IFTIKHAR HUSSAIN CHAUDHRY, CJ. --- Muhammad Yousaf and others filed writ petition No. 20406/98 against Province of Punjab and six others. According to the petitioners, they were owners of land measuring more than 300 kanals in Revenue Estate Mehmood Booti, Tehsil Cant, District Lahore.
The Lahore Municipal Corporation vide Notification dated 04.02.1996, issued under Section 4 of Land Acquisition Act, acquired the land belonging to petitioners. Notification under Section 6.Of the Act was issued on 09.02.1998. Later, the Land Acquisition Collector gave his award on 22.07.1997.
2. The acquisition of land was challenged by appellants /petitioners through writ petition No. 22157/97, which was sub judice at the time of filing of the above-referred petition. The petition was filed on the ground that it was based on a fresh cause of action.
3. Appellants/petitioners claimed that they applied to respondents for withdrawal of Notifications, which prayer was not acceded to, whereafter, they filed the petition on the ground that the respondents wanted to establish an industrial plant over the land belonging to petitioners, which they could not do under the provisions of Pakistan Environment Protection Act No. XXXIV of 1997, within their municipal limits. It was further urged that unless objections from public were invited and consulted by the Environment Protection Agency, no project of like, nature could commence. It was further submitted that land belonging to 'petitioners was agricultural land and that acquisition of land was contrary to provisions of law and, as the World Bank had refused to extend financial assistance for the project, the very basis for the acquisition had vanished and, therefore, the Notifications issued under the provisions of Land Acquisition Act, 1984 be annulled as having been issued without lawful authority.
4. Considerable proceedings were recoursed to in the petition and subsequently, the same was disposed of by order dated 11-09-2002 directing the City District Government, Lahore to make serious efforts for removal of damping ground from area of Mehmood Booti and to make alternative arrangements for dumping of solid waste away from the residential areas. It was further observed that the exercise was to be completed within a period of one year and till the necessary arrangements were made by authorities in that context, the City District Government, Lahore and Health Department shall employ all possible means of disposal of minimize the effects of the dumping round.
5. Aggrieved of the order in Chamber, passed by the learned single Judge, under consideration Intra-Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 was preferred by the City District Government, Lahore.
6. Notice of the appeal was issued to respondents. The Court also sought assistance from two eminent jurists, who were also well-conversant with the environmental issues.
7. The District Officer Solid Waste Management was also directed on subsequent date to submit a detailed report and, thereafter, a committee was constituted by the learned Division, Bench, seized of the matter, with the -following terms of reference:--- "(i) The appellant City Government shall submit a detail report about the composting scheme regarding Mehmood Booti by or before 30.05.2003.
(ii) The Secretary Health, Government of Punjab shall be provided a copy of the list of Hospitals annexed with the report. He shall depute an official to obtain a report from each Hospital listed therein regarding disposal of the Hospitals waste. The report shall be submitted to the Chairman of the Committee appointed by this Court by or before 23.04.2003. Learned Additional A.G. Shall convey this order.
(i.e) The Committee is authorized to co-opt two additional members/experts that it may deem proper."
8. The Committee submitted an interim report and , later, a final report was also submitted. Matter has been posted for further proceedings today.
9. We have heard the learned 'counsel for the parties .
10. Learned counsel for the appellant contended that the petitioners earlier challenged acquisition proceedings through a writ petition and during pendency of the same, second petition on the subject was not competent and the petition should have been dismissed. It was further submitted that the only ground, urged by writ petitioners for setting aside the acquisition proceedings, was that the World Bank had declined to provide assistance in setting up an industrial plant for conversion of city waste into energy but the City Government had other options, as well and on that ground the acquisition proceedings could not have been set aside or even challenged by the writ petitioners. It was contended that the learned single Judge had directed the appellant to shift the dumping ground to some other place, only on account of environmental hazard, but for that, the City Government had formulated, devised and designed an effective strategy by planning to set up a composting/landfill plant at the site, which was an internationally recognized method of disposal of municipal waster. It. Was contended that the acquisition proceedings stood concluded and Award was also given and many land owners had accepted the compensation and, though, a Reference under Section 18 of the Land Acquisition Act, 1894 was answered by Senior Civil Judge, Lahore but a Regular First Appeal was also filed against that order. It was submitted that the amount determined by Land Acquisition Collector was placed at the disposal of the Land Acquisition Collector and possession of land was taken over and entire acquisition proceedings stood concluded and since everything was done for a genuine public purpose, the impugned order was liable to be set aside and the City Government allowed to proceed with setting up of the composting/landfill plant.
Learned counsel for the respondents (writ petitioners) submitted that about 300 kanals of land was in the possession of. The City Government-appellant, which was being used as a dumping ground and report of the' Local Commission did reveal that it was causing lot of problems to the local population and was extremely hazardous to general public, particularly, the residents of the locality. It was submitted that about half of the land was still under possession of the land owners and merely by announcement C.L.R. of Award, proprietary/possessory rights would not stand transferred to City Government/appellant and that at least to that extent, the Notifications issued under the Land Acquisition Act, 1894 should be set aside. Reliance in this regard was placed on State of Bihar v. D.G.H. Grant and another (AIR 1960 Patna 382) in order to support the plea that title did not pass to State as soon as Award under Section 11 of the Act was made and till possession was taken under Section 16 to the Act, title would remain with that of the original owners. F.K. Abbasi v. M.1. Malik (1985 CLC 1603) and Union Sugar Mills Co. v. U.P. Government and others (AIR 1958 Allahabad 526) were relied upon by the respondents.
11. Mr. Mansoor All Shah, Advocate/learned amicus curiae also made submissions and submitted that the Committee, constituted by this Court, had submitted a final report, which was on record and it supported the manner of disposal of municipal-waste through setting up a composting/landfill plant.
12. Pollution is of various kinds. There is land pollution, water pollution, air and light pollution, chemical pollution etc. No doubt, all sort of pollution is extremely injurious of life as well as environment and the earth itself. This is one of the major concerns and not of few individuals but of the society, as a whole and we are of the view that removal of causes of pollution was one of the major duties of the civil society and the Government. Historically, when urban areas were not very large and people lived in small communities, garbage or waste of all nature was dumped away from the dwellings. As most of the waste/garbage/refuse was organic in nature, it degraded quickly and was not injurious to public. When the cities grew, the traditional method of disposal of municipal waste/refuse continued to be employed due to various reasons, which are economic, lack of technical expertise and infrastructure etc. In the city of Lahore or areas 'surrounding it, as interim report submitted by the Committee, constituted by the Court reveals, about 4000 metric tones of municipal-waste, is disposed of by.The City Government, which is successor to the erstwhile Municipal Corporation Lahore. Traditional method of disposal of this waste was employed by M.C.L. As well as the City Government and Municipal-waste, garbage, etc. Was using an area of about 300 Kanals for dumping of city wastes near village Mehmood Booti, a locality, which was somewhat away from the major city centre and also at another place on the western side of the city. Subsequently, the Municipal Corporation, Lahore acquired 613 Kanals of land for disposal of the municipal-waste/refuse. It planned to set up an industrial plant for conversion of wastes into energy, which is one of the methods, being employed in several advanced countries, as well. Assistance was sought from World Bank, which for certain reasons, declined to provide financial assistance. Thereafter, the plan was shelved and City Government decided to set up a compost fertilizer plant at Mehmood Booti-landfill site, Lahore. This is one of the internationally recognized methods of safe disposal of city waste, which consists of organic as well as inorganic materials, some of which are bio-degradable and some of which are not degradable but had to be separated ' for recycling etc. When the petitioners challenged the acquisition proceedings, the main ground urged was that the World Bank had declined to provide assistance for setting up the industrial plant. The learned single Judge had not set aside the acquisition proceedings on that ground but had disposed of the petition with the following observations, which are being reproduced for the sake of reference:--- "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. Anujm Han 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 arrangements for the removal of dumping ground for solid waste from the area of Mehmaod Booti and to make alternative arrangements for dumping of solid waste far 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."
13. A perusal of above observations of the learned single Judge shows that the City Government has been directed to make alternative arrangements for dumping of solid waste away from the residential areas and the order is based on environmental considerations only. It has been urged before us that due to rapid expansion of urban areas, the number of sites, available for dumping/disposal of municipal wastage, was fast decreasing and the City Government had little choice in the matter, though, seven sites have been located for the purpose. We have also noted that the impugned order had not taken into account that alternative. Arrangements were being made by City Government for disposal of the municipal-waste. Due to haphazard and ill-planned expansion of urban areas, City Government has little choice to go to any otherplace but has come up with the viable proposition to dispose of the waste, which will not cause any environmental hazard to local population. In this regard, we might refer, to the recommendations of the Committee constituted by this Court, which are contained in the final report of the Committee andare being reproduced here: "(1) As per the EIA of NESPAK, Mahmood Booti is a suitable site for the environmentally safe disposal of solid waste provided there is a proper composting plant, recycling facility and a sanitary landfill.
Therefore, immediate action is required and recommended for the disposal of solid wastes at Mehrnood Booti with the following facilities:
(a) composting plant;
(b) recycling facility;
(c) proper sanitary landfill.
The Committee further recommends that the compost plant and recycling facility shall be housed in the area marked as cultivated land which falls within the Mehmood Booti (Acquired land) whereas the Operational Dumping Area needs to be covered with soil and subsequently turned into a park by planting greenery (reference Figure 2.2 of the EIA Report).
Contracts for the development and operations of Sanitary Landfill, Compost Plant and Recycling Facility shall be strictly subject to approval of E.I.A. By E.P.D. Under section 12 of P.E.P.A.
C.D.G. To ensure that the hospital waste generated in three towns namely Shalimar Town, Ravi Town, Aziz Bhatti Town shall not be disposed of untreated at Mehmood Booti and shall be sent for treatment, for the time being to designated sites at Shalimar Hospital and United Christian Hospital till better technologies are available and adopted by C.D.G. All the hospitals to adopt a waste management plan that places a high priority on waste segregation, minimization and safe disposal of infectious waste.
(5) As per E.I.A. Of NESPAK (page 7) the contamination of groundwater and soil is due to industrial and domestic waste water which should not have been allowed to come in contact with the site.
Therefore, WASA may be directed to submit a detailed report and an action plan for the treatment of the industrial effluent, domestic waste water and sewage pond adjacent to Mahmood Booti.
(6) Kahna Kacha has been identified by the E.I.A. Of NESPAK as the only suitable site out of three sites (Kahna Kacha, Bedian Road and Sheikhupura Road) proposed for disposal of municipal solid waste to meet the requirement of Southern Lahore. It is recommended that a complete E.I.A. Of the said site be conducted by C.D.G. And placed for approval before E.P.D. Through L.S.W.M.C.
(7) Additional Recommendations:---
(a) Mahmood Booti and Kahna Kacha do not have the capacity to handle the entire municipal- waste of Lahore. Therefore, further sites need to be identified and their E.I.A. To be conducted so that in' order to build appropriate capacity to handle municipal solid waste of city of Lahore toady and for the future. Lf the C.D.G. Is constrained financially to carry out this recommendation , the Provincial Government may be directed to support this important work.
That the development and operation of sanitary landfill, composting plant and recycling facility at Mahmood Booti should be monitored and supervised by E.P.D. In accordance with law. Periodical Reports of E.P.D. Shall be submitted to L.S.W.M.C. Till the Municipal Solid Waste Rules are promulgated.
(c) Other solid waste disposal systems may also be considered for adoption subject to E.I.A. By E.P.D. And monitored in accordance with law.
(d) Self-financing projects may be particularly encouraged within the above guidance.
(e) That the Committee be allowed to continue till the promulgation of the appropriate legislation (i.e. Rules) relating to Solid Waste and Hospital Waste Disposal.
(8) Outstanding work of the Committee:--- Strategy for the disposal of hospital waste in Lahore.
Drafting of legislation for Municipal Solid Waste and Hospital Waste Disposal.
14. After having gone through these recommendations, we have found that solution of the problem , proposed by the Committee, is reasonable and the City Government should be allowed to go ahead with setting up of the composting fertilizer plant, as suggested by the Committee and, as envisaged and planned by the City Government. The reason for allowing the writ petition, which weighed the learned single Judge, essentially, was removal of environmental hazard, which objective, of course, would be achieved by allowing the City Government to set up the plant at the site, which is already in possession of the City Government.
15. Learned counsel for the respondents (writ petitioners) urged before us that as the land owners had not received the compensation, title of the land still vested in the respondents and that the Award given by Land Acquisition Collector was set aside by Senior Civil Judge and as the City Government had not paid the enhanced. Amount of compensation to persons, whose land was acquired, the land should be restored to original owners by setting aside the acquisition proceedings and this appeal dismissed. It was also submitted that the City Government could very well establish compost fertilizer plant in the land, which was being used as a dumping ground but about 300 Kanals of land, which was not being used as dumping ground, should be restored to the respondents.
16. We have considered the arguments advanced on behalf of the respondents. The logic does not impress us. In this case, the Metropolitan Corporation, Lahore (predecessor of City Government, Lahore) through Office Memo. No. 517-G-MCL/1994, dated 04 12.1994, requested District Collector, Lahore for acquisition of land measuring 638 kanals, 11 marlas situated in Revenue Estate, Mehmood Booti, Tehsil Lahore Cantt. Lahore for construction of landfill site (conversion of waste to energy project) being financed by the World Bank. Notification under Section 4 of the Land Acquisition Act, 1894 was issued by the District Collector on 15.12.1994 and was published in the official Gazette on 08.02.1995. Subsequently, Notifications under Sections 17(4) and 6 of the Land Acquisition Act, 1894 were issued on 04.02.1996. Later, the Land Acquisition Collector, after hearing the objections of the parties, announced Award dated 22.07.1997, whereby an amount of Rs. 1,52,96,610/- was determined as the compensation for the land acquired. Out of the land acquired, 337 kanals had deep depressions, while about 300 kanals was plain, levelled land. The Tehsildar, Lahore Cantt. Was directed to deliver possession of acquired land to the M.C.L., immediately. Thereafter, on a Reference, made by land owners, the Senior Civil Judge, Lahore vide judgment dated 11.04.2001 enhanced the amount of compensation to Rs.
8,03,62,000/-. The MCL, admittedly, is in possession of the land and is using a major part of it as a dumping ground. We do not subscribe to the view that the City Government or its predecessor was not in possession of whole of land. If the Acquiring Agency was in possession of major portion of the land, we do not see any reason as to why rest of the land was not in possession of the City Government. The Award announced by Land Acquisition Collector was set aside only to the extent of compensation in terms that it was enhanced. The Metropolitan Corporation, Lahore filed R.F.A. On 24.12.2001 against the order passed by the Senior Civil Judge. The Institution Register does indicate that such an' appeal was filed. In that year the current record was damaged and, thereafter, the R.F.A. Was not posted for. Further proceedings. The City Government, obviously, can have record reconstructed and R.F.A. Heard, if so advised. Simply, because the original Award given by L.A.C.
Had been modified by the Senior Civil Judge as far as compensation to be awarded to land owners is concerned, that would not affect the acquisition proceedings, in any manner.
17. There is another aspect of the matter. The Municipal Corporation is using major portion of the land as a dumping ground for past many years and almost 3800 metric tones of garbage is being dumped at the site. Obviously, a compost fertilizer plant, which the City Government is planning to build for disposal of the waste, cannot be constructed at the site, which is being used as a dumping ground. Such a plant can only be constructed at the available land and if that land is restored to land owners, the menace will continue and people would continue to suffer. What has been proposed by the City Government is that a compost fertilizer plan shall be set up in the areas, which is not being used as a dumping ground end, thereafter, the dumping ground will be covered with layers of earth and after passage of some time when the garbage, after being covered will degrade and become part of the subsoil, then that area would be used as a park for the people of the area. Therefore, we considered the arguments, being advanced by the appellant and the submission made for restoration of the land to owners, as unjustified and also baneful to the public interest. We are of the view that the entire proceedings under the Land Acquisition Act, 1894 were taken in accordance with law and nothing unlawful was done by the appellant.
18. The land has been acquired for a genuine public purpose. The proposal of the City Government that it would set up a compost fertilizer plant is practical and feasible. It will remove the environmental hazard from the area and would benefit not only the locality but also a better part of population of the city of Lahore. The public purpose for which the land is acquired warranted that City Government should have taken such an exercise much earlier.
19. For the foregoing reasons, we allow the appeal and set aside the impugned order. There shall be no order as to costs.
20. Before parting with the order, we would also like to observe that City Government, Lahore should take immediate steps with the assistance of Provincial Government to acquire land at other places indicated in the report of the amicus curiae, so that waste disposal plants are established at other places by an early date, as well. Open land around Lahore is being devoured by haphazard construction and little land will be available for such projects, if undue delay occurs in acquisition of the land at the proposed sites. .