1. AYESHA.A. MALIK, J. --- Through this Petition, the Petitioner has impugned order dated 11.1.2017 issued by Respondent No, 5 whereby the Deputy Director, Environmental Protection Agency, Punjab, Gujranwala ordered for the sealing of the plant of the Petitioner in order to implement the Environmental Protection Order issued on 6.11.2015.
2. The facts of the case are that the Petitioner runs a business in the name of Ali Steel Works in Allama lqbal Colony, Street No, 2, Gujranwala. The residents of the area filed a complaint against the business of the Petitioner on the ground that it causes air pollution as well as noise pollution and vibration which is hazardous to the environment and to the health of the residents of the area.
2. The District Officer (Environment), Gujranwala inspected the unit of the Petitioner on 14.5.2015 and found that it had been established without obtaining the environment approval from the Environment Protection Agency, Punjab ("EPA") and that the noise pollution exceeded the National Environment Quality Standards ("NEQS") limits. The Petitioner was issued Environmental Protection Order ("EPO") on 6.11.2015 under Section 16 of the Punjab Environmental Protection Act, 1997 ("Act") after being given two opportunities, one on 11.6.2015 and the other on 22.6.2015 to controvert the allegations raised against him. Since the Petitioner was unable to do so, EPO was issued on 6.11.2015.
3. The EPO stated that the Petitioner should, "Immediately stop operation of your unit till its regularization from competent forum to ensure compliance of Section 12 of Punjab Environmental Protection Act, 1997 (amended 2012).
4. No appeal was filed against the EPO and the Petitioner continued its business without compliance of the EPO. Thereafter the complainant filed WP No, 31185/2016 in which a direction was issued on 5.10.2016 that he should avail remedy under Section 17 of the Act for compliance of the EPO. In the meanwhile a follow up inspection was carried out and it was found that the' Petitioner had not complied with the EPO, hence the Deputy Director, Environmental Protection Agency, Punjab, Gujranwala while invoking the powers under Section 6(1)(a) of the Act sealed the unit of the Petitioner on 11.1.2017. Hence this Petition. a.The basic issue, before the Court, as raised by the Petitioner is the power of the Deputy Director Environmental Protection Agency Punjab Gujranwala/Respondent No, 5 to pass a sealing order.
5. Learned counsel for the Petitioner argued that Respondent No, 5 did not have any power to seal the unit of the Petitioner. The power of sealing lies exclusively with the Environmental Protection Tribunal ("Tribunal") under Section 17(5)(c) of the Act. Learned counsel further argued that the order of sealing was done without following due process and without notice to the Petitioner.
6. Learned counsel further submitted that the complainant filed WP No, 31185/2016 before the Court wherein a direction was issued on 5.10.2016 that he should approach the Tribunal, therefore the act of sealing was in derogation to the said orders of this Court. Learned counsel places reliance on the case titled Messrs Mega Steel Mills Private Limited v. Government of Punjab through Secretary, Environmental Protection Department, Punjab, Lahore and 6 others (2016 CLC 1095) in support of his contentions.
4. Learned Law Officer argued that sufficient notice was given to the Petitioner before issuance of the EPO and the Petitioner was unable to refute the allegations that the noise level exceeded the NEQS limits. Furthermore despite the EPO, the Petitioner made no effort to control the noise and vibration level and continued with his business. Learned Law Officer further argued that the EPO dated 6.11.2015 issued under Section 16 of the Act was not complied with and on 11.1.2017 an order was passed in terms of the powers vested with the EPA to seal the unit of the Petitioner. Learned Law Officer argued that the EPA has power to implement its orders under Section 16(3) read with Section 16(2) of the Act. She argued that when a person does not comply with the order of the EPA, the EPA can initiate action under the Act and can also take necessary measures to ensure that the direction given in the EPO is implemented. In this case an immediate stop order was passed on 6.11.2015, subsequent inspections were carried out and it was seen that the Petitioner was not compliant with the EPO. Sufficient warnings were given to him, opportunity of hearing was provided and ultimately in order to prevent the continuation of the environmental hazardous, sealing order was issued on 11.1.2017. Learned Law Officer has placed reliance on the case titled Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983) to urge the point that right of appeal is provided for under the Act and of a second appeal is also available before a Division Bench of this Court. However, the Petitioner has failed to avail the said remedy provided for under the Act hence the instant Petition is not maintainable.
7. 5.Arguments heard and record perused.
8. 6.On the issue of maintainability the question before the Court is with reference to the power exercised by the EPA under Section 16 of the Act. Learned Law Officer further argued that since the remedy of appeal is available to the Petitioner, the instant Petition is not maintainable. However given that the question involved relates to interpretation of Section 16 and the powers of the EPA versus power of the tribunal to enforce the EPO, the remedy of appeal is not efficacious. Hence the instant Petition is maintainable.
9. 7.The basic question raised in this Petition is whether the EPA has the power to seal a unit which is not compliant with the EPO. Section 5 of the Act authorizes the Director General to carry out all powers and functions of the EPA and Section 5(5) of the Act allows the Director General to delegate any of his powers. By way of Notification No, 176/F-02/LS dated 21.08.2007 and 503/F-02(V- II)/LS/EPA dated 27.02.2008, the powers and functions under the EPA were delegated by the Director General with respect to the different provisions of the Act. The Notification mentioned above delegates powers to the Deputy Directors in matters pertaining to Section 16 of the Act. Section 16 of the Act being the relevant provision is reproduced hereunder:-- Environmental protection order. --- (1) Where the Provincial Agency is satisfied that the discharge or emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or the handling of hazardous substance, or any other act or omission is likely to occur, or is occurring, or has occurred, in violation of any provisions of this Act, rules or regulations or of the conditions of a licence, 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 may be specified in the order.
(2) In particular and without prejudice to the generality of the foregoing power, such measures may include---
(a) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect; installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission; (c)action to remove or otherwise dispose of the effluent, waste, air pollutant, noise, or hazardous substances; and (d)action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission, or as close to such conditions may be reasonable in the circumstances, to the satisfaction of the Provincial Agency.
(3) Where the person, to whom directions under sub-section (1) are given, does not comply therewith, the Provincial Agency may, in addition to the proceedings initiated against him under this act or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deem necessary and may recover the costs of taking such measures from such person as arrears of land revenue.
10. 8.Section 16 of the Act governs the procedure and powers related to an EPO. An EPO is a written order that is designed to protect the environment. It is issued to secure compliance by a person who is causing harm to the environment in order to protect human health and the environment. It specifies the sensation 'of the harm and provides for the methods to cure or stop/prevent the harm within a given time frame. Essentially the EPO provides the action that needs to be taken and the time frame during which it must be taken, to rectify the wrong. In terms of Section 16(1) of the Act, the EPA has to satisfy itself that there is discharge or emission of any waste or pollutant or noise in violation of the Act. Once satisfied it must give an opportunity of hearing to the person causing the pollution and can then pass an order directing the person to take necessary measures to cure the problem. However, the EPO can also direct measures requiring immediate action. The measures under Section 16(2) of the Act require instant or emergent action, such as immediate stoppage or immediate control of the equipment or thing causing the pollution or removal or disposal of the hazardous or pollutant substance or action that helps restore the environment to the condition it was in before the pollutant. While the EPO under Section 16(1) of the Act provides for remedial or corrective measures to cure pollution or stop further pollution; Section 16(2) of the Act lays down preventative measures that require immediate action for an immediate effect. Therefore the distinction between Section 16(1) and (2) is essentially that the latter acknowledges the need for immediate action as a necessary response mechanism to imminent threat or irreparable damage to the environment.
11. 9.The vital question is whether the EPA can enforce its orders under the EPO where a person fails to comply with the measures prescribed by. the EPA. In terms Sindh and others, 2015 SCM R 456, cited by the counsel of the Petitioner is not relevant because in the instant petition, the Petitioner has challenged the inquiry proceedings, and it does not involve the question of public importance.
12. 18.It is manifest that a show cause notice has been issued to the Petitioner, and after filing a reply to the same and taking the step in the proceedings, the Petitioner has again opted to file this petition. At the outset, it is important to note that the Petitioner has neither been dismissed nor removed or suspended from the services.
13. 19.This Court is of the opinion that at this stage, initiation of the writ petition under Article 199 of the Constitution, in presence of bar under Article 212 of the Constitution, is unwarranted and premature. Further, as far as the question of delay in initiating the inquiry proceedings by the Respondent No, 2 is concerned, the same is not within the jurisdiction of this Court and is within the jurisdiction of the Service Tribunal under Article 212 of the Constitution.
14. 20.In view of the above and the contents of this petition, the petition being not maintainable is dismissed, being unwarranted and premature.