Brief facts of the case are that RB Poultry farm No, 1 was visited by PW-1 Naveed Ahmad Inspector (Environment) on 01st October 2011 and during inspection he found violation of section 11 and section 12 of PEPA 1997 (as amended in 2012). He prepared SIR Ex-PA. Respondent Rai Mansib Ali is the owner of unit and unit is situated at 10 Km Pindi Das Road Muridkay District Sheikhupura. Unit is surrounded by Agricultural land. It was established on 02 acres in 2008 without any environmental approval from EPA with capacity of 5000 chicks. The waste of the unit is used in the fields as manure. Regarding environmental impact it was observed that the waste of chicks and dead bodies of chicks emit bad smell causing adverse affect on the environment.
2. Notice of personal hearing was issued vide Ex-PF dated 13.03.2014 for 07.04.2014. It was observed in the notice that due to survey it has been established that; "1. Your Poultry Farm produces foul odour, nuisance and causes adverse environmental effects in the locality.
2. There is no proper management system for the disposal of waste of your poultry farm
3. You have established a Poultry Farm without obtaining environmental approval which is a violation of section 12 of Punjab Environmental Protection Act, 1997 (as amended in 2012)"
3. The second hearing notice Ex-PG is dated 15.04.2014 for 05.05.2014. The hearing was attended by the respondent. He submitted written reply which was lacking scientific evidence and his stance did not negate the allegations. Environmental Protection Order Ex-PD was issued on 02.06.2014 directing the respondent to ensure compliance of the following measures within 30 days; i. "Arrange System for regular disposal of contaminated or wet litter immediately when generated to avoid odour. ii. Ensure compliance of guidelines of Poultry Research Institute, Livestock Dairy Development Department and LG&CD. iii. Dispose of dead birds in a proper scientific way. iv. Take measures to regularize violation of Section 12 from competent forum regarding establishment of your unit."
4. For checking the compliance EPO the site was visited by the Inspector Naveed Ahmad and Field Assistant Hamid Ali on 26.07.2014 and Compliance Status Report Ex-PE was prepared as under; Sr.
No.Environmental Protection Order (EPO)Compliance StatusRemarks
1. Arrange System for regular disposal of contaminated or wet litter immediately when generated to avoid odour.Non ComplianceThe Management of the Poultry Farm has not arranged any system of avoid odour.
2. Ensure compliance of guidelines of Poultry Research Institute, Livestock Dairy Development Depart-ment and LG&CDNon ComplianceThe management of poultry farm has not complied with guidelines of poultry Research Institute, Live stock Dairy Development Department and LG&CD
3. Dispose of Dead Birds in a proper scientific wayNon ComplianceDead Birds are not disposed of in scientific way.
4. Take measures to regularize violation of section 12 from competent forum regarding establishment of your unit.Non ComplianceThe management of the poultry farm has not taken measures to regularize violation of section 12.
Therefore the complaint Ex-PH was filed on 10.03.2017 before this Tribunal.
5. Respondent/accused/owner of the unit was summoned. Charge was framed by this Tribunal on 01.03.2018 for running the poultry farm without arranging system for regular disposal of contaminated or wet litter, proper disposal of dead birds; foul odour etc. and without approval in violation of section 12 and section 16 of the ACT culminating into punishment under section 17(1) of PEPA 1997 (as amended in 2012). The respondent did not plead guilty to charge and claimed trial and prosecution examined the following witnesses in support of charge.
PW-1 Naveed Ahmad Inspector Sheikhupura He prepared the SIR Ex-PA served the notice of Personal hearing and EPO and their reports are Ex-PC to Ex-PD. He also prepared the Non-Compliance Status Report Ex-PE.
PW-2 Imtiaz Rasool Alvi Deputy Director (Environment) Sheikhupura He prepared the covering letters of EPO and Compliance status report.
PW-3 Usman-ul-Haq Assistant Director (IT) EPA Punjab He issued the notice of personal hearing Ex-PF and Ex-PG PW-4 Mian Ijaz Deputy Director (Legal) EPA Punjab He signed the complaint Ex-PH PW-5 Mian Sami Deputy Director (R&D He conducted the hearing of the respondent and issued EPO Ex-PD
6. On 16.05.2018 learned DPG Amanat Ali Bhatti closed the evidence and statement of the accused was recorded under section 342, Cr.P.C. All the incriminating material produced by the prosecution was put to accused and he denied the same. In response of question No, 8 as to why complaint against him and why PWs have deposed against him, his reply was as under: Inspector demanded illegal gratification from me. I am chairman of Pakistan Poultry Association.
The cost of my unit is less than 10 million and I am conducting this business by observing all the legal formalities. I have committed no offence.'
He however opted not to produce defense or appear on oath under section 340(2), Cr.P.C. as his own witness to disprove the allegations.
7. Learned DPG and Learned law officer have sum up the case of the prosecution and submit that SIR is dated 01.10.2011 and after hearing the respondent EPO was issued on 02.06.2014. Non- compliance of the EPO was reported on 26.07.2014. Submits that respondent has not adopted remedial measures as this tribunal passed an order and fresh SIR was requisitioned. Survey was conducted on 11.09.2017 which is part of the record. There are three sheds and each shed has the capacity of 28000 chicks. Cost of project is 21 to 22 Million approximately. Submits that SIR reveals that solid liquid and gaseous odour are generated during operational phase of the unit. Solid waste is comprised of rice husk, bird reaping and Mortal Birds etc. Liquid Waste is used for irrigation purpose while air is being emitted into atmosphere. Elaborated his arguments that the unit is causing adverse environmental effect as offensive odour is observed. Submits that the prosecution through different categories of evidence has proved the charge of causing adverse environmental impacts and the exemplary punishment may kindly be awarded.
8. Learned defense counsel argued that SIR was made on 01.10.2011 whereas Punjab Environmental Protection Act was enacted on 18 April 2012. The SIR was conducted under section 8 of Pakistan Environmental Act and in the new Act of Punjab the section 8 was omitted and there was no saving clause. Submits that no private person verified the bad odour nor the Inspector recorded any such statement. Submits that the second direction of the EPO cannot be complied with as there was no such direction in the hearing notice and same is the position regarding disposal of dead birds and that the EPO is devoid of reasoning in violation of section 24 of General Clauses Act. Lastly argued that non compliance was checked before the stipulated period and submits that the prosecution has failed to prove the case against the respondent beyond shadow of doubt.
9. In this case the point for determination is whether the respondent unit requires environmental approval and whether the directions of the EPO were complied with by the respondent. It is pertinent to mention here that on 04.06.2018 while dictating judgment the Tribunal perused the statement of PW-1 the're are two units RB Poultry Farm 1 i,e, subject matter of instant complaint and RB-2 the connected complaint in the connected complaint during cross-examination of PW-1 Tribunal observed that at page 17 of the complaint in compliance status report there is apparent tampering of date from 26.07.2014 to 28.07.2014 and that observation was also reflected in the instant complaint. There was apparent ambiguity in the statement of the PW-1 vis-a-vis Compliance Status Report Ex-PE therefore the Tribunal recalled and re-examined PW-1 on 21.06.2018 to remove ambiguity who stated that he visited both the poultry farms on 26.07.2014 and prepared the Non Compliance Report.
10.PW-1, Naveed Ahmad Inspector inspected the poultry farm on 01.10.2011 and prepared the SIR Ex-PA. He also served the notices for personal hearing and EPO Ex-PB to Ex-PD and then checked the compliance status on 26.07.2014. In cross-examination he admitted that the poultry farm is situated in agricultural land however there is no abadi within distance of 2 km around poultry farm.
He further admitted that there were no notified standards of smell but he felt smell inside or outside of the poultry farm due to dead chicks found lying near the boundary wall of the poultry farm. He received no complaint of illness of the residents of abadi. He admitted he visited the unit before 30 days to check the compliance of EPO and inter-se distance between Poultry Farm 1 and 2 is 4-5 acres. He had not mentioned the cost of the project in the SIR.
11.PW-2 is a formal witness, prepared covering letters of notices of personal hearing, EPO and compliance status report. PW-3 is also formal witness. He issued notices for personal hearing. PW-4 is Mian ljaz Deputy Director (Legal). In cross-examination he admitted that the complaint was drafted by the staff and did the vetting. In para 2 Mian Akhtar is mentioned as owner of the unit while in prayer clause Rai Mansib Ali is mentioned as owner of the unit. He admitted that the facts of the case were such nature that compliance can be checked even before 30 days as mentioned in EPO as there is violation of section 12 of PEPA 1997 (as amended in 2012). He admitted that EPA has no standard to check the cost of poultry unit as it is question of fact and according to SIR, total area of poultry farm and number of birds the EPA approximately calculate the cost of the unit.
12.Mian Sami Deputy Director PW-5 who issued EPO admitted in cross-examination that the scientific evidence were not annexed with SIR and that EPA has no rules to ensure compliance of measures stated as measure 2 of para 3 of the EPO. The third direction of disposal of dead bird was mentioned in the EPO. He also admitted that the EPA has no smell standards.
13. The charge in this complaint was framed against the owner under section 12 i,e, establishment of this poultry farm without obtaining NOC and for failure to comply with the directions contained in the EPO thus punishable under section 17(1) of the PEP Act. It is admitted fact that the unit is established on agricultural land. There were allegations of foul odour, nuisance and there was no proper management system for disposal of waste of the poultry farm and lastly that the poultry farm was established without obtaining environmental approval which is violation of section 12 of the PEPA 1997 (as amended in 2012) again punishable under section 17(1) of PEP Act. The unit was visited on 26.07.2014 to check the compliance and already mentioned above the directions were not complied with by the respondent. It is the case of the respondent that 30 days time was given in the EPO to ensure compliance and as per prosecution case the EPO was served on 28.06.2014 whereas compliance was check on 29th day i,e, on 26.07.2014 therefore the non-compliance was made without awaiting full 30 days period.
14.Fresh SIR was made under the order of this tribunal by EPA on 09.09.2017 and as per report total capacity of each shed is 28000 chicks and project cost is 21-22 million approximately and unit is established on agricultural land which shows that even in 2017 the respondent had not complied with the directions of the EPO. Therefore the objection of the defense that compliance of EPO was check before 30 -days has no relevance and has not created any great impact in this case.
15.It is and admitted fact that the EPO was not challenged by the respondent through appeal before this Tribunal or any other forum. The SIR Ex-PA was made on 01.10.2011. The unit was established on agricultural land without environmental approval. In 2011 the capacity of the shed was 50000 chicks. The number of chicks can easily determine the quantity of animal waste and 50000 chicks mean production of huge amount of waste contains bad smell and adverse environmental affect. The waste of chicks and bodies of chicks were found emitting bad smell. The waste of the unit is used in field as manure. The compliance of the EPO was checked on 26.07.2014 and even after 3 years of SIR there was non-compliance. The dead birds are not disposed of in scientific ways. The management had not taken any measures to regularize the unit in term of section 12.
16. Construction of a poultry shed in contravention of law is a major issue. In case of complaint by the people of the vicinity of environmental degradation by such unit Environmental Protection Agency carry out a site inspection of the poultry farm and prepare a report (SIR). These sheds are constructed on agriculture land near to human settlements (in violation of the requirements of the law which prescribes a minimum of 500 meter distance) and this commercial/industrial activity is undertaken without any permission or conversion of the status of the land. Word Poultry is not even defined in the Act therefore Ostrich Farming and such other types of bird farming do not fall within the ambit of this Environmental Protection Act (PEPA 2012). EPA has not framed rules or regulations to carry out investigation of the complaints against environmental degradation. Poultry sector is an important and vibrant segment of agriculture in Pakistan with a significant contribution to the national GDP (1.3%). Commercial poultry production in Pakistan started in the 1960's and has been providing a significant portion of daily proteins to the Pakistani population ever since. This white meat is cheaper as compared to red meat and abundantly used in daily domestic consumption, marriages and other ceremonies but some of these poultry farms are a source of odour and smell as well as flies, rodent and other pests. These can give rise to diseases such as cholera, typhoid, malaria and dengue. Furthermore improper disposal of waste water can pollute the water and soil. The proponent of a project must provide a detailed dead birds management plan which should not adversely impact the environment. The close proximity of the poultry farm from human settlement is a cause of great concern. Flies, rodents and other pests are an additional menace to the local area, its health and well being. Their presence is mainly related to the manner in which the feed is managed and stored for which proper areas must be made and control mechanisms put in place to avoid flies and other pests. Furthermore water pollution and use of pesticides will damage the surface water and ground water and give rise to water borne diseases. Other serious impacts on the environment are the disposal of waste water and dead birds. Both issues call for proper measures to be adopted to ensure minimum impact on the environment.
17.There are no notified standards in Environmental Protection Agency (EPA) to determine cost of the unit. To deal with this situation this tribunal seeks guidance from existing jurisprudence. Under the circumstances the EPA must in the first instance look at the impact a project has on the environment, before it considers the cost of the project. The IEE and EIA Regulations of 2000 provides for the instances when an IEE is to be filed, however, Section 12 clearly mandates that if a project has an adverse impact on the environment an EIA must be filed. Adverse effect on the environment has been defined in Section 2(i) of the Act.
18.In Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983), a Full Bench of Hon'ble Lahore High Court held that EIA is nature's first man-made check post, nothing adverse to the environment is allowed to pass through. This unit has an adverse impact on environment as there is proper system for regular disposal of contaminated or wet litter immediately when generated to avoid odour and scientific disposal of dead birds in a proper scientific way.
19. There are admitted facts that the unit is established on agricultural land and there was no management plan for disposal of dead birds. Unit was established without environmental approval which is violation of section 12 of the PEPA 1997 (as amended in 2012) again punishable under section 17(1) of PEP Act. There were allegations of foul odour, nuisance. The unit was visited on 26.07.2014 to check the compliance and already mentioned above the directions were not complied with by the respondent. Defense remained unable to create any dent in the prosecution case. Therefore the prospection has proved the case against the accused who is the owner of the unit beyond shadow of reasonable doubt.
20.The accused has taken the stance that the inspector demanded illegal gratification from him as he is the chairman of Pakistan Poultry Association and the cost of the unit is less than 10 million the accused has not proved these points thorough any cogent evidence. He had not made any complaint before Anti Corruption Establishment against the inspector and field staff for such illegal gratification. Therefore the defense of the accused is not worthy of credence same out rightly rejected.
21. Therefore the accused/respondent if found guilty in offence under section 12 of the PEPA 1997 (as amended in 2012) punishable under section 17(1) of the PEPA 1997 (as amended in 2012) and convicted as such: he is sentenced to pay fine of Rs, 2,50,000/- (Rupees Two Lacs and Fifty Thousand) in default of payment of fine 6 months' S.I.
22.The convict is further found guilty under section 16 of PEPA 1997 (as amended in 2012) for non compliance of the direction of EPO punishable under section 17(1) of PEPA 1997 (as amended in 2012) and convicted as such: he is sentenced to pay fine of Rs, 2,50,000/- (Rupees Two Lacs and Fifty Thousand) in default of payment of fine 6 months' S.I.
23.The convict/respondent is given 30 days time to pay the amount of fine and produce paid challan otherwise conviction warrant will be issued to lodge him in jail to serve of the sentenced for non-payment of fine. Registrar will place the file before this tribunal after 30 days to ensure the deposit of fine. Further in such scenario proceedings under section 386, Cr.P.C. will also be invoked.
24.Section 17 of the PEPA 1997 (as amended in 2012) although does not provide punishment in default of payment of fine but this Tribunal will place reliance on section 25 of General Clauses Act 1897 which is reproduced as under; 25.Recovery of fine Sections 63 to 70 of Pakistan Penal Code and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulations, rule or bye-law unless the Act, Regulation, rule or bye-law contains an express provision to the contrary.
25. This section allows this Tribunal to apply sections 63 to 70 of Pakistan Penal Code in such situation. Now section 67 of Pakistan Penal Code 1860 is applicable here which is reproduced as under:
67. Imprisonment for non-paym ent of fine. When offence punishable with fine only If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say for any terms not exceeding two months when the amount of the fine shall not exceed fifty rupees. and for any term not exceeding four months, when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.
26. Convict has been supplied copy free of cost to enable him to file an appeal before honourable appellate forum. The present file be consigned to the record room by the ahlmad after due compilation.