SYED ARSHAD ALI, J:-The petitioners, who are 38 in number , have invoked the constitutional jurisdiction of this Court with the following prayer:- "It is, therefore, very humbly prayed that this Honourable Court may graciously be pleased to issue directions to the respondents that they may halt the illegal operation of power crushers in the Suraj Galli i.e. village of petitioners, so the fundamental rights of the petitioners in terms of Articles 9 and 14 of Constitution of Pakistan may not infringe any longer.
It is also further prayed that this Honourable Court may also be pleased to issue directions to respondents to take every step, which may protect and preserve the beautiful valley of Suraj Galli from being devastated due to illegal operation of power crushers which are installed therein, as the same is sine qua non for the healthy environment/atmosphere."
2. Brief, but essential facts of the case are that the petitioners, who are the residents of Suraj Galli, Tehsil Khanpur, District Haripur, have raised their concern over the devastating effect on the environment of Suraj Galli due to installation of crushing machines which causes pollutant emissions. It is averred in the petition that before the beginning of 2016 only two (2) crushing machines were operating close to the houses of petitioners and since the working of same was not having any significant environmental impact in the area of petitioners, therefore, their operation was not opposed by the local community. However, due to closure of many power crushers in Margalla Hills, Islamabad pursuant to the decision of august Supreme Court of Pakistan, the aforesaid crushing machines were transformed into power crushers and have been installed in Suraj Galli along with many other new power crushers since then without any permission. It is further averred that the emissions and noise caused by the said crushing machines and blasting activities have adversely affected the environment including the serene atmosphere of the entire surrounding areas. The petitioners have also referred to certain crushing machines which are located near their houses. They have filed number of applications to the local administration as well as Environment Department Khyber Pakhtunkhw a but the said applications have not been responded to.
3. Respondents were put to notice, who appeared and contested the petition by filing their para-wise comments.
Respondent No.1 who is the Deputy Commissioner of District Haripur, in his comments has stated that the petitioners have not mentioned the total number of crushing machines installed/operating along with details of the owners of those crushing machines in their petition, however, only three (03)power crusher machines are operating in Suraj Galli which have already been sealed by the District Administration in collaboration with the Mineral and Industries Department of the Provincial Government. They have further stated that the said operations were carried pursuant to the judgment of august Supreme Court of Pakistan. Whereas, Respondent No.5, Secretary Industries Department, stated in his para-wise comments that there are three (03)stone crusher machines which are registered with it in Suraj Galli, the detail of which are as following;- i. Hazara Stone Crusher. ii. Ansar Majeed Khan Stone Crusher. iii. Gujjar Stone Crusher.
He has also stated that pursuant to the judgment of august Supreme Court of Pakistan operations of the said crusher machines were stopped. Similarly, the Environment Department of Khyber Pakhtunkhwa, Respondents no. 7 & 8, has stated in its para-wise comments that the crushing plants are sealed/non- operational, therefore, the said agency was not in a position to submit the cases against the owners of crushing plants to the Environmental Protection Tribunal. As soon as the crusher machines/plants get functional the agency will conduct post Environmental Protection Order ("EPO") monitoring and submit the case to relevant forum i.e. Environmental Protection Tribunal. However, alongwith the comments they have placed on file their detailed visit reports of all the crushing plants/machines which is elaborated/reproduced as following.
VISIT REPORT OF AL-AMIR ANSAR CONSTRUCTION COMPANY, VILLAGE SURAJ GALLI.
The location of this crushing plant is given as under:-
1. On northern side, it has a plane area.
2. On eastern side, few houses are located within a distance of 200 meters.
3. On western side, it has Mining Mountain covered with small shrubs grown over it.
4. On southern side, it has the main Khanpur road within a distance of 400 meters.
It is recommended in the said report that a residential area is located within 500 meters range of the crushing plant, hence, some alternative site may be selected for the unit, and the proprietor of the plant may be asked to submit detailed Initial Environmental Examination ("IEE") for the project.
VISIT REPORT OF AL- ANSAR CONSTRUCTION COMPANY (NIAZI BORTHER), CRUSH PLANT, PIR DI GHATTI KHANPUR ROAD DISTRICT HARIPUR.
It is recommended in the report that Deputy Commissioner, Haripur may be asked to keep the said crushing plant sealed until the environmental approval is granted by the Environmental Protection Agency.
VISIT REPORT OF LAL FAQEER CRUSH PLANT VILLAGE SURAJ GALLI, KHANPUR ROAD DISTRICT HARIPUR.
According to this report the location of this crushing plant is given as under:- i. On its northern side is a residential area located wherein first house is at a distance of 65 meters from the said site and 2 house is at a distance of 80 meters where after 08 houses are located at a very close distance from each other. ii. On its southern side, Kohi Mera Hills are located. iii. On its eastern side another crushing plant namely Hazara Stone Crusher is situated at a distance of 20 meters and Khanpur road is at a distance of 90 meters from the said site. iv. On its western side agriculture land and hills/mountains are located.
It is also observed in the said report that residential houses will be affected from the dust/air pollution of the said crushing plant. Moreover, dust pollution and blasting which will be carried out for quarrying of hillsnd is the main issue to be raised by the setting of the said project, if not properly managed. Therefore, it was suggested that Agency may ask the owner to install dust collector/air pollution control system and submit its complete specification alongwith a sketch of dust control system to the Agency.
VISIT REPORT OF HAZARA STONE CRUSH PLANT, VILLAGE SURAJ GALLI, KHANPUR ROAD DISTRICT HARIPUR.
The location of this crushing plant is given as under:- i. On its eastern side, it has mining lease area. ii. On its western side complainants' houses are located at distance of about 200 meters and about 20 to 25 houses are located within a distance of about 250 meters. iii. On its southern side, it has its mining lease area. iv. On its northern side, Khanpur road is located adjacent to crush plant.
It is recommended in the said report that Deputy Commissioner, Haripur may be asked to keep the said crushing plant sealed until the compliance of EPO is issued by the Agency.
VISIT REPORT OF JAVED AKHTAR STONE CRUSH PLANT, VILLAGE MASOOM-ABAD, KHANPUR ROAD DISTRICT HARIPUR.
The location of this crushing plant is given as under:- i. On northern and eastern side it has its mining area, mountainous area. ii. On W estern side across the Khanpur road graveyard is located at a distance of 130 meters. iii. On southern side Khanpur road is located at a distance of about 100 meter .
It is recommended in the said report that Deputy Commissioner, Haripur may be asked to keep the said crushing plant sealed until the compliance of EPO is issued by the Agency.
4. Out of all the owners of the crushing plants only Lal Faqeer appeared before the Court and filed an application for his impleadment, which was accordingly accepted and he has also filed his written comments.
5. Arguments of learned counsel for the parties were heard and record of the case perused with their valuable assistance.
6. In the Province of Khyber Pakhtunkhwa there is no effective law governing affairs of the crushing plants except the North West Frontier Province Finance Act, 1995 (herein after referred to as"Act, 1995"). This Act only deals with the registration and issuance of license to crushing plants etc. Pursuant to the Act, 1995, the Government of Khyber Pakhtunkhwa has framed rules known as Khyber Pakhtunkhwa, Power Crushers (Installation, Operation and Registration) Rules, 1998 (hereinafter referred to as the "Rules"). The only rule which governs the subject is Rule 3, which reads as under:- "3. Restriction on grant of license. No license shall be granted for installation of power crusher within a distance of one Kilometer of a strategic location a school, a hospital or a human dwelling."
7. However , the said rule has now been amended through notification dated 25.01.2018, which reads as under:- "3. Restriction on grant of license--(1) No license shall be granted for installation of power crusher within a safe distance of three hundred (300) meters from the strategic location, a school, a hospital or a human dwelling in the rural areas and river bed, whereas in respect of urban area the safe distance shall be maintained as five hundred
(500) meters.
(2) No power crusher shall be installed within a distance of two hundred (200) meters from the major road."
8. It is evident from the record which includes the environmental reports submitted by the Environmental Protection Agency ("EPA")that not only the crushing plants, which are subject matter of this petition, are installed and are operating in violation of the Act, 1995 and the rules made thereunder but the said crushing plants are installed without any permission from the EPA, which was established under the erstwhile Environmental Protection Act, 1997. It is also evident from the record that the said crushing plants have not complied with the National Environmental Quality Standards (NEQS). The petitioners have also placed on file the photographs of the said crushing plants. It is evident from the said photographs that the area on which the crushing plants are installed and operating, is surrounded by green agricultural land and the mountains where the crushing plants are operating is also full of green shrubs. It would not be out of place to say that the said crushing plants are eating up the mountains. Evidently as per the report submitted by the EPA, the mining activities are also carried in the close proximity of certain residential areas. However, not only have the residents of the dwelling houses been affected by the operations of the crushing machines but the said operations have also affected the surrounding mountains.
9. True that owners of the crushing plants have all the rights to undertake economic activities, but not at the cost of the environment. Therefore, if we ignore this lurking danger at this stage it will become such a giant that in the future the state machinery will not be able to cope with the situation. When the state machinery has remained complacent of this alarming situation, the superior courts of the country will be well within their jurisdiction to issue appropriate directions to the responsible government functionary to regulate the menace which will have adverse effect on human life and nature. In this regard we may refer to para 15 of the judgment of the August Supreme Court of Pakistan in Shehla Zia case (PLD 1994 Supreme Court 693) which reads:- "Dr. Pervaz Hasan has also referred to several judgments of the Indian Supreme Court in which issues relating to environment and ecological balance were raised and relief was granted as the industrial activity causing pollution had degraded the quality of life. In Rural Litigation & Entitlement Kendra and others v. State of UP and others (AIR 1985 SC 652) mining operation carried out through blasting was stopped and directions were issued to regulate it.
The same case came up for further consideration and concern was shown for the preservation and protection of environment and ecology. However, considering the defence need and for earning foreign exchange some queries were allowed to be operated in a limited manner subject to strict control and regulations. These judgments are reported in AIR 1987 SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 SC 594. In Shri Sachidan and Pandey and another v. The State of West Bengal and others (AIR 19$7 SC 1109) part of land of zoological garden was given to Taj Group of Hotels to build a five-star hotel. This transaction was challenged in the High Court without success. The appeal was dismissed. Taking note of the fact that society's interaction with nature is so extensive that "environmental question has assumed proportion affecting all humanity", it was observed that:-- "Obviously , if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to re-interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public."
In M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note of the fact that the municipal sewage and industrial effluents from tanneries were being thrown in River Ganges whereby it was completely polluted, the tanneries were closed down. These judgments go a long way to show that in cases where life of citizens is degraded, the quality of life is adversely affected and health hazards are created affecting a large number of people, the Court in exercise of its jurisdiction under Article-184(3) of the Constitution may grant relief to the extent of stopping the functioning of factories which create pollution and environmental degradation."
Similarly the Indian Supreme Court while issuing guidelines for a balance to be maintained between the rights of the people to undertake economic activities and those who could suffer as result of such economic activities has elaborated a basic rule in M.C.Mehta Y. Union of India Court (AIR 1997 SC 734) in the following words, "If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however , protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment."
The said view was reaffirmed in Adeel ur Rehman and others Y. Federation of Pakistan and others (2005 PTD 172) and was followed by the Honourable Lahore High Court in Mazhar Iqbal's Case (2017 CLD 1054) and Muhammad Ayaz's case(2017 CLD 1054).
10. Thus, from material produced before us, it is evident that crushing plants which are installed on the roadside leading to Khanpur Dam are not only causing air pollution but are also eating up the green mountains. It is also evident from the record that the owners of the crushing plants are also carrying mining activities in the mountains through the use of explosive material and the process of blasting is more hazardous to the environment and residents of the surrounding area.
11. Learned counsel appearing on behalf of respondent No.11 has stated that they are ready to comply with all the rules and regulations on the subject and will also follow the standard of National Environmental Quality Standards (NEQS) as issued by the competent authority .
12. In this view of the matter , we will remit this case to Secretary Industry and Commerce of Khyber Pakhtunkhwa to reconsider the licenses issued to various persons under the Finance Act of 1995 after obtaining detailed report from Director General Environment Department and Director General Mines and Mineral Department, which shall include the following issues:-
1. Whether the cutting of mountains in question shall have any adverse ef fect on environment.
2. If the answer of the above issue is in negative then what steps should be taken by the owners of crushing plant to make the crushing plant compliant to environment law and regulations made thereunder, so that the right of the nearby residents are duly protected.
3. Mining through blasting should be regulated and should not be allowed.
4. The needful be done within a period of two months positively till then no crushing plant will operate in the area in question.
13. With these observations, this writ petition is disposed of accordingly.