' By this order we intend to dispose of application under Order XXXLX Rules 1 and 2 read with section 151, C.P.C. Filed on behalf of complainant.
' The brief facts giving rise to the present application are that the City District Government Karachi started construction of flyovers on Shahrah-e-Faisal as part of Signal Free Corridor-IV (SFC-IV), comprising of a series of bridges and flyovers. The complainant i,e, SHEHRI submitted its preliminary comments and pointed out that under section 12 of the Pakistan Environmental Protection Act, 1997 read with Schedule II-D(2) of Regulation 4 of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, the SFC-IV project, whose total cost would be above Rs,50 million, requires an EIA to be conducted. Repeatedly letters were written to D.G. Sindh Environmental Protection Agency, Secretary Environment, Government of Sindh and other concerned authorities, but in spite of receipt of above reminders by the CDGK and SEPA the construction work on the ground started at a number of locations illegally, without conducting the EIA. Thereafter SHEHRI issued a month's notice to SEPA under section 21(3)(b) of the Pakistan Environmental Protection Act, 1997 on 30-10-2009 and finally the present complaint has been filed before this Tribunal along with stay application with the request to restrain the respondent No,2 for proceeding with the construction of SFC-IV until the final disposal of the subject complaint.
' The respondents were served and Muhammad Imran Sabir, Incharge IEE/EIA, SEPA has filed statement before this Tribunal that according to the section 12 of the Pakistan Environmental Protection Act, 1997 and Schedule-I of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, the SFC-IV project falls under the category I (Urban Development Projects) and therefore requires IEE. At the same time learned DDPP appearing for SEPA has filed statement as under:-- "It is respectfully submitted that I am of the opinion that any project which is likely to cause an adverse environmental effects, for that project environmental impact assessment is required.
' The list projects requiring and "EIA" are mentioned in schedule-II of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessm ent Regulations, 2000.
' The Signal Free Corridor-IV (SFC) comprising of series of bridges and flyovers near and crossing Shahrah-e-Faisal falls in the preamble of Schedule-II under captioned Transport the relevant portion is reproduced as under:--
1. Transport
2. Federal or Provincial highways or major roads (except maintenance, re-building or re- construction of existing roads) with total cost of 50 millions rupees and above."
' The CDGK has also submitted counter-affidavit to this application, wherein they have taken plea that as per Schedule-I the present project falls under the category of 'Urban Development Project', and therefore requires IEE study only and that has been carried out and after receiving no Objection Certificate from EPA, the construction work has started. Since the view of the SEPA was not clear therefore the Director-General was called and he explained before the Tribunal as to why TEE was conducted in the present case instead of ETA and stated that they have relied upon the guideline given by the World Bank in respect of environmental consideration for development projects in Urban Areas.
' We have heard Mr. Roland de' Souza, appearing on behalf of complainant, who has submitted that under section 12 of the Pakistan Environmental Protection Act, 1997 read with Schedule-II-D(2) of Regulation of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, the SFC-IV project, total cost of which is above Rs,50 million, requires an EIA. In this regard he has referred to the several letters written to the D.G. EPA, Sindh with the request to take immediate action and to ask the CDGK to address the environmental issues but in spite of repeated letters no action was taken by the SEPA, therefore, they after giving notice under section 21(3)(b) of the Pakistan Environmental Protection Act, 1997 have been compelled to file the present complaint before this Tribunal. He has requested that since the environmental hazards are being created with the construction work, therefore, the same may be stopped immediately and CDGK may be asked to conduct the EIA first and then to start with the construction work. In this regard he has also referred before us the case of Gizri flyover decided by the honourable High Court of Sindh, whereby the honourable High Court of Sindh has ordered for conducting the EIA 2009 CLD page 682.
' On the other hand the DDPP appearing for SEPA has also supported the case of complainant to the extent that SFCIV project requires EIA. However, the D.G. SEPA, has submitted before the Tribunal that the above project requires IEE only as it falls under the category of, 'Urban Development Project'. The same view was adopted by the counsel appearing on behalf of the CDGK. He has also placed before us statement showing the progress of construction in respect of flyovers and stated that physical progress has been achieved upto 40%. The complainant side has also produced the details of violations of `IEE approval', committed by the CDGK during the construction work carried out by them on SFC-IV project.
' We have considered the arguments advanced before us and have gone through the case record and the relevant provisions of law.
' It may be pertinent to refer to the provision of section 12 of the Pakistan Environmental Protection Act, 1997, which reads as under:-- "Section 12. Initial environmental examination and environmental impact assessment:--(1) 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.
(2) The Government Agency shall subject to standards fixed by the Federal Environmental Protection Agency:--
(a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessm ent by the proponent.
(b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, require that the environmental impact assessment be re- submitted after such modification as may be stipulated or reject the project as being contrary to environmental objectives.
(3) Every review of an environmental impact assessment shall be carried out with public participation and information will be disclosed during the course of such public participation which relates to,---
(i) trade, manufacturing or business activities; process or techniques of a proprietary nature, or financial, commercial, scientific or technical matter which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director-General of the Federal Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure out weights the possible prejudice to the competitive position of the project or its proponent: or
(ii) international relations, national security or maintenance of law and order, except with the consent of the Federal Government; or
(iii) matters covered by legal professional privilege.
(4) The Government Agency shall communicate its approval or otherwise within a period of four months from the date of the initial environmental examination or environmental impact assessm ent is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessm ent shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations.
(5) Subject to subsection (4) the appropriate Government may in a particular case extend the afore-mentioned period of four months if the nature of the project so warrants.
(6) The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.
(7) The Government Agency shall maintain separate registers for initial environmental examination and environmental impact assessment projects, which shall contain brief particulars of each project and a summary of decisions, taken thereon, and which shall be open to inspection by the public at all hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3)."
It is obvious from the perusal of above-referred section that where the project is likely to cause an adverse environmental effect, then the Initial Environmental Examination or Environmental Impact Assessm ent has to be submitted by the proponent of a project and approval has to be obtained from the competent Government Agency, prior to the commencement/operation of the said project. In the present case crucial issue is as to whether the project requires IEE or EIA. In this regard, The Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000', are important and provide guidelines to determine as to which projects would require IEE and EIA.
In Schedule-I there is the list of projects Which require IEE and in Schedule-II there is list of projects, which require an IEA. For the sake of ready reference same are reproduced as under:-- SCHEDULE-I (See Regulation 3)
List of projects requiring an IEE A. Agriculture, Livestock and Fisheries
1. Poultry, livestock, stud and fish farms with total cost more than Rs,10 million
2. Projects involving repacking, formulation or warehousing of agricultural products. B. Energy
1. Hydroelectric power generation less than 50 MV
2. Thermal power generation less than 200 KV
3. Transmission lines less than 11 KV, and large distribution projects
4. Oil and gas transmission systems
5. Oil and gas extraction projects including exploration, production, gathering systems, separation and storage
6. Waste-to-energy generation projects. C. Manufacturing and processing 1 Ceramics and glass units with total cost more than Rs,50 million.
2. Food processing industries including sugar mills, beverages, milk and dairy products, with total cost less than Rs,100 million.
3. Man-made fibers and resin projects with total cost less than Rs,100 million.
4. Manufacturing of apparel, including dyeing and printing, with total cost more than Rs,25 million.
5. Wood products with total cost more than Rs,25 million D. Mining and mineral processing
1. Commercial extraction of sand, gravel, limestone, clay, sculpture and other minerals not included in Schedule-II with total cost less than Rs,100 million
2. Crushing, grinding and separation 3. Process Smelting plants and separation processes E.
Transport
1. Federal or Provincial highways (except maintenance, re-building or re-construction of existing metalled roads) with total cost less than Rs,50 million 2 Ports and harbor development for ships less than 500 gross tons. F. Water management, dams, irrigation and flood protection.
1. Dams and reservoirs with storage volume less than 50 million cubic meters of surface area less than 8 square kilometers.
2. Irrigation and drainage projects serving less than 15,000 hectares.
3. Small-scale irrigation systems with total cost less than Rs,50 million.
G. Water supply and treatment.
Water supply schemes and treatment plants with total cost less than Rs,25 million. H. Waste disposal Waste disposal facility for domestic or industrial wastes, with annual capacity less than 10,000 cubic meters I. Urban development and tourism
1. Housing schemes
2. Public facilities with significant off-site impacts (e.g. Hospital wastes)
3. Urban development projects. J. Other projects ' Any other project for which filing of an IEE is required by the Federal Agency under sub-regulation
(2) of Regulation 5.
SCHEDULE-II (See Regulation 4)
List of projects requiring an EIA A. Energy
1. Hydroelectric power generation over 50 MV
2. Thermal power generation over 200 MV
3. Transmission lines (11 KV and above) and grid stations
4. Nuclear power plans
5. Petroleum refineries B. Manufacturing and processing
1. Cement plants
2. Chemicals projects
3. Fertilizer plants
4. Food processing industries including sugar mills, beverages, milk and dairy products, with total cost of Rs,100 million and above.
5. Industrial estates (including export processing zones)
6. Man-made fibers and resin projects with total cost of Rs,100 M and above
7. Pesticides (manufacture or formulation)
8. Petrochemicals complex
9. Synthetic resins, plastics and man-made fibers, paper and paperboard, paper pulping, plastic products, textiles (except apparel), printing and publishing, paints and dyes, oils and fats and vegetable ghee projects, with total cost more than Rs,10 million.
10. Tanning and leather finishing projects. C. Mining and mineral processing
1. Mining and processing and coal, gold, copper, sulphur and precious stones
2. Mining and processing of major non-ferrous metals, iron and steel rolling
3. Smelting plants with total cost of Rs,50 million and above D. Transport 1. Airports 2: Federal or Provincial highways or major roads (except maintenance, re-building or re- construction of existing roads) with total cost of Rs,50 million and above.
3. Ports and harbor development for ships of 500 gross tons and above
4. Railway works E. Water management, dams, irrigation and flood protection ,
1. Dams and reservoirs with storage volume of 50 million cubic meters and above or surface area of 8 square kilometers and above
2. Irrigation and drainage projects serving 15,000 hectares and above.
F. Water supply and treatment Water supply schemes and treatment plants with total cost of Rs,25 million and above. G. Waste Disposal
1. Waste disposal and/or storage of hazardous or toxic wastes (including landfill sites, incineration of hospital toxic waste).
2. Waste disposal facilities for domestic or industrial wastes, with annual capacity more than 10,000 cubic meters. H. Urban development and tourism
1. Land use studies and urban plans (large cities)
2. Large-scale tourism development projects with total cost more than Rs,50 million I.
Environmentally Sensitive Areas All projects situated in environmentally sensitive areas 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."
From the perusal of Schedule-I and II, referred above it is clear that there are specific heads for different projects, which require IEE or EIA. It is the basic principle of Law that when some specific and relevant head/provision is specified under B the law then the same is to be applied and not the general head or provision. In the case in hand as per Regulation 4 Schedule-II-D under the head of Transport' 2, it is clearly. Mentioned that the Federal or Provincial highways or major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cost of Rs,50 millions and above will require EIA. Admittedly the cost of project is more than 50 million and when there is clear and specific head, then in our view the classification given by the SEPA under the head of 'Urban Development and tourism', is incorrect. Even otherwise 'urban development and tourism', is a vast subject and its application in presence of specific head is of no legal effect.
Thus the explanation of the DG. EPA, Sindh regarding 'Urban Development Project', has no significance in this regard and we are of the view that the language of Schedule-II-D is quite relevant and clear for the purpose of determining if the proposed project required EIA. It is also important that the construction work has already started and the above fact is not denied by the complainant, even as per CDGK it has been conducted upto 40%. We also feel that undoubtedly the proposed project has been initiated in the interest of general public and of course when the population is growing, the roads/flyovers etc. Are necessarily required, in order to ease the congestion in traffic flow in the city of Karachi. Therefore, it will not be appropriate if the construction work is stopped.
' Keeping in view the relevant provisions of Pakistan Environmental Protection Act, 1997 and the guidelines given by the honourable High Court of Sindh in the case of Ms. Salma Iqbal Chundrigar and others v. Federation of Pakistan through Secretary, Ministry of Environmental Protection, Islamabad 2009 CLD page 682 and considering the fact that the construction of the project is already in progress, we deem it just and equitable to allow such construction process with the direction to CDGK to submit Environmental Impact Assessment (EIA) report before the SEPA within one month time and further construction of the project will be subject to the decision of the competent authority in this regard. However, failure of CDGK in submission of Environmental Impact Assessm ent (EIA) within the above time frame will disentitle them from continuing with the construction work of their project. It is further clarified that the construction of the project by the CDGK during the above period' will also be at their own risk, cost and legal consequences.