I. BRIEF BACKGROUND JAWAD HASSAN, J.---The Petitioner, Muhammad Tahir Jamal who is an advocate filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") as public interest litigation for enforcement of fundamental rights with respect to basic amenities to public at large at Service Areas on Lahore-Abdul Hakeem Motorway (the "M-3") which is in violation of commitment under CPEC. The denial of aforesaid amenities by the Respondents, National Highway Authority (the "NHA "), which function under the National Highway Authority Act, 1991 under the Supervision of the Ministry of Communications, Government of the Pakistan, Islamabad, prompted the Petitioner to file this writ petition in violation of Articles, 9, 14, 15, 20, 38 of the Constitution.
II. PREVIOUS ORDERS OF THE COUR T
(i) 23.10.2019
2. The Court vide order dated 23.10.2019 observed that the Respondents although submitted Report and Parawise comments but it were without any commitments, time frame, progress report and documents. On the said date, the Court enunciated the right to rest and leisure under Article 26 of the Constitution and Article 24 of the Universal Declaration of Human Rights, 1948 (the "UDHR ") of the United Nations which declares that "everyone has the right to rest and leisure". Muhammad Javed, Deputy Director (Land and Legal), NHA Multan appeared and stated that the Motorway from Abdul Hakeem Interchange to Shamkot Interchange is likely to be functional for public on 27.10.2019 and work to provide Service Area Facilities to public at large is in progress.
(ii) 24.10.2019
3. Pursuant to the order dated 23.10.2019, Naseem Arif, General Manager (Constructions), M-3, NHA Multan appeared and stated that the Motorway from Abdul Hakeem Interchange to Shamkot Interchange will be functional for public on 27.10.2019 (Sunday) which became functional after the official opening. He also submitted that there. are three (03) Service Areas on both sides of the Motorway (M-3) (06 in toto) and the NHA had made first advertisement on 13.09.2019 for award of contract Operation and Management Service Areas but due to financial reasons and lack of response from the bidders they again advertised on 03.10.2019 and the bids were opened on 18.10.2019. He added that the process has already been started for evaluation but it will take almost four (04) months for providing basic amenities at all the Service Areas i.e. Emergency Service, Mosque, Rest/Food Area etc. However they assured that in compliance of the order of this Court, they have made temporary arrangements at Tandalianwala Interchange to meet with the aforesaid basic necessities and the same shall be improved for passengers till the final arrangements hence, under the doctrine of continuing mandamus, today this case is fixed in which all the relevant/concerned parties appeared and made following undertakings before the Court.
HI. UNDER TAKING BY THE RESPONDENTS a. Deputy Commissioner , T.T.Singh .
4. Ms. Amina Munir , Deputy Commissioner present in the Court submits that Attock Petroleum Limited (the "APL") had applied for issuance of NOC on 29.11.2019 and the matter has been forwarde d to all the relevant departments of the Federal and the Provisional Governments. In consequence whereof, only five departments have issued the NOCs however , reminders will be issued to remaining departments in order to expedite the matter , which process formally takes ninety days but keeping in view the hardships and incon venience being faced by the Passengers/T ravellers on Lahore Abdul Hakeem Motorway ("the M-3"), she assures the Court that the needful will be done within next thirty days or before. b. Deputy Commissioner , Nankana Sahib .
5. Mansoor Ahmad, Deputy Commissioner submits that on 21.11.2019, the APL had applied for the NOC. He informs the Court that eleven department s (which include both the Federal and the Provincial Governments) have issued the NOC and only the NOC from the Lahore Development Authority is required.
6. In such panorama, direction is, therefore, issued to the Director General, LDA, Lahore to speed up the matter with regard to issuance of NOC and finalize it within next two (02) weeks, positively . c. Deputy Commissioner , Faisalabad .
7. Aftab Ahmad, ADC (R), Faisalabad has put his appearance on behalf of Deputy Commissioner and states that all necessary NOCs have been issued to the APL however , only one NOC is required from the Environmental Protection Agency ("the EPA"). He next informs that some gas station s and facilities have been provided at the M- 3, Tandlianwala Interchange to public at large.
8. Keeping in view the situation, the conce rned authority of the EPA dealing with the matters of NOC will make sure issuance of mandatory NOC, as per law , to the APL within next fifteen days without fail. d. National Highway Authority
9. Muhammad Azam, Director , NHA states that pursuant to order of this Court, they have issued acceptance letters to all the Contractors and the APL. He, however , clarifies that after fulfilling the terms and conditions by the Contractors given in acceptance letters, the competent authority will then execute contracts/agreements so that the basic amenities at Service Area including Emergency Service, Masjid, Rest/Food Area etc. to all the commuters on the M-3 maybe provided.
IV. STATEMENTS BY THE CONTRACT ORS . a. Habib Construction Company
10. Faraz Anwar , General Manager appe ars on behalf of the Company states that as per the acceptance letter dated 03.02.2020 issued by the Competent Authority , they have deposited bank guarantee and with regard to installment plan, they will do so within a period of ten days in order to expedite the process of making service areas operational. b. Nawaz Construction Company
11. Muhammad Sajjad, General Manager Marketing of the company states that pursuant to the order of this Court, the NHA has issued them letter of accepta nce on 06.02.2020 with certain terms and conditions which they will fulfill within ten days and thereafter , the NHA will execute proper agreement/contract. He further states that regarding service area falling within middle of M-3 (Tandlianwala), contract/agreement has already been executed; however , the operation of the restaurants is in pipeline and after completion of the work, they will obtain services from various outlets/restaurants including KFC, Hardee's Pakistan, McDonald's and Bismillah Restaurant. He assures the Court that Bismillah Restaurant will be operational for the Passengers/commuters of the M-3 within one week.
He further clarifies that Mureedwala services area will take time because the construction work is still in progress.
12. In this scenario, they are directed to expedite the construction work as per requirements of the Operators, within a period of two months.
V. STATEMENT BY REPRESENT ATIVE OF THE ATTOCK PETROLEUM LIMITED
13. Zaheer Ahmad Kazmi, representative of the APL, submits that they have approached the concerned Deputy Commissioners for issuance of the NOCs . However , he further clarifies that they will comply with all the requirements/codal formalities once they receive the NOCs from all the Deputy Commissioners and this process will be completed within one week in which all gas stations will be operational.
14. In the attending circumstances, the concerned Deputy Commissioners are directed to expedite the process of issuing of NOC to the APL at the earliest.
VI. OBSER VATION OF THE COUR T.
15. This petition was filed by the Petitioner being a citizen of Pakistan to draw the attention of the Court towards lack of basic facilities at Service Areas i.e. rest area, masjid, food facilities etc, for the commuters/passengers on Lahore-Abdul Hakeem Motorway ("the M-3") which is causing severe adversity and hardship to the public at large, and has sought intervention of this Court under Article 199 of the Constitution for issuing necessary directions to the concerned quarters to make sure availability of these basic and necessary facilities to every person /passenger/commuter who travels on the M-3 because failure to provide such basic necessary facilities is not only violative of Article 26 of the Constitution, which deals with the issue of access to place of public entertainment or resort which include place to rest and take leisure and place for food and prayers but also it is clear violation of Articles 9, 14, 15, 20 and 38 of the Cons titution which speaks about fundamental rights of the citizens of Pakistan i.e., right to life and liberty (Article 9), right to dignity (Article 14), right to freedom of movement (Article 15), right to food (Article 38), right to water (Article 9) and right to practice and propagate one's religion (Article 20). Mr. Zafarullah Khan Khakwani, ASC relied on the judgment of the Hon'ble Supreme Court of Pakistan in SUO MOTU CASE No. 13 of 2009 (PLD 2011 SC 2019), wherein it has been held that right to life implies the right to food, water , decent environment, education, medical care and shelter thus fundament al rights cannot be infringed or taken away by the state through any actions as well as in actions.
Right to Movement (T ravel) under the Constitution
16. Article 15 of the Constitution provides that every citizen has a fundamental right to freedom of movement throughout Pakistan subject to restrictions imposed by the law. Providing an appropriate safe passage to travel throughout the country is a responsibility shouldered upon the state and the NHA created under the National Highway Authority Act, 1991 which was established for the very purpose of planning, development, operation and maintenance of the National Highways and strategic roads to provide safe, time efficient and better road facilities of international standards to travellers/commuters/passengers so that they can exercise their right of movement in a more better way. Different phases of Motorways are also constructed by the NHA to undertake this very purpose at the level of utmost excellence because the NHA is custodian of the Highway assets of Pakistan's road network and committed to provide a safe, modern and ef ficient transportation system.
M-3 under CEPC
17. In order to achieve the infrastructure projects and road networks in Pakistan, various motorways including the M-3 was constructed under the China Pakistan Economic Corridor (the "CPEC" ) by the NHA. CPEC is intended to rapidly upgrade Pakistan's required infrastructure and strengthen its economy by the construction of modern transportation networks, numerous energy projects, and special economic zones. To fulfill the purpose of the CPEC, the CPECA was established under The China Pakistan Economic Corrido r Authority Ordinance, 2019 by aiming at accelerating the pace of CPEC-related activities, finding new drives of growth, unlock the potential of the interlinked production network and global value chains through regional and global connectivity . As per project of CPEC, about 1100 kilometers long motorw ay has to be built between the cities of Karachi and Lahore in which M-3 constructed by NHA is also included which was not functional hence this petition. Under the aims and objectives of the CPEC Authority , the national highw ays of Pakistan function as the backbone of Pakistan's transportation system, play an important role in the development of micro and macro economy and also enhance the national integration by increasing the social and economic dependence between the Provinces and neighbor countries. The National Highway Authority Act, 1991 is governing law, which deals with matters related to Highway and motorway and Section 31 of the Act confers powers upon Federal Government to make rules for carrying out purpose of the Act. As per Rule 2 (xiv) of The National Highways and Strategic Roads (Control) Rules, 1998 (as amended in 2002) motorway is defined as: "Motorway' means a road especially designed and built for motor vehicles which does not serve the properties bordering on it except at special points and has separate carriageways for the two directions of the traffic and does not cross at level with any road, railway , tramway , cycle track or footpath."
18. Moreover , motorway is also defined under Section 2(xxxiv) of National Highways Safety Ordinance, 2000 according to which "motorway" means a road especially designed and built for motor vehicles which does not serve the properties bordering on it except that special points and has separate carriageways for the two directions of the traffic and does not cross at level with any road, railway , tramway , cycle track or footpath.
19. Universally the freedom of movement envisages access of every citizen to all the roads constructed for public to travel including motorways subject to condition of toll tax or other taxes imposed by government under the law and any unreasonably protracted obstruction of the road or its prolonged non-functionality on the pretext of a construction work which is taken out in a sluggish manner tantamount to restriction and infringement of fundamental right to movement of commuters/passengers/travellers provided and protected under Article 15 of the Constitution. In this backdrop, on 23.10.20 19 assurance from Respondent-NHA was sought by this Court regarding the opening and functioning of Motorway from Abdul Hakeem Interchange to Shamkot Interchange and the same has been complied with as per assurance given to the Court which has been appreciated.
Right to Profess Religion (Prayer Facilities)
20. Article. 20 of the Constitution guarantees that every citizen shall have the right to profess, practice and propagate his religion and Preamble of the Constitution states that sovereignty over the entire universe belongs to Al-Mighty Allah alone. Right to practice religion implies that a Muslim citizen has a fundamental right to offer prayer at the time of prayers while he is travelling at M-3 and it is the duty of State to provide appropriate area to offer prayers at Service Area of M-3.
Right to Public Entertainment and Resort
21. Article 26 of the Constitution guarantees that there must be no discrimination against any citizen regardless of race, sex, caste, religion or place of birth to access places of public entertainment or resort. The term 'Entertainment' has been elaborated by this Court in case reported as "PARKS PAKIST AN (PVT .) LTD v.
DIRECT OR, EXCISE AND T AXATION and others " (1994 CLC 1034 ), relevant portion is reproduced hereunder: "Entertainment, as per ordinary dictionary means amusement, recreation or pastime. Amusement means anything that diverts the mind and pleases the mind. Recreation has the meaning of refreshment of the strength and spirits after toil and diversion while pas-time connotes to pas-time agreeably and in a pleasant manner . Keeping the ordinary dictionary meaning of the words in view entertainment denotes any amusement, recreation of pas-time which diverts working of mind from ordinary channels to something different in a pleasant and pleasurable manner .
"(Emphasis supplied).
22. The term 'resort' is defined by Black's Law Dictionary (11th Edition p.1568) which reads as follows: "a place where people go for 'rest, recreation, or sport, especially on vacation"
23. Article 38(d) of the Constitution also secures the fundamental rights related to basic amenities of life with the following words: "The State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief , for all citizens."
Concept and Purpose of Rest Areas in different countries
24. A rest area is a public facility , located next to a large thoroughfare such as a motorway , expressway , or highway , at which drivers and passengers can rest, eat, or refuel without exiting onto secondary roads. Facilities may include park-like areas, fuel stations, public toilets, water fountains, restaurants, and dump and fill stations for caravans .
Establishment of Rest Areas In Different Countries i. Islamic Countries In Islamic countries like Malaysia, Indonesia, Iran, Saudi Arabia and Turkey , Muslim travellers have been provided facilities for of fering prayers at the distance of after every 90 kilometres besides highways. ii. Australia Rest areas in Australia are a common feature of the road network , in rural areas. They are the responsibili ty of a variety of authorities, such as a state transport or main roads bureau, or a local government's works department.
Facilities and standards vary widely and unpredictably: a well-appointed rest area will have bins to deposit small items of litter, a picnic table with seating, a cold water tap (sometimes fed by a rainwater tank), barbecue fireplace (sometimes gas or electric), toilets, and - less commonly - showers. Other rest areas, especially in more remote locations, may lack some or even all of these facilities. iii. United Kingdom The term "rest area" is not generally used in the United Kingdom. The most common terms are motorway service areas or simply motorway services. As with the rest of the world, these are places where drivers can leave a motorway to refuel, rest, or get refreshments. Most service stations accommodat e fast food outlets, restaurants, small food outlets such as Marks and Spencer and coffee shops such as Costa Coffee; many service stations also incorporate motels such as Travelodge . Almost all the MSA sites in the UK are owned by the Department for Transport and let on 50-year leases to private operating companies.
Travelers' rights in Islam
25. Travelers in Islam are known as Musafir or Guest which has been defined in Holy Quran and Sunah as "WAYFARER" . Holy Prophet Muhammad (S.A.W .) reminded us of the high status of one who treats his guest well when he said, "... Let the believer in God and the Day of Judgement honor his guest ." Treating guest or traveller well is the most important beliefs in Islam, belief in God and belief in the Day of Judgement. a. According to Holy Quran Surah Al-Bakara (V erse 177)
"The real righteousness is not this that you turn your face towards East or West; yes, the real virtue is this that one has faith in Allah and the Last day and the angels and the Book and the Prophets and gives his dear wealth for love of Allah to kindred and orphans and the needy and the wayfarer and the beggars and for redeeming necks, and establishes prayer and pays poor due (Zakat); and the performer of their promises when make promise and the patients in tribulation and adversity and at time of crusade;-These are they, who proved truth of their talks and they are only God-fearing"
Surah An-Nisa (V erse 36)
"And worship Allah, and do not associate anyone with Him and do good to parents, and to relatives and orphans, and the needy , and the near neighbour and the distant neighbour and the compani on of your side and the wayfarer and to your male and female servants. Undoubtedly , Allah loves not the proud, boastful"
Surah Ar-Rum (V erse 38)
"Therefore, give the kinsman his due and the needy and the wayfarer . This is better for those who seek the pleasure of Allah and it is they who became prosperous" b. According to Hadith A well-known Hadith with respect to Travellers' right is quoted here under: Abu Hurairah reported the Prophet (SAW) saying: "He, who believes in Allah and the Last Day, let him show the hospitality to this guests ..." (Bukhari and Muslim) Hafiz Salahudd in Yusuf in his commentary in Riyad-us-Saliheen states: "To honour a guest means to welcome him cheerfully , entertain him happily, and have full regard of his comfort and rest."
26. The Hon'ble Supreme Court of Pakistan in case law reported as "Moulvi IQBAL HAIDER v. CAPIT AL DEVELOPMENT AUTHORITY" (PLD 2006 SC 394) has approved public places of entertainment and resorts as fundamental rights by elaborating Article 26 of the Constitution in the following manner: "Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts"
27. It is therefore ample clear that Motorway is a road with exclusive and limited points to access entry and to exit therefrom by commuters/travellers and besides those given points, a traveler can neither make an entry thereon or exit therefrom, which means that while being on Motorway, a traveler is solely dependent upon the services provided by Motorway Authorities regarding basic necessities and amenities i.e, gasoline station, food, air filling station, rest room, prayer area, emergency medical care center etc., which are necessary for safe and sound travelling and failure on the part of the State and Authorities acting on behalf of the State including local administration to provide the same is not only violative of Article 14, which provides right to dignity as well as pose obstruction in exercise of fundamental right of movement provided and guaranteed under Article 15 of the Constitution and of Article 26 of the Constitution, which provides that every citizen has a fundamental right to access to public place for entertaining and resort. When the entry in and exit from Motorway is controlled by the NHA by restricting it to certain points then it is incumbent upon all the authorities involved including NHA as well as local district administration to provide all basic facilities and amenities at the Service Areas of Motorway as detailed above and any failure or negligence on their part is breach of fundamental duty cast upon them by the Constitution.
Right to Nature and Shed/Shelter of T rees
28. It has been pointed out to the Court that the Service Areas at M-3 are barren and no significant plantation is made thereon. It is pertinent to mention here that earlier this Court in a case reported as "SHEIKH ASIM FAROOQ v. FEDERA TION OF PAKIST AN and others" (PLD 2019 Lahore 664) has given directions to the Federation and Government of Punjab as well as all other authorities and departments to carry out plantation throughout the province. Relevant portion of directions was: "In view of the above, this Court allows this writ of mandamus under Article 199(1)(a) (i) of the Constitution and direct the Government Departments performing their functions within jurisdiction of this Court in connection with the affairs of Federation and Province of Punjab and other local authorities under the respective laws, mentioned in this judgment to do anything, they are required by law to do IN ORDER TO SAFEL Y MANAGE, CONSERVE, SUST AIN, MAINT AIN, PROTECT AND GROW FORESTS AND PLANT TREES IN URBAN CITIES which are as follows: ------------- -------------
(10) The Local Government, PHA, DNA, LDA and all others authorities/societies, Secretary Forest and other relevant authorities are directed to defin e a mechanism for urban forestation by learning from Urban Plantation Policy . --------------
(12) All the authorities, including DHA, LDA, MDA, FDA and other relevant authorities, are directed to make and adopt comprehensive policies with respect to plantation of trees in urban areas with experience of Urban Plantation Policy and make their own policy under respective laws and immediately start planting of trees with the request to PHA and other departments and maintain the same by imposing fine and penalty to the officers of the area or any citizen.
(13) The school, colleges, higher educatio n institutes, hospitals, parking sites etc. are specifically directed to make policy for planting the trees in open spaces and waiting areas/car parks. (emphasis supplied)
29. The Respondents including. National Highway Authority , DCOs of all district administrations are directed to immediately take measures to carry out plantation on the Service Areas in the light of above quoted H judgment, which is binding on them under Article 201 of the Constitution. They are further directed to submit report of compliance in this regard within one month from the date of order .
Doctrine of Continuing Mandamus
30. This petition pertains to interests of the public regarding which it is not appropriate to pass a final order with definite direction and dispose of the matter rather a gradual oversight of the Court is required to check the progress and implementation of the directions passed by the Court from time to time within the mandate of doctrine of Continuing Mandamus. Doctrine of Continuing Mandmus was well expounded by this Court in the case of Sheikh Asim Farooq , ibid wherein it was held: "23. Continuing Mandamus is a writ of mandamus issued to an authority by the High Court under Article 199 of the Constitution in general public interest asking the officer of the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice. The Doctrine of continuing mandamus, at times also referred to as structural interdict or structural injunction, in other words, is a relief given by a Court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfill an obligation in general public interest, as and when a need arises over the duration a case lies with the Court, with the Court choosing not to dispose the case off in finality . This happens in a situa tion which cannot be remedied instantaneously but requires a solution over a long time, at times going on for years. With this procedural innovation of the writ of mandamus or a mandatory order , the Court monitors compliance of its orders, seeking periodic reports from authorities on the progress in implementing them. Therefore, as it has been observed on 28.01.2019 that orders passed by this Court are to be complied with by different Departments, therefore, following the Doctrine of Continuing Mandamus, this writ petition was kept pending. Reliance is placed on "MALL ROAD TRADERS ASSOCIA TION v . THE DEPUTY COMMISSIONER, LAHORE AND OTHERS" (2019 CLC 744 )"
31. The Supreme Court of India in a case cited as "SWARAJ ABHIY AN (IV) v. UNION OF INDIA" (AIR 2016 SC 2953) also laid down the concept of continuing mandamus.
"31. We are firmly of the view that the principle of continuing mandamus is now an integral part of our constitutional jurisprudence . There are any number of public interes t petitions in which this Court has continued to monitor the implementation of its orders and on occasion monitor investigations into alleged offences where there has been some apparent stonewalling by the Gove rnment of India. A few years ago, one of us had occasion to advert to the requirement of a continuing mandamus as a part of our jurisprudence, Manohar Lal Sharma v. Union of India, 2014(1) R.C.R. (Criminal) 370: 2014(1) Recent Apex Judgments (R.A.J.) 90 : (2014) 2 SCC 532. It is not necessary to repeat the views expressed therein.
32. Under these circumstances, we agree with learned counsel for the petitioner that this petition ought not be disposed of but should be kept pending and the possibility of a continuing mandamus being issued ought to be kept open to ensure that the directions that have been given are complied with by the Government of India as well as the State Governments. (Emphasis supplied)
32. This petition will therefore remain pending under the doctrine of continuing mandamus in order to make sure that the undertakings/assurances given before this Court by the Respondents are materialized and directions given by the Court are complied with in letter and spirit without any fail. This case will be fixed on every alternate Thursday till the directions are complied with.
VII. DIRECTIONS/INSTRUCTIONS OF THE COURT
33. In view' of the above backdrop, the following directions are given:- i) All the government functionaries, present in the Court, will strictly adhere to the undertakings/assurance given in this Court regarding completion of the construction work of Service Areas within the deadline/time frame. ii) A weekly progress report shall be submitted to this Court with complete detail of the work done, the work which is still required to be done and any impedim ent or obstruction which hindered the progress and completion of work.
Report regarding plantation of trees at Service Areas will also be submitted by the Respondents within one month from this order specifying measures taken by them respectively to comply with the direction of the Court since this is the beginning of spring. iii) In case of any deficiency/dispute regarding the progress being made in the matter , the representative of all the departments concerned, including the government functionaries, who appear in the Court today , will properly negotiate/communicate with each other and make out all efforts for amicable resolution of the issue. They may also establish a contact with the learned Law Officers who will render proper assistance to them and play their pivotal role in overall expediting the matter which will be appreciated by the Court. They may also approach the Court for guidance, if feels necessary . iv) All the directions issued through this order and contained in the previous order(s) will be followed in letter and spirit, disobedience of which would tanta mount to initiating contempt proceedings against the delinquents under Article 204 of the Constitution. v) The NHA is directed to establish Emergency Response Centers at suitable places i.e. rest areas, beside the motorway equipped with various facilities including doctors, paramedics and ambulances for the provision of timely aid and care in case of emergency.
30. Now to come up for further proceedings on 20.02.2020.