JUSTICE (RETD.) CH. MUHAMMAD YOUNIS, CHAIRPERSON.---The instant complaint has been filed against the respondent by the District Officer (Environment), Bahawalnagar by exercising the powers delegated to him by the Director General, Provincial Environmental Protection Agency vide Notification No. 02/LS/EPA/Vol.-II dated 28.11.2013. The EPO dated 13.01.2014 was also passed by the District Officer (Environment) Bahawalnagar. Paragraphs Nos. 1 and 2 of the complaint are reproduced here under for better appreciation of the legal questions involved in the complaint.
1. Most Respectfully, it is submitted that Complainant Agency namely Environmental Protection Agency Bahawalnagar, located at Hafizabad Road, Hassan Colony, Tehsil and District Bahawalnagar is a Govt. Agency in term of section 2(xvi) of PEPA-I997/2012, administering the prevention and control of pollution laws, Rules/Regulation/Order/Notification within its territorial jurisdiction. (District Bahawalnagar) of the Province of Punjab.
2. That the complainant Agency has derived its Legal Authority to proceed against the polluters under PEPA-1997/2012, read with delegation of powers Notification made by the Provincial Government under section 5(5) of Act ibid, vide Notification No. 02/LS/EPA/Vol-11 dated 28.11.201.3.
2. Previously the complaints were filed by the Director General EPA on behalf of the Punjab Environmental Protection Agency before this Tribunal whereas the instant complaint along with 19 other similar complaints was filed by the District Officer (Environment) and not by the Provincial Agency so the complaints were fixed for preliminary arguments.
3. We have heard the preliminary arguments advanced by the learned Director Legal regarding the maintainability of these complaints as common questions of law and facts are involved therein.
The Director Legal defending the act of the District Officer (Environment) argued that the District Officer (Environment) also performs his duties as Assistant Director and he is appointed by the Environment Protection Department. He also placed on record a Notification in respect of District Officer (Environment) Bahawalnagar and referred to the Service Rules and the notification dated 28.11.2013 whereby the Director General delegated the powers of issuing of EPO under section 16 and filing of the complaint under section 21(3)(a) of the PEP Act 1997. 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 I 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 regulations made there- under and the word "administer" includes the issuing of EPO under section 16 of the Act. Similarly he argued that the powers to file a complaint under section 21(3)(a) of the Act were also delegated to the District Officers (Environment) in the Province so the complaint was maintainable.
4. We have considered the arguments advanced by the learned Director Legal about the maintainability of this complaint filed by the District Officer (Environment) Bahawalnagar and have gone through the relevant provisions of law. The Functions and Powers of the Provincial Environmental Protection Agency have been listed 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 Government under this Act, the Rules and Regulations. Admittedly before promulgation of this amended Act the Provincial Agencies had been established under the Federal Statute under section 8 of the 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. 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. The legislature in its wisdom has not mentioned any District Officer (Environment) to exercise these powers besides 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 orders to staff appointed under subsection (3). The notification placed on the record does not find mention that the Director General 'delegated the specific function of the Provincial Agency under section 6(1)(a) of the Act to the District Officers (Environment).
5. 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 issue the EPO could not be delegated to any District Officer (Environment) by the Director General. Section 16 is a specific provision which relates to the issuing of Environmental Protection Order. For better appreciation the relevant portion of Section 16 is reproduced here under: "Environmental Protection Order---where the Provincial Agency is satisfied that the discharge of emission of any effluent, waste, 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 un ambiguous and all the places the words Provincial Agency have been used tlierein. 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 issue the EPO but the legislature in its wisdom did not confer this power to any other officer except the Provincial Agency.
6. In paras 1 and 2 of the complaint the District Officer (Environment), Bahawalnagar has astonishingly assumed that he headed ' the Environmental Protection Agency, Bahawalnagar and in exercise of powers as such Agency he filed this complaint. The complaint is entirely based on miss-conception. No such Agency at Bahawalnagar was created by law so how the District Officer could assume this power when the PEP Act 1997 (as amended in 2012) has no such provisions to establish any Agency at the district level. Section 5 of the Act only provides the' establishment of the Provincial Agency by the Government. The EPO was not passed by the District Officer (Environment) in any other capacity and similarly he as filed this complaint before this Tribunal assuming the role of a self styled Environmental Protection Agency Bahawalnagar which is non- existent.
7. 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 by a District Officer, it could have specifically 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) and it is only the prerogative of the Provincial Agency.
' 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 search, inspection and 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 it can issue the EPO containing certain specific directions to control the pollution. The Agency is presumed to be impartial and has to issue EPO after applying its mind independently. The issuing of EPO is a quasi judicial power and admittedly it is an appeal able order. It is against the scheme of law to give the powers of adjudication to the investigating officer. The Agency has to perform the functions of an adjudicating authority after hearing both the parties i.e. the District Officer (Environment) and the concerned business unit. 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 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) is illegal, without jurisdiction and not sustainable in the eye of law.
' 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 issuing 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 issue 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).
9. Yet another important aspect of the matter is that section 21 deals with the jurisdiction and powers of the Environmental Tribunal. Subsection (3) of section 21 provides as under:
(3) "An Environmental Tribunal shall not take cognizance of any offence triable under subsection
(2) except on a complaint in writing by:
(a) The Provincial Agency or any Government Agency or local council; and
(b) Any aggrieved person who has given notice of not less than thirty days to the Provincial Agency of the .alleged contravention and of his intention to make a complaint to the Environmental Tribunal."
' The above provisions of law are clear and unambiguous on the point that the Tribunal cannot take cognizance of any offence except on a complaint in writing by the Provincial Agency or any Government Agency or local council. So this power under section 21 could not be delegated by the Director General to District Officer (Environment) in derogation of the statutory provisions unless section 21 was suitably amended by the legislature. There is no Environmental Protection Agency, Bahawalnagar in existence nor it could be established in the light of provisions under section 5 of the Act which only provides the establishment of the Provincial Agency and there is no concept of any such Agency at the District level as mentioned by District Officer (Environment) Bahawalnagar in para 1 of the instant complaint. The complaint in hand having not been filed by the Provincial Agency is not covered by clause (a) of section 21(3) of the Act.
10. 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. Similarly this Tribunal cannot take cognizance of any complaint not filed by the Provincial Agency, Government Agency or the Local Council. The legislature wherever necessary has empowered the authorized officer to deal with a specific matter as we find the provisions of section 17(6) which provide that the Director General of the Provincial Agency or an officer generally or specially authorized by him in this behalf may, on the application of the accused compound an offence tinder this Act with the permission of Environmental Tribunal or Environmental Magistrate. So if the powers of section 16 to issue the EPO or to file the complaint were intended to be conferred on any other officer the same could have been mentioned in sections 16 and 21 of the Act.
11. In the light of the above discussion this complaint is not maintainable having been filed without jurisdiction so the same is hereby dismissed and the notification issued by the Director General dated 28.11.2013 is held to be illegal and without jurisdiction to the extent of delegating powers under sections 16 and 21 of the Act. The EPO being without jurisdiction is also nullity in the eye of law.
The EPA shall however be at liberty to initiate fresh proceedings against the respondent strictly in accordance with law. The file be consigned to the Record,
12. A copy of this judgment be sent to the Secretary, EPD and the Director General, EPA for information and compliance.