The bench, Justice Abid Aziz Sheikh and Justice Shahid Karim, ruled that the heritage sides are immoveable antiquities under section 2(g) of the 1975 Antiquity Act and special premises under section 2(a) of the Punjab Special Premises (Preservation) Ordinance, 1985. Hence no construction can be carried out within a 200-feet radius of the monuments. The sites include Shalimar Gardens, Gulabi Bagh Gateway, Buddhu ka Awa, Chauburji, Zebunnisa’s Tomb, Lakshmi Building, General Post Office, Aiwan-i-Auqaf, the Supreme Court’s Lahore registry building, St. Andrew’s Presbyterian Church at Nabha Road and Baba Mauj Darya Bukhari’s shrine.
The court ruled that two aspects were ignored by the archaeology department while issuing the no-objection certificate or green signal on construction: “The effect of the use of heavy machinery during the construction period in the proximity of the historical and heritage sites (and) the visual barrier and mitigation caused by the construction of elevated viaduct.”
The petition against the construction was filed by architect and conservationist Kamil Khan Mumtaz. He argued that the authorities did not keep in mind the Punjab Heritage Foundation Act of 2005 and the various conventions to which Pakistan is a signatory when they granted no-objection certificates on the project, “putting these precious heritage sites under serious threat and danger of being destroyed, damaged and mutilated.” He also argued that no archeological experts, historians or even stakeholders, including the petitioners, were consulted or heard before permission was given for the construction work.
The approval for construction was given based on a presentation by the Lahore Development Authority and a NESPAK report. Shahid Hamid, the lawyer representing the Lahore Development Authority, the Traffic Engineering and Transport Planning Agency and the Land Acquisition Collector, argued that the no-objection certificates had been based on two NESPAK analyses reports, the report of the advisory committee, the heritage impact assessment reports of cultural heritage management and conservation consultants, Dr. Ayesha Pamela Rogers and Dr. Javed Uppal of Rogers Kolachi Khan & Associates.
First and foremost we respect our courts. Secondly, we have a forum available with us and that is the Supreme Court, where we will be resubmitting our point of view, said the government's lawyer Khawaja Ahmad Hassan
After the court ruling came through for a stay order, the chairman of the orange line’s steering committee, Khawaja Ahmad Hassan, confirmed that the Punjab government would challenge the decision in the Supreme Court. “First and foremost we respect our courts,” he said. “Secondly, we have a forum available with us and that is the Supreme Court, where we will be resubmitting our point of view. And we’re working on that.” He added that they had been asked “to consult specialists of international fame, and then come up with an alternate plan”. He felt, however, that this would take up a lot of time and that they had “safeguarded the heritage points with due diligence.” The extra time and delay in construction will prove costly.
“I think this is the same all over the world, whenever there are time lapses in construction projects, obviously every delay has a cost,” he added. “They have given us the green signal on the environment front, and they have given a judgment on the heritage issue, which we are challenging in the Supreme Court.”
This might prove to be an uphill task with the government having little legal ground to manoeuvre, according to one perspective. “The law clearly states that there can’t be construction within a 200-foot radius of any monument. Hence, it’s not enough to say that we are protecting the heritage,” said Abdul Qayyum, who is a former Attorney General of Pakistan, when asked for comment. “The report of the two local commissioners said that there is construction within the aforementioned limits, and so if that’s the case, it’s clearly illegal.” He added that, “Considering the law, the Lahore High Court has given the obvious verdict. Of course the final decision would be taken by the Supreme Court, but considering the given evidence the high court’s decision has merits.”
He was not won over by mention of the costs going up because of any delays. “It’s the government’s fault and the responsibility lies with the officials who approved construction work within the 200-foot radius,” he said. “Saying that the delay would have an extra cost doesn’t give you any ground to violate the law. As the Latin legal phrase goes ‘Let justice be done though the heavens fall’.”
It will be key to see on what basis the government is able to challenge the Lahore High Court’s verdict in the Supreme Court. Lawyer Abid Hassan Minto, when asked to comment, told The Friday Times, that, “If the law said that there can’t be any construction within the 200-foot radius, would the government look for exceptions to the law or are they looking for some other principle?” For example, exceptions can be found elsewhere in the world. “There are many places where there isn’t even a 20-foot gap between the site and construction. Every country has its own laws,” he explained, but added that “the Punjab government has to go by Pakistani regulations.”
Abdul Qayyum believes there is only one way out for orange line. “They would simply have to change the law to circumvent the relevant clauses,” he said. “As long as the law remains the same, the government wouldn’t get any relief from any court.”
In the meantime, construction work has stopped near the 11 heritage points. “Following the verdict, there are a few points where we can’t start work, but there are other parts of the corridor where work is still underway. We have completed over 45% of the civil works,” said the government’s lawyer Khawaja Ahmad Hassan. “Our current strategy is to add to the work already done wherever possible. But there are no two ways about the fact that his process would be more expensive, since we’re giving up on continuity in construction work.”
He reiterated that the government is doing its best to protect the city’s heritage. “We have already protected those heritage points—that is the point of view of the Government of Punjab. And we are open to any further suggestions as well. We have never claimed that there isn’t any room for improvement and we have kept all doors open.”