LAHORE: A division bench of the Lahore High Court (LHC) on Friday permanently barred the Punjab government from carrying out the construction work for the Orange Line Metro Train project within a distance of 200 feet of 10 historical and protected buildings/ premises in Lahore.
The bench comprising Justice Abid Aziz Sheikh and Justice Shahid Karim also set aside the original and revised no-objection certificates (NOCs) issued to carry out construction near the city’s historical buildings and premises, ruling that such NOCs were issued without lawful authority and were of no legal effect.
The court announced its verdict on Friday and issued a written judgment on petitions questioning the legality of the country’s first rapid mass transit system, particularly construction within the prohibitory zone of immovable protected antiquity/ special premises and legality of environmental approvals for project granted by the Environmental Provincial Agency. The court had reserved its verdict on July 13.
The buildings which are being affected by the project include, Shalimar Gardens, Gulabi Bagh Gateway, Buddhu’s Tomb, Chauburji and Zebunnisa Tomb (protected immoveable antiquities under the Act of 1975), Lakshmi Building, General Post Office (GPO), Aiwan-e-Auqaf (Shah Charagh) building, Supreme Court Registry Building, and Mauj Darya Darbar and Masjid. These historical buildings have been declared as Special Premises under the Ordinance of 1985.
The order said, “The original NOCs dated 16-11-2015, 30-11-2015 and all revised NOCs dated 6-5-2016 and all addendum NOCs dated 20-5-2016 under the Act of 1975 and Ordinance of 1985 are set aside being issued without lawful authority and of no legal effect.
“Consequently, respondents shall not carry out any construction within distance of 200 feet of protected immovable antiquity and special premises mentioned in para 24 of this judgment.”
The court also directed theArchaeology director general to engage independent consultants consisting of panel of experts of international status preferably in consultation with UNESCO, to carry out fresh independent study/ report regarding protected immovable antiquities and special premises.
The court, however, dismissed the petition to the extent of Environmental Approvals dated 9-7-2015 and 9-5-2016 being not maintainable as the same issue pending before another LHC bench. The court declared that environmental approvals that the petitioners had said should be cancelled were valid, thereby allowing construction more than 200 feet from protected monuments to proceed.
Nevertheless, the court directed that recommendations of the advisory committee on environment in its report would be implemented in letter and spirit by the authorities concerned. The court further ordered that the request for permission for construction with 200 feet of historical buildings under Section 22 of the Act of 1975 and under Section 11 of the Ordinance of 1985 will be considered afresh by the competent authorities in the light of study/ report by independent experts of international status and frame rules under Section 37 of the Act of 1975 and Section 16 of Ordinance of 1985.
The court observed in its judgment that conflict between protection of heritage and future development is not a new phenomena. The heritage and cultural sites against development project and construction are protected all over the world.
“This court is not insensitive to the fact that the government has to pursue its public development projects. But in this hot pursuit, damage to protected antiquities and special premises is neither permissible nor desirable.
“The concept that development and ecology cannot go hand in hand together is a bygone concept. The development projects are essential for public welfare and economy of country but at the same time, environment, culture and heritage have to be protected. This goal can be achieved by sustainable development.”
The advisory committee was constituted under Section 3 of the Act of 1975 and its meeting minutes show that the committee merely relied upon NESPAK and LDA reports to reach a conclusion that there will be no negative impact of the project on the heritage sites.
The court ruled, “The director general and the committee, being public functionaries, were burdened with heavy fiduciary duty to apply their mind independently and take advice from a panel of experts who were independent and not under control and owned by the government in any manner.”
The court observed, “Indo-Pak generally and City of Lahore in particular is hub of ancient emoluments, cultural heritage, history and archaeological sites. Cultural sculptural monolithic and artistic interests exist for centuries in Lahore.
“These national monuments and heritage sites not only give pride to the people of Lahore but also give them insight into past glory of their structural, cultural, sculptural artistic and archaeological skills.
“These heritage sites are also source of vision and wisdom to their ancestors. This rich history calls for legal duty and moral responsibility of the state and public functionaries that these monuments and heritage sites be preserved and perpetuated so that succeeding generations remember their ancestors traditions, culture, civilisation and to learn their art, architecture, aesthetic tastes imbibed by authors of the past to continue same traditions in future.”
The court rejected government’s arguments that DG Archaeology is authorised under Section 22 of Protected Immoveable Antiquities Act of 1975 to grant permission for construction near historical buildings.
“Discretion vested with the Director General Archaeology to give permission under Section 22 is not unfettered, unbridled and not to be exercised to frustrate the purpose of the Act of preserving and protecting heritage site.
“Such permission cannot be granted as ministerial job in routine at the whim and wish of the Director General but such permission is only in exceptional circumstances subject to necessary inspections, expert opinions and unequivocal conclusion by Director General that such development plan, scheme or new construction on or within 200 feet of protected antiquity will not in any manner destroy, break, damage, alter, injure, deface, mutilate or impair the protected immovable antiquity.”
In this case, the bench was also assisted by senior lawyers as amicus curies including Supreme Court Bar Association President Syed Ali Zafar and Advocate Waqas Mir. Ali Zafar was of the opinion that development must always be sustainable and whenever the government undertook an urban planning project it must ensure that the project did not harm any protected site.
He said if a development was contrary to the law and fundamental rights, the courts had an obligation to stop such project on the principle that a vibrant existing urban fabric was connected to the right of life.
He had suggested the government to appoint a panel of international experts having qualifications and experience to determine the damage and effect of the project on the monuments of Lahore and then make a final decision based on the report of such experts.
Advocate General Punjab Shakilur Rehman Khan represented the provincial government. Attorney General of Pakistan Ashtar Ausaf had appeared to represent the federal government.
“We are very much concerned about heritage in the city. The court has accepted our arguments and ordered construction to stop,” said Azhar Siddique, a lawyer and petitioner in the case. Meanwhile, the Punjab government has decided to approach the Supreme Court against the LHC verdict.