MUHAMMAD RAZA KHAN, C.J.---A civil suit was instituted by the present petitioner Haji Muhammad Hussain seeking a perpetual injunction against defendant/respondent No,2 with a purpose to restrain him from operating the Stone Crushing Plant near the residential area of the plaintiff. There is also a prayer for mandatory injunction to direct the said respondent/defendant to remove the plant and there is also a request for cancellation of the licence dated 1-12-2006.
2. The facts stated in the plaint are that defendant No,2 has installed a Stone Crushing Plant in the year 2006 near the village where the plaintiffs reside. Allegedly the plaintiffs moved several applications to the concerned authorities but they could not get a relief. Even the application under the. Local Government Ordinance failed to achieve a positive result. Hence there was a request for the removal of the said plant as it was creating hardship to the residents of the area by dust and noise pollution and since respondent/defendant No,1 had issued a license without the actual verification of the damage done to the residents of the area by the concerned quarter, therefore, the prayer for cancellation of such license dated 1-12-2006 was also added to the suit.
3. The defendants contested the suit on legal and technical grounds specifically raising the issue of jurisdiction of the civil Court in view of the Environmental Protection Law. An other independent application for the rejection of the plaint under Order VII, Rule 11, C.P.C. Was also submitted by the defendant-respondent. After getting a reply from the plaintiff, the case was fixed for arguments. In the meanwhile, the plaintiff submitted an application for the amendment of the plaint on 30-3- 2007. The learned trial Court heard arguments on the application for temporary injunction, as well as the application for the rejection of plaint and the prayer for amendment of the plaint. On the adjourned date, the learned trial Court came to the conclusion that the Civil Court has no jurisdiction in view of section 21(9) of the Environmental Protection Act, 1997 and therefore, the plaint was returned for submission to the appropriate forum and consequently the application for temporary injunction was also returned. The application for amendment of the plaint was declined with the observation that the plaintiff can institute an independent suit for damages if he so desires. The plaintiffs challenged the said order in appeal but the learned Additional District Judge- II, Lower Dir at Timargara vide the impugned I judgment dated 27-4-2007 dismissed the appeal as well. Hence this revision petition.
4. I have listened to the arguments of the learned counsel for the parties and scrutinized the available material.
5. Both the courts have held that in view of the provision contained in the Environmental Protection Act, the civil Court did not have the jurisdiction to hear and decide the suit relating to pollution and therefore, the plaint was returned for presentation to the appropriate forum. The learned counsel for the petitioner argued that the civil Court was the Court of ultimate jurisdiction and the environmental laws do not exclude the jurisdiction of a civil Court in the matters covered by the Environmental Protection Act as well as by the normal law relating to the civil rights of the parties.
The respondents however, argued that with the promulgation of the Environmental Protection Act the jurisdiction relating to pollution etc. Fall within the exclusive jurisdiction of Environmental Protection Tribunal and therefore, the civil Court was left with no authority to determine the controversy between the parties as the same could only be resolved by the Tribunal. Subsection
(9) of section 21 of the Environmental Protection Act, 1997 lays down:-
(9) No Court other than an Environmental Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of an Environmental Tribunal extends under this Act or the rules and regulations made thereunder."
6. By referring to the investigation conducted under the Environmental Protection Act, both the Courts have held that since the local investigation has confirmed that the dust was not creating any hardship to the people residing in the nearby area particularly when the defendant- respondent has installed the Dust Protection Mechanism in the form of a room and a sprinkler and therefore the requirement of the law has been satisfied and no action under the said law was possible against the defendant/respondent.
7. The observation of the Courts, refusing to exercise jurisdiction indicates the lack of appreciation of the nuisance created by a Stone Crushing Plant. The perusal of the comments submitted by the respondent-Department to the Environmental Protection Tribunal indicates that the location of the said plant near the residential area at the road side was confirmed. However, it was explained that under the instructions of the concerned authorities, the defendant-respondent had taken various steps to comply with the legal provision for minimizing the fact of pollution. Allegedly the defendant/respondent had developed Water Sprinkling filter System on the conveyor built whereby the dust settles down and does not mix with the surrounding air and so the environment has been protected from the air pollution due to dust emission. Moreover, it was reported that with the construction of a dust control room over the crushing machine has controlled the dust generated through the process of, crushing of stone. The entire effort of the local authorities for the prevention of pollution have focused their attention to the dust which normally emits during the process of stone crushing and allegedly, a room over the plant and sprinkling of water over the crushed material on the conveyor built is considered to be sufficient to provide a healthy atmosphere to the local residents. However, the fact of noise pollution has not been properly evaluated. The noise created by unloading the stone/bolders at the crushing site, the uploading thereof in the jaw crusher and the process of crushing as well as grading thereof certainly creates noise, in addition to dust, which may be unbearable for the nearby residents.
8. The purpose of the Environmental Protection Act, 1997 is to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development The term "pollution" has been defined in clause =CH of section 2 of the Act in these words:-- "(xxxiii). "pollution" means the contamination, of air, land or water by the discharge or emission of effluents or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties or the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity."
' Similarly, the term noise has been defined in Clause (30) thereof:- "(xxx). "noise" means the intensity, duration and character of sounds from all sources, and includes vibration."
9. The term environment and environmental assessment has been defined in Clauses 10 and 11 thereof. Thus, not only noise but air pollution and other factor disturbing the ecology bio diversity or the heath of the citizen is the major aim of the said law. Section 11 of the Act prohibits certain discharge and emission whereas section 12 provides for the environmental impact assessment. By section 16, a procedure has been laid down for regulating the environmental protection and section 17 provides for the penalty for the contravention of the legal provision under the said Act which also includes the sentence of fine, imprisonment, closure of the factory, confiscation of machinery and equipment and section 21 thereof provides for the exercise of jurisdiction and powers of the Environmental Protection Tribunal which includes subsection (9), reproduced hereinabove.
10. The scheme of the statute gives a look of an impressive and protective instrument which eliminates the possibility of exercise of jurisdiction by any other forum including the civil Court.
However, the deeper appreciation would lead to the conclusion that the said law does not satisfy the protection of F all the civil rights of the citizen which may be adversely affected by an irresponsible entrepreneur whereby nuisance may be caused to the citizen and in addition .To the potential damage to the health, inconvenience faced by such citizen would go unchecked. The present case is a typical example of the misuse of authority by the officers responsible for the proper protection of environment. The plaintiff/petitioner is aggrieved mainly of the noise but the local Inspectors are merely satisfied that at the time of their inspection of the functioning of the plant, the dust was still due to the use of sprinkler on the conveyor belt but they have not been able to confirm that the use of a sprinkler shall be automatic with the running of the crushing plant.
There is also no indication that the dust shall not be emitted in the case when the sprinkler is out of order. No report has been made with regard to the mechanism for protection of noise pollution. The allegation of unbearable noise at late at night by the unloading and reloading of boulders has not been noticed. The judicial notice of such a noise can be taken that with the existence of such plant, at a distance of more than a kilometer, the peace and convenience of the residents of the area is disturbed whereas the alleged plant was installed merely at a distance of a furlong from the residential area.
11.The exclusion of jurisdiction under section 21 relates to the exercise of an authority to which the jurisdiction and power of the Environmental Protection Tribunal extends which has to act as an appellate authority under section 22 of the Act against the orders of a Federal or Provincial Agency under the provision of the Act or the rules and regulations. There is no information as to whether the said rules and regulations have been framed and approved as per sections 31 and 33 of the Act. But subsection (9) of section 21 shall at the most exclude the powers falling within the jurisdiction of the Tribunal. The provisions relating to the regulation procedure for protecting the environment and for the imposition of penalty is the exclusive jurisdiction of the Federal and Provincial Agencies and the exercise of such power has not been excluded from the operation of the jurisdiction of other Courts. The penalty under section 17 can be imposed by the Environmental Magistrate under section 24 of the Act. Thus it can be held that the prayers contained in the suit instituted by the plaintiff petitioner were not directly the matters falling within the exclusive jurisdiction of the Environmental Tribunal and therefore, the jurisdiction of the civil Court was not ousted by the said provision of law. At the most it can be observed that a decision by E.P.A. Or the Magistrate can be challenged exclusively with a Tribunal and the jurisdiction of the Civil Court shall be barred to that extent. The plaintiff had asked for the prohibitory and mandatory injunction which was the exclusive jurisdiction of the civil Court. He had also prayed for the cancellation of license dated 1-12-2004 for the installation of Stone Crushing Plant issued by the District Coordination Officer. This part of the prayer did not fall within the competence of any of the authorities.
Magistrate or Tribunal under the said Act. The additional prayer sought to be included in the plaint related to the recovery of damages was certainly the exclusive jurisdiction of the Civil Court. Even otherwise, the determination of question whether an act or omission by the defendant whereby the civil right of the petitioner or the environment of an area was being adversely affected was a pure question of fact which could be determined after recording evidence and therefore, the return of the plaint through the impugned order was not in conformity with the established practices.
12. In view of the above, this petition is allowed, the impugned judgments of both the courts are set aside and the matter is remanded to the learned trial Court for the adjudication of the suit on merits after recording evidence. No order as to costs.