' MUNIB AKHTAR, J.---The question that arises in this petition is whether the respondents. Nos. 8-10 ("contesting respondents") are entitled to construct a ground plus eight storey apartment building on Plot No, 18/1, Civil Lines Quarter No, 6, Karachi ("subject property") comprising of 16 residential flats. This challenge has been mounted by the petitioner on two grounds. Firstly, it is contended that the construction of the proposed building would amount to a change of land use from residential to flat site and since no such permission has been granted would violate the Karachi Building and Town Planning Regulations, 2002 ("2002 Regulations"). Secondly, it is contended that the contesting respondents were required to file an environmental impact assessment (EIA) under section 12 of the Pakistan Environmental Protection Act, 1997 ("1997 Act") read with the relevant regulations framed pursuant thereto and obtain the approval of the concerned environmental agency. This not having been done, the construction is alleged to be unlawful. The petitioner seeks declaratory and injunctive relief accordingly.
2. The, petitioner is a banking company and owns a property that is perpendicular to the subject property. The petitioner's property has a residential bungalow, which is used by its chief executive for the time being, and this is the basis on which standing is claimed to file the petition. Learned counsel for the petitioner submitted that the subject property was a plot of around 1500 sq. Yards and only a residential bungalow could be built on it. It could not be used for construction of an apartment building. Learned counsel referred to Regulation 18-4.2 of the 2002 Regulations, which deals with change of land use of residential plots. This provides that "no residential plot shall be converted into any other use except with the approval of MPGO after the recommendations of the Concerned Authority". MPGO stands for "Master Plan Group of Offices", a -department established to implement the 2002 Regulations (see Regulation 2-78, as well as 2-37, which defines "concerned authority"). Regulation 18-4.2 lays down a detailed procedure as to how the conversion exercise is to be carried out, and learned counsel submitted that neither that 'procedure had been adopted nor the necessary approval accorded. Thus, the subject property could only be used for the construction of a residential bungalow and not an apartment building, as presently underway.
3. Learned counsel also referred to Chapter 25 of the 2002 Regulations, which deals- with zoning regulations and area standards. It was submitted that this separately and specifically provides for relevant standards for residential purposes (Regulation 25-2) and flat sites (Regulation 25-4) and other uses, such as amenity plots and commercial usage. Learned counsel contended that this clearly showed that the 2002 Regulations drew a distinction between residential use and the use of a plot for an apartment building. The one could not therefore be mixed up with the other. This submission was also in part a response to a ground taken by the contesting respondents in their reply, namely that the issue of land use had been settled by an unreported decision of a Division Bench of this Court dated 9-8-2001 (Farrokh K. Captain and others v. Karachi Building Control Authority and others Constitutional Petition D-549/1997 and other connected petitions). Learned counsel for the petitioner submitted that that decision (hereinafter "Farrokh Captain") dealt with the predecessor Karachi Building and Town Planning Regulations, 1979 ("1979 Regulations"). The relevant provision of the latter had provided that no residential plot shall be converted into any other use except with the approval of MP&EC (Authority under Sindh Building Control Ordinance 1979) after recommendations of the Concerned Authority" (see para 15 of the decision). This was paragraph 4 of Schedule D to Part II of the 1979 Regulations. Although this provision looked remarkably like Regulation 18-4.2 of the 2002 Regulations, reproduced above, learned counsel submitted that the 1979 Regulations had not catered, specifically and separately, for flat sites as was the case under the 2002 Regulations. Thus, it was submitted, Farrokh Captain did not apply to the facts at hand. In this context, learned counsel also referred to Zaheer Ahmed Chaudhry and others v. City District Government, Karachi and others 2006 YLR 2537 (SHC), where at pg. 2569 the learned Division Bench had agreed with a submission made by counsel "that the Honourable Supreme Court has already decided the issue that flats can be constructed on a residential plot", and held accordingly. Learned counsel respectfully submitted that to the best of his knowledge, the issue had not been decided by the Supreme Court. Thus, his case was that there was no binding authority as presently relevant to the effect that an apartment building could be constructed on a residential plot. The matter, according to him, clearly fell within the prohibitions contained in the 2002 Regulations, and the construction on the subject property violated the relevant provisions thereof.
4. Insofar as the second ground was concerned, learned counsel referred to section 12 of the 1997 Act and various definitions from section 2 thereof. Section 12(1) requires the proponent of a project to file an initial environmental examination (IEE) or environmental impact assessment (EIA), as the case may be, with the concerned environmental agency, and construction or commencement of the project is impermissible without its approval. Learned counsel submitted that the construction of the apartment building came within the meaning of "project" and the contesting respondents were its "proponent". Learned counsel also referred to the relevant regulations, the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessm ent Regulations, 2000 ("the Environmental Regulations") and submitted that in the present case, an EIA had to be filed. Learned counsel submitted that the present construction came within the ambit of Regulation 4 read with paragraphs A:3, G:2 and/or J:2 of the second schedule to the Environment Regulations. Since admittedly no EIA had been filed nor approved, the construction being carried out was in violation of the 1997 Act and liable to appropriate remedial action. Learned counsel relied on Farooq Hamid and others v. L.D.A. And others 2008 SCMR 468 and certain Division Bench decisions of this Court, being Nighat Jamal v. Province of Sindh and others 2010 YLR 2624, Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293, 2007 CLD 783 and Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Karachi
498. Our attention was also drawn to an unreported Division Bench decision of this Court, Clarissa James and another v. S.I.S. Builders and Developers and others (Constitutional Petition D-2924/2011 dated 2-11-2011). Learned counsel submitted that the petitioner was entitled to relief on both the grounds taken, and prayed accordingly.
5. Learned counsel for the contesting respondents strongly opposed the petition, and took a number of preliminary objections. It was submitted that the petition was hit by laches for the reason that although the project had been initiated by the contesting respondents in March, 2012 the petition had been filed in November, 2012. Learned counsel submitted that the project had been properly advertised and that the construction had been going on in full swing at the site. It was therefore not possible for the petitioner not to have been aware of it. Yet, the petitioner waited for several months before launching the present proceedings, by which time the construction had progressed substantially. The petition was therefore also barred by reason of waiver or acquiescence. Learned counsel submitted that the petitioner had concealed material facts from the Court and had come with unclean hands. It was submitted that in fact the petitioner had filed a petition against the contesting respondents in respect of the construction of a project on a neighbouring plot. That petition had been on identical grounds but was subsequently withdrawn.
Learned counsel submitted that the present petition was therefore hit by constructive res judicata.
Learned counsel also submitted that there were a number of high rise buildings in the area and provided a list of the same, which had not been objected to by the petitioner. He submitted that it would be discriminatory to grant the petitioner relief in the present petition in view of the existing construction of a similar nature.
6. On the merits, learned counsel submitted that the building was being constructed after all the approvals and permissions had been obtained and strictly in accordance with the same. In this regard, he pointed out that the Sindh Building Control Authority (SBCA) had confirmed this position and had also filed a para-wise reply praying that the petition be dismissed. Learned counsel contended that the area in which the subject property was located was an old part of Karachi (and in particular, the area was the Civil Lines) in which there were no flat sites, but there were numerous high rise buildings both commercial and residential. His case was that Regulation 25-4 did not apply at all in such circumstances. It only had relevance in relation to those areas where, and for which, flat sites had been demarcated. In the present case, the requirements or regulations for residential construction were applicable and these had been fully complied with. It was submitted that there was no material difference between the previous Regulations and the 2002 Regulations with regard to the use of residential plots for construction of apartment buildings. Thus, what had already been held by this Court in Farrokh Captain was fully applicable, and the present construction was lawful. In particular, learned counsel also submitter that proper compulsory open space had been left around the building as required by law and the necessary parking space had also been provided for. Insofar as the 1997 Act was concerned, learned counsel submitted that it was not applicable, but -by way of abundant caution, the contesting respondents had filed an initial environmental examination (IEE) with the provincial environmental agency, which had approved the same. Therefore, on any view of the matter, the grievance with regard to environmental issues was without substance. Learned counsel prayed that the petition be dismissed. Exercising his right of reply, learned counsel for the petitioner submitted that the preliminary objections were without substance and that the respondents had been unable to answer the case on the merits. At the conclusion of the hearing, we had allowed learned counsel to submit written synopses and they did to, along with the case-law that they wished to rely upon.
7. We have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. We begin with the environmental issue. The provisions of the 1997 Act and the Environmental Regulations are as follow:--- "2. Definitions.---In this , Act, relevant unless there is anything repugnant in the subject or context,--
(i) "adverse environmental effect" means impairment of, or damage to, the environment and includes-
(a) impairment of, or damage to, human health and safety or to biodiversity or property;
(b) pollution; and
(c) any adverse environmental effect as may be specified in the regulations;
(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;
(f) 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);
(xi) "environmental impact assessm ent" [EIA] means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formula-provisions of the 1997 Act and the section of environmental management Environmental Regulations are as follows:-- and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed;
(xvi) "Federal Agency" means the Pakistan Environmental Protection Agency ... Or any Government Agency ... Exercising the powers and functions of the Federal Agency;
(xvii) "Government Agency" includes ...
(c) a Provincial Environmental Protection Agency; ...
(xxiv) "initial environmental examination" [IEEJ 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; (xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission of effluent or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity;
(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 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
(f) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installations; (xxxvi) "proponent" means the person who proposes or intends to undertake a project;".
"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 Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect an environmental impact assessment, and has obtained from the Federal Agency approval in respect thereof.
(2) The Federal Agency shall-
(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 ... [there follow three sub-clauses which are not relevant for present purposes].
(4) The Federal 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 Federal 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 Federal Agency shall maintain separate registers for initial environmental examination and environmental impact assessm ent 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)."
' The Environmental Regulations provide in material part as follows:-- "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 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.
SCHEDULE II (See Regulation 4)
List of projects requiring an EIA A. Energy ...
3. Transmission lines (11 KV and above) and grid stations. ...
G. Waste Disposal ...
2. Waste disposal facilities for domestic or industrial wastes, with annual capacity more than 10,000 cubic meters.
J. Other projects ...
2. Any other project likely to cause an adverse environmental effect."
8. Section 12 is one of the key provisions of the 1997 Act and a proper appreciation of its scope and application are essential to understand the scheme of the statute. Particular attention must be given to subsections (1) and (6). It will be seen that in section 2, the key terms such as "environment", "project", "pollution" and "adverse environmental effect" are defined in exceedingly broad terms (and this is so notwithstanding the use of the word A "means" in these definitions). This is understandable. After all, the complexity and diversity of the environment, and that what can affect it adversely are beyond any exhaustive description. Furthermore, the situation is not static.
As time passes and technologies change, populations grow, material circumstances alter and (perhaps most importantly) awareness of and sensitivity towards environmental issues deepens and becomes more sophisticated, notions both of what constitutes the environment and impacts on it adversely, continue to evolve dynamically. Rather than having to alter the law periodically to meet these changes and challenges, the legislature has taken a proactive approach, in the sense of using broadly worded and flexible definitions. But, there is a catch. Subsection (1) of section 12 requires that in respect of every project, there must be the filing of an IEE or, if the project is likely to have an adverse environmental impact, the filing of an EIA. When this requirement is read in the light of the broad definitions used, the necessary consequence would be that an exceedingly large number of projects would fall in the net of subsection (1). As a, result, there would have to be a huge number of filings of IEEs at the very least, or EIAs as the case may be. It may even be that matters which, in practice, do not have (or at least are not now regarded as having) an adverse effect on the environment may get caught in the literality of the broad language used in the definitions. So the legislature has (if we may put it so) very sensibly provided a balance by means of subsection (6). This is a very important provision. It expressly limits the application of all of the previous subsections "to such categories of projects and in such manner as may be prescribed".
The legislative intent is clear. The broad definitions used in section 2 read with section 12(1) have etched into the law an exceedingly wide ranging requirement and obligation. But, the applicability of this requirement and obligation at any given time, and for the time being, is controlled and modulated by subsection (6). It is for the executive agency to determine the categories of projects that are, in fact, for the time being, or at any given time, to actually fall in the net of subsection (1).
The canvas provided by the legislature is large indeed; what is to be painted thereon at any given time or for the time being is in the hands of the executive agency. But this duty is not static. The agency cannot frame the regulations and specify the categories of projects under subsection (6) on a onceand-for-all basis. The role envisaged for the agency is dynamic. The regulations to be prescribed for subsection .(6) are quite obviously intended to be reviewed from time to time to take into account the various factors listed above (and no doubt others) that can affect the environment. For example, technologies undreamt of today may become commonplace tomorrow and impact on the environment: the regulations under subsection (6) can dynamically take this into account. Even those matters that exist today and for the time being are regarded as having no effect on. The Would require (or at least not such as ould require action) may in the future require a reappraisal, and the existing view may change. Again, the regulations under subsection (6) can cater for this situation. Indeed, it is conceivable that the reverse of what has just been postulated may also be true: that which is today regarded as adversely affecting the environment and therefore is included in the regulations may cease to be a problem in the future. Again, the regulations can be suitably altered.
9. In our respectful view therefore, it would be seriously misleading to read the 1997 Act ,without keeping in mind that the legislature has sought to achieve two objectives. On the one hand, it has balanced the competing (and perhaps to a certain extent conflicting) demands of describing environmental issues in broad and expansive terms and yet keep the requirements being imposed firmly anchored within a manageable framework at any given time and for the time being. On the other hand, it has also ensured that the anchor so provided does not become an unbreakable (and therefore unacceptable) chain that prevents a dynamic response to ever changing circumstances. The learned Division Bench in Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 was perhaps alluding to this vital balancing act when it observed:-- "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." (pg. 309)
10. In our view, the 1997 Act and the Environmental Regulations must be read, interpreted and applied in the foregoing manner. The interplay between the definitions, subsection (1) and subsection (6) constitutes a dynamic equilibrium that provides certainty at any given time as to what projects require the filing of an IEE or EIA, and also flexibility over time to cater for changing circumstances. It may also be noted that the requirement that the executive agency must adopt a dynamic and proactive approach and periodically update the regulations is a statutory duty.
Should the agency fail to discharge it properly, an order in the nature of mandamus may lie in appropriate circumstances to (e.g.) include (or even exclude) a category of project in (or from) the regulations, or to shift an existing category from the first to the second schedule or vice versa. It will be seen later in the judgment that this aspect is of some relevance in understanding the cases cited before us.
11. As noted above, learned counsel for the petitioner contended that an EIA had to be submitted for purposes of the present project and when invited to particularize his case, placed reliance on paragraphs A:3, G:2 and J:2 of the second schedule to the Environmental Regulations. It is important to keep in mind that subsection (6) requires the regulations to specify the "categories" of projects, and not particular or specific projects as such. Therefore, whenever an issue arises as to whether the 1997 Act is applicable, it is not only section 12 that must be considered; equally importantly, the Environmental Regulations must also be looked at. Furthermore, in order to apply the regulations properly, one must clearly identify both the category in which the project at hand is stated to fall and the proponent of that project. The latter requirement flows directly from subsection (1), since that requires the "proponent" to file the IEE or EIA, as the case may be. When paragraph A:3 of the second schedule is viewed in this light, it is, with respect, clear that this cannot apply to the contesting respondents' apartment building. The reason is that the "project" there identified is transmission lines (above a certain voltage) and grid stations. The proponent of such a project would obviously be an electric supply, or transmission, company or a power generation plant. The contesting respondents cannot be regarded as the proponent of any such project. The fact that the apartment building would need and draw electric power, which will be supplied along transmission lines connected to some grid station, is of no consequence. The use of the output of a project does not make the user the proponent of the project. Likewise, the reliance placed on paragraph G:2 is, with respect, misconceived. Again, one has to keep in mind the nature of the "project" envisaged by this paragraph. It is a waste disposal project. The fact that waste is generated by the occupants or users of any building, whether it is a residential bungalow, office tower, factory, shopping complex, set of apartments, town houses or otherwise, does not of itself mean that these are therefore projects of "waste disposal facilities". Of course, it may be that a 'particular project has its own specially designed and designated waste disposal facility. This is not uncommon and such facilities can be found, e.g., in factories. There, such facilities may well come within the ambit of paragraph G:2 and the proponent may therefore have to file an EIA. But, it will be appreciated that this situation is materially different from a mere generation of waste, which passes into the sewerage system to which the building is connected.
12. We turn to consider paragraph J:2. This appears to be a general or catch all provision: "Any other project likely to cause an adverse environmental effect". At first sight, this seems reasonable enough. However, in our view, a closer look reveals a fundamental flaw. The reason is subsection (1). It will be recalled that that requires an EIA to be filed in relation to a project that is likely to cause an adverse environmental effect. Thus, the categories of projects that are required to be set out in the regulations made pursuant to subsection (6) are ipso facto those which are likely to have such an effect. Put differently, the very listing of a category of project in the second schedule indicates that (at least in the view of the environmental agency) it is likely to have an adverse environmental impact. Paragraph J:2 therefore tells us nothing. It has no substantive content. It is circular, simply referring back to its origination (subsection (1)). Indeed, it may well be ultra vires the requirements of subsection (6). This is so because the categories of projects that are required to be specified must be the projects that are or can be actually undertaken, and must therefore be those which can be identified or described by some measure other than their adverse environmental effect.
This paragraph also therefore does not advance the petitioner's case.
13. The case-law cited by learned counsel for the petitioner may now be considered. We will first take up the decisions of this Court, in chronological order. Shehri C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 involved a co-generation project, comprising of a 94 MW power plant along with a three million gallons a day (MGD) desalination plant. It was contended by the proponent of the project that it only needed to file an IEE and not an EIA, and this contention was accepted by the environmental agency. This decision was challenged by the petitioner NGO. It was held by the learned Division Bench that since the co-generation project had the desalination plant as an integral part of it, it came within the ambit of paragraph F of the second schedule, and hence an EIA was required. This case provides no assistance to the present petitioner. In Shamsul Arfin and others v. Karachi Building Control Authority and others PLD 2007 Karachi 498 ("Shamsul Arfin"), the issue was in relation to a residential complex being built on the relevant plot. One of the grounds taken by the petitioners was that approval of the environmental agency was required for the project, although, with respect, it is not clear from the report whether this was contended to be an IEE or an EIA, and the specific provision from the schedules to the Environmental Regulations that was invoked (if any) was also not identified. Be that as it may, the learned Division Bench observed as follows (pg. 506): "In our view the petitioner's argument that permission from Environment 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 case of the environmental effect of the building proposed to be constructed. Therefore, the question of first seeking permission for a residential building from Environment Protection Agency does not arise at all."
' Clearly, this decision does not assist the petitioner's case. In Nighat Jamal v. Province of Sindh and others 2010 YLR 2624 ("Nighat Jamal"), the issue was the "conversion of a residential plot into commercial and construction of a multistory residential-cum-commercial building thereon" (pg.
2627). One of the objections taken was that the permission of the environmental agency had not been obtained under section 12 of the 1997 Act. The learned Division Bench noted the petitioner's objection that the change of land use (from residential to commercial) came within the definition of "project" and that no permission had been obtained from the environmental agency by the proponent of the project (pg. 2642). Section 12 was referred to, and the definition of 'project" in section 2(xxxv) was reproduced in extenso. It was observed as follows (idem.):-- "There can be no two views that in all cases where an area notified for residential purposes is reclassified for commercial activity it is likely to cause an adverse environmental impact for the simple reason that after converting a residential area into commercial a large number of additional people and vehicles would visit and pass through such area and would cause environmental pollution and unless prescribed measures to avoid such environmental pollution as directed by Pakistan Environmental Protection Agency are adopted such reclassification or construction may not only be illegal but a culpable offence under the "Act 1997" and may violate the basic right of the residents of such reclassified residential zone."
' Reference was made to a leave granting order of the Supreme Court reported as SHERI-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202, and it was further observed as follows (pg. 2643; emphasis supplied):- "Since the issue is already before the apex Court, therefore, we without further dilating or providing for any consequences would direct the respondents to approach the Agency under the "Act 1997" for obtaining necessary approvals for reclassification and construction before commencing further construction."
' In our respectful view, this decision also does not advance the petitioner's case. The reason is three-fold. Firstly, it was held by the learned Division Bench that the conversion of the plot from residential to commercial constituted a change of land use and brought it within the definition of "project". The position in the case at hand is that the subject property is not being converted from residential into some other category. Rather, the grievance is that a residential plot cannot be used for construction of an apartment building, which is not the same thing. (This is, of course the second ground taken by the petitioner, and is dealt with below.) Secondly, the learned Division Bench did not, in the circumstances, give a definite finding. It specifically stayed its hand on account of the leave granting order of the Supreme Court. Thirdly, and in our respectful view most importantly, it appears that the attention of the learned Division Bench was not drawn to subsection (6) of section 12 and its central and crucial role in relation to the application of the other subsections, in particular subsection (1). We would also respectfully draw attention to paragraph I of the first schedule to the Environmental Regulations and paragraph H of the second schedule thereto. It may be that the urban development projects referred to therein may include the sort of project that was before the learned Division Bench. However, these paragraphs would certainly not apply to the project at hand in the present case. The last decision of this Court referred to (we would note, very fairly) by learned counsel was Clarissa James and another v. S.I.S. Builders and Developers and others (unreported, supra). This concerned the construction of a high rise building project of a residential nature. The principal objection taken was that permission under section 12 had not been obtained. The learned Division Bench was referred to both Shamsul Arfin and Nighat Jamal. The latter decision was distinguished on the facts and the former was applied, with the result that the petition was dismissed.
14. Learned counsel for the petitioner also relied on Farooq Hamid and others v. L.D.A. And others 2008 SCMR 468. The matter came to the Supreme Court by way of a petition for leave to appeal ,against a decision of the Lahore High Court, which had arisen out of a suit filed in the civil courts at Lahore. The plaintiffs, who were the petitioners before the Supreme Court, alleged that a multi- storeyed shopping-cumresidential plaza was being constructed on the plot adjacent to their property, and that excavation work carried out for the said purpose had caused "severe lateral movement" of the land as a result of which their house had suffered material structural damage. It was alleged that the construction of the plaza, inter alia, violated section 12 of the 1997 Act. An application was made for interim injunctive relief, which was refused by the trial court. An appeal was preferred to the High' Court, which also failed and the plaintiffs therefore petitioned the Supreme Court. As stated therein, the builder described his plaza as a seventeen storey structure "comprising shopping arcades and residential apartments etc. And to cater for the parking requirements of the occupants and of the users of the said building, he also intended to construct four underground basements as parking lots" for which purpose he had to go as much as 50 feet below ground (pg. 471). The Supreme Court observed as follows (idem.):-- "6. The last two decades had witnessed a new culture in the city of Lahore i,e, construction of high- rise buildings comprising of shopping complexes, residential apartments and even cinema houses etc. The main Boulevard of Gulberg, for instance, which was once a purely residential area appears to have become a focus of multi-storeyed commercial buildings. Each residential plot on the said main Boulevard comprised of 8 to 10 Kanals of land wherein 10 to 15 persons including the owner and the servants resided. Presently, on each such plot, multi-storeyed buildings have been and are being built which are used by hundreds of persons every day i,e, the ones living there and the ones visiting the shopping arcades etc. Provided therein. Needless to say that such a huge multiplicity of users of each of the said plots is likely to cause problems of immense magnitude, inter alia, in the matter of capacity of the roads catering for the resultant traffic; the parking space for the vehicles being used by the said users; the availability of adequate water supply catering for such a large number of persons; the capacity of sewerage facilities for draining the water and the sewerage caused by such users and so on. Before the advent of this new era of multi-storeyed plazas, single storeyed or at the most two storeyed houses existed on the said plots which were used by the ones constructing them or the tenants inducted therein. On account of the comparatively small nature of the construction raised and the smaller number of individuals using the same, the structural stability of the said houses was never a serious issue."
' It was further observed as follows (pg. 473): "11. As has been noticed above, the matter in hand does not remain confined only to the building in question being raised by respondent No,6 and is in fact a matter which concerns the public-at- large and all the multi-storeyed buildings being constructed at least in the city of Lahore. On our call, the L.D.A. Has submitted a tentative list of more than one hundred buildings comprising of three storeys and more which were being constructed in various parts of the city of Lahore including the areas in the old city like Shah Alam Gate etc. This list submitted by the L.D.A. Is, however, not exhaustive or conclusive and the number of such buildings could be much more.
12. The situation is alarming. Such a large number of multi-storeyed high-rise buildings are being constructed all over the city without ensuring compliance of security measures; proper supervision and adherence to the law regulating the subject and the same are thus, a serious hazard to the safety of the people and the properties. Since the Authority obliged to take steps in the matter has failed to do so, therefore, we feel compelled to take appropriate steps in the larger interest of the public who have a constitutional right to the protection of their lives and properties."
' The Supreme Court gave certain directions with respect to the plaza whose construction had been challenged in the civil suit, by consent of the parties before it. It also directed, more generally, as follows (pg. 474):-- "15. The L.D.A. Is directed to carry out a similar exercise with respect to the other multi-storeyed buildings being constructed in the city by hiring some duly qualified consultants who would also submit their report with respect to each of the said buildings including a report whether the same were being constructed in compliance with all the rules and regulations governing the subject including the compliance of the provisions of the Pakistan Environmental Protection Act of 1997."
' It may be noted that the decision was not the final judgment in the case, as is clear from the last paragraph thereof.
15. In an earlier part of the cited decision, in para 8 (pg. 472), the Supreme Court had observed as follows: "The provisions of Pakistan Environmental Protection Act of 1997 demand environment impact assessm ent of each such project before any plan for the construction of the same could be sanctioned". Understandably, learned counsel for the petitioner placed a great deal of emphasis on this sentence. However, with respect, it has to be read in the context of the decision as a whole.
That context, in our respectful view, is provided by the passages that we have cited at length above (see, e.g., the first sentence of para 11 thereof). In our respectful view, the Supreme Court, in the exercise of its plenary jurisdiction (and not only its appellate jurisdiction under Article 185(3)), directed the environmental agency and/or LDA to take action with regard to a certain category of project, namely, multi-storeyed, high-rise buildings being constructed in the city of Lahore. This, we would respectfully suggest, was tantamount to a direction to the environmental agency to, in effect, regard this category of project as included in the regulations framed under and for purposes of subsection (6) of section 12. In other words, in our respectful view, it was a direction in the nature of mandamus for the environment agency to dynamically discharge its statutory duty along the lines indicated in para 10 herein above. In our respectful view, this decision does not therefore advance the petitioner's cause, since the case presently at hand is limited to a consideration whether the contesting respondents' apartment building requires the filing of an EIA within the framework of the Environmental Regulations as they stand at present and in terms of the paragraphs of the second schedule that have been relied upon. In view of the foregoing discussion therefore, we conclude that the petitioner has been unable to make out a case on the basis of the 1997 Act.
16. We turn to consider the second ground, which requires a consideration of Farrokh Captain and the 2002 Regulations. Paragraph 4 of Schedule D to Part II of the 1979 Regulations, which was considered in Farrokh Captain, and Regulation 18-4.2 of the 2002 Regulations have been reproduced above (see paras 2 and 3). Reference has also been made to the procedure laid down in Regulation 18-4.2 for conversion of a residential plot to any other use. The corresponding provision in the 1979 Regulations was also considered in Farrokh Captain. This was paragraph 3 of Schedule D to Part II. The learned Division Bench accepted the submission by counsel that "as long as the use for residential purposes is retained", the requirements of paragraphs 3 and 4 would not be engaged. It was sought to be argued that bungalows, town houses and flats were separately categorized for residential use in the 1979 Regulations, and therefore the use of a residential plot for apartments or flats would require paragraphs 3 and 4 to be applied. As to this, the learned Division Bench observed that "if the law makers intended to treat use from one category to another category of residential use as conversion, they could have simply done so by designing para 4 of Schedule 'D' Part II, on the same [pattern] as para 3". When the submissions made by learned counsel for the petitioner in the present case are compared with what was argued in Farrokh Captain, the arguments are (subject to what is stated below) remarkably similar. We have already noted the close similarity between the provisions of the 2002 Regulations and the 1979 Regulations.
With respect, we have been unable to detect any substantive difference as would permit us to take a view different from that which has already found favor with this Court in Farrokh Captain. This is especially so because it is not disputed before us that the construction underway at the subject property is of a purely residential nature, i,e,, comprises of 16 flats for such use and accommodation.
17. The difference sought to be made out on the basis of Regulations 25-2 and 25-4 is, with respect, not relevant for present purposes. Chapter 25 is concerned with zoning regulations and area standards and it is therefore not surprising that it has divided the plots into various categories such as commercial, industrial, residential and flats. But that does not address the question that is before us. We may note that it was not contended by learned counsel for the petitioner that there were flat sites specifically demarcated in or for the area where the subject property is located. In our view, the present matter stands covered by Farrokh Captain and the issue at hand ought to be answered in the same manner in relation to the 2002 Regulations as was held in respect of the 1979 Regulations. We hold accordingly.
18. The subject property is leasehold land, and the lessor is the respondent No, 1, the Karachi Municipal Corporation (KMC). KMC filed its counter affidavit on or about 14-1-2013. In terms thereof, the petition is opposed and it is prayed that it be dismissed. It was stated in the counter affidavit that sometime in 2008, the then owner (i,e,, lessee) of the subject property had applied for its sub- division into component plots. This permission was granted. The counter affidavit stated that at that time, an undertaking was obtained from the then owner that "after sub-division of above mentioned plot, [it] will be utilized as per its Original Allotment Conditions/Lease Conditions and it shall not be constructed/used as Flat Site/Town House and Commercial Structure". At the same time, the counter affidavit also noted that "the Residential Plot was converted into FLAT/SITE".
Learned counsel for the contesting respondents explained that the present owners of the subject property had on or about 28-10-2011 obtained a re-amalgamation of the subject property and the earlier order of the sub-division stood withdrawn. Learned counsel placed the relevant documents on record by means of statement dated 22-3-2013. His case was that the undertaking, if any, given by the previous owner was not binding on the present contesting respondents, but in any case was no longer effective as it was a condition for the sub-division, which had been reversed. Learned counsel for KMC also filed certain documents along with a statement dated 29-3-2013. One of these documents was an (undated) letter addressed to him by a deputy director of KMC, which purported to state that the letter dated 28-10-2011, whereby the subject property had been re- amalgamated was "fake". Learned counsel for the contesting respondents took strong exception to the undated letter and pointed out that it was not even on KMC letterhead and its provenance and authenticity had not been established. The objection taken was reasonable and by order dated 29-3-2013, we directed that the claim made in the undated letter must be supported by an affidavit of the KMC officer concerned. No such affidavit has been filed, and we therefore do not take any notice of the undated letter filed on behalf of KMC on 29-3-2013 or the allegation made therein.
19. Perhaps on the foregoing basis, learned counsel for the petitioner took up a third ground in the written synopsis filed by him. In brief, his submission was that on account of the aforesaid undertaking given by the predecessor-in-interest of the present contesting respondents, "the construction on the property would at all times remain as per the original grant i,e, for a residential bungalow". Learned counsel developed this ground in considerable detail, copiously citing case- law, both Pakistani and English. While we commend the efforts made by learned counsel in this regard, we cannot allow him to take this ground in such manner. The reason is that this ground was not taken during arguments at the bar before us, but only taken (and, as noted, extensively developed) in the written synopsis. Quite obviously, learned counsel for the contesting respondents has had no opportunity to respond to the same. It would therefore not be fair to the contesting respondents to allow such a submission to be made and developed in this manner. What learned counsel for the petitioner did submit in exercise of his right of reply (on 8-5-2013) was that in the aforementioned letter of 28-10-2011, whereby the subject property had been re-amalgamated, it was stated by KMC that the contesting respondents "shall abide all rules/ regulations and adhere to all terms and conditions of GRANT of the plot in future". Learned counsel had submitted that this meant that only a residential bungalow could be constructed on the subject property. In our view, this understanding of what was stated by KMC is not correct in terms as pressed. It certainly cannot alter the legal position, which is as stated by the learned Division Bench in Farrokh Captain.
This submission cannot therefore be accepted.
20. Since we have come to the conclusion that the petitioner has failed to make out a case on the merits, it is not necessary for us to consider the preliminary objections taken by learned counsel for the contesting respondents, nor the reply thereto by learned counsel for the petitioner.
21. In view of what has been said above, we conclude that this petition fails. It is therefore hereby dismissed. There will be no order as to costs.