' IJAZ AHMED CHAUDHRY, C.J.---The petitioners, being registered societies and associations, by virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have sought that sanction of Kalma Chowk Fly Over may be declared illegal and respondents Nos.1 and 2 be directed to stop construction work at the site in addition to having an Environment Impact Assessm ent of the Project and to submit the same to the Pakistan Environment Protection Agency for its approval.
2. Shorn of unnecessary details the Chief Minister, Punjab held ground-breaking ceremony of Kalma Chowk Fly Over Project on 4-3-2011. After allocation of contract the contractor has cut down number of trees to create alternate route to divert the traffic. Further, National Engineering Services Pakistan Limited (NESPAK) has been assigned the role to carry out the design of the project and National Logistic Cell (NLC) has been chosen to complete the project. Aggrieved by the sanction of the project and engagement of NESPAK and NLC the petitioners have filed the present petition.
3. Learned counsel for the petitioners contends that the project has been sanctioned in violation of Procurement Rules, Delegation of Financial Powers Rules 2006 and standard form of contract agreement; that the project has been sanctioned without taking into consideration the principles laid down for the healthy atmosphere for the public; that the project has been sanctioned in violation of the provisions of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973; that the project in question has been approved in violation of the clear-cut provisions of Pakistan Environment Protection Agency (PEPA) and IEE/EIA Regulations; that due to project, number of plants/trees are going to be eliminated and as a result large quantity of dust and other injurious material would become part and parcel of the life saving gases; that due to construction work over the project, immeasurable noise would cause number of problems towards the health of the inhabitants; that prior to sanctioning of the project, the opinion of the public-at-large has not been called for; that the sanction of the project is unreasonable and arbitrary exercise of power; that the project has been approved without any justification; that while sanctioning the project respondents have not acted responsibly. In addition to his oral submissions, learned counsel has also relied upon the cases reported as "Shehla Zia v. WAPDA" (PLD 1994 SC 693), "Sumera Awam v.
Govt. Of Pakistan" (2008 CLD 1185), "Dr. Muhammad Sadiq Saleem v. Secretary Health" (2008 PLC
(CS) 25 Lahore), "Maher Ali v. Pakistan" (PLD 1980 Karachi 609), "Standard Chartered Bank v. Karachi Electricity Supply Company" (PLD 2001 Karachi 344), "Nagina Silk Mills, Lyallpur v. The Income Tax Office" (PLD 1963 Supreme Court 322), "Murree Brewery Co. Ltd. v. Pakistan" (PLD 1972 Supreme Court 279), "Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty" (PLD 1961 Supreme Court 119), "Adamjee Insurance Company Limited v. Pakistan" (1993 SCMR 1798, "Gatron industries Ltd. v. Government of Pakistan" (1999 SCMR 1072) and "Khalid Mahmood v. Collector of Customs"
4. After hearing the learned counsel for the petitioners and going through the documents appended with this petition, I have observed that the petitioners have sought interference by this court on the points that Kalma Chowk Flyover Project has been sanctioned in violation of certain rules and regulations and the construction work thereon would not only cause damage to the plants and trees but would also be hazardous for the masses. The petitioners have filed this petition on the analogy of public interest litigation. On the other hand, according to respondent No,1, as is evident from summary dated 1-3-2011, put up by Secretary Govt. Of the Punjab, Communication and Works Department for approval of the Chief Minister/respondent No 1, the said project has been planned to minimize the problems of the public at large being faced by them regarding undue traffic blockage at the said point. Being member of the society, I am also aware about the traffic problems being faced by the inhabitants of the city in particular and the outsiders in general. Besides other options, the construction of Flyover and Underpasses at certain points was being pondered over by the persons/authorities responsible for the smooth sailing of the traffic. After considering all the limbs of the project whether negative or positive, the Chief Minister Punjab held groundbreaking ceremony on 4-3-2011. Now the question is when a project has been launched for the welfare of the public can it be halted on the basis that some of its aspects would cause certain damage to the public at large. There is no doubt that for construction of such a huge Flyover, cutting of trees on both sides and demolishing of certain infrastructure already available on the site is sine qua non. However, it is equally true that while undertaking said exercise the unhealthy impact of such work can be minimized by adopting precautionary and safety measures.
Not only in this country but all over the world at the time of construction of a road etc. Certain discomforts are to be faced by the inhabitants. Further, there is no denying the fact that by cutting of the trees and plants, the beauty of the site is bound to go dim, however, the same can be reinvigorated by planting new trees etc. After completion of the project and the present view of recently completed Shalamar Flyover and Underpass can be quoted as precedent. For better future, one has to lose something in the present. If the public at large would suffer some inconvenience during completion of the said project, the same would also be a blessing for them in future as they would get rid of undue traffic blockage and wastage of precious time while standing on traffic signals. An Even otherwise, the ground taken by the petitioners in this petition pertains to factual controversy which cannot be resolved in these proceedings rather the same can be competently dealt with after recording of evidence of both the parties in appropriate proceedings.
Reliance in this regard is placed on the case reported as "Secretary to the Government of Punjab v.
Ghulam Nabi and 3 others" (PLD 2001 Supreme Court 415) wherein the Hon'ble Supreme Court while referring to a number of judgments held that when forums available in the hierarchy under the law, the High Court could not go into the disputed questions of fact in exercise of its constitutional jurisdiction. In the case in hand, the petitioners themselves admitted that they have alternate remedy under the Pakistan Environmental Protection Agency, however, they have not resorted to such remedy on the excuse that the same is inadequate and inefficacious. In this regard, suffice it to observe that the remedy available to an aggrieved person cannot be bypassed on the ground that the same is not adequate or efficacious one. Even otherwise, this court, while equipped with the power to redress the grievance of an aggrieved person, has simultaneous jurisdiction to refuse the relief to a party where granting whereof would tantamount to injustice. To me, any order passed on this petition as prayed for by the petitioners, would be unjust to the peoples who are facing the rigors of traffic blockage etc. Reliance in this regard is again placed on PLD 2001 Supreme Court 415 supra. The respondent No,1 being the head of the province has the responsibility to provide relief to the inhabitants of the province being faced by them in their routine life. Since the project has been approved to eliminate the difficulties of the masses qua the traffic problems, the petitioners cannot be allowed to have the same declared illegal from this court rather in case of any grievance, they should have approached the concerned quarter. The case-law cited by the learned counsel for the petitioner is of no help as there is no cavil to the preposition that this court has ample jurisdiction to adjudicate upon the matters involving public interest litigation but the same should be exercised with due care and caution. In the case in hand, the plan has been devised to provide a sigh of relief to the public at large in connection with transportation from one place to the other, therefore, I do not consider it a fit case to exercise jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
5. Earlier, in the year 1998 similar question came before this court when different persons filed writ petitions raising certain questions qua the construction of Gulberg Flyover. This court while deciding the said petitions held that the project in question being actuated by public purpose could not be thwarted. The said case has been reported as "Mian Muhammad Jahangir and others v. Government of Punjab and others" (PLJ 2000 Lahore 218).
6. To sum up, I am of the view that the petitioners have failed to make out a ground for exercise of jurisdiction by this court on the ground of public interest litigation rather the same appears to be a device to delay the construction on the site which cannot be allowed in any manner whatsoever.
Resultantly, this petition being devoid of any force is hereby dismissed in limine.