1VIIAN HAMID FAROOQ, J.--- The petitioners, sixteen (16) in number, claiming to be the owners of agricultural land measuring over 300 kanals in village Mehmood Booti, Tehsil Cantt., District Lahore, through the filing of the present. Constitutional petition, have challenged the (establishment of an industrial project for production of energy out of waste, by the erstwhile Metropolitan Corporation, now succeeded by City District Government) over the land measuring 638 kanals and 11 marlas situated in Revenue Estate of Mehmood Booti, Tehsil Lahore Cantt., District Lahore, including that of the petitioners, with the following prayer: "It is, therefore, respectfully prayed that a writ may kindly be issued restraining the respondents from setting up any industrial or other project over the land of the petitioners described in Annex-H and order of respondent. No. 1 contained in Annex-A may kindly be declared to be without lawful authority and of no legal effect."
2. Precisely stated the facts as narrated in the present petition are that the then Metropolitan Corporation requested World Bank to finance an industrial project for production of energy out of municipal waste over the aforesaid land, including the petitioners, but the said request was declined by the World Bank, statedly, on the plea that the proposal would be hazardous to the environment. In the meantime afore-mentioned land was acquired, necessary notifications were issued by the competent authorities and award dated 22.7.1997 was delivered, which action of acquisition of land, was, reportedly, challenged by the petitioners through filing Constitutional Petition (W.P.No. 22157/1997) which is, statedly, pending. It is the case of the petitioners that they, on 12.5.1998, applied for the withdrawal of the notifications, but the said request was turned down, which necessitated the filing of the present petition on the additional grounds that with the promulgation of Pakistan Environmental Protection Act, 1997, no industrial project can be established within the municipal limits and that the land of the petitioners is, still, being used for cultivating purposes. Needless to mention that Environment Protection Agency has also been impleaded in the present petition as respondent No. 7. Pursuant to the directions by this Court, the then Metropolitan Corporation filed the parawise comments and after the admission of the writ petition to regular hearing, written statement was submitted. The position taken by the Corporation was that the possession of the land had been taken over by Metropolitan Corporation on 22.7.1997; it has paid an amount of Rs. 1,52,96,610/- to the Collector as compensation of land and the compensation for trees etc. Had also been deposited. It was further stated that the disputed land is being used by the C. L. R. corporation for dumping and disposal of solid waste and that the waste of energy project has nothing to do with the acquisition of land fill site. Environment Protection Agency also furnished parawise comments, which as per their own request, was treated as written statement, wherein it was stated that under section 12 of Pakistan Environment/al Protection Act, 1997, a proponent of project is bound to submit environmental impact statement. During the proceedings, at the request of the learned counsel of the petitioners, which was not resisted by the opposing counsel, for the purpose of elucidating the matter in dispute. Mr. Ehsan Ullah Lilla, Advocate was appointed as local commission for spot inspection/local investigation who furnished his report, to which Metropolitan Corporation filed its objections. On one date of hearing of the case, Dr. Tufail Siddiqui, Incharge Solid Waste Management, City District Government also appeared and subsequently on 9.9.2002, he filed a report of solid waste disposal in Lahore.
3. The learned counsel for the petitioners, while mainly relying on the report of the local commission, has vehemently submitted that it has corroborated the findings of the survey conducted by Environment Department; that on account of the pollution, the people are subjected to various diseases; on account of deposit of waste, it is causing immense loss to the crops, animals and condemnations of sub-soil water and that the said filth depot is a public nuisance and injurious to health. On the other hand, the learned counsel, representing the City District Government, has submitted that no other suitable place is available for using as dumping ground for solid waste; the city District Government has requested the Health Department to use spray on the site in order to minimize the effects of the dumping station; that all efforts are being made to overcome the problem, presently faced by general public, particularly, the people of Mehmood Booti, but the Department is not in a position to shift the dumping ground from Mehmood Booti to other place. In this perspective, the learned counsel, C. L. R.
2006 Muhammad Yousaf V. Province of the Punjab 139 (Mian Hamid Farooy, J) representing the respondents prayed for the dismissal of the petition.
4 Notification dated 8.2.1995, copy whereof has been filed as Annex-D, shows that certain land in Mauza Mehmood Booti was acquired by the Collection, District Lahore, for Lahore Metropolitan Corporation. The purposes of the acquisition, as given in the notification, is "for land-fill site (Waste of Energy Project)." Admittedly, the said project could not be established uptil now for one reason or the other, while the plea of the petitioners is that the World Bank refused to finance the said project.
Be that as it may, the fact remains that uptil now, the said project could not be established and this fact has been admitted by the city District Government. In this regard, it would be appropriate to reproduce certain portions of written statement filed on behalf of erstwhile Metropolitan Corporation: ................. It is submitted that land fill site at Mehmood Booti is badly needed by MCL for dumping of solid waste because MCL does not have any other land fill site for this purpose, therefore, the acquisition of said land was planned keeping in view the need of land fill site for dumping of Solid Waste especially. ................. Therefore, Waste to Energy Project has nothing to do with the acquisition of land fill site because MCL had purchased the land for the disposal of Solid Waste and not for the Waste to Energy Project especially."
5. It flows from the above that the land, which was acquired for the purposes of land-fill site (Waste to Energy Project), is being used, admittedly, by the City District Government for the purposes of dumping ground for Solid Waste and the acquired land is, prima facie, not being used for the purposes for which it was acquired. I have refrained myself from rendering findings on the crucial issue as to what would be the legal effect/consequences, if the C. L. R. acquired land is not used for the purposes for which it was acquired, as according to the ' petitioners, Constitutional Petition (W.P. No. 22157/97) is pending on this crucial issue, lest these findings may prejudice the cause of any of the parties and additionally this issue is not involved in this petition.
6. To my mind, the pivotal questions involved in this petition and require determination by this Court are as to whether the dumping of solid waste over the land and using it as dumping ground is creating multiple problems, causing diseases and pollution and is a serious of nuisance for the inhabitants of the said locality and secondly, as to what relief in the above perspective could be provided to the petitioners, in the present petition, if at all the same is to be treated as public interest litigation, as the relief claimed in the present petition is for restraining the respondents for setting up an industrial project for protection of energy out of waste. As noted above, the learned local commission was appointed, who inspected the spot in the presence of the parties and submitted his report. It would be advantageous to reproduce certain portions of the report of the local commission which are as under:- "Para-2---is full of dirt, filth and heaps of garbage and other dirty stinking material. This area comprises approximately 639 kanals of land. There are piles of dirt, garbage, waste and putrefying filth lying. Fire are smoldering at many places in the massive heaps and generating fumes, smoke, bad odor, foul smell and intense heat. It was practically impossible to stay there.
Para-3---That blowing wind at that time was causing smoke, odor, smell and heat to travel in the direction of the I. Abadi of village Mehmood Booti. Many people complained of various diseases like pimples, skin allergies, Asthma, and other lung affecting diseases because of the presence of files and germs created by this large quantity of garbage and refuse lying open and uncovered in the huge area. They also complained that the crops and animals have also been effected adversely.
The sub-soil water has also been contaminated and the tube-well water and water from well is not safe to drink....
Para-5---The existence of filth depots in its area is really a public nuisance and injurious to the health and sanitation of the people and locality.
Although objections to the report of the local commission were submitted by City District Government, yet I find from the objections that the factual position prevailing at the spot, as picturized and described by the local commission in his report, was not denied by the City District Government, meaning thereby that the said factual position is deemed to be admitted by them.
However, it was pointed out in the objections that the land was purchased for the said purpose and no other suitable place is available for using as dumping ground for solid waste. It was also admitted in the said objections that although problems are being faced particularly by the people of Mehmood Booti, the. City District Government is not in a position to remove the said dumping ground. The relevant portions of objections, filed by the City District Government, are reproduced below:- "It is also worth mentioning that the District Officer Health/Epidemic Control Officer (ECO) City District Government, Lahore, has been requested to use spray on the site to avoid generation of smokes, bad odor foul smell, intense heat, flies and mosquitoes including other insects etc. On interval days. Moreover sprinkling of water is being arranged to reduce the environmental hazards as discussed in the report and levelling of land is being done by earth filling. Action is also been taken to remove stagnant water also.
3 to 6---It is also submitted that all efforts are being made to over-come the problems presently being faced by the general public around the site and particularly the people of Mehmood Booti but this department is not in a position to shift the dumping ground from Mehmood Booti to other place due to limited resources. However, all the possible efforts are being made for up keep of this dumping ground to give relief to the adjoining abadies."
(Underlining is mine)
It flows from the above that the report of the local commission has in fact been admitted by the City District Government and instead of raising the objections to the said report, they have shown their inability to redress the grievance of the people of the locality.
7. I find from the record letter dated 9.5.2002, by District Officer Environment, Lahore, addressed to the District Officer, Solid Waste Management, wherein it was reported that pursuant to receipt of a complaint, a survey was conducted by Environment Department and it was found during the survey that the people are suffering from the problems like constant foul smell, abundance of fillies/other insects/dogs and injurious smokes arising from the burning of Waste etc.
8. As noted above, Dr. Tufail Ahmad, Incharge Solid Waste Management, City District Government, personally appeared before this Court and subsequently filed his report on 9.9.2002, which would be advantageous to be reproduced:- "1. That Landfill Site, located at Mehmood Booti, Bund Road, is the piece of land, which has been purchased by the City District Government (Ex- Metropolitan Corporation, Lahore) and owned by as municipal property from the years in the past.
2. That with regard to resorting to urgent precautionary guarding measures and public grievance redressal. The dumping. Site waste flow is being covered by spreading earth layers over the waste.
A dumper and a loader permanently has been placed there to operate for the said purpose.
Executive District Officer, Health, has been requested for deployment of special squads to be made duty bound to carry out periodic anti-fly spray and spray-dog killing operations on the Mehmood Booti Dumping Ground. (Copy enclosed).
That the City District Government has created and developed few private Landfill Sites (dumping grounds) at three other locations in Lahore, namely,---
(a) Babu Sabu Near Motorway Interchange, for transfer of solid waste from Ravi Town and Data Town areas:
(b) Ittefaq Town, Frozepur Road, for transfer of solid waste from Iqbal Town areas;
(c) Kamayan, Ferozepur Road, for transfer of solid waste from Gulberg and Nishter Town areas: That due to development of these dumping grounds the pressures on Mehmood Booti seems to be released.
It is further submitted to the Hon'ble Court that maintaining the dumping ground at Mehmood Booti is natural compulsion and the Solid Waste Management has to undergo this restraint and face embarrassm ent."
9. Above narrative amply demonstrates that the said area is being used by City District Government for dumping of solid waste. Both the parties appear to be in agreement that on account of dumping of solid waste, there are heaps of garbage and the area is full of dirt/dirty material. It has been established that due to heaps of garbage and other dirty material, there is bad odor, foul smell, countless fillies, mosquitoes and other insects all over the locality. One can imagine that on account of the curative measures, statedly, taken by the City District Government, as narrated by the incharge Solid Waste Management, fumes and pollution must be emitting all the time, causing diseases, uncomfort and various other problems. Entire area must be polluted and the people living in that locality must be suffering from various serious diseases. Uptil now hundreds of people must have died in the said locality due to the various diseases caused by the dumping of solid waste, but most probably on account of ignorance, poverty or helplessness, nobody could come forward to highlight these muffled atrocities being "showered" by the public functionaries over the innocent citizens. One could imagine the state of life, being led and "enjoyed" by the people of locality and the enormous difficulties, in different shapes, being faced by them. Of course, they are the citizens of this country and are entitled to equal protection of law. The lives, being led by the people, living in that locality, must be miserable and it is the duty of the City District Government to redress the grievances of the citizens of this country living in Lahore, moreso, when the fundamental rights have been gua-rented to the citizens under the Constitution, which, inter alia, provides that the dignity of man and subject to law, the privacy of home shall be inviolable.
10. Now coming to the second question as to what relief can be granted to the petitioners. It is a matter of common knowledge that the pollution creates dangerous gasses etc. Which are injurious not only to human life, but also to the lives of animals, birds and plants. This Court, while dealing with the problem of pollution, in deciding a Constitutional Petition (W.P. No. 25084/1997) titled "Mrs. Anjum lrfan Vs. L.D.A." has held as under- "The problem of pollution is more dangerous as compared to destruction by Hydrogen Bomb. It is proper and high time to implement the law in letter and spirit without discrimination as the life of human being is more precious. In fact, every one is not saved from the attack of pollution, in this view of the matter each and every citizen, public functionary, authority and body must discharge its responsibility to reduce this problem at any rate at any cost."
11. The Apex Court of this country in the case reported as Ms. Shehla Zia and others Vs. WAPDA (PLD 1994 SC 693) in a public interest litigation, considering the gravity of the matter, which involve and effect the life and health of the citizens at large, issued notice to the concerned authority. It was further held in the said judgment that if "there were threats of serious damage, affective measures should be taken to control it and it should not be postponed merely on the ground that the Scientific Research and Studies were uncertain and not conclusive."
12. The Hon'ble Supreme Court of Pakistan in the aforenoted case of Ms. Shehla Zia, ibid, has held as under:- "There is a state of uncertainity and in such a situation the authorities should observe the rules of prudence and precaution. The rule of prudence is to adopt such measure which may avert the so- called danger, if it occurs. The rule of precautionary policy is to first consider the welfare and safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible danger or make such alternate precautionary measures which may ensure safety.
To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution."............. "If there are threats of serious danger, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. Prevention is better than cure. It is a cautious approach to advert a catastrophe at the earliest stage."
It has further been held by the Hon'ble Apex Court of this country in the aforenoted case of Ms. Shehla Zia as under:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word 'life' is very significant as it covers all facts of human existence. The word 'life' has not been defined in the Constitution but it does not mean nor can be restricted- only to the vegetative or animal life or more existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose, right of easement, property or health is adversely affected by any act of omission of a third person in the neighbourhood or at a far-off place he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law by it municipal law or the common law. Such danger as depicted the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer-from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the 'people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk-. Therefore, Article 184, can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward."
"The word "life" in terms of Article 9 of the Constitution is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter, the petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, is maintainable."
"The word "life" in the Constitution has no been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it."
"Article 14 of the Constitution provides that the dignity of man and subject to law the privacy of home shall be inviolable. The Fundamental Right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the World."
"Where life of citizens is degraded, the quality of life is adversely affected and health hazards or created affecting a large number of people the Court in exercise of its jurisdiction under Article 184(3) of the . L. R.
Constitution may grant relief to the extent of stopping the functioning of units which create pollution and environmental degradation."
13. To my mind, pollution is form of slow poisoning, which the people living in the locality/area known as. Mehmood Booti, are facing since long. Lives-of tens of thousands of citizens of this country, some of them must be tax-payers, are sinking in the ocean of dirt, solid waste, garbage and pollution and that too, at the hands of City District Government. It is high time that the public functionaries should realize their duties and perform their functions keeping in view the import of word "life" as defined by the Apex Court of this country in Shehla Zia's case ibid, The instant petition is treated as public interest litigation and, thus, this Court is inclined to give suggestion/directions to the public functionaries, especially to City District Government.
14. In view of the above, it is suggested that now as the City District Government has taken over the affairs of erstwhile Lahore Metropolitan Corporation, therefore, City District Government should make serious necessary endeavours for the redressal of grievances faced by the people of thickly populated locality of Mehmood Booti, should make alternative arrangements and to select suitable place for using as dumping ground and dumping solid waste, keeping in view the provisions of Pakistan Environmental Protection Act, 1997, and the observations and suggestions, made by the superior Courts of this country in Shehla Zia and Ms. Anjum Irfan cases, (supra). This Court, while giving suggestions/directions, is not completely oblivious of the difficulties, being faced by the City District Government, and is considerate enough to provide ample time to the City District Government to make serious efforts and arrangement for the removal of dumping ground for solid waste from the area of Mehmood Booti 'and to make alternative arrangements for dumping of solid waste for away from the residential areas, so that the lives of ten's of thousands of people and their future generation could be saved from the catastrophe of pollution, which exercise is to be completed within a period of one year. Till the necessary arrangements are made by the authorities concerned, as suggested above, it is directed that the Lahore City District Government and Health Department shall deploy all possible resources at their disposal in that area to minimize the effects of the dumping ground.
15. Writ petition stands disposed of with the above suggestions /directions with no order as to costs.
Accordingly.