LAHORE: In a landmark decision that will be seen by heritage lovers as a victory but by the ruling Pakistan Muslim League-Nawaz as a major setback, a court on Friday stopped the construction of the Punjab government’s multi-billion Lahore Orange Line Metro Train project within a radius of 200 feet of the sites protected under the antiquity and special premises laws.

Releasing a detailed verdict on the questions of the project’s impact on heritage and environment, a division bench of the Lahore High Court set aside all the [initial and revised] No-Objection Certificates (NOCs) issued by the director general of archaeology thereby permitting the construction within the 200-foot radius of the heritage sites.

According to the ruling, all the NOCs were issued without lawful authority.

Punjab govt’s law officer says the high court’s verdict will be challenged in the Supreme Court

The heritage sites in question are Shalamar Garden, Gulabi Bagh Gateway, Buddhu ka Awa, Chauburji, Zaibunnisa’s Tomb, Lakshmi Building, General Post Office, Aiwan-i-Auqaf, Supreme Court Lahore Registry, St. Andrew’s Presbyterian Church at Nabha Road and Baba Mauj Darya Bukhari Shrine.

Justice Abid Aziz Sheikh authored the judgement while Justice Shahid Karim, the other member of the bench, also wrote an additional note while endorsing the verdict.

The bench partially allowed the petitions filed by individuals and members of the civil society because it rejected their arguments against the Environ­ment Impact Assessment (EIA) reports on technical grounds. The bench observed that the petitioners did not avail of the first remedy available in the law through the environment tribunal.

“However, the recommendations of [the] Advisory Committee on Environment will be implemented in letter and spirit by the authorities concerned,” the verdict states.

A senior law officer at the Punjab advocate general office said the government would challenge the decision before the Supreme Court.

The judgement says that both India and Pakistan, particularly the city of Lahore, are a hub of ancient monuments, cultural heritage, history and archaeological sites. The rich history calls for legal duty and moral responsibility of the state and on public functionaries that these monuments and heritage sites be preserved and perpetuated so that succeeding generations remember their ancestors’ traditions, culture and civilisation.

No unbridled powers

According to the verdict, the powers enjoyed by the DG archaeology to allow any construction work within the 200-foot radius of any heritage site are not unbridled.

The bench rules, “Discretion vested with the director general archaeology to give permission under Section 22 of Antiquity Act, 1975, is not unfettered, unbridled and not to be exercised to frustrate the purpose of the Act of preserving and protecting [a] 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 the authority.”

The verdict rules that in case the development plan, scheme or new construction is likely to damage a protected antiquity in any way, the permission cannot be granted.

It observes other than sub-constitutional enactments, the heritage and culture are also protected under the constitutional provisions.

Rejecting an argument of the government against the petitioners’ locus standi, the court ruled that where public functionaries failed to perform their duties or acted illegally or in excess of their jurisdiction relating to public duties, any concerned person could invoke the constitutional jurisdiction of the court.

The bench turns down another argument of the government that the project is a policy matter of executive authority and the court cannot hear the petitions against it.

According to the ruling, it is well settled that where infringement of law and constitution by executive authorities is involved, a court of law in judicial review would unhesitatingly and without the slightest qualms of conscience cast aside the technicalities of procedure in dispensing judicial review and entertain the petition filed by likeminded public individuals.

The bench says a report of the government shows that the distance to heritage sites from heavy construction work is only a few feet.

It further says that perusal of the heritage impact assessment report holistically demonstrates that it is focused on permitting the project and prescribing mitigating measures and there was no option considered to abandon the project near heritage sites if it causes harm and damage to them.

The LHC rules, “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.”

Citing rulings of international courts, it says there is consistent view by the United States Supreme Court, Courts of England and Indian Superior Courts that where construction of project will cause harm and damage to heritage, no permission can be granted for carrying out construction within prohibitory zone or even beyond.

The court directs the director general of archaeology to engage independent consultants consisting of a panel of experts of international status, preferably in consultation with Unesco, to carry out a fresh study of protected immovable antiquities and special premises. It also asks the government to frame rules to structure the discretion of competent authorities for future permissions.

Advocates Asma Jahangir, Khwaja Tariq Rahim and Azhar Siddique represented the petitioners.

Published in Dawn, August 20th, 2016