Through this appeal appellant has assailed order dated 12.02.2018 passed by Assistant Director Environment Bahawalnagar.
2. It is a case of the appellant that it's a well known company involved in constructions work at Bahawalnagar. Work order was issued by Executive Engineer Highway Division vide letter dated 19.08.2017. It involves constructions of roads, street lights etc. Appellant has annexed work order with memo of appeal as annex A. Appellant installed an Asphalt plant at Haroonabad near bypass 10 years ago and during these years there was not a single complaint of black smoke etc. ever arisen from the locality.
3. EPA received public and verbal complaint from AC Bahawalnagar against this Asphalt Plant and after requisite formalities EPO dated 02.02.2018 was issued with following directions.
1. Control excessive black smoke (wringleman scale BD) and fly ash by adopting engineering solution till the compliance of Punjab Environmental Quality (PEQS).
2. Do effective arrangements for safe disposal of sludge, and other solid and liquid waste till the compliance of Punjab othiltv, Environmental Quality Standards (PEQS).
Otherwise Stop pollution causing activities on site.
4. It is argued by learned counsel for the appellant that the act of the EPA is against law and facts and sealing of the unit was made on the basis of verbal complaint. Submits that appellant's company is doing various development works and due to this sealing the whole city has been closed and inhabitants of the city are facing irreparable mental agony. Earlier appellant filed a Writ Petition No. 1598/2018 in Hon'ble Lahore High Court, Multan Bench which was dispose of on 1.3.2018, with direction to approach this tribunal, hence this appeal.
5. On the other hand learned law officer has supported the impugned order and argued this unit is installed without obtaining environmental approval and is involved in degrading the environment for almost a decade and agency has the authority and power to seal the unit.
6. Heard and record perused.
7. In this appeal, appellant has assailed the order dated 18.02.2018 regarding implementation of EPO dated 02.02.2018. Appellant had not annexed the copy nor challenged EPO in this appeal. In this appeal appellant has challenged the sealing order without challenging the EPO. It is the case of the appellant that appellant is a Pvt. Limited company. Work-order Annex A also suggests this. This appeal is filed without proper authorization in terms of Order XXIX, C.P.C.
8. In 2014 CLC 1151 it was held that the person instating legal proceedings on behalf of company should be authorized through a Resolution passed by the Board of Directors in a meeting convened for such purpose and in that case plaintiff was a private limited company and the Chief Executive was not authorized by the Board of Directors to file the suit. In PLD 1971 SC 550 it was held that the suit on behalf of company by person not competent unless he is so authorized by a Resolution passed by Companies Board of Directors. The same principle is followed in PLD 2001 SC(AJ&K)
18. A Resolution is like a power of attorney by a company authorizing any person to act on behalf of company. Even a Resolution is to be construed strictly. Appellant had not annexed the Article of Association or Memorandum of Association with the memo of appeal.
9. Arguments on stay applications were heard on 10.03.2018. On that day appellant's counsel undertook to replace the generator with new one with less noise and also to bring the smoke limits within PEQS and further if the appellant failed in bringing the noise, vibration of the generator and smoke within PEQS the unit may be sealed again. The Tribunal considering it a public issue and appellant's undertaking allowed the appellant to replace the generator and Assistant Director (Environment) Bahawalnagar was also directed to deploy one Inspector (Environment) for monitoring the operation of the plant on 14.03.2018 to check noise level and density of smoke. In compliance Inspector EPA de-sealed the plant on 14.03.2018 at 10:30 a.m. Noise was measured in different areas as follows: Point Distance From GeneratorNoise Level (measured dB (A)
1 07 meter 77 2 40 meter 45 3 50 meter 30 10.The smoke density of chimney was observed for one hour duration but inspite of being asked several time the management was reluctant to operate the unit on full capacity. In view of this Tribunal directed the appellant to run the unit on full capacity from 15.03.2018 to 17.03.2018 and the unit was directed to be monitored by Muhammad Saeed Inspector round the clock to check the smoke and noise level which was not done by the appellant rather plant was found closed. The new generator was also removed from the site and plant was not in operation with full capacity in defiance of the order. After hearing the arguments on 19.03.2018 on stay application this Tribunal held essential to ask for the schedule of functioning of the plant under the project requirement, therefore the appellant was directed to submit complete schedule of operation of the plant as warranted by him on 04th of April 2018.
11.Instead of giving the schedule on the date fixed appellant again run the unit from 27.03.2018 in defiance of the order of tribunal which is evident from the application submitted by the appellant on 30.03.2018 before this Tribunal. According to the report submitted by Assistant Director Bahawalnagar instead of submitting the operating schedule of the plant in terms of the order of the Tribunal the management of the plant started operation of the unit without permission and therefore the plant has again been sealed. This tribunal declined to grant interim relief on 4.4.2018 and fixed the main appeal for final arguments on 14.4.2018.
The Observations of the Tribunal contained in para 6 regarding environmental approval are as under "The unit has been established in 2010 and in operation since long. Assistant Director (Environment) was cognizant of the issue and asked the proponent of Asphalt Plant to observe section 12 of Punjab Environmental Protection Act, 1997 (as amended in 2012) but no measures on part of appellant have ever been taken/adopted to mitigate the environment concerns. Appellant could have adopted best modern available technology to control smoke/dust emission but nothing has been done and people of area have been left alone to suffer, therefore, apparently the appellant has no arguable case for interim relief."
12.On 09.04.2018 an application was filed by the appellant for early hearing of the appeal and decision. On that application the Tribunal heard the arguments on both sides and fixed the case today for judgment.
13.Appellant had not challenged the EPO. It is the case of the appellant that it is a private limited company. Neither the requisite documents nor authority has been annexed with this appeal while filing the same in this Tribunal. The orders of the Tribunal are being violated. The plant was established without seeking approval. The unit was established in 2010 and Assistant Director (Environment) asked the proponent of asphalt plant to observe section 12 of PEPA 1997 (as amended in 2012) but no measures were ever taken to mitigate the environmental issues. Although appellant could have adopted best modern available technology.
14.In 2015 CLD 983 Ms. Imrana Tiwana Case" Hon'ble Lahore High Court observed that EIA is nature's first man-made check post, nothing adverse to the environment is allowed to pass through. It is for this reason that environmental assessment is an onerous function. It was further held that it is through the tool of IEE and EIA gets to regulate and protect the environment and as a result the life, health, dignity and well being of the people who inhabit the environment.
Environmental assessm ent is therefore a substantive exercise as every step in this process cautiously guards the fundamental rights of the,people. It was held that review of EIA in not inter- parties or an adversarial exercise but are inquisitorial proceedings carried out under the public gaze and open to public scrutiny. The review process is incomplete without effective public participation and technical advice of the expert.
15.EPA has the power to seal the unit. Reliance is placed on Writ Petition No. 1193 of 2017 titled Muhammad Ayaz v. Government of Punjab etc. It was held that spirit of section 16 is based on the Precautionary Principle which requires the relevant agency to anticipate the danger and take immediate steps to prevent harm or danger to the environment. The Precautionary Principle is a tool for ensuring sustainable development.
16. Therefore keeping in view all these facts and circumstances this Tribunal finds no illegality in the impugned order. This appeal has no merit and the same is Dismissed.