Mr. Justice Shahid Karim and Mr. Justice Abid Aziz Sheikh in their judgment has decided the issue regarding interim relief restraining construction project involving public works in Writ Petition No. 39291 of 2015.
1. This application for grant of interim relief has been filed by the petitioners in writ petition No.39291/2015, which has been filed by way of public interest litigation.
2. Brief facts are that in order to cater for traffic congestion and future transport demand in city of Lahore, a metro train project was proposed by Government of Punjab. To execute said project, the Punjab Mass Transat Authority (PMA) was established under Punjab Mass Transat Authority Act, 2015 which entered into contract dated 20.4.2015 with Chinese contractor M/S C.R-NORINCO (herein after referred to contractor). Lahore Development Authority (LDA) was assigned civil work part of this project being a nominee of PMA.
3. The petitioners have filed this constitutional petition challenging the legality of aforesaid major transport project commonly known as Lahore Orange Line Metro Train Project (herein after referred to project) inter-alia on the ground that approval, plans, allocation of funds and construction of said project are violative of various laws including Antiquity Act, 1975 (Act of 1975), the Punjab Special Premises (Preservation) Ordinance, 1985 (Ordinance of 1985), Punjab Heritage Foundation Act, 2005 (Act of 2005), various international conventions (being construction carried out near to immoveable antiquity properties and special premises). It is further averred in petition that said project also violate various Articles of Constitution of Islamic Republic of Pakistan, 1973 (Constitution) including Article 9, 10-A,14,23,24,25,28,32,38 and 140-A of the Constitution. It is also inter alia alleged that entire process of tendering, awarding of contract and preparation of feasibility reports are sham and in violation of PPRA laws and also does not meet transparency criteria and level playing field for interested bidders. The writ petition is accompanied with an application for grant of interim relief with following prayer:
“Instant application may very kindly be allowed all construction works near the monuments/heritage site as detailed in writ petition within area of 200 feet as directed in section 23 of the Antiquity Act, 1975 may very kindly be directed to stopped/held in abeyance till the decision of the writ petition.
Any other appropriate relief which this honourable Court deems appropriate may kindly be granted.”
4. Khawaja Ahmed Tariq Rahim and Mr. Mohammad Azhar Siddique, advocates/Learned counsel for the applicant argued that the project will severely damage and harm various properties including 26 heritage sites of Lahore City (detail of which are given in para No.23 of main writ petition). Learned counsel submits that the said properties being immoveable antiquities under section 2(g) of the Act of 1975 and special premises under section 2(a) of Ordinance of 1985, the said properties are required to be preserved and protected and no new construction can be allowed within 200 feet distance of these properties as prescribed under section 22 of Act of 1975 and section 11 of Ordinance of 1985. Submits that these heritage sites and monuments are also to be protected by the state under various international conventions, to which Pakistan is signatory. Submits that if construction allowed to be continued within 200 feet distance, these heritage sites will not only be destroyed, damaged, defaced but will also be mutilated. Submits that Director General Archaeology (Director General) was bound under Act of 1975 and Ordinance of 1985 to protect these sites and NOC for construction within 200 feet distance could only be given to advance and achieve the purpose of these laws and not for to frustrate the object of these laws and intention of legislation based on extraneous considerations.
Submits that NOC issued by Director General dated 16.11.2015 under section 22 of the Act of 1975 and NOC dated 30.11.2015 issued by the Committee under section 11 of the Ordinance of 1985 giving permission to carry on construction within prohibited limits of 200 feet of protected antiquities and special premises are not only arbitrary, malafide, patently illegal, without lawful authority but same are also without application of independent mind. Submits that before granting said NOCs, the purpose of the Act of 1975 and Ordinance of 1985 to preserve and protect these heritage sites and monuments was grossly compromised. Submits that NOCs are based on extraneous and irrelevant considerations and were also given in blanket form without assessing individually that how much harm may be caused to each of these heritage sites by new construction within prohibited limit of 200 feets prescribed under the law. Submits that even provisions of Act of 2005 and various international conventions to which Pakistan is signatory, were not kept in mind by Authorities before granting NOCs and putting these precious heritage sites under serious threat and danger of being destroyed, damaged and mutilated.
Further submits that no Archeological experts, historians or even the stakeholders including the petitioners (who are repeatedly making hue and cry for protection of heritage properties and monuments) were consulted or heard before granting NOCs. Contends that NOCs were granted due to undue influence of higher authorities as the Committee which granted NOC was headed by the Chief Secretary, Government of the Punjab and similarly Director General being an employee of Government was also pressurized to issue NOC within two days time without consulting any independent experts, therefore, entire process was just an eye wash. Further submits that as antiquity properties and special premises are admittedly protected under various laws, therefore, petitioners makes out a good prima facie case against illegal construction within prohibited limits of 200 feets of heritage sites. He contends that in case, interim relief is not granted and damage is caused to any of these heritage sites, it will not only cause irreparable but loss which can never be forgotten and compensated in future. Further submits that Government can carry out development in accordance with law but at the same time, State being custodian of national heritage and historical monuments, it is also the duty of State to protect these sites while under taking these developments. Learned counsel therefore submits that balance of convenience also lies in favour of the petitioners for grant of interim relief.
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