C.M. No.02/2016 JAWAD HASSAN, J.---Through the instant application the Applicant seeks restoration of C.M.
No.1/2014 filed for restoration of the main appeal which was dismissed due to non-prosecution vide order dated 12.09.2013 which is supported by an affidavit. The instant application is allowed for the reasons mentioned therein and the C.M. No.1/2014 is restored and allowed; resultantly the main appeal is restored to its original number and is fixed for today.
Main Case JAWAD HASSAN, J.---Through this Environment Appeal, the Appellant has called in question the judgment dated 16.07.2008 passed by the Respondent No.2/the Environmental Tribunal, Punjab, Lahore (tile "Impugned Judgment"), whereby the Appellant was imposed fine of Rs.5,000/- and was directed to adopt the certain technical measures to reduce/control the emissions.
2. Brief facts for the disposal of instant appeal are that in October 2002 a complaint was lodged against the Appellant to the Additional Secretary Environment, Punjab alleging therein that the unit (Brick kiln) of the Appellant, which was situated near Chenab College, Chiniot, is making constant cause of damaging the environment by emitting smoke, which results into severe Air pollution. A Report dated 30.12.2002 was submitted and in pursuance of which Environmental Protection Order (the "EPO") dated 08.09.2004 was issued to the Appellant, while exercising powers under section 16(1) of the Pakistan Environment Protection Act of 1997 (the "Act"). After the stipulated period when the Environmental Protection Agency (the "Agency") found that abatement measures have not been adopted despite of its issuing another EPO under section 16(2) to adopt certain measures within sixty (60) days, it filed Complaint under section 21(3) of the Act before the Respondent No.2 which was allowed and the Appellant was imposed fine of Rs.5,000/- and a direction was given to adopt technical measures written in the said order in future to reduce the emissions. Hence, the instant appeal.
3. Learned counsel for the Appellant submitted that neither from the College Authorities nor any aggrieved person from the vicinity made the complaint rather the same has been made by an Association, as such was filed by the person which was not aggrieved; that the impugned judgment is illegal as the contents of the complaint were never proved; that the impugned judgment is not sustainable in the eye of law as the same has to be passed after the decision of Appellant's pending application under section 265-K, Cr.P.C.; that all the proceedings are liable to be abated because the requirement of section 16(1) of the Act has not been fulfilled and the Appellant has not been afforded any opportunity of personal hearing; that the Respondent No.2 has failed to appreciate the fact that as per requirements the necessary measures had already been adopted by the Appellant; that the Respondent No.2 has ignored the fact that there is glaring contradiction between the evidence of the PWs. In support of his contentions learned counsel has placed reliance on the case titled Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan (1990 CLC 1473) and The State Asif Adil and others (1997 SCM R 209).
4. On the other hand learned Law Officer appeared on behalf of the Respondents vehemently controverted the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of the instant appeal on the grounds that there is no illegality or perversity in the impugned judgment which has rightly been passed by the Respondent No.2; that the EPO was issued after affording personal hearing to the Appellant and being dissatisfying from the defence of the Appellant; that after the passing of sixty days of the EPO when the Appellant was found running brick kiln without adopting abatement measures, the Agency filed the complaint before the Respondent No.2 to implement its EPO in accordance with law and as such, the Appellant has rightly been punished vide the impugned judgment.
5. We have heard the arguments of both the sides and perused the record minutely.
6. From the perusal of record it transpired that the Appellant's unit (Brick kiln) was found constant cause of damaging the environment by emitting smoke, which results into severe air pollution. The EPO dated 08.09.2004 was rightly passed, while exercising powers under section 16 of the Act. After the stipulated period i.e. sixty days, when the Agency found that abatement measures have not been adopted, it filed appeal before the Respondent No.2 which was allowed and the Appellant was directed to pay fine of Rs.5,000/- and adopt technical measures written in the said order in future to reduce the emissions.
7. The record reveals that initially on receiving the compliant, the Appellant was served with the notice dated 20.02.2003 for personal hearing under section 16(1) of the Act and a Site Monitoring Report of five brick Kilns including the unit of the Appellant was submitted on 25.06.2004. Thereafter final notice for personal hearing was issued to the Appellant as well as others on 23.07.2004 and in pursuance of which in presence of the Appellant and others proceedings were conducted in which the owners of the brick kiln, including the Appellant pacifically admitted that the brick kilns are causing air pollution but they do not have any alternate technology to control this pollution. In the said proceedings the Appellant and others were advised to adopt such measures and technology to reduce the air pollution within the NEQS level. Subsequently, the EPO dated 08.09.2004 was issued under section 26 of the Act with the observation that "bring emissions of brick kiln for PM, CO and SO2 in conformity with NEQS by adopting engineering solution to save the public as well as the environment to the satisfaction of this Agency within 60 days." It was further stated in the said order that in case of failure to comply with this EPO the Appellant will be proceeded against under section 17 of the Act. After expiry of said sixty days the team of Agency revisited the site on 08.11.2004 and found that the unit was found without abatement measures to control air pollution and resulted into filing complaint before the Respondent No.2 on 16.03.2005 under section 21(3) of the Act by the Agency seeking proceedings under section 17 of the Act against the Appellant.
8. It is to be noted that the Respondent No.2 during trial of the pending Complaint got recorded statement of two witnesses namely Zafar Iqbal, D.O. Environment, Multan and Muhammad Farooq Aram, Research Officer, Air Pollution of the Agency. However, the cross-examination over the said witnesses was also made and then it passed the impugned judgment. It has been observed in the impugned judgment that the evidence of the witnesses who are officials is coherent and correlated and even during cross-examination nothing has been thrashed out. The impugned judgment has been passed by the Respondent No.2 on the basis of material made available. The EPO evidence of the witnesses as well as the reports are sufficient evidence to prove that the Appellant is involved in a business, which offends provisions of the Act causing air pollution exceeding the NEQS, thus violating section 11 of the Act. Section 11 of the Act clearly states that no person shall emit or allow the emission of any air pollutant, the level of which is excess of NFQS.
Under section 2(iii) of the Act the word air pollution means "air pollutant" means any substance that causes pollution of air and includes soot, smoke, dust particles, odour, light, electro-magnetic, radiation, heat, fumes, combustion exhaust, exhaust gases, noxious, gases, hazardous substances and radioactive substances.". As the Agency has to enforce NEQS of the air emission and as per the Site Monitoring Report of the Agency, it clearly stated as under: "The above said Brick kilns are still in serious violation of NEQS regarding PM, CO and SO2 emission during operation. The high emission levels of S02, CO and PM are posing adverse health effects on the students in College and the residents around the brick kilns and the environment of the area."
Thus the Appellant has violated section 11 of the Act and rightly been dealt with by the Tribunal.
9. The Division Bench of This Court has dismissed the similar environmental appeal in the case of Attique Rehman v. Environmental Tribunal (2009 CLD 1048) by holding that the notices were issued under section 16(1) of the Act and impugned action against the appellant was taken within the parameters of law. The order, therefore, is devoid of any illegality or infirmity to call for interference in this appeal. Learned counsel for the appellants has wrongly contended that the Tribunal has affirmed the order/direction of EPA, regarding shifting of unit from existing place to some other place. The impugned order passed by the Tribunal is clear. It has been held by learned Tribunal that shifting of the unit from it's existing place to another site, is not a lawful order and such order is in conflict with the provisions of PEPA, Act and it preamble. Learned Tribunal, therefore, set aside the order, whereby the appellant was directed to shift its project. Environmental Protection Order was passed on 4-8-1999, while the appellant is delaying the matter, by fighting on mere technicalities for the past ten years. The unit has been established in a residential area and permitting to function such industrial project (obnoxiously) for a considerable long time by offending the provisions of the Act, will not save the purpose of law and justice. This illegal activity has to come to an end. It should not be allowed to be carried on, under the shelter of frivolous and technical objections.
10.Furthermore, in Packages Limited v. DG, EPA (2008 CLD 1160) the Division Bench of this Court has dismissed the environmental appeal by holding as under: "we find that after receiving the reports as to the said environmental pollution, the appellant was served with a notice and thereafter a personal hearing was conducted by the Provincial Environmental Protection Agency. The learned counsel has appended a letter, wherein the measures being taken were stated. These were covering of the drain, raising the height of the chimney and then the details of the plan to shift the unit was reported. After hearing the appellant, the Environmental Protection Agency passed an EPO on 24-1-2007 and the appellant was given a three months' notice to take appropriate measures to treat the waste water of unit to keep it within NEQS limits, failing which it was to be proceeded against under section 17 of the Pakistan Environmental Protection Act, 1997. It was against this order that the appellant filed an appeal under section 22 of the said Act which has been dismissed vide the impugned judgment. Having examined the records, we find that the appellant had never seriously questioned the fact that effluents are polluted. On the other hand, the case of the appellant had been that it had intended to take measures fur reduction of the pollution and even it was suggested that the unit is being wound up. But it is obvious that the needful has not been done. This being so, we do not find any grounds being made out to interfere either with the impugned judgment of the said Tribunal or the said EPO. The E.A. is dismissed in limine."
11.Furthermore, the impugned judgment was passed on 16.07.2008 whereas the instant appeal was filed on 03.03.2009; meaning thereby that the same has been filed after a period of more than seven months. Section 23 of the Act provides time for filing appeal against the final order of the Environmental Tribunal as thirty days. For the sake of brevity the said Section is reproduced below and is as follows: "23. Appeals from orders of the Environmental Tribunal.---(1) Any person aggrieved by any final order or by any sentence of the Environmental Tribunal passed under this Act may, within thirty days of communication of such order or sentence, prefer an appeal to the High Court."
From the bare reading of the above Section it is crystal clear that the instant appeal was to be filed within thirty days after the impugned judgment but the Appellant preferred the same after more than seven months which is badly hit by limitation. Moreover, no application for condonation of delay has been filed by the Appellant along with the instant appeal showing sufficient cause for delay in filing the appeal or circumstances beyond his control.
12. We fully agree with the findings of the Respondent No.2 and see no illegality or perversity in the impugned judgment which has been passed in accordance with law and do not warrant any interference by this Division Bench.
13. In view of what has been discussed above, the instant Environmental Appeal being devoid of any force is hereby dismissed.