2010 PLP 361 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

The instant case of environmental hazard on account of proposed New Murree Project was taken up in exercise of suo motu powers on the basis of a note initiated by one of us, (Tassaduq Hussain Jillani, J.) in the following terms:-- "The Report of the International Union of Conservation of Natural Resources (IUCN) submitted to the Government and published on the front page in Daily "The News" dated 29th March, 2005 makes startling and shocking disclosures about the apprehended adverse environmental impact of the proposed New Murree Project. The findings, if true, warrant serious attention of all those concerned with the conservation of the Forests, Supply of Clean Water to the Twin Cities of Rawalpindi and Islamabad and issues of siltation in Simly and Mangla Dams. The issues raised are likely to affect public-at-large with particular reference to the Fundamental Right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan, i.e. the Right to life... The Patriata Forest according to the afore-referred report has a highly fragile eco-system and was declared as reserved forest as far back as 1886 is going to receive the worst blow i.e. at least 50% of the existing standing stock of 1.4 million conifer trees are likely to be cut. Imploring protection of this valuable forest reserve the report maintains that "the development of new township could result in the catastrophes like loss of protective forest cover resulting in more rapid runoff following storm event; higher peak stream flows; increased soil erosion; reduced groundwater infiltration; stream channel instability; and increased sedimentation "Such adverse changes in watershed hydrologic conditions result in degradation of water quality for the population particularly residing in Islamabad, the report said, demanding, "to avoid such compound disasters and to ensure supply of safe water for twin cities, the valuable Patriata forests have to be preserved." "To develop new city by cutting sharp slope bedrocks will further aggravate the situation for new city and will cause heavy siltation in the Simly and Mangla dams". This move, it is said, would cause serious damage to the ongoing Mangla Dam Raising project, which was approved at a total cost of Rs.62.552 billion including foreign exchange component of Rs.9.6 billion. The main objective of the project was to raise Mangla Dam by 30 ft to regain the lost storage capacity due to silting and heavy sedimentation." While the New Murree Project may have been motivated to improve, expand and create recreational facilities at the hill resort in question with regard to which none would have any cavil. However, if such a scheme raises serious environmental questions requiring deliberations by Authorities and Experts concerned and if such a deliberative exercise has not been -carried out, this Court is under a Constitutional mandate S in terms of Article 184(3) read with Article 9 of the Constitution of Islamic Republic of Pakistan to issue appropriate directions to forestall the likely adverse effects on the quality of life in the areas to which reference has been made in the report. But before proceeding any further it would be fair to issue notice and hear learned Advocate General Punjab inter alia on following preliminary queries: (i) Whether any environmental impacts survey was ever carried out before approving the New Murree Scheme? (ii) Whether the Government of Punjab has considered the report of International Union of Conservation of Natural Resources, if so to what effect? Since the issues likely to be raised would require interpretation of Environmental Laws, it would be appropriate to call upon Dr. Pervaiz Hassan to appear and assist the Court as amicus curiae. Notice shall also issue to Director General, Pakistan Environmental Protection Agency, Islamabad. Let this matter be placed before the Honourable Chief Justice of Pakistan for consideration and constitution of an appropriate Bench. Subject to the order to be passed by him the case shall be fixed before the Bench so constituted for 11-4-2005. Till then no tree shall be felled and no hill shall be tinkered within Patriata pursuant to the project in question."

2. On 14-9-2005, a notice was issued to the Chief Secretary, Government of the Punjab asking him to submit report. On consideration of the report so received, the following order:-- "I have gone through the report submitted by Chief Secretary, Government of Punjab in pursuance of order dated 14th September, 2005. A perusal whereof suggests that 1% of total tree population i.e. 4000 trees will be affected by the development of the resort, whereas apprehensions of the Environment Experts are that the Patriata forest boosts the highest average of rainfall annually in the country-around 1,770 millimeters and it is situated in the catchment area of Simly and Rawal dams, which provide almost half of the drinking water to general public of Rawalpindi and Islamabad, therefore, due to development of New Murree Project collection of water in both the dams will be disturbed and ultimately will lead to their eventual silting etc. A perusal of these facts constitutes questions of public importance which touches their fundamental rights conferred by Chapter 1, Part II upon them including the right of life as enshrined in Article 9 of the Constitution of the Islamic Republic of Pakistan, therefore, Articles published in newspapers be registered as petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. Let petition be fixed in Court for 29th September, 2005. Notice to Attorney General for Pakistan, Advocate General Punjab, Chairman CDA, Islamabad, Administrator Mureee Development Authority, Chief Secretary, Government of Punjab, the Secretary Ministry of Environment, be issued. In view of the importance of the matter, it may be placed before a larger Bench of five Honourable Judges. (Sd.) (Justice Iftikhar Muhammad Chaudhry) Chief Justice of Pakistan. In pursuance of the above order, the matter was taken up on 29-9-2005 when the following order was passed:-- "Learned Attorney General stated that in terms of section. 2(xxiv) of the Pakistan Environmental Protection Act, 1997, hereinafter referred to as `the Act, 1997' initial environmental examination is being carried out and its report .will be submitted to Environmental Authority under section 12 of the Act, 1997.. Copy of the same shall also be placed on the file of this Court. Thereafter environmental impact assessment of the Project in accordance with section 2(xi) read with section 12 of the Act, 1997 will be carried out and the report will be placed before the Environmental Committee.

2. Mr. Asif Shuja, Director General of the environmental Protection Agency, who is present in Court, stated that Agency will review the initial environmental examination report and it will also review the environmental impact assessment in accordance with law and the environmental impact assessment will be carried out after a public notice and with public participation. To substantiate his contention, he has placed following statement in writing:-- (i) The EPA has been informed that an "initial environmental examination" of the Patriata Project ("Project") is being carried out in terms of section 2(xxiv) of the Pakistan Environmental Protection Act, 1997 (PEPA). After this examination is complete and a report is received the EPA will examine it in terms of section 12 of PEPA. (ii) EPA has been informed that "environmental impact assessment" as defined in section 2(xi) of PEPA, has also been commissioned. As soon as report in this regard is received by EPA it will be reviewed in terms of section 12 of PEPA. The review will be carried out with "public participation" ,as required under PEPA. (iii) That this Honourable Court will be kept informed fully and on a continuous basis of the proceedings of EPA in this regard as well as about all actions taken and orders passed.

3. Mr. Azmat Ali Ranjha, Director General of the New Murree Development Authority is also present in Court and stated that no tree shall be felled and no hill shall be tinkered without the provisions of law and the Act, 1997. In support of his statement he had also placed on record a statement which is reproduced herein below:-- (1) That no physical action has been taken till date on the site of Patriata Project and in particular no tree has been felled or hill altered. (2) It may, however, be clarified that some chalets were built in the Project area during the first term of office of the then Prime Minister of Pakistan Mian Muhammad Nawaz Sharif by Mr. Saifur Rehman. The Government of Punjab after fulfilling the legal requirements resumed this land and demolished the chalets. (3) That an "initial environmental examination" is being carried out in terms of section 2(xxiv) of the Pakistan Environmental Protection Act, 1997 (PEPA). As soon as this examination is complete a report will be submitted in terms of section 12 of the Act, 1997 to the Pakistan Environmental Protection Agency ("EPA"). (4) That an "environmental impact assessment" as defined in section 2(xi) of PEPA, has also been commissioned. As soon as it is complete and a report is ready it will be submitted to EPA in terms of section 12 of PEPA, (5) That no work will be commenced on the Project until all the requirements under PEPA are complied with. (6) It is further stated that work is about to commence for a pipeline to bring water from the river Jhelum to the residents of older Murree with future provision for the new development i.e. Patriata Project, which Project as stated above will be commended only in accordance with PEPA. (7) The Authority has also prepared a detailed presentation which explains the Project and establishes that it is in consonance with the principles of sustainable development and the requirement of PEPA. Leave of this Honourable Court is sought to make this presentation .to this Honourable Court at a time and date convenient to this Honourable Court.

4. Adjourned to a date in office. To be fixed after the completion of above legal formalities by the concerned authorities under the Act, 1997. However, the Court shall be apprised about the progress in this behalf from time to time."

3. Subsequently, on 28-7-2009 it was informed that the New Murree Development Authority had been dissolved and the New Murree Development Project disbanded. On the information given/statement made by the official representative appearing on the said date, following two questions were posed:-- (1) Why the New Murree Development Authority has been dissolved? (2) What measures the Government of the Punjab has taken to ensure that in future no project detrimental to the environment would be launched?

4. In compliance With the above order, Secretary, Environment appeared and submitted that NOC for environmental impact assessment (EIA) was never issued by the Government of the Punjab, Environment Department because the Environment Department was not in favour of the New Murree Development Project. He further stated that to protect the environment in and around Murree, following measures had been taken: (i) Tehsil Murree, Kahuta and Kotli Sattian have been declared environmentally sensitive areas under Pakistan Environmental Protection Act, 1997. (ii) All kinds of construction and development activities are banned in these areas. (iii) Across the board application of sections 12 and 46 of the Act is being ensured in these areas. The district Officer (Environment), Rawalpindi has been directed to carry out effective -monitoring of these areas. (iv) All kinds of development activities are banned along both sides of Murree Express Way. (v) No construction is allowed within 100 meters along both sides of Murree Express Way. (vi) 48 billboards are deployed on both sides of Murree Express Way restraining general public' from undertaking any kind of construction within 100 meters on both sides of Murree Express Way. (vii) General public is being made aware about this restriction through print and electronic media. (viii) District Administration and Local Authorities have been taken into loop for implementing directions/restrictions. (ix) Proponents of thirteen (13) projects i.e. M/S Moin and Jan Associates, M/S Quality Apartments Phase-II, M/S Tourism Development Corporation of Punjab, Awan Market, Abbasi Market, Gulistan market, Raja Hafeez Market, Al-Khair Market, Ajmal Market, Raftar Abbasi Market, Saad Market and M/S Hakas (Pvt.) Ltd. are being proceeded against under section 16 of the Act ibid . (Environmental Protection Orders have been issued to them). (x) One proponent M/S Judicial Town (Housing Scheme) has been summoned for hearing under section 16 of the Act ibid, whereas M/S Commoners garden, M/S Husnain Resorts-I have been advised to restrain from carrying out any construction/development activity and obey environmental laws. (xi) All Government Departments, District Coordination Officers, TMOs, Development Authorities Project Directors, and Executive District Officers (Works and Services) in the Province have been requested to ensure compliance with section 12 of Pakistan Environmental Protection. Act, 1997 throughout the Province. (xii) Establishment of a National Park at Murree, Kahuta and Kotli Sattian is also in pipeline.

3. The Government of the Punjab has also made it obligatory on all development/executing Agencies throughout Punjab to obtain environmental approval from Environmental Protection Agency, Punjab before launching any project." The Secretary Environment, Government of the Punjab further stated that the New Murree Project was started on the initiative of the Tourism Department. The Additional Secretary, Tourism Department, who was present, placed on record a report prepared by him, in which following reasons for disbanding the project were given:- "

2. The New Murree Development Authority Act, 2004 (Act I of 2004) was promulgated on 24-1-2004 with the purpose to establish an Authority for planning, development and management of a new township near Muree. Under section 3 of the Act ibid, the new Murree Development Authority was established vide Notification dated 3-7-2004.

3. The New Muree Development Authority was dissolved vide Notification dated 19-6-2008 with the approval of Competent Authority on the following grounds:-- (a) The project was not considered environmentally viable M/s.NESPAK engaged as Consultants to carry out the Initial Environmental Examination (IEE) had concluded that the project may cause following negative environmental impacts. (i) Dust and exhaust emission generating high noise expected to adversely affect the air quality of area. (ii) Pollution of existing spring water due to contamination from cement components, oil, grease, other toxic chemicals and construction material may result in water borne diseases. (iii) Impact on vegetation, flora and fauna due to construction of Contractor's camp. (iv) Generation of significant quantity of solid waste during construction and operation will pollute the environment. (v) Ecological disturbance of the area due to cutting of trees. Approximately 76,000 trees were expected to be cut down which would increase soil erosion and drainage of plant nutrition. (vi) The microclimate was expected to be affected during the construction and operation of the project. (vii) The project area also includes the catchment areas of Simly Dam and River Jhelum. (viii) The project would cause serious damage to the natural environment of the area as it entails massive construction activities spread over 25% of the project area. (ix) The issue of ribbon development, land speculation and mushroom growth around the project area. (x) Since the Authority was established for this particular project, scraping of the project on environmental issues led to the dissolution of the Authority."

5. Mr. Mansoor Ali Shah, Advocate Supreme Court, appearing for the WWF submitted that the WWF had prepared assessment of ecological significance in respect of the proposed New Murree Development Project. The contents of the report read as under: Assessment of Ecological Significance The following brief describes the ecological significance of the New Muree Project area and the resulting devastating environmental impacts visualized due to the proposed New Murree Development Project (NMDP). The proposed NMDP propositions the development of Patriata Reserved Forests (Compartments 21 to 38), Murree Tehsil, Rawalpindi District, an area of 4,111 acres, into a `tourist city of International standards'. Located at the highest point in the Punjab (about 2,223m), the project area is part of the Himalayan hill tract that includes one of the best remaining Himalayan (temperate) forest areas in Punjab. There are two ecological zones present in the area, the `moist temperate coniferous forests' (Blue pine or kail zone) and the `subtropical Chir pine forests' (Chir zone); the former being the dominant zone. Considered particularly ecologically rich, the area boasts the existence or probable occurrence of more than 200 plant species, 146 bird species, 15 mammals, 22 reptiles, and 6 amphibians. The NMDP proposes development projects in the only surviving, intact habitat of the Blue pine ecosystem-the other habitat being badly degraded due to its proximity to Murree; this will result in a regrettable fragmentation of this periphery is liable to become swarmed by unplanned housing development schemes, such as those surroundings Bhurban and Murree. As a result, other than the White oak and Yew trees, which are already locally threatened, an additional 17 commonly used medicinal plants will be endangered due to the development operations. The Patriata hill tract has the richest flora to be found in the country. According to a recent study conducted by WWF Pakistan in 2008, a total of 224 vascular plants were identified from the study area, belonging to 166 genera and 71 families. A high proportion of endemic species and old forests render the area the status of a unique habitat. Since the area contains a very dense patch of the only remaining tract of pine trees in the Punjab Province, it is highly significant in terms of holding a rich diversity of fauna and flora. The Himalayan forest vegetation provides relatively undisturbed habitat for wildlife species, sustaining their need's for food, water and shelter. Any change in the habitat structure will affect the variety and population of wildlife species. Changes in the vegetation structure will definitely affect the wildlife fauna associated with them and, conversely, changes in faunal composition as well as influence the vegetation it is complexly integrated with. Leopards, once reported from the area, are no longer sighted; their disappearance can threat to the already decreasing population Common Leopards in the Murree hills. The Koklass Pheasant, the White-Crested Kalij Pheasant, and the Paradise Flycatcher are some of the unique bird species inhabiting the Patriata forests, which will also be endangered. Natural forests form a vital part of catchments, guaranteeing better quality water with lower levels of sediments and pollutants. The loss of forest cover and subsequent conversion to other land usage is rapidly being identified as the major reason for the depletion and contamination of freshwater supplies,' aggravating the looming water crisis that is threatening the whole country. Since the concerned area is an integral part of the important watersheds of Mangla and Simly dams, the proposed development plan, which entails large scale decimation of this surviving tract of forest, will have massive negative repercussions. Since much of the remaining catchment area of these dams has already been built up, protection of this region is imperative to guarantee groundwater replenishment along with regulation of water table, and to prevent rapid soil erosion-with consequential silting of water channels and dams downstream, flash floods, and landslides. The Government of Pakistan has pledged to preserve and rehabilitate the country's remaining natural forests in a number of policy documents, for example, the National Environmental Policy, 2005, that commits to increase forest cover to 5.6% by 2010 and to 6% by 2015. Even the Pakistan Poverty Reduction Strategy Paper (PRSP-2003) makes projections to increase forest cover from 4.8% to 5%. This project is, thus, in direct contradiction with these policies and goals to conserve natural forests. The FAO report, "Situation and Developments in the Forest Sector-2005", mentions that Pakistan is losing forest cover at the rate of 1.5% each year. This is one of the worst rates amongst the 48 Asian countries that have been listed. The current distribution reveals decline (almost 40%) in the char pine zone, which has been predominantly exploited for agricultural and residential land use, along with a significant decrease (approximately 51 %) in blue pine forest compared to estimated forest cover in the past. Pakistan has only 1.8% productive forests out of the total 3.1% existing forest cover. Under these alarming conditions, it is imperative that remaining natural forests in Pakistan, which includes the Patriata forest, must be protected from further degradation. The Project objectives and components have kept changing, and: have still not been clearly defined or been disclosed to the public. At the time of this report being written, the New Murree Project included a 6 Star hotel along with other hotels, exclusive housing units, golf course and mono-rail. All these mentioned projects are absolutely inappropriate for a unique ecological area, since the heavy machinery required during construction portends severe damage to the ecosystem. In conclusion, the Punjab Government is advised by WWF Pakistan to abandon the existing New Murree Development scheme, which is completely unsuitable for this unique, and environmentally rich region. In its place, the Punjab Government can undertake more suitable ecotourism initiatives, which conserve the unique natural and cultural heritage in Punjab and provide tourist facilities in conformity with local traditions, for the benefit of all levels of society."

6. However, his apprehension was that although the New Murree Development Project had been disbanded, but the legislation on the subject, namely, the New Murree Development Authority Act, 2004 was still on the statute, book, therefore, the project could be revived at any time. He, therefore, submitted that the said Act may also be struck down. We are not impressed by the argument of the ' learned counsel. The New Murree Development Project already stands disbanded on the considerations noted above. The NOC regarding environmental impact assessment has also not been issued by the Environment Department. Therefore, if at any stage, the project is revived, the matter would be liable to be agitated before this Court for redressal of the grievance.

7. It is important to note that in view of the above reports including a comprehensive assessment of ecological significance report prepared by the WWF, there was no probability of the revival of the project. At the time when the project was started; the apprehension of the environmental experts was that nearly 4000 trees (one per cent of the total tree population of the area) would be affected by the afore-said project, which, in turn, would adversely affect the Patriata, Forests, which were responsible for boosting high average of rainfall anomaly in the country (around 1.77 millimeter) as it was situated in the catchment area of Simly and Rawal Dams, which provided drinking water to almost half of the population of Rawalpindi and Islamabad. It is noteworthy that all over the world national parks are developed to preserve flora and fauna facing threat of extinction in the wake of modern-day-life development projects including mushroom growth of housing projects, recreational facilities, etc. The need is to sensitize the general public to the fundamentals of sustainable development so as to achieve the goal of a healthy environment, not only for the present population, but also for the future generations. The concerned agencies of the Government, including Environmental Protection Agencies at different levels have a heavy onus to discharge in this regard. The Government of the Punjab, considering the environmental hazard posed by the New Murree Development Project, has taken a right decision in disbanding the same. Since the project has been disbanded and presently there is no threat of environmental hazard in the area on account of the project, no further action is called for in the instant proceedings. The suo motu case has fructified and the same is disposed of accordingly. M.H./E-6/SC Order accordingly.