Tuesday, 7 October 2014

Judgment on construction of Signal Free Junction

PLJ 2014 Lahore 787
Present: Abdus Sattar Asghar, J.
YOUNG DOCTORS ASSOCIATION and 2 others--Petitioners
versus
GOVERNMENT OF PAKISTAN and others--Respondents
W.P. Nos. 2521, 2154 & 3731 of 2014, decided on 7.4.2014.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Special Premises (Preservation) Ordinance, 1985--Waleed City of Lahore Act, 2012, Scope--Antiquities (Amendment) Act, 2012--Scope--Constitutional petition--Construction of signal free junction--Project of Government for construction of signal free junction was challenged--Destruction demolition and acquisition of Lady Willingdon Hospital--Doctrine of public trust--Acquisition of land of hospital--Land allocated by state for public purpose cannot be used or converted for different public purpose--Adverse effect--Existing provisions of washrooms of Maternity Ward kitchen and stores of hospital had been appropriately proposed to be rehabilitated/substituted at alternate spots as indicated in site plan to be completed within 45 days with an estimated costs of Rs.8,811,354/- and same has been acceded to by M.S. of hospital--Proposed amended plan of location and design of bus-stop prepared by NESPAK avoiding any damage to any portion of Doctors' Mess had fructified petitioners' objection in that regard--It is a public interest project to provide safe, congestions free and smooth traffic facility to commuters by reduction in time delays and conflicts arising due to signals--Environmental Impact Assessment (EIA) study of project meeting required standards was carried out duly approved by Environmental Protection Agency (EPA)--Completion of project is undertaken to minimize inconvenience to commuters and road users of area and all concerned--The project aims to reduce acute traffic hazards in view of existing traffic flow and to cater likely increase in volume of traffic in area with an object to play an important role in all future designs on development upon Sustainable Urban Development of City--It is an established principle of law that when an action of a Public Authority is questioned before Court of law arising an important issue of public interest, Court ordinarily examine as to whether authority while taking such action was conscious of imperative considerations with appropriate deliberations thereupon after having expert opinion before taking decision in accordance with law--Authorities had proposed and undertaken rehabilitation and substitution of existing facilities of hospital likely to be affected to satisfaction of M.S. of hospital with a clear undertaking to complete reconstructions of substitute facilities within a period of 45 days therefore, public trust had been properly safeguarded in instant case and thus it does not call for issuance of any writ against the Government--Petitions were disposal of.      [Pp. 800, 801 & 802] A, B, C & D
Mr. Azhar Siddique, Advocate for Petitioner (in W.P. No. 2521 of 2014).
Mr. Shahid Siddique, Advocate for Petitioner (in W.P. No. 2154 of 2014)
Mr. Ahmed Awais, Advocate for Petitioner (in W.P. No. 3731 of 2014).
Syed Nayyar Abbas Rizvi, Additional Advocate General & Ms. Samia Khalid, Assistant Advocate General for Respondents.
Mr. Waqar A. Sheikh, Advocate for Respondent No. 6/LDA.
Dr. Zafar Yousaf, Medical Superintendent, Lady Willingdon Hospital Lahore/Respondent No. 9 and Israr Saeed, Project Director, in person.
Date of hearing: 20.3.2014.
Judgment
Through this composite order I intend to dispose of above captioned three writ petitions arising out of same questions of law and facts.
2. Petitioners have challenged the project of Government of the Punjab namely Construction Of Signal Free Junction at Azadi Chowk Lahore (to be called hereinafter "the Project") which according to the petitioners is likely to involve destruction, demolition and acquisition of Lady Willingdon Hospital Lahore (to be called hereinafter `the hospital').
3. Learned counsel for the petitioners have argued as under:
(i)         that construction of the Project aims to squeeze the land of the hospital likely to cause mental torture and agony to the citizens, working staff, doctors and the patients besides furnishing a serious cause of grievance to the petitioners;
(ii)        that land of the hospital is a trust property reserved for the hospital and cannot be used for any other purpose;
(iii)       that declared aims and objectives of the project i.e. to reduce the traffic congestions at junctions, to provide uninterrupted flow of Metro Bus by removing signals, to reduce the accidents/conflicts due to the traffic congestions at signals and provide safer passage, to avoid delays due to signals and saving traveling time and to reduce noise and air pollution resulting from traffic jams would not be achieved by the impugned project;
(iv)       that the hospital is a protected building under the Punjab Special Premises (Preservation) Ordinance 1985 situated within the area of Walled City; that no objection certificate is obtained from the Walled City Authority established under the Walled City of Lahore Act, 2012; that the building of the hospital having the history of more then 80 years instead of demolishing is to be preserved by the Government in terms of Antiquities (Amendment) Act, 2012;
(v)        that the impugned project is being implemented without obtaining Environmental Impact Assessment (EIA) from the Competent Authority;
(vi)       that demolition of the hospital or any part thereof or acquisition of any area of the hospital is likely to diminish the facilities essential for the hospital, patients, doctors, working staff and general public;
(vii)      that respondents are obliged to maintain historic assets of the hospital with its established utility over a period of about eight decades to cater the health requirements of the people of Lahore City and its adjoining districts;
(viii)     that the State is responsible to protect and provide fundamental rights to citizens at any cost whatsoever; that Article 9 of the Constitution of Islamic Republic of Pakistan 1973 has guaranteed right to life in its wide meanings and scope including medical facility to the public which is likely to be infringed badly in case of any damage to the area, building or property of the hospital during implementation of the project;
(ix)       that the project is violative to the Doctrine of Public Trust and the concept of Sustainable Development;
(x)        that petitioners have no other remedy except to invoke the constitutional jurisdiction of this Court through these public interest litigation petitions.
4. Learned Law Officer appearing on behalf of the respondents in the light of their separate reports and parawise comments contends as under:--
(i)         that project is designed and approved in public interest to provide a safe, congestions free and smooth traffic facility to the commuters of the area; that the project will facilitate the road users by reduction in congestions and consequent time delays and conflicts arising due to signals;
(ii)        that before commencement of the project Environmental Impact Assessment (EIA) study including collection and securitization of data related to physical, biological and socio-economic environment and assessment of impacts which may be caused by the project activities and mitigation measures for the abatement of potential environmental impacts along with the estimation of mitigation cost was duly carried out and EIA report was approved by the Environmental Protection Agency (EPA);
(iii)       that EIA study report is based on both primary and secondary data and information besides discussions with stakeholders including community representatives and a wide range of road users and roadside dwellers;
(iv)       that main purpose of this approach was to obtain a fair impression on the people's perceptions of the project and its environmental impacts;
(v)        that description of the project reveals that out of six alternatives the option of elevated roundabouts at Azadi Chowk with future MBS along Ahmed Ali Road was found more feasible as it preserved the historical importance of the area while decongesting the area from vehicular flux with minimum anticipated environmental impacts. The details of the project are as under:
            "The project includes the grade separation in order to develop a signal free junction; Azadi Chowk. At Azadi Chowk, existing circular road will be abandoned in a length of about one km (from Azadi Chowk to Larri Adda Chowk) and adjacent to Yadgar an existing road (Ahmad Ali Road) will be improved/upgraded a substitute to the reach circular road. Proposed corridor-III G.T.Road (From Azadi Chowk to Lahore Ring Road) will follow this alingnment. An elevated roundabout is being proposed at the intersection, in order to facilitate the right turning and U-turning traffic. Elevated signal free facility (Roundabout) cater for; the commuters coming from Railway Station and intending to go to Niazi Interchange, the traffic coming from Bhati Chowk and turning to Railway station and U-turning traffic for all the three directions, Railway Station, i.e. Bhaati Chowk and Niazi Interchange. A three lane vehicular underpass along Ravi Road, for Bhaati Chowk bound through traffic is also proposed to avoid conflict with MBS Corridor III G.T.Road (from Azadi Chowk to Lahore Ring Road). However it is not included in scope of this project. Moreover two existing Pedestrain Bridges obstructing the construction of elevated vehicular roundabout will be dismantled. The pedestrian bridge at km 23+440 shall be dismantled and remodeled and relocated at Km 23+600. Other pedestrian bridge at MBS station at Azadi Chowk shall be dismantled and transported to another place as designated by TEPA. The same will be substituted by the pedestrian underpass. Re-routing of Old Ravi Water Lake (Buddha Ravi Nulla) is also part of this project."
(vi)       that as per Record of Rights for the year 2002 area comprising the hospital measuring 36 kanals 9 marlas 41 sarsahi is owned by the Provincial Government and is not a trust property; that under the "Doctrine of Public Trust" variously recognized by the Hon'ble Supreme Court of Pakistan and the High Courts, the Government being custodian of the public property with the help of LDA through its connected agencies is undertaking the project for longer public interest under the principle of sustainable development well recognized in various jurisdictions of the developed and under developed countries;
(vii)      that a small area of about two kanals and 11 marlas out of total area of 36 kanals 9 marlas and 41 sarsahi of the hospital is being acquired for alignment of the road already passing in front of the hospital as a part of the project;
(viii)     that the respondents are obliged and have appropriately designed the alternate and substitute provisions with allocation of funds for existing facilities of kitchen, stores, washrooms of Maternity Wards of the hospital proposed to be demolished for removal of bottle neck, widening and alignment of the road already passing in front of the hospital as a part of the project;
(ix)       that to avoid even a little damage to a corner of doctors mess the alignment of the boundary wall has been redesigned in an appropriate manner to by-pass the building of the doctors mess;
(x)        that approximate cost of the project is about Rs. 3987.016 Million; that on account of delay if any in its implementation the cost of the project is likely to increase significantly besides deteriorating and lessening the traffic condition in the area of the project;
(xi)       that Government is putting strenuous efforts to complete the project in minimum possible period of a couple of months; that respondents undertake to complete, in all respects, the alternate provisions of the hospital within a period of 45 days.
5. Arguments heard. Record perused.
6. Petitioners have questioned the feasibility of the project as a whole besides showing their grave concern upon acquisition of an area measuring 2 kanals 11 marlas 156 Sq.Ft. of the hospital likely to affect constructed areas measuring about 11 marlas comprising washrooms of the Maternity Wards, kitchen and stores of the hospital. Record reveals that Project Director vide letter dated 16.1.2014 to the Medical Superintendent of the Hospital (to be called hereinafter as `M.S. of the hospital') required the vacation of the above said area as early as possible for timely completion of the project. In response thereto M.S. of the hospital vide his letter dated 22.1.2014 pointed out as many as 14 facilities of the hospital likely to be affected during alignment process of the project. Project Director responding to the letter dated 22.1.2014 expressed his inclination for rehabilitation of likely to be damaged facilities and requested to identify the alternate points for reconstruction vide his letter dated 08.2.2014. In this petition M.S. of the hospital has submitted his parawise comments along with copies of above referred correspondence. It may be expedient to reproduce the letter dated 22.1.2014 issued by M.S. of the hospital to the Project Director which reads below:
"Subject:          CONSTRUCTION OF SIGNAL FREE JUNCTION AT AZADI CHOWK LAHORE.
            Please refer to your Letter No. PD- II/MBS/TEPA/LDA/09 dated 16.01.2014 on the subject cited above and your kind visit to this hospital in this regard.
            The following properties of the Lady Willingdon HospitalLahore will be affected during alignment process of subject project:--
1.         Krishna Building (Opposite Main Hospital), construction of residences for servants of LWH, Lahore on the remaining portion of land about 01 kanal on the analogy of construction of Mosque, General Stores etc when hospital land was acquired for Metro Project in 2012.
2.         Bath Rooms, Stores, Corridors of Maternity-A Ward (Ground Floor).
3.         Bath Rooms, Stores, Corridors of Maternity-B Ward (Upper Floor).
4.         Hospital General Kitchen, Pantry and Tandoor Complex.
5.         General Store.
6.         Medical Store.
7.         Cooperative Store.
8.         Chemical Store.
9.         Two Gates.
10.       Instrument Store.
11.       Corner of Doctors Hostel Mess (Ground Floor and Upper Floor).
12.       Drive Way for the resident of Doctors Flats.
13.       Hospital Waste Disposable Pump.
14.       Hospital and OPD Outer Walls.
            The sites for alternate construction have been identified to your Contractors as this hospital cannot run in the absence of above facilities. Therefore, you are requested to make immediate arrangements for construction of above in the best interest of the patients and public."
7. In view of the above correspondence Project Director in attendance was directed to associate the M.S. of the hospital to earmark alternate spots for reconstruction of the hospital facilities likely to be affected and furnish details thereof along with estimated costs and proposed period of completion in the Court. After detailed survey and joint meetings of the Project Director and the M.S. of the hospital an agreed layout plan with estimated costs of the rehabilitation/ reconstruction of the facilities likely to be affected in the alignment of the project was prepared by the Project Director and duly conveyed to the M.S of the hospital vide letter dated 21.2.2014. A copy whereof is also produced in the Court which reads as below:-
"Subject:          CONSTRUCTION OF SIGNAL FREE JUNCTION AT AZADI CHOWK LAHORE.
Reference:       Your Letter No. M-28/1337/LWH dated:22.01.2014.
            After receipt of the above referred letter and detailed meetings/survey with your goodself, the layout plans as agreed and the estimated amounts for the rehabilitation/reconstruction of the affected structures falling in the alignment of the above said Project, are attached herewith, for your information, please."
* * * * *
MS Letter Item No.
MS Letter Description
Description
Estimated Amount
1
Krishna Building (Opposite Main Hospital), construction of residences for servants of LWH, Lahore on the remaining portion of land about 01 kanal on the analogy of construction of Mosque, General Stores etc when hospital land was acquired for Metro Project in 2012.
a) Krishna Building is not Subject Matter of Writ Petition.
b) Krishna Building is not included in Land measuring 2 Kanal 11 Marla 156 Sft. To be taken from existing Hospital Land.
c) No Compensation is to be paid as Building is owned by the Government.
d) The Hospital/Govt. is at liberty to construct any building on remaining Land measuring 1 Kanal owned by the Govt. of Punjab.
---
2
3
Bath Rooms, Stores, Corridors of Maternity-A Ward (Ground Floor).
Bath Rooms, Stores, Corridors of Maternity-B Ward (Upper Floor).
Rough Cost Estimate for the construction of Wash Rooms in Lady Willingdon HospitalLahore. (Ground Floor & First Floor) to be constructed on North Side of the Hospital adjacent/attached to the concerned Building, shown as Location-B.
1,229,008
4
Hospital General Kitchen, Pantry and Tandoor Complex.
Rough Cost Estimate for the construction of Kitchen in Lady Willingdon HospitalLahore, to be constructed on East Side of the Hospital, adjacent/attached to the concerned Building, shown as Location-B.
1,538,485
5
(Item No. 5,6,8&10 are under One Roof) General Store
Rough Cost Estimate For Construction of General Store In Lady Willindon Hospital, Lahore, to be constructed on East Side of the Hospital, shown as Location-C.
750,663
6
7
8
10
Medical Store
Co-Operative Store
Chemical Store
Instrument Store
Rough Cost Estimate for Construction of Chemical Store, Instrument Store, Co-Operative Store And Medical Store In Lady Willindon Hospital, Lahore, to be constructed on South Side of the Hospital, shown as Location-D.
The above stores shall be constructed with better design and devoted area in due consultation with Medical Superintendent of the Hospital. Layout Plan is attached as Annex-K.
3,115,606
11
Corner of Doctors Hostel Mess (Ground Floor and Upper Floor).
Corner of Doctor's Mess shall be rehabilitated.
400,000
12
Drive Way for the resident of Doctors Flats.
Drive Way is being substituted in consultation with Hospital Authority
947,104
13
Hospital Waste Disposable Pump.
Damaged, if any, cause of disposal pump shall be rehabilitated accordingly.
However, an amount of Rs.1,00,000 is reserved for above purpose
100,000
14
Hospital And OPD Outer Walls.
80% wall has been constructed at site whereas rest shall be completed on conclusion of case.
--
9
Two Gates.
Only one gate is likely to be affected which shall be relocated in consultation of Hospital Authority.
--
* * * * * *
CONSTRUCTION OF SIGNAL FREE JUNCTION AT AZADI CHOWK, LAHORE RECONSTRUCTION OF STRUCTURES IN LADY WILLINGDON HOSPITAL
(ABSTRACT OF COST)
Total Tentative Cost = 7,662,047 Rs.   @         1939/sft
(For washrooms,kitchen,stores)
Add 15% for external water
supply etc.
Sewerage, Electrification work
etc complete    = 1,149,307
Total Cost        = 8,811,345 Rs.
Completion Period       = 45 days.
* * * * * *
8. During the course of hearing on 05.3.2014 learned Law Officer placed on record copy of layout plans, PC-1, Environmental Impact Assessment (EIA) Report and Volume-II of General Specifications along with site plan of the project. It revealed that a bus-stop proposed in the site plan was damaging a small portion of the doctors' mess. Facing the serious objections from the petitioners' side learned Law Officer on 05.3.2014 requested for an adjournment to seek technical construction and consultation with the concerned designing authority of the project to examine the possibility of suitable amendment in the design of proposed bus-stop to avoid any damage to the small portion of the doctors' mess. On 10.3.2014 learned Law Officer produced proposed amended plan of location and design of bus-stop Mark-C/1 to 4 prepared by NESPAK avoiding any damage to any portion of the doctors' mess.
9. Learned counsel for the petitioners however reiterated their objections on the proposed substitute provisions and arrangements offered by the Project Director.
10. In this case copy of the record of rights for the year 2002-2003 furnished by the respondents clearly manifest that land of the hospital measuring 36 kanals 9 marlas 41 sft.is owned by the Provincial Government. It therefore clearly negates the petitioners' plea that the land of the hospital is a private trust. Facing with the situation learned counsel for the petitioners argue that the land allocated by the State for a public purpose cannot be used or converted for a different public purpose. Keeping in view the above referred arrangements and the objections raised by the petitioner it may be expedient to examine as to whether the project and the above referred substitute provisions and arrangements offered by the Project Director are violative to the Doctrine of Public Trust and the concept of Sustainable Development. To meet this objection and argument of learned counsel for the petitioners it is imperative to see that what are the parameters of Doctrine of Public Trust. The Hon'ble Supreme Court of Pakistan in its landmark judgment in the case of Cutting of Trees for Canal Widening Project, Lahore in the matter of Suo Motu case No. 25 of 2009 (2011 SCMR 1743) has furnished a detailed study of the Doctrine of Public Trust and the concept of Sustainable Development. The Doctrine of Public Trust has its roots to the inception of organized human living and the State. In view of the development in the concept of Public Trust with the passage of time Courts of various jurisdictions have approved and accorded validity to a genuine change in purpose in case of diversion from one public purpose to another especially when the area diverted is relatively small without having any adverse affect to the existing purpose. In this regard reference is made to an extract from the judgment of the Apex Court in the case of Cutting of Trees for Canal Widening Project Lahore (supra) which reads below:-
"32. The afore-referred survey of the academic, judicial pronouncements and Constitutional provisions indicate that the concept of Public Trust Doctrine is increasingly becoming part of the jurisprudence in several jurisdictions and Environmental Human Rights are being classified as Fundamental Human Rights. But what are the parameters of this concept? How far the public or private project can be stalled by invoking this concept and to what extent the public use of a trust resource can be converted to private use or for a different public purpose? This aspect has also been a subject of academic comment. Prof. Serena A. Williams in his article titled as "Sustaining Urban Green Spaces: Can Public Parks be Protected under the Public Trust Doctrine?" (http://works.bepress.com/serena_williams/2/) lays down two broad approaches: the legislativeapproach which prohibits the alienation or diversion of resource without plain and explicit legislation to that end and second the substantive test approach. The latter approach consists of five factors to be considered by a Court while determining whether diversion or alienation of public trust property violates the said test. These factors are as follows:--
            "(1) that public bodies would control use of the area in question; (2) that the area would be devoted to public purposes and open to the public; (3) the diminution of the area of original use would be small compared with the entire area; (4) that none of the public uses of the original area would be destroyed or greatly impaired; and (5) that the disappointment of those wanting to use the area of new use for former purposes was negligible when compared to the greater convenience to be afforded those members of the public using the new facility."
33. According to Professor Williams if alienation of a parkland is allowed, Courts must rigorously scrutinize the alienation from public use to a private entity to ensure that the transfer continues to serve a public use and is carried out with minimum possible harm to the remaining parkland. He further observed that:
            "Diversions in the use of public trust land should be approved only when three factors are met: (1) the area would continue to be devoted to a broad public purpose which is either consistent with the public uses of the original area or is one that outweighs the public use of the area as a part; (2) a public body would retain control over the use of the area in question; and (3) the diverted use would be one open to the public. These three factors are the crux of the five-criteria balancing approach. If the park use must succumb to a new public use that is determined to be paramount to the park use, the public must maintain control over the new use and continue to have easy access to it for a general public purpose."
34. He adds that “Courts generally find such a change in purpose valid when the diversion is from one broad public purpose to another particularly when the area diverted is relatively small compared to park area preserved. For example, a road widening protect that would require the diversion of one half acre of park space was upheld under the public trust doctrine as "merely a diversion of a minimal quantum of public land from one public purpose to another public purpose". (Emphasis is supplied)."
11. Examination of record in this case transpires that hospital is not a protected building in terms of Punjab Special Premises (Preservation) Ordinance 1985 or Antiquities (Amendment) Act, 2012. It is so declared by Director General of Archaeology Government of the Punjab through letter dated 21.2.2014 to the learned Law Officer which reads below:-
"Sub:    STATUS OF LADY WILLINGDON HOSPITAL IN TERMS OF ITS PROTECTION UNDER PUNJAB SPECIAL PREMISES (PRESERVATION) ORDINANCE, 1985 OR ANTIQUITIES (AMENDMENT) ACT, 2012.
            Please refer to your discussion with the Director General of Archaeology, Punjab today regarding status of the Lady Willingdon HospitalLahore.
            In this regard it is stated that the Lady Willingdon HospitalLahore is neither protected under Punjab Special Premises (Preservation) Ordinance, 1985 nor the Antiquities (Amendment) Act, 2012. However, tomb of Hazrat Sabir Shah Wali, located inside the premises of Lady Wilingdon Hospital is declared `Special Premises' under Punjab Special Premises (Preservation) Ordinance, 1985."
The above letter is also reiterated by Saleem-ul-Haq Director Directorate General of Archaeology (Respondent No. 7) in his para wise comments dated 21.2.2014 furnished in the Court, which reads below:
1.         That Lady Willingdon Hospital situated on the western side of Badshahi Mosque is not a protected premises under the Punjab Special Premises Ordinance 1985. But in between Badshahi Mosque and Lady Willingdon Hospital there is a Shrine of Saber Shah which is a protected monument under the Punjab Special Premises Ordinance 1985 adjacent to the Lady Willingdon Hospital. (Copy of the list of Protected Premises enclosed)."
12. Careful appraisal of the location site-plan (Mark-A) produced by the learned Law Officer clearly manifests that the proposed area of 2 kanals 11 marlas 156 Sq.Ft. is necessarily required to remove the bottleneck for widening of the public road already existing in front of the hospital and for appropriate alignment of the project. It is also note worthy that the existing provisions of the washrooms of the Maternity Ward A & B, kitchen and stores of the hospital have been appropriately proposed to be rehabilitated/substituted at alternate spots as indicated in the site-plan (Mark-B/1 to 19) to be completed within 45 days with an estimated costs of Rs.8,811,354/- and the same has been acceded to by the M.S. of the hospital vide his letter dated 18.2.2014. The proposed amended plan of location and design of bus-stop (Mark-C/1 to 4) prepared by NESPAK avoiding any damage to any portion of the Doctors' Mess has fructified petitioners’ objection in this regard.
13. The term "Sustainable Development" for the first time was recognized in Stockholm Declaration of 1972 and it was defined in Brundtland report as "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". In Pakistan the said expression is defined in Section 2(xlii) of Pakistan Environmental Protection Act (PEPA), 1997 as under:
"(2)(xlii) `sustainable development' means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs."
However in the meeting for the URBAN 21 Conference (Berlin July 2000) a more comprehensive definition of the term `Sustainable Development' was adopted as under:
"Improving the quality of life in a city, including ecological, cultural, political, institutional, social and economic components without leaving a burden on the future generations.A burden which is the result of a reduced natural capital and an excessive local debt. Out aim is that the flow principle, that is based on an equilibrium of material and energy and also financial input/output, plays a crucial role in all future decisions upon the development of urban areas."
14. In the light of the concept of `Sustainable Development' as defined in Section 2(xlii) of the PEPA 1997 and adopted by the above referred international bodies, careful examination of the record of the project in question reveals that appropriate measures were adopted to launch the project keeping in view the relevant factors. It is a public interest project to provide safe, congestions free and smooth traffic facility to the commuters by reduction in time delays and conflicts arising due  to signals. Environmental Impact Assessment (EIA) study of the project meeting required standards was carried out duly approved by the Environmental Protection Agency (EPA). Completion of the project is undertaken to minimize the inconvenience to the commuters and road users of the area and all concerned. The project aims to reduce acute traffic hazards in view of the existing traffic flow and to cater the likely increase in the volume of the traffic in the area with an object to play an important role in all the future designs on the development upon the Sustainable Urban Development of the City. In view of the attending circumstances petitioners' contention that the project is violative to the Doctrine of Public Trust and the concept of "Sustainable Development" is devoid of any force and untenable.
15. In view of the principle of trichotomy of powers entrusted to the legislature, Executive and Judiciary as enshrined in the Constitution of Islamic Republic of Pakistan 1973, the Hon'ble Apex Court of Pakistan explaining the impact of Article 199 of the Constitution in the case titled Muhammad Bashir Vs. Abdul Karim (PLD 2004 SC 271) has laid down as under:-
"This power of conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress". (Ghulam Mustafa Khar v., Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Collector of Customs PLD 1956 Kar. 538 (FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar. 599 (FB). It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v. Hameeda Begum 1986 SCMR 1561, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party". (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive."
16. At this juncture it is expedient to seek guidance from the judgment of Hon'ble Apex Court in the case of Cutting of Trees for Canal Widening Project, Lahore (supra) a relevant extract whereof reads below:-
"53. Many a time, policies/actions of executive authorities are challenged and issues are brought before the Court which have socio-political or economic dimensions; issues of lopsided policies being pursued, issues which have polarized the nation, issues which have bled and divided the nation and issues which reflect immoral or unwise use of public funds. Judges are humans. It is painful to sit back and watch the successive marches of folly. However, the Constitutional constraint reflected in the trichotomy of powers obliges the Court to observe judicial restraint. It intervenes only when the policy/action of the State authority reflects violation of any law or a Constitutional provision or when it relates to the enforcement of a Fundamental Right which inter alia includes Environmental Human Rights. The people/Constitution makers did not vest this Court to sit over judgment on a purely policy decision taken by the competent executive authority unless of course it violates the law of the land."
17. It is an established principle of law that when an action of a Public Authority is questioned before the Court of law arising an important issue of public interest, the Court ordinarily examine as to whether Authority while taking such action was conscious of the imperative considerations with appropriate deliberations thereupon after having the expert opinion before taking the decision in accordance with law. In this case as discussed above in my view the project is launched by the Competent Authority after having consultations with all concern departments and the agencies and after having obtained necessary expert opinion to study its feasibility carried out by a renowned and well reputed firm like NESPAK. It is also on the record that the Authorities have proposed and undertaken rehabilitation and substitution of existing facilities of the hospital likely to be affected to the satisfaction of the M.S. of the hospital with a clear undertaking to complete reconstructions of substitute facilities within a period of 45 days therefore in my opinion the public trust has been properly safeguarded in this case and thus it does not call for issuance of any writ against the respondents.
18. For the above reasons keeping in view the stances and undertakings of the respondents and in order to ensure implementations of the said undertakings I hold and direct as under:--
(i)         Proposed area of about 02-kanals and 11-Marlas of the Hospital is necessarily required to remove the bottleneck for widening of the public road already existing in front of the Hospital and for appropriate alignment of the project.
(ii)        Existing provisions of the wash-rooms of the maternity ward A and B, kitchen and stores of the Hospital shall be appropriately rehabilitated/substituted at alternate spots in the manner as indicated in the site-plan (Mark-B/1 to 19) and to be completed in all respects within 45 days.
(iii)       Existing provisions of washrooms of the maternity ward A and B, kitchen and stores of the Hospital shall not be demolished up till rehabilitation/reconstruction of the substitute provisions on the alternate spots are accomplished .
(iv)       No portion of the building of the Doctors' Mess shall be demolished as the same has been proposed to be saved in the amended plan of location and design of bus-stop (Mark-C/1 to 4).
(v)        Reconstruction/rehabilitation of the alternate provisions of the Hospital shall be ensured by the respondents within stipulated period of 45 days and report in this regard prepared by the Project Director duly verified by the M.S. of the Hospital shall be submitted to the Registrar of this Court within seven weeks from the pronouncement of this judgment for perusal of the Court.
19. For the above discussion and reasons, since the material apprehensions, objections and prayers of the petitioners have been duly taken care of and fructified by the respondents as detailed above therefore all the captioned three petitions are disposed of accordingly.
(R.A.)  Petitions disposed of

No comments:

Post a Comment

Contact International Lawyer

If you have any queries related with this post you can contact at internationallawyerinfo@gmail.com

Regards,
Salman Yousaf Khan
Chairperson
International Lawyer
+92-333-5339880