' MUNIB AKHTAR, J.---This suit raises issues in relation to the Pakistan Environmental Protection Act, 1997 ("1997 Act") read with certain regulations framed thereunder, being the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessm ent Regulations, 2000 ("2000 Regulations"). The issues arise in the context of a project currently under construction, known as the "Grade Separated Traffic Improvement Plan from Park Tower Intersection to A.T. Naqvi Foundation" ("Project"). The proponent of the project is the defendant No.5 ("KMC"). The defendant No.6, the Sindh Environmental Protection Agency ("Agency") has accorded its approval to an "initial environmental examination" (IEE) that was submitted by KMC for the Project. At the heart of the dispute is the question whether the Project requires an IEE (as contended by KMC, the Agency and the defendant No. 7) or an "environmental impact assessm ent" (EIA), as contended by the plaintiff and the defendant No.
2. On 2-4-2014, the plaintiff sought ad interim orders by its C.M.A. 4314 of 2014. On that application, an interim order was made directing that construction of the Project be stopped. KMC has filed C.M.A. 4500/2014 seeking recall of the aforesaid order. These are the two applications that fall for determination.
2. The plaintiff is a statutory authority established by the Pakistan Defence Officers Housing Authority. Order, 1980 ("1980 Order"), commonly (and herein after) referred to as "DHA". The 1980 Order empowers DHA to undertake various development schemes, projects and works, and section 12 deems all such schemes, etc. To be works for public purposes. As is well known, DHA has a vast area under its administration, divided into various "phases". Learned counsel for DHA referred to the approval accorded by the Agency to the IEE submitted by KMC for the Project. Learned counsel submitted that the IEE was filed on 11-3-2014 and approved on 18-3-2014. Learned counsel referred to section 12 of the 1997 Act and submitted that, as made clear by subsection (6), its provisions had to be read with the 2000 Regulations. The latter listed, in Schedule I, those projects for which an IEE was required, and in Schedule II those for which an EIA was necessary. Learned counsel submitted that the Project came within paragraph D:2 of Schedule II and hence an EIA was necessary. This reads as follows: "Federal or Provincial highways or major roads (except maintenance, rebuilding or reconstruction of existing roads) with total cost of Rs.50 million and above."
' Learned counsel submitted that the total cost of the Project was around Rs.1.8 Billion and thus well over the threshold set by paragraph D:2. Learned counsel relied strongly on a Division Bench judgment of this Court reported as Salma lqbal Chundrigar and others v. Federation of Pakistan and others 2009 CLD 682 (herein after referred to as the "Defence Flyover case"). In that case, DHA was the respondent-proponent of a project to construct a flyover. DHA had obtained an IEE for its project and the petitioners challenged its construction on the ground, inter alia, that an EIA was required. Learned counsel submitted that the learned Division Bench held that an EIA was required.
Learned counsel contended that the present Project comprised of a network comprising a flyover and underpasses and was, in effect, a much more sophisticated scheme for traffic flow and management. It was submitted that if a 'mere' flyover required an EIA, there could be no doubt that the Project also required such approval. Therefore, the IEE approved in the present case was contrary to law and continuance of the Project in terms thereof a flagrant breach of the 1997 Act. A gross illegality was being committed and the construction ought to be stopped forthwith. This submission constituted the core of the plaintiff's case.
3. Developing the core submission, learned counsel submitted that the Project was at an initial stage of construction. As noted above, the IEE was approved on 18-3-2014. It was submitted that the plaint was presented on 2-4-2014. Thus the Suit was instituted at the very inception of the Project. Learned counsel submitted that although in the Defence Flyover case the learned Division Bench allowed the construction to continue notwithstanding its conclusion that an EIA had been necessary, the factor that weighed with the Court was that the construction was at an advanced stage. That crucial factor was absent in the present case. Learned counsel submitted that section 12 of the 1997 Act required that the necessary permission (here, the EIA) be obtained before any construction was commenced. This was a mandatory requirement. Referring to Regulation 10 of the 2000 Regulations, learned counsel submitted that it provided for an elaborate procedure for public participation (i.e., a public hearing) in respect of those projects that required an EIA. Had the law been properly followed and a public hearing held, DHA would have been able to participate in the same and provide its input to the Agency, which would then have been best able to make a lawful determination as to whether the EIA was to be approved and if so, what ought to be the appropriate conditions. Since the Agency proceeded instead to process and approve the IEE, DHA was denied the right to participate in the decision making process as mandated by law. Learned counsel submitted that DHA was a vital stakeholder in the determination of whether the Project was compliant with the environmental law. It was submitted that the Project would have a serious impact on the areas administered by DHA. In particular, the flow of traffic resulting from the Project would impose a huge burden on the 26th Street (in Phase V). Learned counsel submitted that this was a 60 feet wide road, which had no capacity for expansion or enlargement. The street already serviced a huge amount of traffic and was essentially being used at maximum load, which would increase manifold as a result of the Project. Other roads within the DHA areas would also be affected and could remain closed or become inaccessible on account of the access and exit points for the Project. Had the Agency followed the applicable procedure (i.e., in relation to the EIA)
DHA would have been able to present its case properly, enabling the Agency to make a lawful determination. Thus, a patent illegality to the manifest detriment of DHA had been committed.
Learned counsel submitted that the plaintiff had standing to institute the suit because the areas being administered by it would be seriously and adversely affected. The DHA' had a right to be heard under the 1997 Act read with the 2000 Regulations, which had been denied and this had led to the institution of the Suit.
4. Continuing with his submissions, learned counsel submitted that although the Project was being presented as being in the public interest, the public would in fact be adversely affected and worse off as a result thereof. Traffic flows would be choked rather than being eased. Learned counsel contended that in fact the Project was being designed to facilitate access to a building project in which the defendant No. 7 was involved and which was also was under construction. This was known as the Icon Tower project. It was a private, commercial venture of the defendant No .7 .
5. Without prejudice to the foregoing submissions, learned counsel submitted that the IEE was also fatally flawed. Reference was made to the haste in which it was approved, in only one week.
Learned counsel referred to Regulation 9, which permitted 10 days for the preliminary scrutiny of the IEE or the EIA. Learned counsel submitted that it was inconceivable that a project of such complexity could be scrutinized and approved in such a short period. Reliance was placed on certain other provisions of the 2000 Regulations. Reference was also made to the many conditions laid down in the IEE and it was contended that many of those conditions had not been or could not be fulfilled. Reliance was placed, in particular, on conditions (ii), (iii), (vi) and (xii).
6. Learned counsel submitted that the DHA had made out a clear case for interim injunctive relief.
All the ingredients for such relief were in its favour and it was prayed accordingly. Learned counsel also relied on two other Division Bench decisions of this Court, being Salim Godil and others v.
Province of Sindh and others 2014 CLD 222 ("Salim Godil") and in C.P. D-3851/2012 dated 18-7-2013 (titled Standard Chartered Bank v. KMC and others, unreported, available on the website of the High Court; herein after referred to as "Standard Chartered"). I may note that I was a member of the Bench that decided the latter case. Learned counsel for the defendant No. 2, the Clifton Cantonment Board, supported DHA's case and adopted the submissions made by learned counsel for the latter.
7. Learned counsel for defendant No. 7 ("Bahria Town") opposed the grant of any interim relief.
Learned counsel submitted that the Project required only an IEE and not an EIA. Reference was made to section 2(xxiv) (the definition of IEE) and section 12. Relying on subsection (2) learned counsel submitted that in respect of each project, initially an IEE had to be submitted and it was only if the Agency, after due scrutiny and deliberation, concluded that an EIA was required that the latter exercise had to be undertaken. In the present case, the Agency had fully satisfied itself with regard to the Project on the basis of the IEE and had approved the same. Learned counsel submitted that even otherwise, only an IEE was required because the Project came within the scope of paragraph 1:3 of Schedule I to the 2000 Regulations. This provided as follows: "Urban development projects"
' Thus, it was submitted that the nature of the Project was that it related to urban development and not construction of a major road as contended by DHA. However, even if did come within the scope of paragraph D:2, of Schedule II, the Project was nothing but "reconstruction". As regards the Icon Tower project, learned counsel submitted that it was not the project that was in issue in the present case. However, that project had also been accorded approval by the Agency in respect of the 1997 Act. It was submitted that the Project would help ease and regulate the traffic flows generated once that project became operational. It was submitted that DHA would not be adversely affected at all. Learned counsel also emphasized that Bahria Town was not involved in the construction of the Project, which was being carried out by builders of high repute. Rather, Bahria Town was providing the financing for the Project, and this was being done in the public interest. Learned counsel also relied on the Defence Flyover case to submit' that there construction had been allowed to continue in the larger public interest and submitted that exactly those circumstances existed in the present case. It was prayed that the plaintiff's application be dismissed.
8. Learned counsel for KMC also strongly opposed the grant of any interim relief. Both Mr. Farooq H.
Naek and Mr. Murtaza Wahab made submissions on behalf of KMC. Their submissions were obviously complementary and therefore, without intending any disrespect, I will note them together. Learned counsel submitted that the perception sought to be created that the Project was being undertaken to facilitate the Icon Tower project was totally erroneous. The Project would serve a number of other high rise, large capacity buildings in the area. It would smooth traffic flows and reduce or avoid congestion and the attendant environmental problems that were thereby created.
Learned counsel submitted that in fact these issues had been of concern to KMC, which had considered a number of options in this regard. After careful scrutiny, it was decided to go ahead with the Project for which the necessary approval under the 1997 Act had been obtained. The project was, in the circumstances, the only viable option. It was submitted that the only realistic option available spatially was "verticality", i.e., constructing a project of a flyover, underpasses and interchanges. Spreading the project horizontally was simply not possible. It was emphasized that the Project was in the public interest and had been conceived and was being implemented in that spirit. The public convenience was the dominant object and it was submitted that that ought to prevail. The city at large would also benefit from the Project. Work was progressing rapidly and on schedule and the entire Project was to be completed within four months or thereabouts. It ought not therefore to be interfered with.
9. Learned counsel also strongly contested the standing of DHA to bring the present proceedings. It was submitted that both KMC and DHA had their own areas of jurisdiction and it was not legally permissible for one authority to interfere with work being done by the other in its own jurisdiction.
Reliance was placed on sections 42 and 56 of the Specific Relief Act, 1877. Learned counsel submitted that the present proceedings were in the nature of a declaratory suit, but did not come within the scope and ambit of section 42 and hence were not maintainable. Reliance was also placed on clauses (d) and (k) of section 56 to contend that no permanent, and hence no interim, injunction could be granted in the facts and circumstances of the present case. Referring to Order XXXIX, C.P.C., learned counsel submitted that the case sought to be made out by DHA did not come within the scope of either Rule 1 or 2 thereof and on this basis also no relief could be granted. It was submitted that if at all, it was only the residents in the DHA areas who could bring suit and none of them had done so. Even otherwise, the grievance aired by DHA did not come within the meaning of section 2(i) of the 1997 Act, which defined "adverse environmental impact". It was also contended that if at all an EIA was required, that was something that the Agency ought to have pointed out or insisted upon. However, it had not done so and KMC could not be penalized for the Agency's negligence. Learned counsel also contended that paragraph D-2 of Schedule.II of the 2000 Regulations was inconsistent with the parent statute, the 1997 Act. This was so because it imposed an arbitrary limit of Rs.50 million. Projects costing less than this limit only required an IEE, and those above the limit warranted an EIA. It was submitted that this was contrary to section 12 of the 1997 Act and hence unenforceable. Only an IEE was required and that had been obtained. In support of their submissions learned counsel relied on In the matter of cutting of trees canal widening project, Lahore 2011 SCMR 1743, Matloob Ali Khan v. Additional District Judge East, Karachi and another 1988 SCMR 747, the Defence Flyover case, SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Kar. 293 and Sultan v. Province of Sindh 2004 CLC 392.
10. Learned AAG also opposed the grant of any interim relief. Referring to the plaintiff's application, it was pointed out that it sought relief only against the defendant No. 7 and hence even if granted, such relief would be so confined, and not be enforceable against KMC, the proponent of the Project.
Learned AAG also relied on section 42 of the Specific Relief Act to contend that the Suit did not come within the scope or ambit thereof. Relying on section 56(d), learned AAG submitted that the grant of interim relief would interfere with "public duties" and hence was prohibited by reason of this clause. It was emphasized that in constructing the Project, the KMC was lawfully acting within the scope of its powers and duties and in the public interest. No restrictions could or ought to be imposed on it in this regard. Learned AAG relied on Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139 and Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92 in support of his submissions.
11. Learned counsel for DHA exercised his right of reply. It was submitted that the only grievance aired by DHA was that the proper procedure mandated by law had not been followed and the permission and approval that ought to have been granted (i.e., for an EIA) had not been sought nor granted. DHA was directly and adversely affected as a result thereof. Relying on the Defence Flyover case, learned counsel submitted that this decision had clarified and settled the law to the effect that a flyover required an EIA. Thus, even if there were some doubts or confusion at the time of the decision (so that the DHA had applied for an IEE), that situation did not prevail at present. The Agency and KMC knew exactly what the law was and in light of what was decided by the learned Division Bench, the nature of the Project was such that an EIA was required. Construction without such approval was unlawful. Furthermore, ignorance of the law was no excuse. It was emphasized that the matter came squarely within the ambit of the 1997 Act and the necessary and proper approval and sanction had to be obtained, which was manifestly not the case. Learned counsel relied on Nestle Milkpak Ltd. v. Sindh Institute of Urology and others PLD 2007 Kar. 11.
12. I have heard learned counsel as above, examined the record and considered the case-law relied upon. Before proceeding further, I may note that against the ad interim order made on 2-4- 2014, an appeal was preferred by Bahria Town against DHA, being HCA 94/2014. In that appeal a learned Division Bench was pleased, by order dated 11-4-2014, to suspend the order of 2-4-2014.
The learned Division Bench observed as follows: "However, it is clarified that the learned Single Judge is at liberty to pass appropriate order on the application under Order XXXIX Rules 1 and 2 C.P.C. Pending before him strictly in accordance with law without being influenced from any of the observations made herein above, which are of tentative nature".
13. I begin by setting out the relevant statutory provisions of the 1997 Act and the 2000 Regulations.
These, as presently material, are as follows: "2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-
(i) "adverse environmental effect" means impairment of, or damage to, the environment and includes-
(a) impairment of, or damage to, human health and safety or to biodiversity or property;
(b) pollution; and
(c) any adverse environmental effect as may be specified in the regulations;
(xi) "environmental impact assessme nt" [HA] means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts; comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed;
(xvi) "Federal Agency" means the Pakistan Environmental Protection Agency ... Or any Government Agency ... Exercising the powers and functions of the Federal Agency;
(xvii) "Government Agency" includes-
(a) a division, department, attached department, bureau, section, commission, board, office or unit of the Federal Government or a Provincial Government;
(b) a developmental or a local authority, company or corporation established or controlled by the Federal Government or Provincial Government; and
(c) a Provincial Environmental Protection Agency;
(d) any other body defined and listed- in the Rules of Business of the Federal Government or a Provincial Government.
(xxiv) "initial environmental examination" [IEE] means a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to -cause an adverse environmental effect for requiring preparation of an environmental impact assessment;
(xxxv) "project" means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes-
(a) construction or use of buildings or other works;
(b) construction or use of roads or other transport systems;
(c) construction or operation of factories or other. Installations;
(d) mineral prospecting, mining, quarrying, stone-crushing, drilling and the like;
(e) any change of land use or water use; and
(f) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installations; (xxxvi) "proponent" means the person who proposes or intends to undertake a project;".
"12. Initial environmental examination and environmental impact assessment.-(1) No proponent of a project shall commence construction or operation unless he has filed with the Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect an environmental impact assessment, and has obtained from the Federal Agency approval in respect thereof.
(2) The Federal Agency shall-
(a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessm ent by the proponent; or
(b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, require that the environmental impact assessment be resubmitted after such modifications as may be stipulated or reject the project as being contrary to environmental objectives.
(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to ... [there follow three sub-clauses which are not relevant for present purposes].
(4) The Federal Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations.
(5) Subject to subsection (4) the Federal Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.
(6) The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.
(7) The Federal Agency shall maintain separate registers for initial environmental examination and environmental impact assessm ent projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3)."
The 2000 Regulations provide in material part as follows: "3. Projects requiring an IEE.--A proponent of a project falling in any category listed in Schedule I shall file an IEE with the Federal Agency, and the provisions of section 12 shall apply to such project.
4. Projects requiring an EIA.--A proponent of a project falling in any category listed in Schedule II shall file an EIA with the Federal Agency, and the provisions of section 12 shall apply to such project.
9. Preliminary scrutiny.--(1) Within 10 working days of filing of the IEE or EIA, the Federal Agency shall -
(a) confirm that the IEE or EIA is complete for purposes of initiation of the review process; or
(b) require the proponent to submit such additional information as may be specified; or
(c) return the IEE or EIA to the proponent for revision, clearly listing the points requiring further study and discussion.
(2) Nothing in sub-regulation (1) shall prohibit the Federal Agency from requiring the proponent to submit additional information at any stage during the review process.
10. Public participation. (1) In the case of an EIA, the Federal Agency shall, simultaneously with issue of confirmation of completeness under clause (a) of sub-regulation (1) of Regulation 9, cause to be published in any English or Urdu national newspaper and in a local newspaper of general circulation in the area affected by the project, a public notice mentioning the type of project, its exact location, the name and address of the proponent and the places at which the EIA of the project can, subject to the restrictions in subsection (3) of section 12, be accessed.
(2) The notice issued under sub-regulation (1) shall fix a date, time and place for public hearing of any comments on the project or its EIA.
(3) The date fixed under sub-regulation (2) shall not be earlier than 30 days from the date of publication of the notice.
(4) The Federal Agency shall also ensure the circulation of the EIA to the concerned Government Agencies and solicit their comments thereon.
(5) All comments received by the Federal Agency from the public or any Government Agency shall be collated, tabulated and duly considered by it before decision on the EIA.
(6) The Federal Agency may issue guidelines indicating the basic techniques and measures to be adopted to ensure effective public consultation, involvement and participation in EIA assessment.
11. Review. (1) The Federal Agency shall make every effort to carry out its review of the IEE within 45 days, and of the EIA within 90 days, of issue of confirmation of completeness under Regulation 9.
(2) In reviewing the IEE or EIA, the Federal Agency shall consult such Committee of Experts as may be constituted for the purpose by the Director-General, and may also solicit views of the sectoral Advisory Committee, if any, constituted by the Federal Government under subsection (6) of section 5.
(3) The Director-General may, where he considers it necessary, constitute a committee to inspect the site of the project and submit its report on such matters as may be specified.
(4) The review of the IEE or EIA by the Federal Agency shall be based on quantitative and qualitative assessm ent of the documents and data furnished by the proponent, comments from the public and Government Agencies received under Regulation 10, and views of the committees mentioned in sub-regulations (2) and (3) above.
12. Decision. On completion of the review, the decision of the Federal Agency shall be communicated to the proponent in the form prescribed in Schedule V in the case of an IEE, and in the form prescribed in Schedule VI in the case of an EIA."
14. In Standard Chartered, the Division Bench (of which I was a member) considered the relevant provisions and held as follows: "8. Section 12 is one of the key provisions of the 1997 Act and a proper appreciation of its scope and application are essential to understanding the scheme of the statute. Particular attention must be given to subsections (1) and (6). It will be seen that in section 2, the key terms such as "environment", "project", "pollution" and "adverse environmental effect" are defined in exceedingly broad terms (and this is so notwithstanding the use of the word "means" in these definitions). This is understandable. After all, the complexity and diversity of the environment, and that what can affect it adversely are beyond any exhaustive description. Furthermore, the situation is not static. As time passes and technologies change, populations grow, material circumstances alter and (perhaps most importantly) awareness of and sensitivity towards environmental issues deepens and becomes more sophisticated, notions both of what constitutes the environment and impacts on it, adversely, continue to evolve dynamically. Rather than having to after the law periodically, to meet these changes and challenges, the legislature has taken a proactive approach, in the sense of using broadly worded and flexible definitions. But, there is a catch, Subsection (1) of section. 12 requires that in respect of every project, there must be the filing of an IEE or, if the project is likely to have an adverse environmental impact, the filing of an EIA. When this requirement is read in the light of the broad definitions used, the necessary consequence would be that an exceedingly large number of projects would fall in the net of subsection (1). As a result, there would have to be a huge number of filings of IEEs at the very least, or EIAs as the case may be. It may even be' that matters which, in practice, do not have (or at least are not now regarded as having) an adverse effect on the environment may get caught in the literality of the broad language used in the definitions. So the legislature has (if we may put it so) very sensibly provided a balance by means of subsection (6). This is a very important provision. It expressly limits the application of all of the previous subsections "to such categories of projects and in such manner as may be prescribed". The legislative intent is clear. The broad definitions used in section 2 read with section 12(1) have etched' into the law an exceedingly wide ranging requirement and obligation. But, the applicability of this requirement and obligation at any given time, and for the time being, is controlled and modulated by subsection (6). It is for the executive agency to determine the categories of projects that are, in fact; for the time being, or at any given time, to actually fall in the net of subsection (1).
The canvas provided by the legislature is large indeed; what is to be painted thereon at any given time or for the time being is in the hands of the executive agency. But this duty is not static. The agency cannot frame the regulations and specify the categories of projects under subsection (6) on a once-and-for-all basis. The role envisaged for the agency is dynamic. The regulations to be prescribed for subsection (6) are quite obviously intended to be reviewed from time to time to take into account the various factors listed above (and no doubt others) that can affect the environment. For example, technologies undreamt of today may become commonplace tomorrow and, impact on the environment: the, regulations under subsection (6) can dynamically take this into account. Even those matters that exist today and for the time being are regarded as having no effect on the environment (or at least not such as would require action) may in the future require a reappraisal, and the existing view may change. Again, the regulations under subsection (6) can cater for this situation. Indeed, it is conceivable that the reverse of what has just been postulated may also be true: that which is today regarded as adversely affecting the environment and therefore is included in the regulations may cease to be a problem in the future. Again, the regulations can be suitably altered.
9. In our respectful view therefore, it would be seriously misleading to read the 1997 Act without keeping in mind that the legislature has sought to achieve two objectives. On the one hand, it has balanced the competing (and perhaps to a certain extent conflicting) demands of describing environmental issues in broad and expansive terms and yet keep the requirements being imposed firmly anchored within a manageable framework at any given time and for the time being. On the other hand, it has also ensured that the anchor so provided does not become an unbreakable (and therefore unacceptable) chain that prevents a dynamic response to ever changing circumstances. The learned Division Bench in SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Karachi 293 was perhaps alluding to this vital balancing act when it observed: "Indeed, as rightly submitted by the Attorney General, it is essential to maintain a balance between Industrialization and ecology and that development and environmental protection must progress together. It is in consonance with the above that PEPA, 1997 has been enacted and enforced and thus its mandate should be honoured in its true letter and spirit." (pg. 309)
10. In our view, the 1997 Act and the Environmental Regulations must be read, interpreted and applied in the foregoing manner. The interplay between the definitions, subsection (1) and subsection (6) constitutes a dynamic equilibrium that provides certainty at any given time as to what projects require the filing of an IEE or EIA, and also flexibility over time to cater for changing circumstances. It may also be noted that the requirement that the executive agency must adopt a dynamic and proactive approach and periodically update the regulations is a statutory duty.
Should the agency fail to discharge it properly, an order in the nature of mandamus may lie in appropriate circumstances to (e.g.) include (or even exclude) a category of project in (or from) the regulations, or to shift an existing category from the first to the second schedule or vice versa...."
' The foregoing observations accord with what has been said by the learned Division Bench in Salim Godil (see at pp. 253-5).
15. In view of the foregoing decisions, it is not possible to accept the submission by learned counsel for the contesting defendants that in respect of all projects to which section 12 is applicable, an IEE is to be filed first and it is only if the Agency otherwise determines or requires that subsequently an EIA may need to be submitted. This interpretation of subsection (2) of section 12 is, with respect, incorrect. Section 12 clearly envisages two separate streams, one relating to projects requiring A an IEE and the other to those in relation to which an EIA must be submitted. The matter is regulated by subsection (6) read with the relevant regulations as explained in Standard. Chartered. What clause
(a) of subsection (2) preserves is the power of the Agency to demand submission of an EIA even in relation to a project that otherwise falls in Schedule I of the 2000 Regulations. This is understandable. Subsection (6) requires that "categories" of projects be specified, but a particular project falling in a category listed in Schedule I may be such that the IEE is insufficient to enable the Agency to make a proper determination. The meaning sought to be placed on subsection (2) by learned counsel is inconsistent with its language and the legislative intent of the 1997 Act. It cannot be accepted.
16. I had summoned the official file of the Project as maintained by the Agency. In the note put up internally for approval of the IEE, the nature of the Project was described in the following terms: "2. The proposed Traffic Improvement Plan comprises: Flyover along 26th Street/Shahrahe Firdausi, ' Improved traffic management at A.T. Naqvi Chowk under the above Flyover, ' Underpasses for entry/exit movements to/from Bahria Town Icon Tower and Clifton Funland, ' Interchange between Shahrahe Iran and Shahrahe Firdausi near Park Towers Intersection leading to 2-Talwar Intersection, ' Other at-grade improvements for better traffic management in the entire area, ' Provision of a number of grade-separation pedestrian crossings at important locations."
17. As noted above, the crucial question is whether the Project required submission and approval of an IEE or an EIA? For the reasons herein after stated, in my view approval for an EIA had to be obtained. Learned counsel for DHA has correctly identified the starting point as the Defence Flyover case. There, the learned Division Bench, categorically held (at pg. 700, para 22) that the nature of the project was such that it required the submission and approval of an EIA. When. The description of the Project, as given by. The Agency itself, is kept in mind there can hardly be any doubt that it also requires an EIA. The Project envisages a complex network, comprising a flyover, underpasses and interchanges. It is clearly a more sophisticated construction than a 'mere' flyover. It is noteworthy that if the flyover contemplated by the Project had itself been a separate project, it would have required an EIA in view of the Defence Flyover. Case. It is difficult to understand how, when such flyover is a component of a more sophisticated project of the same nature, and one that requires even more complex construction than the flyover itself, the project can require only an IEE. With respect, this would be an illogical result. How can it be that one or more components of a project are likely to have or cause an adverse environmental impact but the project as a whole will not? To this fundamental question no satisfactory answer has been given by the contesting defendants. Whatever may have been the position before the Defence Flyover case, the law has been clarified by that decision, which was given in 2009. It is not acceptable for the Agency to, in effect, disregard a decision of the High Court and treat the Project as only requiring an IEE. Subject only to a different view being expressed by the Supreme Court, the interpretation of a statutory provision by a High Court is of binding effect in the Province concerned. The Agency was therefore bound to apply the 1997 Act and 2000 Regulations as interpreted in the Defence Flyover case. Its apparent failure or perhaps even refusal to do so must be strongly deprecated. As also correctly submitted by learned counsel for DHA, ignorance of the law is no excuse. Furthermore, the proponent of the Project is KMC, an authority that has its own town planning department that, inter alia, is supposed to deal with environmental issues. Such an authority cannot claim ignorance of a reported judgment of this Court relating to environmental issues that is directly on the point, nor can it shift the burden of non-compliance on the Agency.
18. It is also not possible to accept the submission by learned counsel for the contesting defendants that the Project comes within the scope of paragraph 1:3 of Schedule I and hence only requires an IEE. As already noted, the entry relied upon relates to "urban development projects". This in fact is the position adopted by the Agency in its internal note. In my view, this is clearly contrary to what has been held in the Defence Flyover case. However, the submission by the defendants does raise a general question of how entries in the two Schedules are to be applied. In this context, reference may be made to SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Kar.
293. In that case, the project was a combine cycle power plant of 94 MW and a desalination plant having a capacity of 3 million gallons a day. The petitioner argued that the since the project was a combined plant, it required an EIA because the desalination plant component was a treatment plant within the meaning of paragraph F of Schedule II. Even though the power plant came within the scope of paragraph B:2 of Schedule I, the project when considered as a whole required an EIA.
For the respondents, it was argued that the main activity of the project was power generation and desalination was only a "bye-product". It was contended that it ought to be regarded as falling in Schedule I and hence only required an IEE. The learned Division Bench, after considering, the matter in detail, held that the project was a combined plant and therefore the "attributes" of a desalination plant could not be ignored. It was concluded that the desalination plant was a treatment plant within the scope of paragraph F of Schedule II. The learned. Division Bench held that an EIA ought to have been filed and remanded the matter for evaluation of the project on such basis. It would seem therefore that if a project can be regarded as comprising of two (or more) distinct components each of which may, if regarded separately, come within the scope of Schedules I and II respectively, then the project as a whole is to be regarded as falling within Schedule II and hence requiring an EIA. In my view, it is clear from the observations of the learned Division Bench that this conclusion follows from the subject matter of the 1997 Act which (as per its long title) is the "protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, and promotion of sustainable development". The project must be tested on and held to the more stringent standard (i.e., EIA) even if this is more onerous and imposes a greater burden on the proponent. In other words, the rule of interpretation normally applied, namely that a statute should be so construed as places the least burden on the concerned person does not hold in respect of the 1997 Act. The purpose of the rules of c interpretation is, in the end, to discover and apply the legislative intent. The legislative intent behind the 1997 Act is clear: the protection, conservation, rehabilitation and improvement of the environment. This is simply too sensitive a matter to require anything but cautious, conservative and careful treatment. It is better to err on the side of caution and test the project on, and hold it to, the more stringent standard even if this is more onerous for the proponent. The 1997 Act is beneficial legislation enacted for the welfare of the public at large (or any relevant section thereof). If, in ensuring that its objectives are achieved, a particular person (i.e., the proponent of a given project) is put to greater inconvenience or a more onerous burden is cast on him, then so be it In my view, a principle of general application can be derived from the above cited decision: if a project can be regarded as falling within two different entries, one set out in Schedule I and the 1 other in Schedule II, then it must be regarded as falling within the latter and hence requiring an EIA.
19. When the foregoing principles are applied to the case at hand, it is clear that the Project required an EIA. Even if it could be regarded as an "urban development project" (as to which I have serious doubts) in any case it came within the scope of paragraph D:2 of Schedule II. It therefore had to be tested on, and held to, the more stringent standard of the EIA.
20. This brings me to the question of DHA's standing. If, as I have concluded, the Project required an EIA, did DHA have any rights in this regard and were they violated? Learned counsel for DHA relied on Regulation 10, which relates to public participation and input through a public hearing when an EIA is to be considered. I accept the submission that this regulation is a mandatory provision. It is to be noted that sub-regulation (4) mandates that the EIA "shall" be circulated to the "concerned Government Agencies" for solicitation of their comments. Sub-regulation (5) requires that all comments from the public or any Government Agency "shall be collated, tabulated and duly considered" by the Agency "before decision on the EIA". Now section 2(xvii) contains a definition of "Government Agency". The definition is inclusive and not exhaustive. Keeping in mind the various categories listed in the four sub-clauses of the definition, in my view there can hardly be any doubt that a statutory authority such as DHA is a Government Agency. The next question is whether DHA would be a "concerned" Government Agency within the meaning of Regulation 10(4) in relation to the Project? In my view, this question must be answered in the affirmative. The purpose of Regulation 10 is to enable the Agency to properly assess any adverse environmental impact. It is therefore broadly stated and must be so applied. It follows that the expression "concerned Government Agencies" in sub-regulation (4) must likewise be broadly construed. The degradation of the environment and any likely adverse effect in relation thereto can, and usually does, have a broad impact. This is especially so in the case of a megalopolis like Karachi, where activities in one part of the city impact on others in myriad ways. There can be no doubt that the Project would be of major concern to DHA. This is clear, inter alia, from the very description as given by the Agency itself in its internal note, from which it is obvious that the Project will (at the very least) have a major impact on the 26th Street. In my view, DHA was not merely entitled to participate generally at the public hearing required to be held in terms of sub-regulation (2). It was, as a concerned Government Agency, specifically entitled to receipt of the EIA from the Agency under sub- regulation (4) and for its comments to be considered by the latter under sub-regulation (5).
Reference must also be made to Regulation 11(4). This lays down the criteria on the basis of which.
The EIA is to be reviewed and these, again, expressly refer to comments "from the public and Government Agencies received under Regulation 10".These were mandatory requirements and the failure by the Agency to follow these procedures has affected DHA adversely. It has been denied the right to give its input with regard to the Project and for that input to be given due consideration by the Agency. In my view, DHA therefore has the necessary standing to file the instant Suit. The legal nature of its grievance is the denial df the rights that expressly inhere in it as a concerned Government Agency entitled to give its input under the 2000 Regulations. The submission by learned counsel for KMC that the Project, being undertaken by KMC within its own jurisdiction, is of no concern to DHA cannot be accepted. It is clear that the 1997 Act and the 2000 Regulations contemplate that a given project requiring an EJA can be of concern to more than one (and perhaps multiple) Government Agencies, and make provision accordingly. The mere fact that the proponent of the project may itself be a Government Agency is of no relevance. Certainly, no such proponent can deny any other concerned Government Agency the right to give its input, and for that input to be considered by the environmental agency and given due weight in accordance with law.
21. Related to the question of DHA's standing is the submission by learned counsel that the Suit does not come within the scope of section 42 of the Specific Relief Act. With respect, this objection is misconceived. It fails to keep in mind the distinction between a declaratory suit under section 42 on the one hand, and a suit in which a declaration is sought. Every suit in which a declaration is sought is not, and does not have to be, a declaratory suit under section 42. What DHA is aggrieved by is a breach of the provisions of the 1997 Act and the 2000 Regulations. Those are the terms on which the declarations are sought. Such declarations (i.e., on account of an alleged breach of statutory duty) are routinely sought from the Courts and it the plaintiff is found entitled, granted. In my view, a suit of the nature filed by. DHA ought not to be tested on the anvil of section 42. The decision cited by learned AAG in this regard, Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92, turned on its own facts, which clearly brought it within the scope of section 42. Those facts were materially different from those at hand.
22. The objections taken with reference to section 56 are also, with respect, not tenable. The grievance aired by DHA does not constitute interference with the "public duties" of KMC such as would make clause (d) applicable. What.DHA seeks is application of, and adherence to, the provisions of the 1997 Act and the 2000 Regulations. In effect, the relief that it seeks is for the Agency to perform its "public duties" by acting in accordance with law, especially since the breach has resulted in DHA being denied certain rights to which it is entitled, as described above. The Supreme Court decision in Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139 relied upon in this regard is, with respect, not applicable. As is clear from a perusal of the decision, the facts and circumstances of that case were far removed from the issues at hand.
Equally, the reliance sought to be placed on clause (k) of section 56 is misplaced. In my view, DHA has the requisite interest in the matter. It is to be noted that the "matter" here is not so much the Project but rather the violation of law that has, inter alia, led to the denial to DHA of its rights of participation and comment. That is clearly something that is of direct concern to DHA. The other objection taken by learned counsel for KMC, that the case does not come within the scope of either Rule 1 or 2 of Order XXXIX, C.P.C., is also misconceived. The term "injury" as used in Rule 2 has always been broadly construed and applied. All manner of acts contrary to law, including breach of statutory duty, have been held to fall within the scope of an "injury" to F which Rule 2 can apply.
Therefore, the present matter does not fall outside the scope of Order XXXIX.
23. Learned AAG submitted, as noted above, that the plaintiff's application C.M.A. 4314 of 2014 only impugned the acts of Bahria Town (the defendant No. 7) and not those of any other defendant, especially the proponent, KMC. Also as noted, learned counsel for Bahria Town submitted that it was only providing finance for the Project and that too in the public interest. On a query from the Court, learned counsel for KMC confirmed that the Project was being financed by Bahria Town. On a further query, learned counsel candidly submitted that should such financing not be available, the Project could not be continued or completed since KMC itself did not have sufficient funds.
Indeed, it appears that absent such financing, the Project would not have been initiated at all. It seems to me therefore, with respect, that the objection taken by learned AAG is without substance.
Even if an interim injunction is issued only against Bahria Town, that would still, in practical terms, shut down the Project and its construction. In any case, the relief to be granted by the Court can be moulded to reflect the actual position that emerges from the record and on the basis of submissions made by learned counsel for the respective parties.
24. Learned counsel for KMC sought to impugn the threshold of Rs.50 million set in paragraph D:2 of Schedule II on the basis of Matloob Ali Khan v. Additional District Judge East, Karachi and another 1988 SCMR 747. The cited case arose out of the West Pakistan Family Courts Act, 1964. The parent statute did not provide any period of limitation for filing an application to set aside an ex parte order. However, certain rules framed under the Act introduced such a period (of 30 days). Applying the well established principle that in case of any inconsistency between the parent statute and rules framed thereunder, the latter must give way to the extent of the inconsistency, the Supreme Court held the rule to be ultra vires. Learned counsel submitted that paragraph D:2 was ultra vires in like manner. The principle applied in the cited case does not however apply since in my view there is no inconsistency between the 1997 Act and the 2000 Regulations (at least in terms as presently averred). It will be recalled that section 12(6) provides that subsections (1) to (5) are to apply to such "categories of projects" and "in such manner" as may be prescribed. While establishing the categories of projects under section 12(6), the regulations can utilize appropriate thresholds to serve as the necessary dividing line. This is so because it is obvious that at least some sectors do require the use of thresholds if there is at all to be a sensible division between those projects for which an IEE suffices and those for which an EIA is necessary. The exact point where the dividing line is to be drawn is a policy matter to be established by the regulations. (Indeed, this is another reason why, as explained in Standard Chartered, the Agency must take a proactive and dynamic approach to the 2000 Regulations.) The use of thresholds in the Schedules is therefore not inconsistent with the 1997 Act; it is, in an important sense, a proper discharge of the statutory duty imposed by section 12(6). In my view, what these thresholds reflect is the sensitivity shown to environmental issues. The lower the threshold the more sensitive is the law to the environment, since the greater will be the number of projects that fall in Schedule II and hence require an EIA.
There are a number of such examples in the Schedules. Thus, the energy sector is dealt with in paragraph B of Schedule I and paragraph A of Schedule II. Energy projects are listed in the two paragraphs in similar terms. The dividing line is on the basis of capacity. For hydroelectric power generation, the threshold is 50 MW, for thermal power generation it is 200 MW and so on. If the project is below the threshold, it falls in Schedule I and an IEE is required; otherwise, it falls in Schedule II and an EIA is necessary. The present matter relates to the transport sector, dealt with in paragraph D in Schedule II and paragraph E in Schedule I. The equivalent entry in the latter paragraph is the first, which is couched in similar language, except that it applies in relation to projects valued at less than Rs. 50 million, and then only to federal or provincial highways (and not "major roads"). If the total cost is more than Rs. 50 million, and it is a federal or provincial highway or major road, then an EIA is required (unless the work is for the maintenance, rebuilding or reconstruction of an existing road). If the value is less than Rs. 50 million, then only an IEE is required and that too, only for a federal or provincial highway. Even if it is a "major road" no IEE is required.
Now, this threshold of Rs. 50 million was set in 2000, when the Regulations were framed. It may be, as contended by learned counsel for KMC, that on account of inflation and other such factors this threshold should subsequently have been enhanced. However, it may equally be that in respect of the transport sector, the law is especially sensitive to environmental issues and established and has maintained the threshold at a low figure in order to ensure that the majority of projects fall in Schedule II and hence require an EIA. In any case, the cost of the Project is so great that even if the threshold had been revised upwards, it is inconceivable that it would have been set at a level as would have excluded the Project from Schedule II.
25. Learned counsel for KMC also relied on In the matter of cutting of trees canal widening project, Lahore 2011 SCMR 1743 to contend that there no EIA was submitted and yet the project was allowed to go ahead. This submission is misconceived. It appears that in fact an EIA was approved (see at pg. 1797, para 54). Even more importantly, the Supreme Court itself appointed Dr. Parvez Hassan as a mediator and authorized him to associate other persons and experts with him. A high powered mediation committee was set up, chaired by Dr. Parvez Hassan (paras 6 and 7, pg. 1758). That committee made a detailed report, and the relevant portions are set out in the judgment (see at pp. 1759-1773). It was on this basis that the Supreme Court held as follows: "When an order of governmental authority is challenged before the Court raising an environmental issue, the Court would examine as to whether the authority which passed the order was conscious of the relevant considerations; whether it deliberated over those and whether it took the decision after having the expert opinion and complying with the mandate of law? The issue which underpins the project under challenge related to traffic congestion, the widening of the Canal Road and the apprehended damage to ecology and environment. The Court would have intervened if the issues of rising traffic flow and congestion had not necessitated remedial measures; if feasibility of other alternative proposals had not been examined by the concerned department; if it had not got conducted Environmental Impact Assessment from a consultant and if the Environmental Protection Authority had not given environmental clearance after taking into consideration the relevant factors; if the doctrine of Public Trust or of Precautionary Principle for environmental protection was being violated or if the respondent-Provincial Government had not wholeheartedly accepted the Mediation Committee's report which inter alia recommend declaring the greenbelt on both sides of the Canal as Heritage Park and had recommended only a partial widening of the road in question. These concerns, in our view have been adequately addressed by the competent bodies under the law. It is for the concerned department of the government to examine how best to meet traffic congestion and in this exercise it can solicit consultation from another agency or a body of experts to study the feasibility which in the instant case was initially carried out by NESPAK and thereafter the matter was placed before the EPA-Punjab which again having solicited the opinion of experts granted approval with certain conditions. In such cases the Court may not have the requisite expertise to adjudicate. This is why the Court seeks the assistance of experts or experts' committee. The advantage of the experts' committees is that it enables the Court to receive technical expertise while the Judges are left to decide questions of law. Such committees reduce the chances of judicial arbitrariness and add legitimacy to the judgments. The only aspect the Court would examine is whether the policy/act under challenge is violative of any provision of the law or the Constitution or any of the Fundamental Rights guaranteed under the Constitution and as interpreted by the Courts from time to time." (pg 1797, para 54).
' Since the report of the mediation committee was accepted in its entirety by the Government of Punjab, the Supreme Court disposed off the matter in terms of certain directions, as stated in para 60 (pg. 1801). The position to be found here, and the facts and circumstances of the present case, are far removed from the situation that was before the Supreme Court. With respect, the contesting respondents have failed to establish that the present case ought to be dealt with in the same manner as the project before the Supreme Court. Finally, reference may be made to Sultan v.
Province of Sindh 2004 CLC 392, also relied upon by learned counsel for the defendants. This decision does not appear to have raised any environmental issues and therefore does not need to be considered in detail.
26. In view of the foregoing discussion, I am of the view that DHA has been able to establish a prima facie case. There has been a serious breach of the applicable statutory provisions. The Project required an EIA but the Agency has purported to accord approval to an IEE. The mandatory requirements relating to public, participation and hearing, and solicitation of comments from the concerned Government Agencies have not been complied with. The Project has a direct and close connection with DHA administered areas, and these will be affected by the Project. Prima facie, DHA will be directly affected by the Project, and was also a concerned Government Agency. It was entitled by mandate of law to give its input before the Agency made a determination. Prima facie, the determination on the environmental issues is not in accordance with law but in serious breach and disregard thereof. DHA may well suffer irreparable loss and injury if the Project results in a manifold increase of traffic, and possibly unsustainable load, on its roads and in particular the 26th Street. The Project is of such a nature that it will permanently alter the flow of traffic and the use of roads and attendant facilities. These factors are of direct concern to DHA and it may well suffer irreparable injury as a result thereof. The balance of convenience is also in favour of DHA and against the proponent of the Project, KMC, and its financier, Bahria Town. All the ingredients for interim relief are therefore in place. Needless to say, the observations herein are tentative in nature and should this Suit go to trial, it will be decided on its merits completely uninfluenced by anything said here.
27. Learned counsel for KMC and Bahria Town submitted that injunctive relief was equitable in nature and at the discretion of the Court. Even if the ingredients for such relief were made out, the Court could refuse to grant it. It was submitted that in the facts and circumstances of the present case, relief ought to be refused. Reliance was placed on the Defence Flyover case and SHEHRI C.B.E. v. Government of Pakistan and others PLD 2007 Kar. 293 ("Shehri case") where, although findings adverse to the respondent-proponent were recorded, the projects were allowed to go ahead in the larger public interest. Learned counsel for DHA on the other hand submitted that in these cases, the projects were at an advanced stage and this was a factor that weighed decisively with the Court.
However, in the present case the Project had just been begun and DHA had come to Court almost immediately. The passages from the cited decisions relied upon are at pp.704-5 and pg. 309 respectively. I have carefully considered these passages and the rival submissions made on the basis thereof. It is well established that the exercise by the Court of any discretionary powers, or its refusal to do so, is a matter that in the end depends on the facts and circumstances of each case.
It is also to be noted that in both the cited cases, the Court directed the Agency to initiate and conduct proceedings strictly in accordance with law as regards consideration of and approval for an EIA. In the Shehri case construction was allowed to continue on the basis of an undertaking given by the proponent "and at their risk as to cost and consequence and subject to the decision/orders that may be passed" by the Agency (see at pg. 309). In the Defence Flyover case construction was allowed to be continued but the proponent of the project (DHA) was to be liable for "any legal consequences" in case there were any "negative findings" (see at pg. 705). In my view, in both cases the Court was perhaps keeping in mind the scheme of section 12(2). This has been touched upon earlier, but now requires some more consideration. As already noted, depending on the regulations framed under subsection (6), certain projects require an IEE and others an EIA.
Those that require an IEE are dealt with in clause (a) of subsection (2). This provides that an IEE may either be approved or the Agency may require an EIA to be submitted. However, the IEE cannot be outright rejected. Clause (b) deals with an EIA. Thus, this clause deals with those projects for which an EIA must be filed in any case (which of course, is the case at hand), as well as those which fall in the clause by way of clause (a). Now, under clause (b) an EIA can either be approved, required to be resubmitted with such modifications as indicated, or rejected. It would therefore seem that in both the above cited decisions the Court was mindful of the fact that it could be that ultimately the EIA might either be rejected or the Agency might impose onerous and stringent conditions, which the proponents might be unable to comply with or meet. The proponents were being put on notice of these eventualities. The projects were however allowed to be continued as they were at an advanced stage and, in the Defence Flyover case, there had been a substantial outlay of public funds. In both the cases the petitioners were concerned citizens. In my view, where the matter is still at the inception stage and the aggrieved party is a concerned Government Agency (within the meaning of the 2000 Regulations) it would be more appropriate if the mandatory requirements of law are first met and fulfilled before the Project is, if at all, to continue. I also note that it is the contesting defendants' case that it is Bahria Town who is financing the Project, It is stated that it has stepped forward in the public interest and voluntarily provided the funds. Bahria Town disavows any self-interest or motivation for personal gain though it is only fair to note that this is strongly contested by DHA. In any case, one point seems to be clear: public funds are not, as such, involved in the Project. In my view, as a self-avowed volunteer and public benefactor, Bahria Town must bear the risk of any "negative consequences" flowing from the Project being stopped on account of the law having been flouted and disregarded. Having taken into consideration all the relevant factors, I am of the view that the present case is not one in which the Court ought, in its discretion, to refuse interim injunctive relief.
28. Accordingly, C.M.A. 4314 of 2014 is allowed in terms that it is ordered that all construction of, in relation to or touching upon the Project is restrained and stopped forthwith. However, nothing in this order shall prevent KMC, as proponent, from submitting an EIA for consideration by the Agency.
If such an EIA is submitted it must be accorded top priority. The Agency must deal with the EIA while acting strictly in accordance with law and adhering to the provisions of the 1997 Act and the 2000 Regulations including, in particular, as identified and explained herein above. If after such consideration, the EIA is approved (whether with or without conditions) KMC shall be at liberty to move an appropriate application in this Suit for recall and vacation of the order made above. Such application must be listed immediately and on priority basis and the office is directed to act accordingly. If the EIA submitted by KMC is rejected it will of course be entitled to its remedies in accordance with law.
29. In view of the foregoing, KMC's application C.M.A. 4500 of 2014 necessarily fails and is hereby dismissed. It remains only to note that in view of what has been observed by the learned Division Bench in H.C.A. 94 of 2014 (see para 12 above), the interim injunctive order made in the last preceding para is effective immediately.