NISAR MUHAMMAD SHAIKH, CHAIRMAN. This appeal has been filed by Appellant-Company under section 27 of Sindh Environmental Protection Act, 2014 challenging Environmental Protection Order
(EPO) dated 06.05.2021, passed by respondent No.1 under section 21(2)(a) of the said Act, directing the appellant-Company for closure of its business activities forthwith, on the ground that the Control Shed Poultry Farm of appellant was being operated without adopting appropriate measures to control pollution and odor and that the appellant also committed violation of section 17 of the said Act and the rules and regulations made thereunder.
2. We have heard Mr. Meraj ud Din, learned counsel for appellant, Mr. Khalid Munir Shah, Deputy Director Law, SEPA who is assisted by Mr. Imran Ali Abbasi, Deputy Director Technical, SEPA being respondent No.2 and also perused relevant record.
3. The learned counsel for appellant contended that no provision of Environmental Law has been violated by appellant-company which has been taking all necessary and requisite measures in its Control Shed Poultry Farm to prevent pollution and odor and any adverse environmental impact, therefore, action of issuing EPO for closure of business by the respondent No. 1 was in excess of his powers and thereby he acted arbitrarily in passing such order which is nullity in the eyes of the environmental law and therefore, section 21(2)(a) of the SEP Act, 2014 has been misapplied in this case. He further contended that even section 17 of the such Act is not applicable to the present case as it came into force in the year 2014 whereas the Poultry Farm of appellant-company was acquired from Messrs Noor Control Shed Poultry Farm in operational condition in the year 2006 and since then they have continued to run the same and as such section 17 of SEP Act, 2014 does not apply to this case having no retrospective effect. In support of this contention he placed reliance in a case of Pakistan Mobile Communication v. Abrar Ahmed and 4 others decided by a Division Bench of Lahore High Court, reported as 2019 CLD 578.
4. On the other hand, learned Law Officer of SEPA contends that appellant-company has never applied since 2006 for any approval or NOC as per requirement of Pakistan Environmental Protection Act, 1997 or SEP Act, 2014; that appellant was directed to take mitigating measures to overcome the pollution but he failed to do so; that until and unless study of Initial ' Environmental Examination is submitted by appellant before the Agency no adverse environmental impact can be accessed but the appellant is not prepared to comply with the direction of the Agency; that EPO was legally issued under section 21(2)(a) due to violation of section 17 of SEP Act, 2014 by the appellant since 2006 and till this time without any license or approval and thus, they are not carrying a legal business which is also a violation of Article 18 of the Constitution and therefore, they are not entitled to any relief.
5. During the course of arguments, learned counsel for appellant pointed out that the name of the present Company is Madina Breeding (Pvt.) Ltd. situated in district Hyderabad, whereas its second unit working in the same name and style is located at S.I.T.E area Kotri, district Jamshoro for which it has already filed a copy of letter dated 12.03.2020 issued by respondents for Renewal/Extension of Approval of Environmental Management Plan, whereby appellant was directed to comply with sections 11, 14, 17, 19 and 20 of SEP Act, 2014 and so also many other conditions mentioned in such letter of respondents. Accordingly, learned counsel submitted that appellant is ready to apply for similar environmental approval by submitting Environmental Management Plan to the respondents for due compliance but for this purpose appellant needs at least 90 days to fulfill legal requirements. In this regard, learned Law Officer also referred section 20 of the SEP Act, 2014 which reads that: "The Agency shall from time to time require the person incharge 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."
6. We have considered submissions of the parties in the light of relevant law. No doubt, impugned order for forthwith closure of the business activities of the Control Shed Poultry Farm of appellant- company, passed by respondent No.1-D.G SEPA under section 21(2)(a) of SEP Act, 2014 is beyond the scope of such provision of law which does not empower respondent No.1 to exercise his powers in excess or in the manner not provided in law. Such order of closure of the unit etc. can only be passed by Environmental Protection Tribunal under section 22(5)(b) of the said Act after due trial of the case and on conviction of the accused with punishment on commission of the offence.
7. So far as the retrospective effect of the SEP Act, 2014 or its section 17 is concerned, the plea of the appellant that they have continued to run the same Poultry Farm at the same premises since 2006 when they acquired it from its earlier owner/company, is supported by the documents on record.
Whereas section 17 of the said Act reads that: "No proponent of a project shall commence construction or operation unless he has filed with the Agency an Initial Environmental Examination or Environmental Impact Assessm ent, and has obtained from the Agency approval in respect thereof." Similar is the position in Sindh Environmental Protection Agency (Review of lEE and EIA)
Regulations, 2014 made under the said Act whereby its procedure is also prescribed in detail. Both these Act and Regulations of 2014 came into force at once, as specified therein respectively. Thus, these Act and Regulations of 2014 which replaced/repealed earlier Act of 1997 and Regulations of 2000 cannot have retrospective effect and are not applicable to this fresh matter of appellant- company on account of subsequent enactment made in 2014. In this regard, the contention of learned counsel for appellant gets support of the case cited in para No.3 above.
8. But nevertheless, the appellant-company which is still running its Poultry Farm has not yet got any approval from the Agency therefore, in view of the allegations levelled by the respondents that the said unit, as recently found by monitoring team of SEPA, was being operated without adopting appropriate measures to control pollution, odor etc. learned counsel on behalf of appellant frankly conceded for having necessary approval from the Agency but for this appellant needs at least 90 days for due compliance, as requested by him.
9. In view of peculiar and attendant circumstances of this case, the impugned order dated 06.05.2021 for the alleged violation of section 17 of the SEP Act, 2014 and closure of business of appellant's Poultry Fault under section 21(2)(a) of the said Act, is hereby set-aside with direction/ permission to the appellant to file Environmental Audit report and Environmental Management Plan before respondents-Agency within 90 days and also submit its copy to this Tribunal to be kept in record of this case.
10. Accordingly, this appeal is disposed of in the above terms, with no order as to the cost.