Development imperative cannot justify damage to heritage sites, LHC rules

LDA chief engineer’s opinion on construction near heritage sites ruled as irrelevant

LAHORE: The government cannot use the need to undertake development projects as a justification to shirk its responsibility towards protection of heritage, cultural and archaeological sites, says the Lahore High Court in its detailed judgment on a petition seeking suspension of work on the Orange Line Metro Train (OMLT) project.

Through a short order issued earlier, the court had stopped the government from undertaking any construction activity for the project within 200 feet of historical sites along the route.

The court had also suspended the no-objection certificates (NOCs) issued by the Lahore Development Authority (LDA) director general allowing the project contractor to undertake construction in these areas.

In the detailed judgment released on Tuesday, the court observed that the government had failed to come up with a plan before start of work on the project to preserve heritage sites along the route.

“Lahore is a city of rich culture and heritage. It has many archeological sites and historical monuments.

The Antiquities Act of 1975, the Punjab Special Premises (Preservation) Ordinance of 1985 and the Punjab Heritage Foundation Act of 2005 were among laws enacted to protect such sites,” it noted.

The order said the country was a signatory to the UNESCO conventions on protection of cultural and heritage sites. It said several heritage sites were located in close proximity to the proposed route for the metro train. It said Shalamar Gardens, Gulabi Bagh Gateway, Buddhu’s Tomb, Chauburji, and Zebunnisa Tomb had been declared protected antiquities. It said that Lakshmi building, the General Post Office (GPO) building, the Aiwan-i-Auqaf (Shah Chiragh) building, the Supreme Court Lahore Registry building and the Mauj Darya shrine were declared as special premises under the 1985 ordinance.

Construction activity within 200 feet of these sites would adversely affect the buildings, it noted.

The LHC bench said that the NoCs allowing construction had been issued based only on the opinion of the LDA chief engineer. It said the chief engineer could not be considered an expert on archeology so his opinion was not relevant to the purpose and heritage sites could not be threatened by allowing construction in their close proximity.

The order stated that the damage apprehended to the protected antiquities was not assessed before the issuance of the NoCs. “The NOCs are of general nature. A blanket cover has been given to the project. They do not refer to particular heritage sites,” it said.  “The NOCs are based on irrelevant considerations and cannot, prima facie, be treated as reasoned and rational decisions,” it said.

The bench said that the NoCs had been issued despite serious reservations raised by the UNESCO over construction activity near heritage sites.

The UNESCO had communicated its reservations to the government in a in a letter sent on October 20, 2015. The government had responded to the letter on on December 17, 2015, and invited a UNESCO team to visit the construction site and hold meetings with the government officials concerned.

Commenting on lack of adequate reasons given for the NoCs, the bench said the government needed to clearly state its reasons for an action under Section 24- A of the General Clauses Act of 1897.

The bench also referred to an amendment in the Antiquities Act of 1975 under which the government was required to notify an advisory committee to oversee any construction activity likely to endanger heritage sites. It noted that archaeologists, architects, historians and provincial assembly members were required to be a part of this committee.

The bench observed that no such committee had been formed for the OMLT project. Even if such a committee was not formed at the outset, it said the LDA director general was still required to seek expert opinion before granting the NoCs for construction near heritage sites.

Published in The Express Tribune, February 3^rd, 2016.