SHORT ORDER For detailed reasons to be recorded later on and subject to what is outset therein by way of amplification, today's short order is aimed at disposing this writ petition as well as the connected W.P. No.2937 of 2019, in the terms elaborated herein below.
(I) STATEMENT OF SECRETARY LAW AND PARLIAMENTARY AFFAIRS DEPARTMENT.
2. Pursuant to the order dated 27.09.2022, Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs Department, Government of the Punjab appeared along with draft of "Kohsar Development Authority Act, 2021" (the "Draft Act") and stated that after detailed meetings with Law & Parliamentary Affairs Department, Government of the Punjab, Lahore almost all identified discrepancies were rectified and now the same is submitted to the Standing Committee of the Cabinet on Legislative Business for consideration and approval. He drawn attention to the Preamble of the Draft Act, which is as follows: "Whereas it is in the public interest to provide for high quality, aesthetically pleasing and ecofriendly urban and tourism infrastructure in the Kohsar area of Rawalpindi District.
And whereas the development and maintenance of such an infrastructure requires the establishment of a new authority."
He further submitted that to control all affairs regarding preservation, conservation, sustainable development and protection of the Kohsar Eco-System, an authority i.e. Kohsar Development Authority (the "KDA") will be established under Chapter-II, Section 4 of the Draft Act with its head office at Murree as per Section 4(3) ibid. Also submitted that as per Section 4(4)(i) of the Draft Act, the Chief Minister will be the Chairman of KDA along with other members. He further stated that now the Draft Act has been submitted to the Standing Committee of the Cabinet on Legislative Business for consideration and approval, therefore, this Petition be disposed of.
(II) CONCEPT OF CURATE'S EGG
3. Before disposing of these cases, I recall that in 1895 the London satirical magazine Punch published a famous cartoon in which a bishop says to a curate at breakfast, 'I'm afraid you've got a bad egg, Mr Jones'. The curate replies, 'Oh no, my lord, I assure you that parts of it are excellent'.
The good part is that this Court confirms the prayer of Petitioner to promulgate appropriate legislation for protection of trees and mountain Murree hills from being destroyed and to regulate all those affairs by an authority, KDA. And the bad part in one aspect, at least for Petitioner is that his counsel's proposed legislation i.e. "The Murree, Kahuta and Kotli Sattian Eco-System (Preservation, Conservation and Protection) Act, 2022") (the "Petitioner's Proposed Draft Act") cannot be approved because the Draft Act has already been sent to the Standing Committee of the Cabinet on Legislative Business for consideration and approval. This one aspect aside, it is a thoroughly good egg because the Draft Act covers all the issues raised in this Petition. The concept of "curate's egg" has been developed by the English Courts to show some of the good and the bad parts in the judgment.
(III) CONTEXT
4. Brief background of this Petition as submitted by Sardar Taimoor Aslam Khan, Advocate is that this is a public interest litigation and in light of the law laid down by this Court in the cases of Subay Khan versus Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253), Sheikh Asim Farooq versus Federation of Pakistan and others (PLD 2019 Lahore 664), Muhammad Tahir Jamal, Advocate versus Government of the Punjab and others (PLD 2020 Lahore 407) and Muhammad Ahmad Pansota and others versus Federation of Pakistan and others (PLD 2020 Lahore 229) the Petitioner, being citizen of this country, has knocked the door of this Court to expand the protection of fundamental rights about welfare of the public at large. He has specifically referred to the principles settled by this Court in Sheikh Asim Farooq Case (supra) in which it has been held that the public interest litigation is a powerful tool for individuals and groups for combating illegalities, injustice and social ills, which promoted and protected the larger public interest in case of violation of any fundamental right. He submitted that the areas mentioned in this petition, i.e. Kahuta, Murree and Kotli Sattian, have been declared as National Park Area but these areas are being destroyed through some anti-environmentalism activities, pictorial evidence of which has been annexed with this petition. He maintained that in similar situations, this Court has already passed various judgments in which directions were issued to the concerned authorities to make proper legislation relating to the issues involved in those cases. He asserted that pursuant to the directions of this Court, laws were made by the legislature and subsequently, also implemented by the executive. He further submitted that in this case, the National Climate Change Policy, 2012 covers most part of the prayer clause and the Respondents are bound to adhere to the policy and the investment incentives given therein under the Doctrine of Sovereignty developed by this Court in the judgment reported as Mst. Fatima Faryad etc. versus Government of Punjab etc. (2020 CLC 836) wherein it has been held that under the Doctrine of Sovereignty every governmental authority or department is bound to adhere to the commitments, made by them, in letter & spirit.
5. Barrister Owais Aziz, Advocate submitted that important question of protecting the Murree hills is involved in the matter and the Superior Courts of the country have passed various judgments on protection of mountains. He has drawn attention of the Court towards Article on "Bhurban Declaration and the Environmental Laws of Pakistan" (the "Article") written by me [(Jawad Hassan) when I was the Additional Advocate-General Punjab at Supreme Court, Islamabad], which was published in 2012 CLD 79 Journal [PLD Publishers]. The Article mentions the excellent efforts of the Hon'ble Supreme Court of Pakistan in convening the South Asian Conference on Environmental Justice, in Bhurban, Pakistan on 24th and 25th of March, 2012 [ten (10) years ago], brought together Chief Justices and their designees from the highest Courts of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka, Malaysia, and Indonesia, which was supported by the Asian Development Bank (ADB), United Nation's Environment Program (UNEP) and the International Union for Conservation of Nature (IUCN). At the end of the Conference, the South East Asian Judiciaries adopted the Vision Statement by declaring the Bhurban Declaration (the "BD") after developing an Action Plan for Environmental Justice, Governance, the Rule of Law and Sustainable Development in SAARC countries. The outcome of the Conference, which is the "BD", is to strengthen specialized environmental tribunals and establish green benches, where they exist and consider establishing them where they do not exist. Therefore, the Hon'ble Chief Justices established the green benches in the Supreme Court and the High Courts under the respective Supreme Court and High Court Rules to hear the environmental cases similar to the other South Asian countries.
6. Barrister Raja Hamza Anwar Abbasi, Advocate contended that the Article further explains the role of the Hon'ble Supreme Court of Pakistan in protecting the mountains of Islamabad Margalla hills by taking suo motu action in "New Murree Project" (Suo Motu Case No.10 of 2005, reported as 2010 SCMR 361). The august Supreme Court of Pakistan also took suo motu action in "Islamabad Chalets and Pir Sohawa Valley Villas" (Suo Motu Case No.13 of 2005, reported as 2005-2006, SC of Pakistan, Golden Jubilee Edition, 106) restraining the construction of chalets and villas situated at a distance of two kilometres of the Margalla Hills, where the housing scheme was launched. The housing scheme in question would have had a direct bearing on the Eco-System of the Margalla Hills, and the overall environment of Islamabad, because of increased traffic congestion, noise pollution, diminishing greenery, annihilation of wildlife, unhygienic due to sewerage, and frequent landslides because of loosening of soil and removal of rocks. He states that no hectic efforts are being made by the government for protection of the Mountain Eco-System and only a notification was issued in the year 2009, which does not serve the purpose.
(IV) RESPONDENTS' STANCE
7. All the Respondents have filed their report and parawise comments and unanimously stated that this Petition be disposed of because the entire issues raised in both the writ Petitions will be covered by the Draft Act.
8. Heard and record perused.
(V) DISPOSAL BY THIS COURT
9. This Petition was Admitted for regular hearing on 24.01.2022 and Notices were issued to the Respondents to file report and parawise comments to explain what steps have been taken by them to stop hill razing and trees cutting in the areas mentioned above and whether any efforts are being made to introduce a mountain specific legislation.
10. Since the purpose of filing this petition was only to protect the Eco-System of Murree, which is a place of public resort and entertainment for the citizens of Pakistan, therefore, this Court directed the concerned authorities to make a specific legislation in this regard. Because Article 26 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") grants fundamental right to every citizen of this country to have access to all places of public entertainment or resort, as enunciated by the Hon'ble Supreme Court of Pakistan in Moulvi Iqbal Haider versus Capital Development Authority (2006 PLD SC 394), which view was subsequently followed by this Court in the case of Muhammad Tahir Jamal, Advocate versus Government of the Punjab and others (PLD 2020 Lahore 407). In Paragraph 27 of the said judgment, this Court has observed that:- ".....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...."
The mandate of Article 26 of the Constitution has recently been strengthened by this Court in another case reported as Muhammad Umais versus Cantonment Board, Rawalpindi and others (PLD 2022 Lahore 148) in line with the provisions contained in Articles 9, 14, 15 of the Constitution and it has been held that there must not be any discrimination to access the places of public entertainment or resort. Moreover, the powers and functions of the Federal as well as the Provincial Government have been discussed in detail by this Court in the case of Muhammad Yousaf versus Secretary Finance etc. (PLD 2021 Lahore 156) = [2021 PLC (C.S.) 195]. Relevant Paragraphs No. 9 and 10 of the said judgment are given as under:- "9. Article 7 of the Constitution defines that 'the State' means the Federal Government, [Majlis-e- Shoora (Parliament)], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess. Primarily the governments in Pakistan are divided into "Federal Government" and "Provincial Government". The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Articles 129 read with Article 137, and under Article 139 conduct of business is made alongwith Punjab Government Rules of Business, 2011. The law made by either Federal Government or Provincial Government originates through legislative procedure provided under Article 70 of the Constitution.
After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakistan and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls I.C.A.No.530 of 2014 5 within the ambit and purview of their executive authority and legislative competence.
10. The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the powers within the Federal Government in order to empower the Provinces to legislate laws and execute policies in accordance with the requirements and needs of their respective areas and to secure effective and efficient delivery of services for the citizens residing therein in accordance with their particular ground realities."
In Muhammad Yousaf Case (supra), this Court, after discussing the role of the Federal and Provincial Government in light of various/relevant Constitutional provisions, has concluded that "after omission of Concurrent List from the Fourth Schedule of the Constitution post Eighteenth Amendment, now Provinces have exclusive domain and legislative competence to legislate and regulate upon all those matters, which were earlier part of that list. It is therefore within the exclusive domain of Provincial Government to adopt a policy/Notification of the Federal Government, which falls within its legislative competence and make its applicability within the Province from that date, which it finds appropriate and mere adopting such Notification of the Federal Government does not make the same ipso facto applicable in entirety unless directed so by the Provincial Government as it is within its competence to limit or extend such applicability and it is not obligated upon it to adopt a policy on the same date as made applicable by the Federal Government." In the present case, the relevant Respondent is the Ministry of Climate Change (the "Ministry"), which under Schedule-I [Rule 3(1)] of the Federal Rules of Business, 1973 (the "Federal Rules") has the Climate Change Division (the "Division") with the mandate to make National policy, plans strategies and programmes with regard to disaster management, including environmental protection, preservation, pollution, ecology, forestry, wildlife, biodiversity, climate change and desertification. As per Schedule-III to the Federal Rules, Pakistan Environmental Protection Agency (the "Agency") is the attached department of the Ministry, hence, both the Division and the Agency are empowered under the Federal Rules to make a specific legislation for protection of the Murree hills. Similarly, in the First Schedule (Rule 2 and 3) [List of Departments] to the Punjab Government Rules of Business, 2011 (the "Provincial Rules"), there exists the Environmental Protection Department (the "EPD") and the Disaster Management Department (the "DND"), which is controlled by the Director General, Provincial Disaster Management Authority (the "Authority") while Sr. No.39A, Column-II of this Schedule also mentions the Tourism Department (the "Department"), which is headed by (i) Director General, Archaeology, Punjab and (ii) Deputy Collector, Department of Tourism Services as per Column-III. Therefore, the DMD, the Authority and the Department may also make law/legislation and policy under the Provincial Rules.
11. It is to be noted that on intervention/directions of this Court in different cases, in the last four years, various laws (Acts, Ordinances and Policies) have been made by the legislator, after forming committees of experts from lawyers and other relevant fields, and subsequently, the said laws were also implemented by the executive. Details of which is mentioned in paragraph No.28 of the judgment reported as "Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others" (PLD 2022 Lahore 346) in the following manner: Sr.No.Law/Legislation Cases 1 The Punjab Domestic Workers Act, 2019Subay Khan v. Sohail Shahzad Secretary Labour Govt of Punjab, etc. (PLD 2019 Lahore 253)
2Punjab Food Authority (Disposal of Excess Food), Regulation, 2019Barrister Muhammad Ahmed Pansota v.
Federation of Pakistan, etc. (PLD 2020 Lahore 229)
3 Commercial Courts Ordinance, 2021M.C.R. (Pvt) Ltd, franchisee of Pizza Hut v. Multan Development Authority, etc. (2021 CLD 639)
4The Punjab High Security Zones (Establishment) Act, 2020Mian Ali Asghar v. Government of the Punjab, etc. (CLC 2020 Lahore 157 = 2021 MLD 370)
5Draft Bill of "the Punjab Empowerment of Persons with Disabilities Act, 2021"In W.P. No.30364 of 2021, titled as "Mst. Sana Khursheed v. Government of the Punjab, etc."
6 Urban Forest PolicySheikh Asim Farooq v. Federation of Pakistan, etc. (PLD 2019 Lahore 664)
7The Punjab Empowerment of Persons with Different Abilities Act, 2021Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346)
12. In view of above, this Court on 31.01.2022, directed the Commissioner, Rawalpindi to constitute a Committee, under his chairmanship, on immediate basis, by including all the members, experts from the relevant field and representatives of the Secretaries of the relevant Departments mentioned above. On 10.02.2022, Waqas Sikandari, Assistant Commissioner, Murree while placing on record Notifications dated 01.02.2022 and 09.02.2022, submitted that in compliance of order dated 31.01.2022, the First Meeting was convened under the chairmanship of Commissioner, Rawalpindi Division, Mr. Noor-ul-Amin Mengal and co-chaired by Ali Touqeer Sheikh (Independent expert on Climate Change) and Hammad Naqi Khan, D.G. WWF, on 08.02.2022 and after due consultation with all the experts a Committee with the name and style "Murree Kohsar Bachao Committee" (the "Committee") has been constituted through Notification dated 09.02.2022 for the purpose i.e. Mountain Conservation, Eco-Tourism and Sustainable Development. He adds that it has also been mentioned in the aforesaid Notification that a Sub-Committee (Legal) (the "Sub- Committee") will also be constituted through Notification under the Chairmanship of Additional Commissioner (Coordination), Rawalpindi Division, to draft the law on preservation, conservation and protection of the Murree hills.
13. On 28.02.2022, Mr. Mujeeb-ur-Rehman Kiayani, Additional Advocate-General submitted the report with documents, wherein it has been reported that the 2nd meeting of the Committee was held on 21.02.2022 duly chaired by Malik Amin Aslam, the then Special Assistant to the Prime Minster on Climate Change. In the meeting, Sardar Taimoor Aslam Khan Advocate submitted a proposed legislation/law.
14. M/s. Owais Aziz and Uzair Bin Shafie, Advocates organized a workshop to seek comments/input/reviews on the Draft Act inviting stakeholders/people of Murree specifically the former Judges of this Court, who belong to Murree, the Senior Advocates (including Raja Muhammad Shafqat Khan Abbasi, ASC and Raja Habib-ur-Rehman Advocate etc.), former Members National Assembly/ Provincial Assembly.
15. The efforts made by Malik Amin Aslam, the then Special Assistant to Prime Minister on Climate Change, Mr. Akhtar Javaid Secretary, Law and Parliamentary Affairs Department, Government of the Punjab, Mr. Noor-ul-Amin Mengal, Commissioner Rawalpindi Division, Rawalpindi, Mr. Hammad Naqi Khan, D.G. WWF, Sardar Taimoor Aslam Khan, Advocate, Barrister Owais Aziz, Advocate, Mr. Uzair Bin Shafie, Advocate, Miss. Qurat-ul-Ain Kaleem & Miss. Laman Ahmed Advocates, Muhammad Asif Sahibzada, Director (Enr. Policy), Ministry of Climate Change, Islamabad, Mr. Ali Tauqeer Sheikh, Independent Expert; and all other relevant State functionaries as well as the learned Counsel are commendable and highly appreciated.
16. This Court succeeded to conclude the case in shape of Draft Act, therefore, under the doctrine of continuing mandamus detailed by this court in case Sheikh Asim Farooq V. Federation of Pakistan and others" (PLD 2019 Lahore 664), all the State Functionaries are directed to strictly follow the awaited law/legislation after its approval by the Standing Committee of the Cabinet on Legislative Business.
17. Disposed of accordingly. The detailed judgment/reasons will follow later.