JUSTICE (R) CH. MUHAMMAD YOUNIS, CHAIRPERSON.---The instant appeal has been preferred against the impugned order dated 10.04.2015 passed by the District Officer (Environment) Kasur where by the appellant was directed to make arrangements to regularize the unit under section 12 of P.E.P. Act, 1997 (as amended in 2012) or stop construction activities of the brick kiln.
2. Briefly stated the facts relevant for the disposal of the instant appeal are that the appellant allegedly established a brick kiln after fulfilling all the legal requirements. The residents of the locality had no grievance against the said unit and copies of affidavits of some inhabitants have been placed on the record of this appeal. At the time of construction of the disputed brick kiln the office of District Officer (Environment) Kasur started interference in connivance with respondent No,
2. On 09.03.2015 the District Officer (Environment) Kasur issued a direction under section 146-D(1)(e) of the Punjab Local Government Ordinance 2005 whereby the appellant was required to stop illegal activities within 7 days. Then on 24.03.2015 he issued a notice under section 7(f) of PEP Act 1997 read with sections 146-D(2) and 195 read with clause 48(3) of 6th Schedule to PLGO 2005. The appellant filed a formal request to obtain Environmental Approval along with Environmental Management Plan but inspite of it the impugned order dated 10.04.2015 was passed without considering the fact that in order to resolve the controversy and without conceding the legal proposition, the appellant had already applied for the environmental approval on 13.03.2015 and had deposited the requisite review fee.
3. Feeling aggrieved of the impugned EPO the instant appeal has been preferred on the grounds mentioned therein and it has been prayed that the impugned EPO be set aside by allowing this appeal and the respondents be restrained from interfering in the lawful business of the appellant.
4. Mr. Rafey Alam Advocate, the learned Counsel for respondent No, 2 has vehemently opposed the appeal and argued that the proceedings were initiated on the complaint of the respondent No, 2 against illegal construction of the brick kiln by the appellant and he had also filed a writ petition before the Hon'ble Lahore High Court Lahore on behalf of the respondent No, 2 i.e, Akram Cotton Mills Ltd. As the Tribunal was not functional at that time. Meanwhile the Tribunal on appointment of the members of the Tribunal, became functional so the said writ petition was disposed of so as to approach this Tribunal. The learned Counsel argued that the disputed brick kiln was being constructed without permission of the DCO and it was made operational in violation of the legal provisions. The respondent No, 2 is being adversely affected by the construction of the said brick kiln. He fully supported the impugned EPO and prayed for dismissal of the appeal.
5. Sardar Aasif Ali Sial, learned counsel for the appellant argued that the impugned EPO has been passed by the District Officer (Environment) Kasur without affording an opportunity of being heard to the appellant so it was violative of the established principle of law "Audi Altrem Partem". He further maintained that the impugned EPO was quite illegal, void ab initio, without jurisdiction and was thus liable to be set aside. It was further argued by him that brick kiln is not included in any Schedule of PEPA Review of IEE and EIA Regulations 2000 so he could not be required to submit IEE or EIA. At the same time the learned Counsel argued that the impugned EPO has become infructuous as the direction contained in the EPO had already been complied with by moving for the Environmental Approval even before the issuance of the EPO just to resolve the controversy and without conceding the legal position on the point. The learned Counsel further argued that in the light of the relevant provisions of law the EPA has not issued even a single NOC to any brick kiln till date so no such direction could be given to the appellant.
6. Yet another argument of the learned Counsel was that the District Officer (Environment), Kasur was not competent and had no jurisdiction to issue the EPO as the powers under section 16 of the PEP Act 1997 could not be delegated by the Director General EPA to the District Officers (Environment). The learned Counsel prayed for setting aside the impugned order dated 10.04.2015.
7. The learned Director Legal has vehemently resisted the appeal and while defending the impugned EPO issued by the District Officer (Environment) Kasur, argued that the District Officer (Environment) also performs his duties as Assistant Director and he is appointed by the Environment Protection Department. He referred to the Service Rules and the notification dated 28.11.2013 whereby the Director General delegated the powers of issuing the EPO under section 16 and filing of the complaint under section 21(3)(a) of the PEP Act 1997 to the District Officers (Environment) in the province. He maintained that these powers were delegated to the District Officers (Environment) in all districts by exercising his powers under section 5(5) of the Act. When asked as to whether the power of issuing EPO under section 16 was mentioned in the functions and powers of the Agency enumerated in sections 6 and 7 of the Act, he maintained that clause (a) of section 6(1) of the Act relates to the functions of the Agency to administer and implement the provisiOns of this Act and the rules and regulation made thereunder and the word "administer" includes the issuing of EPO under section 16 of the Act. So the impugned EPO was passed by the District Officer (Environment) Kasur while exercising the delegated powers under section 16 of PEP Act 1997 and it suffered from no legal infirmity. He maintained that the brick kiln falls under Schedule II-J-2 in the category of "any other project likely to cause adverse environmental effect" so the appellant was under a legal obligation to file EIA report. He also referred to an interim order of the Hon'ble Lahore High Court Lahore in a BTS Tower case titled Wand Telecom v. EPA etc. In Environmental Appeal No, 642/2010 wherein the objection of the learned counsel for the appellant in the said case with reference to the section 12(6) of the Act was found to have no force.
8. We have considered the arguments advanced by the learned counsel for the appellant, the learned Counsel for the respondent No, 2 and the learned Director Legal appearing on behalf of the EPA, about the jurisdiction of the District Officer (Environment) Kasur to issue the impugned EPO and have gone through the relevant provisions of law. As regards the interim order of the Hon'ble Lahore High Court the learned Counsel for the appellant argued that the final verdict is yet to be announced. Moreover it was a judgment in personam and not a judgment in rem.
' The Functions and Powers of the Provincial Environmental Protection Agency have been enumerated in sections 6 and 7 respectively. Section 5 of the Act requires the establishment of Provincial Environmental Protection Agency to exercise the powers and perform the functions assigned to it by the Provincial Government under this Act, the Rules and the Regulations.
Admittedly before promulgation of this amended Act in 2012 as per 18th amendment in the Constitution of Islamic Republic of Pakistan, the Provincial Agencies had been established under Section 8 of the Federal Statute i.e, Pakistan Environmental Protection Act 1997 but after the amendment and the promulgation of the Punjab Environmental Protection Act in 2012 the Provincial Agency was required to be re-constituted under the amended Act because section 8 had been omitted in the Provincial statute by the legislature. However no such Provincial Agency as required under section 5 of the amended Act was constituted and notified in the official Gazette.
Section 5(4) of the Act provides that the Powers and Functions of the Provincial Agency shall be exercised and performed by the Director General. Section 5(5) of the Act however empowers the Director General to delegate any of these Powers and Functions by general or special order to the staff appointed under subsection (3). The notification placed on the record does not find mention that the Director General delegated the functions of the Provincial Agency under section 6(1)(a) of the Act to the District Officers (Environment) as argued by the learned Director Legal.
9. Having carefully gone through the above provisions of law we are of the view that any of the functions and powers of the Provincial Agency enumerated in sections 6 and 7 could be delegated by the Director General to any officer appointed under subsection (3) but the powers under section 16 to pass the EPO could not be delegated to any District Officer (Environment) by the Director General. Section 16 of the Act is a specific provision which relates to the issuing of Environmental Protection Order. For better appreciation the relevant portion of section 16 is reproduced hereunder: "Environmental Protection Order- Where the Provincial Agency is satisfied that the discharge of emission of any effluent, waste water, air pollutant or noise, or the disposal of waste or handling of hazardous substance, or any other act or omission is likely to occur, or is occurring, or has occurred, in violation of any provision of this Act, rules or regulations or of the conditions of a license, or is likely to cause, or is causing, or has caused an adverse environmental effect, the Provincial Agency may, after giving the person responsible for such discharge, emission, disposal, handling, act or omission an opportunity of being heard, by order, direct such person to take such measures as the Provincial Agency may consider necessary within such period as my be specified in the order".
' The language of the above section 16 is clear and quite unambiguous and at all the three places the words 'Provincial Agency' have been used therein. If the legislature intended to delegate this power also to any District Officer it could provide that the Provincial Agency or any authorized officer may pass the EPO but the legislature in its wisdom did not confer this power to any other officer except the Provincial Agency.
10. The arguments of the learned Director Legal that the issuing of the EPO is covered by the word "administer" are not convincing. If the legislature intended the delegation of the powers of issuing the EPO to any District Officer it could have inserted it in section 6 or 7 of the Act. So we have no hesitation to conclude that the powers under section 16 of the Act to issue EPO could not be delegated to the District Officer (Environment).
11 This Tribunal has already observed in Appeal No, 27/2015 titled Liaqat Ali etc. v. Director General EPA that the status of the District Officer (Environment) is that of an investigation officer and after thorough enquiry and collecting of evidence he has to send the material collected during the investigation along with his report etc. To the Agency who has to issue the notice under section 16 and after hearing the 'person responsible' can pass the EPO containing certain specific directions to control the pollution. The Agency is presumed to be an impartial forum and has to issue EPO after applying its mind independently. The issuing of EPO is a quasi judicial power and it is admittedly an appealable order. It is against the scheme of law to give the powers of adjudication to the investigating officers. The Agency has to perform the functions of an adjudicating authority after hearing both the parties i.e, the District Officer (Environment) who initiated the proceedings and the concerned business unit to meet the ends of justice. Nobody can be allowed to be the judge of his own cause. Section-16 empowers the Provincial Agency to pass an order or direct the person responsible to take such measures as the Provincial agency may consider necessary. So this power cannot be delegated to the District Officer (Environment) by the Director General of the Provincial Agency which would give rise to the exploitation of the business community and monopoly of power at the district level.
' We are of the firm view that the EPO passed by the District Officer (Environment) Kasur is illegal and without jurisdiction and is not sustainable in the eye of law.
12. Even if we go through the Environmental Samples Rules 2001 the scheme of law becomes more clear as rule-6 relates to the issuance of EPO where samples are taken. It provides that where on entry, inspection or search of any place, an authorized person is satisfied that the circumstances in such place require issuance of an Environmental Protection Order in respect thereof, he shall immediately inform the Director General in writing for initiation of necessary action in accordance with the provisions of section 16 of the Act. If the District Officer could issue EPO then there was no need to require the authorized officer to inform the Director General in writing for issuing of EPO under section 16. If the District Officer is given the powers to pass the EPO, then this rule becomes redundant. This rule gives further support to the view of this Tribunal that the power to issue the EPO could not be delegated by the Director General to the District Officer (Environment).
13. In the light of the above discussion we are of the view that neither the District Officer (Environment) was competent to issue the EPO nor this power could be delegated to him by the Director General EPA. The notification dated 28.11.2013 is held to be illegal. There was no occasion or justification for the District Officer (Environment) to issue the impugned order especially when the appellant had already moved for the Environmental Approval in order to resolve the controversy. In the light of the above observations the appeal is allowed and the impugned order is set aside. The EPA may however initiate fresh proceedings in accordance with law if any offence is committed by the appellant under the PEP Act, 1997.