' Through this environmental appeal, the appellant has assailed the order dated 20-4-2012 passed by the Director General/respondent No,1, whereby recording findings as to failure of the appellant industry to comply with the conditions contained in the Departmental Approval/NOC dated 10-9- 2004 (construction phase) the same has been cancelled purportedly in the exercise of powers under Regulations No,20 of IEE and EIA of 2000. Briefly the facts of the matter in dispute before this Tribunal with the background thereof are as under:--
(A) The appellant Unit, as per NOC letter dated 10-9-2004, is a distillery plant for the extraction of 120,000 Liter/day of Ethanol/Ethy Alcohol (CHOH) from molasses, a by-product of sugar industry and is located at 14-KM Sadiq Abad Manthhar Road, R.Y. Khan.
(B) After completion of the construction phase the appellant industry, in the year 2008, was also issued approval/NOC dated 23-10-2008 (operation phase).
(C) Vide condition No,3(vii) of the first mentioned NOC, the appellant industry had to install the waste water treatment plant, air pollution control devices and make arrangement for safe disposal of solid waste to comply with NEQS and to adopt all pollution control measures before the start of regular operation of the Unit.
(D) As per minutes of the meeting dated 6-9-2008 held under the Chairmanship of Secretary EPD, regarding disposal of waste water of the appellant Unit in paragraph No, (iii) the tact of the appellant Unit having applied for permission before EPA/respondent, for operation phase with the explanation that the effluents generated during the trial operation and Commercial projection were to be disposed of in the Mather drain (SCARP) for which the Ministry of Defence had permitted the appellant Unit, whereas as per the next paragraph of the said minutes of meeting, the officials of GHQ Rawalpindi stopped the appellant Unit from disposing of the effluents into the said drain.
(E) Vide paragraph No,(v) of the aforementioned minutes of the meeting, the appellant Unit after having been restrained to dispose of the effluents into the Manthhar drain by the Army, purchased pieces of land in the production vicinity, constructed ponds and started to dispose of the liquid effluents therein, whereupon the residents of the villages, in the area started complaining due to bad odour emanating from the stagnated ponds.
(F) The appellant Unit then filed an application dated 6-3-2008 to EPA/respondent seeking to recommend 5 Corps HO Karachi for permission to dispose of the effluents into Manthhar drain, whereupon the appellant Unit was granted conditional permission dated 28-5-2008 to dispose of the liquid effluents into Manthhar drain after conducting public hearing and completing all legal formalities. However, later on the GHQ stopped the appellant Unit from that and requested the EPA Punjab for re-consideration of the case.
(G) On receipt of the aforementioned request of the GHQ the respondent/EPA seems to have obtained the site inspection report of the appellant Unit dated 13-3-2008 from the. District Officer Environment R.Y. Khan as well as of the Environment Lab report regarding industrial waste water of the appellant Unit issued a notice for personal hearing dated 28-4-2008 followed by issuance of EPO dated 5-8-2008 and a Complaint case (No,531/2012) under section 21(3) of PEPA 1997 was instituted by the DG EPA against the present appellant, which after transfer of that from the Federal Environment Tribunal to this Tribunal during the last month, is also pending in this Tribunal.
(H) During the pendency of the aforementioned Complaint case, filed by the respondent Agency in the year 2009, understandably due to no change for better having taken place at the spot, the residents of the nearby area started raising their concerns before various forums, whereby the efforts of the appellant Unit for laying down PVC pipeline (5-6 feet underground) for shifting its waste water from its production area 12 KM away in the desert for placement of secondary treatment based on wetland technology system, seem to have been foiled so far.
(I) The Hon'ble Lahore High Court. Bahawalpur Bench, in Writ Petition No,303/ 12, directed the respondent No,3 (Secretary/EPD), to resolve the issue in the matter by appointing some responsible officer in order to ensure compliance of letter/NOC dated 10-9-2004 and also to personally indulge in the matter and try to redress the miseries of the people of the area and submit report about that to the Deputy. Registrar (J) of the said Bench.
(J) On receipt of the aforementioned order/direction of the Hon'ble Lahore High Court Bahawalpur Bench, the things seem to have moved on quite a fast track i,e, Secretary Ehvironment (respondent No,3) authorizing D.G, EPA (respondent No,1) for implementation of the directions of the Hon'ble High Court; the DG EPA visiting the site of .The appellant Industry accompanied by D.O. Environment R.Y.
Khan on 8-3-2012, recording statement of Iftikhar Ahmed, writ petitioner and Muhammad Sadiq Chohan, Admn. Manager of the appellant Factory; the delivery of notice dated 11-3-2012 to the Chief Executive of the appellant Unit, with direction to bring discharge of waste water in conformity with the NEQS by installation of secondary waste water treatment plant, and requiring appearance of the appellant Unit on 18-4-2012 at 11-30 a.m. For submission of written reply, if any, and responding to that, the Chief Executive of the appellant Unit appeared with his learned counsel on the said date and also submitted written reply dated 20-4-2012.
(K) And lastly on 'examination of the aforementioned written reply submitted by the appellant to the respondent Agency, the environmental approval granted to the appellant Industry has been cancelled purportedly in the exercise of powers under Regulation No,20 of the IEE and EIA Regulations, 2000 vide even dated order impugned herein.
2. Initially the arguments of both sides were heard on 1-8-2012 and due to ensuing special summer vacation of this Tribunal, the matter was adjourned for consideration and further arguments to 16- 8-2012. However, on request of the appellant side, the same was then adjourned to 30-8-2012 for putting up proposals for environment friendly steps by the appellant for running the Industrial Unit.
But on the said date, the appeal in hand was adjourned to 22-9-2012 to be put up along with the Complaint case (No,531/2012) of the respondent Agency/EPA against the appellant Industrial Unit after receipt of that from the Federal Environment Tribunal.
3. It is pertinent to note here that in the meanwhile on 13-9-2012, the appellant industry filed an application before this .Tribunal seeking permission to complete the work of laying down of PVC pipeline cum its undertakings thereto for placement on record, which was also fixed on 22-9-2012 for arguments and in response thereto the respondent/EPA submitted its reply/written arguments, and both sides then summed up their versions herein.
4. Mr. Muhammad Yasin Hatif, Advocate, learned counsel of the appellant, contended for acceptance of the instant appeal and setting aside of the impugned order dated 20-4-2012 passed by respondent No,1, inter alia, on the ground of that being illegal; having been passed with undue haste and against the spirit of the law of the land and that too during the pendency of Complaint case filed by respondent No,1 himself before this Tribunal. The learned counsel invited our attention towards continuous efforts of the appellant Unit to seek some viable solution for working of the Industry without any adverse environmental effect. The learned counsel in that regard elaborated the plan of the appellant Unit for installing the secondary treatment plant after shifting the waste water 12-KM away from the Industria: Unit in the desert area. The learned counsel invited our attention to the application of the appellant Unit seeking permission for that and the undertakings to comply with all directions of the Tribunal thereto. The learned counsel also emphasized that respondent No,1 (DG EPA) has passed the impugned order in utter disregard to the spirit of the order dated 22-2-2012 passed by the Hon'ble Lahore High Court, Bahawalpur Bench in W.P. No,303 of 2012, as cancellation of approval of tile appellant Unit cannot be taken proper solution for redressal of miseries of the people of the area. The learned counsel speaking about alleged mala fide of the respondent No,1 (DG EPA) also invited our attention to the meeting dated 17-3-2012 of the parties under the Chairmanship of Secretary EPD and the decision therein to constitute technical committee for addressing the issue, wherein the DG/respondent No, 1 did not disclose any fact of his making the report to the Hon'ble High Court on 16-3-2012. The learned counsel lastly invited our attention to the text of Regulation No,20 of IEE and EIA Regulations 2000 and reiterated that even the impugned order has been passed by respondent No,1 in utter disregard to the provisions of the said Regulation itself. Reliance placed on PLD 2007 Karachi 293.
5. Conversely Miss Ruqiya Umbreen learned DDPP from the respondent/EPA side has opposed the above contentions of learned counsel of the appellant and supported the impugned order on the ground that the Industrial appellant Unit is indulging in pollution generating activities since the year 2005 onward and despite its assurance to properly treat the waste water/effluents to bring those in conformity with NEQS, has failed to do so. The learned DDPP emphasized that the appellant Unit is responsible for causing a huge adverse environmental effect to the area and health of the people may not be put to jeopardy by allowing the appellant Unit to go with its Industrial activity without ensuring the installation of secondary treatment of its waste water/effluents. The learned DDPP highlighted that despite availing of enough time, the appellant Unit has done nothing and the discharge of its waste water in Manthhar drain was also stopped by the Army for the reason of that being injurious to the aquatic life in the said drain and the apprehended danger even to the health of the army personnel of 5 Corps, stationed around there. The learned DDPP expressed concern that the new move of the appellant for laying down 12-KM PVC pipeline is only meant to shift the pollution from one point to another and is nothing more than that. The learned DDPP lastly reiterated that the Authority granting approval is also competent to withdraw or cancel that at any time, in case the conditions of that are not complied with, as in this case. The learned DDPP placed her reliance on 2005 CLD 1523.
6. After hearing the above arguments of the learned counsel-from both sides and going through the record, we feel deeply perturbed to note certain glaring faults/acts of omission and commission by both the parties at their respective ends. No doubt the industrial activities of the appellant Unit produce waste water at large scale which some time was discharged in Manthhar drain and on stoppage from that is being kept in lagoons on the open land purchased by the appellant Unit. But as long as that is not properly treated the fact of the said untreated waste water bearing quite an adverse environmental effect can hardly be disputed by any one. The latest offer of the appellant side for laying down the PVC pipeline 12-KM long from its site to the desert for installation of wetland technology/secondary treatment plant, where points out the consciousness of the appellant Unit to its duty, there implicitly projects something of acknowledgment on its own part as to the waste water/effluents having not met the NEQS so far. However, as the complaint case of the respondent/EPA is also sub judice in this Tribunal, therefore, being cognizant of the question of prejudice to either party, we refrain from any further comments herein.
7. Now looking at the conduct of the respondent side, particularly respondent No,1, we see that the approval/NOC for the construction phase of the appellant Unit was given in the year 2004 and thereafter in the year 2008 also the next approval/NOC (operation phase) has been given without ensuring the proper compliance of the conditions of the construction phase thereto under Regulation 13(2)b. We also note with sadness that the respondent No, 1 /EPA did not either properly articulate/specify the nature of treatment plant and the measures to treat the waste water/effluents by the appellant Unit, even in the approval for construction phase dated 10-9-2004 -and also in subsequent NOC/approval for operation phase, which omission on the part of respondent No,1 seems to have equally contributed to the malady before us. During the arguments on the question by the Tribunal, the learned DDPP speaking about the performance of duty by the respondent No, 1 /EPA though stated about issuance of EPO against the present appellant Unit and then filing of the Departmental Complaint case in Mthe Tribunal, but we wonder if the issuance of EPO and filing of a Complaint in the Tribunal is the only job of the respondent No,1/EPA. Therefore, if the problem is.Continuing on so far, then the responsibility of that lies equally on the appellant as well as the respondent/EPA, as both look to have slept over that for such a long time.
8. Now, without entering upon any further discussion in the matter, we turn to Regulation No,20 of the IEE and EIA Regulations 2000 and see that even on the touch stone of that the impugned order is untenable for the following reasons;
(i) The direction as to issuance of notice to the present appellant to show cause within 2 weeks of receipt thereof, as to why approval could not be cancelled, has been flouted by directing the appellant by a single notice to appear for personal hearing as well as for submission of written reply just within a week of the issuance of that on 18-4-2012:
(ii) After receipt of the written reply of the appellant, the respondent/EPA even ignored written request for adjournment dated 20-4-2012 of the appellant Unit and cancelled the approval/NOC (construction phase) of the appellant Unit without any word regarding Approval/NOC of operation phase, which is also violate of the expressed provisions of law besides being ridiculous in itself.
9. Here we feel advised to clarify for all concerned that even any direction of the Hon'ble superior courts for expeditious disposal of some matter cannot be a valid excuse for departure from the laid down procedure for any particular act. The appeal in hand is, therefore, accepted on said short ground and the impugned order dated 20-4-2012, passed by respondent No,1., is set aside with the following consequence;
(i) That the matter is remanded back to respondent No,1 for decision afresh by him within 3 weeks hence from and before 21st October, 2012, while strictly adhering to the provisions of Regulation 20 of the IEE and EIA Regulations 2000, in letter and spirit thereof;
(ii) That written undertaking submitted by the appellant Unit making part of that's application seeking permission to complete laying down the PVC pipeline, is also hereby sent in original to the respondent party/respondent No,1 to go through the same in a joint sitting of the Experts of the appellant Unit as well as of the respondent Agency for a mindful decision thereof, keeping in view the feasibility aspect of the matter for ensuring pollution free environment by installing of secondary treatment plant at the end of 12 K.M. PVC pipeline proposed by the appellant Unit itself in consultation with approved environment consultancy Firm/Company; and
(iii) That nothing herein shall preclude the respondent Agency from clarifying to the appellant Industrial Unit that in case of approval of the PVC pipeline project by the said Agency, the appellant shall have to complete the same, at his own risk and costs and that the only concern of the respondent Agency as well as the public at large thereto shall be to ensure safe environment through proper control and treatment of all waste water discharges by the appellant Industry to meet the NEQS and within the given time frame by the respondent agency/EPA.
10. Needless to add here' that the fact of a large scale pollution having been generated by the industrial activity of the appellant Unit warrarits strict notice by all concerned in accordance with law and in the light of the judgment of the August Supreme Court of Pakistan in MRs, Sheila Zia's case (PLD 1994 SC 693).
11. Before parting herewith, we cannot resist to record out deep concern for a time conscious solution of the problem by all concerned. We also note here that development/ industrialization and ecology/environment protection, both are to go hand in hand and no one sided solution can validly be seen as a solution at all. Hence, both appellant as well as the respondent side are hoped to try to take this judgment as a wakeup call for them, as neither tackling of the burning issue of proper treatment of waste water of the appellant Unit can be kept hanging long, nor the appellant Industry can be allowed to continue with its pollution generating activities un-abated.
Copies of this judgment be supplied/sent immediately to all concerned for their information and compliance. File be consigned to record. MWA/ 1/PET .