' Through the instant appeal the appellant Pakistan Cement Company Ltd. Challenges the validity and legality of Environmental Protection Order dated 13-8-2008 passed by the respondent on the private complaint of one Wasim Ahmed Raja dated 18-1-2007. This appeal was filed on 26-9-2008.
Later DG EPA filed complaint against the respondent cement factory on 4-3-2010 which is on the same subject matter as that of the present appeal. We therefore propose to dispose of both of them together.
2. Notice of personal hearing dated 15-5-2008 was issued to the respondent company in the complaint for 26-5-2008 and 9-6-2008. In response thereof its Chief Executive filed his written reply through his counsel on 9-6-2008 wherein it was stated that as a constitutional petition is pending before the Supreme Court of Pakistan, therefore Environmental Protection Department may not proceed in the matter and it does not have any authority to take cognizance of an offence under section 12 of the Act. The construction of the plant commenced in the year 1994 and the private complaint on the basis of which notice of hearing was issued was made on 18-1-2007.
3. Complainant Agency became satisfied after perusal of Site Inspection Report, hearing proceedings and other material on record that the respondent unit was responsible for causing pollution. Hence Environment Protection Order was issued to the respondent on 13-8-2008 which contains the following directions.
(i) Apply for paying penalty/fine regarding violation of section 12 of the Act ibid as envisaged in section 17 of the Act ibid in respect of cement plant and quarry site separately.
(ii) Control indiscriminate disposal of wastewater and treat in conformity with the NEQS.
(iii) Restrain from diverting storm water to the agricultural fields and water ponds.
(iv) Control dust and gaseous emissions generated during abnormal plant conditions in conformity with the NEQS.
(v) Adopt remedial measures to control ambient dust level to the satisfaction of this Agency.
(vi) Maintain record of the time during which start up and upset conditions occur and shall mention the tota time elapsed in such conditions besides maintainin separate documentation/ Log book of non-operation pollution control devices on daily basis and furnis report to EPA, Punjab on monthly basis.
4. Learned counsel for the appellant has argued if construction of the plant was started in the year 1994 who Pakistan Environmental Protection Act (PEPA) promulgated in the year 1997; therefore it was not poss' for the respondent company to obtain approval from the under section 12 of PEPA 1997. However in order to em compliance of law the respondent submitted Environmental Impact Assessm ent report (EIA) to EPA or February, 2006. In terms of section 12(4) of PEPA 1997 was required to communicate its approval or otherwise to the respondent company within a period of four months from the date of filing of (EIA). Since this was not done the F Environmental approval is to be deemed to have been granted.
5. Learned counsel further argued that without pre-justice to the foregoing, order of the respondent directing the appellant to apply for paying penalty/fine regarding violation of section 12 of the Act read with [EE/EIA Regulations 2000 as envisaged in section 17 of the Act in respect of the cement plant and query site separately is illegal, without jurisdiction and is contrary to the provisions of PEPA 1997. Respondent has no jurisdiction or authority to impose a penalty for contravention of the provisions of section 17(1) of the PEPA 1997. Under section 21(2) of PEPA 1997 such authority vests exclusively in the Environmental Tribunal. The direction for paying penalty for violation of section 12 of PEPA 1997 is entirely without jurisdiction and is liable to be set aside.
6. In reply learned representative of the complainant department has explained that the department had issued Environmental Approval to two other companies namely Messrs Bestway Cement Chakwal and Messrs D.G. Khan Cement Chakwal while Messrs Pakistan Cement Company Ltd. Chakwal (appellant) had applied for Environmental Approval on 3-2-2006 but its Environmental Approval could not be issued due to the reason that at the time of visit of Assistant Director (EIA) on 5-5-2006, 90 to 95% construction work was completed and crushing of raw material was also started. It was therefore proposed by Assistant Director (EIA) to the Director P & C, EPA Punjab Lahore vide letter Vo.DD(E1A/F-27/2006/EPA) dated 12-3-2008 that the management of Pakistan Cement Company Ltd. Chakwal lay be asked to furnish Environmental Audit Report from bird party and secondly laboratory reports may be obtained on Deputy Director (Lab) EPA Punjab for proceeding another.
7. Reference has been made during arguments by learned representative of the complainant department to the ardency of constitutional Petition No, 29 of 2005 in the Supreme Court of Pakistan filed by Pakistan environmental Association (PELA) and others against the Provincial not and others including the present appellant since 5.
8. Learned counsel for the appellant has today filed copies of the above mentioned constitutional petition as well as order of the Supreme Court of Pakistan dated 14-4-2010 whereby the petition was dismissed.
9. We have heard arguments of learned counsel for the parties at great length and have also perused the entire record of the case. We are of the considered view that reference of constitutional Petition No,29 of 2005 filed by PELA in Supreme Court of Pakistan has no bearing whatsoever with the issues involved in the present appeal and the connected complaint. Said petition was dismissed by the Supreme Court of Pakistan on its very first hearing five years later.
During this period application for grant of Environmental Approval was submitted by the respondent on 3-2-2006 and its fate was intimated to the respondent with the issuance of EPO in 2008 when the deeming clause had been operative.
10. We also hold that Environmental Impact Assessment of construction of the project is to be deemed to have been approved w.e.f. Four months after completion of the requisite data to the extent to which it does not contravene the provisions of this Act and the Regulations made thereunder.
11. However the respondent company failed to obtain the mandatory permission of EPA Punjab, Lahore for operation of the factory under section 12 of PEPA 1997. For such violation a fine of Rs,100,000 is imposed on the respondent in departmental Complaint No, 46 of 2010 which will be deposited by him in the treasury within thirty (30) days from the announcement of this order and its deposit receipt filed in the Tribunal for record. If the fine is not paid within the given period the cement factory shall be sealed.
12. Learned representative of the complainant department admits that the remaining directions given in the EPO have been carried out by the respondent company.
13. Respondent is directed to approach the concerned authority for approval of operation of the unit.