JUSTICE (R) SADIQ HUSSAIN BHA TTI, CHAIRMAN .---By this Order , we intend to dispose of the above Complaint, filed by Sindh Environmental Protection Agency through its authorized officer and Complainant Aamir Sheikh, under section 26(3)(a) of the Sindh Environmental Protection Act, 2014 against the Respondents.
2. The brief facts relevant for the purpos e of disposing of instant Complaint are that the Director General, Sindh Environmental Protection Agency ("the Agency ") constituted a team, comprising of Mr. Aamir Sheikh, Environmental Inspector , SEPA and Mr. Muhammad Amir, Field Assistant, and authorized it to conduct routine monitoring. On 01.08.2017, the said team visited the Unit of Respondent No.1 and during inspection observed that Messrs Silver Textile had allegedly initiated its construction project without comp lying with the codal formalities prescribed by Sindh Environmental Protection Act, 2014 and without seeking approval of IEE/EIA from the Agency which is violation of section 17(1) of the Sindh Environmental Protection Act, 2014. After carrying out inspection of the said site, the authorized team of SEPA submitted its report to the Agency . The Agency , after evaluating the report of the said team and on being satisfied of violation of the provisions of the Sindh Environmental Protection Act, 2014, issued notices under sections 21(1) and 21(2) of the Sindh Environmental Protection Act, 2014 to the Respondent No.1 on 02.08.2017 and 07.08.2017 respectively . As no positive response was forthcoming from the said respondent, therefore, Notices were issued to respondents Nos.2 and 3 for seeking police assistance in order to initiate proceedings against the accuse d for stoppage of production activities as per law. However , respondents Nos. 2 and 3 also failed to provide necessary legal assistance for carrying out the mandate of the Sindh Environmental Protection Act, 2014. Therefore, the Agency filed instant Complaint before this Tribunal against the respondents with the following prayers: a) To take cognizance of the offence against Respondent No.1 in accordance with law, who violated sections 11, 17(1) and 20 of Sindh Environmental Protection Act, 2014. b) Direct Respondent No.1 to immediately stop operational activities forthwith till the disposal of this complaint. c) To take strict action against Respondents Nos.2 and 3 because they did not respond positively to SEPA team and failed to perform their duty accordingly . d) Direct respondents Nos. 2 and 3 to ensure, by keeping continuous patrolling upon the Respondent No. l's unit, shutting down unit till the disposal of this complaint. e) Any other relief which this Court may deem fit and proper in the circumstances.
3. In response to the Notice of the Tribunal, Respondent No.1, Syed Usman Ali, owner of Messrs Silver Textile, appeared in person. He made oral submissions before the Tribunal. The jest of his submissions is that he is a law- abiding citizen and was willing and ready to facilitate the visit of the I.O. to his premises for the purpose of inspection and collection of evidence with regard to any violation of Sindh Environmental Protection Act, 2014. In view of the statement of the Respondent No.1, the I.O. was directed to visit the premises and submit his detailed report in this regard. The I.O. visited the premises of the respondent No.1 and after detailed inspection of the said premises, submitted his report.
4. On 13.11.2018, copies of instant complaint along with its annexures and other material collected by the I.O. were provided to the respondent No.1 under section 265-C of the Criminal Procedure Code. Such receipt was obtained from respondent No.1 and has been kept on record at Exh.01.
5. The respondent No. 1, who appeared in person and made oral submissions, stated that he is a law-abiding citizen and has not violated any provision of law intentionally . At the very outset he submitted that he is a tenant in the subject premises and is carrying out his business therein. He vehemently denied having any notice either under section 21(1) or 21(2) of the Act. He also submitted that no authorized person of the Agency met him personally in connection with any violation of the Act. He also submitted that he has been falsel y implicated in the present case and that there is no evidence to show that he has violated any provision of the Act.
6. Learned APG, duly assisted by the complainant, submitted that the respondent No.1 has committed violation of sections 11 (prohibition of certain discharges and emissions and compliance with standards), 17 (initial environmental examination and environmental impact assessment to be filed), 20 (submission of environmental audit and review) and 21 (environmental protection order) of the Act, therefore, he is liable to be convicted and sentenced accordingly . He submitted that the Gate Keeper of Silver Textile did not allow the LO. to inspect the site nor did he produce the requisite documents when asked to produce the same.
7. We have heard respondent No.1 in person while Mr. Khan Muhammad Bhangwar , APG, made submissions on behalf of the Agency and was duly assisted by the 1.0. of the case, and have also perused the record with their assistance.
8. Learned APG and the 1.0:of the case were put on notice as to how this Complaint is maintainable in view of the fact that the I.O. has not collected any samples for laboratory testing, nor any laboratory report has been filed in support of their case and delivery confirmation receipts of Notices under sections 21(1) and 21(2) of the Sindh Environmental Protection Act, 2014 have also not been filed. It was also highlighted that the I.O. has not placed on record any material evidence as required by section 11 of the Act of 2014. In view of the above failures and glaring omissions on the part of the I.O. of the case, prima facie, it appears that no case of violation of the provisions of Sindh Environmental Protection Act, 2014 by the respondent No.1 has been made out.
9. The learned APG, appearing on behalf of the State, and the I.O. of the case submitted that since the Gate Keeper of the Respondent No.1 did not allow the Team to visit the factory premis es of respondent No.1 and also did not provide, when demanded, the requisite IEE/EIA approval as required under Sindh Environmental Protection Act, 2014, therefore, the Agency issued notices to respondent No.1 under section 21(1) of the Act of 2014 for personal hearing of respondent No. 1 . Simultaneously , a Notice under section 21(2) of the said Act was also issued to the respondent No.1 calling upon him to stop the industrial activity in his unit. However , neither the respondent No.1 responded to the Notice under section 21(1) of the Act by attending the scheduled hearing nor any heed was paid to Notice under sectio n 21(2) of the Act and the respondent No.1 industrial continued to carry on his industrial activity in violation of the Notice issued to him in this regard. Thereafter , respondents Nos.2 and 3 were also approached for enforcing the provisions of the Act of 2014, however , without any fruitful result. It was in these circumstances that the Agency approached this Tribunal.
10. The submission made by the learned APG/I0 of the case to the effect that Gate Keeper of respondent No.1 did not allow them to visit the said premise s and that the same Gate Keeper was asked for IEE/EIA approvals in respect of the said premises which he did not provide is a mockery of law as neither the Gate Keeper is the owner of the premises nor he is representative/authorized agent of the owner . The Gate Keeper is simply a low paid employee meant for menial work and is usually an illiterate person without any authority or supervisory capacity . It is astonishing that on such a flimsy ground the respondent No.1, a tenant of the premises, was dragged into unnecessary litigation. The submission that the Gate Keeper did not produce the IEE/ EIA approvals on demand has no force.
11. So far as the submission of the learned APG/I0 of the case with regard to denial of the Gate Keeper to allow the I0 to inspect the premises in dispute is concerned, an efficacious remedy was available to the I0 in the form of filing an application under section 7(g) of the Sindh Environmental Protection Act, 2014 before this Tribunal with the prayer to issue Search Warrant in respect of the said premises. In this way, the 10 of the case could have obtained a search warrant and after carrying out inspection and search of the premises on the strength of such search warrant, the I0 should have collected necessary evidence and then should have filed a complaint before this Tribunal duly supported by material evidence. After collecting evidence the I0 should have placed the same before the Agency and the Agency should have decided on the basis of the available evidence whether to file a complaint or not. The I0 has not done so and this is a grave omission on his part. It was an exercise in futility to file a complaint without any material evidence in support thereof. It is regrettable that the public office holders are not obeying the dictate of law .
12. Learned APG claims that the respondent No.1 has violated section 17(1) of the Act of 2014. Section 17(1) of the Act reads as under:-
17. Initial environmental examination and environmental impact assessment.---(1) No proponent of a project shall commence construction or operation unless he has filed, with the Agency an initial environmental examination or environmental impact assessment, and has obtained from the Agency approval in respect thereof.
13. Subsection (1) of section 17 of the Act restrains a proponent of a project from commencing construction or operation unless he has filed an initial environmental examination or environmental impact assessment, as the case may be, with the Agency . The first question which arises for determination is whether the respondent No.1 falls within the definition of proponent as used in this section. There is nothing on the record to show that respondent No.1 is the proponent of any project. Respondent No.1 in clear terms stated before the Tribunal that he is a tenant in the subject premises, and neither this assertion was denied nor anything to the contrary was placed before the Tribunal. Therefore, the provisions of section 17(1) of the Act would not be applicable to him and, consequently , no question of the same by respondent No.1 arises.
14. It is also alleged that respondent No.1 did not respond to the notices issued to him under sections 21(1) and 21(2) of the Act. Therefore, action was initiated against him. Section 21 of the Act reads as under:
21. Environmental Protection Order .---(1) Where the 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 substances, or any other act or omission is likely to occur , or is occurring, or has occurred, in violation of any provision of this Act, the 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 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 Agency may consider necessary within such period as may be specified in the order ." (emphasis is supplied).
15. The above quoted subsection (1) of section 21 of the Act, particularly the portion thereof which is underlined, clearly stipulates that the Agency can only pass an order against a proponent when he has been provided opportunity of being heard. In the present case, though it is alleged by the complainant that Notices under section 21(1) and section 21(2) of the Act were issued to the respondent No.1, however , no delivery confirmation in respect of such Notices has been placed on recor d to show that such Notices were in fact served upon the respondent No. 1 . On the contrary , respondent No.1 stated before the Tribunal that no notice was received by him from the Agency in this regard. There is nothing on record to rebut such assertion of the respondent No.1. This is an illegality which cannot be cured and is fatal to the case of the Agency . Accordingly , we are of the opinion that the Complainant has not been able to prove that any notice under section 21(1) or 21(2) of the Act was issued to the respondent No.1.
16. It has also been alleged that the respondent No.1 has committed violation of section 11 of the Act which prohibits certain discharges and emissions and calls for compliance with standards set forth in the Act.
17. It would be advantageous if section 11 of the Act is reproduced in order to ascertain whether any provision thereof was violated by respondent No.1. Section 1 1 of the Act reads as under: "11. Prohibition of certain discharges or emissions and compliance with standards.- --(1) Subject to the provisions of this Act and the rules and regulations, no person shall discharge or emit or allow the discharge or emission of any effluent, waste, pollutant, noise or any other matter that may cause or likely to cause pollution or adverse environmental effects, as defined in section 2 of this Act, in an amount, concentration or level which is in excess to that specified in Sindh Environmental Quality Standards; or, where applicable, the standards established under section 6(1)(g)(i); or direction issued unde r sections 17, 19, 20 and 21 of this Act; or any other direction issued, in general or particular , by the Agency .
(2) All persons, in industrial or commercial or other operations, shall ensure compliance with the Environmental Quality Standards for ambient air, drinking water , noise or any other Standards established under section 6(1)(g)(i); shall maintain monitoring records for such compliances; shall make available these records to the authorized person for inspection; and shall report or communicate the record to the Agency as required under any directions issued, notified or required under any rules and regulations.
(3) Monitoring and analysis under subsections (1) and (2), shall be acceptable only when carried out by the Environmental Laboratory certified by the Agency as prescribed in the rules."
18. Subsection (1) of section 11 prohibits a person from the following acts: discharge or emit or allow the discharge or emission of any effluent, waste, pollutant, noise or any other matter that may cause or likely to cause pollution or adverse environmental effects. In order to reach a conclusion that any person has violated the provisions of subsection (1) of section 11 of the Act, it is to be shown that the levels mentioned in Environmental Quality Standards have been violated by a person. The mode for such violation is provided in subsection (3) of section 11 of the Act which stipulates that Monitoring and analysis under subsections (1) and (2), shall be acceptable only when carried out by the Environmental Laboratory certified by the Agency as prescribed in the rules . In the present case neither any sample was taken from the subject premises nor any report of Environmental Laboratory is available on record to substantiate the claim of the Agency . Provisions of section 11(1) of the Act will only be attracted when a lab report from a recognized laboratory is available. In this view of the matter we are of the view that the Agency has not been able to prove its claim that the respondent No.1 has violated provisions of section 11(1) of the Act.
19. The learned APG, referring to the Inspection Report submitted by the I.O., also contended that provisions of section 20 of the Act were also violated by the respondent No. 1 . Relevant subsection (1) of section 20 of the Act reads as under:
20. (1) The Agency shall from time to time require the person in charge of a project to furnish, within such period as may be specified , an environmental audit or environmental review report or environmental management plan containing a comprehensive appraisal of the environmental aspects of the project.
20. A perusal. of above quoted subsection (1) of section 20 of the Act, reveals that the Agency shall from time to time require the person in charge of a project to furnish, within such period as may be specified, an environmental audit or environmental review report or environmental management plan containing a comprehensive appraisal of the environmental aspects of the project. There is nothing on record to show that the person incharge of the project was ever called to furnish such report within a specified time. In this regard it may be mentioned that oral communication is of no use in official matters and everything should be in black and white. From the Inspection Report it further transpires that the representative of Silver Textile, Mr. Saeed, was called upon to produce the said report there and then while the law provides that such report is to be furnished within such period as may be specified, and not on the spot.
21. In view of the above, we are of the opinion that there was no violation of section 20 by respondent No. 1.
22. We may observe that it is the duty of the I.O. to investigate the matters honestly , fairly and justly so that true and correct position is brought before the Tribunal. In the present case, the Investigating Officer has filed instant complaint against respondent without performing his duty properly as he has not been able to place any cogent material before this Tribunal in support of instant complaint, which would show violation of any provision of the Act.
The Tribunal will not act on the ipse dixit of the I.O. without any supporting material or proof of the wrong doing of the respondent. Whenever a suspicion arises in a case, the matter is to be thoroughly investigated by the I.O. to bring the real and correct facts before the Agency and if it is found that there is enough material against a person, only then a case should be brought before the Tribunal. It may be observed that in these matters only white-collar people are involved who are usually law-abiding and tax-paying citizens of the Country . It is not expected that such respectable citizens should be produced before the Court as 'accused' without any iota of proof of their guilt against them. This Tribunal will not hesitate in convicting a person who willfully violates any provision of the Act.
23. The result of above discussion is that we are of the opinion that the I.O. of the case has not made any serious effort to collect tangible evidence which could connect the respondent No.1 with violation of sections 11, 17(1) 20 and 22 of the Act. Accordingly , Respondent No.1, Syed Usman Ali is acquitted of the charge under section 265-K of the Cr. Procedure Code. Complaint No. 26 of 2017 is hereby dismissed along with pending application. The I.O. is warned to be very careful in future and to ensure that no frivolous complaints are filed before the Tribunal against respectable citizens. However , the respondent No.1 is also directed and expected to follow all the rules and regulations in this regard for the betterment of the society .
24. It may further be clarified that the Agency would be free to file a fresh complaint if, after proper investigation and collection of tangible evidence, it is found that a prima facie case of violation of the Act has been made out against respondent No. 1 .
25. Before parting with this Order , we would like to enlist following guidelines to be followed in future by all concerned: a) No complaint based on surmises and conjecture shall be filed. b) The I.Os should be provided proper training from Judicial Academy to investigate the cases and to ensure that proper evidence is collected to substantiate the complaint. c) Wherever a suspicion arises with regard to any violation of the Sindh Environmental Protection Act, 2014, the I.O. should make through investigation and collect necessary data/record/ material and if it is found that a case is made out against the respondent, then a complaint should be filed with the Tribunal along with all necessary material/record and evidence. d) In future such flimsy grounds as meeting with the Gate Keeper and asking him for Environment Impact Assessment or Initial Environmental Examination i.e. EIA and IEE should be avoided at any cost as the Gate Keeper is not a person who is supposed to keep these documents in his custody .
In case the I.O. feels any difficulty or hindrance in inspecting the premises and collecting evidence recourse should be made to statutory provision in the form of section 7(g) of the Sindh Environmental Protection Act, 2014 for issuance of a Search W arrant which will enable the I.O. to perform his duties in a legal and dignified way . f) No complaint on the basis of surmises and conjecture should be filed as the same would be dealt with strictly and serious view would be taken in future. g) The harsh and penal act of stoppage of operational activities by the respondent should be resorted to in extreme cases as it would entail depriving of the workers of their butter and bread. h) A complaint should be filed only against the proponent and not against strangers who does not fall within the ambit of 'proponent'.
Let a copy of this order be sent to all the concerned for necessary compliance at their end.
Announced in open court.
Given under our hands and the seal of this Tribunal on this 12th February , 2019.