The instant appeal has been preferred against the impugned order dated 07.11.2014 whereby IEE submitted by the respondent No,3 was accepted with certain conditions and Environmental Approval was granted by the respondent No, 1 (EPA) for construction of multi-story hotel (21 upper floors and 3 basements) at plot No,2 bearing Khasra No,2576 Sundar Das Road Lahore. The appellants being residents of Zaman Park and living in the vicinity are aggrieved of the impugned Environmental Approval. The appellants moved an application to the EPA on 14.03.2016 (Annexure- A) seeking information as to whether any approval has been granted regarding the disputed project and they requested for providing them certified copies of the approval if any but the Agency did not respond to their request despite repeated visits. However on 04.04.2016 the appellants were able to get an uncertified copy of the impugned order so on 22.04.2016 they filed the instant appeal which is within time.
2. This appeal has been preferred on the grounds that the impugned order was passed without application of mind in a cyclostyled generic form without hearing all the stake holders as well as the appellants whose quality of life, privacy and constitutional rights were directly affected and violated by the impugned project; that the approval was granted on the basis of an IEE which was violative of the applicable law as well as the bylaws of Gulberg Town as the said bylaws required an EIA to be submitted for Environmental Approval in case of a hotel; that the impugned approval could not be granted with conditions; that EIA could only be cleared by imposing certain directions; that the project had an adverse environmental effect so the proponent was required to furnish EIA and not IEE; that no public hearing was conducted before granting the approval. Even the appellants who were the neighbors were not heard and associated in the proceedings. The Advisory Committee had also not been constituted as required by law so the impugned order being against law was liable to be set aside.
3. The learned Counsel for the appellants argued that in the light of PLD 1994 Supreme Court 693 (Shehla Zia Case) the appellants being the residents of the same vicinity are the aggrieved persons as they would be adversely affected by the proposed project so it was obligatory upon the Agency to seek the submission of EIA and conduct a public hearing before granting the Environmental Approval but neither the appellants nor any other stake holder was heard. In spite of being the immediate neighbours the Provincial Agency did not communicate the impugned approval to the appellants in spite of their request. Even after moving the application to the Director General EPA on 14.03.2016 for communicating and providing the certified copies of the approval if any, no such order/approval was provided. The said application was received in the office of Director General EPA on 14.03.2016 vide diary No,1546 but the Agency did not respond to the request of the appellants. On 04.04.2016 however the appellants were able to get an uncertified copy of the impugned approval so the instant appeal was filed on 22.04.2016 which is well within time. The learned Counsel further argued that the fundamental and constitutional rights of the appellants to live in a clean environment were bound to be adversely affected by the proposed project so they were the aggrieved persons. The learned Counsel further maintained that the IEE could not be allowed with conditions as the conditions could only be imposed in case of EIA so from that point of view also the impugned order is illegal and not sustainable in the eye of law. The learned Counsel maintained that the appellants were not party to the writ petition so they had no knowledge about the proposed project or the pendency of the appeal. He prayed for setting aside the impugned approval and directing the Provincial Agency to seek the submission of EIA and decide the same in accordance with law after affording an opportunity of being heard to all the stake holders including the appellants.
4. The appeal has been vehemently resisted by the respondents Nos.1 and 4 whereas no relief has been sought against respondent No,2 who is a pro forma respondent. The respondent No,4 having purchased the property in question from respondent No, 3 has stepped into his shoes.
' The learned Law Officer appearing on behalf of the Provincial Agency and the learned Counsel for the respondent No, 4 argued that the appeal is time barred. At the time of filing of the writ petition by Faryal Ali Gohar etc. The appellants were in the knowledge of the impugned order hit they kept silent and waited for the fate of the writ petition. The appellants filed this appeal after dismissal of the said writ petition at the belated stage which is hopelessly time barred. The learned Law Officer contended that under Article 270-AA of the Constitution of Islamic Republic of Pakistan, the PEPA Review of IEE and EIA Regulations 2000 were protected and the Agency has followed the said regulations. The approval was accorded after observing all the legal formalities which suffers from no legal infirmity and the appeal is liable to be dismissed.
5. We have considered the arguments advanced from both the sides. Admittedly section 22 of PEP Act 1997 (as amended in 2012) provides the limitation period of 30 days for filing an appeal by an aggrieved person and this period of limitation would start from the communication of the impugned order or direction to such person. In the instant case the appellants were not a party to the application for Environmental Approval so they were not communicated any order/approval. In such an eventuality the date of knowledge would be considered for reckoning the period of limitation. As per record the appellants moved an application to the Director General EPA received in his office vide diary No, 1546 on 14.03.2016 contending therein that it had come to their knowledge that a multi-story hotel is being constructed adjacent to and overlooking their residences and that the proponent had applied for permission from the Provincial Agency. Since their life and privacy would be adversely affected so the copies of any relevant order or clearance granted by the EPA may be provided to them enabling them to approach the appropriate forum for safeguarding their rights. If' any clearance was granted, the appellants were not heard whereas they were directly affected stake holders. There is nothing on the record to show that the copies of impugned order/approval were ever provided or communicated to the appellants. The appellants allegedly got an uncertified copy on 04.04.2016. There is no rebuttal from the Provincial Agency or respondent No, 4 in this respect. This appeal was filed on 22.04.2016 so the appeal from that point of view is within time and liable to be disposed of on merits. As regards the filing of the writ petition the appellants were not a party to the same so they cannot be presumed to have knowledge of the impugned order/approval or the pendency of writ petition. Although the impugned order contains a condition to get NOC from immediate neighbours but neither it was determined as to who were the immediate neighbours from whom the no objection certificate was required nor the impugned order was ever communicated to them so as to safeguard their rights. By imposing such a condition the immediate neighbours were required to be associated and heard or at least informed about the proposed project and its approval. If the approval was communicated to them they could have availed the remedy before this Tribunal at the proper time. Despite the written request of the appellants the impugned approval was not communicated/ provided to them. So keeping in view all these facts we are of the view that the appeal is within time and is maintainable as the appellants are the aggrieved persons.
6. The crucial legal point involved in this appeal is as to under what provisions of law the approval was granted by the Provincial Agency. Admittedly section 12(1) of the Punjab Environmental Protection Act as amended in 2012 provides that no proponent of a project shall commence construction or operation unless he has filed with the Provincial Agency an IEE or where the project is likely to cause an adverse environmental effect, an EIA and has obtained from of Provincial Agency approval in respect thereof. Subsection (2) provides that the Provincial Agency shall review the IEE and accord its approval or require submission of an EIA by the proponent or review the EIA and accord its approval subject to such conditions as it may deem fit to impose or require the EIA to be resubmitted after such modifications as may be stipulated, or reject the project being contrary to environmental objectives. As per section 12(3) every review of EIA was to be carried out with public participation. Section 12(4) relates to the communication of the approval and contains the deeming clause regarding approval if the review was not completed within 4 months. Section 12(5) relates to the extension of the period of four months if the nature of project so warrants.
' Section 12 (6), is the most important provision which is reproduced hereunder for ready reference: "The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as my be prescribed".
The above provisions of section 12(6) make it abundantly clear that the provisions of subsections
(1) to (5) of section 12 have been made dependent upon the categorization of the projects and the manner as may be prescribed. So section 12 would be applicable only to the projects and in the manner as may be prescribed by the regulations. The legislature in its wisdom inserted this provision so as to save the citizens from exploitation by the Agency in each and every case. This section thus cannot be read in isolation and its applicability depends on the regulations to be framed for the purpose.
7. Section 33 of the PEP Act 1997 (as amended in 2012) empowers the Provincial Agency to make regulations and for better appreciation of the legal proposition we would like to reproduce the same as under;
33. Power to make regulations.---(1) For carrying out the purposes of this Act, the Provincial Agency may, by notification in the official Gazette and with the approval of the Government, make regulations not inconsistent with the provisions of this Act or the rules made thereunder.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for-
(a) submission of periodical reports, data or information by any Government agency, local authority or local council in respect of environmental matters;
(b) preparation of emergency contingency plans for coping with environmental hazards and pollution caused by accidents, natural disasters and calamities ;
(c) appointment of officers, advisers experts, consultants and employees;
(d) levy of fees, rates and charges in respect of services rendered, actions taken and schemes implemented;
(e) monitoring and measurement of discharges and emissions;
(f) categorization of projects to which, and the manner in which, section 12 applies;
(g) laying down of guidelines for preparation of initial environmental examination and environmental impact assessm ent and Development of procedures for their filing, review and approval;
(h) providing procedures for handling hazardous substances; and
(i) installation of devices in, use of fuels by, and maintenance and testing of motor vehicles for control of air and noise pollution.
' A careful analysis of the above provisions of the Act ibid shows that in this section the words 'Provincial Agency' have been used and as per definition clause the word 'Government' means Government of Punjab and the words 'this Act' denote the Punjab Environmental Protection Act promulgated in 2012. So the regulations have to be made as required by sub-clause (f) of section 33(2) by the Provincial Agency with the approval of the Government of Punjab to carry out the purposes of Punjab Environmental Protection Act. From the language of the above section it is abundantly clear that PEPA Review of IEE and EIA Regulations 2000 are inconsistent with the above provision of the amended Act because the said regulations were never made under the Punjab Environmental Protection Act 2012 and neither the said regulations were made with the approval of the Government of Punjab nor they were made by the Provincial Agency under the above Act which came into force on 18.04.2012. We are of the view that the Provincial Agency was bound to make regulations which may not be inconsistent with the provisions of the new enactment or the amended Act. There can be absolutely no escape for the Provincial Agency from this legal obligation to make and notify its own regulations for review of IEE and EIA as required by the aforementioned provisions of section 33(2)(1) of the Act ibid.
8. The learned Law Officer was directed by this Tribunal to seek instructions from the Director General of the Provincial Agency and inform this Tribunal as to whether any regulations for categorization of the projects and the manner in which section 12 applies have been made under section 33(2)(f) of the Punjab Environmental Protection Act promulgated in 2012. The learned Law Officer frankly conceded that no such regulations have so far been made and notified by the Provincial Agency with the approval of the Government of Punjab and the Federal Regulations i,e, PEPA Review of IEE and EIA Regulations 2000 are being followed as the Provincial Agency is of the view that the said regulations were protected under Article 270-AA of the Constitution of Islamic Republic of Pakistan. This Tribunal is of the view that the protection under Article 270-AA was not forever and it could be claimed till the amendment, repeal or alteration of the statue. Admittedly as required by the 18th amendment of the Constitution the Provincial Legislature enacted the Punjab Environmental Protection Act in 2012 making certain modifications in the Federal statue and after this enactment, the rules and regulations had to be framed under the amended Act. Merely by retaining the year 1997 with the new enactment would not give retrospective effect to the new legislation made by the province. The other provinces have enacted their own Environmental Protection Acts and the actual year of new enactment is mentioned therein e.g. The Balochistan Environmental Protection Act 2012, the Sindh Environmental Protection Act 2014 and the Khyber Pakhtunkhwa Environmental Protection Act 2014. After the 18th amendment in the Constitution of Islamic. Republic of Pakistan the provinces were required to make their own legislation for Environmental Protection having become a provincial subject. Sometimes a question is also raised as to how the amendment could be made by the provincial legislature in the Federal statute when Pakistan Environmental Protection Act 1997 has not been repealed as yet by the federation.
8(sic.) In the light of the above discussion this Tribunal is of the view the Federal Regulations i,e, PEPA Review of IEE. And EIA Regulations 2000 are now meant for. The Federal Agency and not for the Provincial Agency. The said regulations could be adopted by the Provincial Agency after necessary modifications by giving it legal cover but neither the same were modified and adopted nor any regulations as required by section 33(2)(f) of the amended Act were made and notified with the approval of the Government of Punjab.
' For further clarification of the matter some relevant provisions of the PEPA Review of IEE and EIA Regulations 2000 are reproduced hereunder:
1. Short title and commencement
(1) These regulations may be called the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000.
(2) They shall come into force at once.
2. Definitions
(1) In these regulations, unless there is anything repugnant in the subject or context -
(a) "Act" means the Pakistan Environmental Protection Act, 1997 (XXXIV of 1997);
(b) "Director-General" means the Director-General of the Federal Agency;
(c) "EIA" means an environmental impact assessment as defined in section 2(xi);
(d) "IEE" means an initial environmental examination as defined in section 2(xxiv); and
(e) "section" means a section of the Act.
(2) All other words and expressions used in these regulations but not defined shall have the same meanings as are assigned to them in the Act.
3. Projects requiring an IEE ' A proponent of a project falling in any category listed in Schedule I shall file an IEE with the Federal Agency, and the provisions of section 12 shall apply to such project.
4. Projects requiring an EIA ' A proponent of a project falling in any category listed' in Schedule II shall file an EIA with the Federal Agency, and the provisions of section 12 shall apply to such project.
5. Projects not requiring an IEE or EIA
(1) A proponent of a project not falling in any category listed in Schedules I and II shall not be required to file an IEE or EIA: ' Provided that the proponent shall file -
(a) an EIA, if the project is likely to cause an adverse environmental effect;
(b) for projects not listed in Schedules I and II in respect of which the Federal Agency has issued guidelines for construction and operation, an application for approval accompanied by an undertaking and an affidavit that the aforesaid guidelines shall be fully complied with.
(2) Notwithstanding anything contained in sub-regulation (1), the Federal Agency may direct the proponent of a project, whether or not listed in Schedule I or II, to file an IEE or EIA, for reasons to be recorded in such direction: ' Provided that no such direction shall be issued without the recommendation in writing of the Environmental Assessm ent Advisory Committee constituted under Regulation 23.
(3) The provisions of section 12 shall apply to a project in respect of which an IEE or EIA is filed under sub-regulation (1) or (2).
6. Preparation of IEE and EIA
(1) The Federal Agency may issue guidelines for preparation of an IEE or an EIA, including guidelines of general applicability, and sectorial guidelines indicating specific assessment requirements for planning, construction and operation of projects relating to particular sector.
(2) Where guidelines have been issued under sub-regulation (1), an IEE or EIA shall be prepared, to the extent practicable, in accordance there with and the proponent shall justify in the IEE or EIA any departure there from.
7. Review Fees ' The proponent shall pay, at the time of submission of an IEE or. EIA, a nonrefundable Review Fee to the Federal Agency, as per rates shown in Schedule III.
8. Filing of IEE and EIA
(1) Ten paper copies and two electronic copies of an IEE or EIA shall be filed with the Federal Agency.
(2) Every IEE and EIA shall be accompanied by -
(a) an application, in the form prescribed in Schedule IV; and
(b) copy of receipt showing payment of the Review Fee.
9. Preliminary scrutiny
(1) Within 10 working days of filing of the IEE or EIA, the Federal Agency shall-
(a) confirm that the IEE or EIA is complete for purposes of initiation of the review process; or
(b) require the proponent to submit such additional information as may be specified; or
(c) return the IEE or EIA to the proponent for revision, clearly listing the points requiring further study and discussion.
(2) Nothing in sub-regulation (1) shall prohibit the Federal Agency from requiring the proponent to submit additional information at any stage during the review process.
10. Public participation
(1) In the case of an EIA, the Federal Agency shall, simultaneously with issue of confirmation of completeness under clause (a) of sub-regulation (1) of Regulation 9, cause to be published in any English or Urdu national newspaper and in a local newspaper of general circulation in the area affected by the project, a public notice mentioning the type of project, its exact location, the name and address of the proponent and the places at which the EIA of the project can, subject to the restrictions in subsection (3) of section 12 be accessed.
(2) The notice issued under sub-regulation (1) shall fix a date, time and place for public hearing of any comments on the project or its EIA.
(3) The date fixed under sub-regulation (2) shall not be earlier than 30 days from the date of publication of the notice.
(4) The Federal Agency shall also ensure the circulation of the EIA to the concerned Government Agencies and solicit their comments thereon.
(5) All comments received by the Federal Agency from the public or any Government Agency shall be collated, tabulated and duly considered by it before decision on the EIA.
(6) The Federal Agency may issue guidelines indicating the basic techniques and measures to be adopted to ensure effective public consultation, involvement and participation in EIA assessment.
11. Review
(1) The Federal Agency shall make every effort to carry out its review of the IEE within 45 days, and of the EIA within 90 days, of issue of confirmation of completeness under Regulation 9.
(2) In reviewing the IEE or EIA, the Federal Agency shall consult such Committee of Experts as may be constituted for the purpose by the Director-General, and may also solicit views of the sectorial Advisory Committee, if any, constituted by the Federal Government under subsection (6) of section 5.
(3) The Director-General may, where he considers it necessary, constitute a committee to inspect the site of the project and submit its report on such matters as may be specified.
(4) The review of the IEE or EIA by the Federal Agency shall be based on quantitative and qualitative assessm ent of the documents and data furnished by the proponent, comments from the public and Government Agencies received under Regulation 10, and views of the committees mentioned in sub-regulations (2) and (3) above.
12. Decision On completion of the review, the decision of the Federal Agency shall be communicated to the proponent in the form prescribed in Schedule V in the case of an IEE, and in the form prescribed in Schedule VI in the case of an EIA.
13. Conditions of approval
(1) Every approval of an IEE or EIA shall, in addition to such conditions as may be imposed by the Federal Agency, be subject to the condition that the project shall be designed and constructed, and migratory and other measures adopted, strictly in accordance with the IEE/EIA, unless any variation thereto have been specified in the approval by the Federal Agency.
(2) Where the Federal Agency accords its approval subject to certain conditions, the proponent shall-
(a) before commencing construction of the project, acknowledge acceptance of the stipulated conditions by executing an undertaking in the form prescribed in Schedule VII;
(b) before commencing operation of the project, obtain from the Federal Agency written confirmation that the conditions of approval, and the requirements in the IEE/EIA relating to design and construction, adoption of migratory and other measures and other relevant matters, have been duly complied with.
(the underlining is ours)
' The Provincial Agency figures nowhere in these Regulations. So the aforementioned provisions reveal that these regulations could not be utilized by the Provincial Agency being inconsistent with the amended Punjab Environmental Protection Act.
9. The Sindh EPA has already made "The Sindh Environmental Protection Agency (Review of Initial Environmental Examination and Environmental Impact Assessment) Regulations 2014" and they have amended the Schedules thereto so as to include the brick kiln and several other projects according to their need and circumstances but the Punjab Environment Protection Agency has failed to do the needful and the regulations under the amended Act as required by section 33(2)(f) have not been made and notified as yet with the result that legal complications are arising on daily basis. Even the criteria laid down in section 23 of Punjab General Clauses Act 1956 is not fulfilled for continuation of the said regulations as no Act of Punjab has been repealed and re-enacted.
Moreover the said regulations are inconsistent with the Punjab Environmental Protection Act. In spite of pointing out the short comings by this Tribunal through various judgments the Agency could not improve its working to fulfill the legal requirements under the amended Act. Even the constitution of the Provincial Agency itself as required by section 5 of the amended Act is being questioned as previously the Agency was created under section 8 of the Pakistan Environmental Protection Act, 1997 but the said section had been omitted in the Punjab Environmental Protection Act in 2012 by the Provincial Legislature. The KPK, Environmental Protection Act 2014 has given the Agency a legal cover by inserting a deeming clause in section 5(1) of their Act whereby it has been provided that the Agency already established under PEP Act 1997 shall be deemed to have been established under this Act to exercise the power and perform the functions assigned to it under the provisions of this Act and the rules made thereunder.
10. In absence of any regulations of the Provincial Agency for review of IEE and EIA the grants, refusals and cancellation of the Environmental Approvals are questionable and a big question mark is put to the working of the Provincial Agency. In spite of lapse of more than 4 years after the promulgation of the amended PEP Act on 18.04.2012 the Provincial Agency could not fulfill its legal obligations for framing of PEQS, necessary Rules and Regulations under the new enactment as was required by it. Whenever asked by this Tribunal, the Agency has been taking the stance that the regulations for review of IEE and EIA are under process but nothing substantial has been done so far.
11. In the light of the above discussion we are of the view that the impugned order/approval is without jurisdiction and not sustainable in the eye of law. Although the Agency claimed to have borrowed the provisions of the Federal Agency's Regulations but para 9 of the impugned approval relating to cancellation of approval without notice are not even in consonance with PEPA Review of.
IEE and EIA Regulations 2000 (though the same are not applicable). The condition of observing NEQS is also inconsistent with the provisions of Punjab Environmental Protection Act. The impugned order/approval contains no clear finding of the Provincial Agency that the project had no adverse environmental impact so as to justify the approval of IEE. The imposing of 26 conditions impliedly reveal that the Agency was conscious of the fact that the project may have off-site environmental impact otherwise imposition of such conditions while allowing the IEE was quite unwarranted. The impugned order was also allegedly violative of the building by-laws of Gulberg Town which require the submission of EIA for construction of a hotel.
12. In these circumstances the appeal is allowed and impugned order dated 07.11.2014 is hereby set aside. The Provincial Agency is directed to frame its own regulations as has been done by the Sindh EPA to fulfill its legal obligations as required by section 33(2)(f) of the Act ibid without any further loss of time so that a legal forum for proponents for filing IEE and EIA is made available at the earliest.
' 14(sic.) The respondents No, 4 shall be at liberty to move afresh for Environmental Approval as soon as the forum for review of IEE and EIA is available.