' MUHAMMAD ALI MAZHAR, J.---This Constitutional petition is brought to challenge an order dated 29-6-2010, passed by the Environmental Tribunal the respondent No,3 in the Complaint No, 2 of 2010. The petitioner has prayed to pass the orders as under:--
(A) Declaring that the respondent No,3 is coram non judice in respect of the complaint;
(B) Declaring that the petitioner has a right to fair trial and due process of law under Article 10A of the Constitution of the Islamic Republic of Pakistan;
(C) Declaring that the respondent No,3 by constituting the commission has denied the fair trial, due process of law and fundamental rights of the petitioner;
(D) Declaring that the respondent No,3 has acted outside its jurisdiction by admitting the registering the complaint as well as by continuing with the proceedings thereafter including the constitution of the commission;
(E) Declaring that the admission and registration of the complaint and all the proceedings thereafter including the constitution of the commission is of no legal effect; Declaring the impugned order as illegal and void;
(F) Any other relief(s), which this Hon'bte Court may deem fit, just and proper may kindly be awarded to the petitioner in the light of foregoing submissions.
2. The barebones leading to the present controversy inter se the parties are that the respondent `No,1 filed a complaint to the respondent No,3 against the petitioner under sections 11, 12, 13, 14 & 16 read with section 17 of, the Pakistan Environmental Protection Act, 1997, (hereinafter referred to as the PEPA), it was inter alia, contended that he is conscientious citizen of Pakistan, seriously concerned al/out deteriorating geological and atmospheric environment in Pakistan generally and in Karachi particularly. His younger brotner was working as Maintenance Manager Services in the petitioner's company, which manufactures asbestos.
3. It was averred that petitioner's brother repeatedly complained to his employer that the method of manufacturing asbestos and disposing of its waste is spreading various types of cancer amongst the residents of the area. His brother late Fareed Ahmed worked in the asbestos factory for about seven years and succumbed to the tongue cancer on 22-5-2007 contracted during course of employment.
4. The respondent No,1 made a complaint to the Federal -Secretary for Ministry of Environment. It was averred that the petitioner is one of the largest manufacturers of PVC pipes, used for sanitary purposes throughout Pakistan and abroad production of PVC pipes generates a highly hazardous air polluting material known as "asbestos", which resulted into a letter dated 7-9-2009 issued by the Pakistan Environmental Protection Agency Islamabad, directing EPA Sindh to take necessary action against the manufacturer and forward the report to the agency for further necessary action.
The respondent No,1 prayed in the complaint to respondent No,3 that the manufacturer may be directed to clean the cuttings of PVC pipes and asbestos, which is spread almost in an area of 15 Miles in the Gadap Town, buried under a thin layer of sand only. Respondent also sought direction against the manufacturer to arrange Digital Rectal Examination (DRE) and PSA (Blood Test) of one million people, who are living around the factory. It was further asserted that the petitioner is avoiding to apply International standards as is required to save money at the cost of live of hundred of people living in the vicinity. Complainant also claimed the compensation on account of death of his brother.
5. Petitioner has strongly urged that the respondent No,1 has filed the complaint with mala fide intention. It was refuted that petitioner is not adhering to the provisions of the PEPA, or that petitioner uses the prohibited "asbestos" spreading cancer amongst the residents of the area as well as the employees of the factory. Petitioner denies the cause of death of the respondent No,1 brother was due to the usage of asbestos in its manufacturing process.
6. It was further averred that the respondent No,3 has wrongly and without application of judicious mind assumed the jurisdiction, admitted and registered the complaint vide order dated 18-2-2010 and arbitrarily initiated an inquiry against the petitioner. The respondent No,2 submitted its report before the respondent No,3, exonerating the petitioner. According to the petitioner respondent No,3 instead of accepting the Inquiry Report, in colourable exercise of its powers jurisdiction held vide order dated 6-4-2010 that report is not comprehensive and since the matter is technical in natures, therefore, a commission may be constituted to examine the core issue. Learned Tribunal further directed the parties to give the names of the consultants who could be appointed as members of the commission.
7. On 7-5-2010, the petitioner argued the question of maintainability of the complaint and submitted its written arguments, whereupon the respondent No,3 adjourned the proceedings to 14- 5-2010 for ordeRs,
8. Learned counsel for the petitioner argued that the impugned order is coram non judice and violative of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 in as much as the petitioner is denied funiamental right of fair trial. According to Mr. Jamsheed, learned counsel for the petitioner, the complaint, does not disclose any violation of section 17 of the PEP Act therefore, the Tribunal has no jurisdiction to entertain the complaint. It was further argued that section 14 of the PEP Act, deals with handling of hazardous substances, which includes asbestos in the list of prescribed hazardous substances of 'Un-notified Hazardous Substance, Rules 2003', hence the learned Tribunal has no jurisdiction to hear and adjudicate the case where the subject matter relates to possible contravention of section 17 of the PEP Act if any. It was urged that cognizance if any could be taken by the Environmental Magistrate under section 24 of the PEP Act as the purported violation, if any, falls under sections 14 and 15 of the PEP Act. Mr. Jamsheed, learned counsel for the petitioner further invited our attention to an order passed in C.P. No,D-1681 of 2010, (at page No,359), wherein the Tribunal was directed to decide the question of jurisdiction, before proceeding further in the matter. On the strength of this order, the petitioner moved an application under section 21 of the PEPA Act which was dismissed. In support of his arguments, the learned counsel relied upon the case cited as Nasir Abdul Qadir, v. The State and others 2003 SCMR 472, All .
Din and others v. The State and another, 1994 SCMR 717. First mentioned case relates to the Suppression of Terrorist Activities (Special Courts) Act. In both the cases honourable Supreme Court held that question of jurisdiction has to be determined on the basis of F.I.R and other material produced by the prosecution at the time of presentation of challan and the Court on the basis of such material would decide whether cognizance was to be taken or not. Cited cases are distinguishable. The respondent No,3 Tribunal has been established under a special law, cognizance was taken on the complaint of an aggrieved person, under section 21 read with section 17 of the PEP Act, prima facie it appears that that the respondent No,3 has rightly exercised its powers and jurisdiction.
9. Another case relied upon 1987 CLC 182 (Malik Muhammad Hasan v. Assistant Commissioner, Quetta and others), pertains to sections 4, 5 and 9 of Civil Procedure (Special Provisions)
Ordinance (1 of 1968). It has been held that the Tribunal is bound to act within four corners of statute, which created it. Such Tribunal would not have inherent jurisdiction nor could it travel beyond limits specified by the statute. Exercise of powers by Tribunal, not conferred on it by law, 'would be nullity in law'. There is no cavil to proposition as expounded in the cited case. In another case cited as Digital Radio Paging Limited v. Pakistan Industrial Credit and Investment Corporation and others 2003 CLD 1612, the learned Single Judge of this Court held that when Special Tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute.
Where conditions required for invoking the jurisdiction of Tribunal are not available then remedy lies to Civil Court under section 9, C.P.C.
10. Qazi Abdul Hameed Siddiqui, the learned counsel for the respondent No,1, supported the impugned order. It was argued that the petitioner is manufacturing products using a form of asbestos known as chrysotile as basic major ingredient. It was argued that Asbestos in all its forms is banned in many countries being carcinogenic. Learned counsel for the respondent No,1 has drawn our attention to the literature generated by United Nations Environmental Protection Agencies and World Health Organization filed along with the counter affidavit. The learned counsel took us through extract of BBC News World dated 21st July, 2010, according to which asbestos is banned and restricted in more than 52 countries. It is further mentioned in the paper that according to WHO, white asbestos is a known cause of human cancer including mesothelioma.
WHO declared that 125 million people encounter white asbestos in the workplace, and the International Labour Organization (ILO) estimates that 100,000 workers die each year from all asbestos related diseases. In the US it is legal but the industry has paid out an estimated $70 billion in damages in litigation costs. Use of asbestos is confined to automobile and aircraft brakes, gaskets and a few other products. The American Public Health Association (APHA) has joined the World Federation of Public Health Organizations (WFPHA), the International Commission on Occupational Health (ICOH) and the International Trade Union Confederation (ITUC) is calling for a global asbestos ban. Finally, he concluded that there is no illegality or irregularity in the order of the Tribunal and the petition is liable to be dismissed with cost.
11. Mr. Abdul Maroof, Deputy District Public Prosecutor for respondent No,2 argued that the petition is not maintainable. According to him, under subsection (4) of section 21 of the Act, the Tribunal has the same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898, therefore, instead of filing writ petition, the petitioner should have filed Revision under section 439- A, Cr.P.C., which is equally efficacious and alternate remedy. He further argued that the averments of the complaint do make out a case under section 11 of the Act and, section 14 ibid has no applicability in the matter.
12. Mr. Mian Khan Malik, the learned D.A.-G. Representing the respondent No,4, argued that the petitioner has filed this petition without availing an alternate and equally efficacious remedy under section 439-A, Cr.P.C., therefore, the petition, is not maintainable.
13. Mr. Adnan Karim, learned Additional Advocate-General Sindh contends that as per clause (b) of subsection (3) of section 21 of the PEP Act, the Tribunal cannot take cognizance of any offence triable under subsection (2) ibid, except on a complaint in writing by the Federal Agency or any Government Agency or local council and or by an aggrieved person, who has given notice of not less than thirty days to the Federal Agency, or the Provincial Agency concerned of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal. He supported the order of the Tribunal and comply with the provisions of section 14 or 15 ibid, or any rule or regulation or conditions of any licence, any order or direction, issued by the Council or by the Federal Agency or Provincial Agency shall be punishable with fine, which may extend to Rupees one hundred thousand, and in case of continuing contravention, or failure with an additional fine, which may extend to rupees one thousand rupees for every day during which such contravention continues. The jurisdiction of taking cognizance and to commence the trial for offences mentioned in subsections (1) and (2) of section 17 of the PEP Act has been conferred upon different forums. In order to show the balance and bifurcation of powers and jurisdiction, it would be expedient to reproduce section 21 and section 24 of the PEP Act: as under:--
21. Jurisdiction and powers of Environmental Tribunals.---(1) An Environmental Tribunal shall exercise such powers and perform such functions as are, or may be, conferred upon or assigned to it by or under this Act or the rules and regulations made there under.
(2) All contravention punishable under subsection (1) of section 17 shall exclusively be triable by an Environmental Tribunal. (Bold & italics added for emphasis)
(3) An Environmental Tribunal shall not take cognizance of any offence triable under subsection
(2) except on a complaint in writing by--
(a) the Federal Agency or any Government Agency or local council; and
(b) any aggrieved person, who has given notice of not less than thirty days to the Federal Agency, or the Provincial Agency concerned, of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal.
(4) In exercise of its criminal jurisdiction, the Environmental Tribunal shall have the same powers as are vested in Court of Session under the Code of Criminal Procedure, 1898
(5) In exercise of the appellate jurisdiction under section 22, the Environmental Tribunal shall have the argued that before instituting the complaint, the complainant in compliance to section 21(3)
(b) of the PEP Act had approached the Pakistan Environmental Protection Agency, which issued letter dated 7-9-2009 to the Director-General EP Sindh.
' We have heard the, arguments and perused the record.
14. Environmental Protection Act has been promulgated to provide protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. In the definition clause, (section 2 of the PEP Act), the term "environmental impact assessm ent", "hazardous substance", "hazardous waste", "industrial waste", "pollution" and "person" have already been defined.
15. Bone of contention roams around the interpretation and implication of section 21 and section 24 of the PEP Act. On examination of the scheme of both the sections, the Legislature by necessary intendment has bifurcated the jurisdiction and powers of "Environmental Tribunal" and "Environmental Magistrates". Subsection (2) of section 21 of the Act, is clear manifestation that all contravention punishable under subsection (1) of section 17 shall exclusively be triable by an Environmental Tribunal, subsection (4), confers criminal jurisdiction, as are vested in Court of Session under the Code of Criminal Procedure, 1898 while under subsection (5) thereof, in exercise of appellate jurisdiction under section 22 ibid, the Environmental Tribunal is bestowed powers as an appellate court in terms of the Code of Civil Procedure, 1908.
16. Under section 24 of the PEP Act, all contraventions punishable under subsection (2) of section 17 ibid are exclusively triable by a Judicial Magistrate of the first class, especially empowered in this behalf by the High Court. Section 17 of the PEP Act; relates to penalties. Subsection (1) thereof, provides that whoever contravenes or fails to comply with the provisions of sections 11, 12, 13, or section 16 ibid or any order issued thereunder shall be punishable with fine, which may extend to Rupees one million, and in the case of a continuing contravention or failure, with an additional fine which may extend to Rupees one hundred thousand for each day during which such contravention or failure continues and where such contravention or failure continues while subsection (2) provides that whoever contravenes or fails to same powers and shall follow the same procedure as an appellate court in the Code of Civil Procedure, 1908.
(6) 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.
(7) An Environmental Tribunal may, on application filed by any officer duly authorized in this behalf by the Director General of the Federal Agency or of Provincial Agency, issue bailable warrant for the arrest of any person against whom reasonable suspicion exists, of his having been involved in contravention punishable under subsection (1) of section 17: ' Provided that such warrant shall be applied for, issued, and executed in accordance with the provisions of the Code of Criminal Procedure, 1898: ' Provided, further that if the person arrested executes a bond with sufficient sureties in accordance with the endorsement on the warrant he shall be released from custody, failing which he shall be taken or sent without delay to the officer in-charge of the nearest police station.
(8) All proceedings before the Environmental Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code and the Environmental Tribunal shall be deemed to he a court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898.
(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, the rules and regulations made thereunder.
(10) Where the Environmental Tribunal is satisfied that a complaint made to it under subsection
(3) is false and vexatious to the knowledge of the complainant, it may, by an order, direct the complainant to pay to the person complained against such compensatory costs which may extend to one hundred thousand rupees.
24. Jurisdiction of Environmental Magistrates.---(1). Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law for the time being in force, but subject to the provisions of this Act, all contravention punishable under subsection (2) of section 17 shall exclusively be triable by a judicial Magistrate of the first class as Environmental Magistrate especially empowered in this behalf by the High Court. (Bold and italics marked by us)
(2) An Environmental Magistrate shall be competent to impose any punishment specified in subsections (2) and (4) of section 17.
(3) An Environmental Magistrate shall not take cognizance of an offence triable under subsection
(1) except on a complaint in writing by- (al the Federal Agency, Provincial Agency, or Government Agency or a local council; and
(b) any aggrieved person.
17. Under section 23 of the Act, any person aggrieved by a final order or sentence passed by the Environmental Tribunal, may within 30 days from date of communication of order or sentence prefer appeal before a bench of not less than two Judges of the High Court. Section 23 of the Act, which reads as under:--
23. Appeals from orders of the Environmental Tribunal.---(1) Any person aggrieved by any final order or by arty sentence of the Environmental Tribunal passed under this Act may, within thirty days of communication of such order or sentence, prefer an appeal to the High Court.
(2) An appeal under subsection (1) shall be heard by a Bench of not less than two Judges.
18. Learned counsel for the petitioner vehemently argued that the complainant should have lodged his complaint before the Environmental Magistrate and not to the Tribunal.
19. As discussed above, for the purposes of assuming jurisdiction, it is the substance of the allegations and charges made in the complaint and not the nomenclature or title of complaint that governs the jurisdiction in the matter. Though the complaint is titled under section 14 of the PEP Act also, it is settled proposition in law that misquoting any provision does not affect merits of complaint, provided it is cognizable under the law under diffefent provision. The crux and gist of complaint clearly demonstrate that the complainant has lodged his complaint against the hazardous waste; it has nothing to do with the import or licence of handling of hazardous substance as provided under section 14 of the. Act.
20. Under section 21 all contraventions punishable under subsection (1) of section 17 which includes sections 11, 12, 13 and 16 of the PEP Act 1997 are exclusively triable by the Environmental Tribunal. It is only in respect of offences under subsection (2) of section 17 cognizance could be taken by the Tribunal on complaint in writing by the Federal or Governmental Agency or local Council and or on the complaint of any aggrieved person who has given notice of not less than 30 days to the Agency or Local council concerned of alleged contravention and disclosing his intention to approach the Environmental Tribunal.
21. Section 11 ibid prohibits emission and discharge of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards (NEQS) or where applicable, the standards established under clause (g) of subsection
(1) of section 6 of the PEP Act.
22. Section 12 ibid prohibits commencement of any project without obtaining Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA). Section 13 prohibits import into Pakistan of hazardous waste. And failure to comply with environmental protection order as may be passed by Federal or Provincial Agency in exercise of power under Section 16 ibid could be taken cognizance under section 17(1) of the PEP Act, 1997 by the Environmental Tribunal.
23. The jurisdiction of Environmental Magistrate in terms of subsection (2) of section 17 is confined to the contravention or failure to comply with the provisions of section 14 or 15 or any rule or regulation or conditions of any licence, any order or direction issued by the Council or the Federal Agency or Provincial Agency, which contravention is punishable with fine, extendable to one Rupees hundred thousand, and in case of continuing contravention with an additional fine extendable to Rupees one thousand per day of such contravention. Section 14 of the PEP Act, lays down the conditions that no person shall generate, collect, consign, transport, treat, dispose of, store, handle or import any hazardous substance except under a licence issued by the Federal Agency and in such manner as may be prescribed.
24. The complainant in his complaint has not alleged that the petitioner is using any hazardous substance or material without a valid licence. Complainant has sought direction, in the public interest, against the petitioner to clean the cuttings of PVC pipes and asbestos, which is spread over an area of 15 miles in Gadap Town, which has been buried under a thin layer of sand only to befool the visitors and the residents of the area and to claim that necessary preventive measures have been taken. He has further alleged in his complaint that since substantial expenses would be incurred in preventive measure, which the petitioner is not mentally prepared to spend at the cost of life and heath of common citizen in general and its employees in particular.
25. On reading the complaint it is clear, that: the complainant has not challenged the import or handling by the petitioner of hazardous substance/material with or without Licence but for the enforcement of NEQS within the contemplation of section 11 of the Act, which is exclusively triable by the Environmental Tribunal (Respondent No,3).
26. The diary sheet dated 6-4-2010 of the respondent No,3 reads as under:-- "Case called. Complainant Syed Haroon Ahmed is present in person along with his counsel Mr. Kazi Abdul Hameed Siddiqui, he has filed rejoinder to written reply filed on behalf of respondent No,1 and two separate applications under section 151, C.P. C. Notices of these applications have been given to other side and copies thereof supplied. Mr. Bahzad Haider., advocate is present on behalf of Messrs Dadex Eternit Limited. Sikandar Dada, Chief Executive/Chairman of Messrs Dadex Eternit Limited is called absent. However, Mr. Jam Asif Mehmood, advocate filed his Vakalatnama on behalf of Sikandar Dada, which is taken on record. He has also filed application for condonation of absence of Sikandar Dada, absence is condoned for today. Mr. Abdul Maruof, Dy.
Distt. Public Prosecutor is present on behalf of EPA, Sindh. Arguments heard on application filed by the Sikandar Dada on 26-3-2010 at length. In present Complaint, EPA was directed on 9-1-2010 to hold enquiry and to submit such report. The report has been submitted and its perusal reveals that it is not comprehensive. At the same time it has suggested to carry out the environmental audit and also recommended that the Management of Dadex should prepare Environmental Management Plan by any reputable environmental consulting firm in order to address environmental issues. Since the matter is technical in nature, therefore, we deem it appropriate that the commission may be constituted to examine the core issue. The counsel for parties are directed to give the names of Consultants who could be appointed as members of the commission. Put off to 13-4-2010 at 11-00 a.m. For orders on application filed on behalf of Sikandar Dada and for further proceedings.
Sd/- 6-4-2010 (MRs, Ashraf Jahan)
Chairperson Sd/- 6-4-2010 (Dr. Sami-uz-Zaman)
Member Technical Sd/- 6-4-2010 (Abdul Karim M. Memon)
Member legal"
' Above dairy sheet clearly shows that the learned Environmental Tribunal found that the report filed by the EPA was not comprehensive. Further directions were given to petitioner to carryout the environmental audit and prepare Environmental Management Plan through any reputable environmental consulting firm in order to address environmental issues. Environment Tribunal was of the view that the matter was technical in nature therefore a commission was constituted to examine the core issue.
27. The order of the Environment Tribunal as reproduced above does not show that it is a final order but some necessary steps were taken to conduct an inquiry into the allegations leveled in the complaint against the petitioner.
28. Learned counsel for the petitioner was not able to satisfy this court as to how impugned order is prejudicial to the interest of the petitioner. Examination of complaint filed by the respondent No,1 shows that it has been filed in the public interest, though compensation has also been claimed on account of death of the complainant's brother allegedly caused for lack of preventive measure taken by the petitioner. The complainant in nutshell claimed the protection and prevention of hazardous waste and hazardous substance in the course of production of sanitary pipes.
29. Mr. Saryo learned counsel for the respondent No,1 on 21-2-2011 has drawn our attention to the orders passed in C.P. No, 1250 Sikandar Dad v. Environmental Protection Tribunal, wherein the learned DB of this Court disposed of the petition by consent exempted the petitioner from appearance in person till charge is framed in the Complaint No,2 of 2010, order in cited petition has no relevance to the present controversy in hand.
30. In a judgment reported in PLD 2002 Lahore 555 (Anjum Irfan v. LDA and others), it has been held that mere promulgation of law of Environmental Protection does not yield good results unless the law is strictly implemented in letter and spirit without fear,. Favour and nepotism. Active participation and involvement of public is necessary to enforce pollution control regime. Unless masses are educated, awareness and sensitization campaign is launched by Government and non-Governmental Organizations in active collaboration with media in discharge of its social responsibilities objective of the Pakistan Environmental Protection Act, 1997 will remain a dream to accomplish. After launching a successful campaign for the restoration and Independence of Judiciary role of the Bar Associations and Bar Councils has enhanced to educate legal fraternity and public in general. Pakistan Environment Protection Act, 1997 cannot be enforced without the involvement and active participation of masses in the Implementation of environmental programmes as the same is must for the success of the pollution control.
31. The concept and theory as envisioned under Environmental Protection Act is not unique in nature. Under section 14 of the Factories Act 1934, it is clearly provided that every factory is required to make an effective arrangement for the disposal of waste and effluents in accordance with Rules framed under Factories Act, 1.934 which usually require the effluents to be connected to the public .
Drainage system with the prior approval of the Health Authorities. Direct discharge of effluents by the factories into the rivers and seas would be actionable at, the instance of those who are aggrieved by' the pollution caused by such discharge. Besides above, the sole object of including Chapter XIV in the Pakistan Penal Code is also to safeguard the public health, safety, convenience, decency and morals.
32. In another judgment reported in 2007 CLD 783 (Sheri C.B.E v. Government of Pakistan and others), a Division Bench of this court held that it is essential to maintain balance between industrialization and ecology and that development and environmental protection must progress, it is in consonance with such principle that Pakistan Environmental Protection Act, 1997 has been enacted and enforced and thus its mandate should be honored in its true letter and spirit. In the same judgment directions were issued to the Government of Pakistan to establish Environmental Tribunals as required in terms of S.12, Pakistan Environmental Protection Act, 1997 at the earliest.
33, Honourable Supreme Court has already considered the detrimental and injurious effect of pollution, and environmental degradation in the land mark judgment reported as Ms. Shehia Zia and others v. WAPDA PLD 1994 SC 693 and held that Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence.
34. Next question of significance that attraction of this bench is the maintainability of this petition. It was contended by Mr. Jamsheed learned Counsel for the petitioner that no appeal is provided against an interlocutory order under the PEP Act, 1997 and appeal is only provided against the final order of the Environmental Tribunal. It may be observed that the PEP Act of 1997 is a special law and akin to many other special laws focusing on specialized subjects and in order to expedite resolution 'of the controversy as a whole fragmented decision are not considered conducive, therefore in many legislation for instance in cases under the section 22 of Sindh Rented Premises Ordinance 1979 no appeal against the interlocutory order is provided. Likewise under sections 22(1) and (6) appeal against final order is provided and no appeal revision or review against the interlocutory order is provided under the Financial Institutions (Recovery of Finances) Ordinance 2001. Superior Courts in their Constitutional Jurisdiction have always discouraged the challenge to an interlocutory order unless the impugned order is palpably and patently perverse, void or unlawfull. We may refer to a case in point reported in 1998 SCMR 328 (Muhammad Iftikhar Mohmand v. Javed Muhammad and others), in which Civil Petition was filed against an order of Election Tribunal, Peshawar during pendency of Election Petition. The Hon'ble Supreme Court held that Election Petition was still pending before the Election Tribunal and appeal having been provided against the final decision of such Tribunal before Supreme Court, petitioner, in the event of final decision going against him, would be entitled to raise all pleas available to him in appeal before Supreme Court including preliminary objection relating to maintainability of Election Petition which had been overruled by Tribunal by impugned judgment. On this ground, leave was refused.
The next judgment on the same proposition is reported in 2002 CLD 137 (Ms. Afshan Ahmed v.
Messrs Habib Bank Limited and another), the Division Bench of this Court has held that where statue does not provide appeal against interlocutory order, then the same cannot be challenged by way of a Constitutional Petition as allowing such an order to be impugned by way of a Constitutional Petition would amount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order. In the same judgment, it is further held that Court should not act in a manner by which the object of a statute is defeated and the same is rendered nugatory. In another judgment reported in PLD 1994 Karachi 67 (Syed All Azhar Naqvi v.
The Government of-Pakistan and others), the Division Bench of this Court has held that where any statute provides a procedure for doing a thing in a particular manner that thing should be done in that manner and in no other way or should not be done at all. Constitutional jurisdiction could not be invoked where it could have the effect of defeating or deflecting legislative intent. In another judgment reported in 2004 CLC 1353 (Ardeshir Cowasjee and others v. Sindh Province and others), the Division Bench of this Court has held that every effort should be made to save rather than to destroy a Legislative instrument and the doctrine of reading it down could also be resorted to for doing so. Case of Khalid Mamood v. Collector of Customs 1996 SCMR 1881 is also illustrative case on the point in issue wherein apex court deprecated invocation of writ jurisdiction in cases where the High Court is ultimate repository of appellate, revisional or referral power or jurisdiction, it in rarest of cases where such jurisdiction could be invoked. In the instant matter no extraordinary circumstances prevail to persuade us to exercise extraordinary jurisdiction.
35. The whys and where forces lead us to a conclusion that the learned Tribunal has not acted beyond the sphere and ambit of its jurisdiction, there is no illegality or irregularity in the impugned order. The Tribunal has simply ordered to carryout an environmental audit and also recommended that the Management of Dadex should prepare Environmental Management Plan through any reputable H environmental consulting firm in order to address environmental issues. Since the matter was found to be of technical in nature, the Tribunal deemed fit to constitute a commission to examine the core issue. The interlocutory order is no way prejudicial or detrimental to the petitioner. Being a special Tribunal constituted under a special law, it is the responsibility and obligation of the Tribunal to examine the environmental issue before passing any final order.
Setting aside an interlocutory order in the Constitutional jurisdiction will tantamount to negating the provisions of the statute which does not provide for an appeal against an interlocutory order.
Court should not act in a manner by which the object of a statute is defeated and the same is rendered nugatory. Constitutional jurisdiction could not be invoked where it could have the effect of defeating or deflecting legislative intent. Efforts should be made to make the law workable, robust and potent and in order to make the law workable, and practicable for expeditious disposal of complaints, the legislature has intentionally omitted appeal against interlocutory orders to provide efficacious and expedient mechanism to decide controversy finally as a whole instead of fragmented decision. If at this premature stage, the impugned interlocutory order is disturbed or set aside, it will amount to strangulate and stifling the spirit and scope of Pakistan Environmental Protection Act, 1997 which has been brought into existence in the larger public interest for providing the protection, conservation, rehabilitation and improvement in the environment, prevention and control of pollution and promotion of sustainable development. It is not possible in our opinion to draw any strength from the contention raised by the petitioner's counsel that the impugned order is coram non judice. In all conscience, the bottom line of this discussion is that while passing the impugned order, the learned respondent No, 3 has neither committed any jurisdictional error nor acted in excess of jurisdiction as a result thereof, the constitution petition is dismissed in limine along with listed application. in limine.