2021 CLD 428 | Versus | Pakistan Law

2021 C L D 428

2021 C L D 428

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

HUMAN RIGHTS CASE NO. 318 OF 1993: In the matter of

Human Rights Case No. 318 of 1993, C.M.As. Nos. 7645, 5895, 5896, 5897, 5898 of 2018, C.M.As. Nos. 2370, 2416, 2417, 2606 of 2020 in C.R.P. Nil of 2020, C.M.As. Nos. 3267, 3275, 3908, 3943, 3957 and 3958 of 2020 in H.R.C. No. 318 of 1993, decided on 14th December, 2020.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Arts. 18 & 184(3)---Human rights case---Limestone excavation and stone crushing--- Environmental pollution and destruction of landscape---Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped---Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights---Validity---Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis---After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped---No reason was found to recall, alter or modify the said order---Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Human rights case---Preservation of mountain ecosystems---Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large---Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas---Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants---Application was accordingly disposed of.

Sajid Ilyas Bhatti, Additional A.G.P. and M. Ramzan, A.D. Legal, EPA for the Federation.

Niaz Ullah Niazi, A.G., Islamabad, Azam Khan, Acting Mayor, Syeda Shafaq Hashmi, Chief Officer MCI and M. Tariq Latif, Dir. Revenue CDA/MCI for ICT.

Aamir Ali Ahmed, Acting Chairman, CDA and Ch. Riasat Ali Gondal, Advocate Supreme Court for CDA.

Ch. Faisal Fareed, Additional A.G. Punjab, Shahzad Mehboob, A.C. Texila and Ijaz Hadayat, Dy. Dir. Mines, RWP for the Government of Punjab.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa for the Government of Khyber Pakhtunkhwa.

Nasir Mehmood Mughal, Special Prosecutor for NAB.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Applicant (in C.M.As. Nos. 7258 and 3908 for 2020).

Ahmed Hassam Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicant (in C.M.As. Nos. 2370 and 4699 of 2020).

Ms. Shireen Imran, Advocate Supreme Court for Applicant (in C.M.A. No. 2416 of 2020).

Syed Qalb-e-Hassan, Advocate Supreme Court for Applicant (in C.M.A. No. 2417 of 2020).

Tanveer Iqbal, Advocate Supreme Court for Applicant (in C.M.A. No. 2606 of 2020).

Barrister Umer Aslam, Advocate Supreme Court for Applicant (in C.M.A. No. 3943 of 2020).

Malik Qamar Afzal, Advocate Supreme Court for Applicant (in C.M.As. Nos. 3957 and 3958 of 2020).

Applicant in person (in C.M.As. Nos. 5895 and 5897 of 2018).

Date of hearing: 14th December, 2020.

ORDER

IJAZ UL AHSAN, J.---In Human Rights Case No.318 of 1993, we have been informed that Mayor of Municipal Corporation, Islamabad (MCI) has submitted his resignation. The functions of the Mayor for now are being looked after by Mr. Azam Khan, Acting Mayor, MCI. He submits that he is not entirely aware of the issues involved in the matter. We have further been informed that the requisite Rules are in the process of being finalized. The Acting Mayor, MCI submits that term of the Local Government will end in February, 2021 whereafter fresh elections will be held.

2. A report of the Committee constituted by this Court has already been submitted by way of C.M.A. No.3830 of 2020. The same is taken on record. The learned Deputy Attorney General has informed us that the matter of finalization of the Rules is likely to take some time.

3. A compliance report regarding environmental pollution in Sector I-9/1, Islamabad has also been filed by the Capital Development Authority by way of H.R.M.A. No. 7826 of 2020. The same is also taken on record.

4. C.M.As. Nos. 7645, 5895 to 5898 of 2018. Proprietors and Representatives of Karachi Steel, Pak Iron Casting, Mustehqam Steel and Siddique Steel Mills are present in Court. They request that since in view of the orders of this Court necessary equipment to control and monitor the environmental pollution has been put in place and is functioning, the Bank guarantees deposited by them may be ordered to be released.

5. We note that Director General, Environmental (Protection Agency ("EPA") is not in attendance. She is directed to file a report confirming that all necessary equipment has been installed and is functional, and the monitoring undertaken by the EPA indicates that emissions from the factories in question are within the limits prescribed by law. The matter of release of Bank guarantees shall be taken up after such report has been filed by DG, EPA on the next date of hearing.

6. C.M.A. No.7258 of 2020. This is an application moved on behalf of Limestone Crushers with the prayer that they may be impleaded as parties in this matter. It is submitted that the interveners are in the business of limestone excavation and stone crushing and they hold mining leases which are still valid. They are directly and adversely effected by the orders passed by this Court by virtue of which crushing operations in the entirety of Margalla Hills have been stopped. The learned counsel for the Applicants submits that pursuant to the orders passed by this Court, the Government has taken steps to prevent them from conducting their lawful business despite the fact that they are in possession of valid mining leases. He further maintains that the prohibition against stone crushing and limestone mining is limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it. He maintains that the Applicants are operating their businesses beyond the said areas. Therefore, the order passed by this Court and the resultant steps taken by the Government to prevent the Applicants from conducting their businesses are violative of their legal rights. He further submits that the Applicants have invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases. The learned Sr. ASC finally submits that the stone crushing/limestone excavation is necessary for public and private mega projects which would greatly suffer in terms of cost of the projects and their completion within time.

7. Having heard the learned counsel for the Applicants, we find that the order passed by this Court was in line with a chain of orders successively passed by this Court in the interest of environmental protection and to protect Margalla Hills from indiscriminate misuse by breaking the Hill and converting it into crush which not only creates environmental pollution but also destroys the landscape and natural beauty of the Hills irreparably and on permanent basis. Therefore, after due consideration of all the aforenoted factors and to preserve and protect a gift of nature that has been bestowed upon the citizens of Islamabad, further operation of crushing and mining activities in Margalla Hills were directed to be stopped. We find no reason to recall, alter or modify the said order.

8. At this stage, the learned counsel for the Applicants submits that the Applicants are being prevented from removing their machinery and equipment from the area. He prays that the Applicants may be allowed to remove their equipment. The request appears to be reasonable and is thus allowed. Unless there is any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage is done to the area and the Hills allow removal of the equipment owned by the Applicants. This application is accordingly dismissed in the aforenoted terms.

9. C.M.As. Nos. 2370 and 4699 of 2020. These are the applications seeking permission to file and argue review petitions on behalf of the Applicants. C.M.A. No.2370 of 2020 was filed by Mr. Makhdoom Ali Khan, learned Sr. ASC along with Mr. Akhtar Ali Chaudhry, AOR. Subsequently, C.M.A. No.4699 of 2020 was filed by Mr. Ahmad Hassan Rana, learned ASC to appear and argue the matter on behalf of the Applicant stating that Mr. Makhdoom Ali Khan, learned Sr. ASC on account of some difficulty had expressed his inability to appear in the case and argue the same.

10. We have asked Mr. Ahmad Hassan Rana, learned ASC to address us on the grounds of his review which has not so far been numbered. He submits that the Applicants are holders of leases regarding limestone excavation and crushing on the lands situated in the areas of Margalla Hills and the orders passed by this Court prohibiting crushing and limestone excavation directly affects their interests. He further adopts the arguments addressed by Mr. Aitzaz Ahsan, learned Sr. ASC for the Applicants in C.M.A. No.7258 of 2020.

11. We have heard Mr. Ahmad Hassan Rana, learned ASC at a considerable length. His case is at par with the one argued by Mr. Aitzaz Ahsan, learned Sr. ASC which we have already dismissed hereinabove. Therefore, we do not find any reason to take a different view in this case. Accordingly, this application is dismissed. All other pending CMAs relating to this very Application also stand dismissed.

12. C.M.As. Nos.2416, 2417 and 2606 of 2020. These applications have been filed by Ms. Shireen Imran, Syed Qalb-e-Hassan and Mr. Tanvir lqbal, learned ASCs, respectively for seeking permission to file review petitions on behalf of the Applicants.

13. For the reasons elaborately discussed and recorded in the order passed in C.M.A. No.7258 of 2020 filed by Mr. Aitzaz Ahsan, learned Sr. ASC hereinabove, we are not inclined to accede to the request of learned ASCs for the Applicants in these applications for permitting them to file and argue the review petitions on behalf of the Applicants. These are accordingly dismissed.

14. C.M.As. Nos. 3908, 3943, 3957 and 3958 of 2020. These applications have been filed with the prayer that the Applicants may be irnpleaded as parties in H.R.C. No.318 of 1993. The Applicant in C.M.A. No.3908 of 2020 is a lease holder for excavation of limestone. C.M.A. No.3943 of 2020 has been moved on behalf of Margalla Hills Society and C.M.As. Nos.3957 and 3958 of 2020 have been filed on behalf of Lamontana Restaurant and Messrs Monkey View Point, Daman e-Koh, Islamabad.

15. As far as C.M.A. No.3908 of 2020 is concerned, we have already dealt with the matter in our order passed in C.M.A. No.7258 of 2020 hereinabove. Accordingly, we find no reason to allow this application. The same is therefore dismissed.

16. C.M.A. No.3943 of 2020. We have heard the learned counsel for the Applicants. They seek issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain Ecosystem of Pakistan including but not limited to Margalla Hills in the interest of public at large. It is further prayed that this Court may also permanently restrain any crushing activities in Margalla Hills irrespective of Federal/Provincial territories in the interest of preservation of Mountain Ecosystem of Margalla Hills.

17. As far as the legislation is concerned, let the Applicants take up the matter with the concerned authorities directly who may take appropriate steps in this regard in accordance with law, keeping in view the protection and preservation of Mountain areas. They may also brief the office of Attorney General for Pakistan who shall use his good offices for the purpose of providing the requisite information, knowhow and data to the concerned agencies with the assistance of the Applicant Society. This application is accordingly disposed of.

18. C.M.As. Nos.3957 and 3958 of 2020. These are applications seeking impleadment as parties in HRC No.318 of 1993. The Applicants are running a Restaurant and an amusement park under the name and style of Monkey View Point, Daman-e-Koh, Islamabad.

19. After hearing the learned counsel for the Applicants, it is clear and obvious to us that the matter relates to steps being taken by Capital Development Authority ("CDA") in compliance with the orders passed by this Court. The learned ASC submits that in case, the Applicants are aggrieved of any order/action taken by CDA or any other authority/agency which violates their legal and constitutional rights, they shall avail appropriate remedies in accordance with law.

20. In this view of the matter, he does not press these applications. The same are accordingly dismissed.

21. C.M.As. Nos. 3267 and 3275 of 2020. Through these applications, reports have been filed on behalf of CDA as well as Deputy Commissioner, Rawalpindi. Both reports have been filed pursuant to the order of this Court dated 05.03.2020. The said reports are taken on record. The CMAs are accordingly disposed of.

22. Rest of the matter is adjourned to a date in office after winter vacation.

MWA/H-1/SC Order accordingly.