' By this application under section 21 of the Pakistan Environmental Protection Act, 1997, moved by the learned counsel for the respondent No,1, he has sought dismissal of this complaint by challenging its maintainability so also the jurisdiction of the Tribunal.
2. It is averred in the body of the application that the present complaint has been filed under sections 11, 12, 13, 14 and 16 read with section 17 of the Pakistan Environmental Protection Act, 1997 (hereinafter referred to as 'the Act'). Whereas the respondent No,1 does not use any prohibitory form of asbestos in its manufacturing process and only use its permissible kind known as "Chrysotile". Therefore, this Tribunal does not have the jurisdiction to entertain such complaint, as section 21 of the Act restrict the jurisdiction of the Tribunal only to try the contraventions which are punishable under section 17(1) of the Act and not to take cognizance of any other offence triable under subsection (2) except on a complaint in writing by the Federal Agency or Government agency or any aggrieved person, who has given at least 30 days' notice to the Federal Agency or the Provincial Agency concerned, of the alleged contravention and his intention to make a complaint to the Tribunal, which is missing in the present case.
3. It is further stated in the application that section 11 of the Act deals with the prohibitions of certain discharges or emissions, and it only restricts the amount, concentration and level of discharge of any effluent or waste or air pollutant and does not out rightly prohibit the same and this restriction is based as per the National Environmental Quality Standards. The subject-matter of the present complaint is not mentioned in the approved and current National Environmental Quality Standards nor is any notification pursuant to section 6(1)(g) of the Act issued by the Federal Agency, therefore, the provisions of section 11 of the Act are not attracted to the present complaint.
4. Similarly section 12 of the Act prohibits proponent of a project to commence construction or operation unless he has filed with the designated Government Agency an 'Environmental Impact Assessm ent' and has obtained approval in respect thereof. This section is also not applicable to the facts and circumstances of the present case as the respondent No,1 has been carrying his manufacturing activity since 1966 much prior to the date of commencement of the Act, therefore, no offence under section 12 of the Act has been committed by the respondent No, 1.
5. Likewise the section 13 of the Act, which prohibits a person to import hazardous waste in Pakistan is also not applicable as the subject-matter of the complaint is not waste but a manufacturing ingredient.
6. Lastly it is stated that section 16 of the Act is in respect of non-compliance of the Environmental Protection Order. Since no Environmental Protection Order has been issued by the Federal Agency or Provincial Agency, therefore, the provisions of this section are also not attracted. It is the case of the respondent No,1 that at the most the subject-matter, if at all it is disputed, falls under section 14 of the Act. The Contravention of the section 14 of the Act is exclusively triable by the Environmental Magistrate and since the import and use of "Chrysotile" is not prohibited, therefore, this Tribunal has no jurisdiction to entertain the present case and the complaint is liable to be dismissed.
7. Notice of this application was given to other side. We have heard the learned counsel for the parties. It is contended by Mr. Jamshed Malik, Advocate appearing for the respondent No,1, that the complainant has three forums to whom he could approach (i) Environmental Protection Agency,
(ii) Environmental Magistrate and lastly comes (iii) Environmental Protection Tribunal. In the present case the complainant has chosen wrong forum as the subject in dispute comes within the jurisdiction of Environmental Magistrate, as it is clearly mentioned in section 14 of the Act that handling of hazardous substance is contravention of section 14 of the Act, which is triable by the Magistrate as provided under section 17(2) of the Act. It is further contended that the language of section 11 clearly reveals that it deals with the prohibition of certain discharges and emissions, which are in excess of National Environmental, Quality Standards, however, in the case in hand in the current National Environmental Quality Standards, subject-matter of the present complaint is not mentioned, therefore, provision of section 11 of the Act are not applicable in the present case. It is further contended by the learned counsel for the respondent No,1 that procedure as provided under section 200 of the Code of Criminal Procedure, 1898 has not been followed in the present case, therefore, the proceedings stand vitiated. In this regard, he has relied upon the case of Ahmed Hussain alias Laloo v. The State 1995 MLD 604. He also contended that section 21 of the Act clearly provides that the Tribunal shall not take cognizance of any offence triable under subsection
(2) except on a complaint in writing by aggrieved person who has given notice not less than thirty days to the Federal Agency. Whereas in the instant case neither the complainant is aggrieved person nor he has given any notice to the Federal Agency or Provincial Agency, therefore, this complaint cannot be entertained. In support of his contentions he has also relied upon the cases, Sheikh Abdul Hakeem .v. Shamusddin PLD 2008 Quetta 14 and Digital Radio Paging Limited v.
Pakistan Industrial Credit and Investment Corporation and others 2003 CLD 1612. In the end he has stated that in the present case the jurisdiction lies with the Environmental Magistrate under section 24 of the Act, therefore, the complaint may be dismissed.
8. Mr. Abdul Maroof, learned Deputy District Public Prosecutor appearing for EPA, Sindh has submitted that Pakistan Environmental Protection Act, 1997 is a special Law and under section 21 of the Act special mechanism is designed by empowering the Tribunal with two types of jurisdiction i,e, original and appellate. Then again by way of original jurisdiction Environmental Protection Tribunal can take cognizance of any offence either on the complaint made by Federal Agency or any Government Agency or Local Council and any aggrieved person can also make complaint to the Tribunal. Since the present complainant is the brother of the deceased, who was employee of the respondent-Company and had died due to cancer, therefore, he comes within the definition of aggrieved person. He further contended that section 14 of the Act only relates to handling of hazardous substance, while the present complaint is filed under section 11 of the Act, which speaks about the prohibition of certain discharges or emissions. He also pointed out that in paras 2 and 3 of the Complaint, the complainant has specifically disclosed that his deceased brother had repeatedly made complaints to respondent-company regarding method of manufacturing of asbestos and disposing of its waste, which was actually spreading various types of cancer diseases amongst the residents of the area as well as the employees of the factory but no heed was paid to his complaints. Further the waste material of the PVC pipes generate hazardous air polluting material, therefore, the provision of section 11 of the Act are very much attracted and Tribunal has jurisdiction to entertain this complaint.
9. Learned DDPP further contended that the complainant in para 4 of the complaint has specifically mentioned that complaints have been submitted before the Federal Secretary for Ministry of Environment, Islamabad, which resulted in letter dated 7-9-2009 issued by the Pakistan Environmental Protection Agency, directing the EPA, Sindh to take necessary action against the accused and to forward such report to the Federal Agency for further necessary action, but in spite of all this no action was taken, therefore, the present complaint has been competently filed before this Tribunal. He also contended that the Tribunal is competent to conduct enquiry in the matter, when a complaint is lodged under a special statute the procedure of statement on Oath is not mandatory. There is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examination of complainant entails invalidation of the proceedings taken reliance in this regard is placed upon the cases; Shamim v. The State and Muhammad Bashir PLD 1966 SC 178, Muhammad Aslam and others v. The State and others 2005 P.Cr.LJ 1352, Mst. Kishwar Naseem v. Hazara Hill Tract and others PLD 2005 Pesh.136. The Tribunal is thus competent to hold enquiry or to ask for some expert opinion, therefore, this Tribunal has rightly appointed commission in this case. He lastly pointed out that Chrysotile is the form of asbestos, which is carcinogenic and banned throughout world, therefore, the complaint is rightly filed before this Tribunal.
10. Mr. Kazi Abdul Hameed Siddiqui, Advocate appearing for complainant has submitted that section 21 of the Act relates to the jurisdiction and powers of the Environmental Protection Tribunal and in subsection (4) of section 21 of the Act, it is mentioned that in exercise of its criminal jurisdiction Environmental Tribunal shall have same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898). Whereas In subsection (6 of section 21 of the Act) it is mentioned that in all matters with respect to which no procedure has been provided for in this Act, the Environmental Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908). Thus section 21(4) of the Act speaks about the powers not the procedure. Therefore, this court has vast powers to entertain this complaint. He has further submitted that the use of chrysotile asbestos is admitted by the respondent, which is carcinogenic, the brother of the complainant had died due to cancer caused by the respondent-factory, therefore, he is aggrieved person. As it is the case of complainant that the product used by the respondent is highly dangerous and is banned throughout the world, therefore, mere issuance of import licence can be of no help to the respondent/accused. They are not only importing hazardous substance but are generating/emitting industrial waste, which is hazardous for the society at large, therefore, it will be in the interest of nation to order for a complete shutdown of the operation of the respondent-Company.
11. We have considered the arguments advanced before us and have perused the relevant provisions of law. The first objection raised by the learned counsel for the respondent No,1 is regarding the jurisdiction of this tribunal as according to him the complaint is incorrectly filed under sections 11, 12, 13, 14 and 16 of the Act, the only relevant section is 14 of the Act and that is triable by a Magistrate.
12. The perusal of complaint in this regard goes to reveal that' in para 2 of the complaint the complainant has alleged that his brother who had worked as maintenance Manager with the respondent-Company for seven years had made repeated complaints to his employer regarding method of manufacturing asbestos and disposing of its waste, in way which was actually spreading various types of cancer diseases amongst the residents of area as well as employees of the factory. In para 3 again it is mentioned that the product of respondent-Company, during manufacturing process generate/emit highly hazardous air pollutants. Now' whether the respondent-Company is violating the provisions of section 11 of the Act is a question of fact, which cannot be decided on the presumption or assumption except allowing the prosecution full opportunity to lead evidence and prove its case in this regard. Thus at this stage the requisition on behalf of respondent No,1 for dismissal of this complaint for want of jurisdiction is misconceived.
13. In the present complaint this Tribunal has also directed the Environmental Protection Agency to conduct enquiry into the matter and submit such report and they have submitted such report on 3-3-2010 whereby they have recommended for environmental audit of respondent-Company as under:- "The EPA is of the view that the management of Dadex Eternit Limited, in view of nature of raw materials being used should carry out Environmental Audit of gaseous/boiler emission/quality of waste water, disposal of solid waste and surveys of ambient air quality in and around the factory.
The environmental audit will provide in depth knowledge of environmental issues, policy procedure and set of solution towards addressing the issues. Further in view of the above it is recommended that the Management of Dadex should also prepare Environmental Management Plan by any reputable environmental consulting firm in order to address environmental issues throughout operational period of factory."
14. The next objection of the respondent is that the complaint is premature as no notice under section 21(3)(b) of the Act has been served. In this regard, it may be noted that in para 4 of the complaint, it has been specifically mentioned that Pakistan Environmental Protection Agency has been approached which resulted into issuance of letter dated 7-9-2009 addressed to the Director- General, EPA, Sindh. Further it may not be out of place to mention that upon receipt of complaint this Tribunal has given thirty days' notice to the EPA, Sindh for enquiry and report in the matter.
Therefore, it will also be decided after recording of evidence, whether it fulfils the legal requirement of notice or not.
16. Another objection taken by the respondent side is that the complainant is not an aggrieved person; therefore, he has no locus standi to file the instant complaint. In this regard, it may be noted that the complainant is brother of deceased. Furthermore the issue of environmental hazard raised by the complainant seems to be an issue of public interest, in which case principle of aggrieved person cannot be strictly applied. Further for arguments' sake if it is presumed that there has been any procedural lapse in entertaining this complaint again it will be a question worth consideration whether such procedural lapse is incurable or fatal to the proceedings of this complaint or not. More so when the respondent has failed to show that due to such reason any prejudice has been caused to him particularly when as a general rule procedural provisions of law are directory in nature and not mandatory unless so provided by the Law.
17. Before parting with this order it may be mentioned that in view of peculiar circumstances of the case, the case-law cited by the learned counsel is distinguishable and of no help to the case of respondent No, 1.
18. In view of above discussion the application under section 21 of the Pakistan Environmental Protection Act, 1997 is misconceived and it is accordingly dismissed.