Briefly stated, appellant/Messrs Shahee n Stone Crusher filed an application before Environmental Protection Agency (EPA) on 31.12.2018 for obtain ing Environmental Approval for its crush ing unit and complied with all necessary requirements of respondents but instead of issuing Environmental Approval, respondent No. 2 passed the impugned order dated 24.09.2019 with the following direction: "Your instant application for the grant of Environmental Approval is returned until acquittal for the violation of section 12 of the Act ibid from the competent forum/Punjab Environmental T ribunal."
2. Appellant maintained that the impugned order dated 24.09.2019 was illegal and void as penal previsions of the Act could only be invoked when a compla int was filed that respondents had no authority to pass a conditional order , that the case was not processed as per requirement of Regulation 9 of the IEE/EIA Regulations 2000, hence his application for environmental approval would be deemed to be approved in terms of section 12(4) of PEPA 1997 and Regulation 15 of IEE/EIA Regulations 2000. It was further maintained that environmental laws did not empower respondents to return the application for grant of environmental approval with direction to seek acquittal from the competent forum. It is prayed that impugned order dated 24.09.2019 be set aside and application for environmental approval deemed to be approved under section 12(4) of PEPA 1997 and Regulation 15 of IEE/EIA Regulations 2000.
3. Learned counsel for appellant mainta ined that no complaint or criminal proceedings were pending against appellant in any court of law, acquittal where from was relevant or required and that approval had been sought for the proposed project but the application of appellant for Environmental Approval remained pending before the Agency for about seven months and besides setting aside the impugned order dated 24.09.2019 also maintained that the application be declared as deemed approved under section 12(4) of Act ibid and Regulation 15 of the IEE/EIA Regulations 2000 and respondents be directed to issue the Environmental Approval. In support of his arguments learned counsel has placed reliance on the case titled Maple Leaf Cement Factory v. Environmental Protection Agency and others 2018 CLD 153 and United Ethanol Limited v. Environmental Protection Agency Punjab 2015 CLD 1079 .
4. Learned Law Officer contended that the project was not proposed as its cons truction work had already been completed and crusher unit was operational. He opposed the grant of relief under section 12(4) of PEPA 1997 maintaining that section 33(1) of the Act dealt with categorization of projects to which section 12 applied and Initial Environmental Examination/Environmenta l Impact Assessment Regulations 2000 had been framed in this regard and that in terms of Regulation 15 of Initial Environmental Examination/Environmental Impact Assessment Regulations 2000 approval was subject to confirmation of completeness issued by the Agency under clause (a) of sub-regulation (1) of Regulation 9 and in absence of such confirmation, Tribunal was not competent to consider grant of relief for the prayer made by appellant on deemed approval and that vide the impugned order application of appellant for grant of Environmenta l Approval had been returned and nothing was pending before the Environmental Protection Agency therefore, no question of application of deeming clause arose. He requested that relief on this point be declined.
5. Learned counsel has relied on the case of Maple Leaf Cement Factory v. Environmental Protection Agency 2018 CLD 153 but in that case EPA confirmed on 09.06.2016 that the EIA submitted by petitioner was complete for initiation of review process whereas in the present case EPA observed deficiencies/ shortcomings on part of appellant on 08.01.2019 while conducting preliminary scrutiny of IEE Report and other documents and these were communicated to him vide letter No. F8(IEE)/AD(EIA)-2019/178 dated 08.01.2019. No confirmation for completeness for initiation of review process from the Environmental Protection Agency is available on record therefore, due to distinguished facts the aforesaid esteemed judgment is not applicable to the instant case. In these circumstances, prayer of environmental approval deemed to be approved is declined.
6. Appellant applied for environmental approval before the EPA but his application remained pending before the Agency for a long period and then was returned with direction to approach the Tribunal. While passing the impugned order , respondent made the following observation:- "As per site inspection report received from field office Vide No.ADF/A TK/19/582 dated 11.07.2018, it revealed that the construction work had already been completed and crusher unit is operational which is violation of section 12 of the Act ibid."
Regulation 12 of the Pakistan Environmental Protection Agency Review of IEE and EIA Regulations 2000 provides that on completion of review , decision of the Agency shall be communicated to the proponent in the form prescribed in Schedule V in the case of an IEE. In the said schedule it is maintained that Agency shall after careful review of the IEE give the decision whereby it can either accord approval subject to conditions or ask the proponent to submit an IEE of the project.
7. As per requirement of law as contai ned in section 12 of the PEPA 1997 no proponent of the project can commence construction or operation unless he has filed an Initial Environmental Examination (IEE) and after reviewing the IEE, Provincial Agency has to accord its approval or ask for submission of Environmental Impact Assessment (EIA) by the proponent. Schedule V of the Regulations also provides that Agency can either grant approval or ask for EIA but in the instant case no such decision has been given, instead an ambiguous and absurd observation of returning the application for Environmental Approval has been made directing appellant that he should approach this Tribunal first for acquittal of the violation. No departmental or private complaint is pending before this Tribunal and even if it was pending there was no justification in returning the application till decision of such complaint. Further , there is no legal provision whereby proponent can approach this Tribunal for taking action against him for violation of the Act. Impug ned order reflects abuse of power and authority by respondents and has been passed without application of mind, thus being illegal and void is not sustainable in the eyes of law .
8. For the reasons mentioned above, appeal is accepted and the impugned order dated 24.09.2019 is set aside with direction to respondent to proceed on the application of appellant for Environmental Approval expeditiously and strictly in accordance with law . File be consigned to record room.