M Jahanzeb Butt
Long awaited appeal of the Punjab Government has been finally accepted by the apex Court, ruling out the injunction of the Lahore High Court. The critique observation on the decision of the apex Court has stated that the apex Court has applied the doctrine of ‘In casu extremae necessitatis omnia sunt communia’ (In a case of extreme necessity everything is common); contrariwise, the positivists has welcomed the decision and believes that the compliance as per provided through the verdict of the apex Court will result fairly for the protection of the cultural sites as well as for the construction of the “Lahore Orange Line Metro Train Project”.
The apex Court’s observations regarding the congestion of the Lahore City set forth the requirement of the mass transit system. As, the mass transit system is the only solution for resolving the traffic congestion problem. The mass transit system for Lahore is based upon the four adjoining projects namely; 1) Green Line (Gajju Matta to Shahdara), 2) Blue Line (Jinnah Hall to Green Town), 3) Purple Line (Data Darbar to Airport), and 4) Orange Line (Multan Road to GT Road), which were suggested through a feasibility study of a private firm many years ago. The original feasibility study suggested that the Orange Line shall consists of total 27.1 KMs track; in which 20.2 KMs to be elevated through viaduct and 6.9 KMs underground. Due to budgetary position of the Punjab Government, another private consulting firm suggested for 1.7 KMs if underground portion meeting the budgetary requirements, and the project began for execution. The Orange Train was en-route beside 11 cultural sites, namely, 1) Shalamar Garden, 2) Gulabi Bagh Gateway, 3) Buddu’s Tomb, 4) Chauburji, 5) Zaibunnisa’s Tomb, 6) Lakshmi Building, 7) General Post Office (GPO), 8) Aiwan-e-Auqaf, 9) Supreme Court, Lahore Registry Building, 10) Saint Andrew’s Church and 11) Mauj Darya Shrine and the Mosque, and while constructing viaduct there was threat of damage or adverse effect on these sites. The Constitutional Jurisdiction of the Lahore High Court was invoked on the bases of two statutes; The Antiquities Act, 1975 and The Punjab Special Premises (Preservation) Ordinance, 1985, in these statutes 10 of these 11 sites were declared as antiquities or special premises setting condition that any construction or development in proximity of these sites, shall require a special permission from the competent authority. In accordance with the Antiquities Act the Director General of the archaeology department is the competent authority, which after deliberations along with the expert advise and feasibility study report allows the project; similarly, the competent authority under special premises ordinance allows the project. The deliberations through the feasibility reports clearly indicated that there was not any threat to any of the afore-mentioned sites, but still, the Lahore High Court, without recording any adequate reasons dismissed the permissions provided through the competent authorities and signalled red to the Orange Train.
The apex Court observed that as the consulting firm is hired by the Government of Punjab, so the main disagreement between the Parties and the Lahore High Court was the credibility of reports provided by firms.
The apex Court ordered to hire a new independent consultant for carrying out new feasibility study, which again exposed that there is not any threat of damage to protected and preserved sites.
The apex Court observed that the Lahore High Court has decided the matter without any reasonable justification, and on mere apprehension of the biasedness of the reports has rejected the version of the Punjab Government.
The Petitioners of the initial case has also misled both the Courts through misinforming that United Nations Educational, Scientific and Cultural Organisation (‘UNESCO’) has threatened to remove Shalamar Garden from the World Heritage Sites list. The apex Court thrown this argument vehemently after observing the 41st Committee Meeting report of UNESCO, and also directed the Punjab Government to collaborate with UNESCO to adopt the practicable measures to control and monitor the expected threats to damage cultural sites. The apex Court greeted the argument of the Punjab Government that through this project, the tourism will be promoted due to ease of access to these sites; the tourists shall be attracted.
The apex Court in its verdict also observed that the Lahore High Court has exceeded its jurisdiction by delving into the technical policy issues, which should be left with the experts of those areas, referring to Dossani Travels Pvt. Ltd Vs Travels Shop Pvt. Ltd (PLD 2014 Supreme Court 1).
The conditions set forth for the Punjab Government for the completion of project and their compliance has set the test case of credibility of the construction consultants and the Punjab Government itself.
Such as; the Punjab Government shall make all essential arrangements to ensure that all the sites shall remain stable, while construction there shall be proper mechanism of vibration test, which can be a major threat to preservation of such sites, for control of dust regular sprinkling of water is also made part of the compliance and the preserved sites to be covered through protective sheets, most importantly, an independent consultant shall be hired for the monitoring of the project, for the construction and the operation phases, who will be submitting reports to advisory committee and will make recommendations to Director General, Archaeology Department, after the completion of the project the train shall be operated on experimental bases for 2 weeks and shall be monitored and after the approval of the expert the train shall then be commercially operated, if the vibrations produced are in acceptable limits, and the speed of the train shall be reduced when it will be near preserves sites, the most appreciated compliance is to setup a dedicated complaint line around all the antiquities and preserved areas for reporting damage or deterioration observed by members of the public or tourists, the apex Court has also directed the Punjab Government to setup 100 million fund for monitoring, renovation and reconstruction of the preserved sites.
The dissenting Judge of the apex Court has made prodigious observations regarding the afore-mentioned, almost 400 years old sites. The generosity of the dissenting memo has connected the culture with the human rights by referring to the landmark precedents throughout the world; which interpret the cultural preservation as preservation of human right and is part of the right to life, because life not only means mere protection from injury or death, would include, worth living, such as, tradition, culture and heritage. Siddharam Satingappa Mhetre Vs. State of Maharastra and Others. (2001 SCC 694). Also told that human dignity not merely mean to protect from continued drudgery, extends towards the human civilization, meaning thereby, tradition, culture and heritage. P. Rathinam/Nagbhusan Patnaik vs.Union of India and another (AIR 1994 Supreme Court 1844).
This decision of the apex Court has balanced between the culture and the need, the tradition and the modernisation, the decision the aforementioned is so balanced that the Punjab Government shall be balanced itself while completing and operating this project.
The operationalisation of this project was necessity, because Lahore is one of the few large metropolitans throughout the world without mass transit system, but this necessity should be with preservation of cultural heritage, the tradition and the civilisation, as per the apex Court has remarked.
