Condition Precedent For Orange Line

5641685e8f6f9

Condition Precedent For Orange Line

The long-awaited appeal of the Punjab Government has been finally accepted by the apex court ruling out the injunction of the Lahore High Court against the Lahore Orange Line Metro Train Project. The critique of the decision of the apex court shows that it has applied the doctrine of in casu extreme necessitatis omnia sent commune (in a case of extreme necessity everything is common). However, the positivists have welcomed the decision and believe that the compliance as provided through the verdict of the apex court will result in the protection of cultural sites as well as the construction of the Lahore Orange Line Metro Train Project.

The Supreme Court of Pakistan’s observations regarding the congestion of Lahore city set forth the requirement of the mass transit system. The mass transit system is the only solution for resolving the traffic congestion problem. The mass transit system for Lahore is based on 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).

These were suggested through a feasibility study conducted by a private firm many years ago. The original feasibility study suggested that the Orange Line shall consist of a total of 27.1 kilometers of track, out of which 20.2 km will be elevated through a viaduct and 6.9 km underground. Due to budgetary position of the Punjab Government, another private consulting firm suggested for 1.7 km to be underground. The Orange Train was to run 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.

There was the threat of damage and adverse effect on these sites during the construction. 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. Eleven sites were declared as antiquities with the condition that any construction or development in the 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 was the competent authority who, after deliberations with the experts and advisors, drafted the feasibility study report which allowed the project to continue. Similarly, the competent authority under the Special Premises Ordinance also allowed the project. The feasibility reports clearly indicated that there were no threats to any of the aforementioned sites, yet the Lahore High Court, without recording any adequate reasons, dismissed the permission provided by competent authorities.

The apex court observed that the main disagreement was about the consulting firm which was hired by the Government of Punjab due to which doubts arse over the credibility of reports provided by these firms. The court ordered to hire a new independent consultant for carrying out a new feasibility study. Once again, it was confirmed that there was no threat of damage to the preserved sites. The apex court observed that the Lahore High Court had decided the matter without any reasonable justification, and over a mere apprehension of the reports being biased. The petitioners of the initial case had also misled both the courts by misinforming that the United Nations Educational, Scientific and Cultural Organisation (UNESCO) had threatened to remove Shalamar Garden from the World Heritage Sites List. The apex court rejected this argument vehemently after observing the 41st Committee Meeting Report of UNESCO and also directed the Punjab Government to collaborate with UNESCO to adopt practicable measures in order to control and monitor the expected threat of damage to the cultural sites. The apex court greeted the argument of the Punjab Government that tourism would in fact be promoted through the project by allowing ease of access to those sites.

The apex court in its verdict referring to Dossani Travels Pvt. Ltd Vs Travels Shop Pvt. Ltd (PLD 2014 Supreme Court 1) also observed that the Lahore High Court had exceeded its jurisdiction by delving into the technical policy issues which should have been left with the experts in those areas.

The conditions set forth for the Punjab Government to complete the project with compliance have set the test of credibility for construction consultants and Punjab Government itself. The Punjab Government shall make all essential arrangements to ensure that the sites remain stable. Construction shall be through a proper mechanism of vibration test. Dust controls and control of the sprinkling of water are also made part of the compliance. Preserved sites are to be covered through protective sheets. An independent consultant shall be hired for monitoring the project during the construction and operation phase. The consultants shall submit reports to the advisory committee along with recommendations to the Director General, Archaeology Department. After the completion of the project, the trains shall be operated on an experimental basis for 2 weeks during which it will be monitored. The trains will be allowed to run commercially only after the approval of the expert. It will be seen if the vibrations produced are within acceptable limits. Moreover, the speed of the trains shall be reduced near the preserved sites. The most appreciated compliance is to set up a dedicated complaint-line around all the antiquities and preserved areas for reporting damage or deterioration by general public or tourists. The apex court has also directed the Punjab Government to set up a 100 million fund for the monitoring, renovation and reconstruction of preserved sites.

The dissenting judge of the apex court has made prodigious observations regarding the aforementioned sites that are almost 400 years old. The generosity of the dissenting memo has connected culture with human rights by referring to landmark precedents throughout the world which interpret cultural preservation as a preservation of human rights and part of the right to life, because life not only means the mere protection from injury or death but would also include things worth living for, such as, tradition, culture and heritage (Siddharam Satingappa Mhetre vs. State of Maharastra and Others, 2001 SCC 694). It has also been observed that human dignity does not merely mean protection from continued drudgery but also extends towards human civilization, including thereby, tradition, culture and heritage (Rathinam/Nagbhusan Patnaik vs.Union of India and another, AIR 1994 Supreme Court 1844).

This decision of the apex court has provided a balance between the need for culture and tradition and modernisation. The decision has laid down compliance mechanisms for the construction. The operationalisation of this project has been a necessity because Lahore is one of the few largest metropolitans around the world without a mass transit system. However, this necessity should be coupled with the preservation of cultural heritage and tradition as observed by the Supreme Court.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.

M Jahanzeb Butt

The writer is an Islamabad based lawyer and lecturer at Bahria University, Islamabad.



Related posts