' Present appeal under section 22 of the Pakistan Environmental Protection Act, 1997 has been filed on 14-6-2010 by the Sindh Particle Board Mills Limited, through its Company Secretary, Jehangir Adam against Environmental Protection Agency, Sindh, praying therein that the impugned Environmental Protection Order dated 17-5-2010 may be dismissed.
2. The facts in brief as stated in the appeal are that the appellant mill was incorporated as a Public Limited Company in the year 1979 and is involved in the processing and manufacturing of chipboard, which is produced after a lengthy industrial process, which employs amongst other material, bagasse and wood as raw material. Appellant mill also provides varied value added materials and has an additional capacity to produce veneer and laminated boards.
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3. Appellant averred in the memo of appeal that the respondent had initially issued a notice on 13- 12-2007 for contravention of Pakistan Environmental Protection Act and EIA/IEE Regulations, 2000.
After receipt of said notice the appellant attended a hearing and addressed a letter dated 17-12- 2007 and asked for clarification if an EIA or an IEE was required to be filed. In response the office of respondent replied vide letter dated 27-12-2007 and directed the appellant to file an EIA report.
Thereafter, in compliance of the direction given by the respondent, the appellant filed the EIA report on 25-4-2008, which was arbitrarily and without giving heed to the changes incorporated by the appellant, was dismissed after seven months by the respondent with direction to the appellant to close their manufacturing unit and to implement certain measures reducing alleviating the purported pollution. The appellant to show the bona fide under protest decided to close the factory and in the said time undertook and completed the implementation of mitigation programme as recommended by the respondent. In addition to this also filed amended EIA/EMR/Environmental Audit Report.
4. It is further the case of appellant that after passage of over seventeen months the appellant received another notice under section 16(2) of the Pakistan Environmental Protection Act, 1997 on 17-5-2010, which was issued illegally mentioning therein that on the basis of large number of complaints received from several persons and on inquiry conducted by the learned District and Sessions Judge, Jamshoro, the appellant was found in contravention of Pakistan Environmental Protection Act, 1997 and hence ordered to cease running the factory. Since no copy of complaint or notice of enquiry was given to the appellant therefore the same is illegal as appellant was condemned unheard which is against the principles of natural justice.
5. It is further urged in the memo of appeal that before issuance of Environmental Protection Order dated 17-5-2010 no personal hearing was given to the appellant mill, therefore, the impugned order is illegal and the same may be dismissed.
6. Notice of instant appeal was given to the respondent and R&Ps relating of the present appeal were called from the Environmental Protection Agency, Sindh. On 12-8-2010 R&Ps were submitted by the respondent. The parawise comments were filed by the respondent on 20-10-2010, wherein it has been admitted that EIA was submitted by the appellant but that was not approved as the base line of the area was not completely discussed in the EIA report and information about the biodiversity of the region was missing. Emission from handling and processing of the bagasse as raw material and the usage along with various type of wood dust in furnace had not been detailed.
The mitigation measures committed to be undertaken were not complied.
7. It is further alleged in the comments that the respondent rejected the EIA report according to merits as the factory was causing pollution in the area and a lot of complaints were received by the respondent/Environmental Protection Agency, Sindh that due to pollution caused by appellant mill, the residents of area were suffering from respiratory diseases and many people had become patient of chronic asthma, though the respondent had given proper time for improvement but appellant did not implement the _ mitigation program. The appellant Mill had no covered storage area to' store the bagasse, all stock is still kept in open area and with blowing wind it spreads in the entire area. Not only this but during the factory process, very fine chemically mixed particles of bagasse are freely released from their chimney as Mill does not have any filter, which also spreads in the area. Therefore the residents of locality had been approaching the Environmental Protection Agency,. Sindh against the appellant Mill since long, and Environmental Protection Agency, Sindh had been giving directions from time to time to the appellant Mill to control the pollution but all in vain. On 15-12-2009 Naib Nazim of Taluka Council submitted application before honourable High Court, Circuit Bench, Hyderababd. Under the directions of honourable High Court an enquiry was conducted by District and Sessions Judge, Jamshoro. Thereafter, the Director-General, Environmental Protection Agency, Sindh by exercising the powers under section 16(2) of the Pakistan Environmental Protection Act, 1997 issued Environmental Protection Order against the appellant directing them to stop the production process of factory to save human health and environment from further damage.
8. We have heard Mr. Zulfiqar Noorani, advocate for the appellant and Mr. Abdul Maroof, DDPP for Environmental Protection Agency, Sindh, both reiterated the grounds taken in memo of appeal and comments respectively.
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9. We have considered the arguments advanced before us and have perused the case record.
Specially the R&Ps submitted by the respondent pertaining to the present appeal. From perusal of the R&Ps, it reveals that in the month of June, 1999, one Sardar Yar Muhammad Rind had made complaint to the Minister, Environment against the appellant mill, mentioning therein to issue instructions to concerned Mill owner for the arrangement of pollution control unit, so that health hazards may be stopped. Accordingly the matter was taken up and such directions were issued to the Deputy Director, Regional Officer, Hyderabad for conducting inquiry of the appellant mill and to submit a comprehensive report suggesting remedial measures to minimize the risk of health and environmental problems associated with the activity. After receiving the complaint from Head Office of Environmental Protection Agency, Sindh, a survey of appellant mill was conducted on 30- 7-1999 along with Factory Manager, who briefed the Environmental Protection Agency, authorities and such survey report was prepared and it was observed that there was a small village near to the factory and the agricultural lands were also at a distance of one kilometer from the factory. It was disclosed that the bagasse ('solid waste of sugarcane) was stored in an open area of more than one acre in mounds of about 12-15 feet high. It flies due to wind currents towards the direction of the small village and spreads all over on the surface. It was further observed that dust particles were also emitted when the factory was in operation during its de-dusting process. However, it was suggested that the bagasse be kept in closed storage or it should be in bags or bales in compact from so that its spreading could be controlled.
10. The R&Ps further reveal that on 5-4-2000, Kishan Chand Mukwana, Assistant Director, Regional Office, Hyderabad sent letter to the Factory Manager of the appellant mill, directing to take measures to control the particulate matter and others so that the people residing nearby could be saved from the adverse effects of the pollutants emitting from the appellant mill The appellant mill in the letter dated 25-4-2000, written by Manager, to the Assistant Director-II, EPA, Regional Office Hyderabad, admitted that previously the appellant mill was storing about, 12 thousand tones of bagasse in the open space and undertook to reduce the quantity to minimize the pollution.
Thereafter the EPA directed the Administrative Incharge of EPA, Regional Office, Hyderabad to monitor the appellant mill regularly.
11. On 15-1-2004, Administrative Incharge, ERA, Regional Office Hyderabad again visited the appellant mill and observed that the arrangement made were still not sufficient to completely control the outgoing pollutants at some points, bagasse and dust particles were still escaping. The team observed that open yard storage of bagasse in big quantity (about 1000 tons) and few trucks were also unloading the bagasse. Again it was suggested that management be called and if competent authority feels legal action may be initiated.
12. We have also noticed that on 3-4-2004 Mr. Gul Muhammad Shoro Nazim, Union Council Allah Bachayo Shoro, addressed letter to the Secretary, Environment, (Sindh) requesting therein to control the flow of harmful bagasse, dust, causing problems to inhabitants of surrounding area of the appellant mill and for taking necessary legal action against the appellant mill and in this regard also annexed the resolution passed by the Union Council dated 3-4-2004.
13. We have also gone through the Environmental Protection Order dated 28-7-2004 issued by the then Director-General, Environmental Protection Agency, Sindh against the appellant mill. On 23-5- 2006, Director-General, Environmental Protection Agency, Sindh again constituted a team vide Authorization Order dated 23-5-2006. Such survey report dated 13-6-2006 is on record wherein it is clearly mentioned that situation was so bad that survey team was facing lot of uneasiness in carrying the inspection due to high intensity of emission of fine particles. Again issuance of show cause notice was suggested.
14. On 15-2-2007 one Arshad Awan, made complaint to the then Director-General, Environmental Protection Agency, Sindh against the appellant mill mentioning therein that the appellant mill is manufacturing chipboard from bagasse with a mixture of various chemicals and during the process of grinding of the chipboard small/very fine chemically mixed particles which are freely released in the open air spread/fly in the area, there is bad smell and health of the workers and their families in the nearby colonies had been affected badly and not only human life was suffering but the agriculture crop had been affected.
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15. The perusal of the R&Ps, further reveals that on 20-4-2007, one Muhammad Azam, made complaint to the Director-General, Environmental Protection Agency, Sindh for taking action against the appellant mill. The copies of said complaint were forwarded to Mohtasib-e-Alla, Sindh, Minister of Health and otheRs, On 21-4-2007, Chairman, Kotri. Association of Trade and Industry complained against Sindh Particle Board to Secretary, Environment and. Alternative Energy, Government of. Sindh, which on 30-4-2007 was sent to the Director-General, Environmental Protection Agency, Sindh to take immediate action against the Appellant mill according to environmental law. On 30-4-2007, Administrative Incharge, Regional Office, Hyderababd issued letter to the appellant mill informing them that environmental pollution caused by appellant mill is against subsection (1) of section 11 of the PEPA Act, 1997 and a case can be registered against the appellant mill. Thereafter on 7-5-2007 Kotri Association of Trade and Industry made a written request to the Director-General, Environmental Protection Agency, Sindh for taking legal action against the appellant mill as the General Manager, Admin of Surriya Textile Mills addressed a letter to the Chairman, Kotri Association of Trade and Industry with a request to take-up the matter with the concerned Mill and also to concerned government regulatory authority to take remedial action against the appellant mill.
16. R&Ps further reveals that on 12-3-2007, one Muhammad Aslam had made complaint to the then Chairman Senate, Muhammad Mian Soomro, for taking necessary action against the appellant mill, on 7-6-2007 same was forwarded by Major Syed Hasnain Haider, Principal Staff Officer, to the Chief Secretary, Sindh for consideration and further necessary action.
17. Thereafter repeatedly notices and correspondence had been exchanged between the Environmental Protection Agency, Sindh and appellant and finally on 1-12-2008, Environmental Protection Order was issued to the Appellant mill directing them to stop production process of the Mill forthwith. The appellant did not challenge the said Environmental Protection Order, which in fact remained intact. However, on 12-12-2008 in response to the Environmental Protection Order the appellant instead of complying with the directions given in Environmental Protection Order, stated that they will submit periodically monitoring/environmental audit reports demonstrating compliance with National Environmental Quality Standards and other guidelines of Environmental Protection Agency, Sindh. On 10-1-2009 again team of Environmental Protection Agency, Sindh visited the appellant mill from outside and found that factory was in operation, smoke was discharging from the stake of factory and bagasse and dust particles were also emitting from three points in the air.
18.. That on 1-9-2009; Chairman Doctor's Forum Kotri made complaint to the Secretary, Environment for taking legal action against the appellant mill. The said complaint was forwarded to the Assistant Director, Environmental Protection Agency, Sindh and after receiving the complaint Regional Office Hyderabad visited the appellant mill and observed that the bagasse was present in the premises of the Mill, the management did not shift or remove the stock of bagasse from the mill and no arrangements were made for covering the bagasse, which was stocked in huge quantity at premises of the mill and bagasse particles were blowing by the air. The dust catchers were installed but they were not working properly and there was no any arrangement for control of flue gas as per National Environmental Quality Standards.
19. That on 5-12-2009 one Mr. Muhammad Saleem Tahir, moved complaint before his lordship Mr. Justice Amir Hani Muslim of honourable High Court of Sindh against the appellant mill and accordingly under the directions of the honourable High Court, learned District and Sessions Judge, Jamshoro held an inquiry in order to ascertain the truth into the allegations levelled by the complainant Saleem Tahir against the appellant mill. The learned District and Sessions Judge, Jamshoro in his inquiry dated 1-4-2010 suggested that Environmental Protection Agency, Sindh may be directed to lodge the case against the management of the appellant mill before the Environmental Protection Tribunal.
20. Thereafter the respondent issued impugned Environmental Protection Order on 17-5-2010 against the appellant mill. Against this the appellant filed Constitutional Petition No,D-1486 of 2010 before the principal seat at Karachi praying therein that the impugned Environmental Protection Order dated 17-5-2010 may be declared as illegal. However, in the said Constitutional Petition appellant succeeded in seeking stay order restraining the respondent from taking any action against the appellant mill.
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21. The appellant in his Constitutional Petition No,D-1486 of 2010 did not disclose the fact that the above matter has already been initiated at the behest of honourable High Court of Sindh, Circuit Bench, Hyderababd as is evident from letter No,18735 dated 18-12-2009 mentioned in the report dated 1-4-2010 of District and Sessions Judge, Jamshoro submitted before the honourable High Court.
22. Again while filing appeal before this Tribunal the appellant has not disclosed that the matter was already sub judice before the Principal Seat of honourable High Court of Sindh and that the stay order was operating in his favour. However, while going through R&Ps, it has come in our notice that the appellant has obtained stay order from the High Court, and has suppressed the fact about pendency of Constitutional Petition No,D-1486 of 2010 and stay order. This attitude. Reflects that the appellant has not approached this Tribunal with clean hands. However, it will not be out of place to mention that above petition was withdrawn by the appellant vide order dated 20-12-2010.
23. It is relevant to mention that during the course of arguments the learned counsel for the appellant has merely relied upon the grounds mentioned in the memo of appeal. Which in our humble view under the peculiar circumstances of the case merit no consideration. On the other hand DDPP for the Environmental Protection Agency, Sindh has filed comments, which are based on facts and findings, complaints of various persons and repeated survey reports, which establish that the appellant mill is involved in causing pollution which is injurious to the health of workers as well as residents of adjoining villages and the surrounding area.
24. In view of the above discussion it is evident that the appellant mill has a chequered history and is involved in causing pollution since long. As in 1999 first complaint of one Sardar Yar Muhammad Rind had come on record and since then there are not only complaints of individuals but different associations and forums had been complaining but the appellant mill till today has not taken sufficient measures to control the pollution. It is rather the case of appellant that bagasse is stored in open place and is covered with plastic sheet. Admittedly this storage of bagasse is in the form of heaps upto 12-15 feet high. This attitude of appellant mill is a classic example of high handedness and cannot be given protection. Not only this but there are letters, visit reports, show-cause notices and even earlier Environmental Protection Order dated 1-12-2008 which have not been complied with till today by the appellant mill. Thus in these circumstances the appellant mill cannot take the stand that no personal hearing was given to them for treatment of the environmental issues.
Admittedly the appellant has no case on merits.
25. In view of the above discussion we find that Environmental Protection Order dated 17-5-2010 has rightly been issued against the appellant mill, therefore, we do not find any reason to interfere with it. Hence the instant appeal is hereby dismissed with costs.
' Announced in open Court.
' Given under our hand and seal of this Tribunal on this 20th day of January, 2011.