' The instant appeal has been preferred against the impugned Environmental Protection Order
(EPO) dated 07.01.2015 which was allegedly never served on the appellant till 29.05.2015 when the same was communicated on the written request of the appellant vide letter dated 28.04.2015. The respondent No, 2 issued the impugned EPO which contained certain directions to immediately stop dumping of ash in the open plot and remove all the ash from the site; construct proper drainage system according to the capacity of emissions in conformity with NEQS. As per appellant the Agency had earlier issued EPO dated 21.03.2013 which was assailed before this Tribunal in Appeal No, 07/2013. The appeal was allowed and the matter was remanded to the Agency vide order dated 04.09.2013. In compliance of the order of this Tribunal the appellant submitted a detailed reply but the Agency allegedly failed to consider the stance of the appellant and proceeded to issue the impugned EPO dated 07.01.2015. The said order has been assailed on the grounds that the same is unlawful, perverse, arbitrary and contrary to law. Allegedly the said order was a result of biased approach of the respondents, misapplication of law and non-appreciation of the relevant material. The impugned order is devoid of any logic and reasoning and has been passed without considering and discussing the stance of the appellant. The impugned order has been issued in a mechanical, stereotype and haphazard manner. The appellant had installed the latest treatment plant by spending a huge amount of Rs, 150 million. The waste water from distillery plant is diverted to flow through closed pipe lines to reduce its BOD and COD contents. The boilers installed by the appellant were allegedly equipped with cyclones to catch ash from gaseous emission. The temperatures is kept normal with water showering and scrubbers. The ash from scrubbers is mixed with solid effluents and recycled for sugar-cane fields which enhances the soil fertility and the nearby growers are benefitting from it.
2. Mr. Irshad Chaudhary the learned Senior Advocate appearing for the appellant argued that in the light of affidavits of the General Manager HR/Administration as well as that of Muhammad Mansha the EPO was never served on the appellant as alleged by the Agency. The learned counsel contends that the impugned order is even otherwise a void order and no limitation runs against a void order so the appeal is within time and the impugned order is liable to be set aside.
3. The learned Counsel further maintained that the impugned order is not sustainable in the eye of law on multiple scores. It is not a speaking order and the stance of the appellant submitted in the form of written reply was discarded without giving any reasons. The impugned order was passed by Deputy Director (R&D on behalf of Director General. The Deputy Director was not competent to issue the impugned order so the same is liable to be set aside on this score alone. The Agency did not follow the Environmental Sample Rules 2001 and the sample was not taken by the authorized person. The appellant was also not associated in the process and the third sample was not handed over to the appellant as required by the rules. There is no Chief Analyst in EPA laboratory samples. The original certificate in Form D was also not provided to the appellant. He further argued that no PEQS have been formulated and notified under the amended Act so the NEQS are not applicable. The learned Counsel Maintained that appellant had throughout been trying to bring the emissions within the prescribed parameters. No solid waste was generated by the mills to be disposed of outside the premises of the mill and as far as the liquid waste was concerned the appellant had treated this water by increasing its PH value and reducing its temperature and had made this water rich source of Nitrogen, potash and phosphate. This water is being supplied to the growers free of cost through barrels and tankers. The learned Counsel maintained that the appellant had constructed brick-line drain covered with RCC slabs measuring 3 km with a huge amount of Rs, 20 million to protect the environment. In support of his argument the learned Counsel referred to 2015 CLC 1053 (Balochistan) on the point that where the order was void and without jurisdiction it could not be allowed to occupy the field as illegality could not be allowed to be perpetuated. He relied on PLD 2015 Lahore 345 wherein it was held that when law specified a thing to be done in a particular manner then it should be done in that manner alone or not at all.
The learned Counsel also referred to 2015 SCMR 795 wherein it was held by the august Supreme Court of Pakistan as under: "Courts of law were not supposed to perpetuate what was unjust and unfair by exploring explanation for an act which was prima facie against law and thus void---Courts should rather explore ways and means for undoing what was unfair and unjust---Even where the question of limitation, if at all, created any impediment in the fair adjudication of the case it had to be looked from such angle of vision."
4. The appeal has been vehemently opposed by the respondents. The learned Director Legal submitted affidavit of the concerned officials who served the EPO on the official of the respondent mills which contains the stamp of the mills dated 21.01.2015 so from that point of view the contention of the appellant is rebutted and the appeal is barred by limitation. The learned Director Legal further maintained that the Deputy Director was authorized to sign the impugned EPO under the delegated powers. He referred to a notification issued under section 8(1) & (4) of the Pakistan Environmental Protection Act, 1997. The learned Director Legal while defending the impugned order maintained that the stance of the appellant had been taken into consideration and this fact has been mentioned in the EPO. The impugned order suffers from no legal infirmity and the appeal is liable to be dismissed being devoid of any substance.
5. We have considered the arguments advanced from both the sides and perused the record.
Admittedly no limitation runs against a void order so the legality of the impugned order is to be determined in the first instance. The learned counsel for the appellant has raised some important legal questions which go to the root of the case. All the proceedings have been initiated against the appellant under the Punjab Environmental Protection Act 1997 (as amended in 2012). A perusal of the impugned EPO shows that in para 6 thereof it has been mentioned that the Director General EPA in exercise of powers conferred under section 16 of the PEP Act 1997 (as amended 2012) passed the impugned order. It is also an admitted fact that the Director General has not signed the impugned order, Rather Deputy Director (R&D signed the impugned order for Director General. It is evident from para 6 of the EPO that the Director General was empowered under section 16 of the Act to pass the EPO on behalf of the Provincial Agency as he performs the functions of the Provincial Agency under section 5(4) of the amended Act. The Deputy Director (R&D had not passed the impugned order under any delegated powers nor he was competent to sign the impugned EPO for Director General. It is as established principle of law that when a particular act is required to be done in a particular manner the same must be done in that manner alone or not at all. We rely on PLD 2013 SC 255 and PLD 2015 Lahore 345. As regards any notification issued under section 8 of Pakistan Environmental Protection Act 1997 it would suffice to say that the said Section 8 had been omitted in 2012 while amending the said Act by the legislature. So any such notification is of no legal value after the promulgation of the amended Act 2012. Now Section 5 of the amended Act requires the Provincial Agency to be established and the Director General of the Agency may delegate the functions and powers of the Agency to the officers appointed under subsection (3) of section 5 of the amended Act. The Tribunal has already observed in several cases that the Director General can delegate only the functions and powers enumerated in sections 6 and 7. He cannot delegate the powers of the Provincial Agency under section 16 or 21 of the Act. So even from that point of view the Deputy Director was not competent to pass the impugned order and it is held to be issued by an unauthorized person and is declared to be illegal and void. In view of this finding of the Tribunal the question of limitation becomes immaterial and the appeal is liable to be decided on merits relying on 2015 SCMR 795 referred to above as the law favours adjudication of causes on merits rather than technicalities.
6. Yet another important point raised by the learned Counsel for the appellant was that inspite of submitting a detailed written reply by the appellant and enumerating the remedial measures taken by the appellant the impugned order was passed without discussing the same and giving reasons for discarding the same. We would like to reproduce hereunder the relevant portion of the written reply submitted by the appellant in compliance of the earlier order of this Tribunal in Appeal No, 7 of 2013. The fact regarding submission of written reply also finds mention in the impugned EPO: ' Shakarganj is clear about its responsibility to the environment and every active in conservation.
We are constantly making efforts to reduce waste generation and recycling the process chemicals and waste water. Shakarganj have an environmental policy which revolves around three basic principles; Shakarganj assumes responsibility for environment Decisions shall favour environment In formation shall be open and free
2. SML's management is concerned about the environmental issues facing the sugar industry and keeps to adopt pollution abatement measures for the reduction of adverse environmental impacts. Triple R (reduces, reuse, recycle) program has already been implemented at Shakarganj.
3. Shakarganj conducts all its operation by recognizing responsibilities to the environment within which we live and work. We aim for zero waste and conservation of energy resources.
(a) Boilers installed at Shakarganj are equipped with cyclones to remove ash from gaseous emission. Temperature of bottom and fly ash of boilers is reduced in scrubbers with water showering and then the ash from scrubbers are mixed with solid effluents and recycled to the cane files. Fly Ash has a great potentiality in agriculture due to its efficacy in modification of soil health and crop performance. The high concentration of elements (K, Na, Zn, Ca, Mg and Fe) in fly ash increased the yield of many agricultural crops. Currently nearby growers successfully used the fly ash in their fields.
(b) Shakarganj has spent 150 million rupees to install waste water treatment plant. This plant is based on latest technology available in the world. The efficiency of this plant is 85 % which is maximum, achievable at (sic.) treated using world's latest technology available. It is most modern and efficient plant in the country. Waste water of distillery plant is sent through closed pipeline to effluent treatment plant for its anaerobic digestion to reduce its COD and BOD contents. The technology used in Shakarganj is the'most advance option which caters emissions of smell produced during the reaction.
(c) Moreover in previous years we have constructed brick line drain covered with RCC Slabs measuring 03 KM with the heavy budget of 20 million rupees to carry this waste water and also providing the water to growers through tankers who use this water as a fertilizer by mixing with fresh water.
(d) Solid waste of sugar factory (filter cake from process house and fly ash from boilers) are treated as Shakarganj to convert it to bio-compost. The process is facilitated with Bio-Aab to act as catalyst for reducing process time and control odor, Shakarganj started research work on bio- compositing by mixing distillery spent wash with filter cake in early 1990s. In many developed countries mud cake used as organic manure along with supplementary inorganic fertilizers for microbial decomposition. Major objective of this application is to overcome the nitrogen deficiencies in initial stage of plant growth. The above said BoiCompost has replaced utilization of fertilizer urea to the agricultural fields.
(e) Boilers installed at Shakarganj are equipped with cyclones to remove ash from gaseous emission. Complete combustion of fuel has been ensured to bring CO, PM, SOXS and NOXs emission within the NEQs limits.
' Under normal operation entire plant steam requirements are met by using bagasse as main fuel.
Under reduced load conditions both bagasse and methane gas is used as mixed fuel. During abnormal running of the steam load at boilers, irrespective of all remedial measures 100% control of Fly ash and CO is not possible. On 31.01.2013 the visit day of sampling team, our sugar plant was running at low crushing (5379 M Tons against 12000M Tons capacity). Therefore abnormal reduced crushing and wear and tear of ash collections system due to prolonged operation of boilers, consumption of fuel obviously increase in order to maintain the requirement steam load due to which CO and PM above normal was reported by the laboratory. Our boilers are in operation and sampling team may visit any time to check the PM and Companies Ordinance, 1984 contents in the flue gas.
' Installation of an H2S removal plant is state of the art and first of its kind" in Pakistan that utilizes biogas, for electricity generation the project activity improves the technical skills of the local inhabitants thfough training and capacity building. It has created more employment opportunities at the project site during project installation.
' Shakarganj has already shifted one distillery unit from SML Jhang and also have planned to shift the second distillery unit. So, effluent will be reduced 50% and effluent treatment plant will enhance its treatment efficiency.
' Shakarganj request your good self to visit the mill in order to witness all the activities, which have already been adopted to minimize hazardous environmental impacts due to industrial activities.
Therefore it is requested to look into the matter and appreciate the work we have done in resolving the issue mentioned by complainant in his application. We may submit here once again that Environmental Protection Department is welcome to advice us regarding any technology available with them to be adopted at our end to meet the NEQS.
8. In the last paragraph at the end of their reply the appellant requested the concerned officers of EPA to visit the mills and witness the measures adopted to minimize the pollution. The appellant also submitted that the Agency would be welcome to advise them regarding any technology available with them to be adopted to meet the standards. Under section 6 clause (m) of the Act ibid it is one of the functions of the Provincial Agency to render advice and assistance in environmental matters. So the Provincial Agency must have acceded to the genuine and reasonable request of the appellant and render advice and assistance from the practical point of view after visiting the site and inspecting the arrangements already made by the Mills to control and minimize the pollution.
' It is evident from the above paragraphs that the appellant had taken specific defence plea and the Director General was under a legal obligation to discuss each and every stance/defence plea of the appellant and give reasons for discarding the same. The impugned order finds mention of the written reply which was forwarded to DOE Jhang for confirmation of the stance of the appellant but the impugned order does not find mention of any detail of the report received from DOE Jhang and a stereo type sentence has been incorporated in the EPO that the authority is not satisfied and concluded from the available scientific record that the unit was responsible for violating section 11 of the PEP Act 1997. According to the defence plea besides others, the appellant had claimed to have installed a waste water treatment plant with the latest technology available in the world by spending a huge amount of Rs, 150 million. Moreover a brick-line drain covered with RCC Slabs measuring 3 km was constructed for the waste water by spending Rs, 20 millions. Besides it the appellant took the plea that waste water from distillery plant is diverted to flow through closed pipe lines to reduce its BOD and COD contents. The boilers installed by the appellant were allegedly equipped with cyclones to catch ash from gaseous emission. The temperature is kept normal with water showering and scrubbers. The EPO does not find mention of the said stance and it has not been discussed as to whether the said arrangement does or does not exist at the site and if it existed, whether it was found inefficient or the same was not operational so no possible reasons to discard the plea of the appellant have been given in the EPO as required by law.
' Section 24-A of the General Clauses Act also requires that where a power to make any order or give any direction is conferred on any authority under any enactment, such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. The impugned EPO lacks reasons and is hit by section 24-A of the General Clauses Act being not a speaking, well reasoned and detailed order.
' Admittedly the EPO is a quasi-judicial and appealable order. It has to be a speaking order and must contain solid reasons for discarding the defende plea of the appellant after discussing the same. So on this ground also the impugned order is not sustainable in the eye of law.
9. Yet another important point involved in this appeal is as to whether the NEQS were applicable after the promulgation of the amended Act in 2012. Admittedly the PEAS were to be prepared and notified which have not been framed as yet whereas the violation of section 11 can only be punished if the PEQS are violated. This Tribunal has been established by the Government of the Punjab under section 20 of the Punjab Environmental Protection Act as amended in 2012 and it has to adjudicate upon matters in the light of the provisions of the amended Act and not under the Federal Statute. We would like to reproduce the provisions of section 11 of the amended Act as under for better appreciation of the legal points; 'Prohibition of certain discharges or emissions.
' Section 11 (1) Subject to the provisions of this Act and the rules and regulations made thereunder no person shall discharge or emit or allow the discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the Punjab Environmental Quality Standards or, where applicable, the standards established under sub- clause (I) of clause (g) of subsection (1) of section 6.
It is abundantly clear from the perusal of the above provisions of law that in order to attract the provisions of section 11 of the Act it has to be proved that the level of discharge or emission of any effluent or waste or air pollutant or noise exceeded the PEQS or where applicable he standards established under sub-clause (i) of clause (g) of subsection (1) of section 6. It is interesting to note that in the amended Act there is no sub-clause (i) of Clause (g). Clause (g) however requires the Provincial Agency to establish standards for the quality of the ambient air, water and land, by notification in the official gazette. Admittedly neither any such standards nor the PEQS have been prepared and notified in the official gazette as yet nor the Punjab Environmental Protection Council has so far approved the BEQS. The legislature never provided any mechanism in the amended Act of 2012 to save the applicability of the NEQS till the preparation of PEQS. Resultantly this Tribunal cannot convict any person under section 11 for violation of NEQS in the proceedings initiated after the promulgation of the amended Act.
10. In the light of the above discussion this Tribunal has reached an irresistible conclusion that the impugned order is unlawful without authority and not sustainable in the eye of law. So the appeal is allowed, the impugned order is set aside and the matter is remanded to the Provincial Agency for decision afresh by the Director General himself after hearing the appellant, preferably within 3 months after the receipt of the copy of this order.