MUHAMMAD DAUD KHAN, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner, Ali Steel Industry, situated at Dargai, Malakand Agency, falling within the territorial jurisdiction of Provincial Administered Tribal Area (PATA) is engaged in processing of raw materials of iron/scrape and uses transformer of 3500KV for steel furnace. Once the said transformer exploded due to explosive materials in the furnace and causalities of workers occurred, besides that some residents of the vicinity also raised several apprehensions in their complaints against the petitioner, stated therein that the Mill being situated in residential area is polluting the environment which may create threats to human health and life.
2. The nutshell of petitioner's case is that on 24-06-2015 the petitioner was served with a notice by respondent # 2 under section 17 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 (hereinafter referred to as Environmental Protection Act, 2014) and finally directing him to stop immediately all activities vide letter/notice dated 13- 07-2015. For convenience letter/notice dated 13-07 2015 is reproduced herein below: "Whereas a complaint received to this agency from the resident of Village Kharkai, Dargai District Malakand, an official of this Agency visited your unit and it was observed during the site visit that pollution control system has not been installed which creates air pollution that is dangerous to human health and surrounding environment. Moreover you were not obtained Environmental approval from this agency which is mandatory under the law. This act of yours is in violation of the provisions of the Khyber Pakhtunkhwa Environmental Protection Act, 2014.
Whereas you were provided an opportunity of personal hearing on 07-07 2015 in the office of undersigned that was attended by Manager of your Steel Mill and agreed with the problems and directives of this agency to be followed within a stipulated time.
Now in exercise of power under section 17 of KPEPA, 2014, I hereby pass this Environmental Protection Order directing you to: "Stop immediately all activities at your Steel Mill"
Failure to comply with this order is an offence punishable by the Environmental Protection Tribunal under section 18(1) of the KPEPA, 2014, the fine of the punishment can extend up to 05 million Pak Rupees."
3. Being aggrieved from the above action and proceedings initiated by respondent # 2, the petitioner filed the instant Writ Petition mainly on the ground that Environmental Protection Act, 2014 is not extended to PATA and the whole proceedings initiated against the petitioner is illegal .
4. Comments were called from the respondent # 2 which were received wherein respondent # 2 in para (d) admitted that the Act ibid is not extended to PATA and that the same is in process to be extended soon, however Pakistan Environmental Protection Act, 1997 was extended to PATA.
5. Arguments heard and record perused.
6. Learned counsel for the petitioner contended that by entering the anonymous complaints, the act of respondents # 2 is illegal and unjustified. He further contended that the whole proceedings initiated against the petitioner are liable to be quashed because the Mill is situated in the area which falls within PATA and Environmental Protection Act, 2014 is not extended to the said area under Article 247 of the Constitution.
7. Conversely, the learned Additional Advocate General contended that the respondent, who is Environmental Protection Agency, has rightly issued notice to the petitioner and initiated the proceedings against the petitioner. He argued that after site visit by a responsible official, respondent # 2 has rightly issued order regarding stoppage of Mill. He further contended that though the amended Act i.e Khyber Pakhtunkhwa Environmental Protection Act, 2014 is not extended to PATA and due process for the extension is in progress and further added that the Pakistan Environmental Protection Act, 1997 was extended to PATA which also contains the same penal section as in Environmental Protection Act, 2014.
8. The main contention of the petitioner is that the punitive action taken by the respondent is violation of Article 247 of the Constitution of the Islamic Republic of Pakistan because the Environmental Protection Act, 2014 cannot be applied to the area which falls in PATA unless the Governer with the approval of the President extend it as ordained in Article 247(3) of the Constitution. For the sake of convenience Article 247 of the Constitution is reproduced herein below: "247. Administration of Tribal Areas. ---(3) No Act of [Majlis-e-Shoora (Parliament)] shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of [Majlis-e-Shoora (Parliament)] or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.
(4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of [Majlis-e-Shoora (Parliament)], and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof, situated in the Province.- --"
Though the petitioner/Mill is situated in Dargai, Malakand which falls in PATA and the newly amended Environmental Protection Act of 2014 is not extended to PATA under the ibid Article which assertion of petitioner has also been admitted by respondent # 2. It is true that the Environmental Protection Act, 2014 is not extended in the area and after the nullity of previous Act of 1997, the break or further non-extension of Environmental Laws, doesn't grant any license to any person to threaten the health or life of the locales by one's actions/activities. The matter in hand is not only in-between the petitioner and the Environmental Protection Agency but the locals of the vicinity have also filed several complaints in this regard.
9. Now a question arises that whether the Mill in question creates air pollution that is hazardous to human life and surrounding environment?
It will suffice to observe that as per the visit report dated 19-08-2015 of the learned Assistant Director EPA Regional Office Swat, the petitioner/Mill is situated in a thickly populated area.
Boundaries of the petitioner/Mill as per the above report are: East: House West: House South: Water Canal, Childran Medical Centre North: Residential area, Girls High School, Madrasah, Primary School and BHU The location of the Mill clarify that public basic rights are also involved which involvement is a feature of environmental assessm ent and can lead to better and more acceptable decision- making. It can be time consuming and demanding, yet without it, proposals are seldom soundly based, and there is likelihood of antagonism from affected people. Public involvement, undertook in a positive manner and supported by a real desire to use the information gained to improve the proposal, will lead to better outcomes. Right to environment that was not harmful to the health or well-being of the people and an environment that protects the present and future generations is an essential part of the political and social justice and even more integral to the right to life and dignity under our Constitution of Islamic Republic of Pakistan.
Purpose of the Environmental Laws is to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development i.e not only noise but air pollution and other factors disturbing the ecosystem or the health of the citizen, are the major aim of said laws.
No doubt, the inhabitants of the area are the citizens of the State and their fundamental rights have been guaranteed by the Constitution. In the matter in hand, apprehension of the residents of the area is involved, who are citizen of Pakistan and having the same fundamental rights as envisaged in the Constitution.
10. The security of person is provided under Article 9 of the Constitution, which reads as under: "9.
No person shall be deprived of life or liberty save in accordance with law."
The ibid Article of the Constitution ensures safety against any attack or danger or apprehension on life of a person subject to law. All the judges and jurists in different ages and from different jurisdiction have agreed upon the definition of word "life" protected and assured by various constitution. "Life" meant right to live with dignity and honour with proper healthcare. The word "life" is very significant as it covers all facts of human existence. Though the word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person is entitled to enjoy in a State.
According to Oxford dictionary, `life' meant state of all functional activity and continual change peculiar to organised matter and specially to the portion of it constituting an animal or plant before death and animate existence. In Black's Law Dictionary, `life' means "that state of animals, humans, and plants or of an organised being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions in-between birth and death. The sum of the forces by which death is resisted "Life" protected by the Federal Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful knowledge, the right to marry, establish a home. and bring up children, freedom of worship, conscience; contract, occupation, speech, assembly and press".
11. The Constitutional Law in America provides an extensive and wide meaning to the word `life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law.
12. E.O.Wilson, in his famous book, The Creation writes: "If there is any moral precept shared by people of all beliefs, it is that we owe ourselves and future generations a beautiful, rich and healthful environment. Environment includes air, water, land, all layers of atmosphere, all organic and inorganic matter and living organisms, the ecosystems and ecological relationships, buildings, structures, roads, facilities and works, all social and economic conditions affecting community life.
Environment (natural and built) is the overarching habitat and is intrinsic to our survival and integral to our quality of life. Protection of the environment is, therefore, an inalienable right and perhaps more fundamental than the other rights. It emerges from the right to life, liberty and dignity under Articles 9 and 14 of the Constitution.
13. The corpus of environmental laws have a singular purpose of protecting life and nature including the International Environmental Principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Our existing jurisprudence, since the landmark judgment of Honourable Apex Court in case of Mst.Shehla Zia Vs WAPDA reported in PLD 1994 SC 693 rests environmental justice on right to life enshrined under Article 9 to mean a right to a healthier and cleaner environment. Time has come to move on. To us environmental justice is an amalgam of the constitutional principles of democracy, equality, social, economic and political justice guaranteed under our Objectives Resolution, the fundamental right to life, liberty and human dignity given under Article 14 which include the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine.
Environment and its protection has come to take center stage in the scheme of constitutional rights. Right to environment that is not harmful to the health or well-being of the people and an environment that protects the present and future generations is an essential part of political and social justice and even more integral to the right to life and dignity under our Constitution.
14. On dilating upon the question whether a person can be said to have dignity of man if his right to life is below proper food, clothing, shelter, education, healthcare, clean atmosphere and unpolluted environment, the apex Court in the said case of Mst. Shehla Zia (Supra), has held that: "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far-off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal by law he it municipal law or the common law."
The apex Court in the above said case has further held that: "The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to `life' under Article 9 and if both are read together, question will, arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, .health care, clean atmosphere and unpolluted environment.
Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions."
15. The Hon'ble apex Court in Mst. Shehla Zia's case (Supra), has expressed their concern over the pollution, which reads as under: "The concern for protecting environment was first internationally recognised when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16-6- 1972. Thereafter it had taken two decades to create awareness and. consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive fording on the effect of electromagnetic fields on human life. One should not wait for conclusive finding as it may take ages to ford it out and, therefore, measures should be taken to avert any possible danger and for that reason one should not go to scrap the entire scheme but could eke such adjustments, alterations or additions which may ensure safety and security or at least minimise the possible hazards."
16. In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were being thrown in River Ganges whereby it was completely polluted, the tanneries were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article 199(1)(C) of the Constitution may grant relief to the extent, of stopping the functioning of factories which create pollution and environmental degradation.
17. In the case in hand the likelihood of any hazard to life by air pollution that is dangerous to human health and surrounding environment cannot be ignored. At the same time in the view of what has been discussed above, the petition in hand stands dismissed, however we direct the Provincial Government/Home and Tribal Affairs Department to follow up/expedite the extension of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 positively within 04 months and till then Deputy Commissioner Malakand is directed to ensure preventive and precautionary measures contained in Environmental Protection Agency's letter dated 26-08-2015 of all the Mills/Industries/factories situated in District Malakand.
As the main Writ Petition has disposed of, hence C.M # 1149-P/2015 has become infructuous as dismissed.