' ABDUR REHMAN FAROOQ PIRZADA, J.---By this single order we propose to dispose of the petitions viz. C.P. No,D-756 of 2008 and C.P. No,D-2168 of 2008, as both pertain to same subject matter.
2. The brief facts leading to C.P.No,D-756 of 2008, are that the petitioners are residents of Khayaban-e-Hafiz, D.H.A, Phase-V, along the Main Gizri Road, Karachi. The petitioners invested huge amounts to either purchase or construct their respective houses and are sub-lessees of Defence Housing Authority. The respondent No,3 Environmental Protection Counsel and Respondent No,4 Clifton Cantonment Board engaged respondent No,8 NESPAK (Private) Limited for the construction of the proposed overhead bridge upon Main Gizri Road, on account of traffic congestion on the road, since a major portion of Gizri had been commercialized. For the purpose of construction, the road was dug 20' (twenty feet) below the surface level. The petitioners were informed that the ramp was to be built from the Khayaban-e-Tanzeem junction rising to a height of 60' (sixty feet) in the form of 'flyover', which was in gross violation of the law which required that the public notice be issued by the authorities inviting objections, if any, from residents of the area. It was a mandatory requirement under section 12 of the Pakistan Environmental Protection Act, 1997, that no construction could commence without initial Environment Examination, or, where project was likely to cause an adverse environment impact, an Environment Impact Assessment. The two- third of Main Gizri Road had been commercialized, but for the portion of the road across the Total Petrol Station, where the petitioners were residing; the area across the Total Petrol Station had been protected by respondent No,5 Defence Housing Authority from any commercialization. The D.H.A had, at all material times assured the petitioners and other potential investors/buyers of houses and land in the area, that their area would be protected from nuisance, pollution and petty crime, which resulted as a natural corollary of commercialization, and that the residents of the area would be consulted, before any plans to change the general character of the said area. The commencement of construction of the flyover in Gizri was in manifest violation of the law, since no notices were issued by respondents Nos.4 and 5 to the residents of affected area, and the same was violative of the Karachi Building and Town Planning Regulations, as well as Articles 4, 9 and 14 of the Constitution of Pakistan. The petitioners as well as other residents of area were completely kept away from the entire process of planning and subsequent commencement of the construction work, which rendered the entire exercise of the respondents as illegal, void, ultra vires and unconstitutional. Despite repeated representations made by the residents of the area, including the petitioners, no remedial measures were taken by the respondents. The process of construction of an overhead bridge in a densely p9pulated area had serious repercussions upon the infrastructure and use of the land. Deep ground digging for erecting pillars and placing heavy slabs on those pillars, had potential disastrous and hazardous effects on the surroundings, and the same was likely to damage the houses of petitioners and other residents of the area. Moreover, the proposed flyover posed a high risk of accidents. The construction of flyover had severely devalued the price of land of petitioners, apart from infringing their rights of easements. The entire process of planning and commencement of construction was tainted with mala fides.
3. The petitioners in C.P.No,D-756 of 2008 prayed for the following reliefs:--
(i) To declare that action of respondents in respect of the construction of the overhead bridge is unlawful, illegal, ultra vires and unconstitutional, being in violation of the constitutional and legal rights of the petitioner.
(ii) To declare that the excavation/construction performed till today has been done illegally, without authority and in contravention of section 12 of Pakistan Environmental Act, 1997, and in violation of the Karachi Building and Town Planning Regulations, 2002, and in excess of their legal authority.
(ill) To declare that the action of the respondents in commencing construction is in breach of Articles 9 and 14 of the Constitution.
(iv) To declare that the commencement and or construction of the project by the respondents is in breach of Article 25 of the Constitution.
(v) To restrain the respondents, their employees, representatives, assignees, attorneys or any person acting on their behalf from doing further construction.
(vi) To grant costs of the petition.
(vii) Any other relief which this Honourable Court deem fit and proper in the circumstances.
4. Vide order dated 28-4-2008, pre-admission notice was issued to the respondents, and by an interim order the respondents were restrained from carrying on further construction of the overhead bridge on Main Gizri, beyond total Petrol Pump in Main Khayaban-e-Hafiz.
5. It appears that after the above mentioned interim order dated 28-4-2008 passed in C.P.No,D- 756 of 2008, the D.H.A. Had stopped further construction of the flyover road beyond Total Petrol Pump; later on, with the purpose of resolving the dispute the design of flyover was amended, by way of ending the flyover at Total Petrol Pump. However, the proposed place of termination of flyover at Total Petrol Pump caused grievance to the petitioners in C.P. No,D-2168 of 2008.
6. Consequently, the petitioners Syed Azharul Hassan Qadri and others filed C.P.No,D-2168 of 2008, stating therein that the petitioners were old residents of Gizri area, and they were engaged in various business, so also their children were getting education in various schools in the same area.
The petitioners had been initially informed that the flyover project was to be constructed from Sub- marine Chowrangi upto C-Street, Phase-V, D.H.A, Main Gizri Road, Karachi. However, later the construction work of flyover bridge was stopped at Total Petrol Station in front of the schools, as well as the residences and business places of the petitioners. On enquiry, the petitioners were informed that the original scheme of the flyover in question had been changed as the residents of Khayaban-e-Hafiz (Main Gizri Road), being in active collusion and connivance with the D.H.A. And other respondents, wanted to get their residential properties converted into commercial, for which they had sought approval from the respondent D.H.A., as a result of which the flyover would now end at Total petrol Station, Main Gizri Road, opposite to the schools of the petitioners' children and Mubarak Mosque, which had put into jeopardy the lives of the petitioners and their children. Despite various representations made to the respondents, besides personal meetings, no heed was paid by the respondents. It was stated by the said petitioners that the actions of respondents were discriminatory in nature, in order to favour some persons who were close to them; while changing the whole scheme of flyover, the area residents were not consulted nor any suggestions were invited from them, which was in derogation to their fundamental rights, as protected under the Constitution. The following prayer was made by the petitioners in C.P. No,D-2168 of 2008:-- "It is therefore prayed that this Honourable Court may be pleased to declare that the actions of the respondents ending the over head flyover on Main Gizri Road at Total Petrol Station are illegal, ultra virus, un-constitutional, void-ab-initio, and not warranted by law and in utter disregard and in violation of the constitutional rights granted to the petitioners and other residents of the area arid that the acts of the respondents tantamount to pure illegality, transgressing the limits of law, cost of the petition be also awarded to the petitioners."
7, The Defence Housing Authority, being respondent No,5 in C.P.No,D-756 of 2008 and respondent No,2 in C.P.No,D-2168 of 2008, filed their counter-affidavits, stating therein that the D.H.A., at the first instance, had planned to establish a flyover to allow smooth flow of traffic from. Submarine Chowk to Khayaban-e-Hafiz without any obstruction. The same proposal was made in view of extreme congestion at the Gizri Commercial Area. The flyover bridge was being constructed to ease the said congestion, so that the people who wanted to shop, could use the road at grade, whereas the fast moving traffic could use the said bridge. The D.H.A. Had decided to spend huge amount of money for its residents and shopkeepers, who would be equally facilitated with the bridge, as sufficient space would be created at grade for parking also. Prior to implementing the project, which might have had potential impact on the environment, D.H.A. Appointed NESPAK to carry out an Initial Environmental Examination (IEE) as a first stage to identify the pre-feasibility for Environmental Impact Assessm ent (EIA) viz. Second stage. The IEE for the proposed flyover was carried out in accordance with relevant requirement. The objectives of Study were to establish baseline environmental conditions, identifying anticipated potential impact and proposed mitigation measures to be adopted during construction and operation of the project. The study concluded that during construction of infrastructure, the dust and noise levels within the project site would need to be controlled by providing proper mitigation measures. No significant negative impact was foreseen on flora and fauna in the project site. Due to construction of flyover the economic activities would be enhanced. After the assessment of proposed project, it was concluded that the same would not result in any significant negative impact on the community or the environment. It was ensured that the project would comply with all the regulatory requirements, guidelines, safety standards, and that the recommended environmental mitigation measures would be followed. After evaluation of IEE, no significant negative environmental impact was foreseen due to the construction of flyover, hence it was concluded that Environmental Impact Assessm ent (EIA) Study (second stage) was not required. The National Engineering Services Pakistan (Pvt.) Limited (NESPAK) was appointed as the Design consultant for the construction of flyover starting from Submarin Chowk parallel to Ch. Khaliq-uz-Zaman Road. NESPAK submitted IEE to D.H.A., in December, 2006. It was further stated that the flyover was a project to facilitate the public and to provide safety to general public. But the petitioners had started objecting to construction of flyover with the sole object to pressurize the D.H.A. For commercialization of their residential plots, as in such an eventuality the value of their respective plots would be multiplied.
The petition was filed with mala fide intention and ulterior motives on baseless grounds. However, since the petitioners had succeeded in getting ad-interim injunction from this Court, thereby restraining the respondents from carrying on further construction of the said flyover bridge beyond Total Petrol Pump, as such the construction work was stopped beyond Total Petrol Pump towards Saudi Consulate. Later on, meetings between petitioners and D.H.A. Officers were held, and on the demand of petitioners, the design of flyover was amended, by way of ending it at Total Petrol Pump i,e, before the houses of the petitioners C.P.No,D-756 of 2008.
8. Respondent National Engineering Services Pakistan (Private) Limited (NESPAK) filed their reply to the petition in C.P.No,D-756 of 2008, stating that the said respondent was a company providing engineering and allied consultancy services, but it was not a construction company as alleged by petitioners. It was stated that the NESPAK had carried out the IEE in accordance with the provisions of the Pakistan Environmental Protection Act, 1997. The flyover project did not fall in any category identified in either Schedule I or in Schedule II of the Regulations (Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000. As stated, IEE Study was carried out and such report was submitted by NESPAK. However, neither an IEE nor an EIA was required in respect of the project that consisted of the construction of a flyover on an existing road. The IEE conducted by NESPAK precisely followed the same guidelines, standards and requirements as set out in the Act for conduct of such examination. Subsequently, in view of the interim order passed by this Court, the Defence Housing Authority had instructed the respondent NESPAK to revise the design of the flyover to make a provision that it would end near Total Petrol Station situated on Khayaban-e- Hafiz.
9. The respondent City District Government Karachi had filed a statement, to state that the project of flyover on Main Gizri Road, the subject matter of present petitions, did not belong to CDGK.
10. The counter-affidavit on behalf of respondent Karachi Building Control Authority was also filed, wherein it was stated that the proposed flyover was a public project, which was being constructed to facilitate the public traffic and provide safety to the general public. However, the project was being constructed in the thickly populated and congested traffic area of Gizri, which was situated within the limits of Clifton Cantonment Board, Karachi, and that the KBCA had no jurisdiction over the area situated in the cantonments of the city.
11. Learned counsel for petitioners in both the petitions submitted that the proposed flyover was being constructed in violation of the express provisions of the Environmental Protection Act, 1997, and the Karachi Building and Town Planning Regulations, 2002. The project was manifestly hazardous and dangerous to public lives and properties, and was violative of the Articles 4 and 5 of the Constitution of Pakistan. The project was further in contravention of Articles 9 and 14 of the Constitution, which provide protection to every citizen from a polluted, congested and undignified environment. The said project also sought to discriminate against the petitioners, who resided in the residential/non-commercial area of Gizri, thereby causing gross devaluation of their properties, without any commensurate compensation, thus causing violation of Article 25 of the Constitution.
Moreover, the construction of an overhead bridge over a residential area would infringe the easement rights of the petitioners. The entire process of planning and commencement of construction was based on mala fides, and the same had been deliberately carried out in secrecy without inviting any objections from the public.
12. Learned counsel for petitioners further contended that the construction work of flyover had been commenced, without abiding by the mandatory provisions of law, especially sections 12 and 19 of the Pakistan Environmental Protection Act, 1997, (PEPA). It was clearly provided by section 12 of the Act, that where the project was likely to cause an adverse environmental effect, then EIA was to be filed by the proponent of a project with Government Agency and approval from such Government Agency was to be obtained, prior to operation in question. Since the proposed flyover bridge was bound to have adverse environmental effects, the EIA had to be necessarily submitted; but the D.H.A. Had simply submitted the IEE, and then did not proceed ahead to file an EIA, although the same was required by law. Moreover, every review of the EIA was to be carried out with public participation, which was lacking in present case. The D.H.A., by way of violating the provisions of law, had committed the offences and were also liable to action to be taken against them as envisaged under sections 17 and 19 of the Act. Learned counsel for petitioners stressed the need for stopping the construction work of the flyover in question, and that the same could only be undertaken by D.H.A, after fulfilling the requirements of section 12 of PEPA.
13. Learned counsel for D.H.A and NESPAK seriously contested the case, while rebutting the above contentions advanced on behalf of petitioners. Learned counsel submitted that the requirements of section 12 of PEPA were complied with, while commencing the construction work of flyover. The present case was not covered either by schedule I or schedule II of the Regulations, as such there was no legal binding to file the IEE or EIA with the Federal Agency, and obtain their approval, prior to commencement of construction work. Nevertheless, the Initial Environmental Examination (IEE)
Study was duly carried out through NESPAK, and such IEE report was submitted in December, 2006.
Subsequently, another IEE Study was prepared by Messrs Global Environmental Management Services (Pvt.) Limited, and filed with the Environmental Protection Agency, Government of Sindh, Karachi, in May, 2008. Both the IEE reports had stated that the main objectives of the said IEE reports were to establish the baseline environmental conditions and identify the potential impacts along with the formulation of suitable mitigation measures for an environment friendly for execution and operation of the project. The IEE had concluded that all impacts were insignificant in quantitative and qualitative terms and were of short term duration. All the conditions in the IEE were incorporated in the project design. On completion the project would have positive environmental< impacts on the area.
14. It was further contended by learned counsel for D.H.A. That the flyover project was of utmost importance for the welfare of public at large, and the same project would ease the traffic congestion on the Main Gizri Road, and would ensure smooth traffic as well as better shopping facilities in the area. Huge expenses were incurred on the same project, and the same could not be stopped according to whims of some motivated persons.
15. Learned counsel appearing for remaining respondents submitted that the project was basically initiated by the Defence Housing Authority, as such they did not have anything more to supplement the above arguments.
16. We carefully heard the learned counsel for respective parties, and also perused the material available on record.
17. It may be pertinent to refer to the provision of section 12 of the Act No,XXXIV of 1997 the Pakistan Environmental Protection Act, 1997, which is reproduced as under:-- "12. Initial environmental examination and environmental impact assessment.--(1) No proponent of a project shall commence construction or operation unless he has filed with the Government Agency designated by Federal Environmental Protection Agency or Provincial Environmental Protection Agencies, as the case may be, or, where the project is likely to cause an adverse environmental effects an environmental impact assessment, and has obtained from the Government Agency approval in respect thereof.
(2) The Government Agency shall subject to standards fixed by the Federal Environmental Protection Agency--
(a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessm ent by the proponent; or
(b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, require that the environmental impact assessment be re- submitted after such modifications as may be stipulated or reject the project as being contrary to environmental objectives.
(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director General of the Federal Agency is of the opinion that the request for confidentiality is not well- founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or
(ii) international relations, national security or maintenance of law and order, except with the consent of the Federal Government; or
(iii) matters covered by legal professional privilege.
(4) The Government Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations.
(5) Subject to subsection (4) the appropriate Government may in a particular case extend the aforementioned period, of four months if the nature of the project 'so warrants.
(6) The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.
(7) The Government Agency shall maintain separate registers for initial environmental examination and environmental impact assessment projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3)".
18. The terms 'environment', 'environmental impact assessment', 'initial environmental examination' and 'project', have been defined in section 2(x), (xi), (xxiv) and (xxxv) of the Act, as herein under:-- "(x) "environment" means--
(a) air, water and land;
(b) all layers of the atmosphere;
(c) all organic and inorganic matter and living organisms;
(d) the ecosystem and ecological relationships;
(e) buildings, structures, roads, facilities and works;
(1) all social and economic conditions affecting community life; and
(g) the inter-relationships between any of the factors specified in sub clauses (a) to (f);
(ix) "environmental impact assessm ent" means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed;
(xxiv) "initial environmental examination" means a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an adverse environmental effect for requiring preparation of an environmental impact assessment;
(xxxv) "project" means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes--
(a) construction or use of buildings or other works;
(b) construction or use of roads or other transport systems;
(c) construction or operation of factories or other installations;
(d) mineral prospecting, mining, quarrying, stone-crushing, drilling and the like;
(e) any change of land use or water use; and
(I) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport system, factories or other installations."
19. It is clear from the bare reading of section 12(1) of PEPA, 1997 that where the project is likely to cause an adverse environmental effect, then the EIA has to be submitted by the proponent of a project and approval in respect thereof has to be obtained from the Government Agency, prior to the commencement of construction/operation of such project. The relevant provisions providing guidelines to determine as to which projects would require an IEE and EIA, are provided in Articles 3, 4 and 5 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, which are reproduced as under:-- "(3) Project requiring an IEE ' A proponent of a project falling in any category listed in schedule I shall file an IEE with the Federal Agency, and the provisions of section 12 shall apply to such project.
(4) Project requiring an EIA ' A proponent of a project falling in any category listed in Schedule II shall file an EIA with the Federal Agency, and the provisions of section 12 shall apply to such project.
(5) Projects not requiring an IEE or EIA
(1) A proponent of a project not falling in any category listed in Schedules I and II shall not be required to file an IEE or EIA: Provided that the proponent shall file--
(a) an EIA, if the project is likely to cause an adverse environmental effect;
(b) for projects not listed in Schedules I and II in respect of which the Federal Agency has issued guidelines for construction and operation, an application for approval accompanied by an undertaking and an affidavit that the aforesaid guidelines shall be fully complied with.
(2) Notwithstanding anything contained in sub-regulation (1), the Federal Agency may direct the proponent of a project, whether or not listed in Schedule I or II, to =file an IEE or EIA, for reasons to be recorded in such direction:
(3) The provisions of section 12 shall apply to a project in respect of which an IEE or EIA is filed under sub-regulation 1 or 2."
20. As provided in Article 5(1) of the above Regulations, a proponent of the project not falling in any category listed in Schedules I and II shall not be required to file an IEE or EIA. For the sake of convenience Schedules I and II are reproduced as under:-- "Schedule I (See Regulation 3)
' List of projects requiring an IEE A. Agriculture, Livestock and Fisheries
(1) Poultry, livestock, stud and fish farms with total cost more than Rs,10 million.
(2) Projects involving repacking, " formulation or warehousing of agricultural products
(B) Energy
(1) Hydroelectric power generation less than 50 MW
(2) Thermal power generation less than 200 KW
(3) Transmission lines less than 11 KV, and large distribution projects
(4) Oil and gas transmission system
(5) Oil and gas extraction projects including exploration, production, gathering systems, separation and storage
(6) Waste-to-energy generation projects C. Manufacturing and processing
(1) Ceramics and glass units with total cost more than Rs,50 million
(2) Food processing industries including sugar mills, beverages, milk and dairy products, with total cost less than Rs,100 million
(3) Man-made fibers and resin projects with total cost less than Rs,100 million
(4) Manufacturing of apparel, including dyeing and printing, with total cost more than Rs,25 million
(5) Wood products with total cost more than Rs,25 million
(D) Mining and mineral processing
(1) Commercial extraction of sand, gravel, limestone, clay, sulphur and other minerals not included in Schedule II with total cost less than Rs,100 million
(2) Crushing, grinding and separation processes
(3) Smelting plants with total cost less than Rs,50 million
(E) Transport
(1) Federal or Provincial highways (except maintenance, rebuilding or reconstruction of existing metalled roads) with total cost less than Rs,50 million
(2) Ports and harbour development for ships less than 500 gross tons
(F) Water management, dams, irrigation and flood protection.
(1) Dams and reservoirs with storage volume less than 50 million cubic meters of surface area less than 8 square kilometers
(2) Irrigation and drainage projects serving less than 15,000 hectares
(3) Small-scale irrigation systems with total cost less than Rs,50 million
(G) Water supply and treatment ' Water supply schemes and treatment plants with total cost less than Rs,25 million
(H) Waste disposal ' Waste disposal facility for domestic or industrial wastes, with annual capacity less than 10,000 cubic meters
(I) Urban development and tourism
(1) Housing scheme
(2) Public facilities with significant off-site impacts (e.g. Hospital wastes)
(3) Urban development projects
(J) Other projects ' Any other project for which filing of an IEE is required by the Federal Agency under sub-regulation
(2) of Regulation 5 ' Schedule II (See Regulation 4)
' List of projects requiring an EIA
(A) Energy
(1) Hydroelectric power generation over 50 MW
(2) Thermal power generation over 200 MW
(3) Transmission lines (11 KV and above) and grid stations
(4) Nuclear Power Plants
(5) Petroleum refineries
(B) Manufacturing and processing:--
(1) Cement plants
(2) Chemical projects
(3) Fertilizer plants
(4) Food processing industries including sugar mills, beverages, milk and dairy products, with total cost of Rs,100 million and above
(5) Industrial estates (including export processing zones)
(6) Man-made fibers and resin projects with total cost of Rs,100 M and above
(7) Pesticides (manufacture or formulation)
(8) Petrochemicals complex
(9) Synthetic resins, plastics and man-made fibers, paper and paperboard, paper pulping, plastic products, textiles (except apparel), printing and publishing, paints and dyes, oils and fats and vegetable ghee projects, with total cost more than Rs,10 million
(10) Tanning and leather finishing projects
(C) Mining and mineral processing:--
(1) Mining and processing of coal, gold, copper, suphur and precious stones
(2) Mining and processing of major non-ferrous metals, iron and steel rolling
(3) Smelting plants with total cost of Rs,50 million and above D. Transport:
(1) Airports
(2) Federal or Provincial highways or major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cast of Rs,50 million and above.
(3) Ports and harbour development for ships of 500 gross tons and above
(4) Railway works
(E) Water management, dams, irrigation and flood protection:
(1) Dams and reservoirs with storage volume of 50 million cubic meters and above or surface area of 8 square kilometers and above
(2) Irrigation and drainage projects serving 15,000 hectares and above
(F) Water supply and treatment: ' Water supply schemes and treatment plants with total cost of Rs,25 million and above
(G) Waste disposal
(1) Waste disposal and/or storage of hazardous or toxic wastes (including landfill sites, incineration of hospital toxic waste)
(2) Waste disposal facilities for domestic or industrial wastes, with annual capacity more than 10,000 cubic meters
(H) Urban development and tourism:
(1) Land use studies and urban plans (large cities)
(2) Large-scale tourism development projects with total cost more than Rs,50 million
(I) Environmentally Sensitive Areas ' All projects situated in environmentally sensitive areas
(J) Other projects (1)- Any other project for which filing of an EIA is required by the Federal Agency under sub- regulation (2) of Regulation 5.
(2) Any other project likely to cause an adverse environmental effect."
21. Serial No,D-2 of Schedule II may be very relevant for the purpose of determining if the proposed project would require the submission of EIA. The same includes major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cost of Rs,50 million and above.
22. Learned counsel for D.H.A. Laid much emphasis on the interpretation of the said provision with regard to major roads, and argued that the construction of a flyover falls within the category of 'reconstruction of existing roads, as such it is covered by the exception clause. However, we do not feel persuaded to agree with the said contention of learned counsel. The word "reconstruction" has been defined in Black's Law Dictionary, Seventh Edition, as under:-- "Reconstruction.--1. The act or process of tie-building, recreating, or reorganizing some thing (an expert in accident reconstruction).
2. Patents. A rebuilding of a broken, worn-out, or otherwise inoperative patented article in such a way that a new article is created, thus resulting in an infringement (the replacement of the machine's essential parts was an infringing reconstruction rather than a permissible repair).
3. (Cop.) The process by which the Southern States that had seceded during the Civil War were readmitted into the Union during the years following the war (i,e,, from 1865 to 1877) the 13th, 14th, and 15th amendments to the U.S. Constitution are a lasting legacy of reconstruction."
Obviously "reconstruction" is distinct and distinguishable from the word "construction". Looking at the nature and dimensions of flyover project, we have no doubt in our minds that it is altogether construction of a new road, and does have nothing to do with the reconstruction, maintenance or rebuilding of any existing road. Hence the project clearly falls within the ambit of schedule II of the regulations, which would necessitate the submission of EIA.
23. The case of Sumaira Awan, Secretary General v. Government of Pakistan and 10 others reported in 2008 CLD 1185 may be conveniently referred to, wherein the Environmental Tribunal Punjab, in a matter pertaining to construction of an underpass observed as under:-- "In simple words we hold that reconstruction means to restore the existing road in its original shape, type and in dimensions without touching any addition or subtraction. Even otherwise to our view, adding capacity to the roads system is always a new construction, what bears, by its nature, impacts to natural and social environment. It is differentiable from, "maintenance" or "rebuilding" or even "improvements", what generally refer to superficial changes such as upgrades and resurfacing."
24. As is clear from the provisions of PEPA, 1997, the purpose of the Act is to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and permission of sustainable development. Undoubtedly, the major projects, although undertaken in the larger interest of general public, have certain environmental impacts, but the same have to be governed by the prevalent provisions of law. It seems that the D.H.A. Remained content while only submitting the IEE, on the pretext that the project in question was not governed by Schedule II of the regulations. However, we are clear in our minds that the proposed project is certainly covered by Schedule II of the Regulations, as such the D.H.A. Was required under the law to submit the Environmental Impact Assessm ent.
25. It may be helpful to make reference to the case of Shehri C.B.E. v. Government of Pakistan and others, PLD 2007 Kar.293, wherein it was laid down as under:-- "From the foregoing discussion, it has now become clear that the project being composed of a desalination plant also, which plant clearly falls within the classification of a treatment plant, mentioned at Sr. F of Schedule II, is amenable to the various requirements as provided for under section 12 of PEPA, 1997 and regulations 3 and 10 of IEE and EIA Regulations, the project ought to have been evaluated on the basis of EIA and after hearing the petitioner who have submitted their comments, however, violating the mandate of law respondent No,4, on the requests, of respondent No,7 and on the advise/instructions of respondent No,2, treated the project as one falling under schedule I and approved the same. No justification or reason for such arbitrary and whimsical treatment are mentioned in the impugned order or the impugned advise. The respondent No,4 did not even inform the petitioner as to why their comments were not taken into consideration and why it was not felt necessary to hear them.
' Environmental Impact Assessm ent as described in PEPA, 1997, involves an environmental study, comprising collection of data, prediction of qualitative and quantitative impact, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, framing of recommendations, and such other components as may be prescribed. In terms of Regulation 11, in evaluating a project, the agency is required to consult such committee of experts as may be constituted for the purpose and may also solicit views of the sectoral Advisory Committee, and the Director General may constitute a committee to inspect the site of the project and submit its report on such matters as may be specified and that the review shall be based on quantitative and qualitative assessm ent of the documents and the data furnished by the proponent, comments from the public and Government Agencies received under regulation 10, and views of the committees. In terms of regulation 9, the agency may also require the proponent of the project to submit such additional information as may be specified or may return the IEE or EIA to the proponent for revision, clearly listing the points requiring further study and discussion. It can thus be seen that the assessm ent involves an in-depth examination and incisive inquiry and cannot be dealt in a perfunctory, arbitrary and whimsical manner.
' Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus its mandate should be honoured in its true letter and spirit.
' We are also fully conscious of the fact that the decision on the various allegations made and apprehension expressed by the petitioner regarding the environmental fall out of the project and refuted by respondents Nos.5 and 7, would require an evaluation which may involve questions pertaining to the design, planning, equipments and various other technical aspect of the project, the processes involved, and many other such issues, which exercise can only be undertaken by respondent No,4.
' In view of the foregoing the impugned decision is set aside, the matter is remanded back to respondent No,4, for evaluation of the project on the basis of the EIA submitted by respondent No,7, after detailed scrutiny of the report and after hearing the petitioners, the respondent No,4, shall decide the matter, preferably within 30 days from the date of receiving a copy of this order. And the petitioners shall fully co-operate with the respondent No,4, in its endeavour for an early disposal.
However, keeping in view the fact that the project is being built to a sizeable population, the basic amenities of life and is in the advance stage of its completion, involving about 400 workers. We would allow the respondent No,7 to continue the construction and erection of the project in consonance with their undertaking recorded in the earlier part of this judgment and strictly in compliance with the conditions imposed by respondent No,4 and at their risk as to cost and consequence and subject to the decision/orders that may be passed by respondent No,4 but with a caution that respondent No,4 shall decide the matter strictly on merits, in' conformity with law, and without being influenced by this interim arrangement. The project shall not be put into operation till the decision by respondent No,4."
26. In the same cited authority, it was further observed as under:-- "Before parting, we find it necessary to direct respondent No,1 to establish Environmental Tribunals as required in terms of section 12 of PEPA, 1997, at the earliest and preferably within two months from today, so that, the issues such as raised in the present petition may be decided expeditiously."
27. In the light of above authority of law, besides determination of the project, being governed by Schedule II of the Regulations, to require EIA, we come to another aspect of the case viz. The Environmental Tribunals as required in terms of sections 12, 17, 20, 21 and 22 of the PEPA, 1997. The said provisions provide the entire frame-work which governs the construction of any projects having environmental impacts, and the legal consequences following any violation of the given provisions in the Act. The Honourable D.B. In above cited case had given directions to the respondent Government of Pakistan to establish Environmental Tribunals as required in the terms of the Act at the earliest. However, it has been stated before us that at present Environmental Tribunals are properly functioning under the law. It may suffice to say that, in case of any violations the law may take its own course and the proper proceedings may be initiated by any aggrieved person before the Environmental Magistrate or Environmental Tribunal, if necessary, under the law.
28. We have taken into consideration the fact that undoubtedly the proposed project has been initiated in the interest of general public. The population and traffic congestion are rapidly increasing every day. The alternate roads/flyovers are necessarily required; in order to ease the congestion and heavy. Traffic in densely populated areas of the city. Admittedly, the site of project is situated in a thickly populated area, facing congestion due to shops and heavy traffic, as such the need for alternate flyover road cannot be ignored. Besides, huge expenses have been incurred by the D.H.A., on a project which H is for the ultimate benefit of the people. As such we are not inclined to order for stopping the construction process of the said project. At the same time we will like to direct the Defence Housing Authority to undertake the submission of EIA after properly inviting objections, if any, from the residents of said area, strictly in accordance with the provisions of section 12 of the Act, as well as the relevant provisions of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000.
29. Learned counsel for petitioners had referred to. Articles 4, 5, 9, 14 and 25 of the Constitution of Pakistan, while stating that their rights as envisaged under the said Articles, were infringed due to commencement of the construction of the flyover. There is no cavil to the proposition that the rights of I individual under the said provisions of the Constitution are protected. However, at the same time we cannot loose sight of the general welfare and larger interest of the people at large, in the wake of the growing needs of the population, which culminate in the demand for greater number of roads, flyovers, under passes, etc.
30. So far as the contention of petitioners in C.P.No,D-2168 of 2008 to the effect that the scheme of flyover has been amended by way of ending the same in front of Total Petrol Pump, is concerned, it may be observed that the Government is under obligation to cater for genuine requirements of the people, besides complying with the provisions of law. Suffice it to say, that if the need may arise, the Government may acquire any land under the provisions of the Land Acquisition Act, 1894, if the same acquisition of land is in the interests of general public.
31. In view of the foregoing discussion, these petitions are disposed of in the terms that the construction work of the proposed flyover, being a project of public importance and meant for welfare of people shall be continued, however the D.H.A. Shall be required to fulfil all the legal requirements as envisaged in section 12 of the Pakistan Environmental Protection Act, 1977, as well as the relevant provisions of the Pakistan Environmental Protection Agency (Review of IEE and EIA)
Regulations, 2000, inclusive of the submission of Environmental Impact Assessment before Government Agency, and in case of any negative findings in the same EIA, the D.H.A. Shall be liable to any legal consequences, besides being liable to make suitable compensation to any affected persons, strictly in accordance with the relevant provisions of law.