MUHAMMAD NAEEM ANW AR, J. Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks declaration that the Rules and Guidelines 2.3 of the Khyber Pakhtunkhwa, Environmental Protection Agency pertaining to the Poultry Farms are ultra vires to the Constitution, Notice No EPA/109/01/248 dated 22/10/2015 of respondent No 3 under section 17 of the Environmental Protection Act, 2014, is discriminatory , unlawful and violative to Articles 18 and 25 of the Constitution and that the respondents be restrained from interfering in lawful business of the petitioner .
2. Facts leading to the institution of this position are that the petitioner has constructed a Poultry Farm over an area of 7/8 Marla in his inherited property bearing khasra No 370, situated in the Estate of Lund Khawr, Tahsil Takht Bhai, District Mardan, and has started his business there; that his brother, i.e., the respondent No 9, namely, Mohammed Ayaz, filed a complaint to respondent No 3 against him on the basis of which respondent No 9 issued a notice to him on 22/10/2015 directing him to stop his business of Poultry Farm forthwith, without providing him an opportunity of being heard, in accordance with sub- section xxvi of Section 6 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014.
3. It was also averred that respondents No 4 and 5 submitted a fictitious and untrue report of their site visit against which he filed an application to respondent No 4 to revisit the spot for bringing on record the true and correct facts but no heed was paid to it, therefore, he filed a civil suit seeking declaration therein before the court of Senior Civil Judge, Mardan, in which the defendants/ respondents filed an application under Order VII Rule 11 of CPC upon which the plaint was returned to him for its presentation before proper forum. Resp ondent No. 9 has also got a No Objection Certificate (NOC) from respondent No 4 for construction of Poultry Farm in the same vicinity , i. e, Mohalla Jan Khel Shah Dand of Tehsil Takht Bhai District Mardan.
4. Similarly on the application filed by the petitioner he was informed by the official respondents that no specific zone has been allocated for the construction of Poultry Farm in Lund Khawr of Tehsil Takht Bhai, District Mardan, therefore, the petitioner filed this constitutional petition challenging therein that the Rules and Guidelines 2.3 of the Khyber Pakhtunkhwa, Environmental Protection Agency being ultra vires and, thus, the impugned notice of respondent No 3 is against the law on the ground that the Khyber Pakhtunkhwa, Environmental Tribunal is dysfunctional and he has got no other ef ficacious remedy .
5. The Respondents were put on notice, in response to which respondent No. 3 furnished his parawise comments wherein issuance of the desired writ was opposed on many legal and factual objections.
6. This petition is pending adjudication before this Court since 12/10/2017 and the petitioner has repeatedly requested for adjournments since 19/11/2017 on one pretext or the other. We observed that on 19/11/2017, the petitioner requested for adjournment, which was granted, thereafter, on 01/11/2017, 05/04/2017, 04/10/2018, 28/11/2018 and 04/02/2020, it was adjourned on the request of the petitioner. It is also pertinent to mention here that on 04/10/2018 and 23/11/2018 the petitioner has requested for filing of re-joinder but the same was not filed till today . Therefore, we have left with no other option but to decide this petition on the basis of available record.
7. The first prayer in the petition is that the Khyber Pakhtunkhwa, Environmental Protection Agency Rules and Guidelines 2.3 regarding the Poultry Farm be declared as ultra vires. The assessment checklist and the guideline at serial No. 2.3 provided that:- "Contaminated litter should be disposed of properly . Option available include conve rting to compost to be marketed as an excellent garden fertilizer and incineration in proper incinerator"
It was intended to be declared ultra vires to Article 18 and 23 of constitution and at this juncture, Article 18 of the Constitution is reproduced as under:- "18. Freedom of trade; business or profession: Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent-
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Gover nment or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
It is settled principle of law that right of trade/business or profession under this Article is not an absolute right but so long a trade or business is lawful, a citizen, who is eligible to conduct the same, cannot be deprived off from undertaking the same but subject to law which regulate it accordingly. Likewise, freedom of trade business though guaranteed by the constitution is subject to certain guidelines as may be prescribed by law and can be hedged to the extent of lawful, so, imposed. Similarly, the petitioner has not urged any inconsistency in guideline at serial No 2.3 with the above referred Article muchless the judicial one in the contents of the petition.
8. Now , adverting to article 25 of the constitution, which reads as:- "25. Equality of citizens. -- (1) All citizens are equal before law and are entitled to equal protection of law .
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
The petitioner alleged discrimination on two fold grounds, firstly:- that the respondent No 5 visited the Poultry Farm on the application of respondent No. 9 and submitted his report against the fact by attributing irregularities and illegalities allegedly committed by the petitioner, without providing him an opportunity of being heard, which resulted into issuance of impugned notice and, secondly , the respondent No. 9 was given No Objection Certificate (NOC), issued to him despite the fact that both the Poultry Farms are in the same vicinity. In order to differentiate the visit reports of both the Poultry Farms, the observations of respective farms would be seen in juxtaposition, admittedly the poultry farm of the petitioner was visited on 06/08/2015 and it was observed that; "there are houses near the poultry farm, one of them is attached to it, two houses towards south within the distance of 27 meters, two houses are towards west within 19 meters, 25 houses are within the diameter of 500 meters, solid waste from the poultry farms is used in agriculture fields as manure, the poultry farm has no approval from any government department, during visit bad smell from the poultry was felt by the visitors."
Recommendations: "Poultry farm is located in the agriculture area which caused bad smell in the surroundings which is in violation of section 11 of KEPRA 2014, so notice of hearing be given to the petitioner"
On the basis of recommendations, the petitioner was served with first notice for 16-09-2015, while second notice was given for 12-10-2015. He was heard and the impugned notice was given under section 17 of the Act with the following direction; "Stop immediately all your activities at your poultry farm as you have established your poultry farm in residential area"
As against petitioner , Poultry Farm of respondent No. 9 was visited on 02-09-2015, and observed that; "the land is agricultural and surrounded by agriculture lands, no residential area is located within the diameter of 500 meters, no sensitive site like mosque, school, hospital within the diameter of 500 meters, no ecologically sensitive point near the site" with following recommendations; "The proposed site is suitable for the construction of poultry farm according to the guidelines, the owner may be directed to submit detailed report mentionin the numbers of sheds etc."
9. Another significant aspect of the matter is that during pendency of this petition on 19-12-2017, AD (Litigation) produced letter No EPA/NOC/ Poultry farm/651, dated 11-11-2015, wherein it was stated that as per rules a Poultry Farm can be allowed to function at a distance of 500 meters away from residential area and the respondent No. 9 has been granted permission as such. The letter was seriously objected by the petitioner, according to him, the poultry farm of respondent No. 9 does not fulfill the desired criteria, thus, we directed the Assistant Director EPA to visit the spot and to submit detailed report of both the Poultry Farms, who, in compliance with the direction of the court, proceeded to the spot and submitted the comprehensive report with 6 points, which are as under:- i) Both the poultry farms are not situated in the same vicinity . ii) There is approximately 1200 meters distance between both the farms. iii) There are approximately 2000 houses within the radius of 500 meters of the farm of petitioner . iv) There are approximately 22 houses within the radius of 500 meters of the poultry farm of respondent No 9. vi) The nearest five houses are katcha and people from Mohmand agency are residing there temporary as they are not the owners of these houses. v) Permanents houses are located 250 to 400 meters away from the poultry farm of respondent No. 9. vi) The poultry farm of petitioner is in village Shah Dand whereas the poultry farm of respondent No 9 is approximately at a distance of 1000 meters away from village Shah Dand.
Thus, we are of the view that while granting permission to respondent No 9, the petitioner was not discriminated as there can be no comparison of both of them for the following reasons; Firstly, both are not in the same vicinity, Secondly , petitioner has not obtained approval from the Environmental Agency , Thirdly , the respondent No 9 has got approval, Fourthly , petitioner 's farm is within residential are whereas respondent' s farm is away from residential area, Fifthly , the Poultry Farm of the petitioner was the sours of bad smell.
No doubt, where policy decision of the Government was not ultra vires, the law and policy was well reasoned, rational and self-explained, the High Court, in exercise of judicial review, could not set aside and displace such decision, however, where a decision or recommendations of the Government or of competent authority was not in accordance with law or suffered from mala fide or same was arbitrary, irrational and unreasonable, the High Court could direct the State/Government to act strictly in accordance with law. Mainly there are three grounds upon which an administrativeg action is subject to control by judicial review. Firstly, illegality which means the decision maker must understand correctly the law that regulate his decision-making power and must give effect to it. Secondly, irrationality, which means, decision is not unreasonable and, thirdly, procedural impropriety but the petition in hand is bereft of any of the grounds. In presence of above enlightenment and illumination, there is no need to further discuss the issue with regard to declaration of said policy making decision as illegal and unconstitutio nal. Though, the petitioner has alleged discrimination, but has not been able to make out a case of any discrim ination under Article 25 of the Constitution as well.
10. Correct, at the time of filing of the constitutional petition, the Tribunal was dysfunctional but, thereafter, not only the Tribunal was constituted, but it is functional now, then the question arises as to whether this constitutional petition is maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, when an ultimate remedies also available to the petitioner under the provisions of Environmental Tribunal in accordance with sub- class (10) of section 22 of the Environmental Protection Act, 2014. The Act also defines aggrieved person as "a person whose legal right is violated by any actor or mission or is directly and adversely affected by any other authority" in the same manner Environmental Protection Order means an order issued under section 17, and Tribunal has been defined in sub-clause (ggg) of section 2, which means the Khyber Pakhtunkhwa Environmental Tribunal, constituted under Section 21. The impugned Notice was issued under sub-clause (i) of subsection 2 of section 17, which could be challenged in accordance with section 23 of the Act, which reds as; 23(1) any person aggrieved by any order or direction of the aency under any provisions of this Act, and rules made there under may prefer an appeal to the tribunal of competent jurisdiction within thirty days of the date of communication of the impuned order or direction to such person."
11. In addition to the above, after the commencement of this Act, the tribunal, constituted thereunder , has got the exclusive jurisdiction with respect to any matter to which the jurisdiction of tribunal extends as provided under sub- section (10) of Section 22 of the ibid Act. As such, when an alternate remedy was provided by law, the petitioner was legally bound to seek the appropriate remedy from the competent forum, and in such circumstances, the constitutional jurisdiction of this Court could not be exercised. Petitioners, in presence of said alternate remedies, as noted above, should have approached the said forums instead of invoking the extraordinary constitutional jurisdiction.
12. For the aforesaid reasons this petition being bereft of merit is dismissed.