1. This Court vide its order dated 14.10.2014 had constituted a commission of eight eminent experts ("Commission") to render their report on the following four terms of reference, which were;
1. Latest status of the Master Plan of Galiyat including its purpose, date of preparation, any modification at a later stage and details of its violation, if any?.
2. Latest status of the Building Regulations and details of its violations including scrutiny of all 63 violations pointed in NAB Report and GDA Reply?
3. Is the Master Plan and Building Regulations prepared taking into consideration the sensitivity of the environment: Is the development in. Galiyat in line with the requirements of Environmental Laws?
4. Identify shortcomings in the Master Plan and Building Regulations, suggest amendments for conservation and protection as well as steps to be taken to nullify the adverse environmental damage already committed in the area?"
2. Before this Court considers the report of the Commission, it would like to render its appreciation for the valuable assistance rendered by its seven esteemed members; Arbab Muhammad Arif, the then Commissioner, Hazara Division, Ambar Ali Bhai, Muhammad Ibrahim WWF, Islamabad, Dr. Muhammad Bashir, DG, EPA, Peshawar, Ms. Saima Khawaja Advocate, Lahore, Engineer M. Ijaz Munshi, Managing Director and Nazar Hussain Shah, the then Director General GDA, KPK, for visiting Galiyat, reviewing the relevant record and the laws and thereafter recording their findings vide report of the Commission.
3. The recommendations of the Commission are two fold i,e, Long term and Short term. The comments of GDA were sought. The summary of the recommendation of the Commission and the response of GDA thereon, are as follows: THE LONG TERM RECOMMENDATIONS.
1. Master Plan/Land Use Plan.
4. It was essential to have a proper master/land use plan incorporating the zonal allocations within the Galiyat area. The Master Plan needs to be prepared in consultation with organizations having expertise in such like affairs, i,e, WWF, and IUCN and others. The Master Plan must keep in view the environmental sensitivity of the Galiyat area, ensuring the protection of its unique and fragile eco- system and bio-diversity of the area.
5. RESPONSE OF GDA.
6. Advertisement has been given in the leading newspapers for hiring the services of a qualified firm for the preparation of Master Plan/Land Use Plan, in respect of the Galiyat area. Eight months were required for completing this recommendation.
2. Galiyat Development Authority, Act, 1996.
7. The Galiyat Development Act, 1996 ("Act"), needs to be extensively amended with the following recommendations to be incorporated; a. The Board of Authority of GDA be modified and private sector experts be given representation. b. The GDA technical staff be overhauled with the inclusion of qualified town planners, structural engineers etc. c. The development schemes by private sectors must be meticulously scrutinized and only licensed town planners be allowed to undertake developmental activities, with strict control on the implementation of building bye-laws during the course of development. d. The Act needs to provide broad guidelines in respect of utility services, solid waste management, approval of building plans and infrastructure development in Galiyat. The overall objectives of the Act, i,e, preventing the environmental degradation of Galiyar and its preservation, be kept in view.
8. RESPONSE OF GDA.
9. A new GDA Act is in the offing, wherein all the amendments proposed by the Commission shall be incorporated.
3. Professional Bodies.
10. The Commission recommended the involvement of professional statutory bodies (PCATP, PEC, IEP, Institute of Engineers, IAP, Institute of Architects) with GDA, in the preparation and implementation of town planning and other allied matters.
4. Building Rules.
11. The Commission expressed serious reservations with regard to Building Rules, 2012, and Bye-Laws 2003. The Commission made the following recommendations:- a. Provision of criminal prosecution, as against errant developers, builders and encroachers. b. The architectural plans (including modification of existing buildings) must be undertaken by professionally qualified and licensed architects. c. The structural plans, especially in Zone-3 and 4 seismic areas, must be the responsibility of competent and professionally qualified structural engineers and consultants. d. The GDA documenting procedures with respect to the architectural and structural plans of the developmental activities in Gailyat need to be scientifically institutionalized and updated. The record log be maintained under the strict supervision of supervising professionals and inspectors of GDA. e. The building activities be monitored stage-wise. Permission for next stage be granted only after obtaining satisfactory test certificate of the earlier work completed from the competent authority. f. The utility facilities in the Galiyat area must also come within the purview of GDA. The water, electricity, gas, sewerage etc must be in consonance with the overall objectives of the Act, and the Bye-Laws made there under. g. The misuse of status-quo orders from the Court needs to be properly attended to. The GDA ought to vigorously attend to the disposal of cases and submission of correct information before the Court so as to avoid misguiding the Court by the errant developers.
12. RESPONSE OF GDA.
13. The building bye-laws shall also be revised after the promulgation of the new GDA Act.
5. Sewerage Disposal.
14. The sewerage disposal in the Galiyat area must be properly attended to, so as to avoid polluting the ground water and the spread of disease.
15. RESPONSE OF GDA.
16. The sewerage disposal work is being revamped with the technical support of WWF. A solid waste management plant is soon to be installed.
6. Third Party Monitoring.
17. There must be a third party monitoring system to scrutinize and evaluate the environmental compliance of the laws in the jurisdiction of the GDA.
18. RESPONSE OF GDA.
19. Funds have been earmarked for establishing internal monitoring and evaluation system within GDA.
7. Regulating Visitors.
20. The visitors to the Galiyat be regulated in a manner so that the natural beauty of the Galiyat is not spoiled. The Commission recommended seeking guidance from similar experiences worldwide.
21. RESPONSE OF GDA.
22. An advertisement has been placed in leading newspapers to acquire the services of qualified company to embark on a massive project of beautification of Galiyat area.
23. SHORT TERM RECOMMENDATIONS.
24. The Commission also recommended certain immediate steps to be taken on a short term basis, which are as follows: ILLEGAL BUILDINGS.
25. All buildings illegally constructed or built on encroached lands must be immediately attended to.
26. RESPONSE OF GDA. a. All the illegal buildings are being evaluated and the building control staff is taking action against violators and encroachers. Many buildings have been demolished and State land retrieved back. b. The land record in Galiyat area is being computerized and an advertisement has been placed in the newspaper to acquire the services of qualified software company in this respect.
27. BAN ON CONSTRUCTION WORK.
28. The commission recommended complete ban on all construction work in Galiyat until the issue of illegal construction is resolved, the Master Plan is approved and proper legislation is enacted. This ban should also be extended to the ongoing widening of the roads resulting in cutting of the forest on the road side.
29. RESPONSE OF GDA.
30. The roads within the Galiyat area are being developed. The main Barian to Nathiagali Road is near completion.
31. CO-ORDINATION OF DEPARTMENTS.
32. The Local Government Department of the Government of KPK and GDA must coordinate and work together, as there appears to be a manifest lack of coordination, resulting in the mismanagement therein. The GDA and KPK Forest Department should immediately join hands to identify and protect the ecologically significant forest areas.
33. SOLID WASTE DISPOSAL.
34. The solid waste disposal in Galiyat is to be immediately addressed so as to put a stop to the environmentally hazardous pollution taking place on a fast scale.
35. VISITORS.
36. All the visitors to Galiyat, residents of commercial and residential buildings, be charged with a pollution charge so as to create awareness among them for keeping the environment in Galiyat free of pollution.
37. RESPONSE OF GDA.
38. With respect to the Commission's recommendation of levying pollution charge, it is important to note that the toll tax at the entrance of Galiyat has been handed over by the Government of KPK to GDA from Khyber Pakhtunkhwa Highway Authority. The GDA has also increased the Environmental Maintenance Fee from Rs, 30/- to Rs,60/-. The GDA will provide visitors/motorists with environmental friendly garbage bags while entering the Galiyat area.
39. COMPLAINT CELL.
40. An efficient complaint cell facilitating the public in all the affairs pertaining to the GDA needs to be established on priority basis.
41. RESPONSE OF GDA.
42. An efficient complaint cell at GDA is being contemplated, having wireless system for speedy dissemination of orders and staffed by trained personnel having on line facilities.
43. COURT CASES.
44. The Court cases need to be addressed on a priority basis and the legal team of GDA be made efficient and result oriented.
45. RESPONSE OF GDA.
46. A full time Assistant Director (Legal) has been appointed to look after all the Court cases on speedy terms. The concerned officials of GDA have been directed to attend to the Court cases vigorously, with a view to quick disposal of the cases. The record of all Court cases is also being computerized and a software is being developed in this respect.
47. Keeping in view the recommendations of the worthy Commission and the response of GDA thereon, this Court would direct that:- I. GDA has already taken positive steps for the formulation of the Master Plan and the Land Use Plan. The progress report, in this D regard, be placed before the Court on or before the next date of hearing.
48. II. As far as the recommendations relating to the amendments in the Act are concerned, this Court would not interfere therein as the same would surely be against the principle of Trichotomy of Powers, as mandated and engrained in the Constitution of the Islamic Republic of Pakistan, 1973.
49. However, this Court would urge the Provincial Government and the legislature to keep in mind the critical stage of degradation which requires urgent steps to preserve the cherished forests, and beauty of the Galiyat, being a trust bestowed upon all for the future generations.
50. III. As far as seeking guidance and assistance of professional statutory bodies and building rules is concerned, such as Institute of Engineers and Architects, this Court surely endorses the recommendations as it would be a positive step taken in fulfilling a constructive resolution of the present grave violations highlighted by GDA and NAB in Galiyat.
51. IV. As far as the authority of the Bye-Laws of 2003 are concerned, this Court notes that the findings recorded by the worthy Commission requires correction as the said Bye-Laws, being approved by the Government, fulfill substantial compliance of Rule-30 of the Act, and thus are to be deemed as Rules framed thereunder. Surely, with the framing of Rules of 2012, the said Bye-Laws of 2003 would legally wane away.
52. V. As far as the recommendations of the Commission relating to Sewerage Disposal, Third Party Monitoring and Regulating Visitors are concerned, the response of GDA is very encouraging and duly endorsed by this Court.
53. VI. The recommendations of the Commission regarding building regulations and its violations have been also well attended to by the GDA in their written response, and the same is greatly appreciated. GDA is, however, directed to strictly ensure that all the alleged violators are not only served notices in writing but also are provided an opportunity of hearing before any adverse actions are taken against them under the Act and the Rules. For ensuring service, they be also served through public notice in daily newspapers so that there is no grievance of violation of principle of Natural Justice. It would also be constructive to include members of PCATP, IEP and IAP to assist GDA deciding cases of the alleged building violators in order to ensure that appropriate steps are taken for compliance of the requirement of the Rules and the Act.
54. VII. As far the recommendations of a complete ban on all construction work in Galiyat is concerned, this Court finds that allowing the same would not be appropriate. However, to ensure that no further violations of the Act and the Rules take place, only such construction work, which is for repair or work already commenced, should be allowed to proceed and that too after verification of the proposed repair work or construction having been duly approved by the competent authority and being in accordance with the enabling provisions of the Act and the Rules.
55. VIII. GDA is to proceed, as directed hereinabove, and to submit in Court, the progress report on each of the recommendations highlighted above before the next date of hearing.