YAHYA AFRIDI, C.J.---Ghulam Shoaib Jally, Advocate/ petitioner, seeks the Constitutional jurisdiction of this Court praying for; "It is therefore, most respectfully prayed that on acceptance of this writ petition, the respondents may kindly be directed to take every measure as per law to protect the canals water from getting polluted."
2. Keeping in view the public importance of the grievance agitated in the instant petition, the official respondents were put to notice.
3. The progress of proceedings in the present case, in chronological order, is; 13.11.2014.
Director General, Environmental Protection Agency, was impleaded in the panel of respondents.
22.01.2015.
Engineer Muhammad Naeem, Secretary Irrigation, appeared before the Court and undertook to file the comments.
02.04.2015.
Secretary Irrigation, respondent No,2, submitted his comments, the relevant paras, thereof, are reproduced as-under; "That the respondent No,2 has taken up a broad spectrum study under the "Peshawar uplift and beautification program" through which apart from other integral components, provision of a collector sewerage drain(s) on both the banks of the stated canals is being studied. It has been contemplated that once the outfalls/trunk sewer lines are identified, then all the sewerage lines dropping into the canals would be diverted, resulting in clear canal water. That sensing the ever growing foreboding of the sewerage lines entry; during 2010-2011, respondent No,2 has already conducted "Feasibility study to divert the municipal sewerage and industrial effluents into the canals and river system of Peshawar valley". The results of the study have been shared with the relevant public sector company responsible in this regard i.e Water and Sanitation Services Peshawar ("WSSP"), which is considering resource location and its implementation.
That respondent No,2 is aware that aesthetics are an important consideration in town planning and it truly desires the beautification of the canals in Peshawar. It is however, pertinent to note that these canals are primarily meant for conveyance of designated water for irrigation purposes as respondent No,2 is responsible to the ultimate beneficiary for the deliverance of its legal share.
Furthermore, the importance of eliminating the entry of domestic as well as commercial refuse, both in the form of solid waste and sewerage into the canals, is being taken into account by WSSP.
It has been contemplated that once the outfalls/trunk sewer lines are identified, then all the sewerage lines dropping into the canals would be diverted, resulting in clear canal water. The aforementioned study also focuses on the improvement of these canals by elevating the condition of the canal patrol road(s) so as to ease the traffic load on the major roads of Peshawar, creation of walking tracks and providing fencing/railing along the canals, in order to offer pleasing appearance."
29.10.2015.
The Chief Executive Officer, Water Supply and Sanitation, Phase-7, Hayatabad, Peshawar, was impleaded in the panel of the respondents.
17.03.2016.
The matter was again taken up by the Court and it was order that; "Mr. Niaz Badshah, Sub-Divisional Officer, of Irrigation Department, present in Court, has submitted 94 notices issued to violators, copies of which have been placed on record. In this regard, it was further stated that the proceedings against the 94 violators would commence after the statutory period, which expires today. It was further stated that other measures have also been adopted by the Irrigation Department, to ensure the Removal of Illegal Sewerage Lines, in the Canals of Peshawar."
30.06.2016.
The case was taken up by the Court and the following proceedings were conducted; 'it has been brought to the attention of the Court that after proceedings against 94 violators of Joye Sheikh Canal, no further action in this regard has taken place. When confronted Dr. Niaz Badshah, Sub- Divisional Officer, Irrigation Department, present in Court stated that he is only concerned and Incharge of Joye Sheikh Canal, and when he was asked to explain the status of the Canal passing through the Secondary Board and Gul Bahar, the worthy Sub-Divisional Officer stated that the same falls within the jurisdiction of SDO Warsak Gravity and SDO Kabul River Canals.
We would like the worthy Secretary to ensure that appropriate action be taken against the violators in view of section 70 of the Canal and Drainage, Act, 1873, in the said sections of the Canals passing through the city. The worthy Sub-Divisional Officer is to communicate the order of this Court to the worthy Secretary Irrigation Department, and for the concerned SDOs of Warsak Gravity and Kabul River Canals to be present in the Court on the next date of hearing and to appraise the Court regarding the progress made by them against the violators. We appreciate the efforts made by Mr. Niaz Badshah, and he assures the Court that further progress will be made regarding other violators in his jurisdiction."
22.09.2016.
This Court constituted a Commission, headed by Shamim Khan Esq and comprising the following as its members,
1. District Nazim, Peshawar,
2. Khan Zeb Khan, CEO, WSSP,
3. D.G Environmental Protection Agency,
4. Saima Khawaja Environmental/legal expert.
5. Professor Dr. Jahangir Durrani,
6. Representative of IUCN/SSF.
7. Representative of US AID Project.
8. Representative from WAPDA.
9. Zahid Abbass, Chief Engineer Irrigation (South)/Secretary of Commission.
06.07.2017.
Vasif Shinwari, Urban Architect, Planning and Development Department, Government of Khyber Pakhtunkhwa, was also to be part of the Commission.
The Commission was directed to submit its Final Recommendations regarding the following terms of reference; i. To identify the major sources polluting the canal of Khyber Pakhtunkhwa in general and Peshawar city in particular. ii. To identify the hot spot localities in Peshawar city with maximum threats of canal pollution (municipal effluents and solid waste) iii. To Chalk out short term, medium term and long term solution along with specific time frame. iv. To study various laws and in particular Canal and Drainage Act and Local Government Act for stoppage of solid waste, municipal waste entering the canal system passing through Peshawar city. v. To propose amendments in the relevant laws if sufficient provisions are not available to prevent solid and municipal waste entering the canal system passing through Peshawar City. vi.Specify the role and responsibility of department concerned on the subject issue. vii.Any other suggestions/recommendations.
The Commission after deliberation submitted, its Recommendation Report, which reads; "RECOMMENDATIONS/COMMENTS ON TOR OF THE COMMISSION CONSTITUTED UNDER THE CASE TITLED GHULAM SHOAIB JALLY VERSUS GOVERNMENT OF KHYBER PAKHTUNKHWA BY PESHAWAR HIGH COURT.
There is a global issue of environmental pollution faced by almost all countries in their major cities created due to many factors like rapid industrialization, urbanization, population increase, deficient city planning and poor maintenance of existing drainage/sewerage system etc. The issue has got alarming proportion specially in the under developed countries like Pakistan in which all major cities like Karachi, Peshawar, Lahore etc are under threat from environmental hazards. Resultantly, the Irrigation canals which are now running in the heart or closest vicinity of many cities got polluted due to non-tackling and disposing of both solid and liquid wastes in efficient way. No professional approach adopted for in placing new treatment plants for both solid and liquid wastes as well as effective drainage systems.
In the last two or three decades, Peshawar city is facing environmental issues, having social complications but with no comprehensive strategy had been adopted so far to address the same except conducting feasibility studies.
The aforementioned issues became the basis for lodging writ petition No,1617/2014 by Mr. Shoaib Jally in Peshawar High Court, for which a Commission was constituted to probe the issue and submit recommendations.
Prior to finalizing recommendations, deliberations in seven rounds, of meetings were held with inputs given by the honourable members of Commission as well as studying feasibility reports on this account prepared by various consultants hired by Irrigation Department and Municipal Services Peshawar. The recommendations are being presented with respect to TOR, the details are as follows:- No,1 TO IDENTIFY THE MAJOR SOURCES POLLUTING THE CANAL OF KHYBER PAKHTUNKHWA IN GENERAL AND PESHAWAR CITY IN PARTICULAR.
The major sources polluting canals of Khyber Pakhtunkhwa in general and in Peshawar particularly are mostly untreated domestic sewerage, industrial waste, hospital waste, service stations and agricultural waste.
No,2. TO IDENTIFY THE HOT SPOT LOCALITIES IN PESHAWAR CITY WITH MAXIMUM THREATS OF CANAL POLLUTION (MUNICIPAL, EFFLUENTS AND SOLID WASTE)
(i) Hot spots of waste water and solid wastes along banks of canals system in Peshawar had been identified as per study conducted by MMP consultants under the guidance of Irrigation Department Khyber Pakhtunkhwa. (Attached as Annexure)
(ii) The study by MSP had also provided details on solid waste being generated in Peshawar City for which waste generation trend, its rate, density and reasons had been explained in all four zones (as per study) of Peshawar City. Refer chapters 7 and 8 of the feasibility report (attached Annex-IV)
(iii)Some private hospitals like Naseer Hospital (Pvt.) at RD: 54500 and Kabir Hospitals (Pvt.) at RD: 62000 etc along bank of Warsak Gravity Canal near Nair Bagh and Town area are adding to the pollution.
No,3 TO CHALK OUT SHORT TERM, MEDIUM TERM AND LONG TERM SOLUTION ALONG WITH SPECIFIC TIME FRAME. i) Short term solutions. a) An ongoing public awareness campaign through print and electronic media required to convince the polluters of the consequences to communities life, irreversible damage to the local environment and to advice the waste disposal practices. b) Re-activation of existing system of disposal and drainage in Peshawar with introduction of new techniques as in other cities. c) Fresh/updated study for survey/design of revival of existing sewer drainage system by concerned departments/bodies in least possible period. d) Ensuring door to door collection of solid wastes in the areas in closer vicinity of the canals and its safe disposal to selected places. e) Treatment of industrial effluents at the sources in compliance with EPA Act. ii) Medium term solutions. a) Strengthening the municipal system and its capacity to collect, transport and safely dispose the solid waste to designated land fill sites. b) Provision of septic tanks/soakage pits for liquid, waste collection and disposal within close proximity of the pollutant sites. c) Construction of new sewerage treatment plants of all the urban areas of Peshawar City for safe disposal of effluents. d) Forcible closure and removal of direct pipe inlets from the houses along the selected reaches of canals. e) Treatment of toxic/nontoxic wastes at sources by public and private hospital/clinics through waste management system or its out sourcing by the hospital administration. f) Establishment of monitoring process to oversee soils, canal and river water quality on recurrent basis in accordance with provision of the National Environmental Standard (NEQs) by Environmental. Protection Agency Khyber Pakhtunkhwa. iii) Long term solutions. a) Construction of interceptor and sides collector drains along canals to divert the effluent away from the canals. b) Establishment/construction of effective solid waste management system including recycling and re-use of municipal wastes.
No,4 TO STUDY THE VARIOUS LAWS AND IN PARTICULAR CANAL AND DRAINAGE ACT AND LOCAL GOVERNMENT ACT FOR STOPPAGE OF SOLID WASTE AND MUNICIPAL WASTE ENTERING THE CANAL SYSTEM PASSING THROUGH PESHAWAR CITY.
(i) The existing rules/laws in vogue in the Irrigation Deptt: are sufficient to curb the dumping of solid/municipal waste provided the same are applied efficiently in liaison with District Administration, local elected representatives and provision of security through law enforcing agencies as well as its wide publicity through and electronic media.
(ii) Under the Canal and Drainage Act 1883 (amended in 2015), Section 70, subsection (B), clause V-A, V-B, V-C, it is the responsibility of the Irrigation Department to stop flow of garbage, polyethylene bags, encroachment and diversion of sewerage lines towards the canal. Under the above mentioned section of the said Act, penal provisions do exist where upon fine may be imposed upto Rs, 20,000 and imprisonment of up to two years.
No,5 TO PROPOSE AMENDMENTS IN THE RELEVANT LAWS IN CASE SUFFICIENT PROVISIONS ARE NOT AVAILABLE FOR SOLID WASTE AND MUNICIPAL WASTE ENTERING THE CANAL SYSTEM PASSING THROUGH PESHAWAR CITY.
(iii) Legal frame work for Establishment of Townships to avoid solid/municipal waste dumping into canals. ii) Mandatory provision of municipal services in shape of No Object Certificates (NOC) from WSSP for the construction of Plazas and Townships. iii) Availability of structure plans, land use plans and efficient urban plans be ensured. iv) Legal framework for fixation of road/pavement levels in urban areas be adopted. v) Revival of in house Magisterial powers for all service providers be ensured for effective control.
No,6 SPECIFY THE ROLE AND RESPONSIBILITY OF CONCERNED DEPARTMENT FOR THE SUBJECT ISSUE.
(i) The role of Irrigation Deptt: is generally confined to ensure supply of Irrigation water through efficient Irrigation system by maintaining the existing infrastructure. The Irrigation Deptt: also to discourage/curb/stop the disposal of effluents in canal system.
(ii) Standards of irrigation canal water as applied in Punjab Irrigation Deptt: are needed to be ensured by adopting the required measures by all stake-holders i.e WSSP, EPA and municipal committees etc. (iii)The PMDC (Pakistan Medical and Dental Council) and Health Department are to ensure the construction of industrial autoclave and incinerator which shall be fully operational at times for Hospital Wastes disposal. The EPA Khyber Pakhtunkhwa shall ensure enforcement of the relevant regulation for sate disposal of hospital wastes.
(iv)The WSSP is responsible to ensure the rehabilitation/ reconstruction of Primary. Secondary and Tertiary sewerage lines besides establishing/rehabilitating new/existing treatment plants.
(v) WSSP to ensure that all Primary, Secondly) and Tertiary sewerage lines including sewerage treatment plants are operationalized.
General Recommendations
(i) No further development is to be allowed until it is in conformity with the master plan/structure plan of the city.
(ii)There should be complete moratorium on construction of roads above the existing level in the built-up area.
(iii)No housing societies and townships be developed until its proposal for water and sanitation services are properly vetted and approved by the concerned service provider.
(iv)Waste recycling and re-use plants to be operationalized in the city with attractive incentives.
(v)Coordination among all stakeholders and experts of civil society be strengthened at all levels for better results."
4. This Court appreciates the effort made by the Commission in formulating the valuable recommendations stated hereinabove. Accordingly, this Court directs that the same be placed before the worthy Chief Secretary to ensure its implementation. The needful be done within 60 days of receipt of this decision. The progress report in the matter be submitted to the Director, Human Right Cell, Peshawar High Court, for inspection of the worthy Chief Justice in his chamber.