YAHYA AFRIDI, C.J.---Through this single judgment, the Court shall dispose of two writ petitions involving common questions of facts and law. The particulars of the same are as under:--
1. Writ Petition No,468-P/2015. (Mahmood Ahmad Aslam v. Government of Pakistan through Secretary Communication and others) (Petition No,1)
2. Writ Petition No,4886-P/2017 . (Muhammad Shoaib v. Deputy Commissioner Mansehra, D. G, Kaghan Development Authority.) (Petition No,2)
In the Petition No, 1, Mahmood Ahmad Aslam, seeks to invoke the Constitutional jurisdiction of this Court, praying for:-- "It is respectfully prayed that this Honourable Court be pleased to order; a. Direct cancellation of ownership acquired by respondents Nos, 2 and 3, b. Direct the respondents to demolish the Mansehra - Naran-Jalkand Project Director Site Office/ Accommodation building built at river Kunar at Naran completely and to transform the riverbed to its original place and level, c. Direct the respondents to do massive plantation at its original riverbed side; d. Direct the respondents to restore the original flow of river notwithstanding its expenditure; e. Direct respondents to draft a master plan for the valley of Kaghan, Naran, Saif-ul-Malook lake areas and other areas within the jurisdiction of respondent No,10, all with the consultation of active civil society and environmentalists in line with the prevalent environmental laws.
Any other remedy deemed appropriate in the circumstances of the case may also be granted."
Muhammad Shoaib, in Petition No,2, a Tourist Guide in Naran, filed a complaint in the Human Right Cell of this Court seeking protection of an ancient relic cave in Kaghan valley, a public entertainment spot ("Cave"), which was converted into the present writ petition. In essence, the petitioner asserts that the local people have started sale/purchase/alienating the land around the cave, which if not protected, would destroy its historical value resulting in loss to the exchequer; that the petitioner approached Kaghan Development Authority ("KDA"), and Deputy Commissioner, Mansehra for taking appropriate action, but in vain.
2. The respondents were put to notice, who submitted their respective written statement/Comments. Respondents Nos,2 and 3 in paras-5 and 6 of Petition No, I stated that:-- "Para No,5 of the facts of the petition is correct. It is important to note that there was road at the spot, at the bank of river leading to Babu Sar Top and Chilas, which is properly mentioned in the G.
T sheet of forest. The property which was acquired by respondents Nos,2 and 3 was the ownership offorest department from whom the possession was taken, which was federalized in the year 1998.
The said acquisition was with the intention to construct the site offices in order to supervise the construction and maintenance of the road and to keep the road open throughout the year. This could only be done by maintaining the said project from the site office at Narran, which is the middle point of N-15, the total length is 233 KM from Mansehra to Chillas. Whereas the site office is at distance of 125 KM from Mansehra towards North.
Para-6 of the facts of the petition is correct to the extent of construction of site office which has already been completed. The rest of the para is totally incorrect hence denied. The present respondents have never diverted the river Kunhar from its natural flow. It is pertinent to mention here that it was PTDC, which did so, the same can be seen in the G. T sheet and as well if the property is visited by local commission. The respondents Nos,2 and 3 after acquisition have constructed spur and protection wall, as per the direction of Forest Department."
3. The pleadings of the parties were so divergent that determination of the crucial issues was not possible from the available record, and leaving the same unaddressed would not be legally appropriate. Accordingly, this Court vide order dated 17.08.2017 appointed a Commission comprising;
1. The Advocate General, Khyber Pakhtunkhwa.
2. The Commissioner, Hazara Division.
3. The D.I.G Hazara Range, Abbottabad.
4. The Director General, Environmental Protection Agency, Peshawar.
5. The Director General, Galiyat Development Authority, Khyber Pakhtunkhwa.
6. Mr.Ambar Ali Bhai of M/s Shehri, Karachi.
7. Muhammad Ibrahim, WWF, Islamabad.
8. The District Nazim, Mansehra.
9. The Tehsil Nazim, Balakot.
10.Divisional Forest Officer, Forest Range, Kaghan.
11.Syed Asfar Shah, Sub-Engineer, KDA, Mansehra.
12.Mr. Fida Muhammad Tanoli, Assistant Director, Kaghan Development Authority.
4. The worthy Advocate General, Khyber Pakhtunkhwa, was to be the Convener of the Commission.
The worthy Commissioner Hazara Division was directed to act as Secretary, and to provide all necessary logistic and other support needed for the working of the Commission and submission of its Final Report to this Court, on the following Terms of Reference:--
1. Identify shortcomings in the Model By-Laws and ensure its immediate notification.
2. Whether KDA has a Master Plan and Building Regulations? If so whether it is prepared taking into consideration the sensitivity of the environment? Is the development in Kaghan in line with the requirements of Environmental Laws?
3. Latest status of the Building Regulations and details their violation including scrutiny of all violations pointed in KDA Reply.
4. Status and fate of the work on the new buildings and 42 completed buildings, constructed despite the Court orders.
5. Status of site for solid waste management be identified and necessary steps required to be taken over to be carried out.
6. Status of entry fee may be allowed to KDA for services provided by the Authority in KDA jurisdiction. A certain percentage for TMA Balakot and NHA can be considered through joint adventure.
7. Status of land for proper parking purposes.
8. Status of camping/ tents with proper sanitation arrangements in KDA.
9. Status of collaboration between Wildlife Department and KDA is required for dealing with control of development/buildings and sanitation issues of the two lakes i,e, Saif-ul-Maluk and Lalupat.
10.Any other matter deemed appropriate by the Commission.
5. The worthy Advocate General, Khyber Pakhtunkhwa, the Convener submitted the Final Report on 10.01.2018, which reads; "1. That vide order dated 1 7.8.201 7, the Hon'ble Court was pleased to constitute a Commission and its Terms of Reference (TOR).
2. That accordingly, the first meeting of the commission was convened and held on 24.8.2017. In the said meeting, the Terms of Reference (TOR) was discussed and all the Members were asked to identify the problems and to suggest ways to resolve it. A subcommittee was constituted under the D. C, Mansehra, to identify and suggest ways to resolve the problems identified in the TORs, The sub-committee held its meetings on 6.9.2017 and 11.9.201 7, chaired by D. C, Mansehra. The D.C., Mansehra constituted a Technical Committee under his supervision to point out the short comings of Model Building by-laws and prepared a draft of the Kaghan Development Authority Building bylaws in its meeting held on 26.9.2017.
3. That the second meeting of the commission was held on 12.10.201 7, wherein the draft bylaws were discussed and the proposed amendment in it was suggested and it was decided to visit Kaghan Valley, particularly Naran for spot inspection and to see the feasibility about the dumping site, camping site and parking site. All the Members, including the undersigned, the Commissioner Hazara Division, the D.I.G Police, Hazara Division, the D. C, Mansehra, Nazim District Council and Project Manager Kaghan Development Authority etc visited Naran on 1 7.10.201 7.
4. That the Commission along with its Members visited Kaghan Valley on I 7.10.201 7. The Technical Committee held its meetings from 26 September, 201 7 and pointed out the short comings of the Model Building By-laws and prepared a draft of the Kaghan Development Building By-laws, 201 7 and submitted it before the Commission's meeting on 12. 10. 201 7.
5. That the final meeting of the Commission was held on 12.11.201 7, wherein all the reports were discussed and finalized in Terms of Reference (TORs). The recommendations/proposals of the Commission are enclosed.
6. That the reports/proposals with respect to security aspects of Kaghan Development Authority is enclosed.
7. That the Commission after visiting the spot inspection and considering all aspects of the matter has prepared its report after identifying the place for dumping, camping and car parking.
6. In compliance with the directions of this Court, the Commission in its Final Report, rendered its recommendations on the Terms of Reference, which are as under:-- S. No,Commission TORsRecommendation / Proposal 1 Identify shortcomings In the Model By- Laws and ensure Their immediate notification.Shortcomings in the KP Model Building Bylaws have been pointed out and summarized at (Annexure-I).
Draft of Kaghan Development Authority Building Bylaws 2017 with The comparison of GDA Building Bylaws and as per The requirement of the area (Annexure II). The draft of KDA Building Bylaws is required to be forwarded to the Local Government Department for Notification and Implementation as early as possible.
2 Whether KDA has aThere is dire need of updated Master Plan With land use planning as per sensitivity of the environment.
Commission recommends the proper detailed master plan with land use planning within a period of six (6) months. The process for hiring of consultant for the purpose should be started immediately.Master Plan and Building Regulations?
If so, whether it is prepared taking into consideration the sensitivity of the environment?
Is the development in Kaghan in line with the requiieincnts of Environment Law?
3 Latest Status of the Building Regulations and details their violations including scrutiny of all violations pointed in KDA reply.At present there Are no Building Regulations and direneed to notify and implement the proposed KDA Building BylAs 2017 immediately.
Construction of the Buildings has been stopped.
4 Status and fate of the work on the new Buildings and 42 completed buildings, constructed despite the court orders.The District Administration, Police and KDA Jointly took action And stopped construction work of new buildings and 42 Building work near Completion as per directions.
5 Status of site for Solid waste Management is Identified and Necessary stepsDue to non- availability of the proper dumping site in the tourist area Kaghan Valley, the KDA is transporting The solid waste through its required to be taken over to be carried out.5.vehicles And dumping it at Balakot which is very costly and time consuming.
Disposal of Solid Waste is the chronic issue and Requires immediate solution. On the direction of the court two sites one at Sochlocated 6- 7 KM from Narran was identified but during the visit of the commission, it was found that the Site is not feasible Due to the delay Access to the area After winters.
Practically the road Gets cleared from glaciers around 30 to 45 days after Naran Is opened for the tourists. Another proposed site located at Chitta Katha kliasra Nos, 1573, 1773/1 and 1574 (26 Kanals 2 Marias) along the main road about 3 km short of Narran was declared feasible By the commission with proper solid Waste management System as designed and approved by the KDA. Revenue depart- Ment was thus required to complete all the acquisition process on priority basis and handover its possession to KDA for its Development and Further arrangement and make it usable before coming summer season.
6 Status of entry fee may be allowed to KDA for services provided by the authority in KDA jurisdiction. A certain percentage for TMA Balakot and NHA can be Considered through joint venture.Narran Entry Fee was recovered by the District Mansehra and TMA Balakot w.e.f 2012 to June 2017 against the service delivery in the tourist area. On the establishment of the KDA the same was entrusted to the authority wef 1st July 2017 but later on NHA intervened and stopped the recovery through Court on 14th July 2017 with the observation that no One is allowed to recover the toll tax on NHA road. The matter was discussed in detail and observed that it Is a matter of survival for KDA. as there is no source of income at this time for its day to day operational activities. KDA is already providing municipal waste disposal services on daily basis in the Kaghan Valley. To meet out the expenses on different service and for the future growth of the authority there is dire need of the revenue generation.
Case being policy matter in Provincial And Federal Governments and requires clarification to decide the case once for all as this would be a life time issue between both the departments.
The case is pending before the Court of Law so the matter May please be decided by the Honorable Court.
In light of above Commission propose The following recommendations:- - i. In case NHA is not allowing the entry fee on the main MNJ road, KDA shall impose fee on other link roads i,e, Shogran Road, Saiful Malook Road and Lalazar Road. ii.Conservancy User-Charges may also be allowed to the authority for income generation.
7 Status of land for Proper parking purpose.To cope the chronic issue of traffic jam problem at Narran.
42 Kanals land has been acquired by KDA on lease / Public private partnership and Auctioned for Rs,4 million for the year 2017-18 but the Development work was stopped due to The interference of the locals. They also Got status-quo. The RPO Hazara remarked that Police Department is ready to take legal action against the culprits on vacation of the status-quo.
Site was inspected by the Commission and declared suitable for the purpose. It is requested to the honorable court to vacate the status quo and dispose off the case as early as possible and hand over the possession to the KDA so that a parking facility could be established before next coming tourist season.
8 Status of camping/ Tents with proper Sanitation arrangements in KDA.To regularize the Ugly looking tents, the proposed site for establishment of Camping Ground Land measuring 77 Kanals at khasra Nos, 1290, 1291 and 5993/1304 along the road in the entrance Of Naran was declared feasible During the commission's visit.
The scheme is already approved but pending for execution. The revenue department is required to finalize the acquisition process on priority basis and handover the possession to KDA for its development at the earliest.
9 Status of collaboration between wildlife Department and KDA is required for dealing with control Of development/building and sanitation issues of the two lakes i,e, Saiful Maluk and Lulupatsar.To maintain the Natural beauty and preserve the lake from adverse environmental effects, a scheme namely Feasibility study of the Area development of Saiful Maluk and Lulupatsar" has Already been approved in the ADP of fiscal year 2017- 18 to chalk out the detail development plan. Hiring of consultant is in process.
All the lakes are under the control of Wildlife Department and it was decided That the Deputy Commissioner Mansehra would Coordinate between both the departments as and when needed.
10 Any other matter Deemed appropriate. by the commission.
1. Issue of NHA Building constructed on the River Bed.NHA building was Constructed on the River bed. The subcommittee conducted fact finding report in the Matter on the following points: - > Total area acquired for the building > Area encroached > Elimination of Trout natural hatchery (on ground situation) > Diversion of river > River banks erosion due to the building > Disturbance in the eco system > Any other issue and recommendations.
As per report of Sub Committee through Assistant Commissioner Balakot factual position is as under:- > National Highway Authority has acquired the land measuring 4- kanals 07-marlas vide Mutation No, 14232 Attested on 5111/2011 in the name of NHA Islamabad for the purpose. > Area encroached by NHA is 1- kanal 19- arias.Construction of NHA building affected the natural trout hatchery and it no longer exists. NHA has encroached the river bed due to which river has diverted from its existing old route. > Erosion of River banks occurred due To construction of NHA building. > Due to construction of NHA building, Ecosystem has been damaged. In light of the above commission Proposed the following action. NHA should vacate the encroached area and mend the losses occurred due to construction of building at river bed. NHA should restore/rehabilitate The existing trout natural hatchery. NHA should restore the original route of the river Kunhar and ensure Its natural flow Without any diversion. The KDA was asked whether the NHA building has the approved plan with proper sanitation requirement as per River Protection Ordinance or otherwise. > KDA clarified that they have repeatedly requested NHA for the provision of building plans but NHA has refused to provide any building plans. > He also informed that no approval plan is available in the office of predecessor of KDA i,e, TMA Balakot and District Council Mansehra. > The building is not according to the River Protection Ordinance, 2002. PC-I for Sewage Waste management And Solid waste management.It was pointed out During the commission meetings and also observed during the visit that Sewerage waste of the hotels is directly flowing in to the river and there is need of a proper Sewerage Waste Management Plan.
The PD KDA was directed to submit the requisite PC-1.
For the purpose Following PC-1 has been prepared and required for approval and implementation:- Sewage Waste management Plan for Narran.
Solid waste management Plan by Incineration. Recovery Vehicle 1122 and Emergency Health facility.It was pointed out During the meeting that each year a number of casualties occur - due to accidents in the Kaghan Valley. No emergency response mechanism is available in the area. To save the life of the tourist following arrangements are required on top priority basis: Recovery Vehicle.
1122 services.
Mobile Emergency Health Facility. iv.
Communication Access/Mobile TowersThe current communication network in the Kaghan Valley is not
7. The worthy counsel for NHA vehemently disputed the findings of the Commission with regard to NHA building. constructed on 04 Kanals 07 Marlas land situated in Khasra No. 5401 in Moza Kaghan (NHA Building".) He further contended that in this respect, NHA had moved a constitutional petition (Writ Petition No. 786 of 2014), which was still pending adjudication, hence any findings recorded by this Court on the said issue in the instant petition would prejudice the right of NHA in the said issue in the instant petition would prejudice the rights of NHA in the said petition. This Court is in consonance with the contention of the worthy counsel for NHA. Accordingly, this Court would not pass any findings concerning the NHA Building, lest it may prejudice the contested claim of NHA in W.P. No,786 of 2014.
8. This Court appreciates the efforts made by the worthy members of the Commission in formulating their valuable recommendations. This Court approves the recommendations recorded by the Commission except those relating to NHA Building, and directs the Government to take positive steps in pursuance thereof. The directions so rendered by this Court for implementation by the Government of Khyber Pakhtunkhwa are that; i. IDENTIFY SHORTCOMINGS IN THE MODEL BY-LAWS AND ENSURE THEIR IMMEDIATE NOTIFICATION.
The draft of KDA Building Bylaws 2017 is to be forwarded to the Local Government Department for notification and implementation at the earliest, but not later than 60 days of receipt of this decision. ii. NO BUILDING CONSTRUC- TION. All construction, commercial or residential, within jurisdiction of KDA is not to be allowed till the KDA Bylaws are notified. The worthy Deputy Commissioner and District Police Officer, Mansehra, are to assist KDA in their duty to enforce the said ban on construction. iii. KDA MASTER PLAN AND BUILDING REGULATIONS.
A proper detailed Master Plan with land use planning shall be carved out within a period of six (6) months, positively, and accordingly, the process of hiring a consultant for the purpose shall be initiated, immediately. iv. SOLID WASTE MANAGEMENT SYSTEM.
The Revenue Department is directed to complete all the acquisition process on priority basis and handover its possession to KDA for its development, management, and installation of a proper Solid Waste Management System, on the proposed site located at Chitta Katha- Khasra Nos, 1573, 1773/1 and 1574 (26 Kanals 2 Marlas)- along the main road, about 3 km short of Narran, being declared feasible for dumping of Solid Waste. v. ENTRY FEE FOR SERVICES RENDERED BY AUTHORITY UNDER KDA JURISDICTION.
It is directed that Provincial Government and KDA are to take appropriate steps for KDA to impose Conservancy User Charges (CUS) and fee on link roads i,e, Shogran Road, Saiful Malook Road and Lalazar Road. vi. PROPER PARKING FACILITY.
The worthy District Judge, Mansehra, is directed to ensure that all cases relating to KDA, should be listed before Senior Civil Judge, and a senior Additional District and Sessions Judge, with further direction to expeditiously dispose of the same and submit a progress report to the Director, Human Rights Cell of Peshawar High Court, Peshawar. vii. CAMPING/TENTS WITH PROPER SANITATION ARRANGEMENTS IN KDA.
As per the Commission's recommendations, the proposed site for establishment of Camping Ground Land, measuring 77 Kanals bearing Khasra Nos, 1290, 1291, and 5993/1304, being declared feasible and the scheme already approved but pending execution, hence the Revenue Department is directed to finalize the acquisition process on priority basis and handover its possession to KDA for its development at the earliest, accordingly. viii.COLLABORATION BETWEEN. WILDLIFE DEPARTMENT AND KDA.
To maintain the natural beauty and preserve the lakes from adverse environmental effects, a scheme namely "Feasibility Study of the Area: Development of Saiful Maluk and Lulupatsar" has already been approved in the ADP of fiscal year 2017-18, the same shall be expeditiously implemented. ix. SEWERAGE WASTE MANAGE-MENT.
The pending approval of PC-1, in respect of the following projects be expedited for their immediate realization:-- i. Sewage Waste Management Plan for Narran. ii. Solid Waste Management Plan by Incineration. x. EMERGENCY HEALTH FACILITIES.
The Government is to make prompt arrangements on top priority basis for the following: i. Recovery Vehicle-1122 Services. ii. Mobile Emergency Health Facility. xi. CAPACITY BUILDING OF HR.
A revised Human Resource (HR) Schedule, as per requirement, be prepared and approved on priority basis. xii. CHILDREN AND FAMILY PARK.
Any construction, which affects the access of the preservation of ancient relic Caves in Kaghan valley,as highlighted by Muhammad Shoaib is to be halted. All authorities are to ensure that no construction be carried out, which would diminish in any manner whatsoever, the approach to the said cave.
The instant decision be transmitted to the worthy Chief Secretary, Government of Khyber Pakhtunkhwa, to ensure its implementation. We further direct the worthy Secretary Local Government Khyber Pakhtunkhwa, to transmit the monthly progress report to the Director Human Rights of this Court.