1. MAMOON RASHID SHEIKH, J.--- The limited question of law involved in the instant appeal which requires determination is that whether the appeal filed by the appellant under section 22 of the Pakistan Environmental Protection Act, 1997 (the Act), before the learned Environmental Tribunal, Punjab (the Tribunal), against the Environmental Protection Order (the EPO) dated 31-5-2010 passed under section 16 of the Act, by the Director-General, Environmental Protection Agency,GovernmentofthePunjab(therespondent)waswithin time or not.
2. 2.The learned counsel for the appellant submits that section 22 of the Act envisages that any aggrieved person can file an appeal before the Tribunal within thirty (30) days of the communication of the impugned order or direction. The impugned order was passed by the respondent on 31-5-2010 and admittedly the order was communicated to the appellant on 6-7- 2010 so the period of thirty days for filing of the appeal was due to expire on 5-8-2010. The learned Tribunal, however, took the view that the requisite period of thirty (30) days expired on 4-8-2010, therefore, the appellant's appeal was held to be time barred by one day. It was further held that since the Act is a special law, therefore, by virtue of section 29 of the Limitation Act, 1908, the provisions ofsection 5 of the Limitation Act, 1908, do not apply. Hence, the appellant could not claim condonation of delay.
3. 3.The learned counsel for the appellant contends that the view taken by the learned Tribunal is erroneous as the matter in issue was whether the appeal was filed within thirty (30) days of the communication of the impugned order to the appellant or not. The question of applicability of section 5 of the Limitation Act to the instant case does not arise. Further submits that under section 9 of the General Clauses Act, 1897, as also the provisions of section 12 of the Limitation Act, the day the order is communicated to a party is to be excluded for the purposes of calculation of the period of limitation. In the instant case the order was admittedly communicated to the appellant on 6-7-2010, therefore, the period of thirty (30) days of limitation would start from7-7-2010 and not from 6-7-2010 as held by the learned Tribunal. The thirty (30) days, therefore, expired on 5-8-2010 i.e. the date on which the appeal was filed by the appellant before the learned Tribunal. The appellant's appeal was, therefore, within time. He submitted that this aspect of the case has been totally ignored by the learned Tribunal whilst passing the impugned order dated 23-8-2010 and places reliance on the judgments reported as Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCMR 1903), Sher Muhammad and 6 others v. Gul Fraz (1989 CLC 1344), MessrsMalik Muhammad Nawaz, Haji Aziz Ahmad Commission Agents, Chakwal v. Syed Mehmood Hussain (1997 SCMR 264) and Muhammad Amin v. Muhammad Latif (PLD 1996 Lahore 321).
4. 4.The Assistant Director (Legal), Environmental Protection Agency, Punjab, controverts the stance of the learned counsel for the appellant. Contends that not only the appeal of the appellant before the learned Tribunal was barred by time but also the instant appeal is barred by time. Further contends that the date on which the impugned order of the respondent was communicated to the appellant (i.e. 6-7-2010) is to be counted for the purposes of calculating the period of limitation for filing of the appeal before the learned Tribunal. On such calculation thirty (30) days of limitation expired on 4-8-2010 and not on 5-8-2010 as contended bythelearnedcounselfortheappellant.Astotheinstantappeal submitsthattheappealwasfiledbeyondtherequisiteperiodof thirty (30) days.
5. 5.In reply to the objection of the learned Assistant Director the learned counsel for the appellant submits that the impugned order was not communicated to the appellant, therefore, the appellant was constrained to obtain a certified copy of the impugned order. Under the provisions of section 12 of the Limitation Act, 1908, the time spent by the appellant in obtaining a certified copy of the impugned order is to be excluded from the period of limitation. The instant appeal is, therefore, within time.
6. 6.We have considered the arguments of the learned counsel for the appellant as also of the Assistant Director and find that for the purposes of assessing whether the appeal before the learned Tribunal as also the instant appeal has been filed within time the provisions of sections 22 and 23 of the Act, need to be gone through. The said provisions are, therefore, being reproduced hereunder for ease of reference:--- "22.Appeal to the Environmental Tribunal.--- (1) Any person aggrieved by any order or direction of the Provincial Agency under any provision of this Act, and rules and regulations may prefer an appeal with the Environmental Tribunal within thirty days of the date of communication of the impugned order or direction to such person.
7. (2)An appeal to the Environmental Tribunal shall be in such form, contain such particulars and be accompanied by such fees as may be prescribed.
8. 23.Appeals from orders of the Environmental Tribunal.--- (1) Any person aggrieved by any final order or by any 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.
9. (2)An appeal under subsection (1) shall be heard by a Bench of not less than two Judges."
10. 7.A bare perusal of sections 22 and 23 of the Act shows that the appeals have to be preferred before the Tribunal or this Court within thirty days of the communication of the impugned order.
11. 8.The learned counsel for the appellant has placed reliance on section 9 of the General Clauses Act, 1897, and the provisions ofsection 12 of the Limitation Act, 1908, to contend that the day the order is communicated to a party has to be excluded from the period of limitation as the said sections envisage that the date of announcement of the order and/or the date the order is communicated to a party is to be excluded. In order to fully appreciate the contention of the learned counsel for the appellant it would be advantageous to reproduce the provisions of the said sections:--- The General Clauses Act, 1897 9.Commencement and termination of time.---(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from," and, for the purpose of including the last in a series of days or any other period of time, to use the word "to."
12. (2)This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
13. The Limitation Act, 1908 12.Exclusion of time in legal proceedings.
14. (1)In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
15. (2)In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded.
16. (3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.
17. (4)In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
18. (5)For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery."
19. 9.When the above sections are read jointly the contention of the learned counsel for the appellant appears to have force. Section 12(1) of the Limitation Act, 1908, provides that for the purposes of calculating the period of limitation prescribed for filing any suit/appeal/application the day from which such period is to be reckoned shall be excluded. It, therefore, follows that the date on which the order was communicated to the appellant "shall be excluded" for the purposes of calculating the period of limitation for filing the appeal.
20. 10.In the instant case admittedly the order was communicated to the appellant on 6-7-2010. The limitation in the case would, therefore, run from 7-7-2010 and the thirty (30) days period would end on 5-8-2010. The appeal filed by the appellant before the learned Tribunal would, therefore, appear to be within time.
21. 11.On this view of the matter the question of condonation of delay in filing the appeal by invoking the provisions of section 5 of the Limitation Act and/or the applicability thereof by virtue of section 29 of the said Act does not arise.
22. 12.As to the objection of the learned Assistant Director regarding the instant appeal being barred by time we find that as per section 23 of the Act an appeal against any final order or any sentence passed by the Tribunal under the Act is to be filed in this Court within thirty days of communication of such order/sentence. It is the case of the appellant that the order was not communicated to the appellant, therefore, the appellant applied for obtaining a certified copy of the impugned order and under the provisions of section 12 of the Limitation Act the time spent by the appellant in obtaining the certified copy is to be excluded from the period of limitation.
23. 13.We find force in the contention of the learned counsel for the appellant given the fact that nothing has been placed on record to show as to when the order of the learned Tribunal was communicated to the appellant, indeed, if at all. Benefit of the time spent by the appellant in obtaining a certified copy of the impugned order dated 23-8-2010 would, therefore,accruetotheappellantbyvirtueoftheprovisionsof section 12 of the Limitation Act, 1908. The contention of the learned Assistant Director is, therefore, repelled.
24. 14.It is accordingly held that the instant appeal, as well as, the appeal filed by the appellant before the learned Tribunal are within time. The impugned order dated 23-8-2010 is accordingly set aside.
25. The appellant's appeal would deem to be pending before the learned Tribunal who shall decide the same in accordance with the law after affording an opportunity of hearing to the parties.