' The above titled private complaint has been filed by the complainant Sumatra Awan, Advocate as Secretary General of Eco Green Society Pakistan (Registered) against 11 respondents, complaining that the respondents had constructed the Mall-Canal crossing-underpass and was in the process of constructing FCC road. Canal Crossing-underpass with an estimated cost of more than two hundred million of each underpass. Allegedly the projects have adverse environmental effects, degrading life of citizens and are health hazardous for her family members and a large number of people. It is further alleged that mandatory provision section 12(1) of Pakistan Environmental Protection Act, 1997 and rules and regulations prescribed thereunder were not fulfilled as the respondents, specially the respondents Nos.1 to 7 were obliged to file an environmental impact assessm ent (EIA) with the Provincial Environmental Protection Agency, (EPA) and only after having the NOC, the projects should have been commenced for the construction. Explaining the adverse Environmental effects, the complainant alleged in the complaint that eleven hundred fully grown up trees on the Canal Banks had been cut down, which had caused temporary and permanent adverse effects on the Environment by way of:--
(I) Loss of flora and fauna and natural habitat for the biodiversity.
(II) Over exploitation of renewable resource.
(III) Increase in city atmospheric and surface temperature.
(IV) Increase of green house gases in the city.
(V) Increase of suspended particulate matter in the air.
(VI) Loss of green belts and walk ways of Canal Bank.
2. The complainant relying upon legal maxim, "Salis Topli Supreme Lex" (Welfare of the Public is Supreme Law), places herself within the ambit of aggrieved person to file the private complaint before this Tribunal after issuance of mandatory notice of not less than 30 days before filing of the complaint, to the EPA Punjab.
3. She requests to take action against the offenders under section 17 of the PEPA, 1997 and to stop them on-going process of construction till filing of EIA of said projects and obtaining of NOC thereof. Any other relief which this Honourable Tribunal deems fit to be granted to the complainant for the matter in hand, has also been prayed for.
4. All the respondents filed their respective replies to the complaint, wherein the main contender i,e, the respondents Nos.1 to 3 (Government of the Punjab through its Secretary, Communication and Works Department (C&W), Government of the Punjab, Old Anarkali, Civil Secretariat, Lahore, Ch. Munawar Bashir, XEN, Project Incharge (The Mall and FCC Underpass Projects), C& W Department, McLeod Road, Lahore), respondents Nos.4 & 5 (the concerned Officers/Projects Manager/Site Incharge for Contractor Messrs SKB), respondents Nos.6 and 7 ( the project consultant/Site Incharge on behalf of the consultant) (NESPAK) and the respondent No,8 (Director, Parks and Horticulture Authority, (PHA), denied the charges, specially pleading that firstly, for the Government of the Punjab, the compliance of provision of section 12 of Environmental Protection Act, 1997 (EPA) was never required, secondly, to the extent of contractors, the liability to obtain the NOC for the projects was not legally indictable as in case, if the same was must, the respondents Nos.1 and 2 were the proponent of the Projects, thirdly, the cut of trees were the requirements for the project, the project on its own place, was Environment friendly and moreover those cut trees had been substituted by new plantation of sapling more than three times in numbers than the cut trees at the sites.
5. After filing of the said replies and before framing of charges against the respondents, two applications under section 265-K, Cr.P.C. Were filed, first one by the respondents Nos.4 and 5 and the second one, by the respondents Nos.1,2 and 3, for acquittal of the said accused respondents.
Before proceeding upon the merits of the application, it is felt appropriate to jot down the admitted facts of the case in hand as the Tribunal is very much au courant of the legal notion that before framing of the charge (indictment of the accused) or recording of evidence, the application under section 265-K, Cr.P.C., is only considerable, when:--
(i) either exclusively legal question;
(ii) or mixed question of law and facts or question of facts.
' Which are answered positively from the record so for built before the Tribunal, arises and the answer thereof makes the accusation not warranted by law.
5.1. None of the respondents specially the contending one obtained any NOC from the Environmental Protection Agency, Punjab after filing an Environmental Impact Assessment.
5.2. More than one thousand trees, including a few as old as hundred years in age, have been cut down.
5.3. By now both the underpasses had been completed and are in operation.
5.4. Both the projects were initiated by the Government of the Punjab, Communication and Works Department by issuing terms of references to the NESPAK (the consultant) and were cleared initially by the Provincial Development Working Party (PDWP), then by Central working Development Party (CDWP) and finally were approved in the meetings of the Executive Committee of the National Economic Council, Government of Pakistan (ECNEC).
6. Now reverting to the application, the main contentions of the applicants are quoted hereunder:- -
(I) The projects have been completed therefore, the complaint has become infructuous.
(II) The filling of EIA, as per policy and procedure for filing of review and approval of EIA, Schedules I and II was never required.
(III) The consultant considered the Environmental aspects at length in the feasibility reports of the projects and moreover at the time of Environmentalists like the Secretary Environmental Division was especially invited in the meeting.
(IV) Respondents Nos.4 and 5 being the contractors, were not responsible for obtaining the NOC of the projects from the EPA, Punjab after filing of EIA hence to his extent no violation of section 12 of Environmental Protection Act, 1997 is attributable.
7. Taking the first objection pertaining to alleged commissioning of the projects after their completion to render the complaint as infractuous, we quote the provision of section 12(1) of Environmental Protection Act, 1997 hereunder:-- "No proponent of a project shall commence construction or operation unless he has filed with the Government Agency designated by Federal Environmental Protection Agency or Provincial Environmental Protection Agencies, as the case may be, or, where the project is likely to cause an adverse Environmental effects an Environmental Impact Assessment, and has obtained from the Government Agency approval in respect thereof."
8. It is to be read with provision of section 17 of the said Act which reads as:-- "Whoever contravenes or fails to comply with the provisions of sections 11, 12, 13 or section 16 or any order issued thereunder shall be punishable with fine which may extend to one million rupees, and in the case of a continuing contravention of failure, with an additional fine which may extend to one hundred thousand rupees for every day during which such contravention or failure continues."
9. Obviously the contravention connotes the act or omission done or committed in the past, therefore, no one can plead that since the past is over hence the courts or Tribunals are functus officio to take the cognizance of the offence. Rather it is always cognizable when the act or omission had 'actually been done or committed by an offender and so is reported. The cognizance of an offence is not warranted for acts or omission or offences likely to be done or committed or merely so apprehended to be committed.
10. Elaborating the second point the applicants projected the arguments that as per Schedule II, of the PEPA, 1997, the re-building or re-construction of existing major road does not require "EIA". Both these under-passes lie at the right on way "Canal Bank Road, Lahore, having been declared a major Road and adding an underpass is a re-construction of existing road therefore, this addition is exempted. They further alleged that underpasses are merely an invert of bridges, whereas the bridges are essential components of the major roads, hence internationally the bridges and underpasses are considered the structures, highbred to road work. As per provision of Article 4 of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, the proponent of a project listed in Schedule II shall file an EIA with the Federal Agency and the provision of section 12 shall apply to such project. Likewise Article 5 of the same is quoted hereunder:--
5. Projects not requiring an IEE or EIA. (1) proponent of a project not falling in any category listed in Schedules I and II shall not be required to file an IEE or EIA; ' Provided that the proponent shall file:--
(a) An EIA, if the project is likely to cause an adverse environmental effect;
(b) (not quoted)
(2) (not quoted)
(3) The provisions of section 12 shall apply to a project in respect of which an IEE and EIA is filed under sub-Regulation (1) or (2).
11. The Schedule-II embodied a list of projects requiring an EIA on the basis of different categories such as:--
(A) Energy;
(B) Manufacturing and processing;
(C) Mining and Mineral processing;
(D) Transport;
(E) Water Management, dams, irrigation and flood protection;
(F) Water supply and Treatment;
(G) Waste Disposal;
(H) Urban Development and Tourism;
(J) (Sic) Other projects.
12. It is pertinent to mention that the list of projects under each category or even the categories quoted above are not comprehensive in any respect to cover all the activities likely to be defined as a "project"". Moreover the defined projects are ambiguous vis-a-vis their prescription in the list and one will remain always confused that what type of quantitative or qualitative work tantamount to be covered as a project, as defined in a particular category. The first example can be had, among others, from the very first category quoted hereunder:-- A. Energy
(1) Hydroelectric power generation over 50 MW;
(2) Thermal power generation over 200 MW;
(3) Transmission lines (11 KV and above) and grid stations;
(4) Nuclear power plants;
(5) Petroleum refineries.
13. One can easily question about the comprehensiveness of it by raising finger that in this category (Energy), the Solar or wind Energy or next generation Hydrogen based energy units have not been inducted into. For second, examples can be had from the category "D" quoted hereunder:-- D. Transport.
(1) Airports;
(2) Federal or Provincial Highways or major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cost of Rs,50 million and above;
(3) Ports and harbour development for ships of 500 gross tons and above;
(4) Railways works."
14. One cannot precisely think that what type of Railways Works in the above category requires EIA as, mere describing; "Railway works" does give an impression that all types of works relevant to Railway, however, subject to falling within the definition of, "Project", as defined by section 2(xxxv) of the Environmental Protection Act, 1997, require EIA, no matter it might be as small as substituting a Railway Line or diverting the existing Railway track or Manufacturing each and every new locomotive Engine or Railway Bogy or building a new track in an area, where the Railway facility was not previously in existence.
15. Anyhow deliberating upon the projects listed at No,2 of above quoted category of transport (Federal or Provisional Highway or Major Roads with the total cost of 50 million and above) it is observed that exception is only for maintenance, rebuilding or reconstruction of existing roads. The applicants maintain that underpasses at both the under discussion points of Canal Road are to be considered reconstruction of existing roads.
16. We do not agree with the contention of the learned counsel as the phrase, "Reconstruction" is distinguishable from the phrase, "Construction". The phrase reconstruction, as per Black's Law Dictionary Seventh Edition has been defined as:-- "Reconstruction.
1. The act or process of re-building, recreating, or reorganizing some thing < an expert in accident reconstruction>.
2. Patents. A rebuilding of a broken, worn-out, or otherwise inoperative patented article in such a way that a new article is created, thus resulting in an infringement .
3. (Cap.) The process by which the Southern states that had seceded during the Civil War were readmitted into the Union during the years following the war (i,e,, from 1865 to 1877) < the 13th, 14th, and 15th amendments to the U.S. Constitution are a lasting legacy of Reconstruction."
In simple words we hold that reconstruction means to restore the existing road in its original shape, type and in dimensions without touching any addition or subtraction. Even otherwise to our view, "adding capacity to the roads system is always a new construction, what bears, by its nature, impacts to natural and social Environment. It is differentiable from, "maintenance or "rebuilding" or even "improvements", what generally refer to superficial changes such as up grades and resurfacing.
The category J of Schedule-II is also quoted hereunder:-- J". Other projects.
(1) Any other project for which filing of an EIA is required by the Federal Agency under sub- Regulation (2) of Regulation 5;
(2) Any other project likely to cause an adverse environmental effect."
17. Needless to quote, "Adverse Environmental Effect" as per provision of Environmental Protection Act, 1997, but in the light of admitted fact that approximately one thousand (1000) fully grown-up (some more than hundred years in age) trees were cut-down and so was even determined before the feasibility report, as the respondents Nos.1 to 3 explained it their written reply that some 1250 trees were to cut-down, we are definite in placing these projects of underpasses into this category i,e, J (2) of the Schedule-II, which in fact is an outcome of Regulation No,5(1)(a) of Pakistan Environmental Protection Agency (Review of IEE and ETA) Regulations, 2000, quoted hereinbefore in paragraph No,10 of this order. The fact that the respondents ,,Nos.1 to 3 were aware about the likeliness of adverse Environment effects of the projects, is very much clear from their Terms and Reference made to the consultant (NESPAK) and so the consultant under specific headings dealt with the subject of Environmental effects of the projects during construction and afterwards completion, in a manner to its own expert experience, (Annexure-A appended with the reply submitted by the respondents Nos.1 and 2).
18. Apart from discussing, "Underpass" a, "Project requiring EIA", an other fact brought on record by the respondents Nos.1 to 3 draws, our attention to make some radical change in the whole scenario of the case in hand. The paragraph No,4 of their reply discloses that the feasibility reports of both of the projects were completed in June, 2003 and both of the projects were placed before the Provincial Department Working Party (PDWP). After approval from the PDWP the same were placed before the Central Development Working Party (CDWP) who after considering it thread barely, placed them before the Executive Committee of National Economic Council (FCNFC). They have also approved the minutes of the meeting of Central Development Working Party (CDWP) held in July, 2003, pertaining to Item No,CD-35, Construction of Underpass at Mall Canal Crossing Intersection. A relevant observation, recorded in the minutes of the meeting is reproduced hereunder:-- ".............. The proposed underpass would be used only by the light vehicles, while the heavy vehicles would continue to pass through the intersection at ground level. The proposed facility was a part of the Master Plan for the Transportation System of Lahore City for the next 20 years. According to the sponsoring Agency the feasibility of the proposed project had been established in 1999 by the Traffic Engineering and Planning Agency (TEPA) of Lahore Development Authority (LDA). He informed that a lot of issues relating to the design of the underpass and its authenticity, traffic, capacity, scope, structures, acquisition of land etc. And consultancy were raised which had been replied to by the Sponsoring Agency"
' In reply to a query by the Secretary, Planning and Development Division as regards the priority of the proposed project, it is informed that these are within the master plan of the city for 20 years.
The representative of the Sponsoring Agency further informed that it was one of the 19 projects identified by the Japan International Cooperation Agency (JICA) in their 1994 study for the improvement of traffic management system for the metropolitan city of Lahore..............
19. The FC College Underpass project approval also underwent the same process just after few months of the approval of the Mall Underpass Project. The consideration of it was not even deliberated upon for the obvious reasons that the same was out of the above cited 19 projects identified by the Japan Corporation Agency (JICA) in their 1994 study for the improvement traffic management system for the metropolitan city of Lahore. Needless to observe that a few underpasses alongside canal had already been completed few years early then these two, as referred in the minutes, of the same meeting, quoted hereinabove. This connotes that these nineteen projects either in the shape of underpasses or of some other designs and nature, are in fact parts of a Complete Whole One Project, which partially has been executed or undertaken and the rest is to be executed, the details of which have not been made known to the public or to this Tribunal. This, "Complete Whole One Project" can safely be termed as, "Transport System", as per definition of the "project", defined-by section 2(xxxv) (b) of the PEPA, 1997, whereby the construction or se of roads or, other transport system have been defined as project.
20. Taking up the present complaint with regard to a part of a transport system project of Lahore City for next 20 years, the Tribunal has no hesitation to observe that this whole of the "Transport System" requires IEE and EIA instead of each and every subproject separately, either completed or yet to be undertaken.
21. Here comes an auxiliary question to be answered with regard to plea taken by the respondents Nos.1 to 3 to the effect that since, in the feasibility report the consultant (NESPAK) evaluated the Environmental effect of the projects during construction period and after completion of the same and moreover in the meetings of the ECNEC, the Secretary, Environment was specially invited, therefore, the requirement of section 12 of PEPA, 1997 was not obligatory. We do not agree with the plea as the specific provisions of enacted law cannot be C by passed or defied by adopting some other unwarranted methods or procedures, no matter those procedures might be more comprehensive and complete than the one required by some enacted provision of law. We hold by observing that a particular act to be done under law must be done in the particular and specified manner as the provision of the law prescribes or requires the action of that act. Needless to observe that the assessm ents made by the consultant (NESPAK) in their feasibility reports are too generalized to compare with the requirements of submitting EIA or carry out IEE and obtaining approval hereof from EPA in a specified manner as per Regulation namely, "Pakistan Environmental Protection Agency, (Review of IEE and EIA) Regulations, 2000)." Likewise in the meetings, the higher officials of the Environment Departments, irrespective of their active or otherwise (absolutely passive participation in the present cases), like the one for these projects in the meetings of ECNEC cannot rule out the obligatory compliance of the enacted law.
22. With regard to objection raised by respondents Nos.4 and 5 (the contractor) pertaining to his alleged no liability for obtaining NOC under section 12 of PEPA, 1997, it is observed that no one can absolve on his own from the liability of executing an unlawful work/project on the plea that the contract awarding Agency was primarily obliged to comply with the provisions of law. Every executants of an unlawful work is considered equally responsible for the penalty as a co-offender as the original proponent of that unlawful work is considered as D an offender. An unlawful work to be accomplished by third party cannot be considered lawful for him either on the basis of absence of knowledge about law or any legal flaw in the assigned work to him by his master/contract assignee authority.
23. In the light of observations made in paragraph No,20, we, while disposing of the application's under section 265(k), ID Cr.P.C. As dismissed, also dispose of the present complaint in a manner that the respondents Nos.1 and 2 are directed that the whole of the project pertaining to transport system or improvements thereof based upon 20 years planning for metropolitan city of Lahore, be assessed for IEE and EIA and after preparing the both be submitted with the EPA (Punjab) for obtaining the approval under section 12 of PEPA, 1997. We intentionally withhold implementing the provisions of section 17 of PEPA, 1997 against the respondents as this Tribunal, in the larger interest of the public and to promote of the Environmental Law, specially with reference to preamble of PEPA, 1997 is more interested in promotion of sustainable development of Environment than the determining accusation of the respondents alleged in the complaint. Anyhow at the same time, upon established guilt, they cannot be let out absolutely free from penalty but for absence of lower Ceiling of penalty in section 17 of PEPA, 1997, they are issued with the warning to the extent of individual capacity of the officials concerned of each respondent-Departments (respondents Nos.1 to 7) as the provisions of section 19 are also invoked read with section 17 of PEPA, 1997.