Shahid Jamil Khan, J. This public interest petition, by a regular visitor of Bagh-e-Jinnah, is to challenge an order by Parks and Horticulture Authority ("PHA") allowing a Skateboard Park in Bagh-e-Jinnah.
2. After notices, Parks and Horticulture Act, 2012 ("PHA Act of 2012") was examined and it was found that Bagh-e-Jinnah (Lawrence Garden) is a Heritage Park under its Section 2(n) read with Section
5. Learned counsel for PHA was confronted with the preamble of the PHA Act of 2012, which discloses that purpose of PHA is "promotion of green areas and related activities". Even jurisdiction of regulating Billboards is to ensure "open and unrestricted view of Punjab".
Section 5 of the PHA Act of 2012 envisages that the parks having historical and cultural value are to be declared as Heritage Park through a notification, to preserve, conserve and develop 'flora and fauna' for the present and future generations. Section 5 is also reproduced: "5. Heritage Park.--(1) The Government may, by notification, declare an area as Heritage Park to conserve the heritage or culture and to preserve, conserve and develop and flora and fauna for the present and future generations.
(2) The heritage Park shall be maintained and developed by the Authority in the prescribed manner."
[emphasis supplied]
3. The Govt. of Punjab, in response to notice, apprised that Bagh-e-Jinnah is already declared as "Special Premises", through Notification dated 01.03.1985, issued under Section 2(a) of the Punjab Special Premises (Preservation) Ordinance, 1985 ("the Ordinance"). However, only buildings in Bagh-e-Jinnah, like Montgomery Hall (Quaid-e-Azam Library) and Cricket Pavilion are declared as Special Premises. It was confronted that the land appurtenant thereto and the outer walls thereof are to be included in the Special Premises. The Section 2(a) is reproduced: "2. Definition.-- In this Ordinance unless the subject or context otherwise requires--
(a) "Special Premises" means any premises of historical, cultural or architectural value declared as such by the Government by notification and includes the land externally appurtenant thereto and the outer walls thereof;"
[emphasis supplied] The DG Archeology was confronted with Sections 5 and 6 of the Ordinance of 1985, which protects alteration or renovation, demolition or re-erection of Special Premises and imposes a restriction on sanction of such plan. Sections 5 and 6 are respectively reproduced:- "5. Prohibition of destruction etc. of Special Premises.- No alteration in or renovation, demolition or re-erection of such portion of a Special Premises as is visible from outside, or any part of such portion, shall be effected without the prior permission in writing of the Government or a Committee.
6. Restriction on sanctioning of plan.- No authority or local body shall approve any plan in relation to a Special Premises without the prior permission of the Government or a Committee and any such plan sanctioned before the coming into force of this Ordinance shall be of no effect unless approved by the Government or a Committee."
[emphasis supplied] It was undertaken on behalf of DG Archeology that a corrigendum shall be notified to include the appurtenant land and trees with the outer wall of the Bagh-e-Jinnah.
4. Through Notification dated 14.12.2023 Bagh-e-Jinnah is now declared as Special Premises under the Ordinance of 1985. The Notification is reproduced:- "Dated Lahore, the 14th December, 2023 Notification No.SO(Admn)5-22/2023(Misc). In pursuance of "Minutes of the 33rd meeting of the caretaker Provincial Cabinet dated 04.12.2023" the agenda item No.21 the Bagh-e-Jinnah has been declared as Special Premises under Punjab Special Premises (Preservation) Ordinance, 1985, upon the directions of Honorable Lahore High Court to Directorate General of Archaeology, Punjab."
It is undertaken that ongoing projects and alteration shall be placed before the Committee, which is constituted under Section 3 of the Ordinance of 1985. The concerned Committee and the Government/Agency are hereby directed to preserve special premises (Bagh-e-Jinnah) strictly in accordance with the intent of the Ordinance of 1985 and pending development be placed before the Committee, which shall ensure that original shape is not compromised.
The Committee shall ensure representation from public and of present petitioner while finally deciding the fate of pending work. Petitioner or any other person if feels that the law is being violated or original shape of Bagh-e-Jinnah is being changed, may approach this Court again.
5. Though the petition stands fructified, nevertheless it is important to interpret the provisos of Section 5 of the PHA Act of 2012 alongwith Sections 5 and 6 of the Ordinance of 1985. Under these provisions, it is statutory duty of the Government and any Statutory Authority to preserve and conserve the premises (building and land appurtenant thereto), having historical and cultural value.
Rationale behind these enactments to preserve sites and premises having cultural and historical value because the history lives in architecture and historical sites, besides representing culture and identity. The heritage inspires and unites generations. It helps to educate new generations about history by witnessing heritage buildings and gives awareness of the culture and its value.
6. Section 5 of the PHA Act of 2012, independent of the Ordinance of 1985, imposes responsibility of declaring the Parks and Gardens having cultural and historical value as Heritage Park, even if it is not declared as Special Premises. But for the Parks and Gardens already declared Special Premises, power and administrative control is restricted and eclipsed by the Ordinance of 1985. PHA can only preserve and conserve "flora and fauna", but cannot develop to change its original shape.
Though Notification dated 14.12.2023 is issued to include appurtenant land and walls of Bagh-e- Jinnah, still it is necessary to hold for other Special Premises also that declaring any building as Special Premises shall necessarily include the appurtenant land walls, being part of it historically.
Its originality shall not be compromised on the pretext of development, or for any commercial purpose.
Petition is allowed.