2015 Y L R 2349
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
Haji MULLAH NOOR ULLAH ---Petitioner
versus
SECRETARY MINES AND MINERALS and 3 others ---Respondents
C.P. No.422 and Civil Revision Petition No.249 of 2011, decided on 14th July, 2015.
(a) Constitution of Pakistan ---
----Arts.9 & 199---Fundamental right to live ---Polluted air ---Constitutional jurisdiction of High
Court ---Scope ---Right to live is a fundamental right under Art. 9 of the Const itution and it
includes right of enjoying pollution free air for full enjoyment of life ---If anything endangers or
impairs quality of life in derogation of laws, a citizen has right to have recourse to Art.199 of the
Constitution for removing that very thi ng and polluted air is one of them, for it is detrimental to
quality of life.
2014 SCMR 396 and Ms. Shehla Zia v. Wapda PLD 1994 SC 693 rel.
(b) Constitution of Pakistan --
----Art. 18--- Freedom of trade, business and profession---Scope---Right to fr eedom of trade,
business and profession as enshrined in Art. 18 of the Constitution though fundamental, is not
absolute right and is always subject to reasonable restrictions which may be imposed in the
larger interest of society ---Such freedom is always s ubject to the limits as may be imposed by
State in the interest of public welfare ---Every citizen has a right to carry on any business of his
choice however there is no right to carry on any business inherently dangerous or pernicious to
the society ---Unde r the Constitution, a proper balance is intended to be maintained between
exercise of right conferred by Art.18 of the Constitution and interests of the citizen in exercise
of his right to acquire hold or dispose of his property to carry on occupation, tra de or business --
-In striking such balance the danger which may be inherent in permitting unfettered exercise of
right in a commodity must of necessity influence the determination of restrictions which may be
placed upon the right of citizen to that commodi ty.
Pakcom Ltd. v. Federation of Pakistan PLD 2011 SC 44; Pakistan Muslim League (N)
through Khawaja Muhammad Asif v. Federation of Pakistan PLD 2007 SC 642 and Haji Lal
Muhammad v. Federation of Pakistan PLD 2014 Pesh. 199 rel.
(c) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54--- Balochistan Mineral Rules, 2002, R.70---Civil Procedure Code (V of 1908),
O.VII, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition ---Rejection of plaint ---
Suit for declaration and injunction was fil ed by petitioner on the plea that he was awarded
Prospecting License for limestone crushing but authorities interfered in his area ---Trial Court
rejected the plaint and the order was maintained by Lower Appellate Court ---Validity ---High
Court keeping in vi ew facts and circumstances of the case, position of law, interests of society
and of those who were carrying on or intended to carry on business connected with crushing of
lime stones issues directions to the authorities.
Following are the directions is sued by the High Court to the authorities.
(i) it is directed that no person or group of persons shall be granted further permission or 'no
objection certificates' for carrying on the aforesaid business in the municipal limits of Quetta
city;
(ii) that the Provincial Government shall identify 'safer zones' to be certified by the EPA
within a period of one month from the date of passing of present judgment and take steps for
shifting of all existing stone crushing plants in the city into those safer zone s within a period of
two months from the date of present judgment;
(iii) such safer zones shall not be located within the limit of Quetta city and shall not be
located within the limits of two kilometers from the national highways, habitats, hospitals, rivers
and schools;
(iv) one kilometer from an inhibited village or any land recorded as forest in government
records or any private land which is shown as cultivable in the revenue record;
(v) each unit shall abide by the pollution control measures as approved by the EPA;
(vi) Licensing Authority shall be under a legal obligation to inspect or get the inspection done
of each stone crushing plants at least twice a year;
(viii) all stone crushing units situated at present locations shall be deemed to have been directed
to be closed after a period of two months and shall not be permitted to carry on the business of
stone crushing on any ground or pretext whatsoever;
(ix) the Provincial Government through Director General Mines and Minerals and the
Director General, EPA, are directed to submit the compliance report with the Registrar of High
Court soon after the stipulated period for by the Bench perusal in Chamber;
(x) copies of present judgment shall be furnished by the Registrar to all the concer ned
immediately for taking up appropriate action and submission of compliance report within the
period and time specified, and
(xi) the Director General Mines and Minerals shall approve a new "crushing zone" and layout
plan should be prepared within a pe riod of one month. The said crushing zone shall be setup with
the object of rehabilitating the existing stone crushers, who are being stopped from functioning
as a result of present orders. [p. 2361] C
Abdul Khair Achakzai for Petitioner (in C.P. No. 422 and Civil Revision Petition No.249
of 2011).
H. Shakil Ahmed, Zafar Hayat Mullazai, Tahir Ali Baloch, Abdul Zahir Kakar and
Rehmatullah Kakar for Private Respondents.
Nizam -ud-Din, Advocate General Shai Haq Baloch, Assistant Advocate General
Muha mmad Tariq, Director General Mines and Minerals Department Jameel Khethran, Director,
Mines and Mierals Department Abdul Mateen, Law Officer, Mines and Minerals Department
Abdul Jabbar, Deputy Director (Technical).
Ali Bakhsh Bizinjo, Director and Ghula m Nabi, Deputy Director, Environmental
Protection Agency for Officer Respondents.
Dates of hearing: 15th, 23rd April and 28th May, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The instant Constitutional Petition
No.422 of 2011, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,
("the Constitution") has been preferred against the orders dated 14th January 2010 and 7th May
2011, respectively, passed by respondents Nos.1 and 2, whereby the Prospecting License ("PL"),
issued in favour of the petitioner, was cancelled and the appeal filed by him under Rule 70 of the
Balochistan Mineral Rules 2002 ("the Rules of 2002"), was dismissed. Similarly, Civil Revision
Petition No.249 of 2011 has been filed by the petitioner against the Orders and decrees dated
23rd February, 2011 and 31st May, 2011, respectively passed by the learned Civil Judge -III,
Quetta and Additional District Judge -I, Quetta, whereby the plaint of the petitioner was rejected
under Order VII Rule 11 of the Civil Procedure Code, 1908 (C.P.C.). Since common questions of
law and facts are involved in both the aforesaid matters, therefore, the same are being disposed
of through this common judgment.
2. The relevant facts for disposal of constitutional petition appear t o be that the petitioner
applied for grant of PL for limestone over an area of 94.73 acres near Brewery, District Quetta.
His case was processed and the required No Objection Certificate ("NOC") was issued in his
favour on 21st March 2009. The NOC issued b y the then District Coordination Officer ("DCO"),
Quetta, was, subsequently, suspended on the complaint of local inhabitants of the area vide order
dated 28th April, 2009. The area in question was granted under a PL in favour of the petitioner
for a period of two years by the respondent, subject to the condition that the petitioner shall get
his suspended NOC restored from the DCO within a period of two months. Due to failure of the
petitioner to get his NOC restored, the respondent, while exercising powers under Rule 77(2)C of
the Rules of 2002, cancelled the PL.
3. As regard Civil Revision Petition No.249 of 2011, it may be noted that petitioner Mullah
Noorullah filed a suit for declaration and permanent injunction against respondents Abid Lehri
and Sher Zaman Lehri, wherein he averred that he was granted PL by the Mines and Minerals
Department in respect of the aforesaid area, as described in the facts of constitutional petition,
however, the respondents started interference and encroachment over the gra nted area, thus, the
aforesaid suit was filed. As stated above, the trial Court rejected the plaint of the petitioner under
Order VII, Rule 11 of the C.P.C. and his appeal met the same fate before the appellate Court,
hence, this civil revision.
4. Besid es submitting their counter affidavits in constitution petition, the official
respondents also submitted a Survey Report ("SR"), prepared by Mr. Abdul Jabbar, Assistant
Director (Tech:/Mont:) and Mr. Ain -ud-Din Agha, Assistant Director (Planning) of the
Environmental Protection Agency ("EPA"), Quetta on 28th January 2011, which reads as under:
"SURVEY REPORT OF CRUSH PLANTS
As per directives of the Director General Environmental Protection Agency with
reference of Deputy Commissioner, Quetta letter No. 119/GB dated 28th January, 2011, the
Environmental Protection Agency Technical Team surveyed the following Crush plants situated
on Western Bypass on 5- 4-2011.
(1) Messrs Abdul Samad, Crush Plant
(2) Messrs Al -Saadat, Crush Plant
(3) Messrs Maqbool Shah, Crush Plant
(4) Messrs Shalkot Crush Plant
(5) Messrs Shahdin Crush Plant
(6) Messrs New Kakar Crush Plant
(7) Messrs Mushtarika Crush Plant
(8) Messrs Nasar Crush Plant
All the above Crush Plants were in working position, no such neces sary managements for
controlling the dust pollution was taken. As per directives of the Environmental Protection
Tribunal, Balochistan and imposing penalties, the Environmental Protection Agency, Balochistan
issued conditional NOCs to: -
(1) Messrs Abdul Samad, Crush Plant
(2) Messrs Al -Saadat, Crush Plant
(3) Messrs Maqbool Shah, Crush Plant
(4) Messrs Shalkot Crush Plant
But they did not comply with Environmental Laws and conditions of the NOCs. The
Environmental Protection Agency, Balochistan Technical Team advise the owners of the Crush
Plants to follow the precautionary measures should be strictly adhered to minimize any negative
impact on vegetation, soil, groundwater ambient air quality in the area.
The following Crush Plants are operational illegally and they never submit
Environmental Audit Report to the Environmental Protection Agency, Balochistan for obtaining
of NOCs.
(1) Messrs Shahdin Crush Plant
(2) Messrs New Kakar Crush Plant
(3) Messrs Mushtarika Crush Plant
(4) Messrs Nasar Crush Plant
In this continuation on 6th April, 2011 the Environmental Protection Agency,
Balochistan Technical Team surveyed the following Crush Plants situated at Eastern Bypass
Quetta: --
(1) Messrs Al -Gallani Crush Plant
(2) Messrs A zad Crush Plant
(3) Messrs Kakar Crush Plant
(4) Messrs Abdul Wahab Crush Plant
(5) Messrs Al -Khair Crush Plant
apply for obtaining of NOCs. The Technical Team strictly advise them to follow -up the
Pakistan Environmental Protection Act, 1997.
On 12- 4-2011 the Environmental Protection Agency, Balochistan Technical Team visited
the following Crush Plants situated at Kuchlak: -
(1) Messrs Malak Rauf Crush Plant (Ashraf Linkers)
(2) Messrs Umar Khan Crush Plant
(3) Messrs Abassen Crush Plant
(4) Messrs Mujadadi Crush Plant
(5) Messrs Sahibzada Crush Plant
All the above Crush Plants were in working position, no such necessary managements for
controlling the dust pollution was taken but better from the Western Bypass Crush Plants. As per
directives of the Environmental Protection Tribunal, Balochistan and imposing penalties, the
Environmental Protection Agency, Balochistan issued conditional NOCs to the aforementioned
Crush Plants."
5. The parties have also produced copy of joint report on stone crushing plant site of
western bypass, Quetta, prepared by Geological Survey of Pakistan, Quetta, in the year 2007 and
it was observed: --
"The stone crushers installed at mountains of Chiltan Range in 1991 are adding the
problem of dust pollution in the city. The present stone crusher plants installed along with
Chiltan Range in different locations are emitting air dust, air pollutants and hazardous substances
to some extent that is detrimental to the health of inhabitants of Quetta Valley. "
6. Natural substances are grouped in three major categories: Animals, Vegetable and
Mineral kingdoms. Members of the animal and vegetable kingdoms comprise living things that
need air, water and food to live and grow. In absence of these, they will soon die and their bodies
would decompose. Ageing process affects living things and with the passage of time, they
become old and finally expire even in presence and availability of life -sustaining environment.
The air we breathe is a mixture of nitrogen and oxyge n with minor constituents like carbon
dioxide and tap gases. Pollutants are substances, which are not normally present in the air.
Pollutants in the form of dust, smoke, industrial and automobile exhaust, gaseous and particulate
matters, though not normall y expected to be present, yet are found in the air. Nature and amount
of such pollutants varies from place to place depending upon population, vehicular density and
location of industrial units etc. Lungs are the major organs affected by the air pollution. The
spectrum of functional and pathological reactions of the lungs to various exposures is wide.
Chronic bronchitis and airways obstruction is the result of long term exposure to air pollution.
Organic matters including dust can cause the allergic reactio ns producing allergic alveolitis.
Inorganic dust may get deposited in the lungs and produce fibrosis. Exposure to dust may lower
the lungs' defenses and clearing mechanism, resulting in infections, particularly tuberculosis.
Such occupational exposures may also lead to lung cancer. Such hazardous effects on health are
likely to be caused on account of the air pollution which is caused due to stone crushing. By
stone crushing a lot of thick dust is generated polluting the environment.
7. The above effects of air pollution caused due to limestone crushing in populated and
residential areas were noticed by a high -power committee, constituted by Director General, EPA.
The SR submitted by the official respondents is also accompanied by a number of photographs,
showing that no proper management measures were observed by the mines' owners in order to
minimize air pollution, as evident from notices issued to the owners of Messrs Abdul Samad,
Messrs Al -Sadat, Messrs Maqbool Shah and Messrs Shalkot, Crush Plants, to whom conditional
NOCs were issued, the notice reads as under: --
"(1) Whereas the above crush plants were issued conditional NOCs by the Environmental
Protection Agency to ensure the following requirements;
(i) Compliance of the NEQS shall be ensured, E nvironmental Compliance Report should be
submitted on biannually.
(ii) Mitigation measures with regard to air pollution and effluents discharges will be strictly
implemented.
(iii) Dust collector should be in place to minimize the dust pollution at the Crush Plant.
(iv) That the mountain face/toe shall be utilized in such manner technique to avoid occurrence
of any disaster/hazard of sliding.
(2) Whereas during the visit of Technical Team of Environmental Protection Agency on 5- 4-
2011 and 12 -4-2011 it was observed that the above crush plants are functioning without fulfilling
the conditions of NOCs which is violation of section 12 of Pakistan Environmental Protection
Act, 1997."
8. Similarly, notices were also issued to the owners of Messrs Shahdin, Messrs New Kakar,
Messrs Mushtarika, Messrs Nasar, Messrs Al -Gillani, M/s Azad, Messrs Kakar, Messrs Abdul
Wahab, Messrs Alkhair, Messrs Al -Musbah and Messrs Adil, Crush Plants, which reads as
under: --
"Whereas, during the visit of Technical Team of E nvironmental Protection Agency on 5 -
4-2011 and 6- 4-2011 it was observed that the above crush plants are functioning in violation of
the following legal requirements.
(i) No NOC has been obtained from Environmental Protection Agency, Balochistan which is
violation of Section 12 of Pakistan Environmental Protection Act 1997.
(ii) No IEE/EIA report has been submitted to the Environmental Protection Agency,
Balochistan which is mandatory in pursuance of Pakistan Environmental Protection Act, 1997
and EIA Re gulation 2000, for grant of NOC.
(iii) It was also observed that no mitigation measures were taken i.e. sprinkling of water,
installation of canopy over the processing site and dust collector for pollution control during
operation of the crush plants."
9. On 23rd September 2013 all the crushing plants were restrained from operating and
QESCO was directed to disconnect the electricity supply to them by this Court. The said order
was challenged before the Hon'ble Supreme Court of Pakistan by means of Civi l Petition
No.1695 of 2013 and the following order was passed: --
"This petition for leave to appeal has been filed against the interim order dated 23rd of
September, 2013 passed by the High Court of Balochistan in C.P. No. 422/11 where certain
direction s were given regarding environmental issues arising out of the stone crushing machines
in Quetta city and the surrounding areas. The main issue before the High Court related to dispute
of rights over mines between the parties. It is now stated on behalf of the petitioner that
necessary safeguards for protection of environment have been taken. We have been informed
that the main Constitution Petition is still pending adjudication. Such safeguards be placed before
the High Court for its satisfaction. Let the High Court decide the question of environment as well
as the main lis in the petition.
With these observations, the petition is disposed of".
10. In the backdrop of what has been noticed hereinabove, we are called upon to decide the
effects of unplanned stone crushing being carried out in the residential areas of Quetta city, upon
the health of the people of the area. In the absence of any positive response from the Provincial
Government, we also propose to indicate the safeguards for the health and sa fety of the people,
while protecting the interests of the persons involved in the trade of stone crushing. It is
regrettable that despite our insistence and observations made from time to time during the
pendency of the proceedings, neither the Provincial Government, nor the concerned agencies
have taken any positive steps on this court's directions and have rather adopted a callous attitude
towards this important issue.
11. Keeping in view the importance of the issue as well as the ground of discriminati on taken
by the petitioner that he has been singled out by the official respondents in spite of the fact that a
number of stone crushing plants are located and operating in the adjacent areas, a list of stone
crushers located in Quetta city was submitted and notices were also issued to the owners of the
said crush plants. Similarly, the Advocate General was also directed to take notice on behalf of
the Provincial Government to intimate the law prevalent and procedure followed for the grant of
licences to st one crushers and to intimate the measures taken by the Provincial Government for
safeguarding the health of the citizens and atmosphere in the locality.
12. Messrs H. Shakil Ahmed, Zafar Hayat Mullazai, Tahir Ali Baloch, Abdul Zahir Kakar
and Rehmatullah Kakar, Advocates, appearing on behalf of the crush plant owners, have tried to
justify the grant of licences and permissions in their favour by the appropriate authorities. It is
submitted that the units, which are carrying on the business of stone crushi ng, have been carrying
on their activities strictly in accordance with the terms and conditions prescribed by the
Licensing Authority on the basis of the NOCs issued by the EPA, Balochistan. They have
contended that their business was not in any way causin g pollution, which could warrant action
by the authorities or the Court. It is submitted that as they are carrying on their business in
accordance with the permission granted, no direction can be issued, particularly when there was
no complaint against the m either by public or by concerned authority. They further submitted
that the stone crushing plants are located mostly in hillocks, far away from areas inhabited by the
villagers. Such crushing units are not concentrated in any single place and are scatter ed. As per
their contention, they are carrying on tiny stone crushing industries, which are not causing any
pollution. They also submitted that any adverse order or direction would prejudice the business
of plants owners being carried on from several years . According to their version, in terms of the
Constitution, every citizen has a right and freedom to carry on his business activity without any
interference or hindrance, whereas any restriction or hindrance in this regard violates the
provisions of Articl e 18 of the Constitution, which recognizes the right to freedom of trade,
business and profession to be carried out by every citizen of Pakistan.
13. Though the ground of jurisdiction was not agitated by the learned counsel for the
respondents at the tim e of arguments, yet a Court, prior to taking cognizance of a matter, is
supposed to determine the question of its jurisdiction and any order passed without jurisdiction
cannot be allowed to hold the field for a moment. The record reflects that the question of
jurisdiction was initially agitated in the first round of litigation. In order to set the controversy at
rest, it would be advantageous to reproduce herein below relevant portion of Section 29 of the
Balochistan Environmental Protection Act 2012, which reads as under: --
"29(9) - No court other than Balochistan Environmental Protection Tribunal shall have or
exercise any jurisdiction with respect to any matter to which the jurisdiction of Balochistan
Environmental Protection Tribunal extends under this Act, the rules and regulations made
thereunder."
It is manifest from bare reading of the aforementioned provision of law that the term 'no court'
appearing in the said subsection does not include this Court, while exercising constitutional
jurisdiction under Article 199 of the Constitution. In this behalf, it may be noted that this Court,
in exercise of constitutional jurisdiction conferred upon it under Article 199, enjoys enormous
power of judicial review. It is a fundamental principle of jurisprudence that Courts must always
endeavour to exercise their jurisdiction so that the rights of the people are guarded. This
expansion of jurisdiction is for securing and safeguarding the rights of the people against the
violation of the law.
14. The right to 'l ife' is the most fundamental right as enshrined in Article 9 of the
Constitution. Such right includes all attributes of the life. The term 'life' means something more
than mere animal existence. It is a fundamental right of every citizen to live with dignity. Living
with dignity would include all those rights, which ensure a person's life as meaningful, complete
and worth living. Right to life would also include right to live in peace, to sleep in peace and
enjoy health free from pollution. Right to live is a fundamental right under Article 9 of the
Constitution and it includes the right of enjoying pollution free air for full enjoyment of life. If
anything endangers or impairs that quality of life in derogation of Laws, a citizen has the right to
have recou rse to Article 199 of the Constitution for removing that very thing, and polluted air is
certainly one of them, for it is detrimental to the quality of life. The Hon'ble Supreme Court of
Pakistan in the case "petition regarding miserable condition of the s chools": In the matter of
Constitutional Petition No.37 of 2012, decided on 22nd November, 2013- reported in 2014
SCMR 396, while interpreting Article 9 of the Constitution observed as under: --
"As far as Article 9 is concerned, the word "life" occurring in said Article has received
interpretation in different contexts in a large number of cases decided from time to time and now
it is well- settled that the word 'life' cannot be assigned limited meaning and its scope has been
enlarged enough to encompass a lmost each and every aspect of human life."
15. Similarly, the Hon'ble Supreme Court, while interpreting the word 'life' used in Article 9
of the Constitution in the case of "Ms. Shehla Zia v. WAPDA", (PLD 1994 SC 693), held as
under: --
"Article 9 of the Constitution provides that no person shall be deprived of life or liberty
save in accordance with law. The word "life" is very significant as it covers all facts of human
existence. The word "life" has not been defined in the Constitution but it does not mean nor can
be restricted only to the vegetative or animal life or mere existence from conception to death.
Life includes all such amenities and facilities which a person born in a free country is entitled to
enjoy with dignity, legally and constitutio nally."
16. It is true that the rapid growth of the economy and the industrialization is also the need of
the mankind to have a decent, respectful and dignified life. The environmental changes are the
inevitable consequences of industrial development in our country, but at the same time, it is
equally true that the quality of environment cannot be permitted to be damaged by polluting the
air to such an extent that it becomes a health hazard for the residents of the area.
17. It is not disputed that in Quetta City, about twenty one Enterprises are involved in the
business of limestone crushing and allied matters. It is also not disputed that the member of such
industries is mushrooming, which is not effectively controlled by the executive authorities as
evident from the report of EPA and notices issued to the units' owners. Such industries are
scattered all over and not located within specified places. The pollution caused on account of
stones' crushing can also not be disputed. Emission of dust, smoke and gases from such crushing
plants is acknowledged. The consequential effects of the dust, smoke and gases emitted from the
conduct of the business are surely to affect the lungs and other major organs of the people
involved in the business and living in the surrounding areas. Besides human beings, the animals
and the vegetation including crops are likely to be affected unless protected. It is, therefore, the
duty of the respondents to take measures and effective steps for regulating the conduct of the
business as has been done in the sister provinces. The EPA has no doubt submitted that it has
already taken measures by providing guidelines for observing proper arrangements to minimize
the pollution, but it has been observed that the aforesaid guidelines/dire ctives are observed more
in breach than in compliance and that there is no machinery provided to check and insist the
observance of the guidelines.
18. It has been specifically provided in the guidelines, prospecting licences and no objection
certificate s, issued by the office of the Director General, EPA, Balochistan and Director General,
Mines and Minerals, Balochistan that the mines owners shall comply with all the environmental
laws during the operation phase; that the proponent shall install its crus h plants at the backside of
the mountain; dust collector should be in place to minimize the dust pollution at the proposed
site; the mountain facing should be kept intact in natural shape and the Mountain facing towards
the city not to be cut and the trees plantation should be ensured around the project area. It is also
by now settled that no stone crusher can be established within a distance of at least one kilometer
from highways, habitats, mosques, schools and hospitals, but in fact the industries conduc ting
stone crushing business are located just on the roadside of main Eastern and Western Bypasses in
Quetta city near the habitats, mosques, schools and hospitals. The jaw crusher and conveyor
system of the crashed stones are not covered anywhere. The rot ary screens are not completely
closed leaving space at the bottom for collection of sieved jelly. Conveyor belts are also stated to
have not been covered. No suitable exhaust and venting system is provided. No trees are planted
around the crushing plants f or the purpose of minimizing the dust and improving aesthetic
appearance/compliance. No provision is reported to have been made for controlling the noise
caused by carrying on the stone crushing business. The inaction of the Provincial Government
and lapse s of the EPA to take effective measures has cast a duty upon us to issue appropriate
directions for protecting the life of the people and ecology of the city.
19. It is also worth mentioning that Quetta is the single largest city of the country, which is
surrounded all around by mountains i.e. Koh- e-Chiltan, Koh- e-Takatu, Koh- e-Zarghoon and
Koh-e-Murdaar. The city is also out of range of the monsoon current, due to which rainfall is
scanty and irregular. Quetta being a close valley, surrounded by three ra nges of mountains, is
facing acute problem of dust pollution, caused by NSW winds. Due to presence of the
aforementioned mountains, the dust particles cannot travel, disperse beyond the valley and
remained deposited in the vicinity. Air pollution is one of the most widespread mass induced
hazards. Atmospheric mixing process makes it extremely mobile and many pollutants in the air
are toxic and potentially harmful to human beings, plants and beauty of the cities. Clean air is
vital for normal life. The air w e breathe is invisible, odorless and tasteless. It is part of human
life and is consumed at the rate of 20 kilograms (i.e. 42 lbs) per day. The air we breathe has
always been contaminated to some extent by dust, smoke, gasses, mist, vapor and odors. The
most serious issue of air quality in Quetta city is persistent excessive emission of dust from stone
crushers in the ambient air. Quetta is an arid part of Pakistan with rainfall ranging as low as
20mm to 60mm. In the dry and low wind days, natural dust anthropogenic pollution, when
generated in access, takes longer time to disperse. Over the last few years, average rainfall
declined, which has co -relation with meteorological conditions, if dry air conditions prevail.
20. We are afraid that the photographs, produced by the respondents, show that the faces of
mountains at eastern bypass and near Kuchlak have been cut/executed, which is an irreparable
loss to the heritage. We have painfully observed that this illegal activity is being continued for
the last so many years under the nose of official respondents. These mountains are permanent
assets of mankind and are not intended to be exhausted in one generation.
21. We do not agree with the contention of the learned counsel appearing on behalf of the
plants owners that they were granted valid licences and permissions by the concerned authorities,
as such, no directions could be issued to them for removal or closing of the plants in view of the
likely disastrous effects of business being carried on by them. Gr ant of licences or permission in
favour of such units has not conferred upon them any absolute right, which could not be
regulated even by Court's directions. However, keeping in view the fact that the aforesaid units
were granted licences and they were carrying on their business without any objections by the
concerned authorities, the Court has to issue directions by protecting and safeguarding their
interests. We are of the considered view that the personal considerations or the interests of
enterprises already engaged in the stone crushing business have to give way and bow before the
paramount considerations and larger interests of society. Likewise, we do not agree with the
submissions of the learned counsel that their business was not causing pollution requiring action
by this Court. The emissions of the dust and dangerous particles out of the business carried on by
such units is highly disaster and dangerous to the health of the habitants in the closer proximity.
22. Right to freedom of trade, busines s and profession as enshrined in Article 18 of the
Constitution though fundamental, is not an absolute right and is always subject to reasonable
restrictions, which may be imposed in the larger interests of the society. Freedom of profession,
trade and bus iness as contemplated by Article 18 are always subject to the limits as may be
imposed ' by the State in the interest of public welfare. There is no cavil to the proposition that
every citizen has a right to carry on any business of his choice; however, there is no right to carry
on any business inherently dangerous or pernicious to the society. Under the Constitution, a
proper balance is intended to be maintained between the exercise of the right conferred by
Article 18 of the Constitution and the interest s of the citizen in the exercise of his right to
acquire, hold or dispose of his property to carry on occupation, trade or business. In striking that
balance the danger which may be inherent in permitting unfettered exercise of right in a
commodity must of necessity influence the determination of the restrictions which may be placed
upon the right of the citizen to the commodity.
23. The rights of citizens as guaranteed under Articles 18 and 19 of the Constitution are not
absolute or unfettered, but the s ame are subject to law and reasonable restrictions, which may be
imposed by law. Reference in this regard can be made to the case of" Pakcom Limited v.
Federation of Pakistan", (PLD 2011 SC 44), wherein the Hon'ble Supreme Court, while
examining the scope of various provisions of the Constitution, including Articles 18, 23, 24 and
25 of the Constitution, has held as under: --
"52. The interpretation of Article 18 has been made variously and the judicial consensus
seems to be that the "right of freedom of trade, business or professions guaranteed by Art. 18 of
the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations
as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade
or profession by a system of licensing empowers the Legislature as well as the authorities
concerned to impose restrictions on the exercise of the right. They must, however be reasonable
and bear true relation to 'trade' or profession and for purposes of prom oting general welfare. "
24. By qualifying the right to business and trade, the Constitution makers wanted to create a
balance between the social needs and the rights of an individual. In the case of "Pakistan Muslim
League (N) through Khawaja Muhammad A sif v. Federation of Pakistan", (PLD 2007 SC 642),
the Hon'ble Supreme Court of Pakistan had an occasion to dilate upon this 'balance' and observed
as under: --
"28. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or
cursory manner but while "interpreting Fundamental rights guaranteed by the Constitution, a
cardinal principle has always to be borne in mind that these guarantees to individuals are subject
to the overriding necessity or interests of community. A balance has to be struck between these
rights of individuals and the interests of the community. If in serving the interests of the
community, an individual or number of individuals have to be put to some inconvenience and
loss by placing restrictions on some of thei r rights guaranteed by the Constitution, the restrictions
can never be considered to be unreasonable."
25. Similarly, a Division Bench of Peshawar High Court in the case of "Haji Lal Muhammad
v. Federation of Pakistan", (PLD 2014 Peshawar 199), while dea ling with the question of
fundamental rights, observed as under: --
"No one can be allowed to exercise one's right in a manner so as to infringe upon the
rights of another. Each is to enjoy his rights within the confines of the law, morality and social
justice. Transgression by any, whether powerful or weak cannot be allowed so as to disturb the
social harmony of our society. In fact, with the fundamental rights bestowed upon the citizen,
there is also an express inviolable obligation on him of obedience to the Constitution and the
law, as expressly enshrined in sub- Article (2) of Article 5 of the Constitution."
26. Keeping in view the facts and circumstances of the case, the position of law, the interests
of the society and of those who are carrying on or intend to carry on the business connected with
the crushing of limestone, we deem it appropriate to dispose of this writ petition by issuing of the
following directions to the respondent/authorities:
(i) it is directed that no person or group of persons shall be granted further permission or 'no
objection certificates' for carrying on the aforesaid business in the municipal limits of Quetta
city;
(ii) that the Provincial Government shall identify 'safer zones' to be certified by the EPA
within a peri od of one month from the date of passing of this judgment and take steps for shifting
of all existing stone crushing plants in the city into those safer zones within a period of two
months from today;
(iii) such safer zones shall not be located within t he limit of Quetta city and shall not be
located within the limits of two kilometers from the national highways, habitats, hospitals, rivers
and schools;
(iv) one kilometer from an inhibited village or any land recorded as forest in government
records or any private land which is shown as cultivable in the revenue record;
(v) that each unit shall abide by the pollution control measures as approved by the EPA;
(vi) that the Licensing Authority shall be under a legal obligation to inspect or get the
inspection done of each stone crushing plants at least twice a year;
(viii) (sic) that all stone crushing units situated at present locations shall be deemed to have been
directed to be closed after a period of two months and shall not be permitted to ca rry on the
business of stone crushing on any ground or pretext whatsoever;
(ix) the Provincial Government through Director General Mines and Minerals and the
Director General, EPA, are directed to submit the compliance report with the Registrar of this
Court soon after the stipulated period for our perusal in Chamber;
(x) copies of this judgment shall be furnished by the Registrar to all the concerned
immediately for taking up appropriate action and submission of compliance report within the
period and time specified, and
(xi) the Director General Mines and Minerals shall approve a new "crushing zone" and layout
plan should be prepared within a period of one month. The said crushing zone shall be setup with
the object of rehabilitating the existing stone crushers, who are being stopped from functioning
as a result of our orders.
Resultantly, Civil Revision Petition No.249 of 2011, having been infructuous, is also
hereby dismissed.
MH/91/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.