Anda di halaman 1dari 23

BEFORE THE LAHORE HIGH COURT AT LAHORE

Writ Petition No. ___________ of 2012

1. The Public Interest Litigation Association of Pakistan


Suite No. 204, Marine Pride
Plot No. BC 2, KDA Scheme 5
Clifton Block 7
Karachi
2. Pakistan Environmental Law Association
1 Bath Island Road
Karachi
3. Lahore Conservation Society
325 Jehanzeb Block, Iqbal Town
Lahore
.............................Petitioners
Versus
1. The Government of Punjab
Through, Secretary, Irrigation & Power Department
Lahore
1. The Water and Sanitation Agency
Lahore Development Authority
Through its Managing Director
WASA Head Office
Zahoor Elahi Road
Gulberg II, Lahore
2. The Environment Protection Agency
Through its Director-General
National Hockey Stadium
Qaddafi Sports Complex
Ferozepur Road
Lahore
.........................Respondents
Writ Petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973
Respectfully submitted:
1

A. Introduction
1. The Petitioner No. 1, the Public Interest Litigation Association of Pakistan
(PILAP) is a society registered under the Societies Act, 1860 with its registered
office situated at Suite No. 204, Marine Pride, Plot No. BC 2, KDA Scheme 5,
Clifton, Karachi. Under its Memorandum and Articles of Association (Annex
A/1), PILAP conducts, inter alia, public interest litigation for the benefit of the
public and the enforcement of Fundamental Rights. The instant petition is being
filed on behalf of PILAP by its General Secretary, Mr. Ahmad Rafay Alam, duly
authorized by resolution of the Board of Directors (Annex A/2).
2. The Petitioner No. 2, the Pakistan Environmental Law Association (PELA)
is a society registered under the Societies Act, 1860 with its registered office
situated at 1 Bath Island Road, Karachi and local office at PAAF Building, 7-D
Kashmir-Egerton Road, Lahore. Under its Memorandum and Articles of
Association (Annex A/3), PELA, inter alia, conducts public interest litigation for
the protection of the environment and for the enforcement of the Fundamental
Right to a clean and healthy environment. The instant petition is being filed on
behalf of PELA by its Vice-President (Punjab), Mr. Ahmad Rafay Alam, duly
authorized by resolution of the Executive Committee (Annex A/4).
3. The Petitioner No. 3, the Lahore Conservation Society (LCS) is a society
registered under the Societies Act, 1860 with its registered office situated at 325
Jehanzeb Block, Iqbal Town, Lahore. Under its Memorandum and Articles of
Association (Annex A/5), LCS, inter alia, conducts activities to conserve the
protect the cultural and environmental heritage of the city of Lahore. The instant
petition is being filed on behalf of LCS by its President, Mr. Kamil Khan Mumtaz,
duty authorized by a resolution of the Executive Committee (Annex A/6).
4. It bears mentioning that research for this petition was conducted by students of
the 2011 Environmental Law and Regulation class of the Department of Law &
Policy of the Lahore University of Management Sciences. Their contribution is
acknowledged.
5. The instant writ petition seeks to highlight the issue of discharge of untreated
municipal and industrial waste into the River Ravi reach between the
Bhambawalla-Ravi-Bedian (BRB) Link Canal and the Head Bolloki irrigation
works (the reach area). This untreated discharge has already led to major
environmental degradation of the quality of water in the River Ravi and, inter alia,
is a violation of the Fundamental Rights of life and of a clean and healthy
environment and access to unpolluted water as well as the provisions of the
2

Pakistan Environment Protection Act, 1997 (PEPA). The instant petition is


being filed by PILAP, PELA and LCS in the public interest on behalf of the
general public, natural environment, flora, fauna, birds, animals, marine and other
and wildlife dependent upon and affected by the untreated dumping of wastewater
into the River Ravi.
B. Basic Facts and River Ravi
1. The River Ravi is a perennial river and is the smallest of the five main eastern
tributaries of the River Indus. The River Ravi rises from glacier fields at Bara
Bhangal, District Kangra, Himachal Pradesh, India and enters Pakistan at the
Shakargarh Tehsil of District Sialkot before flowing past the city of Lahore and
emptying into the River Chenab. The total length of the River Ravi is 894
kilometres and it has a catchment area of 39,680 kilometres2.

2. The Average Annual Flow of the River Ravi into Pakistan between 1922 and
1961 is recorded at 7 million acre feet (MAF). After the signing of the Indus
Waters Treaty, 1960 (the Indus Waters Treaty), rights to use the waters of the
River Ravi were allocated to India and the average annual flow between 1985 and
1995 is recorded at 5 MAF. Due to irrigation and hydropower diversions put in
place in India, the average annual flow between 2000-2009 was recorded as 1.1
MAF. Nevertheless, the flow in the River Ravi is highly variable from less than
10m3/s to 10,000m3/sec between 1967-2004. For irrigation purposes and in order
to overcome low flow issues such as water quality management, the Marala-Ravi
(MR) Link Canal upstream and the Upper Chenab (UC) and QadirabadBalloki (QB) Link Canals downstream, respectively, from the Ravi Siphon,
discharge water from the River Chenab into the River Ravi. It is also pointed out
these Link Canals, to some extent, also discharge waterwater into the River Ravi.
However, these discharges are not the central focus of this petition.
C. Wastewater discharge in the River Ravi
1. According to the paper, Simulation of Contaminant Transport to Mitigate
Environmental Effects of Wastewater in River Ravi (the Simulation) published
in the Pakistan Journal of Water Resources (Annex B), the total disposal flow of
wastewater into the River Indus and its tributaries has been estimated at 56.52
cubic metres per second (m3/s) with a biological oxygen demand (BOD) BOD
load of 1,900 tons per day. Of this, the disposal flow of the River Ravi is 28.09
m3/s with a BOD load of 885 tons a day. The River Ravi is the most polluted river
in Pakistan and one of the most polluted rivers in the world.

2. The Simulation states the major disposal of wastewater in the River Ravi
occurs in the 84 kilometre reach area of the river between the Ravi Siphon and the
Balloki Headworks. The River Ravi flows past the city of Lahore for this stretch.
Within the reach area, the Simulation states the River Ravi receives wastewater at
the following points (with distances given from the Ravi Siphon):

No.

2
3
4
5
6
7
8

Pumping Station

North East Pumping


Station
(Mehmood
Booti)
Shad Bagh Pumping
Station
Shahdara
Pumping
Station
Main Outfall Pumping
Station
Babu Sabu (Gulshan
Ravi) Pumping Station
Multan Road Pumping
Station
Deg Nullah
Hudiara Drain
Total

Discharge (m3/s)

Distance

Concentration
(mg/l) in 1997
DO
BOD

15km

1997
(Actual)
1.27

2017
(Projected)
3.09

0-0.8

120-180

17km

4.36

8.55

0-0.8

150-200

15km

0.75

2.30

0-0.8

120-160

27km

5.05

9.09

0-0.8

160-210

34km

4.14

7.45

0-0.8

150-190

36km

2.19

4.76

0-0.8

120-170

13.20

1.8-6.1
4.0-6.0

10-198
99-109

60km
62km

6.30

6. The result of the Simulation show that, in conditions existing in 2002, river
discharge into the River Ravi was 12.74m3/sec with a wastewater load of 22m3/sec.
The Simulation projects that, by 2017, with population and industrial activity
increasing in Lahore, the sewage load could be as high as 35m3/sec.
7. In a paper titled Water Quality Assessment of Effluent Receiving Streams in
Pakistan: A Case Study of River Ravi published in the Mehran University
Research Journal of Engineering & Technology in 2011 (the Mehran University
Assessment, Annex C), various effluent sources which contribute to pollution in
the River Ravi were considered over a period of three years and fourteen sampling
stations were chosen in the reach area based on their relative positions to
wastewater outfalls. The Assessment quotes a study by the Respondent No. 2, the
Water and Sanitation Agency (WASA) established under the Lahore
Development Authority Act, 1975 (the LDA Act), wherein the discharge from
fourteen disposal stations discharging untreated wastewater into the River Ravi is
given as under:
No.
Name of Disposal Station
1 Farkha Abad (Shahdara side near Bara Dari)
2 Saeed Pura (Shahdara Side near Ravi Bridge)
4

Discharge (Cusecs)
111
10

3
4
5
6
7
8
9
10
11
12
13
14

Shahdara Town
Forest Colony (near Niazi Interchange)
Main Outfall-I
Main Outfall-II
Main Outfall-III
Walled City
Gulshan Ravi
Multan Road
Mehmood Booti
Shadbagh
Khokhar Road
Alipura (near Railway Bridge)
Total

24
28
175
102
87
100
320
160
168
200
168
4
1650

8. In the Final Report of the Preparatory Study on Lahore Water Supply,


Sewerage, Drainage Improvement Project in Islamic Republic of Pakistan
prepared, in July 2010, by the Japan International Cooperation Agency (JICA)
on the request of the Respondent No. 1, the Government of Punjab, for WASA,
(the WASA Report, Annex D), details of the twelve major disposal stations
which discharge untreated wastewater into the River Ravi in the reach area is given
as under:
No.
1
2
3
4
5
6
7
8
9
10
11
12

Name of Disposal Station


Fararkhabad
Mehmood Booti
Shad Bagh
Khokhar Road
Bhatti Gate
Main Outfall-I
Main Outfall-II
Main Outfall-III
Gulshan Ravi
Multan Road
LMP Block
Nishtar Colony

Total Capacity (m3/s)


181
224
240
168
100
181
102
87
560
240
125
111

9. A separate note may be taken of the Hudiara Drain. This Drain, which is a
natural storm water channel, originates from Batala in District Gurdaspur, India
and enters Pakistan at village Laloo. It flows 55 kilometres in Pakistan and is
joined by the Sattukatla Drain before itself joining the River Ravi. Along its route,
both in India and Pakistan, the Hudiara Drain receives wastewater, sewage and
industrial pollution without proper treatment. The transboundary nature and heavy
pollution discharged by this drain make it a particularly difficult environmental
challenge.
10. According to a thesis submitted in partial fulfilment for the Degree of Doctor
of Philosophy in Environmental Engineering at the Institute of Environmental
Engineering & Research, University of Engineering & Technology, Lahore in 2010
(the UET PhD Thesis, Annex E), an illustration of the various points where

untreated wastewater is discharged into the River Ravi within the reach area is
given in Figure 1.1 below:

11. According to the UET PhD Thesis, some characteristics of wastewater at


different outfalls, surface drains and freshwater tributaries is as under:

12. The UET PhD Thesis estimates the future BOD loads entering the River Ravi
in the year 2025 from freshwater outfalls as under:

13. According to a report titled Pakistans Waters at Risk: Water & Health Related
Issues in Pakistan and Key Recommendations published by WWF-Pakistan in
2007 (the WWF Report, Annex F), Lahore produces 287 million cubic meters of
wastewater per year and disposes of it the River Ravi, irrigation canals and
vegetable farms. In the same report, it is also pointed out that the cities of
Faisalabad and Sialkot produce 129 and 9 million cubic meters of wastewater
annually, respectively, and this is discharged, inter alia, into the River Ravi,
irrigation canals and vegetable farms.
D. Adverse effects to the environment resulting from wastewater discharge
into the River Ravi
1. The discharge of untreated municipal and industrial effluents into the River
Ravi, at the scale at which it is being done today and in the future, is having and
will have adverse environment effects on the water quality of the River Ravi, the
natural environment surrounding the reach area, flora, fauna, birds, animals,
marine and other and wildlife dependent upon and affected by the untreated
dumping of sewage into the River Ravi.
2. The Mehran University Assessment states that, Due to heavy load of untreated
effluents, River [Ravi] is acting as a wastewater carrier and concludes as under:

That Ravi is highly polluted and unfit for recreational purposes. The
concentration of investigated parameters like BOD5, DO, COD, total
suspended solids, phosphates, chlorides, sodium, TKN, nitrates, nitrites, oil and
grease and total coliform were found very high when compared to the
environmental standards. It was observed that the DO concentration decreases
due to continuous mixing of wastewater along the length of the river. The
effluent characteristics of Lahore city was also analysed from the main city
outfall sewers and compared with NEQs. Unfortunately, the selected
parameters are at least four times above allowable standards. The oil and
grease content was found increasing continuously towards the downstream.
These concentrations increase simultaneously underneath the main city outfalls
due to mixing of untreated effluent in large quantity.
3. In a paper titled Water Quality Assessment of River Ravi delivered at the 71 st
Annual Session Proceedings of the Pakistan Engineering Congress in 2011 (the
PEC Assessment, Annex G), the water quality in the River Ravi at four sites,
namely Ravi Siphon, Shadara Bridge, Mohlanwal village and the confluence point
of the Hudiara and Sattukatla Drains was assessed during 2009-2010. The PEC
Assessment concludes, inter alia, that although the pH, total dissolved solids, Cl, F,
NO3, Cu and Zn levels were found within permissible limits of the Pakistan
Environment Protection Agency (the Pak-EPA), E. Coli were found in all water
samples and turbidity, Pb and Ni (except at Ravi Siphon) levels exceeded
permissible limits for drinking water and practices for sustainable management of
surface water contamination. The PEC Assessment also states The discharge of
untreated and industrial effluents has converted the River Ravi into a sludge
carrier.
4. In a paper titled Metal Toxicity of Water in a Stretch of River Ravi from
Shahdera to Balloki Headworks (the Metal Toxicity Report) published in the
Pakistan Journal of Agricultural Sciences (Annex H), it is concluded, inter alia,
that Heavy metal loads throughout the stretch of River Ravi, under investigation,
was significantly higher than life standards set by the EPA (Pakistan, USA).
14. The WASA Report states (at Chapter 3.2) that In Lahore City, water quality
monitoring for river (River Ravi) and drainage channels is conducted once a year
by [the Respondent No. 3, the Environment Protection Agency, Punjab (the EPA,
Punjab)] at 19 points . . . According to the monitoring result of year 2008 . . .
significantly high contamination is observed in Mehmood Booti Drain, Furakhabad
Drain, Main Outfall Drain and Babu Sabu Drain with BOD values of 1,210 mg/l,
382 mg/l, 412 mg/l and 312 mg/l respectively. As for the mains stream of the
River Ravi, Shahdara Lahore, nearly railway bridge is the worst-affected point
with BOD value of 102 mg/l. The second worst is Chung Lahore after mixing with
Babu Sabu Drain followed by Maraka Lahore after mixing with the Hudiara Drain
with BOD values of 88 and 48 mg/l.
8

15. A paper titled River Ravi Potentials, Pollutions and Solutions published in
2012 by the Sustainable Development Study Centre at Government College
University Lahore (the GCU Paper, Annex I), highlights the environmental
effects of the untreated discharge of wastewater into the River Ravi as under:
Pollution Threats
The main sources of pollution in the River Ravi from Lahore Siphon to Baloki
head works are urban, agricultural and industrial waste waters discharged from
various industries. Substantial deterioration of river water and bad sediments is
done by Mehmood Booti, Shad Bagh, Farrukhabad and Munshi Hospital, Taj
company, Bukkar Mandi and Hadiara drains. The means metal level in
sediments (Cu, Mn, Zn, Cr, Ni and Pb) are generally higher than the mean
levels in water.
The metal concentrations in the sediments ranged from 0.99 to 3.17 for Cd,
4.60 to 57.40 for Cr, 2.22 to 18.53 for Co and 3.38 to 159 micro gram for Cu
on dry matter basis. Copper is extremely toxic for aquatic animals as its
concentration increases in water. Planktons show a great tendency to
accumulate metals in their bodies from water and sediments in aquatic
ecosystem. Phytoplanktons acts as bioindicators of metals in aquatic
ecosystems because they eliminate metals from the environment, accumulate
and store them for a longer period of time. Trace elements like Cd, Cu, Pb etc
can be toxic to aquatic biota as planktons have the ability to concentrate heavy
metals from their aquatic environment. River Ravi is now a menace for the
Lahore city as it has turned into sludge. More than 1500 cusecs of waste water
is being disposed off into it without treatment. Low flows in the river have
increased the pollutant concentration to a dangerous level difficult to sustain
aquatic life. To mitigage environmental effects of waste water either we have
to treat waste water before disposal or we have to dilute the water
concentrations by releasing more fresh water into the river. About 2000 cusecs
of fresh water from Marala Link Canal is required to maintain dissolved
oxygen level of 4 to 5mg/l. under the existing river flow and waste water load.
About 1307.08 tons of hazardous and untreated waste is going into the Ravi on
daily basis. The load from waste water from district Lahore is 728.75 tons per
day. About 1810 cusecs municipal sewage and toxic industrial effluents are
being thrown into river by ten sewage drains and pumping stations.
Toxic waste from ten drains, five major industrial sewage carrying drains are
all contributing towards the extinction of many native fish species besides
posing a serious threat to the remaining aquatic life and underground water
level.
Effect on food chain
The problem of environmental pollution due to toxic metals has begun to cause
concern now in most areas where water for irrigation is becoming scarce and
9

people are using the drain water for irrigation. The toxic heavy metals entering
the ecosystem may lead to geo accumulation, bioaccumulation and
biomagnifications. Heavy metals like Fe, Cu, Zn, No and other trace elements
are important for proper functioning of biological systems and their deficiency
or excess could lead to a number of disorders. Food chain contamination by
heavy metals has become a burning issue in recent years because of their
potential accumulation in bio stems through contaminated water, soil and air.
Ground water contamination
The use of polluted water increases the value of conductivity, total dissolved
solids, sodium absorption ratio and residual sodium carbonate in ground water
and exceeds the acceptable limits of National Environmental Quality
Standards. The main reason for the use of this polluted water is the non
availability of enough funding to treat polluted water before using for irrigation
purposes. As a result it degrades the environment as well as the cause of water
borne diseases. All polluted water contains plant nutrients and also organic
matter other than high concentration of soluble salts and heavy metals.
Harmful effects can last for several years due to extensive irrigation of polluted
water so it can not only leach down the soil but also has a negative effect on
ground water quality. In Pakistan more than eighty percent of the population
uses ground water for drinking purposes.
(Emphasis added)
16. The Fifth Monitoring Report of the National Water Quality Monitoring
Program of the Pakistan Council of Research in Water Resources published in
2007 (the PCRWR Report, Annex J) documents the water quality situation
throughout Pakistan and is based on an analysis of water quality from 357 samples
of water taken from 23 major cities, 8 rivers, 6 dams, 4 lakes, 2 canals and 1
reservoir. The report finds, inter alia, that none of the water sources tested in
Bahawalpur, Kasur, Multan, Lahore, Sheikhupura and Ziarat were safe for drinking
purposes. In relation to the health effects of polluted water resources, the PCRWR
Report states: It is estimated that around 40% of all reported diseases and death
are attributed to poor water quality in the country. Moreover, the leading cause of
death in infants and children up to 10 years of age, is that of contaminated water.
The mortality rate of 136 per 1,000 live births due to diarrhoea is reported, while
every fifth citizen suffers from illness caused by unsafe water.
17. The health effects of polluted drinking water on the people of Pakistan are also
documented in the World Banks Pakistan Strategic Country Environmental
Assessment of 2006 (the World Bank Assessment, Annex K). The World Bank
report states that A study conducted by UNICEF found that 20-40 percent of
hospital beds are occupied by patients suffering from water-related disease such as
typhoid, cholera, dysentery and hepatitis, which are responsible for one third of all
10

deaths. Under the heading The Health Effects of Water Quality, Sanitation and
Hygiene, at paragraph 29, the World Bank Report states:
The links between water quality and health risks are well established.
Inadequate quantity and quality of potable water and poor sanitation facilities
and practices are associated with a host of illnesses such as diarrhoea, typhoid,
intestinal worms and hepatitis. Limited by data problems this study focuses on
the two most common water related illnesses, diarrhoea and typhoid, and
estimated that more than 1.6 [Disability Adjusted Life Years (DALYs] a
common unit to measure the years of healthy life lost to illness and premature
mortality] are lost annually as a result of death and disease due to diarrhoea,
and almost 900,000 as a result of typhoid. Diarrhoeal and typhoid mortality in
children also accounts for the bulk of the losses, reflecting the vulnerability of
children to these diseases. From a policy perspective the more informative
estimate is presented in Figure 2.3 which summarizes the costs of water related
mortality and morbidity. The total health costs are estimated at Rs. 114 billion,
or approximately 1.81 percent of GDP. Striking are the high proportion of
costs due to premature child deaths, followed by the mortality impacts of
typhoid in the older population.

18. Relying on the reports cited above, it is submitted that the pollution in the
River Ravi caused by the discharge of untreated wastewater has resulted in the
killing of species of fish and bird life migrating to other areas. The pollution in the
River Ravi is also affecting small invertebrates, micro fauna and flora.
19. Relying on the reports cited above, it is further submitted that pollution in the
River Ravi caused by the discharge of untreated wastewater has affected the water
quality of the river as well as the groundwater. This is having an effect on human
and animal life and health as well as the quality of the agricultural produce being
harvested with wastewater. The pollution of the River Ravi is a major
environmental catastrophe.
11

20. The wholesale discharge of untreated domestic, industrial and agricultural


effluent and wastewater into the River Ravi in the reach areas is an environment
catastrophe that is a violation of the Fundamental Right to life and a clean and
healthy environment and access to unpolluted water, a violation of the PEPA and
rules and regulations framed thereunder, abdication by statutory authorities of their
functions and responsibilities as well a breach of their fiduciary responsibilities
under the Doctrine of Public Trust and merit being taken notice of by this
Honourable Court in the public interest for the following, inter alia:
E. Grounds
1. Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (the
Constitution) grants individuals the right to be dealt with in accordance with law.
In particular, it states that no action detrimental to the life liberty, body, reputation
or property of any person shall be taken except in accordance with law. The
discharge of untreated wastewater into the River Ravi and the adverse environment
effects it has is detrimental to the life, body and property of all those persons who
consume the waters of the River Ravi and is an action in that violates the
Constitutional right granted by Article 4. Reliance is placed on Pakistan Chest
Foundation vs. Government of Pakistan, 1997 CLC 1379 wherein the Lahore High
Court held that violations of Article 4 of the Constitution are amenable to writ
jurisdiction.
2. In Shehla Zia vs. WAPDA, PLD 1994 Supreme Court 693, the Supreme Court
of Pakistan recognized the Fundamental Right of life protected in the Constitution
extends to every person the right to enjoy a clean and healthy environment. The
pollution in the River Ravi as a result of the discharge of untreated wastewater is
harmful to humans, animals, flora and fauna and is a violation of the Fundamental
Right of life and to a clean and healthy environment.
3. In addition, the Supreme Court of Pakistan, in Shehla Zia vs. WAPDA (supra),
introduced the Precautionary Principle of environmental law into Pakistani
jurisprudence by holding The rule of precautionary policy is to first consider the
welfare and safety of the human beings and the environment and then to pick up a
policy and execute the plan which is more suited to obviate the possible danger or
make such alternate precautionary measures which may ensure safety. To stick to a
particular plan on the basis of old studies or inconclusive research cannot be said to
be a policy of prudence and precaution. The Precautionary Principle is Principle
No. 15 of the Rio Declaration on Environment and Development (the Rio
Declaration) produced at the 1992 United Nations Conference on Environment

12

and Development. Pakistan is a signatory to the Rio Declaration, Principle 15 of


which reads as follows:
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used
as a reason for postponing cost-effective measures to prevent environmental
degradation.
The attention of this Honourable Court is drawn to the Precautionary Principle and
it is submitted that it is attracted to the circumstances of the present case.
4. In General Secretary, West Pakistan Salt Mines Labour Union (CBA) Khewra,
Jhelum vs. The Director, Industries and Mineral Development, Punjab, Lahore,
1994 SCMR 2061, the Supreme Court of Pakistan held that The right to have
unpolluted water is the right to every person wherever he lives. This dictum is
rephrased and it is asserted that access to unpolluted water supplies is part of the
judicially recognized Fundamental Right to life and a clean and healthy
environment. The pollution in the River Ravi as a result of the discharge of
untreated waste has adversely affected both surface and groundwater quality and is
a hazard to human, animal, fish and plant life and is, therefore, a violation of the
Fundamental Right to access to unpolluted water.
5. In Suo Motu Case No. 25 of 2009 (Cutting of Trees for Canal Widening
Project Lahore), the Supreme Court of Pakistan affirmed the concept of the
Doctrine of Public Trust. The Doctrine of Public Trust enjoins that public
resources, especially public natural resources, be regulated for the benefit of the
public and not for private interests. Reliance is placed Sindh Institute of Urology
and Transplantation vs. Nestle Milkpak Limited, 2005 CLC 424 (Karachi),
Muhammad Tariq Abbasi vs. Defence Housing Authority, 2007 CLC 1358
(Karachi) and Ghani Corporation vs. Government of NWFP, PLD 2011 Peshawar
1. The waters of the River Ravi within the reach area and before they are diverted
to irrigation works are a public resource that is protected under the Doctrine of
Public Trust and is required to be regulated in the public interest. In this regard, it
is submitted:
1) Prior to the Constitution (Eighteenth Amendment) Act, 2010 (the 18 th
Amendment), the subjects of environment pollution and ecology were included
in the Concurrent Legislative List (the Concurrent List). Pursuant to the
Constitution (Eighteenth Amendment) Act, 2010, the Concurrent Legislative List
of the Constitution has been abolished and, as a result, the subjects of
environment pollution and ecology are now exclusively the legislative domain of
the Punjab Provincial Assembly. It is submitted that the 18th Amendment adds
13

new dimensions to the responsibility and role of the Government of Punjab as


guardian of the natural environment and, inter alia, of the waters of the River Ravi.
2) The 18th Amendment does not, ipso facto, repeal or render ineffective the
provisions of PEPA.
Article 270AA(6) of the Constitution states that
notwithstanding the omission of the Concurrent List by the 18 th, all laws with
respect to any of the matters enumerated in the said List (including Ordinances,
Orders, rules, bye-laws, regulations and notifications and other legal instruments
having the force of law) in force in Pakistan or any part thereof, or having extraterritorial operation, immediately before the commencement of the 18th
Amendment, shall continue to remain in force until altered, repealed or amended
be the competent authority. Reliance is placed on Air League of PIAC Employees
vs. Federation of Pakistan, 2011 SCMR 1254. Thus PEPA will remain in force in
the province of Punjab till such time as it is amended or repealed by the Provincial
Assembly.
3) The preamble of the Canal & Drainage Act, 1873 (the Canal & Drainage
Act) states that the Provincial Government is entitled to use and control for
public purposes the water of all rivers and streams flowing in natural channels, and
of all lakes, sub-soil water and other natural collection of still water (emphasis
added). It is submitted that the trustee, under the Doctrine of Public Trust, of the
surface and ground water of the River Ravi in the reach area is the Government of
Punjab, impleaded in this petition through the Secretary, Irrigation and Power
Department. It is submitted that the fiduciary duties of the Government of Punjab
in this regard include maintaining adequate water quality and ensuring access to
unpolluted water in the River Ravi.
4) The power, function and responsibility to develop, operate and maintain a
sewerage and drainage system, particularly the disposal stations mentioned above
that discharge untreated wastewater into the River Ravi in the reach area, has been
assigned by the Government of Punjab, through legislation, to WASA in terms of
Section 6(2)(iii) of the LDA Act.
5) At no point in its entire existence has WASA ever set up a waste treatment
plant within in jurisdiction and, at present, the city of Lahore has no sewage
treatment facilities whatsoever for municipal, industrial or agricultural waste being
discharged into the River Ravi.
6) The failure/omission of WASA to set up waste treatment facilities to dispose of
wastewater before its discharge into the River Ravi and of the Government of
Punjab not to ensure that the same was done is a violation of the fiduciary
responsibility entrusted to the Government of Punjab by the Doctrine of Public
14

Trust. It is also an abdication by WASA of its responsibility as a Government


Agency.
7) A plea by the Government of Punjab or WASA that a shortage of funds or lack
of resources has impeded the fulfilment of their legal obligation to ensure the
protection of Fundamental Rights, especially to a clean and healthy environment
and to unpolluted water, has been held to violative of the Constitution and gives
rise to criminal liability. Reliance is placed on State vs. MD WASA, 2000 CLC
471 (Lahore).
6. The discharge of effluent or waste in an amount, concentration or level in
excess of prescribed National Environmental Quality Standards (NEQS) into the
River Ravi is a contravention of PEPA and of rules and regulations framed
thereunder. In this regard, it is submitted:
1) PEPA has been enacted in pursuance of the States obligation to ensure a clean
and healthy environment and thus violation or non-application of PEPA and rules
and regulations framed thereunder by the Government of Punjab, WASA or the
EPA, Punjab are a violation of the Constitutionally guaranteed Fundamental Right
to life and a clean and healthy environment.
2) Section 11 of PEPA prohibits certain discharges and emissions as under:
(1) Subject to the provisions of this Act and the rules and regulations made
thereunder no person shall discharge or emit or allow the discharge or emission
of any effluent or waste or air pollution or noise in any amount, concentration
or level which is in excess o the National Environmental Quality Standards or,
where applicable, the standards established under sub-clause (1) of clause (g)
of sub-section (1) of Section 6.
3) Failure or contravention with the provisions of Section 11 of PEPA are
punishable, under Section 17 PEPA, inter alia, with a fine which may extend up to
Rs. 1 million. Under Section 19 PEPA, the heads or other officer of a Government
agency, local authority or local council shall be deemed guilty of contraventions of
PEPA committed by that Government agency, local authority or local council.
4) Vide SRO No. 549 (I)/2000(Annex L/1) issued on 8 August 2000 by the
Ministry of Environment, Local Government and Rural Development, the PakEPA, with the prior approval of the Pakistan Environmental Protection Council,
was pleased to issue updated NEQS for municipal and liquid industrial effluents
(the prescribed NEQS).

15

5) Under Section 6(1)(f) PEPA, ensuring the enforcement of NEQs is one of the
functions of the Pak-EPA. Vide SRO 1253 (I)/98 issued on 28 October 1998
(Annex L/2), the Federal Government delegated this function of the Pak-EPA, to
the extent of the province of Punjab, to the Respondent No. 1, the Government of
Punjab and it is now performed by the EPA, Punjab. In addition, Section 16 PEPA
authorizes the EPA, Punjab to take necessary action against any person responsible
for the discharge of any effluent, waste or pollutant or of the disposal of waste that
occurs in violation of PEPA or rules and regulations framed thereunder. It is also
pointed out that the Punjab Provincial Assembly, on 7 March 2012, passed the
Punjab Environment Protection (Amendment) Bill, 2011 that seeks to amend
PEPA post-18th Amendment. As of the time of the filing of this petition, this Bill
had not received the Assent of the Governor of Punjab.
6) The Assessment, the Mehran University Assessment, the PEC Assessment, the
WASA Report, the Metal Toxicity Report and the WWF Report all find that, on
different counts and for differing parameters, the wastewater discharged into the
River Ravi is in excess of prescribed NEQS.
7) The grounds raised in paragraph E(1) are rephrased and it is submitted that,
under Article 4 of the Constitution, every person has the Constitutional Right to
due process and to the benefit of the protections envisaged by laws. PEPA, by
prohibiting the discharge of waste in the manner described above, it providing the
protection of law against pollution and the discharge of waste into rivers. The
Petitioner asserts his right to the protection of PEPA.
8) The failure by the EPA, Punjab to take action under PEPA against those
persons and/or industries that are discharging effluent into sewers, water courses
and surface drains etc., including WASA, as this wastewater is eventually all
discharged, untreated, into the River Ravi, is an abdication of responsibility by a
Government Agency and a non-application of PEPA to the present circumstances.
9) It is further submitted that it is the responsibility of industry to treat their trade
wastes in a way that does not deteriorate the quality of receiving waters. In this
regard, it is submitted:
a. The Polluter Pays Principle was recognized as Principle No. 16 of the
Rio Declaration and enjoins upon national authorities to endeavour to
promote the internalization of environmental costs and that a polluter
should, in principle, bear the cost of pollution. When read in context of the
health effects of polluted water, the Polluter Pays Principle, it is submitted,
stipulates that industry, profit and development must not come at the price
of the health and well-being of the general public and that levying and
16

collecting environmental costs is a mechanism whereby polluters may


compensate for any damage caused to the environment by their actions.
b. In furtherance of the Polluter Pays Principle, the Federal Government was
pleased to make the National Environmental Quality Standards (SelfMonitoring and Reporting by Industry) Rules, 2001 (the SMART Rules,
Annex M/1) and the Pollution Charge for Industry (Calculation and
Collection) Rules, 2001 (the Pollution Charge Rules, Annex M/2).
These SMART Rules provide a mechanism whereby industrial units may
voluntarily submit regular Environmental Monitoring Reports of, inter alia,
liquid effluents to the provincial Environment Protection Agencies. The
Pollution Charge Rules require industrial units to pay a pollution charge to
be calculated and reported by the units themselves. Read together with the
provisions of PEPA, the SMART and Pollution Charge Rules are
manifestations of the Polluter Pays Principle.
c. The purpose of the SMART and Pollution Charge Rules are a means
whereby industrial units can measure and internalize the environmental
costs of their industrial processes. They are meant to be business friendly.
However, no real action has ever been taken in furtherance of these Rules
and industry in the reach area continues to discharge industrial effluent
without bearing the real environmental costs of doing so.
7. Although PEPA contains a remedy of complaint and hearing before an
Environment Tribunal, the Petitioner brings this matter to this Honourable Court,
in its Constitutional jurisdiction, as no adequate or efficacious alternative remedy is
available in the circumstances. In this regard, it is submitted:
1) The untreated discharge of wastewater into the River Ravi is an environment
catastrophe that will continue to have adverse affects for times to come. The
significance of the environmental harm and the degree to which it represents a
violation of the Fundamental Right to a clean and healthy environment make this
matter amenable to remedy under writ jurisdiction.
2) By taking no steps towards treating the wastewater discharged into the River
Ravi in the reach areas, the Government of Punjab and EPA, Punjab have
demonstrated their abdication of responsibility to enforce the provisions of PEPA
to protect the Fundamental Right to a clean and healthy environment. Therefore,
neither the Government of Punjab or EPA, Punjab are appropriate forums before
which the Petitioners can make complaints of the violations of PEPA.

17

3) In any event, the forum of the Environmental Tribunal, Lahore is unavailable


to the Petitioner as its previous Chairperson retired last year and, due to the
Constitution (Eighteenth Amendment) Act, 2010, the appointment of a new
Chairperson is still awaited. After the assent of the Governor of Punjab to the
Punjab Environment Protection (Amendment) Bill, 2011, the power to appoint a
Chairperson for the Environment Protection Tribunal, Lahore shall vest in the
Government of Punjab. It is pointed out that there are hundreds of cases pending
before the defunct Environment Tribunal, Lahore.
8. The Superior Courts of Pakistan and in other jurisdictions have consistently
moulded relief to provide justice and to ensure the enforcement of the Fundamental
Right to life and a clean and healthy environment in public interest environment
litigations. Some examples of extraordinary relief shaped in public interest
environment litigation are as under:
a. In General Secretary, West Pakistan Salt Mines Labour Union (CBA)
Khewra, Jhelum vs. Directorate, Industries and Mineral Development, Punjab,
(supra), City District Government vs. Muhammad Yousaf (ICA No. 798 of
2002, Lahore) and Syed Mansoor Ali Shah vs. Government of Punjab (WP
No. 6927 of 1997, Lahore), the Courts appointed Commissions to investigate
facts regarding the public interest cases and to make recommendations;
b. In Syed Mansoor Ali Shah vs. Government of Punjab (supra), the Lahore
High Court provided a mechanism whereby a Standing Committee of the
Commission it had appointed was vested with the responsibility of enforcing
the recommendations of the Committee and allowing it to approach the Court
in the event it felt that the recommendations were not being followed;
c. In M.C. Mehta vs. Union of India, AIR 1988 Supreme Court 1115, the
Supreme Court of India held (at paragraph 24) that it was the duty of the
Central Government to direct all educational institutions to teach at least one
hour a week lessons relating to the protection and improvement of the natural
environment including forests, lakes, rivers and wildlife. . .
d. In re: News Item dated 18th July 1994 (Writ Petition (Civil) No. 725 of
1994), the Supreme Court of India ordered the development of an Integrated
Action Plan setting out the best possible manner in which the minimum
desired water quality was to be achieved in the Delhi stretch of the the River
Yumna.
In light of the above, it is prayed this Honourable Court be pleased to pass the
following orders:
18

1. Declare that access to clean and polluted water is part of the Fundamental
Right to a clean and healthy environment and is the right of every person wherever
they may be;
2. Direct the Government of Punjab and the WASA to fulfil their fiduciary
responsibilities under the Doctrine of Public Trust and to provide sewage treatment
facilities that will bring the wastewater discharged into the River Ravi in the reach
area within prescribed NEQS;
3. Direct the EPA, Punjab to carry out its responsibility under PEPA and to take
strict action against such persons or industry who are discharging effluent into
sewers and drains in excess of prescribed NEQS;
4. Appoint such Commissions, as necessary, to investigate matters pertaining to
the circumstances of the case;
5. Provide for a mechanism of continuing mandamus or rolling review so as
to ensure compliance of its orders;
6. Direct the EPA, Punjab to take action under PEPA against those persons,
industry or government official found in violation of PEPA or in wilful default of
responsibilities and obligations created thereby.
7. Any such order as may be just and equitable given the facts and circumstances
of the case.

Petitioners
Through
Ahmad Rafay Alam
Advocate High Court
1 Bawa Park Park, Upper Mall
Lahore
PLH 18857

Filed on: _______ April 2012


Note:
List of Books:
19

(1) Pakistan Environment Protection Act, 1997;


Certified that:
(1) The Writ Petition has arisen from a violation of law on part of the Respondents;
(2) There is no other alternate or efficacious remedy available to the Petitioner for
the relief claimed herein; and
(3) As per instructions from the client, this is the first petition on the subject on
behalf of the Petitioner.

Counsel

20

BEFORE THE LAHORE HIGH COURT AT LAHORE

Writ Petition No. ___________ of 2012


In re:
The Public Interest Litigation Association of Pakistan and others
Vs.
Government of Punjab and another
Writ Petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973
Affidavit of Ahmad Rafay Alam, General Secretary, Public Interest
Litigation Association of Pakistan, Suite No. 204, Marine Pride, Plot No.
BC 2, KDA Scheme 5, Clifton, Karachi
Respectfully Submitted:
That I, the above named deponent, do hereby solemnly swear and affirm that the
contents of the above writ petition are true and correct to the best of my knowledge
and belief and that nothing has been concealed therein.

Deponent

Verification:
Verified on oath on this _______ of April 2012 that
the contents of the above affidavit are true and
correct to the best of my knowledge and belief and
that nothing has been concealed therein.

Deponent

21

BEFORE THE LAHORE HIGH COURT AT LAHORE

Writ Petition No. ___________ of 2012


In re:
The Public Interest Litigation Association of Pakistan and others
Vs.
Government of Punjab and another
Writ Petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973
Affidavit of Ahmad Rafay Alam, Vice President (Punjab), Pakistan
Environmental Lawyers Association, PAAF Building, 7-D Kashmir
Egerton Road, Lahore
Respectfully Submitted:
That I, the above named deponent, do hereby solemnly swear and affirm that the
contents of the above writ petition are true and correct to the best of my knowledge
and belief and that nothing has been concealed therein.

Deponent

Verification:
Verified on oath on this _______ of April 2012 that
the contents of the above affidavit are true and
correct to the best of my knowledge and belief and
that nothing has been concealed therein.

Deponent

22

BEFORE THE LAHORE HIGH COURT AT LAHORE

Writ Petition No. ___________ of 2012


In re:
The Public Interest Litigation Association of Pakistan and others
Vs.
Government of Punjab and another
Writ Petition under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973
Affidavit of Kamil Khan Mumtaz, President, Lahore Conservation
Society, 325 Jehanzeb Bloc, Iqbal Town, Lahore
Respectfully Submitted:
That I, the above named deponent, do hereby solemnly swear and affirm that the
contents of the above writ petition are true and correct to the best of my knowledge
and belief and that nothing has been concealed therein.

Deponent

Verification:
Verified on oath on this _______ of April 2012 that
the contents of the above affidavit are true and
correct to the best of my knowledge and belief and
that nothing has been concealed therein.

Deponent

23