1994 SCMR 2061




Per Saleem Akhtar, J.

(a) Constitution of Pakistan (1973), Article 184(3)

This petition under Article 184(3) of the Constitution was filed complaining against the pollution of water supply source to the residents and the water supply was arranged by Pakistan Mineral Development Corporation (PMDC) through a pipeline connecting the spring and taking water to the reservoir. It has been alleged that although water catchment area was reserved and no lease for coal mines was to be granted, the authorities concerned particularly the Director, Industries and Mineral Development, Government of the PUnjab, granted lease and reduced the water catchment area. The result was that the poisonoous water coming out of the mines pollutes the water reservoir and is a health hazard. It was further alleged that the allotment and grant of lease to the miners in the water catchment area is illegal and mala fide. It has been prayed that such leases may be cancelled and the residents may be saved from the health hazard created by the miners and the authorities concerned. The case was processed in the office and prima facie it was established that if the operation of coal mines is granted in the water catchment area, it is likely to pollute the water resources, which may be contaminated with the water flowing out of the mine holes during operation. Consequently, cognizance was taken under Article 184(3) of the Constitution. [pp. 2064, 2065]

(b) Constitution of Pakistan (1973), Article 185(3)

This (report) gives a clear picture of geological, geographical and historical background of the present controversy. The claim of the petitioners though formed in general terms basically seeks enforcement of the right of the residents to have clean and unpolluted water. Their apprehension is that in case the miners are allowed to continue their activities, which are extended in the water catchment area, the water source, reservoir and the pipelines will get contaminated. [p. 2068] A

However, the irony of situation is that with the passage of time, population has grown and number of mining leases in the catchment areas has increased, but the grown and number of mining leases in the catchment areas has increased, but the water source remains the same and water catchment area has been reduced. The mining operations in this area pose serious danger of cracks, punctures and leakage in the rocks and ravines which may lead to contamination or drying up of the springs. These are well-known and acknowledged dangers to the water source and have been mentioned in the report submitted by the Committee. In such a situation when the water catchment area seems to have been reduced to its minimum, the mining activities have completely surrounded the water catchment area and are extending nearer to the source spring, it seems necessary to immediately take measures to protect the water sources and springs. It is fortunate that so far no major mishap has occurred, but the more mining activities increase and the catchment area is reduced, the danger of bursting, leaking and contamination also increases. In this situation, if the petitioners complain, are they not justified to seek protection of their right to have clean water free from contamination and pollution. Article 9 of the Constitution provides that “no person shall be deprived of life or liberty save in accordance with law”. The word ‘life’ has to be given an extended meaning and cannot be restricted to vegetative life or mere animal existence. In hilly areas where access to water is scarce, difficult or limited, the right to have water free from pollution and contamination is a right to life itself. This does not mean that persons residing in other parts of the country where water is available in abundance do not have such right. The right to have unpolluted water is the right of every person wherever he lives. Recently in Shehla Zia v. WAPDA (H.R. Case No. 15-K/1992=PLD 1994 SC 693) while dealing with Article 9, one of us (Saleem Akhtar, J.) observed as follows :—

“The word ‘life’ in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Under our Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to ‘life’ under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man clothing, shelter, education, health care, clean atmosphere and unpolluted environment.”

It was further observed :—

“In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were bring thrown in River Ganges whereby it was completely polluted, the tanneries were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affected a large number of people, the Court in exercising of its jurisdiction under Article 184(3) of the Constitution may grant relief to the extent of stopping the functioning of factories which create pollution and environmental degradation.” [p. 2069, 2070] B, C & D

The petitioners demand here is the barest minimum. Water has been considered source of life in this world. Without water there can be no life. History bears testimony that due to famine and scarcity of water, civilizations have vanished, green lands have turned into deserts and arid zones completely destroying the life not only of human being, but animal life as well. therefore, water, which is necessary for existence of life, if polluted, or contaminated, will cause serious threat to human existence. In such a situation, persons exposed to such danger are entitled to claim that their fundamental right of life guaranteed to them by the constitution has been violated and there is a case for enforcement of fundamental rights by giving directions or passing any orders to restrain the parties and authorities from committing such violation or to perform their statutory duties. In our view the petition is maintainable. [p. 2071] E

The next contention of the learned counsel is that the question whether mining activity could possibly pollute or diminish the water supply, is a question of fact and two authorities have recorded finding on it, therefore, such question cannot be raised before and determined by this Court. In dealing with this contention, one has to keep in mind the scope and extent of the jurisdiction exercised by this Court under Article 184(3) under which, in case where question of public importance with reference to the enforcement of fundamental rights is involved, direction or order of the nature as mentioned in Article 199 can be given or passed. Article 184(3) reads as follows:—

“184. (1) & (2)……………….

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

It is well-settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This court has vast power under Article 184(3) to investigate into questions of fact as well independently by recording evidence, appointing commission or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has the power to make order of the nature mentioned in Article 199. This is a guideline for exercise of jurisdiction under this provision without restrictions and restraints imposed on the High Court. The fact that the order or direction should be in the nature mentioned in Article 199, enlarges the scope of granting relief which may not be exactly as provided under Article 199, but may be similar to it or in the same nature and the relief so granted by this Court can be moulded according to the facts and circumstances of each case. While raising this contention the learned counsel has referred to the order passed by the Secretary, Government of the Punjab, referred to above in appeal from the order of the Licensing Authority. The appellate authority has confirmed the order of the Licensing Authority with certain restrictions and safeguards provided in it. The location of mine 27A is not disputed being completely adjacent to the present water catchment area. Another salient point which emerges is that it is within 50 meters from the boundary within the lease area of P.C.C. From the plans produced, it is clear that the mouth of the mine is right on the boundary line of the catchment area which is a reduced area to the barest minimum. If it could not have posed any danger to the water source, why it was found necessary by both the authorities to impose a condition that a retaining wall be constructed by P.C.C. This by itself admits that the very existence of mine 27A and its mouth in the prohibited area does pose a serious danger and treat to the water catchment area and reservoir, P.P.C. has not filed its lease deed. However, M/s A. Majeed & Co. have filed a lease deed and the standard from of lease is the same in almost every case. Clause (12) of the lease deed prohibits mining operation or workings to be carried on in or under the said land at any point within a distance of 50 yards from the boundaries of the said land except with the consent in writing of the Licensing Authority. Thus, without the consent in writing of the Licensing Authority P.C.C. could not have carried out mining work within 50 meters from the boundary. It is an admitted position as is obvious from the order of the Secretary, government of the Punjab, Industries and Mineral Development that P.C.C. is operating and working within 50 meters from the boundary. It is very close to the boundary of the catchment area. The object of keeping distance of 50 metres from the boundary wall is to provide safeguard to the adjoining land. There is nothing on record to show that the authorities concerned have at any time applied their mind or passed any specific order in writing permitting P.C.C. to carry out operation or mining work within 50 metres from the boundary. The general permission granted and the order of the Leasing Authority do not refer to such special permission as required by the lease deed nor can the permission to carry out mining operation amount to such a permission. Such a permission should be specific in nature with reference to the distance of 50 metres from the boundary. General permission granted and relied upon can be of no avail to P.C.C. It is therefore clearly established that P.C.C. is carrying on mining work adjacent to the catchment area and within the radius of 50 metres from the boundary. It is strange that the respondent did not object to P.C.C. to open the mine mouth adjacent to the water catchment area. As the lease in this prohibited area had been granted, it was the duty of the respondent to ensure that the leassee does not open the mine mouth so near the boundary. Conscious of the fact that P.C.C.’s mining operation would cause pollution, the Leasing Authority ordered from joint inspection by PMDC and P.C.C. to ensure that no further pollution is caused. But this arrangement did not work. It has been contended that as P.C.C.’s mine is located about one thousand yards downstream from the water tank/reservoir, which is approximately at a height of 200 ft. from the bed of the stream, there can be no possibility of causing pollution. This contention completely overlooks the fact that about 300/400 yards from the mine mouth of P.C.C. there exists an open reservoir built by PMDC in which overflown water from the big water reservoir is collected and distributed to the residents through a pipeline. This small reservoir is polluted by the mine debris and poisonous water as stated in the inspection report of the Mineral Development Officer prepared in January 1992. It concludes as follows :—

“It is in the fitness of things and also in the interest of public that the lease firm (appellant) may be advised to set up a device which should protect the falling debris into the stream and they may also be allowed to work in the said mine by giving such assurance. Whereas M/s Pakistan Mineral Development Corporation may also be advised to take further steps for protection of water pipe line from main water tank and abandon the small water reservoir as it has a little area to settle down the heavior material which is mixed in the stream channel.”

This report has been relied upon by the concerned authorities, but they do not seem to have taken any effective steps to stop pollution of stream and small reservoir except that three conditions were imposed which have remained ineffective.

In view of the above discussion:—

(i) P.C.C. is directed to shift within four months, the location of the mouth of mine No. 27A at a safe distance from the stream and small reservoir in such a manner that they are not polluted by mine debris, carbonished material and water spilled out from the mines to the satisfaction of the Commission consisting of the following members :–

(a) Dr. Parvez Hasan, Advocate Lahore (Chairman)

(b) Dr. Tariq Banuri.

(c) Director, Industries and Mineral Development, Lahore.

(d) A member nominated by PMDC.

(e) A member co-opted by the aforestated members of the Commission.

The Commission shall have power of inspection, recording evidence, examining witnesses including the powers as provided by Order XXVI of the Civil Procedure Code. If, on the report of the Commission, it transpires that shifting of the mine mouth is not possible, then the case shall be placed before the Court for further consideration including the question whether the operation of mine No. 27A should be completely stopped;

(ii) PMDC is directed to instal a second pipeline connecting the top level reservoir;

(iii) PMDC will enlarge the top level water reservoir and construct wall of reservoir cost of which will be shared equally by PMDC and P.C.C.;

(iv) P.C.C. and all the miners operating adjacent to the water catchment area shall take such measures to the satisfaction of the Commission, which may prevent pollution of the water source reservoir, stream beds and water catchment area;

(v) respondent No. 1 and all authorities empowered and authorised to grant, renew or extend the mining lease or licence, are ordered :—

(a) not to grant any fresh lease/licence/permission to carry out mining work in the area which prior to 1981 was water catchment area;

(b) Not to renew or extend the existing lease/licence of the miners mentioned in the Schedule to the judgment without prior permission of this Court;

(vi) PMDC and P.C.C. shall bear the cost of the Commission expenses and initially Rs. 10,000 shall be deposited by each of them with this Court within two weeks.

All the parties concerned including the persons mentioned in the Schedule and members of the Commission be informed of this judgment. [pp. 2071, 2072, 2073 & 2074] F, G & H

Order accordingly.

Petitioner in person.

Advocate for the PMDC :
Sardar M. Aslam, Advocate SC

Advocate for the P.C.C. :
M. Munir Piracha, Advocate SC

Advocate for the Government of Punjab :
Syed Niaz Ali Shah, Addl. A.G., Pb.

Date of hearing : 12th April, 1994.

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