If there was any ‘award’ gained in 2017 – in addition to the benefit reaped in the case of the Hudaibiya Paper Mills – it would undoubtedly be the green light given to the much-trumpeted Orange Line Metro Train (OLMT) project, which had been stalled for the last 18 months. This was a test case for the political survival of the present regime.
After the Lahore High Court suspended the issuance of NOCs under the Antiquities Act of 1975 and the Special Premises Ordinance of 1985 and restrained the Punjab government (the appellants) from resuming of any construction activity within a 200-feet radius of the buildings, most observers of this much-delayed project thought that its days were numbered.
The respondents raised contentions on the grounds that the vibrations caused during the construction and operation phase of the OLMT project are likely to damage historic buildings and imperil the panoramic view of these sites. After all, five of these sites – the Shalimar Gardens, the Gulabi Bagh Gateway, Buddu’s Tomb, Chauburji and Zeb-un-Nissa’s Tomb – and six special places – the Lakshmi Building, the GPO, the Aiwan-e-Auqaf, the Supreme Court building and the Mauj Darya Darbar and mosque – lie only 15 feet to 100 feet away from the train track and are, hence, vulnerable to damage.
After a course of reevaluation in expert opinion, reports and data, the rejuvenation of the OLMT project is particularly important for two reasons. First, the majority decision has categorically stated that the importance of historic sites and buildings cannot be undermined at any cost. It sets out guidelines for their maintenance, preservation, restoration, renovation and repair work for which a revolving fund of Rs100 million will be made available by the Punjab government. The fund will be replenished on a yearly basis according to the court’s directives. This fund may subsequently be utilised for the maintenance of other protected buildings on the recommendations of a committee of experts. This is a suitable measure that has been taken to address the shortage of funds, which could become an excuse for the negligence shown towards these historical sites in the future. However, it may also serve as a grim reminder that when the government fails to fulfil its prime responsibility, the judiciary, through their verdict, speak for the public interest.
Second, the decision states that the preservation of these cultural heritage sites has to be balanced with urban development. No development will be allowed if it attempts to destroy, damage or adversely affect heritage sites. There are explicit directions that in case of damage at any stage of excavation, construction or operation, the OLMT project will be stopped immediately. The decision demands a strict adherence to 31 conditions that envisage constant vigilance and monitoring at every level of construction and execution so that the noise vibration levels remain within the permissible standards and no obvious damage occurs.
But there are some glaring questions that need to be addressed. First, when there is a prospect of potential harm to a historical asset – as suggested in the Supreme Court’s decision – should it be taken lightly where harm outweighs the advantages of the proposed economic development? Will the mitigation and remedial measures taken in the wake of the deterioration of these sites be able to harness and avert the irreversible damage done? Who will pay the price and bear the brunt of environmental degradation?
Second, in the absence of physical and technical evaluations made to assess the structure, strength and stability of these sites – which are necessary to determine their endurance and susceptibility in relation to the amplitude of the vibrations caused by construction machinery and the movement of train during operational phase – the viability of the project pose a threat. This has been pointed out by the dissenting judge. It is particularly worrisome when these ancient buildings are more than 370 years old and bear signs of neglect. With regard to such structures, international reports suggest that even low-velocity vibrations could give rise to fatigue damage.
Third, it is unclear how only a single piece of equipment could be used at any given time, according to the court’s direction, so as to avoid damage caused by vibrations. What if many machines are operating simultaneously to speed up construction work and their cumulative effects on historic buildings has not been taken into account?
Fourth, the presence of elevated viaduct and piers of the track poses a visual interference to these buildings, as highlighted in a report of that has been conveniently ignored. Fifth, it is important to understand the purpose of the 1975 act and 1985 ordinance: the protection and preservation of the antiquities and sites by laying out elaborate provisions. Section 22 of the 1975 act prescribes a 200-feet protective/buffer zone while section 11 of the 1985 ordinance stipulates that no development plan, scheme or new construction work will be undertaken within a specific distance of the protected sites without seeking approval from the concerned authorities. These parameters are in consonance with the Unesco guidelines for heritage conservation.
The importance of an efficient and cost-effective transport system cannot be denied. But only time will tell whether the construction of the OLMT near these historic buildings will preserve the character and appearance of these heritage sites or not and achieve the goal of sustainable progress along with development.
The writer holds an LLM degree in international economic law from the University of Warwick.