Briefly stated, a team of EPA Punjab on 14.12.2019 visited Messrs Asian Gelatin situated at 35-km G.T. Road Murikde District Sheikhupura where appellant was found violating provisions of the Punjab Environmental Protection Act, 1997 by the following mean: 1) Emission of excessive smoke/pollutant gases 2) Non-installation of proper emission control system.
2. Opportunity of hearing was granted on 02.10.2019 and on 14.12.2019 Immediate Stoppage Order was passed with following direction.
Stop pollution causing operation/activities to avoid its adverse ef fects on environment and health of the public.
Aggrieved by the Immediate Stoppage Order dated 14.12.2019 appellant has preferred the instant appeal.
3. Arguments have been heard and record has been perused.
4. Learned appellant counsel maintained that appellant was engaged in the business of gelatin which was mostly exported to other countries and for maintaining international quality standards lates t machineries were installed and no pollution was caused through any smoke emission but the impugned order was piped against him hastily and unlawfully , smoke opacity was not measured and there was no laboratory report, that opportunity of hearing was not granted in terms of section 16(1) of the Punjab Environmental Protection Act, 1997 and the unit was sealed without adopting the prescribed procedure. He requested to set aside the impugned order since it had been passed unlawfully .
5. Learned Law Officer rebutted the arguments advanced by learned appellant counsel and submitted that Deputy Director (Environment) Lahore proceeded with the matter in accordance with the procedure prescribed in notification dated 03.07.2019 and that section 16 of the Punjab Environmen tal Protection Act, 1997 also empowered the Environmental Agency to cease the pollution generating activities forthwith. He further maintained that a proper opportunity of hearing was provided to appellant but he could not satisfy the authority and smoke opacity was also measured on Ringleman Scale therefore order dated 05.11.2019 was passed in accordance with law and requested that appeal be dismissed to save the environment.
6. Record reveals that respondent did not conduct survey of the unit before providing an opportunity of hearing to appellant on 02.10.2019 as no date of survey prior to hearing is mentioned in the impugned order for the purpose of determining the alleged violation of environmental laws by appellant and this fact makes it quite evident that no fair opportunity of hearing was granted to appellant. Apparently violation of section 16(1) of the Act is found. In terms of section 16(1) of the Act, where the Agency is satisfied that the dischar ge or emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or handling of hazardous substance, or any other act or omission is likely to occur , or is occurring, or has occurred, in violation of any provision of this Act, rules or regulations or of the conditions of a license, or is likely to cause, or is causing, or has caused an adverse environmental effect, the Provincial Agency may, after giving the person responsible for such act an opportunity of being heard, by order , direct him to take such measures as the Provincial Agency may consider necessary within such period as may be specified in the order . The measures that such person can take have been mentioned in subsection (2) of section 16 of the Act and it includes immediate stoppage as mentioned in clause (a) of the said subsection. Intention of legislature while formulating this law was not to issue direction of immediate stoppage of pollution causing activities but to afford an opportunity of hearing and then to specify a period within which such person could take the prescribed measures including immediate stoppage of pollution causing activities. It thus follows that issuance of direction is discretionary but once such discretion is exercised it becomes mandatory to hear such person and specify period within which he could take specific measures. Impugned order dated 14.2.2019 has been passed without obse rving the rules and law and such order is not sustainable in the eyes of law. Reliance is placed on Writ Petition No. 240084 of 2018 tiled "Messrs Noor Poultry Farm v. D.G. EPA" wherein Hon'ble Lahore High Court Lahore observed as under: "the provision of section 16(1) of the Act is self-explanatory under which the Federal Agency or the Provincial Agency , is required to give opportunity of hearing to the person concerned."
7. Contention of appellant is that his unit was sealed unlawfully without giving any opportunity of hearing. Section 16 subsection (2) prescribes measures which the Agency can direct to be taken by the person concerned within such period as may be specified in the order . Subsection 2(a) provides for immediate stoppage activities causing adverse environmental effect but it does not make any provision of sealing the unit which act of the Agency is thus unlawful. In the case Mega Steet Mills Pvt. Limited v. Government of Punjab through Secretary Environmental Protection Department Punjab and others 2016 CLD 1097 , such act has been held to be beyond the scope of environmental laws. It has been observed as under: "As is evident from the above quoted provisions of section 16 of the Act ibid as well as sub-Regulation (3) of Regulation 20 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations 2000, it does not empower the respondent/department to seal the property , therefore, the sealing of property/premises of the appellant by the officials of respondent No. 3 is beyond the scope of Environment al, Laws and Regulations relied upon by the respondent/department".
8. It was further maintained that automated Gelatin Unit was not mentioned in Appendix "A" of the Delegation of Power Notification dated 18.09.2017, hence Deputy Director (Environment) was not empowered to issue the impugned order . He requested to set aside the impugned order since it had been passed with unlawful authority and in violation of section 16(1) of the Punjab Environmental Protection Act 1997. Appellant unit does not operate manually , therefore, apparently B notification No. 64/DD(R&I)EP A/19 dated 03.07.2019 does not empower Deputy Director (Environment) to proceed against such units.
9. In view of the above observations, impugned order dated 14.12.2019 is set aside and matter is remanded to the Director-General for deciding it afresh after fulfilling the requirement as contained in section 16(1) of the Punjab Environmental Protection Act, 1997. File be consigned to the record room.