS' ARGUMANTS 9. At the outset, notices were issued to the Respondents to file report and parawise comments by adverting to the assertions made by the Petitioners in the light of judgments of the superior Courts. The Departments were also directed to state what steps had been taken so far to implement the laws for plantation of the trees. A. Lahore Development Authority 10. Mr. Waqar A. Sheikh, Advocate/Legal Advisor of LDA appeared along with Ms. Amina Imran Khan, Director General, LDA and stated that LDA has taken some positive steps for plantation of trees under their jurisdiction. He further stated that LDA has already made Rules in year 2014, and they will file detailed reply to show their positive steps on the issue of urban forestry for massive plantation of trees under their jurisdiction. On preceding dates, he submitted that it is a matter of public importance and LDA will fully cooperate for the plantation of trees and implementation of all the relevant laws in this regard. B. Forestry , Wildlife and Fisheries Department 11. Capt.(R) Muhammad Asif, Secretary and Mr. Shahid Rashid Awan, Additional Secretary of the Department appeared and stated that in pursuance of the previous orders of this Court, positive steps have been taken by the Government of Pakistan and the Government of Punjab: (a) for enhancing the Budget of the Department from almost one billion to twenty eight billion; (b) regarding the Forest Policy, Punjab Forest Policy, Urban and Peri- Urban Forest Policy; and (c) tree plantation campaign and actual tree plantation. They further submitted that they will seek guidance from Annexure-C Page-71 of the Punjab Urban and Peri-Urban Forest Policy, and the Registrar Cooperative and D.G. LDA have also taken action against the Societies as per Urban Policy through CEO, Urban Unit. All the efforts have been acknowledged from time to time by this Court and reflected in the previous orders dated 31.01.2019, 11.02.2019, 19.02.2019, 27.02.2019 and lastly on 08.05.2019. 12. They were further directed to prepare draft of the Urban Tree Plantation Policy as per their mandate and functions laid down in Schedule-2 of the Punjab Rules of Business. They informed the Court that the Department has submitted PC-I titled "Green Pakistan Program, Revival of Wildlife Resources in Punjab for Green Pakistan Program along with budget of Rs.28.748 billion for eight years which has been approved by the Provincial Development Working Party (PDWP) and is under process to Ministry of Climate Change for approval from Central Development Working Party (CDWP). They further stated that they have prepare d revised Punjab Forest Policy , 2018. 13. Muhammad Tariq Naseem, Deputy Secretary (P) of the Department appeared and affirmed that PC-I has been approved by the Department with total cost of project Rs.28.748 billion for a period of eight years (2016-2024)
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according to which they will plant 477 million trees across the Punjab in forest as well as on private lands which will cover planting density, and the growth of trees will increase approximately by 6%. C. The Registrar Cooperative 14. The Registrar Cooperative appeared and stated that in pursuant to the orders of this Court, they, on their own, have planted trees in the Societies and will cooperate with the Urban Unit regarding the GIS Mapping and GS Survey . D. Environmental Protection Agency 15. Director General EPA also appeared and stated that in compliance of preceding orders of this Court, the department will examine the NOCs of the Factories mentioned in the report of Urban Unit and as per their NOC, will take action against those Factor ies which are not complying with the conditions of planting trees. E. Parks and Horticulture Authority 16. Dr. Faisal Zahoor, Director General (PHA), Lahore, appeared and submitted that the department is complying with the directions of this Court passed from time to time and they will further cooperate with the Urban Unit and the Secretary Forest Department for the plantation of trees and for implementing the above mentioned policies. He assured his commitment for implementing the Punjab Urban and Peri-Urban Forest Policy . III. CURRENT SITUATION OF TREES AND FOREST 17. The Petitioners have attached several articles and reports showing several threats to forests, trees and environment in Punjab and Pakistan. It is unfortunate, catastrophic and shocking that the forests of the country are now almost extinct or at decreasing rate. The deforestation is leading to increase in the spread of life threatening diseases. Reports from Yale School of Forestry & Environmental Studies at Yale University and School of Public Health: Center of Health and the Global Environment at Harvard University affirm the fact that deforestation is linked with rise of deadly diseases. 18. It may be noted that the National Environment Information System (NEIMS), a project of United Nations Development Programme (UNDP), had published a Research Report in 2010 detailing the environment and biodiversity and ecological zones in Pakistan from forests to mountains and threatened flora and fauna and threatened species of animals. The report suggests that deforestation rate in Pakistan is estimated at 0.2% to 0.5% annually , which is the highest in the world and accounts for 4-6% decline in its wood biomass per annum. The total natural forest cover has reduced from 3.59 million hectares to 3.32 million hectares at an average rate of 27,000 hectares annually . The natural resource is decreasing at such an alarming speed that all the forest area will be consumed within the next few years. Some of the extracts from the Research Report are as follows: 1. Pakistan is a Forest Poor Country : Only 4.72 million hectares or 5.36% of its land mass is covered with forests. Table 1.7 of the Report suggests that there is declining forestation trend during the years 2000-2009. 2. Environmental Benefits of Trees: The value of intangible benefits is eight times greater than the tangible value of products and services of forestry sector . Many other "intangible" benefits are derived from forest including oxygen production, watershed value, scenic benefits, ecosystem synergism and flow, and a variety of other values essential for human health and quality of life. Forests also provide a number of crucial ecosystem services, for example, their role in sequestering carbon from the atmosphere, protecting upstream watersheds, conserving biodiversity and gene-pools for future generations and in providing landscape beauty . 3. Biodiversity Conservation : 60-90% of all terrestrial species are found in forests having widespread economi c and medicinal uses still unknown to mankind. 4. Forests and Carbon Sequestration: Forests are both a source of carbon dioxide (CO2) when they are destroyed or degraded and a sink when conserved, managed or planted sustainably. Forest vegetation and soils hold 40% of carbon stored in terrestrial ecosystems. 5. Forests and Water Quality: As population grows, the demand for clean drinking water becomes more acute. Besides this, need of water for agriculture, sanitation purpose, cooking needs and other uses is imperative. In Pakistan, 2 decades ago, no one had ever thought of purchasing water , but now people do purchase it, just because of depletion of forests in watersheds. Forest and plant cover are necessary to slow runof f and filter
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rainwater . When trees are in place, rainwater , which naturally flows downhill to the nearest stream, is slowed. Once slowed, rainwater seeps down to refill underground storage tanks or aquifers. In addition, water may be absorbed by the roots of trees and transpired by leaves so that it can cycle back for use again as rainwater . Forests prevent non-saline drinking-quality water from running off too quickly to mix with the salt water of oceans. Once salty, water takes much longer to re enter the fresh water portion of the hydrological cycle, where it is most useful to humans. 6. Forests and Soil Quality: The roots of trees hold soil in place. Fertile soil that is needed to grow crops would otherwise be washed away in rainstorms, decreasing the amount of soil available for agriculture. Rich soil transfers nutrients to food, which contributes to human health. 7. Biodiversity Conservation: The forests are one of the largest repositories of biodiversity in the world. By some estimates they contain 60-90% of all terrestrial species found on the planet. Some of these could have widespread economic or medicinal uses that are still unknown to us. The conservation of these valuable genetic resources for future options that are yet undiscovered is thus a valuable service that forests provide. 8. Other Benefits: In addition to the above, the forests provide multiple benefits to environment, people, and animals. The list of some of such recognized benefits is as follows: a. Forest cool air temperature by release of water vapour into the air; b. At day time trees generate oxygen and store carbon dioxide, which helps to clean air; c. Forest attracts wild life and offer food and protection to them; d. Forests offer privacy , reduce light reflection, offer a sound barrier and help guide wind direction and speed; e. Trees offer artistic functions such as creating a background, framing a view, complementing architecture, and so on; f. Well managed forests supply higher quality water with less impurity than water from other resources; g. Forests help in controlling the level floods and soil erosion; h. Forest provides different kind of wood which are used for different purposes like making of furniture, paper , and pencils and so on; i. Forest help in giving the direction of wind and its speed; j. Forest helps in keeping environment healthy and beautiful; k. Forests also minimize noise and air pollution and; l. Forest helps the scientist to invent new medicine as forest has different kinds of plants and herbs. All benefits quoted above are purely outcome of forests and cannot be derived from agriculture. If cost of these be calculated in terms of money , it will be far above the outcome/benefits of agriculture. 19. Further , following news articles are available on record to show the plight of forests and tree line in Pakistan: 1. A report published in daily "Dawn" dated 1.05.2017 describes how the timber mafia in Giglit-Baltistan operates in collusion with the Federal Government who have continued to increase the upper ceiling limit on felling of trees, resulting in massive damage to the forests. This has led to an apocalypse in the making by increase in landslides; the Attabad Lake was a result of indiscriminate logging in the area. The report states that the National Disaster Management Authority (NDMA) has declared that a mountain in district Nagar has started developing cracks and has begun to sink posing a danger to 380 households in Miacher Village; landslides have already damaged five houses and 35 other houses have been evacuated and moved to safer locations. 2. As per report published in "Pakistan Today" dated 21.03.2017, Pakistan loses 42000 hectares or 2.1 % of forests every year . 3. A news article published in "The Nation" dated 07.11.2016, based on a study conducted by Asian Development Bank shows the forest area in Pakistan in the year 2015 was 1.9% which is rapid decline from earlier official figure of 5% as per the National Forest Policy, 2015. It further states that according to Food and Agricultural Organization, the country lost 840,000 hectare of forest cover between 1990 and 2010 and the rate of loss of forest per year is 42000 hectares per year. 4. The Express Tribune published on 25.01.2015 states that Gilgit-Baltistan has lost 50% of its forest cover in the last 20 years.
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5. A report published in daily "Dawn" on 25.06.2010 suggests that Pakistan has the highest annual deforestation rate in Asia according to the latest finding s of the World Wide Fund for Nature. 151,500 acres have been converted to non-forest use since partition in 1947; and 99,71 1 acres of forest land in Punjab Province has been converted to non-forest use which is the highest in Pakistan. The report also lists the names of the beneficiaries of deforestation which include corporations as well as influential individuals. IV. CONSTITUTIONAL MOOT POINTS 20. In the instant public interest petition, the Petitioners have basically sought directions to the relevant ministries, departments and other authorities of the Provincial or Federal Government under Article 199 of the Constitution to plant, protect, manage, preserve and conserve the trees and forests in Punjab. The Respondents relevant departments and authorities have presented their oral and written arguments; in which they have undoubtedly admitted the importance and need to plant, protect, manage, preserve and conserve the trees and forests in Punjab and Pakistan; and have highlighted their performance in this regard. 21. Following constitutional moot points arise out of the instant petition: A. Whether the directions can be issued to the relevant ministries, departments and other authorities of the provincial or federal government under Article 199 of the Constitution to implement the mandatory provisions of law. If yes, whether the doctrine of continuing mandamus is applicable in the instant matter . B. Whether there exists any urban tree policy in Punjab C. Which authorities in Punjab are under obligation to plant, protect, manage, preserve and conserve the trees and forests. D. What are the penalties and offences relating to the trees and forests in Punjab. V. MAINTAINABILITY OF THE PETITION 22. Public Interest Litigation ("PIL") is a powerful tool for individuals and groups for combating illegalities, injustice and social ills which promotes and protects the larger public interest in case of violation of any fundamental rights. As long as the public interest prayed for is bonafide and not based on any vested interests, the principles of locus standi /aggrieved person are to be interpreted liberally by the Courts. Reliance in this regard is placed on "PROVINCE OF SINDH and others Versus LAL KHAN CHANDIO and others "(2016 SCMR 48), "Messrs AL- RAHAM TRAVELS AND TOURS (PVT .) LTD. and others Versus MINISTR Y OF RELIGIOUS AFFAIRS, HAJJ, ZAKA T AND USHR through Secretary and others "(2011 SCMR 1621 ), "ARDESHIR COW ASJEE and 10 others Versus KARACHI BUILDING CONTROL AUTHORITY (KMC), KARACHI and 4 others "(1999 SCMR 2883 ), "Mian SHABIR ASMAIL Versus CHIEF MINISTER OF PUNJAB and others "(PLD 2017 Lahore 597), "DISTRICT BAR ASSOCIA TION, RAWALPINDI Verses FEDERA TION OF PAKIST AN and others "(PLD 2015 SC 401), "Ms. IMRANA TIWANA and others Versus PRO VINCE OF PUNJAB and others "(PLD 2015 Lahore 522), "HABIBULLAH ENERGY LIMITED and another Versus WAPDA through Chairman and others" (PLD 2014 Supreme Court 47), "SALAHUDDIN DHARAJ Versus PROVINCE OF SINDH through Secretary , Local Government Department and 4 others"(PLD 2013 Sindh 236), "JAVED IBRAHIM PARACHA Versus FEDERATION OF PAKISTAN and others" (PLD 2004 Supreme Court 482), "IQBAL AHMAD DHUDHI Versus FEDERATION OF PAKISTAN and 5 others"(2014 CLC 1348), "MUHAMMAD QAHIR SHAH and others Versus FEDERATION OF PAKISTAN, MINISTRY OF RAILWAYS, through Secretary, Islamabad and others"(2014 YLR 2571), PLD 2010 SC 759 - Human Rights Case No. 1111 of 2006, 1111 of 2007 and 15283 G of 2010. The Respondents are under a Constitutional obligation to protect the Fundamental Rights of the public at large as per judgment of Hon'ble Supreme Court reported in "MUHAMMAD YASIN Versus FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others"…
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