• Residents ask SHC to declare plan an ‘adverse environmental project’
• Construction firm challenges appellants’ right to approach environmental tribunal

KARACHI: While work is under way at a fast pace to construct the Malir Expressway, a legal battle surrounding the multi-billion project between civil society, construction firm and the provincial government rages on as a verdict of the Environmental Protection Tribunal has been challenged in the Sindh High Court by residents.

The appellants asked the SHC to declare the controversial project as adverse environmental project and stop its construction till the disposal of their appeal, while M/s Malir Expressway Limited, the construction firm, submitted that a major sum of public money had already been spent on the project with an aim to improve interconnectivity within the provincial metropolis.

On April 15 a three-member tribunal allowed authorities to continue the construction work on the controversial project for the larger interest of the public, but ruled that the approval of Environmental Impact Assessment (EIA) of the project was conditional and subject to implement around 30 conditions, including the risk of urban flooding, acquisition of land in transparent manner and to address the grievances of affected people.

The project in question is described in the EIA approval as a 38.75-kilometer-long six-lane dual carriageway that will allow a direct route for heavy vehicles from the industrial areas in Korangi and Landhi to outside the city.

The EIA approval further said that the location of the project was starting from right before the Jam Sadiq bridge on Korangi Road and run along the right bank of the Malir River through the Korangi and Malir districts terminating on M-9 near DHA City outside Karachi.

Ahmed Shabbar, one of the two residents of Karachi, who had approached the tribunal against the approval of the EIA, through his lawyer Zubair Abro filed an appeal before the SHC in May impugning the April 15 judgment of the tribunal.

Citing the Sindh Environmental Protection Agency and the Malir Expressway Limited as respondents, the appellant contended that the tribunal had failed to follow the principles set by the apex court in the case of architect Arif Belgaumi as well as in some other cases.

The counsel for the appellant argued that the tribunal had also been unable to appreciate the impugned approval of EIA by deputy director, who had no authority under the law to approve the same, while the tribunal found it merely a technical, curable and procedural defect.

However, the lawyer submitted that it was part of a series of acts and omissions that were designed to evade regulatory process and bypass public scrutiny and these included commencing work prior to the EIA hearing, alignment of expressway without prior legal authority and changing the firm during most critical stages of the project’s launching as Malir Expressway Private had submitted the public notice but approval was granted to Malir Expressway Limited.

He also stated that the tribunal had wrongly accepted ex post facto environmental approval and compounding of violation of mandatory provisions of the law.

The counsel contended that the Asian Development Bank was one of the major financiers of the project and through a letter it had agreed with the concerns of appellant and other residents and had withdrawn from financing the project.

He further argued that some complainants had submitted before the ADB that even the EIA reports had two different versions — one made available to public before March 9, 2022 hearing and other uploaded on the website of ADB in June 2022.

Mr Abro also argued that the tribunal had been unable to appreciate that the impugned approval of EIA was granted without consultation with advisory committee which was required to be constituted under Section 5(6) of the Sindh Environmental Protection Act, 2014.

About the conditions set by the tribunal, the lawyer submitted that such conditions were mere eyewash and set without realising ground position as project was started much before granting EIA approval and Sepa had also issued notice for personal hearing to the proponent in this regard while another condition required plantations of three rows on each side of the expressway without realising that the project was in the Malir River.

The appellant asked the SHC to set aside the impugned approval of the EIA granted on April 6, 2022 and second approval on June 10 for being without authority and declare it as an environmental adverse project as well as sought an interim restraining order to stop the construction work.

However, the Malir Expressway Limited in its comments claimed that the appeal was not maintainable as the appellant was not an aggrieved person, appeal before the tribunal was time barred and failure of appellants to challenge second approval of EIA before the relevant forum.

The EIA of the project was first granted in April and the approval was further reaffirmed by Sepa and issued again in June under the signatures of director general of Sepa, it said and adding that significant construction work had already been undertaken and a major sum of public money was also utilised for the project.

While supporting the result/determination of the tribunal, the firm, undertaking the project, contended that it was challenging some findings of the tribunal, including appellants’ right to approach tribunal, first approval of EIA was appealable, appeal before the tribunal was not time barred and the declaring the EIA approval of the project as controversial.

The firm, in its comments, further submitted that the appellant in an attempt to improve his case had pleaded new allegations of factual nature in this appeal which had not been pleaded in the appeal before the tribunal.

It also argued that the ADB had sent a letter to one Abira and not the appellant and the bank did not agree with the concerns of the appellant while there was no financing commitment from the ADB and thus there can be no question of withdrawing from funding the project.

While taking the comments on record, a single-judge bench of SHC headed by Justice Salahuddin Panhwar adjourned the hearing till Aug 10.

Published in Dawn, July 29th, 2023