' JUSTICE (R) CH. MUHAMMAD YOUNIS, CHAIRPERSON-- The instant appeal has been preferred against the impugned order dated 22.09.2011 received by the appellant on 08.10.2011 whereby the appellant was informed regarding the rejection of IEE report submitted by the appellant for the Environmental. Approval of the appellant Poultry Farm established at Manik near Raiwind Road, district Lahore on the following grounds:- ' The poultry farm/control shed is already under operation in violation of section 12 of the PEP Act 1997.
' The site is located in residential area as per master plan. Unhygienic scenario prevails due to control shed.
' The local residents are against the establishment of the poultry farm/control shed.
2. The learned Counsel for the appellant argued that the appellant company established the poultry farm in Mouza Manik, Manik Road Tehsil and District Lahore in or around the year 1988 and since then it is carrying out its business of poultry in accordance with applicable laws and requisite bio security safety standards in consonance with the prevalent environmental guidelines. The appellant company on payment of requisite government fee initially obtained sanction of the poultry farm site plan on 15.12.1995 which was subsequently amended and upon payment of the requisite fee of Rs,39100/- the amended site plan was got approved on 25.06.1997. Resultantly the appellant constructed poultry farm building over a covered area of 212930.61 sq. Ft. Consisting of a double storey building well before the promulgation of Pakistan Environmental Protection Act 1997.
The copies of sanctioned plan along with the receipt of fee payment have been annexed as Annexure C & C/1 respectively. Initially the appellant had established open shed poultry breeders Farm which was soon converted into a Controlled Shed Farm. The Farm was built and constructed in consonance with updated and state of the art industrial technology which conformed to the international standards and safety parameters ensuring environmental protection. All possible mitigating and remedial measures had been taken to ensure the environmentally controlled conditions at the Farm. In October 2010 two Inspectors visited the appellant poultry farm and on their arbitrary report a notice dated 05.10.2010 was issued under section 146(D)(2) of Punjab Local Government Ordinance 2011 containing baseless allegations. In response to the notice Annexure-D the appellant company submitted its reply on 13.10.2010. Copy this reply has been placed on the record as Annexure-D/1. Later on a notice dated 28.10.2010 (Annexure-F) was issued by the EPA under section 16 of the PEP Act 1997 whereby misconceived allegations regarding injecting of waste water into ground water through deep well; improper disposal of solid waste; offensive odour and violation of section 12 of PEP Act 1997 were leveled. The appellant was asked to get the environmental approval. The appellant company again submitted a detailed reply denying all the allegations. The copy of the said reply is available on the record as Annexure-F/1. The appellant raised the defence plea in the written reply as under:- 1) It will be observed that there is no such deep well which is injecting ground water; we have cultivated vegetable area inside our campus which is utilizing this fertile water.
2) Disposal of solid waste is also being dumped in our agriculture area which is situated far from any populated area.
3) The farm was built in the center of lush green agriculture area in 1997, till now there is no population in the surroundings.
4) This unit was established before implementation of Environmental Protection Act 1997, under then prevalent laws. This was done with the approval of the Local Government. The required fee was paid; photocopies of relevant documents are attached.
5) Being responsible businessm en, we cannot violate any Law of country. If further steps are to be taken to improve the situation, it may be conveyed. It may be kept in view that since 1997 we are regularly investing in this project which has now grown up to multi millions. This way we are boosting the economy of the country and generating lot of employment opportunities.
3. The learned Counsel maintained that without considering the reply of the appellant and without getting the stance of the appellant verified, an Environment Protection Order dated 30.04.2011 was passed with the following directions. Immediately stop discharging waste water into subsoil water.
Ii. Adopt proper system for environmentally sound disposal of poultry and solid waste. Iii. Adopt remedial measures to control offensive odor to the satisfaction of this Agency. iv. Show cause why proceeding under section 21(3)(a) and other allied provisions of the Act ibid should not be initiated for the violation of section 12 of Act ibid. ' OR ' Stop the operation of the pollution generating activities.
' The learned Counsel maintained that the said order was based on mala fides which has been assailed through a separate appeal.
4. Anyhow on the demand of the EPA the appellant just in order to resolve the controversy moved for Environmental Approval and submitted IEE report on 10.02.2011. On 15.02.2011 the Assistant Director (EIA) required the District Officer (Environment) Lahore to submit SIR in pursuance of the IEE report submitted by the appellant. Then on 22.02.2011 through a letter copy of which has been placed on the record some further information was sought by the EPA and the requisite report dated 12.4.2011 was submitted by the appellant on 13.04.2011. On the other hand, in response of the direction of the Assistant Director (EIA) the D.O. (E) submitted the SIR dated 09.03.2011 according to which the District Officer (Environment) Lahore reported that the site was located in posh and planned residential locality as per master plan and the project contradicts the status of the locality; that unhygienic scenario prevailed and untreated waste water was being injected into the ground water; the poultry farm had been established and was operational since 1998 and the capacity had been illegally enhanced gradually. The District Officer (Environment) also recommended that the applicant may only regularize his illegal entity through Environmental Tribunal.
5. The learned Counsel maintained that within the stipulated period of 45 days the EPA was bound to decide the request of the appellant for Environmental Approval as per regulation 11 of the PEPA Review of IEE and EIA Regulations 2000 but the matter was not decided and under regulation 12 the Agency was bound to communicate the decision in the form prescribed in Schedule-V of the said regulations which contains no provisions to reject the IEE. The learned Counsel argued that under section 12(4) of the PEP Act 1997 the Agency was bound to communicate its approval within a period of 4 months after providing the requisite information failing which the IEE was to be deemed to have been approved to the extent as it does not contravene the provisions of the Act and the rules and regulations made thereunder. The learned Counsel argued that the impugned order dated 22.09.2011 whereby the IEE report of the appellant was rejected on flimsy and baseless grounds was based on mala fides and was without jurisdiction. The learned Counsel maintained that no master plan was produced on the record nor any complaint was filed by any resident of the locality. The stance of the appellant was not taken into consideration and the impugned order was issued after the lapse of the statutory period of 4 months which was never extended. He maintained that the impugned order was illegal, without jurisdiction, arbitrary, whimsical, perverse, mala fide and without lawful authority. Allegedly the EPA assumed the powers of LDA. Actually the impugned order was issued just for shelving the application of the appellant for approval of IEE. The inspection/report of the Inspectors was violative of the order of the Government of the Punjab dated 28.06.2011 whereby only the District Officer (Environment)/authorized team was competent to inspect the poultry farm and not the Inspectors. The learned Counsel prayed for setting aside the impugned order by allowing the appeal.
6. The learned Law Officer has vehemently resisted the appeal and argued that the impugned order was issued after considering the stance of the appellant strictly in accordance with law and the impugned order contains the convincing reasons. The said order suffers from no legal infirmity so the appeal being without any substance is liable to be dismissed.
7. We have considered the arguments advanced from both the sides and perused the record. The impugned order dated 22.09.2011 has been issued on four grounds. The first ground is that the poultry farm of the appellant is already under operation in violation of section 12 of PEP Act 1997. As pointed out by the learned Counsel for the appellant the unit was established much before the promulgation of Pakistan Environmental Protection Act, 1997. Admittedly the PEPA Review of IEE and EIA Regulations 2000 were notified in 2001 vide SRO No,339(1)2001 so no proponent was supposed to know as to what category of projects required the Environmental Approval by submitting IEE and which projects required EIA to be submitted. The provisions of section 42(6) of the Act ibid depended upon the regulations to be notified regarding the manner and category of projects as may be prescribed. So strictly speaking the penal provisions regarding the violation of section 12 could not be invoked in respect of the projects established before 2001. Allegedly the IEE was submitted by the appellant on the demand of the EPA officials and just to resolve the controversy.
Admittedly there is no estoppels against the statute. It is also an admitted fact that the IEE could not be rejected as there was no such provisions in Schedule-V of the aforesaid Regulations. The IEE was either to be accepted or at the most further information could be sought or the proponent could be asked to submit EIA if the law so required keeping in view the nature of the project and the entries of the Schedules-I and II of the said regulations. The appellant had submitted their reply in detail regarding the allegations contained in the SIR dated 09.03.2011. The stance of the appellant contained in reply dated 13.04.2011 has not been discussed and taken into consideration while issuing the impugned order dated 22.09.2011. The arguments of the learned Counsel for the appellant on the point that the case of the appellant was covered by the deeming clause of section 12(4) is also not without substance. There is nothing on the record to prove that the requisite period of four. Months for review of IEE was ever extended. So after the lapse of the said period the IEE was to be deemed to have been approved to the extent as it does not contravene the provisions of the Act and the rules, and regulations made thereunder. Even otherwise the violation of section 12 of the Act ibid was not made out as the project had been established well before the notifying of PEPA Review of IEE and EIA Regulations 2000 in the official gazette. We rely on a recent consolidated judgment dated 21.10.2016 of Lahore High Court in Writ Petition No, 13609 of 2011 titled Messrs Telenor Pakistan (Pvt.) Ltd. v. D.G. Environmental Protection Agency and others and Writ petition No,15794 of 2010 titled Messrs Telenor Pakistan (Pvt.) Ltd. v. Government of the Punjab and others on this point.
The second ground for refusal of the Environmental Approval was that the site is located in residential area as per master plan. No master plan is available on the record of the EPA and in spite of direction of this. Tribunal no such master plan was ever produced for our perusal. Even otherwise the photographs attached with the appeal clearly indicate that the project is situated in an agricultural area having no population in the vicinity. The master plan was allegedly prepared by the Lahore Development Authority but no complaint was ever made to the LDA and no action etc. Was ever initiated by the LDA if violation of master plan was made by the appellant. There is no demarcation report or any other report on the record to prove that the project of the appellant was located in the prohibited zone as per master plan. It was the domain of LDA to proceed against the appellant if any provision of law relating to master plan was violated. Even otherwise the farm was established by the appellant after getting the site plan sanctioned from the concerned Municipal authourities which was never cancelled by any competent authority.
' The third ground for rejection of IEE was that unhygienic scenario prevailed due to control shed.
The said adverse environmental effect has not been explained and no detail thereof has been given in the report by the District Officer (Environment) so the ground is vague and unfounded.
' The last ground for the rejection of the IEE was that the local residents were against the establishment of the appellant poultry farm/control shed. When asked by the Tribunal, the learned Law Officer was unable to point out or place before us even a single complaint received from any resident of the locality. The District Officer (Environment) concerned also did not record the statement of even a single resident in this respect. Admittedly no complaint was ever filed by any aggrieved person before this Tribunal against the appellant farm. The project was established about two decades ago after fulfilling the legal requirements and after getting the site plan sanctioned when there was no population/residential area in the surroundings. Any subsequent change in the status of the area cannot be made basis for dislodging the projects established after incurring huge expenditure and which were operational even in 1998 as is evident from a report of the EPA itself.
8. In the light of the above discussion the impugned order is not based on any solid and convincing reasons. Rather it has been issued on flimsy grounds. The plea of the appellant was neither taken into consideration nor discussed in the impugned order and the same was discarded without giving any solid reasons. The impugned order is built upon a superfluous structure which has no foundation and is bound to collapse. In these circumstances the impugned order is not sustainable in the eye of law so the appeal is allowed and the impugned order is hereby set aside.