TARIQ SALEEM SHEIKH, J. - The Petitioner has set up a brick kiln at Kasur Road By-pass near Raiwind (District Lahore) and is doing business under the name and style of Ch. Pervaiz Bricks Company. According to him, he has converted it to Zigzag technology which is environment friendly. He has purchased a piece of land near Raja Jang, District Kasur, from which he digs the earth and transports it to his kiln for use as raw material for making bricks. His grievance is that the SHO, Police Station City Raiwind (Respondent No.3), has unlawfully stopped transportation of earth to his brick kiln which has brought his business to a halt. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), he prays that a writ of prohibition be issued against Respondent No.3 restraining him from interfering in his lawful business.
2. This Court summoned Respondent No.3 who submitted that the impugned action had been taken on the instructions of the Deputy Director , Mines & Minerals, Lahore Region, and placed on record copies of his letters dated 12.6.2019 and 13.6.2019 which he had addressed to him in this regard. Keeping in view the sensitivity of the issue involved, this Court issued notices to the Government of the Punjab, the Deputy Director , Mines & Minerals, Lahore Region, the Environment Protection Department and the Human Rights Department of the Province. It also appointed Mr . Sheraz Zaka, Advocate, as amicus curiae .
3. The learned counsel for the Petitioner , Mr. Fiaz Ahmad Ranjha, Advocate, contended that the Petitioner was engaged in a lawful business and was using soil from his own land for manufacturing of bricks which was neither prohibited by any law currently in force nor required any licence under the Punjab Mining Concession Rules, 2002 (the "Rules"). He further contended that the other brick kiln owners were using the same raw material but no action had been taken against them and only the Petitioner had been singled out. He maintained that the action of Respondent No.3 smacked of malice and was violative of the fundamental rights guaranteed to him under Articles 4, 18, 24 & 25 of the Constitution.
4. On the other hand, the learned Assistant Advocate General submitted that under Section 49 of the Punjab Land Revenue Act, 1967, all mines and minerals, irrespective of the fact whether the land was owned by the government or a private individual, were the property of the government and their excavation was regulated by law. He maintained that the Petitioner was excavating and transporting Bhassar/Ghassar for manufacturing of bricks which was a "minor mineral" within the meaning of clause (xxiv) of Rule 2.
Since he was not holding valid licence/lease therefor , the impugned action of Respondent No.3 was justified and this petition was liable to be dismissed.
5. Mr. Irfan Nazir , Director General, Environmental Protection Agency (EPA), assisted by Mr. Muhammad Nawaz Manik, Director (Law), agreed with the learned Assistant Advocate General that excavation of Bhassar/Ghassar required mining lease under Part-IV of the Rules. However , he added that the EPA had no issue with the Petitioner at present inasmuch as he had converted to Zigzag technology to control carbon emissions as per directions of the Hon'ble Supreme Court of Pakistan.
6. Barrister Saeed Nasir conceded that soil was not covered by the definition of "minor minerals" given in the Rules.
Nevertheless, he submitted that it was the basic/primary unit of ecosystem which was essential for growing crops, conservation of biodiversity , combating desertification and degradation of land and, last but not least, controlling climate change. He further submitted that according to the studies of the World Bank and other international agencies Pakistan' s renewable and non-renewable natural resources were depleting fast which was threatening her food security . He added that soil, more particularly the land' s topsoil, was a valuable natural resource. We should take immediate measures to conserve it and regulate its excavation and use.
7. Mr. Sheraz Zaka, Advocate, the learned amicus curiae , submitted that in Pakistan bricks are primarily produced from brick earth which normally consists of 60-70% silica sand and 30-40% clay. The brick earth is mined from the surface of the earth and is collected at a point, mixed with water , moulded into the desired shape and then dried and fired. According to him, the question as to what were the constituents of the brick earth that the Petitioner was excavating and transporting to his kiln and whether it was a minor mineral as defined in the Rules and thus required licensing and control could not be determined without factual inquiry . Inasmuch as this Court could not undertake such inquiry in these procee dings, this petition was not maintainabl e and the Petitioner should be directed to avail alternate remedy provided by law .
8. Arguments heard. Record perused.
9. Section 49 of the Punjab Land Revenue Act, 1967, makes a clear distinction between land and minerals. The land can be owned by the government or a private individual or a juristic body but all mines and minerals therein always belong to the government and are its property. It stipulates:
49. Rights of Government in mines and minerals. - Notwithstanding anything to the contrary in any other law, or in any order or decree of court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, all mines and minerals shall be and shall always be deemed to have been the property of Government, and Government shall have all powers necessary for the proper enjoyment of its rights thereto.
10. In foreign jurisdictions as well similar laws have been enacted but the legislatures generally avoid a comprehensive definition of the term "mineral". In this view of the matter, courts have held that it has a contextual connotation and has no fixed meaning. In Glasgow Corpn. v. Farie [(1888) 13 AC 657], Lord Halsbury, L.C. said: "There is no doubt that more accurate scientific investigation of the substances of the earth and different modes of extracting them have contributed to rende r the sense of the word "mineral' less certain than when it originally was used in relation to mining operations. I should think that there could be no doub t that the word 'minerals' in old times meant the substances got by mining, and I think mining in old times meant subterranean excavation. I doubt whether in the present state of the authorities it is accurate to say that in every deed or in every statute the word 'minerals' has acquired a meaning of its own independently of any question as to the manner in which the minerals themselves are gotten."
11. The House of Lords in North British Railway Co. v. Budhill Coal and Sandstone Co. [1910 AC 116 (HL)] was concerned with the question whether sandstone or freestone is included in the minerals excepted by Section 70 of the Railways Clauses Consolidation (Scotland) Act of 1845. Lord Loreburn, L.C. considered a number of decisions, including the one mentioned above, and observed: "It is not possible to extract any uniform standard. The same is true of the opinions expressed by different learned Judges. A variety of tests have been propounded, which are discussed by Lord Gorell. I agree with him both in his enumeration and in his criticism. Is the substance in common parlance a mineral? Is it so considered by geologists? Is it a substance of any peculiar value? No one principle has been accepted, and every principle appears to have its friends."
12. In Northern Pacific Railway Co. v. John A. Soderberg [188 US 526 (23. S.Ct 365, 47 L. Ed. 575) (1903)] , Supreme Court of the United States ruled: "The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus, the scien tific division of all matter into the animal, vegetable, or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore could not be excepted from the grant without being destructive or it. Upon the other hand, a definition which would confine it to the precious metals 'gold and silver ' would so limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary as: 'any constituent of the earth' s crust;' and that of Bainbridge on Mines: 'All the substances that now form, or which once formed, a part of the solid body of the earth.' Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are 'mined', as distinguished from those which are 'quarr ied', since many valuable deposits of gold, copper , iron, and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such, for instance, as the Caen stone in France, is excavated from mines running far beneath the surface. This distinction between underground mines and open workings was expressly repudiated in Midland Railway Co. v. Haunchwood Brick & Tile Co., (1882) 20 Ch Div 552 and in Hext v . Gill, (1872) 7 Ch APP 699 : (1881-73) All England Reporter Rep 388."
13. In Bhagwan Dass v. State of U.P. and others [(1976) 3 SCC 784], it was argued that since sand and gravel were deposited on the surface of the land they could not be called minerals. Repelling the contention Y.V.
Chandrachud, J. wrote: "...It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informe d experience. In any case, the definition of 'mining operations' and 'mino r minerals' in Section 3(d) and (e) of the Act of 1957 and Rules 2(5) and
(7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any minor mineral. 'Winning' does not imply a hazardous or perilous activity. The word simply means 'extracting a mineral' and is used generally to indicate any activity by which a mineral is secured. 'Extracting' in turn, means, drawing out or obtaining. A tooth is 'extracted' as much as is fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral."
The above view was reiterated in Banarsi Dass Chadha and Bros. v. Lt. Governor , Delhi Admn. [(1978) 4 SCC 11], and V.P. Pithupitchai v. Govt. of T.N. [(2003) 9 SCC 534] and Som Datt Builders Limited v. Union of India [(2010) 1 SCC 31 1].
14. In Punjab, the Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948 (XXIV of 1948), and the Punjab Mining Concession Rules, 2002 (the "Rules"), are relevant to the issue under discussion. Clause (xxvi) of Rule 2 defines the term "mineral" as: "mineral" means all surface and sub-surface natural deposits of ores and metals and other metallic and non- metallic substances, including naturally occurring aqueous solutions containing more than 1% mineral salt in solution, but does not include -
(i) nuclear substances;
(ii) mineral oil; and
(iii) natural gas;
15. The Rules, however , make a distinction between (major) minerals and minor minerals. Clause (xxiv) of Rule 2 defines the latter as under:
(xxiv) "minor minerals" means ordinary sand, sand stone, silt stone, slate stone and gravel and may include any other mineral so declared by the Government, On the other hand, "ordinary sand" is defined in clause (xxxi) of Rule 2 as follows:
(xxxi) "ordinary sand" means fluviatile deposit of minute fragments resulting from wearing down of pre- dominantly siliceous rocks mainly ranging from 5 microns to 2 millimeters in size including clays and silty sand containing more than 30% sand particles commonly known as "Bhassar/Ghassar" but does not include silica sand suitable for glass making.
16. In Muhammad Iqbal Khan and others v. Collector , Mansehra and others (PLD 2004 SC 659), the Hon'ble Supreme Court of Pakistan while considering somewhat similar definitions in the North-W est Frontier Province (Minor Minerals) Mining Concession Rules, 1971 (which were also framed under Act XXIV of 1948, ibid) held that it was "abundantly clear" that minor minerals constituted a distinct category and were altogether different from the minerals.
17. While we are still on the definitions we need to note that Rule 2 names only some of the minerals that are to be reckoned as "minor minerals" and authorizes the Government to add to that list. Clay and silty sand (when it contains more than 30% sand particles commonly known as Bassar/Ghassar but excluding silica sand suitable for glass making) are covered by the said definition. However , brick earth has neither been declared a minor mineral by the legislature nor by the Government under its delegated authority . It is distingu ishable from clay and silty sand and none of them should be considered as a sub-set thereof. Clay is a soft, loose, earthy material with a grain size of less than four micrometers. It forms as a result of weathering and erosion of rocks containing the mineral group feldspar over vast spans of time. During weathering, the feldspar content is altered by hydrolysis (reaction with water) to form clay minerals such as kaolinites and smectites. Geologic clay deposits are mostly composed of phyllosillicate minerals containing variable amounts of water trapped in the mineral structure. Clays are plastic due to particle size and geometry as well as water content and become hard, brittle and non-plastic upon drying or firing. Depending on the soil's content in which it is found, clay can appear in various colours from white to dull grey or brown to deep orange-red. In contrast, silts which are fine-grained soils that do not include clay minerals and tend to have larger particle sizes than clays.
18. India makes a distinction between "ordinary earth" used for filling or levelling purposes in construction of embankments, roads, railways and buildings, and "brick earth" used for brick making, and has notified both of them as minor minerals and has subjected them to regulatory regime.
19. Reverting to the case in hand, the Petitioner claims that he has purchased a piece of land near Raja Jang, District Kasur , from which he digs earth and transports it to his kiln in Raiwind, District Lahore, for making bricks but on the instructions of the Deputy Director , Mines and Minerals, Respondent No.3 has started stopping his vehicles on the pretext that they carry Bassar/Ghassar . Indubitably the onus was on the Petitioner to prove his contention but he has not produced any material on record in this regard. He has not even filed any document regarding his ownership of the alleged land in Raja Jang. In the circumstances, the matter requires factual inquiry which cannot be undertaken by this Court in these proceedings. Reliance is placed on Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37) in which the Hon'ble Supreme Court of Pakistan held: "Superior Courts should not involve themselves into a thorough probe or in-depth investigation of disputed questions of fact which necessitate taking of evidence. In-depth investigation can conveniently and appropriately be done by the forums available in the hiera rchy. Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality , impropriety and flagrant violation of law regarding action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Controversial questions cannot be decided by High Court in exercise of powers as conferred upon it under Article 199 of the Constitution."
20. In view of the above, the Petitioner is directed to seek his remedy before the appropriate forum.E1] E2]
3. 4.
21. Earth has immense resources which are necessary to sustain human life. There is always a tension between those who would circumscribe these riche s to private use and those who would carefully allot them to satisfy needs of the public-at-large. However , it is always thought that some of these resources are so important for human existence that they should be held in common and stewarded by the government.
22. The ancient laws of Byzantine Emperor Justinian contained the concept of res communis which has come to be known as the Public Trust Doctrine. It implied that certain properties such as air, running water , the sea and the sea shores were common property shared by all the citizens. The title to these essenti al resources vested in the State in trust for the benefit of the general public. The State was thus bound to protect them for their uninterrupted use. In England, this concept was reflected in the common law and paragraph-5 of Magna Carta. In 1225 King John was forced to revoke his cronies' exclusive fishing and hunting rights because they violated the public' s right to access these common properties. Thereafter , in 1865, the House of Lords applied the concept of public trust in the case of Gann v. Free Fishers of Whitstable [11 E.R. 1305 (1865) = 11 H.L. Cas. 192] holding that the bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea, is vested in the Crown whose ownership is for the benefit of the subjects and cannot be used in any manner so as to derogate from, or interfere with the right of navigation which belongs by law to the subject of realm. In America, the Public Trust Doctrine was applied for the first time by the New Jersey state court in Arnold v. Mundy [6 N.J.L. 1, 53 (1821)] and then by the Supreme Court of the United States in Martin v. Waddell, 41 U.S. 367 (1842) . However , the seminal American case is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892) . Illinois wanted to give Chicago' s entire lakeshore to a private railway company . The Supreme Court held that it could not do so as the lake and the ground were protected by "a title held in trust for the people of the state so that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein free from obstruction or interference of private parties."
David Takacs notices three elements of vital significance in this decision: "(i) the sovereign holds certain resources in trust for the common good; (ii) the public has some kind of right to protection of these resources; and
(iii) while democracy may seem subverted when a court overrules the acts of elected officials, such judicial acts in fact serve democracy by preserving rights invested in all the people."
23. The Public Trust Doctrine borrows its basic construct and some of its tenets (though not all) from the private trust law. Like the latter it involves three elements: a trustee, a beneficiary and trust property. Here, the trust property consists of natural resources. The government is their trustee and must manage them subject to fiduciary duties for the benefit of both present and future generations who are the beneficiaries of the public trust. As in the private trust context, the trustee of the public trust must adhere to both substantive and procedural duties. The former includes:
(i) the duty of protection; (ii) the duty against waste; (iii) the duty to maximize the value of trust resources; (iv) the duty to restore trust resources when damaged; and (v) the duty against privatizing trust resources. On the other hand, procedural duties are: (i) the duty of loyalty; (ii) the duty to supervise agents; (iii) the duty of good faith and reasonable care; (iv) the duty of precaution; and (v) the duty to furnish information to beneficiaries (accounting).
24. In 1970, Joseph L. Sax, Professor of Law, University of Michigan gave a new impetus to the Public Trust Doctrine in natural resource law. He argued that certain resources have great importance to the people as a whole and it would be unjustified to make them a subject of private ownership. According to him, the government is obligated to preserve and hold them in trust for the general public so that they may enjoy them. "The Public Trust Doctrine charges the State with a two-fold duty: the duty to protect the res against substantial impairment, and the duty to repair if any damage is caused to it. Public trust obligations impose three types of restrictions on governmental authority: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for fair cash equivalent; and, third, the property must be maintained for particular types of uses." Sax wrote: "If any analysis in this article makes sens e, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties.
Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffused public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture of procedural and substantive protections which the[5]
6. 7. courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required."
25. Sax further said that public trust obligations were separate and distinct from (and, in fact, go beyond) the State' s duty to enact laws and regulations that purport to manage the res. Moreover , these duties were active, not merely passive. It was not sufficient that laws and regulations were passed: they must actually work to protect the trust resources. Every citizen has the right to question government decisions and hold the authorities accountable for their treatment of these resources. David Takacs opines that Sax's notion of Public Trust Doctrine articulates a philosophy where public interests in the environment do and should trump private interests.
26. Meanwhile, the Public Trust Doctrine continued to be applied in the United States. However , the jurisprudence on this doctrine was further expanded by Natural Audubon Society v. Superior Court, [658 P.2d 709 (Cal. 1983)], commonly referred to as the Mono Lake Case. The plaintiffs alleged that the City of Los Angeles Department of Water and Power was violating the Public Trust Doctrine by diverting huge amounts of water from the lake's tributary streams that fed the lake which caused environmental damage. The Department took the defence that the diversions were allowable as it held permits therefor from the state. The California Supreme Court ruled that "the state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. No party has a vested right to appropriate water in a manner harmful to the interests protected by the public trust ... once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in the light of current knowledge or inconsistent with current needs ... accordingly it may reconsider those decisions even though they were made after due consideration of their effect on the public trust."
27. The Public Trust Doctrine is a part of the international environmental law since the Stockholm Declaration, 1972. Reference may be made to Principles 2 and 3 of the said Declaration which read as under: Principle 2 The natural resources of the earth, including the air, water , land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
Principle 3 The capacity of the earth to produce vital renewable resources must be maintained and, whenever practicable, restored or improved.
28. A number of international bilateral and multilateral treaties and proceedings of international bodies also incorporate the concept of public trustees hip though most of them do not specifically use the term in question. It is the basis of the United Nations Framework Convention on Climate Change (1992) and the Paris Agreement (2016).
29. The courts in various countries are fain to apply the concept of public-trust in increasing number of cases. For example, in the Philippines, in the landmark case of Oposa v. Factoran, Jr. [224 SCRA 792 (1993)] , the Supreme Court nullified the timber licence agreements that authorized the logging of the country' s ancient forest. It said: "Every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology ... This belongs to an altogether different categor y of rights because it concerns nothing less than self-preservation and self-perpetuation. .. the advancement of which may even be said to predate all governments and constitutions."
30. More recently , in Metro Manila Development Authority v. Concerned Residents of Manila Bay. [574 SCRA 661 (2008)] , the Supreme Court of Philippines issued a writ of continuous mandamus to the government to clean up, rehabilitate and preserve Manila Bay . It said: "The importance of Manila Bay as a sea resource, playground, and as a historic landmark cannot be over- emphasized. It is not too late in the day to restore Manila Bay to its former splendor and bring back the plants and sea life once thrived in its blue waters...the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Even assuming the absence of categorical legal provisions specifically prodding the petitioners to clean up the bay, they and the men and the women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them."
31. The Supreme Court of India recognized the Public Trust Doctrine in State of Tamil Nadu v. Hind Stone [1981 SCC (2) 205]. The state government of Tamil Nadu enacted the Tamil Nadu Minor Mineral Concession Rules, 1959. Rule 8 thereof prescribed procedure for lease of quarries to private persons. In 1977 it made an amendment and introduced Rule 8C which restricted quarrying of black granite to corporations wholly owned by the government and banned grant of leases to private persons. The Supreme Court dismissed petitions challenging vires of Rule 8C holding that it was made in bonafide exercise of the rule-making powers to conserve minerals and protect them from imprudent and indiscriminate exploitation. The Court observed: "Rivers, forests, minerals and such other resources constitute a nation' s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation."
32. M.C. Mehta v. Kamal Nath and others [(1997) SCC 388] is another landmark case. The Minister for Environment allowed a motel to be built on the bank of River Beas which interfered with the natural flow of the river. The Supreme Court of India observed that the issue illustrated the "classic struggle" between those members of the public who would preserve rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of changing needs of an increasingly complex society, find it necessary to encroach upon open lands which were previously considered inviolable. The Court invoked the Public Trust Doctrine and declared the action illegal holding that: "Our legal system--based on English common law--includes the public trust doctrine as part of its jurisprudence.
The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public-at- large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."
33. In M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu and Others [(1999) 6 SCC 464], the Supreme Court of India while reaffirming the Public Trust Doctrine linked it to right to life and held that a public park could not be replaced with a shopping complex as it af fects quality of life of the people.
34. Intellectuals Forum, Tirupathi v. State of A.P. & others (AIR 2006 SC 1350) once again emphasized the need to protect natural resources. The Supreme Court of India ruled that public trust was an affirmation of the duty of the State to protect people's common heritage and iterated that the said doctrine along with the principles of sustainable development and inter-generational equity must be applied for adjudication of matters concerning environment and ecology.
35. In our country, Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) is the lodestar case on environmental jurisprudence. It was a public interest litigation in which the petitioners challenged construction of a grid station by the Water and Power Development Authority in their residential area on the ground that electromagnetic field created by it would pose a threat to their health. The Supreme Court of Pakistan observed that balance should be struck between the rights of the citizens and the plans executed by the Authority for the welfare, economic progress and prosperity of the country and if there were threats of serious damage, effective measures should be taken to control it. This case is significant for two reasons: firstly, it held that the right to life should be interpreted to encompass environmental rights. Secondly, it laid the foundation for the rule of the Precautionary Principle which is akin to the Public Trust Doctrine.
36. Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited (2005 CLC 424) was the first case in Pakistan in which the Sindh High Court applied the Public Trust Doctrine directly . The defendant, a multinational company , started constructio n of a water bottling plant close to Karachi aimed at saving transportation[8] costs in supplying bottled water to the city by tapping into and making free use of the sub-soil water/acquifier underlying the land reserved for establish ing health and educational institutions to be termed as "Education City".
The plaintif fs filed a suit seeking a declaration that it was illegal and prayed that pending its disposal an interim injunction be issued restraining it from proceeding with its project. The defendant inter alia contended that under Section 7 of the Easements Act, 1882, every owner of land had absolute right to enjoy and dispose of his immovable property . There was no law for the time being in force in Pakistan prohibiting it from using the sub-soil water by installation of tube-wells in its own land and extract any amount of water that it required. The Court rejected the contention holding as under: "No civilized society can permit unfettered exploitation of its natural resources by anyone particularly in respect of the water which is a necessity of the life. Ground water is a national wealth and belongs to entire society. It is a Nectar, sustaining life on earth and without water, the earth would be desert...It is well-settled that natural resources like air, sea, waters, and forests are like public trust. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status. 'Doctrine of Public Trust', as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
This decision was upheld in Intra-Court Appeal vide judgment reported as 2005 CLC 424 .
37. Chronologically , the second case in which the Doctrine of Public Trust was directly applied in our country was Moulvi Iqbal Haider v. Capital Development Authority and others (PLD 2006 SC 394). In that case the petitioner challenged the construction of a golf course on a public park. The Supreme Court of Pakistan declared the conversion illegal on the ground that it violated fundamental rights guaranteed by the Constitution. It held: "... Jubilee Park was earmarked in the original scheme of Sector F-7. It was meant for low income group, who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore, converting such park for commercial activity with the collaboration of multinational companies would deny the rights guaranteed to them. "
38. Muhammad Tariq Abbasi and others v. Defence Housing Authority and others (2007 CLC 1358 ) is another case on this point. The Defence Housing Authority converted an amenity plot reserved for park near the Clifton Beach and used it for construction of a multistoried official complex and a residential tower with a shopping mall. The petitioners impugned the project, amongst others, on the ground that it would be detrimental to the interest of the general public as it would deny them easy access to the beach. The Sindh High Court upheld this contention and ruled: "...[T]he Hon'ble Supreme Court in the case of Ardeshir Cowasjee v. KBCA (1999 SCMR 2883) and Moulvi Iqbal Haider v. CDA (supra) has recognized that the right of access of public-at-large to parks etc. is a fundamental right guaranteed under Article 9 of the Constitution as it can be equated to the right to life provided for therein...[T]he doctrine of public trust has long been recognized all over the world which enjoins the State to preserve and protect the public interest in beaches, lakeshores etc...This Court in the case of Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited (2005 CLC 424) has recognized the public trust doctrine extending to natural resources, viz, air, sea, water and forests, which being a gift of nature should be made freely available to everyone irrespective of status."
39. In addition to the foregoing, our court s have delivered a number of remarkable judgments on the basis of the Public Trust Doctrine which include Suo Motu Case reported as Cutting of Trees for Canal Widening Project, Lahore (2011 SCMR 1743 ) and Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary , Government of Punjab, Lahore and others (PLD 2016 Lah. 699). As a result, our jurisprudence on this concept is continuously developing. In Maple Leaf Cement Factory Ltd. v. Environmental Protection Agency and others (PLD 2018 Lah. 255), a case in which the Petitioner challenged the Signal Free Corridor Project in Lahore, a Full Bench of this Court observed: "The corpus of environmental laws have a singular purpose of protecting life and nature, including the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Our existing jurisprudence (led by the landmark judgment of Shehla Zia case, PLD 1994 SC 693) rests environmental justice on right to life (Article 9) to mean a right to a healthier and cleaner environment. Time has come to move on. To us environmental justice is an amalgam of the constitutional principles of democracy , equality , social, economic and political justice guaranteed under our Objectives Resolution, the fundamental right to life, liberty and human dignity (Article 14) which include the international environmental principle s of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine."
40. The Public Trust doctrine is the foundational principle of sustainable development which is cherished by every nation. Sustainable development is most often understood in terms it was defined in the Brundtland Report which stated that it is "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." There are a number of scholarly writings on the concept of sustainable development and it is also reflected in a huge number of international agreements, guidelines and declarative texts though some of them define it only contextually. However, the mainstream definitions and international instruments show that this concept comprises the following four legal elements: First, the need to preserve natural resources for the benefit of future generations (the principle of inter-generational equity). Second, the aim of exploiting natural resources in a manner which is 'sustainable', or 'prudent', or 'rational', or 'wise', or 'appropriate' (the principle of sustainable use). Third, the 'equitable' use of natural resources, which implies that use by one State must take account of the needs of other States (the principle of equitable use, or inter-generational equity). And fourth, the need to ensure that environmental consideration are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account in applying the environmental objectives (the principle of integration). "The link between basal view of sustainable development and the PTD is through the latter 's protection of resou rces for future generations of trust beneficiaries. By mandating the governmental trustees to treat the interests of current and future citizens equally , the notion of intergenerational equity is inherent to the PTD."
41. The Intergovernmental Panel on Climate Change (IPCC), an intergovernmental body of the United Nations has released its Special Report on Climate Change and Land, 2019 (SRCCL), in which it has noted that land is vital for food security and plays an important role in the climate system. Therefore, it has termed it as a "critical" resource and has urged the States to conserve, manage and use their land resource intelligently. This would also help them attain sustainable development. SRCCL states: "A wide range of adaptation and mitigation responses, e.g. preserving and restoring natural ecosystems such as peatlands, costal lands and forests, biodiversity conservation, reducing competition for land, fire management, soil management, and most risk management options (e.g. use of local seeds, disaster risk management, risk sharing instruments) have the potentials to make positive constructions to sustainable development, enhancement of ecosystem functions and services and other societal goals. Ecosystem-based adoption can, in some contexts promote nature conservation while alleviating poverty and even provide co-benefits by removing greenhouse gases and protecting livelihoods ... Sustainable land management can prevent and reduce land degradation, maintain land productivity , and sometimes reverse the adverse impacts of climate change and land degradation. It can also contribute to mitigation and adaptation."
42. As discussed above, the Public Trust Doctrine historically applied to a limited set of natural resources but it has been expanded over time. In Borough of Neptune City v. Borough of Avon-By-the-Sea , [(61 N.J. 296 (1972)] , the Supreme Court of New Jersey ruled that "the public trust doctrine should not be considered fixed or static, but should be moulded and extended to meet changing conditions and needs of the people it was created to benefit."
Today there are growing voices for climate justice that moves beyond the construct of environmental justice (which is by and large localized) and embraces new dimensions. In Asghar Leghari v. Federation of Pakistan and others (PLD 2018 Lah. 364 ), Syed Mansoor Ali Shah, CJ (as he was then) wrote: "Climate Justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the word's resources... Charge has moved the debate from a linear local environmental[9]
10. 11. 12. 13. issue to a more complex global problem. In this context of climate charge, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction...Climate Justice, therefore, moves beyond the construct of environmental justice. It has to embrace multiple new dimensions like Health Security, Food Security, Energy Security, Water Security, Human Displacement, Human Trafficking and Disasters Management within its fold. Climate Justice covers agriculture, health, food, building approvals, industrial licences, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc."
43. The "brick-earth" which the kilns use for brick-making in Pakistan mostly consists of soil as the Petitioner in the instant case admitted before this Court. Soil is considered to be "skin of the earth". It is a mixture of minerals, organic matter , gases, liquids and countless organisms. It is made of distinct horizontal layers called "horizons" which range from rich, organic upper layers (humus and topsoil) to underlying rocky layers (sub-soil, regolith and bedrock). The soil horizon may vary in thickness, mineral composition and structure. Soil is essential for life because it provides medium for plant growth, acts as a filtration system for surface water , maintains the balance in atmospheric gases, stores carbon and is a habitat for several organisms. "Ecologically , soil is the most dynamic component (lithosphere) of the global environment encompassing distinct communities of organisms in its realm". It is one of the most valuable natural resource and is the result of natural activity of millions of years.
44. Topsoil, the upper outermost layer of the soil, usually the top five to ten inches, has the highest concentration of organic matter and micro-organisms. It is here that most of the Earth' s biological soil activity occurs. Topsoil is composed of mineral particles, organic matter, water and air. A fertile topsoil has concentration of nutrients, including potassium, phosphorous and iron, which vary depending on geographic region and climate, as well as human activity .
45. Brick kiln owners excavate soil with impunity . More often than not the entire layer of topsoil is dug out which has serious repercussions. The fertility of that particular piece of land is reduced and irrigation of the neighbouring plots is adversely affected. This leads to desertification and low agricultural yields which eventually impact our country' s food security . Besides, it contributes to environmental degradation and climate change. In the circumstances, the Public Trust Doctrine can legitimately be extended to soil. David Takacs argues: "A growing body of Public Trust Doctrine case law has accreted since the 19 Century in the United States. Thus private property owners ought to be on notice that they may not arrogate private trust environmental resources...Environmental Human Rights have enormous potential to create new prohibitions on what a property owner may do with her land."
46. This Court has noted with grave concern that there is no check on reckless soil digging in Pakistan in general and the Punjab in particular. There is an urgent need to draw integrated environmental policies for sustainable development and protection and conservation of species, habitats, biodiversity and natural resources. These are required not only in our national interest but are also needed to meet our international obligations and achieve the Sustainable Development Goals. The apathy of the executive and the legislature is heart-rending.
47. It is trite that courts cannot issue a writ/direction to the legislature to enact a law. However , in Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Ministe r of Pakistan and another (PLD 1989 Kar. 404) a seven-member Bench of the Sindh High Court held that in exceptional circumstances it may issue a direction to the Federal and/or Provincial Government to initiate legislative measures. The Court reasoned that there is a marked distinction in a direction to the legislature to legislate and a direction to the Executive to initiate legislative measures. This view was upheld by the august Supreme Court of Pakistan in Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others v. Federation of Pakistan through Secretary , Ministry of Kashmir Affairs, Islamabad (1999 SCMR 1379 ) and reiterated in Province of Sindh through Chief Secretary and others v.
M.Q.M. through Deputy Convener and others (PLD 2014 SC 531). Following these authorities, the High Courts in our country have given directions to the Government in a number of cases to take steps for enacting a law or making amendments in an existing one. In this regard reference may be made to Minoo Hoshang Kapadia, Karachi v. Arnaz Minoo Kapadia, Karachi (PLD 2008 Kar. 271), Riaz Hanif Rahi v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 9 others (PLD 2015 Islamabad 7), Walid Iqbal v. Federation of Pakistan and[14]
15. [16]
17. th
18. 19. others (PLD 2018 Lah. 1), and Subay Khan v. Federation of Pakistan through Secretary and Ministry of Law and 2 others (PLJ 2018 Lah. 224 ).
48. In view of the circumstances narrated above, in my opinion, in the instant case a direction is required to be issued. Accordingly , the Government of Punjab is directed to initiate appropriate administrative and legislative measures within a period of six months from the date of announcement of this judgment to regulate brick manufacturing in general and use and conservation of soil in particular . For this purpose it shall take all stakeholders on board, including (but not limited to), the representative body of brick kiln owners, the Chamber of Commerce and Industry , the Department of Mines and Minerals, Agriculture Department and the Environment Protection Department. The Registrar of this Court shall immediately transmit a copy of this judgment to the Chief Secretary , Punjab, for compliance.
49. This petition stands disposed of with the above directions.
1. https://www.sciencelearn.org.nz.>resourses.
2. https://en.m.wikipedia.org.
3. The said notifications were challenged before the Supreme Court of India but were upheld. See Banarsi Dass Chadha and Bros. v. Lt. Governor, Delhi Admn., [(1978) 4 SCC 11] and Som Datt Builders Limited v. Union of India, [(2010) 1 SCC 311].
4. Also see: State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. (PLD 1983 SC 280); Also see: Attaur Rehman Khan v. Dost Muhammad (1986 SCMR 598); Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. (1981 SCMR 291); Mian Muhammad v. Government of West Pakistan (1968 SCMR 935); Zahid Hussain v. Dharmumal (1971 SCMR 110); Zuhra Begum v. Sajjad Hussain (1971 SCMR 697); Landale and Morgan (Pak.) Ltd. v. Chairman, Jute Board, Dacca (1970 SCMR 853); Mahboob Alam v. Secretary to Government of Pakistan (1969 SCMR 217); Umar Daraz v. Muhammad Yousaf (1968 SCMR 880); Saghir Ali v. Mehar Din (1968 SCMR 145); Punjab Beverage Company (Pvt.) Ltd. v. Central Board of Revenue (2001 PTD 3929).
5. "The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property", 16 New York University Environmental Law Journal 711 (2008).
6. Douglas Quirke, The Public Trust Doctrine: A Primer (https://law.uoregon.edu).
7 "Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention." Michigan Law Review, Vol. 68, Part- I, p.473.
8. guaranteed under Article 21 of the Indian Constitution.
9. World Commission on Environment and Development, Our Common Future (1987).
10. The Punjab environmental Protection Act, 1997, has adopted the said definition and defines "sustainable development" in the same terms in clause (xlii) of Section 2.
11. Philippe Sands, Principles of International Environmental Law--Framework, Standards and Implementations (1995) at pp.199-205. Also approvingly cited by this Court in Maple Leaf Cement Factory Ltd. v. Environmental Protection Agency and others (PLD 2018 Lah. 255 = 2018 CLD 153).
12. Sagarin, Raphael & Turnipseed, Mary. (2012). The Public Trust Doctrine: Where Ecology Meets Natural Resources Management. Annual Review of Environment and Resources. 37. 473-496. 10.1146/annurev-environ- 031411-165249.
13. It consists of lead scientists from 52 countries across all regions of the world and is dedicated to providing the world with an objective scientific view of climate change, its natural, political and economic impacts and risks, and possible response options.
14. Soil - A non-renewable natural source:ictpost.com.
15. Essay on Soil: Meaning, composition and layers. www.biologydiscussion.com
16. https://www.coil-net.com.
17. https://en.m.wikipedia.org>wiki>Topsoil.
18."The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property", 16 New York University Environmental Law Journal 711 (2008).
19. Also known as the Global Goals, the idea of Sustainable Development Goals (SDG) was conceived in September 2015, as a successor to the Millennium Development Goals (MDGs). One of the goals aims to combat desertification, restore degraded land and soil including land affected by desertification, drought and floods, and strive to achieve a land degradation-neutral world by 2030. It has, therefore, become a strong vehicle for driving UNCCD implementation, while at the same time contributing to other SDGs, including those relating to climate change mitigation and adaptation, biodiversity conservation, ecosystem restoration, food and water security, disaster risk reduction, and poverty.