Clifton traffic project: SHC reserves judgement on Bahria Town plea

Published September 3, 2014
Clifton traffic project.— File photo
Clifton traffic project.— File photo

KARACHI: The Bahria Town, a major real estate firm, on Tuesday contended before the Sindh High Court that the restraining order of a single bench on the construction of a flyover and two underpasses in Clifton was liable to be set aside as it was given in ignorance of the law applicable at the relevant time.

A two-judge bench headed by Justice Nadeem Akhtar heard the final arguments from the counsel for the Bahria Town and the Defence Housing Authority on the appeals of the real estate firm and the Karachi Metropolitan Corporation against the restraining order of the SHC’s single bench and reserved its judgement to be announced later.

On April 29, work on the project of the flyover and underpasses was ordered to be stopped by the single bench on a DHA lawsuit against the project. The bench had directed the KMC to obtain a mandatory environmental impact assessment (EIA) report from the Sindh Environmental Protection Agency (Sepa) on the project.

Know more: Cracks appear in Clifton temple near traffic project

Subsequently, the Bahria Town impugned the single bench’s restraining order through an appeal. On May 6, the KMC also joined the real estate firm in the legal battle over the construction of the project.

The Bahria Town counsel, Advocate Farooq H. Naek, submitted in court that the single bench’s decision was per incurium as the judge passed the order on the basis of the Environment Protection Act, 1997 and the regulation framed under that in 2000.

He said the DHA filed the suit on April 2, 2014 and the single bench passed the restraining order on April 29.

The counsel argued that the act of 1997 passed by parliament was not in force when the single bench passed the restraining order as the Sindh Environment Protection Act, 2014 was promulgated on March 20, 2014.

Consequently, he contended, the restraining order was in ignorance of the law applicable at that time and it was nullity in law.

Advocate Naek further submitted that the environment was a concurrent subject under the constitution before the passage of the 18th Amendment as reflected in item 24 of the Concurrent Legislative List (CLL).

He said the CLL had been abolished after the passage of the 18th Amendment; therefore, the environment was no longer a federal subject and became a provincial subject in view of the provincial autonomy given by the amendment.

The counsel asked the court to set aside the single bench order in view of his arguments. The DHA counsel, however, argued that the Initial Environmental Assessment (IEE) was obtained under the Pakistan Environmental Protection Act, 1997 and there was no difference between provisions of the federal and provincial laws.

He contended that the regulations framed in 2000 under the act were still in force.

He said the defendant had announced in 2010 one of its projects — Bahria Town Icon Project — a 68-storey building housing several shopping malls, a hotel, a cinema and other facilities.

The DHA counsel said the huge project was initiated without taking into consideration serious adverse environmental effect.

He said the project was located at the hub of the 26th Commercial Street and Shahrah-i-Firdousi that had hustle and bustle with traffic running round the clock.

The counsel said the defendant construction company in March suddenly closed a part of Shahrah-i-Firdousi leading to Bilawal Chowrangi and the junction of the A.T. Naqvi roundabout without taking into consideration the fact that no road or street could be closed without prior approval of the authorities concerned.

He said the defendant started digging up the streets on “war-like footings” that led to a hue and cry by the public and also invited media attention.

Later, the counsel said the construction company maintained that it intended to build a couple of underpasses and a flyover for the convenience of people visiting the multi-storey project. He said the construction of underpasses and flyovers was a municipal function that could only be undertaken either by the municipal authority, or the federal or provincial government.

The DHA counsel said the impugned project, being financed and executed by the defendant firm at an estimated cost of Rs1.8 billion, was required for an EIA as only an IEE had been submitted for the project so far. He said the KMC remained content with the IEE. Under Section 12 of the Pakistan Environmental Protection Act, 1997 read with Schedule-II, the project should have been evaluated on the basis of an EIA before the commencement of the construction work, he said.

He added that the project was being built without ascertaining a correct traffic forecast, instead the proponent of the project was relying on a traffic impact assessment report compiled by the defendant firm.

Published in Dawn, September 3rd, 2014

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