1. ' SAJJAD ALI SHAH, J.---In the first set of petitions, the petitioner Salim Godil, through Constitutional Petition No,D-1272 of 2010 has impugned order dated 26-4-2010 passed by the Executive District Officer, Master Planning, Group of Offices, withdrawing commercialization of Plot No,F-96, Block-7, Khayaban-e-Roomi, Clifton, Karachi admeasuring 2133.33 square yards (hereinafter referred to as "the subject plot No,1") on the ground that it being arbitrary, illegal, mala fide, without jurisdiction and in violation of various Articles of the Constitution of Islamic Republic of Pakistan, whereas petitioner in Constitutional Petition No,D-1970 of 2010 most of them are respondents in Constitutional Petition No,D-1272 of 2010 have also impugned the same order on the ground that though the Executive District Officer had rightly withdrawn commercialization of the subject plot but had rejected various other objections of the petitioner such as no adherence to environmental law, inadequacy of utilities and infrastructure, unlawful commercialization etc., on the basis whereof commercialization was called in question.
2. ' Whereas in second set of petitions, initially Ardeshir Cowasjee and another filed Constitutional Petition No,D-2295 of 2009 against Messrs Zubair Ahmed and Muhammad Ali (petitioners in Constitutional Petition No,D-3410 of 2010) challenging variations of Town Planning conditions in respect of approved plan issued by respondent No,4 for constructing a high rise commercial cum residential building containing shops and flats on Plot No,F-94/1. KDA Scheme No,5, admeasuring 1066.66 square yards (hereinafter referred to as "subject property No,II). The petition was disposed of through a consent order with the directions to the respondents to obtain N.O.C. From Environmental Protection Agency, the respondent in consequent to such directions filed Initial Environmental Examination (hereinafter referred to as "IEE") before the Environmental Protection Agency who vide letter dated 1-10-2010 directed the respondents to file Environmental Impact Assessm ent (hereinafter referred to as "EIA"). The said letter has been impugned by the respondents in Constitutional Petition No,D-3410 of 2010.
3. ' Since the facts as well as legal point involved in all these petitions being more or less common therefore, we intend to decide all these petitions through this common judgment.
4. FACTS OF CONSTITUTIONAL PETITIONS NOS.D-1272 AND 1970 OF 2010 Briefly, Khayaban-e-Romi on which subject Plot No,I is situated was declared "Commercial Road" pursuant to Resolution No,659 passed by the City Council on 27-6-2005. The petitioner purchased the subject Plot No,1 from Saudi Pak Commercial Bank Limited and after payment of its sale price Pre-Lease Transfer Order was issued by the City District Government Karachi (CDGK) in favour of the petitioner Salim Godil on 16-3-2006 followed by execution of duly registered Lease Deed by the Karachi Development Authority (KDA) in favour of the petitioner on 22-8-2006. It appears that after issuance of Pre-Lease Transfer Order the petitioner applied for change of land use i,e, from residential to commercial (shops, offices and flats) and after payment of all necessary charges the request was advertised in Daily Jasarat and The Nation on 10th August, 2006 calling for objections in writing within fifteen-days from the date of publication and after due public hearing on 23-11- 2006 at 10 a.m., Union Council No,10, Clifton, Saddar Town, Karachi on 14-2-2007 issued its no objection for change of use of the subject plot and upon payment of all necessary conversion charges City District Government Karachi on 4-8-2007 awarded to the petitioner its No Objection Certificate for conversion of land use of the subject plot and ultimately on 26-6-2009 a memorandum evidencing changes of commercialization and rectification in previously registered lease deed and other documents in respect of subject plot were executed between City District Government Karachi and the petitioner Salim Godil. The record further reflects that on 2-12-2009 Karachi Building Control Authority (SBCA) approved architectural concept plan for proposed building comprising basement, ground and first floors shops, second to fifth floors parking, sixth to fourteenth floors flats, with recreation area on fifteenth floor and, thereafter, on 15-12-2009 Karachi Building Control Authority (KBCA) granted to the petitioner its "No Objection Certificate" for advertising the shops and flats to be constructed on the subject plot for sale.
5. ' It appears that after the petitioner advertised the shops, flats etc., for sale, the respondents of Constitutional Petition No, D-1272 of 2010 i,e, late Ardeshir Cowasjee on 15-11-2010 filed Constitutional Petition No, D-260 of 2010 and this Court while issuing pre admission notice restrained the respondents (including Salim Godil) from raising construction on the subject plot. The record reflect that on 8-3-2010 when this petition was taken up for hearing this Court directed the respondent No,1 (Salim Godil) to approach the Environmental Protection Agency and obtained necessary permission regarding their project in terms of the Environmental Protection Agency, 1997 (hereinafter referred to as "Act 1997") and the rules made there under. Thereafter, on 22-3-2010 when this petition was again taken up for hearing, same was disposed through following consent order:-- "Consequently, by consent, this petition is disposed of by directing the builder-respondent No,1 to approach the EDO/MPGO of City District Government for the purpose of obtaining NOC for conversion of the plot in question. The EDO shall accordingly hear the petitioner as well as respondent No,1 and the CDGK on 29-3-2010 at 11-00 a.m. The EDO shall after hearing the petitioner as well as the respondent No,1 and any other concerned person pass a speaking order.
6. If any party is dissatisfied with the orders they may seek their remedy in accordance with law".
7. ' The respondents in Constitutional Petition No,D-1272 of 2010, who are petitioners in Constitutional Petition No,D-1970 of 2010, effected appearance before EDO and filed objections against the commercialization and the EDO Master Plan Group of Offices, CDGK through impugned order rejected all objections raised by the respondents such as inadequate utilities and infrastructure, or parking and choking of road deprecation in land value, commercialization policy, environment etc., but withdrew the commercialization on the ground that commercialization of the subject plot would be a "security risk" of a sacred place viz. "Jamat Khana". The petitioners have impugned the order that it has been passed on a ground, not recognized by law, whereas, respondents had challenged the same order by asserting that upholding of commercialization on other ground and rejection of their objections in the impugned order was unlawful. It appears that during pendency of these petitions, petitioner Salim Godil approached Environmental Protection Agency and filed IEE on 29-7-2011 and the EPA gave clearance for the proposed project vide their letter dated 5-11-2011.
8. FACTS OF CONSTITUTIONAL PETITION NO. D-3410 OF 2010 ' Briefly, late Ardeshir Cowasjee and others filed petition bearing No, D-2295 of 2009 against Dr. Zubair and Muhammad All (petitioners in Constitutional Petition No,D-3410 of 2010) challenging the variation of Town Planning conditions in respect of approved plan issued by the respondent No,4 for raising construction of a commercial cum-residential building containing shops and 'flats on the subject property No,II. It was also the case of the petitioners that necessary infrastructure is to be provided prior to the conversion of the subject property, however, the petition was disposed through following consent order:-- "We have heard all the learned counsel. Consequently, this petition is disposed of by consent in the manner that Environmental Protection. Agency, Sindh to hear the application of respondents Nos.1 and 2 vis-a-vis the NOC for construction of their project and decide the same in accordance with law within one month from today after giving due notices to Mr. Ardsher Cowasjee and the respondents Mr. Zubair Ahmed and Mr. Muhammad Ali, K. B. C.A, C.D. G. K, K. E. S. C, .K. W. Et. S. B, S. S. G. C."
9. Since the Environmental Protection Agency after hearing directed filing of EIA vide their letter dated 10-10-2010 instead of IEE Leading to filing of Constitutional Petition No,D-3410 of 2010, wherein, the petitioners Mr. Zubair and Muhammad Ali claimed to be lawful owners of subject property No,II, and asserted that Main Khayaban-e-Rommi on which subject plot No, II is situated was declared commercial pursuant to Resolution No,659 passed by CDGK on 27-6-2005. It is the case of the petitioner that due to commercial status of Khayaban-e-Roomi, it has attracted number of investors and large number of commercial projects such as The Forum, Ashiyana, World Trade Centre and Clifton Centre etc. It is the case of the petitioners that the petitioners applied for commercialization of the subject property No,II on 31-8-2005, public notices accordingly were issued on 25-10-2005 in "Daily Times" and "Daily Jasarat" inviting public objections and after public meeting dated 5-12-2005 CDGK confirmed conversion of the said property from residential to commercial by issuance of NOC on 17-2-2006. The petitioners deposited the commercialization and scrutiny fee on 26-1-2006 whereafter approval and architecture plan was issued by KBCA on 29-6-2007 and No Objection for the Sale and Advertisement of the project was issued on 6-12- 2007. It is asserted that Constitutional Petition No,D-2295 of 2009 was filed against them which was disposed of on 8-6-2010 through a consent order reproduced above and in consequent thereof the petitioners on 18-6-2010 submitted IEE in respect of their proposed building but the EPA on account of some extraneous pressure kept delaying the matter and ultimately through impugned letter directed the petitioners to file Environmental Impact Assessment (EIA) which according to the petitioners was liable to be set aside.
10. SUBMISSIONS IN RESPECT OF CONSTITUTIONAL PETITIONS NOS.D-1272 AND 1970 OF 2010 ' Messrs Abid S. Zuberi and Obaid-ur-Rahman Khan, learned counsel representing Salim Godil in Constitutional Petition No,D-1272 of 2010 and 1970 of 2010 respectively, contended that all the objections raised by the respondents were duly addressed and rejected by this Court in its various judgments. Per counsel, the power and authority of the CDGK for commercialization of the road as well as the effects of the Resolution No,659 dated 27-6-2005 whereby CDGK had declared various roads as commercial was upheld by this Court in the case of Nighat Jamal v. CDGK (2010 YLR 2624) and likewise the commercialization of Khayaban-e-Roomi and the construction of high rise building on the said road was upheld by this Court in the case of Ardeshir Cowasiee and others v.
11. Karachi Building Control Authority and others (PLD 2006 Karachi 63) and a Petition for Leave to Appeal against the said judgment was dismissed by the Hon'ble Supreme Court in Constitutional Petition No,729-K of 2005. It is further contended that in consequent to the directions of this Court dated 8-3-2010 in Constitutional Petition No,D-260 of 2010, the petitioner approached the Environmental Protection Agency which after holding necessary inquiry granted Initial Environmental Examination (IEE) on 29-7-2011 to the petitioner. Per counsel, therefore, the withdrawal of the commercialization of the subject plot was totally illegal and on a ground which is not recognized by the law i,e, "security of a sacred place i,e, "Jamat Khana". Counsel while placing reliance on an unreported Order dated 18-8-2009 passed by a Division Bench of this Court in Constitutional Petition No,D-691 of 2008 contended that in the said case commercialization of a plot on a declared commercial road was refused on the ground that it might create law and order situation being adjacent to Imam Bargah and this Court overruled such objection by allowing construction on said commercial plot in accordance with the rules and regulations. Mr. Zuberi contends that the said order is applicable to his case on all fours and, therefore, the impugned order is liable to be set aside. It is further contended that commercialization of a plot adjacent to the plot of petitioner viz. Plot No,F-99, Block-7, KDA Scheme-V, Khayaban-e-Roomi, Clifton, Karachi was upheld by this Court in the case of Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. (2009 YLR 1896) and maintained up to the Hon'ble Supreme Court, therefore, the petitioner deserves similar treatment. Mr. Zuberi lastly contended that the petitioner has obtained IEE from Environmental Protection Agency in consequent to the directions of this Court dated 8-3- 2010 in Constitutional Petition No,D-260 of 2010 but according to him the provisions of Act 1997 were not attracted to the case of the petitioner as clauses 3 and 4 of the Environmental Protection Rules, which provides for obtaining of IEE or EIA apply to the projects mentioned in Schedule-I or II and none of the provision in Schedule I or II contain any reference to construction of a building which requires either IEE or EIA, therefore, construction on a declared commercial road does not require either IEE or EIA. Per counsel however, clause-5 of the Regulations empowers the Federal Agency to require from any proponent of a project IEE or EIA. Per counsel since the petitioner has already obtained IEE in line with other high rise building in the vicinity, therefore, the objections are just for the sake of objection and are liable to be rejected and petitioner's plot be declared as commercial for the purposes of construction of a building in accordance with the approved building plan.
12. SUBMISSIONS IN RESPECT OF CONSTITUTIONAL PETITION NO.D-3410 OF 2010 ' Mr. Khawaja Shamsul Islam, learned counsel appearing for Dr. Zubair and Muhammad Ali in Constitutional Petition No,D-3410 of 2010, contended that Ardeshir Cowasjee and others had challenged Resolution No,659 of 27-6-2005 whereby City Council had commercialized various roads including Khayaban-e-Roomi as well as alleged variation of Town Planning Conditions while converting the land use and allowing permission to the petitioner for raising construction by filing Constitutional Petition No,D-2295 of 2009, and knowing well that all the objections so raised were already adjudicated by this Court in various cases, gave up all the objections and got their petition disposed of on 8-6-2010 with the directions to the petitioners to obtain permission from Environmental Protection Agency Sindh before raising construction. Consequently, this Court while disposing of the said petition by consent directed the Agency to hear the application of the petitioner for no objection certificate for the construction of their project and decide the same in accordance with law within 30 days and till receipt of no objection certificate from agency restricted the petitioners from raising construction. Per counsel, due to pressure from various quarters the matter was not finalized and ultimately the Agency asked the petitioners to file EIA instead of IEE leaving no option for the petitioner to again approach this Court by filing instant petition. It is contended that in terms of section 12(4) of Act 1997 the respondent/Agency was duty bound to communicate its approval or otherwise within a period of four months from the date of submission of their IEE i,e, 18-6-2010 and on their failure to respond petitioners were entitled to automatic approval under the deeming clause. Mr. Shams contended that the grudge, prejudice and mala fide of the Agency can be gauged from the fact that it had required the proponents of various projects situated adjacent to the project of the petitioner for filing IEE and has asked the petitioner for filing EIA which is discriminatory and violative of principles enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan. It was contended by the counsel that this Court has held in one of its judgment that in cases where the road is commercialized even there is no need to obtain permission for raising commercial construction along with such road. He further contended that the commercial project on Khayaban-e-Roomi such as The Forum, Aashiyana, Clifton Centre, Silk Bank, Habib Bank Limited and The World Trade Centre as well as in the case of Plots Nos.F-96 and F-99 just adjacent to the petitioners' plot the agency has asked for IEE therefore, asking the petitioners to file EIA is totally discriminatory. Per counsel section 12 of the Act 1997 which requires obtaining of IEE or EIA is to be read along with Schedules I and II. It is contended that clause (H) of Schedule-II which provides for EIA is in respect of "Urban Development and Tourism" which is applicable only in cases of land use studies and urban plans for large cities and not in case of small project as of the petitioners which even otherwise is a commercial form of residential project.
13. As to application of clause J of Schedule II, per counsel, it has been involved malafidely. Per counsel, at the most the petitioners can be asked to furnish IEE as in the cases of other projects which petitioner has already filed, therefore, the petitioner be allowed to raise construction in accordance with the permission already granted by the Building Control Authority. In support of his contention counsel has placed reliance on the judgment of Ardeshir Cowaslee v. Karachi Building Control Authoritu (PLD 2006 Karachi 63), (Shehri C.B.E. v. Government of Pakistan IPLD 2007 Karachi 293), Amin v. Navaid Hussain (2008 SCMR 133), Zaheer Ahmed Chatulhru v. Citu District Government Karachi (2006 YLR 2537), Nighat Jamal v. Province of Sindh (2010 YLR 2624), Shamsul Arfin v. Karachi Building Control Authorial (PLD 2007 Karachi 498), Ummatullah v. Province of Sindh (PLD 2010 Karachi 236) and Irian v. Karachi Building Control Authoritu (2005 CLC 694).
14. SUBMISSIONS OF MESSRS NAIM-UR-REHMAN, ABDUR RAHMAN AND KHALID JAWED KHAN ADVOCATES ' It was contended on behalf of petitioners/respondents who claim to be the residents of Clifton and are objecting to the commercial construction that Constitutional Petition No,D-2295 of 2009 whereby Dr. Zubair and Mr. Muhammad Ali were to apply to Environmental Protection Agency was decided on 8-6-2010, therefore, the decision of the Agency dated 1-10-2010 requiring the petitioners to file EIA was within four months, therefore, the contention for automatic approval under the deeming clause is totally misconceived. It was next contended that since the power was exercised under section 12(2)(a) while directing the petitioners to file EIA therein the construction of approval under the deeming clause is totally misplaced. Mr. Abdul Rehman next attacked the maintainability of the Constitutional Petition No,D-3410 of 2010 filed by Dr. Zubair and Mr. Muhammad Ali on the ground that against the impugned letter dated 1-10-2010 requiring the petitioners to file EIA the appropriate alternate remedy in terms of section 21 was available to the petitioners, which the petitioner have failed to avail within 30 days, therefore, the petition itself is liable to be dismissed on this score alone. It was next contended that since The Pakistan in Environmental Protection Agency (Review of IEE and EIA) Regulations were made in the year 2000, therefore, the Act 1997 had no application to the construction raised prior to the year 2000 and therefore, the reference made to the Various buildings constructed on Khayaban-e-Roomi after filing IEE is of no substance as all were constructed prior to 2000. Mr. Abdur Rahman further while referring to regulations 3 and 4 contended that a proponent of the project who falls in any of the category listed in Schedule I has to file IEE whereas those proponent of the project who falls in category listed in Schedule II has to file an EIA and notwithstanding regulations 3 and 4 the Agency has power under Regulation 5 even to ask a proponent of a project which does not fall in any of the category listed in Schedules I and II to file an IEE or EIA, therefore, the contention of the petitioners that their project does not fall in either of the referred schedules even if accepted, still the directions of the Agency to file EIA are lawful and unnecessarily called in question. Mr. Abdur Rahman further while referring to entry No, 3 of Clause A Schedule-II contended that such project would involve transmission line of 11 KV and above and a grid station therefore requires EIA. He further referred to Clauses H1 and J2 of Schedule II and contended that all land used in large cities as well as in project which is likely to cause adverse environmental effect needs EIA from Environmental Protection Agency and therefore letter dated 1-10-2010 requiring the petitioners to file EIA is absolutely lawful. Mr. Abdur Rahman lastly contended that filing the petition after lapse of period provided for filing appeal under section 22 of the Act 1997 is not permissible. Reliance has been placed on the judgment of Supreme Court in the case of Muhammad Azhar Khan v. Assistant Commissioner/Collector Toba Tek Singh (2006 SCMR 778) and The Murree Brewer!' Co. Ltd. v. Pakistan, throuqh the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), ' Messrs Khalid Jawed than and Abdur Rahman, learned Advocates mat only defended the impugned order dated 26-4-2010 whereby the EDO had withdrawn the commercial status of the plot but contended that the other pleas raised by the respondent before the EDO such as inadequate utilities, parking, choking of roads, depreciation in land value were unlawfully turned down.
15. ' It was lastly contended that a bench of this Court in Constitution Petition No,D-2460 of 2008 after observing that two different benches have taken a different view regarding approval from Environmental Protection Agency in the cases of Niqhat Jamal v. Province of Sindh and others (2010 YLR 2624) and Shamsul Ar fin and others v. Karachi Building Control Authoritu and others (PLD 2007 Karachi 498) recommended constitution of a larger bench to thrash out the diversion of opinion on the issue, therefore, this matter be also referred to the larger bench.
16. SUBMISSIONS OF MR. MANZOOR AHMED AND MRS. AZRA MUQEEM ADVOCATES FOR CITY DISTRICT GOVERNMENT KARACHI ' It was contended that City Council vide its Resolution No,659 dated 27-6-2005 had declared Khayaban-e-Roomi Road open for change of land use along with three other roads, the Resolution was duty gazette on 18-7-2005 vide Gazette Notification No, DCO/CDGK/413/2005 and the power of the City Government to change the land use as well as Resolution No, 659 dated 27-6-2005 was called in question in various Constitutional Petitions before this Court and a Division of this Court in the case of Nighat Jamal (supra) has upheld the power of City District Govt. Karachi for such change in land use. It was next contended that the petitioners applied for the change of land use on prescribed form and after fulfilling all codal formalities and upon payment of all necessary charges the request was acceded whereafter the petitioners applied for approval of the proposed building plan which was processed accordingly. It was contended that petitioner Salim Godil though had in consequent to the directions obtained permission of Environmental Protection Agency but since this Court had directed the Executive District Officer (EDO) City District Government Karachi to hear the parties and thereafter to pass a speaking order pertaining to commercialization of the subject plot and in pursuance to such directions the EDO CDGK after a public hearing passed a speaking order directing withdrawal of commercialization of the subject plot, solely to eliminate the security risk to a sacred place viz. Jamat Khana and had specifically stated that the order shall apply to this plot alone.
17. SUBMISSIONS ON BEHALF OF THE SINDH ENVIRONMENTAL PROTECTION AGENCY ' It was contended that in pursuance of the directions contained in the order passed in Constitution Petition No,D-2295 of 2009 the Agency after hearing out all stakeholders reviewed Initial Environmental Examination (IEE) submitted by the petitioners Dr. Zubair Ahmed and Muhammad Ali in respect of the subject property No,II strictly in accordance with the provisions of Pakistan Environmental Protection Act, 1997 and EIA/IEE Regulations 2000, It was contended that IEE report submitted by the petitioners was rejected and the proponent was advised to submit Environmental Impact Assessm ent (EIA) keeping in view the change of land use from residential to, commercial on which the residents of the area have expressed serious reservations. It was further contended that the project attracts Clauses H and J of Schedule II which requires conducting of public hearing to provide the general public an opportunity of raising their concerns and also to involve all relevant organizations to discuss and decide status of change of land use and its consequences on environment including all components of infrastructure. However, on query, it was fairly conceded that the Agency has approved identical projects of surrounding areas from Do Talwar to Teen Talwar and Submarine Chowk to Mai Colachi Road, such as Sofitel Tower on Plot No,G-3, Block-9, KDA Scheme No,5, Clifton, Karachi, proposed building on commercial Plot No,G-4, Block-7, Clifton, Karachi and two adjacent Plots Nos.F-96 and 99, Block-7, Clifton, Karachi.
18. ' We have heard the learned counsel for the respective parties, perused the record of the cases and the case-laws cited at bar.
19. ' First of all, we would like to address the contention of Mr. Naim-ur-Rehman regarding referring the matter to a larger bench in view of alleged divisive opinions of two benches in the case of Nighat Jamal (supra) and Shamsul Arfin (Supra). In the case of Shamsul Arfin (supra) the moot question before the Court was; "As to whether KPT was to obtain approval of building plan from KBCA or that the KPT being itself an authority could approve plan by virtue of Schedule A-1 to Chapter 1 of the Karachi Building Town Regulations, 2002, therefore, it did not require such approval when the construction was on the land belonging to KPT. The Court while deciding such controversy on objection, that the construction of such multi-storey building would have an adverse environmental effect observed:- "In our view the petitioner's argument that permission from Environmental Protection Agency is to be first sought has no force for the reason that firstly it is a case of construction of a residential building. Secondly, when the building plans are submitted to KBCA, they are to be vetted by the Master Plan and Environmental Control Department also. This takes care of environmental effect of the building proposed to be constructed. Therefore, question of first seeking permission for a residential building from Environmental Protection Agency does not arise."
20. ' Whereas, in the case of Nighat Jamal (supra) a Division Bench of this Court was of the view that "In all cases where any change in the land use is brought or in consequent to such change, construction or alteration/expansion of an existing building takes place and such change is likely to cause an adverse environmental impact then an environmental impact assessment has to be filed before the Provincial Environmental Protection Agency for obtaining necessary approval".
21. ' The distinguishing factor between the case of Shamsul Arfin (supra) and the case of Nighat Jamal (supra) appears to be that in the case of Shamsul Arfin there was no reclassification of residential area into commercial area, therefore, the implication of Environmental Law on reclassification or change of land use was not taken into consideration. Whereas, in the case of Nighat Jamal (supra) the residential land was reclassified as commercial by the City Council vide Resolution No,659 allowing commercial construction on various roads abutting residential areas including Khayababn-e-Jami where the plot of petitioners is situated.
22. ' It further appears that such controversy was also raised before another Bench of this Court in the case of Clarissa James (supra) and the learned Bench, which was headed by the learned Judge who was the author of the judgment in the case of Shamsul Arfin (supra), came to the following conclusion:- "(8) We are in respectful agreement with the above cited Judgment of the Division Bench of this Court (Shamsul Arfin (supra)) and hold that under the facts and circumstances of this case, where on a residential plot of land a residential housing project, after having complied with all the codal formalities as required under the building laws, rules and regulations, is being constructed in the vicinity of several similar multistorey buildings, there would be no requirement to seek permission or to obtain the approval/NOC from the Environmental Protection Agency, particularly when Environmental Control Department of KBCA has already vetted the building plan which takes care of the environmental effect of the building. Moreover the petitioners have not been able to demonstrate any adverse environmental effect which would occur due to construction of the housing project on the subject land by the respondent No, 1.
(9) As regard case of Nighat Jamal v. Province of Sindh and others 2010 YLR 2624 relied upon by the Counsel for the petitioner is concerned, we have observed that facts of the cited case are distinguishable from the facts of this case. In the cited case, the petitioner challenged the conversion of a residential plot into commercial and construction of multi-storey commercial- cum-residential building in a pure residential area. There were several other violations of the building laws which were alleged in the cited case whereas the commercialization in the pure residential area was also challenged. Re-classification of the land use was also objected by the petitioner of that case and under such circumstances the Division Bench was pleased to observe that in case of re-classification of residential area into commercial area in such manner, there is every likelihood that the same may adversely effect the environment. In the instant case neither there is any re-classification nor there is any change in land use. Accordingly, we are of the view that the reliance placed by the Counsel for the petitioner in the above cited Judgment is misplaced."
23. ' In the circumstances, when the question regarding implication/application of environmental law on reclassification was not considered in the case of Shamsul Arfin (supra) as author of the judgment in the case of Shamsul Arfin, himself while heading the Bench which decided the case of Clarissa James responded to the controversy which is now raised before us by holding that the issues in both the cases was altogether different. Interestingly, the judgment in the case of Clarissa James was handed down by the other member on the Bench i,e, one of us (Aqeel Ahmed Abbasi, J) and we in respectful agreement with the said judgment do not see any reason for referring the matter to the larger bench.
24. ' Taking up the first set of petitions wherein petitioner Salim Godil in compliance with the directions of this Court dated 8-3-2010 issued in Constitutional Petition No,D-260 of 2010, on 29-7-2011 filed Initial Environmental Examination (IEE) and the Environmental Protection Agency gave clearance for the proposed project vide their letter dated 5-11-2011. However, on the other hand, on the plea of the respondent that the commercialization was allowed without taking into account their objections this Court while disposing of the said petition vide its Order dated 22-3-2010, directed the EDO to hear the parties afresh and to pass a speaking order regarding commercialization. The EDO after hearing the parties withdrew the commercialization on the ground that commercialization of the subject plot No,I would be a security risk of a sacred place viz..Jamat Khana. We wonder how and from where it came to the mind of EDO that the construction of residential apartments and few shops near Jamat Khana could be termed as security risk for a Jamat. Khana, specially, when commercialization and permission to construct similar projects to at least two projects adjacent to Jamat Khana has already been granted. Mr. Manzoor Ahmed, learned counsel appearing for CDGK has failed to point out any provision in the Ordinance, rules or bylaws, empowering the EDO to refuse commercialization on the ground that such residential- cum-commercial construction would be a security risk to another, construction. It further appears to us that withdrawal of commercialization status of a plot on the ground that the construction which would be raised on such plot would be a "security risk" does not fall within the domain of the Executive District Officer for the simple reason that building approval is an act subsequent to and independent to the status of the plot. We are of the firm view that the declaration of the EDO to the effect that the proposed construction would be a security risk to the Jamat Khana cannot sustain unless it has a statutory backing such as in the cases of key point installation all those structures, installations, factories or other establishments which are of vital importance to the country in its readiness and ability to fight a war and in the event of whose destruction or severe damage, the loss would impair the vital national war effort, the Provincial or the Central Government has the prerogative to prohibit construction within a specified parameters for the safety and security of such construction/installation. In the instant case perhaps the EDO was bent upon to withdraw the commercialization permission after allowing it and accepting commercialization charges and having found no alternate or legal ground for withdrawal of such permission adopted a total novel, arbitrary and unlawful way to withdraw the commercialization. Mr. Abid Zuberi has rightly placed reliance on the Order of this Court dated 18-8-2009 passed in Constitutional Petition No, D-691 of 2008 (Muhammad Fawad Sheikh and another v. Province of Sindh and another) wherein, in similar circumstances a plot located at Main Khayaban-e-Sher Shah Sun Road was commercialized in consequent to City Council Resolution No,383 of 6-12-2004, however, permission to raise construction was withheld by the City District Government Karachi on account of the fact that such plot was located near an "Imam Bargah" and this Court while granting the petition observed as follows:-- "In our opinion if the plot in question is situated in a commercial area, there should be no bar to building a commercial property on the same except that it should be in accordance with rules and regulations and zoning laws etc. Apparently, respondent No,3 is an Imam Bargah which is located one plot away from the petitioner's plot. In these circumstances, we do not understand how a commercial building which would come up on the petitioner's plot would create a law and order situation. Consequently, this petition is granted to the extent that the petitioner is allowed to build a commercial building on his plot provided, it is in accordance with the rules and regulations, as existing in the city of Karachi subject to payment of usual commercial charges to City District Government Karachi".
25. ' In view of what has been dismissed above, we hold and declare that the Order dated 26-4-2010 passed by the EDO/MPGO to the extent of withdrawing the commercialization of subject plot No,1 on the ground of being "security risk" to Jamat Khana is illegal, mala fide and without jurisdiction and consequently is set aside.
26. ' Taking up the second submission regarding commercialization of the subject plot in consequent to City Council Resolution No,659. It is suffice to observe that such objection has been dealt with and rejected by this Court in several cases, upholding the powers of the City District Government for reclassification, such as in the case of Irfan v. Karachi Buildings Control Authority (2005 CLC 694) a Division Bench of this Court on conversion and commercialization of residential plots has held as follows:-- "As regards question of conversion of the questioned plots into commercial, this issue seems to be a closed chapter. In view of what has been stated in the instant petitions as also from the facts stated in Excel Builders' case 1999 SCMR 2089 which relate to Glass Towers, a building situated near the buildings/plots which are the subject-matter of these petitions, the commercialization of plots on main Clifton Road was permitted by way of a resolution passed by the governing body of Karachi Development Authority and the process of commercialization of residential plots commenced from the year 1980 and onwards, as a result whereof a large number of plots in the vicinity on main Clifton Road stood commercialized. As observed by the Division Bench of this Court in Excell Builders' case and further reflected in para.21 of this judgment by now a number of multi- storeyed structures have been raised on main Clifton Road. Even from para.18 of aforesaid judgment of honourable Supreme Court it is transpired that conversion of residential plot on main road into commercial plots were not found to be a questionable act. It was only observed that the Building Bye-Laws, Regulations etc. Be not violated".
27. ' In the case of Mrs. Farida v. New Allied Electronics Industries (Pvt.) Ltd. (2009 YLR 1896) the residents of Block-7, Clifton inter alia had pleaded in the said case that the entire scheme in Block- 7, Clifton was meant for residential purposes only, however, CDGK while exercising its power under section 192(2), 5th Schedule, Part-IT Clause (3) of the Sindh Local Government Ordinance, 2001 approved the change of land use and master planning byelaws 2003 (commercialization policy) vide resolution No, 383, dated 6-1-2004 and gazette it for general information vide regulation CDGK/MPGO/2004/ 142, dated' 12-2-2004 and the. Bench after hearing the parties held as under:-- ' The language of the regulation 18.5.1.1 clearly shows that the conversion of the residential plot into commercial is permissible in accordance with the uniform commercialization policy so formulated and in this case conversion has been made in accordance with the commercialization policy of the City District Government and the other conditions of the regulation that the same should have been notified in the government gazette which has been done as admittedly by the petitioner, and no individual plot out side the policy has been considered for commercialization policy. In these circumstances, we are in agreement with the learned counsel for the respondent No,1 that in the instant petition this Court cannot interfere into the acts of the respondents with regard to the commercialization of the plot in question".
28. ' In the case of Nighat Jamal (supra) wherein by virtue of Resolution No, 659 dated 2-6-2005 the City District Council has allowed commercial construction on four roads namely: Khayaban-e- Saadi Road, Khayaban-e-Roomi Road, Nishter Road and Alamgir Road, was called in question and this Court acknowledged the authority of council allowing commercialization by holding:-- "In the circumstances and in view of what has been discussed above, nothing has been placed before us to show that the reclassification of various roads by opening them for commercial construction by notifying Tajveez No,3 dated 12-2-2004 or Resolution No,659 dated 27-6-2005 was not within the competence of the Local Government specially when despite declaring such roads open for commercial construction. It is obligatory upon the Local Government to examine each and every case of conversion on its merits and in terms of Article 3 of Bye-Laws 2003 after a public hearing".
29. ' As to the second objection questioning the provisions of adequate utilities and infrastructures, the apex Court has already decided all such objections in the case of Jawad Mir Mohammadi v.
30. Haroon Mirza (PLD 2007 SC 472) where multi-storeyed buildings were being constructed over a plot which was converted from residential to commercial after completion of all legal formalities and the residents of the locality had assailed conversion of the plot on the ground that construction of multi-storeyed building would disturb their rights to light, fresh air, clean environment and had pleaded shortage of amenities such as water supply, electricity, gas, sewerage line etc. And the Hon'ble Supreme Court responded to all such objections in Paras 25 and 26 of its judgment in the following terms:-- "25. As regards the deprivation of the rights to light, fresh air and clean environment, it is noted that infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party. There is no material on record to prove the allegation of the appellants relating to deprivation or violation of the above easementary rights by construction of the alleged illegal floors. It is their unfounded apprehension based on subjective and abstract consideration. The hardships, inconvenience, or discomfort likely to result by the building in question must be more than "mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material". The appellants have failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as there is no material to substantiate their infringement.
26. So far as the question of adverse affect due to extra burden on the utilities is concerned it is suffice to say that the respondent No,3/concerned Authorities are duty bound to provide adequate relief by providing necessary infrastructure for increasing water supply, electricity, gas and laying down sewerage lines of bigger dimensions to meet the demand of extra burden and they can be activated to perform their duties.
31. ' Now we would take up the objection regarding maintainability of Constitutional Petition No,D-3410 of 2010 filed by Dr. Zubair and Muhammad Ali. The precise objection raised by Mr. Abdur Rahman appears to be that against impugned letter dated 1-10-2010 whereby the petitioners were required to file EIA, appropriate alternate remedy in term of section 21 of Act 1997 was available and since the remedy was not availed within the prescribed period of 30 days, therefore, the Constitutional remedy has become barred and therefore, the petition be dismissed. Mr. Abdur Rahman in support of his contention has placed reliance on the case of Mr. Muhammad Azhar Khan (supra). The facts of the case relied upon are that the respondents were granted plots in Chak No,151-GB on 15-12- 1988 and the respondents filed appeal before the Deputy Commissioner under Act III of 1986 claiming that they may be given plots in Chak No,295-GB instead of Chak No,151-GB, Toba Tek Singh. The appeal was dismissed by the Deputy Commissioner on the ground that same was barred by time. The order of the Deputy Commissioner was impugned by filing writ petition before Lahore High Court which was also dismissed on 7-7-1993 by holding that the petitioners were seeking review of mutation without challenging the order by which plots were given to them in Chak No,151-GB and that they had no legal right to claim Plot in Chak No,295-GB. The petitioners on 16-10-1995 i,e, after lapse of more than 27 months filed an application seeking review of order dated 7-7-1993 and the learned Judge in chamber condoned the delay in filing petition and ultimately allowed the same and directed the Assistant Commissioner to examine the case of the petitioners for allotment of land in Chak No,295-GB. The order was assailed and set aside by the apex Court by holding that once in the judgment dated 7-7-1993 it was held that petitioners had no legal right to claim allotment in Chak. No,295-GB, there was no question to be examined in review.
32. The apex court in the said case had observed that "it is to be noted that once the appeal was not filed in time before the Appellate Authority how the writ or review petition was competent because before approaching the High Court for redressal of the grievance by invoking its constitutional jurisdiction under Article 199 of Constitution, it was incumbent upon the respondent to have availed alternate remedies according to law".
33. ' However, in the instant case, the record reflects that the respondents who have raised the instant objection had filed Constitutional Petition No,D-2295 of 2009 which by consent was disposed of on 8-6-2010 whereby Environmental Protection Agency was to hear the application of Dr. Zubair and Muhammad Ali for construction of their project and decide the same in accordance with law within one month. It appears that Environmental Protection Agency after hearing the parties instead of accepting IEE as was done in the cases of adjacent plots directed the petitioners vide its letter dated 1-10-2010 to file EIA, and the petitioners on 7-12-2010 impugned the letter dated 1-10-2010 through Constitutional Petition No,D-3410 of 2010 pleading inter alia discrimination. There is nothing on record to show that either the petitioners were negligent or that the remedy had become barred by time. Since the residents/objectors had filed number of petitions challenging the reclassification of residential area into commercial vis-a-vis the environmental impact and some of the petitions including against the present petition were disposed of with the directions to Environmental Protection Agency to evaluate environmental impact. It appears to be an admitted position that in all such cases right from Submarine Roundabout to Maikolachi Road and from Teen Talwar to Do Talwar, number of high rise have been constructed and in all cases where the construction was objected Environmental Protection Agency has accepted IEE even the Agency has accepted IEE in respect of two adjacent plots and has directed the present petitioners to file EIA which clearly appears not only discriminatory but mala fide. No justification whatsoever has been offered by EPA for accepting IEE in respect of two adjacent plots and directing the petitioner to file EIA even their counsel in arguments was not able to justify such unjust and discriminatory attitude.
34. Since the impugned order dated 1-10-2010 not only appears to be discriminatary, unjust, but mala fide and further there is nothing on record to show that the remedy had become barred by time before the Tribunal nor such objection has been taken on behalf of the Agency therefore, neither the dicta of the case relied upon by Mr. Abdur Rahman is applicable in the instant case nor we in the circumstances are inclined to refuse constitutional remedy to the petitioners. Even the second judgment i,e, The Murree Brewery Co. Ltd. (supra) relied upon by Mr. Abdur Rahman clearly lays down that the Rule that High Court will not entertain writ petition when other appropriate remedy is available, is not a rule of law, barring jurisdiction of High Court but a rule by which Court regulates its jurisdiction. Additionally, in the case of Messrs Gatron Industries Ltd. v. Government of Pakistan (1999 SCMR 1072) the apex Court while overruling similar objection has held "It is well-settled that the rule about invoking the Constitution jurisdiction only after exhausting all other remedies, is a rule of convenience and discretion by which the Court regulates its proceedings and it is not a rule of law affecting the jurisdiction, A Constitution petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case." The objection raised by Mr. Abdur Rahman regarding maintainability of the instant petition in the circumstances is overruled.
35. ' Coming to the question as to whether the provisions of Environmental Protection Act, 1997 can be made applicable to a building containing residential apartments and shops on a declared commercial road. Mr. Abid Zuberi has argued that section 12 of the Act. 1997 provides for obtaining IEE or EIA from the Environmental Protection Agency and Clauses 3 and 4 of the Regulations 2000 framed in terms of section 33 of the Act, 1997 provide that a proponent of a project falling in any category listed in Schedule-I shall file an IEE, whereas those listed in Schedule-II shall file an EIA and a residential cum-commercial building on a declared commercial road neither falls in Scheduled-I nor in Schedule-II, therefore, it does not require either IEE or EIA. However, it was conceded that the Agency while exercising power under Clause-5 Regulation 2000 may ask a proponent of a project to file either IEE or EIA, notwithstanding, that the project neither falls in any of the categories listed in Schedule-I or Schedule-II. On the other hand Mr. Abdur Rahman disputed the contention of Mr. Zuberi by referring Entry No,A-3 of Schedule-H i,e, transmission line of 11 KVA and above and a grid station, Entry No,H-1 of Schedule-II i,e, land use studies and urban plans (large cities) and Entry No,J-2 of Schedule-II i,e,, for "any other project likely to cause an adverse environmental impact".
36. Counsel contended that in all cases where residential plots are reclassified/converted as commercial then they are required to file EIA, whereas, the stance of Agency is that such construction attracts the provisions of Clause "H-1" and "J-2" of Schedule-II.
37. ' Before the propositions as propounded before us are discussed, we for the sake of convenience would like to reproduce the relevant provisions of the Act 1997 as well as of Regulations 2000 relied upon by the respective counsel and or are material to resolve the controversy.
38. The Pakistan. Environmental Protection Act, 1997 (ACT NO. OF 1997)
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, an IEE 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 assessment 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 information will be disclosed during the course of such public participation which relates to,-- (i)
39. (ii)
40. 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.
33. Power to make regulations.---(1) For carrying out the purposes of this Act, the Federal Agency may, by notification in the official Gazette and with the approval of the Federal Government, make regulations not inconsistent with the provisions of this Act or the rule made thereunder.
(2) ...................................
41. (a)
42. THE PAKISTAN ENVIRONMENTAL PROTECTION AGENCY (REVIEW OF IEE AND EM) REGULATIONS, 2000.
(3) Projects 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) Projects requiring an EIA.---A proponent of a project falling in a category listed in Schedule-II shall file an EM with the Federal Agency, and the provisions of section 12 shall apply to such project.
(5) Projects not requiring an IEE or EM.---(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 EM: ' Provided that the proponent shall file,
(a) an EM, 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 EM, for reasons to be recorded in such direction: ' Provided that no such direction shall be issued without the recommendation in writing of the Environmental Assessment Advisory Committee constituted under Regulation 23.
(3) The provisions of section 12 shall apply to a project in respect of which an IEE or EM is filed under sub-regulation (1) or (2).
43. SCHEDULE I (See Regulation 3)
44. ' List of projects requiring an IEE A. Agriculture, Livestock and Fisheries
(1) Poultry, livestock, stud and fish farms with total cost fore than Rs,10 Million.
(2) Projects involving repacking, formulation or warehousing of agricultural Products.
45. B. Energy
(1) Hydro-electric 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 systems.
(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 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 harbor 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
(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
(1) 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 schemes
(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)
46. List of projects requiring an EIA ' A. Energy
(1) Hydro-electric 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 plans
(5) Petroleum refineries B. Manufacturing and processing
(1) Cement plants
(2) Chemicals 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 C. Mining and mineral processing
(1) Mining and processing of coal, gold, copper, sulphur 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 cost of Rs,50 million and above
(3) Ports and harbor 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 ' Perusal of subsection (1) of section 12 reveals that every proponent of a project before commencing construction or operation has to file an IEE with the concern Environmental Protection Agency and in case where the project is likely to cause an adverse environmental effect an EIA. However, the question arises as to whether every kind of construction or project in the city can be termed as project as defined in section 2(xxxv) and its builder as proponent requiring IEE and EIA before commencing construction or operation. The controversy gets an answer in negative if the provisions of subsection (1) of section 12 are read in conjunction with subsection (6) thereof, which clearly establishes that the condition of obtaining IEE and EIA in terms of subsection (1) of section 12 of the Act 1997 is not applicable to all kinds of projects but to such categories of projects and in such manner as may be prescribed under the Act. The Act itself does not detail the categories of the project for which a proponent has to file IEE or EIA in terms of subsection (1) of section 12 of the Act 1997. However Clauses 3 and 4 of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations 2000 (hereinafter referred to as Regulation 2000) framed in terms of section 33 of the Act 1997 by the Federal Agency for carrying out the purpose of the Act 1997 reflects that the Agency has categorized the projects in two schedules. The proponent of the project listed in Schedule-I has to file an IEE, whereas, for the project categorized in Schedule-II an EIA, therefore, it is not the every construction or project for which a builder or proponent of such construction or project has to file IEE or EIA but only the construction/project which have been listed in the Schedule-I or II of the Regulations 2000. Even sub-regulation (1) of Regulation 5 specifically states that the proponent of a project not falling in any category listed in Schedule I or II shall not be required to file an IEE or EIA. Though sub-regulation (2) of Regulation 5 empowers the Federal Agency to direct the proponent of a project, whether such project is listed in Schedule I or II, or not, to file an IEE or EIA after recording its reasons for such direction. However, proviso to sub-regulation (2) to Regulation 5 places a clog on the exercise of such power by providing that Federal Agency shall not exercise such powers unless the Environmental Assessment Advisory Committee constituted under Regulation 23, has so recommended.
47. ' In the instant case, it is not the case of the Agency that they had directed the petitioners to file EIA by exercising powers under sub-regulation (2) of Regulation 5 upon the recommendations of the Environmental Assessment Advisory Committee nor there is anything on record even to show that an Environmental Assessment Advisory Committee as envisaged under Regulation 23 has been constituted, therefore, we cannot persuade ourselves to accept the contention of the respondent as well as Agency that even if the project of the petitioners is not categorized in any of the schedule, still the directions to the petitioners for filing EIA were protected under sub- regulation (2) of Regulation 5 read with entry J of the Schedule-II. In our opinion power under sub- Regulation (2) of Regulation 5 or entry J to Schedule-II can only be exercised by the Agency when it comes to the conclusion that notwithstanding the fact that a particular project though has not been categorized in any of the schedules annexed to Regulations 2000 but still is likely to cause an adverse environmental impact and a recommendation to that effect has been made in writing by the Environmental Assessment Advisory Committee then and then only the proponent of a project upon detailing the reasons can be directed to file IEE or EIA.
48. ' Additionally the stance of the agency and reference to Entry No,J of the second Schedule not only appears to be afterthought but discriminatory as the agency has already accepted IEE filed by the proponents of the two adjacent similar projects proposed to be constructed on Plots No,F-96/1 and F-99/ 1 and directed the petitioners to file EIA in respect of their project of Plot No,F94/1. We have also observed from the minute scrutiny of the projects requiring an EIA detailed in Schedule- II that it covers mega projects such as Hydro-electric, Thermal, Nuclear Power, High Transmission Lines, Manufacturing, Mining and Mineral processing, Transport, dams, irrigation, Water supply treatment work, Waste disposal, land use studies and urban plans in respect of large cities etc., etc. These Projects by their nature are likely to cause adverse environmental impact mandating 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. The review process of an environmental impact assessment for these reasons is to be carried out after a public notice in the national and local newspapers so that the views are taken on record and addressed in a public hearing by committee of experts. Consequently, clause-J of Schedule-II which empowers the agency to direct a proponent of the project not listed in Schedule-II to file EIA if such project is likely to cause an adverse environmental, impact is to be construed in harmony with the projects specific in the Schedule-II and should be applied to only those projects which by their nature are similar to the projects specified in Schedule-II and are likely to cause more or less same amount of adverse environmental impact and not to the projects which would cause less adverse environmental impact and could be categorized along with projects detailed in. Schedule-I requiring only mitigating measures to minimize such impact.
49. The reason for such conclusion being that a similar entry empowering the Agency to ask the proponent of a project not covered in Schedule-I to file IEE in case the project is likely to cause adverse environmental impact is also available vide clause-J of Schedule-I and any other application of clause-J of Schedule-II, would render clause-J of Schedule-I as redundant.
50. ' Adverting to two specific entries in Schedule-II which per respondent empower them to direct petitioners to file EIA i,e, A-3 "Transmission lines (11kv) and above and Grid Station" and H-1 Land use Studies and Urban Plans (Large Cities). As to entry No,A-3, the agency has not pleaded the application of Entry No,A-3 nor anywhere in their comments have stated that for residential-cum- commercial project a transmission line of 11 kv is required and rightly so as transmission line of 11 kv i,e, 11000 volt is a part of distribution network, whereas residential-cum-commercial project of such nature requires 230 to 400 volt for single and three phase lines beside petitioners at the most could be proponents of an apartment project and not an Energy project requiring EIA, the reference to Entry A-3 as well as the contention of the private respondents is without substance and therefore, rejected. As to Entry No,H-1 of the Second Schedule viz. "Land Use Studies and Urban Plan in Large Cities". The term "Urban Planning" is defined in Black's Law Dictionary as synonym to "Land-Use Planning" which means "The deliberate, systematic development of real estate through methods such as zoning environmental impact studies and the like". Obviously, the Environmental Impact Studies presupposes planning and zoning and once planning and zoning has taken place or changed then this entry cannot be applied against the proponent of a project which has undertaken construction or installation in consonance to such change. However, the agency of course can require such proponent to file IEE or EIA by invoking any specific entry in either of the Schedules.
51. ' Being mindful of the fact that planning and zoning of the city does not fall within the domain of the Agency but with the local authority which looking at the circumstances and taking into account needs of a particular city has been empowered by the local laws to "approve master plans, zoning, land use plans, including classification and reclassification of land, though after the repeal of the Sindh Local Government Ordinance, 2001 implementation of such planning and zoning classification and reclassification etc., is subject to the approval of the Provincial Government but the core function stilt is held by the local authority. Keeping in view this aspect we have minutely scrutinized both the schedules to find out as to whether any entry can directly be made applicable to an apartment building, the construction whereof is undertaken in accordance with the planning/zoning or after reclassification of such planning and zoning, and the only entry which could attract our attention and could at the best be made directly applicable appears to be entry "1-3" of Schedule-1 i,e, "urban development projects" and for this very reason perhaps the Agency in all apartments cum shopping center project has accepted and approved IEE filed by the proponents of such projects.
52. ' In view of what has been discussed above, we while dismissing Constitutional Petition No, D-1970 of 2010, allow Constitutional Petition No, D-1272 of 2010 by holding and declaring that the Order dated 26-4-2010 passed by the EDO/MPGO to the extent of withdrawing the commercial status of Plot No, F-96, Block-7, Khayaban-e-Roomi, Clifton, Karachi on the ground of being "security risk" to Jamat Khana is mala fide and without jurisdiction and therefore, is set aside. Since Initial Environmental Examination (IEE) filed by the petitioner already stands approved and accepted by the Agency, therefore, the petitioner would be at liberty to start raising construction but strictly in accordance with the approved plan. Likewise, we while allowing Constitutional Petition No,D-3410 of 2010 strike down letter dated 10-10-2010 of the Agency directing the petitioners Messrs Zubair and Muhammad Ali to file IEA in respect of Plot No,F-94/I, KDA Scheme No,5, Karachi being discriminatory and without lawful authority. Since these petitioners have also filed IEE which would be considered by the Agency in accordance with law and at par with proponents of Constitutional Petition No, D-1272 of 2010 at the most within fifteen (15) days, failing, these petitioners would also be entitled to raise construction in accordance with the approved plan.