Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT
WP No.1193 of 2017
Muhammad Ayaz
Versus
Government of Punjab through its Chief Secretary etc.
JUDGMENT
Date of Hearing
Petitioner By:
Respondents By:
1.2.2017.
Mr. Sharjeel Haider and Mr. Muhammad
Yasin Hatif, Advocates.
Mrs. Samia Khalid, AAG along with Asghar
Ali Tahir, Deputy Director and Mian Ijaz
Ahmad, Deputy Director (L&E), Environment
Protection Agency.
Ayesha A. Malik J: Through this Petition, the Petitioner has
impugned order dated 11.1.2017 issued by Respondent No.5 whereby
the Deputy Director, Environmental Protection Agency, Punjab,
Gujranwala ordered for the sealing of the plant of the Petitioner in
order to implement the Environmental Protection Order issued on
6.11.2015.
2.
The facts of the case are that the Petitioner runs a business in
the name of Ali Steel Works in Allama Iqbal Colony, Street No.2,
Gujranwala. The residents of the area filed a complaint against the
business of the Petitioner on the ground that it causes air pollution as
well as noise pollution and vibration which is hazardous to the
environment and to the health of the residents of the area. The District
Officer (Environment), Gujranwala inspected the unit of the Petitioner
on 14.5.2015 and found that it had been established without obtaining
the environment approval from the Environment Protection Agency,
Punjab (“EPA”) and that the noise pollution exceeded the National
Environment Quality Standards (“NEQS”) limits. The Petitioner was
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issued Environmental Protection Order (“EPO”) on 6.11.2015 under
Section 16 of the Punjab Environmental Protection Act, 1997 (“Act”)
after being given two opportunities, one on 11.6.2015 and the other on
22.6.2015 to controvert the allegations raised against him. Since the
Petitioner was unable to do so, EPO was issued on 6.11.2015. The
EPO stated that the Petitioner should,
“Immediately stop operation of your unit till its regularization from
competent forum to ensure compliance of Section 12 of Punjab
Environmental Protection Act, 1997 (amended 2012).
No appeal was filed against the EPO and the Petitioner continued its
business without compliance of the EPO. Thereafter the complainant
filed WP No.31185/2016 in which a direction was issued on
5.10.2016 that he should avail remedy under Section 17 of the Act for
compliance of the EPO. In the meanwhile a follow up inspection was
carried out and it was found that the Petitioner had not complied with
the EPO, hence the Deputy Director, Environmental Protection
Agency, Punjab, Gujranwala while invoking the powers under Section
6(1)(a) of the Act sealed the unit of the Petitioner on 11.1.2017.
Hence this Petition.
3.
The basic issue before the Court, as raised by the Petitioner is
the power of the Deputy Director, Environmental Protection Agency,
Punjab, Gujranwala/Respondent No.5 to pass a sealing order. Learned
counsel for the Petitioner argued that Respondent No.5 did not have
any power to seal the unit of the Petitioner. The power of sealing lies
exclusively with the Environmental Protection Tribunal (“Tribunal”)
under Section 17(5)(c) of the Act. Learned counsel further argued that
the order of sealing was done without following due process and
without notice to the Petitioner. Learned counsel further submitted
that the complainant filed WP No.31185/2016 before the Court
wherein a direction was issued on 5.10.2016 that he should approach
the Tribunal, therefore the act of sealing was in derogation to the said
orders of this Court. Learned counsel places reliance on the case titled
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Messrs Mega Steel Mills Private Limited v. Government of Punjab
through Secretary, Environmental Protection Department, Punjab,
Lahore and 6 others (2016 CLC 1095) in support of his contentions.
4.
Learned Law Officer argued that sufficient notice was given to
the Petitioner before issuance of the EPO and the Petitioner was
unable to refute the allegations that the noise level exceeded the
NEQS limits. Furthermore despite the EPO, the Petitioner made no
effort to control the noise and vibration level and continued with his
business. Learned Law Officer further argued that the EPO dated
6.11.2015 issued under Section 16 of the Act was not complied with
and on 11.1.2017 an order was passed in terms of the powers vested
with the EPA to seal the unit of the Petitioner. Learned Law Officer
argued that the EPA has power to implement its orders under Section
16(3) read with Section 16(2) of the Act. She argued that when a
person does not comply with the order of the EPA, the EPA can
initiate action under the Act and can also take necessary measures to
ensure that the direction given in the EPO is implemented. In this case
an immediate stop order was passed on 6.11.2015, subsequent
inspections were carried out and it was seen that the Petitioner was not
compliant with the EPO. Sufficient warnings were given to him,
opportunity of hearing was provided and ultimately in order to prevent
the continuation of the environmental hazardous, sealing order was
issued on 11.1.2017. Learned Law Officer has placed reliance on the
case titled Ms. Imrana Tiwana and others v. Province of Punjab and
others (2015 CLD 983) to urge the point that right of appeal is
provided for under the Act and remedy of a second appeal is also
available before a Division Bench of this Court. However, the
Petitioner has failed to avail the said remedy provided for under the
Act, hence the instant Petition is not maintainable.
5.
Arguments heard and record perused.
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6.
On the issue of maintainability the question before the Court is
with reference to the power exercised by the EPA under Section 16 of
the Act. Learned Law Officer further argued that since the remedy of
appeal is available to the Petitioner, the instant Petition is not
maintainable. However given that the question involved relates to
interpretation of Section 16 and the powers of the EPA versus power
of the tribunal to enforce the EPO, the remedy of appeal is not
efficacious. Hence the instant Petition is maintainable.
7.
The basic question raised in this Petition is whether the EPA
has the power to seal a unit which is not compliant with the EPO.
Section 5 of the Act authorizes the Director General to carry out all
powers and functions of the EPA and Section 5(5) of the Act allows
the Director General to delegate any of his powers. By way of
Notification No. 176/F-02/LS dated 21.08.2007 and 503/F-02(VII)/LS/EPA dated 27.02.2008, the powers and functions under the
EPA were delegated by the Director General with respect to the
different provisions of the Act. The Notification mentioned above
delegates powers to the Deputy Directors in matters pertaining to
Section 16 of the Act. Section 16 of the Act being the relevant
provision is reproduced hereunder:Environmental protection order.(1) Where the Provincial Agency
is satisfied that the discharge or emission of any effluent, waste, air
pollutant or noise, or the disposal of waste, or the handling of
hazardous substance, or any other act or omission is likely to occur,
or is occurring, or has occurred, in violation of any provisions of this
Act, rules or regulations or of the conditions of a licence, or is likely
to cause, or is causing, or has caused an adverse environmental
effect, the Provincial Agency may, after giving the person
responsible for such discharge, emission, disposal, handling, act or
omission an opportunity of being heard, by order direct such person
to take such measures as the Provincial Agency may consider
necessary within such period as may be specified in the order.
(2)
In particular and without prejudice to the generality of the
foregoing power, such measures may include—
(a)
immediate stoppage, preventing, lessening or
controlling the discharge, emission, disposal,
handling, act or omission, or to minimize or remedy
the adverse environmental effect;
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(b)
installation, replacement or alteration of any
equipment or thing to eliminate or control or abate on
a permanent or temporary basis, such discharge,
emission, disposal, handling, act or omission;
(c)
action to remove or otherwise dispose of the effluent,
waste, air pollutant, noise, or hazardous substances;
and
(d)
action to restore the environment to the condition
existing prior to such discharge, disposal, handling,
act or omission, or as close to such conditions may be
reasonable in the circumstances, to the satisfaction of
the Provincial Agency.
(3)
Where the person, to whom directions under sub-section (1)
are given, does not comply therewith, the Provincial Agency may, in
addition to the proceedings initiated against him under this Act or the
rules and regulations, itself take or cause to be taken such measures
specified in the order as it may deem necessary and may recover the
costs of taking such measures from such person as arrears of land
revenue.
8.
Section 16 of the Act governs the procedure and powers related
to an EPO. An EPO is a written order that is designed to protect the
environment. It is issued to secure compliance by a person who is
causing harm to the environment in order to protect human health and
the environment. It specifies the sensation of the harm and provides
for the methods to cure or stop/prevent the harm within a given time
frame. Essentially the EPO provides the action that needs to be taken
and the timeframe during which it must be taken, to rectify the wrong.
In terms of Section 16(1) of the Act, the EPA has to satisfy itself that
there is discharge or emission of any waste or pollutant or noise in
violation of the Act. Once satisfied it must give an opportunity of
hearing to the person causing the pollution and can then pass an order
directing the person to take necessary measures to cure the problem.
However, the EPO can also direct measures requiring immediate
action. The measures under Section 16(2) of the Act require instant or
emergent action, such as immediate stoppage or immediate control of
the equipment or thing causing the pollution or removal or disposal of
the hazardous or pollutant substance or action that helps restore the
environment to the condition it was in before the pollutant. While the
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EPO under Section 16(1) of the Act provides for remedial or
corrective measures to cure pollution or stop further pollution; Section
16(2) of the Act lays down preventative measures that require
immediate action for an immediate effect. Therefore the distinction
between Section 16(1) and (2) is essentially that the latter
acknowledges the need for immediate action as a necessary response
mechanism to imminent threat or irreparable damage to the
environment.
9.
The vital question is whether the EPA can enforce its orders
under the EPO where a person fails to comply with the measures
prescribed by the EPA. In terms of Section 16(3) of the Act, the EPA
can either proceed against the person under the Act which could mean
proceeding under Section 17 of the Act to impose penalties or
proceeding under Section 21 of the Act where it can file a complaint
against the person disobeying the EPO or it can itself take or cause to
be taken such measures necessary in the order to implement its EPO.
Therefore Section 16(3) of the Act itself provides for an enforcement
mechanism which is in addition to remedy under the Act. The
mandate of the law under Section 16(3) of the Act is very clear. An
EPO can be passed to prevent any form of pollution be it air, water,
noise or waste or handling of hazardous substance. Section 16(3) of
the Act is an enabling provision to ensure compliance with orders
under section 16(1) and (2) of the Act, enabling immediate action by
the EPA to enforce orders where necessary. The need to provide for
enforcement powers in the EPA is essential given that immediate
measures may be required to prevent environment degradation. The
purpose and overarching objective of the Act to protect the
environment and promote sustainable development would be rendered
redundant if such powers did not exist.
10.
The spirit of Section 16 of the Act is based on the
Precautionary Principle. The Precautionary Principle requires the
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relevant agency to anticipate the danger and take immediate steps to
prevent harm or danger to the environment. The Rio Declaration and
Agenda 21 in 1992 adopted the Precautionary Principle as a necessary
mechanism in the following terms:
…to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for
postponing cost effective measures to prevent environment
degradation. (Article 15, Rio Declaration)
Essentially, the Precautionary Principle is a tool for ensuring
sustainable development. The court in M.C. Mehta v. Union of India
Court (1997 (2) SCC 353: AIR 1997 SC 734) affirmed that, „The
Precautionary Principle‟ and „The Polluter Pays Principle‟ are
necessary tools for sustainable development. The court elaborated on
this, holding that:
If an activity is allowed to go ahead, there may be irreparable
damage to the environment and if it is stopped, there may be
irreparable damage to economic interest. In case of doubt, however,
protection of environment would have precedence over the economic
interest. Precautionary principle requires anticipatory action to be
taken to prevent harm. The harm can be prevented even on a
reasonable suspicion. It is not always necessary that there should be
direct evidence of harm to the environment.
The Precautionary Principle was further recognized by the G8
Ministers in 2002 as a means to safeguard the protection of the
environment. Therefore the Precautionary Principle focuses on
empowering regulators to act in anticipation of environmental harm
and ensure it does not occur. Pakistan‟s commitment to uphold
sustainable development and the Precautionary Principle was affirmed
through ratification of the Rio Declaration (ratified 01-06-1994) and
several other international instruments (United Nations Framework
Convention
on
Climate
Change
(ratified
01-06-1994),
The
Biodiversity Convention (ratified 01-06-1994), etc). The Bhurban
Declaration 2002 further emphasized the need to take immediate
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action and employ the Precautionary Principle to protect life and
nature for present and future generations.
11.
Since the Ms. Shehla Zia and others v. WAPDA case (PLD
1994 SC 693), superior courts have taken an active approach in
accepting environmental justice and recognized the Precautionary
Principle as an integral issue. In the cited case the court held that:
The rule of precautionary policy is to first consider the welfare and
safety of the human beings and the environment and then to pick up
a policy and execute the plan which is more suited to obviate the
possible dangers or make such alternate precautionary measures
which may ensure safety. To stick to a particular plan on the basis of
old studies or inconclusive research cannot be said to be a policy of
prudence and precaution.
Following this, several cases have acknowledged the Precautionary
Principle and its importance as an enforcement mechanism for
protection of the environment and sustainable development. The
Supreme Court in Adeel-Ur-Rehman v Federation of Pakistan held
that:
It is the duty of the State to see that the life of a person is protected
as to enable him to enjoy it within the prescribed limits of law.
Pollution, environmental degradation and impure food items also fall
in the category of deprivation of life. [2005 PTD 172]
In Imrana Tiwana v. Province of Punjab (2015 CLD 983), the court
took this further and established environmental justice as a concept
that fell within the scheme of the Constitution,
To us environmental justice is an amalgam of the constitutional
principles of democracy, equality, social, economic and political
justice guaranteed under our Objectives Resolution, the fundamental
right to life, liberty and human dignity (article 14) which include the
international environmental principles of sustainable development,
precautionary principle, environmental impact assessment, inter and
intra-generational equity and public trust doctrine. Right to
environment that is not harmful to the health or well-being of the
people and an environment that protects the present and future
generations is an essential part of political and social justice and even
more integral to the right to life and dignity under our Constitution.
In Ali Steel Industry v. Government of Khyber Pakhtunkhwa and
another (2016 CLD 569) the need to use precautionary and
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preventative measures to ensure the protection of rights under Article
9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973
was reaffirmed. The court found no illegality with respect to the
sealing of the premises or the direction of stoppage to the petitioner
even though the Khyber Pakhtunkhwa Environmental Protection Act
2014 did not extend to PATA. The court stressed on the duty to
combat environmental degradation, again pointing towards the need
for immediate enforcement mechanisms.
12.
Therefore it is clear that the state and its officers must employ
measures to achieve environmental justice and preserve the
environment. With the growth of jurisprudence on the establishment
of environmental justice in Pakistan, it is necessary to now shift the
focus on enforcement mechanism especially where certain kinds of
harm or pollution which require immediate stoppage, must be
stopped. The Act emphasizes on immediate measures empowering the
EPA to protect the environment where there is imminent threat to the
public or cause to believe environmental degradation/pollution will be
irreversible. In such cases, the enforcement mechanism must act
immediately to effectively control the harm and prevent any further
degradation without this power of enforcement the issuance of an
EPO under Section 16(2) of the Act specifically would become
redundant. If the EPO requires immediate stoppage or immediate
removal of the pollutant then allowing the harm and pollution to
continue would defeat the purpose of Section 16(2) of the Act.
13.
Another aspect of the case is the argument that due process was
not followed. In this case notices were issued but since he did not
appear, no hearing was given prior to the sealing of the unit. While
due process and the right to a fair trial are embedded in Article 10A of
the Constitution of Islamic Republic of Pakistan, 1973, the objective
of the constitutional protection is to achieve justice. In cases of strict
liability, where damage to the environment is irreversible and
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permanent, immediate action is fortified in order to prevent
irreparable damage. In such cases it is necessary to take precautionary
measures, which do not immolate or infringe the right to fair trial or
due process, but simply ensure that a harm or hazard does not
continue during the time spent in due process. The august Supreme
Court of Pakistan held in the case titled Warid Telecom (PVT.)
Limited v Pakistan Telecommunication Authority (2015 SCMR 338)
that where actions are taken to stop more injustice from happening
then such actions should not be seen as a violation of the right to fair
trial or due process. In this case the august Supreme Court of Pakistan
quotes Karnataka Public Service Commission v B.M. Vijaya Shankar
(AIR 1992 SC 952):
When meeting the requirement of notice and providing an
opportunity of hearing will cause “more injustice than justice” or it is
not in the “public interest” the same may be withheld.
Was natural justice violated? Natural justice is a concept which has
succeeded in keeping the arbitrary action within limits and
preserving the rule of law. But with all the religious rigidity with
which it should be observed; since it is ultimately weighed in balance
of fairness, the courts have been circumspect in extending it to
situations where it would cause more injustice than justice. Even
though the procedure of affording hearing is as important as
decisions on merits yet urgency of the matter, or public interest at
times require, flexibility in application of the rule as the
circumstances of the case and the nature of the matter required to be
dealt may serve interest of justice better by denying opportunity of
hearing and permitting the person concerned to challenge the order
itself on merits not for lack of hearing to establish bona fide or
innocence but for being otherwise arbitrary or against rules.
The Petitioner‟s contention that the right to due process and Article
10A of the Constitution of Islamic Republic of Pakistan, 1973 was
violated is not sustainable because public safety, public health and the
environment must be protected from irreparable harm. In this case, the
issue of noise pollution and vibrations were exceeding the NEQS,
hence it required immediate action to secure public health and safety
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especially since the Petitioner had totally failed to rectify the cause of
the harm in any manner whatsoever. Thus, there is no violation of
Article 10A of the Constitution of Islamic Republic of Pakistan, 1973.
14.
In this case the EPA acted strictly in accordance with law. In
fact it complied with the requirement of due process and gave the
Petitioner sufficient time to comply with the EPO dated 6.11.2015.
However, not only was the Petitioner unable to provide any
mechanism to control the noise pollution but he blatantly and
flagrantly disobeyed the EPO and once action was taken against him,
he challenged the legality of the order. More than one year lapsed
after the issuance of the EPO yet on successive inspections of the unit
it was noted that no effort was made by the Petitioner to rectify the
noise pollution or the vibration, nor did Petitioner attempt to comply
with the EPO. The argument of the learned counsel that the power of
sealing lies only with the Tribunal and that the EPA was required to
file a complaint under Section 21 of the Act is totally misconceived.
Section 21(7) of the Act provides that an application can be filed by
any officer authorized by the Director General of the EPA if there is
reasonable suspicion of his having been involved in contravention
punishable under Section 17(1) of the Act which was available to the
EPA in addition to the power it has to execute the measures provided
in Section 16(2) of the Act. In the event that there is non-compliance
of Section 16(2) of the Act, Section 16(3) enables the EPA to, itself
take the measures that are prescribed in the EPO. The use of the words
itself take or cause to be taken in Section 16(3) of the Act are for the
benefit of the environment and empowers the EPA to enforce its
orders in order to stop pollution which causes imminent danger to the
people and the locality.
15.
Learned counsel for the Petitioner has also placed reliance on
the case cited at 2016 CLC 1095 (supra) wherein it was held that the
department did not have the power to seal the property. The said case
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is distinguishable on the facts. In this case an order was passed by the
Tribunal with regard to the pollution caused by the factory of the
appellant. The appellant filed an appeal before the EPA which was
first dismissed and then subsequently restored. However, during the
process of restoration the officials of EPA sealed the factory of the
appellant for non-compliance of the EIA. The issue in that case was
with reference to the sealing carried out under Regulation 20 of the
Pakistan Environmental Protection Agency (Review of IEE and EIA)
Regulations, 2000 whereas in the instant case the unit was sealed for
non-compliance of the EPO. Therefore the case is distinguishable and
not applicable to the facts of this case.
16.
Under the circumstances, no case for interference is made out.
Petition is dismissed.
(AYESHA A.MALIK)
JUDGE
Approved for Reporting
JUDGE
Allah Bakhsh*