' This petition raises issues with regard to right of clean and healthy environment, environmental approvals affecting air, land, buildings and structures as well as social and economic conditions allegedly affecting community life of petitioners, etc. In this constitution petition, the petitioners have called into question the decision dated 07.11.2014 issued by Respondent No, 1/Environmental Protection Agency, Punjab contending the same in glare violation of procedural and substantive requirements of relevant environmental legislation, through which environmental clearance/approval for construction of a multi-storey hotel at Sundar Das Road, Zaman Park, Lahore has been granted. The petitioners brought all glaring illegalities committed while issuance clearing/approval for construction of a multi-storey hotel to the attention of Environmental Protection Agency, Town Municipal Administration, Gulberg Town and Lahore Development Authority/Respondents No, 1, 3 & 5 respectively. However, the respondents have ignored the letters written by the petitioners and failed to provide any response. It has been further contended that petitioners cannot be sent to the Environmental Tribunal of the Province since the same is ultra- vices, the Constitution, being in violation of Articles 175(3), 202 & 203 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the petitioners have filed the instant constitutional petition.
2. Learned counsel for the petitioners while reiterating the grounds urged in the instant constitutional petition, in detail, has prayed for acceptance of the same and declare:-- * The impugned Decision of EPA as illegal and without legal effect, furthermore declare impugned decision as violating Petitioners' right to a safe and healthy environment; * EPA as a de-funct body till Advisory Committees are constituted and restrain it from granting any environmental approvals till such time; * Exclusion of Petitions/public from any approval process regarding environment (EIA and/or IEE) as illegal, void and without legal effect; * Any provision of IEE and EIA Regulations, 2000 that go beyond PEPA 1997 as ultra vires the Act; * Rules 37(2) and (3) of the LDA Rules 2014 as illegal and unconstitutional; ' Sections 2, 3(c), 6, 14-A and 46 of LDA Act as unconstitutional; ' Any commercialization 'permissions regarding the Plot and/or Sundar Das Road by LDA, vide approval dated 25-11-2014, as illegal and unconstitutional; ' The Traffic Impact Assessm ent Study Report, dated 06.11.2014, prepared by Traffic TEPA, as illegal, void and without legal effect; ' Suspend, in the interim, the operation and effect of Impugned Decision; ' Restrain TMA Gulberg Town, in the interim, from allowing any work to commence on the Plot; and ' Environmental Tribunal as illegal and unconstitutional since it violates Articles 175(3), 202 and 203 of the Constitution.
' Relies on Lahore Development Authority through D.-G. And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, L.T-Cola Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty PLD 1961 Supreme Court 119, Gatron (Industries) Limited vs. Government of Pakistan and others 1999 SCMR 1072, Khalid Mehmood vs. Collector of Customs, Customs House, Lahore 1999 SCMR 1881, Farzand Raza Naqvi and 5 others vs. Muhammad Din through Legal Heirs and others 2004 SCMR
400. Moulvi Saif Ullah Mernon and another vs. Province of Sindh and others 2011 CLC 1004, Muhammad Irshad and another vs. Tehsil Municipal Administration through Tehsil Nazim, Lodhran and 3 others 2006 CLC 1902, St. Judge's Secondary School and others vs. Employees old-age Benefits Institution and another 1988 PLC 746, Gulistan Textile Mills Ltd vs. Pakistan 1983 CLC 1474 Karachi, Messrs S.A. Haroon and others vs. The Collector of Customs, Karachi, and the Federation of Pakistan PLD 1959 Supreme Court (Pak). 177, Mirza Muhammad Iqbal and others vs. Government of Punjab PLD 1999 Lahore 109 & Pakistan through Secretary Finance, Islamabad and 5 others vs. Aryan Petro Chemicals Industries (PVT), Ltd, Peshawar and others 2003 SCMR 370.
3. Nay-saying the submissions made by the learned counsel for the petitioners, the learned counsel appearing on behalf of the Respondent No, 8 accompanying the representatives of other respondents has argued that petitioners have adequate, efficacious and alternative remedies of approaching the Environmental Protection Tribunal, Lahore. Therefore, the instant writ petition being not maintainable may be dismissed. Relies on Lahore Development Authority through D.-G.
And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, Qazi Ali Athar, Advocate vs. Zawar Ahmed Khan Sherwani and 3 others 2007 MLD 1884-Karachi, Idress Ahmed Aftab vs. Government of Punjab, and others 2015 CLG 1295-Lahore, Ms. Salina Iqbal Chundrigar and others vs. Federation of Pakistan through Secretary Ministry of Environmental Protection, Islamabad and others 2009 CLD 682-Karachi, Bilal Akbar Bhatti vs. Election Tribunal, Multan and 15 others PLD 2015 Lahore 272, Suo Motu Case No, 13 of 2010, 2013 SCMR 591-Supreme Court of Pakistan, Nayyer Khan vs. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi, Cantt. And others 2015 CLC 978, Syeda Abida Hussain Imam and others vs. The Province of Punjab through Secretary and others 2015 YLR 1522-Lahore.
4. Learned Assistant Advocate General has argued that instant writ petition is not maintainable for the reasons that Section 22 of the Punjab Environmental Protection Act, 1997 provides remedy of appeal against the order called into question through the instant writ petition before the Environmental Tribunal and Section 21(9) of the Act ibid bars jurisdiction of any other Court and Environmental Tribunal has exclusive jurisdiction for addressing such matters. Even, it is settled principle of law that where a statute provides appeal against an order, constitutional petition is not maintainable. He further argued that when law prescribed a certain procedure to do things then its compliance is mandatory. Relies on Lahore Development Authority through D.-G. And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, Syed Saghir Ahmad Nctqvi v. Province of Sindh through Chief Secretary, S&GAD. Karachi and another 1996 SCMR 1165, Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 Supreme Court 691, Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 and Ghulam Farid alias Farida v. The State PLD 2006 Supreme Court 53.
5. Heard.
6. A Court can proceed in a matter when it enjoys jurisdiction of dealing such controversy, brought before it, and when position speaks otherwise the acts done and proceedings carried on by such Court are nothing but an illegality and nullity in the eye of law. Furthermore, it is settled proposition of law that when Law prescribed a certain procedure to do things then its compliance is mandatory.
7. In the case in hand, the petitioners have adequate and efficacious alternate . Remedies available with them of filing appeal Pt before the Environmental Tribunal, if they feel themselves to be 'aggrieved of impugned order; because Section 43 of the Amended Lahore Development Authority Act, 1975 provides 'no Court or Authority shall have jurisdiction to question the legality of anything done or any action taken under [it], by or at the instance of the [LDA].' Rule 27 of the LDA Land Use Rules, 2014, speaks a remedy of appeal before the Government of Punjab in case of any grievance germane to any order passed by an officer under LDA Act and Rules.
8. Apart from the above, Section 22 of the Punjab Environmental Protection Act, 1997 runs as 'Any person aggrieved by any order or direction of the [EPA, Punjab] under any provisions of this Act' may file an appeal to the Environmental Protection Tribunal, which is functioning at present in full strength with a Chairperson, Technical and General Members, after its establishment under the Punjab Environmental Protection Tribunal Rules, 2012.
Therefore, when the petitioners hare alternate efficacious remedy available with them, they ought to have approached the said forums instead of approaching this Court seeking invocation of B extraordinary constitutional jurisdiction. Reliance is placed on Order dated 28th July, 2015 passed by this Court in W.P. No, 14679 of 2015 (Akram Cotton Mills v. Government of Punjab), wherein it was observed that: "The petitioner has not availed the alternative remedy that is available to him under the statutory tribunal constituted under the Punjab Environment Protection Act, 1997. As a result, the petitioner's writ petition is liable to be dismissed in reliance on the following judgments where remedies were available to supposed aggrieved persons under the law. The following judgments utilize the principle where writ petitions were not mtantainable due to availability of alternate remedies under tribunals: ' Idrees Ahmed Aftab v. Government of Punjab (2015 CLC1295)
' Salma lqbal Chundrigar v. Federation of Pakistan (2009 CLD 682)
' Bilal Akbar Bhatti v. Election Tribunal Multan (PLD 2015 Lahore 272)
' Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition, Bahawalpur (2006 SCMR 219)
Shahjahan v. Amjad All (2000 SCMR 88)'
' In this regard further assistance has been sought from Lahore Development Authority through D.- G. And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, wherein it has been held in reason
(v) mentioned under Paragraph No, 94: `(v).....................................
Moreover, the right of appeal and further remedies on the merits of the EIA approval available under the Pakistan Environmental Protection Act, 1997, have not been availed by the objecting respondents. The EIA cannot be struck down upon presumption or mere apprehension.'
9. It is stance of the respondents that they have followed the rules and regulations in granting approval for construction of Hotel in question, whereas the petitioners claim is otherwise and when law provides specific remedy of assailing any order passed by EPA, Punjab through appeal, the petitioners instead of approaching this Court ought to have knocked the door of a proper forum, which is Punjab Environmental -Protection Tribunal, governed under the Punjab Environmental Protection (Amendment) Act, 2012. ' Moreso, the petitioners have failed to bring on record as to in what manner they would be considered or regarded as aggrieved person as has been observed in Nayyar Khan v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi Cantt.
And others 2015 CLC 978-Lahore, which reads: `To satisfy the requirements of an "aggrieved person" in public interest litigation under Article 199 of the Constitution, the petitioner needs to disclose a personal interest in the performance of legal duty owed to him which if not performed would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.'
At the most, whole the scenario and picture of the circumstances lead this Court to the conclusion that it is a matter of easement rights, for which the proper remedy is available under law, or if, as stated above, the petitioners are aggrieved of approval granting order by the ;respondents, they may avail efficacious and alternate remedy of filing appeal before the proper forum, which has even been mentioned by the petitioners in their constitutional petition.
10. So far as prayer with regard to declaring Rule 37(2) and (3) of the Lahore Development Authority Rules, 2014 as illegal and unconstitutional as well as Sections 2, 3(c), 6, .14-A and 46 of the Lahore Development Authority Act as unconstitutional, is concerned, suffice it to say that same question has been decided once and for all by the August Supreme of Pakistan while passing judgment reported as Lahore Development Authority through D.-G. And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, wherein it has invariably been held: `62. There is no doubt that, as correctly noted by the High Court, the amendments made in the LDA Act, 1975 give LDA the authority to act, to undertake projects and to carry out work, which under the PLGA 2013 is within the Local Government domain. The functions of the Municipal Corporations under Section 87 of PLGA 2013 and that of the LDA under the LDA Act, 1975 overlap.
73. As the test for striking down statues is not met the provisions of the LDA Act, 1975 could not have been struck down by the High Court. At the same time, this Court is mindful of the fact that if the provision of the LDA Act, 1975 are interpreted as giving the LDA authority to overlap and override the Local Government and Section 46 is given full sway, it would result in a Local Government that is devoid of all authority be it political, administrative or financial.
74. The solution, therefore, lies in reading the provisions of the two statutes in harmony. The LDA Act, 1975 is to he regarded as an enabling statue. It allows LDA to act in support of and to complement the Local Government in the exercise of its functions and responsibilities. Where the Local Government is unable to act because of a lack of resources or capacity, or where the project is of such a nature that it spills over from the territory of one Local Government to another or where the size of the Project is beyond the financial capacity of the Local Government to execute; that LDA can step in an work with the Local Government. Economies of scale, spillovers and effectiveness are merely illustrative of the situations in which the LDA can act in the exercise of its functions to carry out developmental and other work and perform its statutory functions.
There are not exhaustive. Life and time may throw up other situations and create circumstances which may warrant LDA action to be taken in consultation with the Local Government within the purview of PLGA, 2013. Closing the categories today will freeze growth and retard progress.
75. Likewise the Provincial Government, in the exercise of its legislative and executive authority can aid and support the Local Government. The Provincial Government is also not prevented from taking the initiative for the growth and development of the people and the Province in the exercise of its legislative and executive -authority. The exercise of such authority must, however, be in the public interest. It should encourage institutional grown and harmony. It must be in consultation and with the participation of the Local Government. To complement is not to take over.
76, We are conscious that at times a Local Government too may decline consent for extraneous reasons. Where such consent is unreasonably withheld or denied for considerations other that in the public interest the Provincial Government would be at liberty to act in the public interest while constantly drawing guidance from the provisions of the PLGA, 2013 as for the time being in force.
Indeed the Courts too can step in and interfere with such a failure to grant consent.
77. Viewed in the light the LDA Act, 1975 and the legislative and executive authority of the Province are not inconsistent with Article 140-A of the Constitution. These create a framework where the Provincial and Local .Government and authorities of the Provincial Government work together in the public interest.
78. That being so what should one make of Section 46 of the LDA Act, 1975 which gives its provisions overriding effect. Its use as a tool to demolish the PLGA would be repugnant to Article 140-A. To strike it down would mean that even where the provisions of the LDA Act conflict with provisions of other statutes it would not override those. That cannot be the legislative intent. We are of the view that Section 46 would apply only in the event of a conflict or inconsistency between its provisions and that of other statutes. It would have no application and cannot be used to make the LDA Act to otherwise stall PLGA 2013 when substantive factual or policy grounds are unavailable. When harmoniously construed, as stated above, there is no conflict between the provisions of the PLGA, 2013 and the LDA Act, 1975.'
' In presence of above enlightenment and illumination, there is no need to further discuss issue with regard to declaration of said provisions of law as illegal and unconstitutional, because verdict of Apex Court of the country has binding effect upon this Court as 'provided under Article 189 of the Constitution of Islamic Republic of Pakistan.
11. So far as the case law relied upon by the learned counsel for the petitioners, except Lahore Development Authority through D.-G. And others vs. Ms. Imrana Tiwana and others 2015 SCMR 1739, has no relevance to the facts and circumstances of the case in hand, rather same are distinguishable; therefore, it does not render any assistance or help to the petitioners' stance.
12. For the foregoing reasons and while placing reliance on the judgments supra as well as on Suo Motu Case No, 13 of 2010, 2013 SCMR 591-Supreme Court of Pakistan, the instant writ petition being not maintainable, because of remedy available with the petitioners in shape of filing appeal before the Punjab Environmental Protection Tribunal, stands dismissed.