QAISER RASHID KHAN, CJ. Through this common judgment, we intend to dispose of the instant six writ petitions bearing Nos.4256, 4257-P/2018, 2152-P, 69-A/2019, 2885 and 3075-P/2021, as common questions of law and facts are involved therein.
2. Brief facts in Writ Petition Nos.4256, 4257-P/2018, 69 A/2019, 2885 and 3075-P/2021, are that the petitioners have shown their serious reservations over the installation and operation of the Mobile Towers / Base Transceiver Stations (BTS) Towers near to the residential areas, hospitals, schools and also inside the public parks at Peshawar and Abbottabad primarily on the ground that the said Towers hold antennas and other communication equipments with powerful high frequency microwaves for the use of cell phones as well as Wi-Fi, WiMax, Wireless LANs, Bluetooth and other supported devices due to which a number of health problems particularly Cancer disease are being faced by the people in their respective areas. Besides that, the forest and fruit gardens are also affected by installation of BTS and the output of most of the fruits bearing trees have been drastically reduced. The petitioners have alleged that the concerned District Administration including the Authorities of the Environmental Protection Agency have failed to implement the International Laws, Guidelines and policies on the subject in order to protect the environment from the hazards of aesthetic pollution and radiations emitting from the Base Transceiver Stations and Microwave Antennas.
3. Through Writ Petition No.2152-P/2019, the China Mobile Pakistan Limited (CMPak Limited) through its Director Legal (the petitioner herein) has called in questioned the vires and legality of the "Guidelines for Installation of Base Transceiver Station (BTS) Sites" made by the Khyber Pakhtunkhwa Environmental Protection Agency (respondent No.1). It is alleged in the petition that the petitioner is a private limited company licensed by the Pakistan Telecommunication Re- Organization Act, 1996 (respondent No.2) to provide cellular mobile services in Pakistan having invested billions of rupees and has millions of customers across Pakistan. The petitioner has installed a countrywide cellular mobile network including installation of BTS as necessitated by the network design approved by the Frequency Allocation Board and the respondent No.2. While the Environmental Protection Agency is the provincial Agency established under section 5 of the KP Environmental Protection Act, 2014 and its functions and powers are provided under sections 6 & 7 of the ibid Act, which include the administration and implementation of the provisions of the Act and the Rules made thereunder and the Agency itself has not been vested with any powers to make Rules, Regulations or Guidelines, the Pakistan Telecommunication Authority is a Federal Regulator established under the Pakistan Telecommunication (Re Organization) Act, 1996 and has been mandated with specific powers, responsibilities and functions which regulates the licensed services of all the telecom lincesees operating in Pakistan. Further averred that the petitioner at the time of installing and operating its BTS towers including telecommunication equipment installed thereon and the steel tower of pole constructed for erecting such equipment had complied with all the requirements of the Protection from Health Related Effects of Radio Base Stations Antennas Regulations, 2008 and the ICNIRP Guidelines and as per the press release dated 23.02.2016 of the respondent No.2, the misconception regarding the hazardous affects of the wireless telecommunication equipment hoisted on BTS towers is incorrect and the same are working within the specified parameters defined by the regulator as well as relevant international bodies; that the respondent No.1 having no jurisdiction and means to test the electromagnetic emissions from the wireless telecommunication equipment hoisted on BTS towers except the emissions from independent power source obtained from generators for which the respondent No.1 has already made guidelines and followed by all concerned. Similarly, the respondent No.1 has no Rules or Regulations regarding the installation of BTS towers and more so, there is no basis for the petitioner or any other Cellular Mobile Operators to prepare an Initial Environmental Assessment or apply for a NOC prior to installing and operating their BTS towers. On 30.08.2018 two identical writ petitions were instituted with the prayer to protect the general masses from the hazards of environmental pollution by implementing zoning laws made for environmental protection, wherein, the respondent No.1 while submitting comments presented a copy of the impugned "Guidelines for Installation of Base Transceiver Station (BTS) Sites" which have been allegedly prepared pursuant to the query of this court as to under which law the respondent No.1 has sought to take action against the Cellular Mobile Operators. As the said 'Guidelines' made by the respondent No.1 are ultra vires of the KP Environmental Protection Act, 2014, beyond the jurisdiction of the respondent No.1 and in direct conflict with the exclusive statutory authority of the respondent No.2, therefore, the same be declared as without lawful authority, of no legal effect and set aside.
4. The respondent-PTA have submitted their comments, wherein, it has been stated that under section 3 of Pakistan Telecommunication (Re-Organization) Act, 1996 the Pakistan Telecommunication Authority has the mandate to regulate the establishment and maintenance of telecommunication system and provide telecommunication services in Pakistan. Further averred that the Pakistan Telecommunication Authority has no role to play in the issues relating to the Right of way under section 27(A) of the Pakistan Telecommunication (Re-organization) Act, 1996 and in fact it is the subject of the local administration and the Environmental Protection Agency being the concerned authorities which issues NOC to cellular mobile operators for installation of BTS in different vicinities of the cites. It is further clarified that since the Environmental Protection Agency established under the KP Environmental Protection Act, 2014 issues NOCs / Environmental approvals to the cellular mobile companies, therefore, the Environmental Protection Agency is the competent body to initiate action against the BTS towers, which violate the rules and regulations adopted by the Agency.
5. Pursuant to the directions of this court, the respondent EPA has also filed their respective comments wherein it has been stated that under section 2 (xx) of the KP Environmental Protection Act, 2014 deals with the matters pertaining to the radiation and section 11 of the ibid Act relates to environmental pollution emitted by the BTS towers. Under section 13 of the ibid Act, the petitioner and other mobile companies are bound to obtain environmental approval for installation and operation of their cellular service across the KPK. Further averred that the Environmental Protection Agency has already issued notices to the petitioner BTS towers under section 17 of the KP Environmental Protection Act, 2014 which do not fulfill the criteria laid down in the KP Environmental Protection Act and the Rules and Regulations made thereunder.
6. All that the learned counsel for the petitioner namely Mr. Hamza Siddique, Advocate, representing the China Mobiles Pakistan Ltd, in connected writ petition urges that while the Pakistan Telecommunication Authority (respondent No.2) is only capable to regulate the licensed services of all the telecom licensees operating in Pakistan under the provisions of the Pakistan Telecommunication Re-Organization Act, 1996, the Environmental Protection Agency is only an executive body and its functions and powers are to administrate and implement the provisions of the KP Environmental Protection Act, 2014; that the Pakistan Telecommunication Authority has conducted several surveys throughout Pakistan and its latest reports clearly suggest that the BTS towers are functioning within the specified parameters as defined by the Pakistan Telecommunication Authority. Further states that the Environmental Protection Agency has no powers to make Rules, Regulations or Guidelines in respect of installation and operation of BTS towers; that the Environmental Protection Agency has no jurisdiction in the matter of the installation of BTS towers by the cellular mobile operators and also in the matter of its clearance; that the Pakistan Telecommunication Authority has promulgated "Protection from Health Related Effects of Radio Base Stations Antenna's Regulations, 2008, which alleviates the environmental and health related effects of a cellular base station antennas; that the petitioner and the other mobile operators are not bound under the impugned `Guidelines' to either prepare an Initial Environmental Assessm ent or apply for `NOC' prior to installation of their BTS towers and more so, that the petitioner and other mobile companies have installed a number of BTS towers throughout the KPK without any prior approval / permission or for that matter seeking any NOC from the Environmental Protection Agency; that the impugned Guidelines, so made by the respondent No.1 are ultra vires to the KP Environmental Protection Act, 2014 as the Environmental Protection Agency has no powers to make the same; that the impugned Guidelines do not bear any date, name or designation of the approving authority, hence, the same have no binding effect upon the petitioner and other mobile companies. He thus contends that the impugned 'Guidelines' be declared as ultra vires, without lawful authority and of no legal effect upon the rights of the petitioner and other Cellular Mobile Services in Pakistan.
7. The learned counsel representing the Mobilink (Jazz), Ufone and Telenor support such arguments.
8. Mr. Shumail Ahmad Butt, the learned Advocate General on his turn opposes such arguments and contends that after the 18th Amendment, all the provinces have their own rules of business. He contends that the KP Environmental Protection Act, 2014 provides a proper procedure and mechanism to investigate any environmental or pollution issue, conduct surprise inspections or visits of any public or private premises, seal or seize the attachments, holding, property, equipment or material in the commission of pollution offences and also register a criminal case against any individual causing hindrances, obstructions in discharge of official functions of the Environmental Protection Agency; that no Cellular Mobile company in KPK shall start construction or operation of a BTS tower unless it has filed with the Environmental Protection Agency an Initial Environmental Examination (IEE), Environmental Impact Assessment (EIA) and obtained prior approval / NOC from the Environmental Protection Agency in this respect; that the Environmental Protection Agency has the powers to carry out and conduct environmental audits of those projects establishment before the commencement of this Act under section 6 (1) (xiii) of the KP Environmental Protection Act, 2014; that as per section 6 (1) (xvii), the Environmental Protection Agency is competent to identify the needs and initiate legislation in various sectors of the environment; that the Environmental Protection Agency has the powers to make rules and guidelines under the KP Environmental Protection Act, 2014; that since the Environmental Protection Agency has made the impugned "Guidelines" in reference to recommendation of the Environmental Assessment Advisory Committee and the Pakistan Telecommunication Authority, Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2009 along with International Commission on Non- Iodizing Radiation Protection, therefore, the same cannot be declared as ultra virus. He lastly contends that the petitions filed by the private individuals have practically become infructuous, after promulgation of the KP Environmental Protection Act, 2014, the Rules and Regulations made thereunder and the impugned Guidelines made by the Environmental Protection Agency as earlier there was no such law to investigate or for that matter monitor the installation and operation of a mobile / BTS towers in the province.
9. The learned counsel for the petitioners in WP Nos. 4256, 4257-P/2018, 69-A/2019, 2885 and 3075- P/2021 adopts the arguments of the learned Advocate General.
10. Mr. Ashfaq Ahmad Daudzai, the learned Assistant Attorney General by relying on the arguments advanced by the learned Advocate General states that while the Pakistan Telecommunication Authority deals only with the matters relating to the installation of the BTS towers under the provisions of the Pakistan Telecommunication Authority Regulation, 2008 i.e. Protection from Health Related Effects of Radio Base Stations Antennas Regulations, 2008, the Pakistan Telecommunication Authority has no jurisdiction to entertain the matters relating to Right of Way issues, which is the subject of local administration and environmental protection agency being the concerned authorities which issues NOCs to the Cellular Mobile companies for the installation and operation of the BTS towers.
11. Arguments heard and the available record perused.
12. Initially, writ petition Nos. 4256 & 4257-P/2018 were instituted by private individuals before this court, wherein, they raised serious reservations over the mobile / BTS towers, particularly in the residential areas, inside the public parks, schools and hospitals. Both these petitions have been pending before this court for quite a while, whereby, several directions have been issued to the concerned respondents including the KP Environmental Protection Agency, Peshawar and the Pakistan Telecommunication Authority from time to time.
On 18.10.2018, keeping in view the fact that the Mobile Towers / antennas installed in the residential areas are hazardous to human life as the emissions from the same in turn cause serious diseases as cancer, this court restrained the provincial government from issuing fresh NOCs to any mobile company for installations of the BTS / Mobile towers in the residential areas. Pursuant to such directions, Dr. Bashir Khan, the then Director General, Environmental Protection Agency, Peshawar had submitted a detailed report on 14.11.2018 based on the latest scientific research regarding the installation of the Antennas and mobile towers and as to how they are causing serious health problems including such fatal diseases as cancer in certain cases. On 6.12.2018 we again directed the Director General, Environmental Protection Agency, Peshawar to show strict compliance to the international standards in respect of installation and operation of such BTS towers and also issue notices to the heads of the Mobile Companies and discuss the matter with them and in case, they found the mobile / BTS towers or Antennas installed in the residential areas, near to the schools or mosques, they be removed forthwith. We also modified the interim order dated 18.10.2018 of this restraining the provincial government from issuing the NOC to any mobile company for installation of mobile towers in residential areas to the extent that the NOCs be given to those Mobile companies who conform to the requirements of Pakistan Telecommunication Authority and Environmental Protection Agency as well as the International Health Standards. In line with the ibid directions of this court, the Director General, Environmental Protection Agency conducted an overall survey of the residential areas of Peshawar in respect of the installation of mobile towers and antennas and submitted a report, whereby the Environmental Protection Agency found 20 towers / antennas of different mobile companies at Peshawar which did not meet the requirements of Pakistan Telecommunication Authority and Environmental Protection Agency as well as the International Health Standards. We accordingly, directed the Director General, Environmental Protection Agency to issue notices to their owners for removal of the same to safer places.
13. Undoubtedly, the use of mobile phone is very common and that is how, it drastically increases the possibility of human exposure to the microwave radiation in daily life. However, the effects of radio frequency electromagnetic fields on humans is becoming the focus of interest at the international level due to its potential threat to the health in general. In this respect, the Senate Standing Committee on Environment (Environmental Assessment Advisory Committee) held a meeting, wherein, the issues pertaining to health hazards caused by the radiations emitted by BTS and mobile phone antennas were discussed. The Committee gave some recommendations and actionable points in this regard and the concerned cellular companies were directed to get environmental clearance from the respective Environmental Protection Agencies prior to the installation of BTS towers. The Recommendations and Actionable Points are as under: RECOMMENDATIONS AND ACTIONABLE POINTS S.No.Recommendations of the CommitteeAction required by i.All mobile companies be directed to obtain clearance from EPA prior to installation of a Based Transmission StationCabinet Division Chairman PTA Pak-EPA Provincial EPAs ii.EPA should ensure that one tower is installed in an area. Cluttering of towers in a given areas should be strictly discouraged.Cabinet Division Chairman PTA Pak-EPA Provincial EPAs iii.It should be made mandatory for all the mobile companies to obtain an NOC from City District Government prior to installation of Based Transmission Station.Cabinet Division Chairman, PTA Provincial Chief Secretaries iv.Federal EPA should take a comprehensive survey to assess all the hazards caused by transmissions from basis Transmission StationsPak-EPA v.Subsequently, the Federal EPA should conduct a meeting of all stakeholders on the subject issue and inform the Standing Committee of its outcome within 15 daysPak-EPA vi.The Federal EPA should explore the possibility of utilizing Based Transmission Stations on rotation basis i.e. a period should be specified for each company. In addition to this, possibilities should also be explored for replacement of towers with small dishes as is being done in other countries.Pak-EPA vii.Federal / Provincial EPAs should explore the possibility wherein one tower is shared by maximum of three mobile companies. This should be done with a year.Pak-EPA Province EPAs viii.Studies should be conducted for reduction of size of the tower, optimally the size of the tower should be between 15-25 feet. Possibilities should be examined for installation of miniature towers.Cabinet Division Chairman, PTA Pak-EPA ix.Taking due cognizance of the fact that FATA / Tribal areas are lagging behind in cellular phone facilities, all mobile companies were to extend maximum facilities in these areas so that the inhabitants of these areas do not suffer from any sense of deprivation.Cabinet Division x.A mechanism should be developed by al the mobile phone companies so that the emissions from based transmission stations installed by them specially in the border areas and other strategic regions do not hinder or disturb the communication network established by Armed Forces in these areas.Cabinet Division Chairman PTA xi.PTA should take necessary departmental action against management of WARD and ZONG for not sending their representatives in the meeting.P&D Division xii.Economic Affairs Division should expedite arrangements for securing step loan from the Government of Japan for "Revival of Karachi Circular Railway Project".Economic Affairs Division xiii.The Chairman took serious note of non- attendance of Executive District Officer (Rev), CDGK in the meeting and directed that the Chief Secretary, Govt. of Sindh should conduct an inquiry on the recommendations made by the Standing Committee in Para 18-19 of the minutes of its meeting held on 16th August, 2008 and submit his report to the committee within a week.Chief Secretary, Sindh xiv.The Committee took also notice regarding delay in the release of funds for the CNG project and recommended that Secretary Environment should look into the issue and submit a report the committee within 10 days.MD (ENERCON) xv.The Committee recommended that the issues and challenges being faced by the force while discharging their responsibilities in the Province of Sindh should be brought to the notice of Ministry of Interior and Govt. of Sindh for immediate redressal.Chief Secretary, Sindh; Secretary, M/S Interior. xvi.The Committee took cognizance of the issue i.e. approval of PC-I for gas generator for Combined Effluent Treatment Plaint (CETP), Korangi, Karachi andJS (Dev), M/O Env. directed that the matter be taken up with the Secretary, Ministry of Environment to finalize the issue without any further loss of time.
14. Second meeting of the Environmental Assessment Advisory Committee (EAAC) was held on 4th December, 2008 at Pak EPA Office, wherein, the representatives of the Cellular companies were also invited. Suggestions made in EAAC meeting are reproduced herein below for ready reference: Suggestions made in EAAC Meeting Pakistan Telecom Authority (PTA) may issue license to telecommunication s network operators under International Commission on Non-Iodizing Radiation Protection (ICNIRP) Guidelines which may specify frequencies for maximum powers transmission; The cellular companies may be bound to obtain environmental approval from the concerned EPAs before installing BTS.
EPAs may also ensure compliance of ICNIRP Guidelines while issuing environmental approval of BTS; BTS towers presently working at populous sites should be compelled to adopt all the preventive and safety measures recommended by PTA and INCIRP; EPAs may procure Spectral Monitoring Equipment for measuring BTS radiation; Cellular companies may see possibility of replacing Microcellular based antennas with Microcellular based antennas that could be fixed at external walls of buildings as are used in other countries. As Microcellular antennas are a lot smaller than Microcellular antennas and can often be disguised as building features.
Independent Audit System for electromagnetic emissions (EME) from towers may be established'
EME reporting framework may be developed; Exclusion zones in the range 10-15, is required to ensure exposures remain within the ICNIRP guidelines for public exposure; BTS tower sites should be managed in such a way that there should not be any public exposure upto 25 feet circumstance; Cellular Companies may look into the matter of re-locating and re designing mobile towers.
GENSET installations may not be allowed in residential areas and noise sensitive areas. Operators should manage alternative source of power supply preferably UPS.
GENSET may have inbuilt system (acoustic reduction devices & cleaner fuel) to comply with Environmental Quality Standards for air and noise; Towers may be shared by at least three (03) mobile companies & all three have to get separate approval from the competent authority.
15. Before the Environmental Assessm ent Advisory Committee meeting held way back in November, 2008, there were no approved guidelines existed regarding the installation of BTS towers across the country. Keeping in view the instructions given by the Environmental Assessment Advisory Committee, the Provincial Environmental Protection Agencies across the country started work on the subject in order to streamline the BTS installation in their respective provinces. In the year, 2018, the KP Environmental Protection Agency has prepared and finalized the Guidelines known as "Guidelines regarding Installation of the Base Transceiver Stations Sites" in the light of the recommendations of the Environmental Assessment Advisory Committee, the Pakistan Telecommunication Authority Regulation 2009 known as Protection from Health related effect of Radio Base Station Antennas Regulations, 2009 and the International Commission on Non-Iodizing Radiation Protection (INCIRP) guidelines. The same were circulated amongst all the cellular companies for compliance. During the pendency of these writ petitions, three other similar writ petitions bearing No.69-A/2019, 2885 & 3075-P/2021 were filed by certain individuals showing the same reservations over the installation of the Mobile / BTS Towers in their respective areas.
16. The China Mobile Pakistan Ltd (CMPak Limited) also filed WP No.2152-P/2019, wherein, the vires of the said "Guidelines" have been challenged. At this stage, it would be more apt to reproduce the same as under: "Guidelines for Installation of Base Transceiver Station (BTS) Sites"
The BTS Guidelines prepared in reference to the Environmental Assessment Advisory Committee
(EAAC) recommendations (4th December, 2008) and Pakistan Telecommunication Authority (PTA)
"Protection from Health related effect of Radio Base Station Antennas Regulations, 2009 along with International Commission on Non-Iodizing Radiation Protection (ICNIRP) Guidelines are as follows:
1. Installation of BTS Towers in close proximity of High Voltage Transmission / Power Lines shall be avoided. However, the minimum distance between a BTS Tower and power line must be 120%.
2. The BTS Tower of almost 30 meters or more height to be installed within three (03) KM radius of Airport (OR) Air Bases, shall get advance NOC/approval from the Civil Aviation Authority (CAA) and will provide it to this Agency.
3. The proposed site for BTS Tower shall be at least 100 meters away from schools / Educational Institutions & Hospitals.
4. Installation of BTS Towers shall not be allowed within minimum 200 feet radius of the Heritage Buildings / Archeological sites so as to preserve their scenic value.
5. In residential area the permissible height of the tower should be minimum 35 meters, plot size shall not be less than 20m x 20m and minimum set back of 20 meters from the base of tower to boundary fence or nearest structure.
6. Installation of BTS towers shall not be allowed in narrow lanes in order to reduce risk caused by an environmental or any other natural hazard.
7. For the control of mushroom growth of BTS, the first preference should be co-sharing of an existing BTS tower by at least three (03) Cellular companies.
8. Cellular companies that intends to install a new single company BTS tower must provide documented prove of demonstrating all reasonable steps for co-sharing before applying for NOC to this Agency.
9. Antennas sites should be designed so that the public cannot access areas where the radiations exceed the ICNIPR guidelines, i.e. the minimum distance between the public and the radiating surface of the antennae may not be less 08 meters (25 feet) horizontally.
10. Roof mounted antennas shall be elevated at least 25 feet above the height of the people (who may have to be on roof top).
11. Radiating surface of all roof mounted antennas shall be kept 25 feet away from the public places including roof access points, telephone service points etc.
12. The distance among already existing and newly installed towers shall be at least 200 meters in urban areas and 300 meters in rural areas.
OPERATIONAL REQUIREMENTS.
1. The Telecom Company / firm will comply with all relevant provisions of Khyber Pakhtunkhwa Environmental Protection Act, 2014 and Rules and Regulations framed there under.
2. The company will be personally responsible for reducing risk of fire / explosion. All efforts should be made eliminate and possibility of fire / explosion.
3. The company shall install UPS / Solar System and use it in case of power failure.
4. The Generator set (GENSET) shall only be used in case of failure of UPS / Solar System.
5. The GENSET shall be installed in a sound / tremor barring and absorbing cabin having at least 10 feet high duct / stack from the nearest building for safe disposal of smoke and will be properly fixed to reduce vibration. Moreover, the noise and air emissions of GENSET shall be in compliance of Environmental Quality Standards for noise and air.
6. Restrictions of mandatory spaces and building Bye-Laws shall strictly be followed.
7. The Telecom Company shall be responsible for safe and stable erection of structure / BTS tower and every effort shall be made for rectifying any adverse social impacts during repair work.
8. There shall be no pending court case against any of the aforementioned sites. In case of any litigation due to installation at the proposed site, the proponent will be solely responsible.
9. The Telecom Company shall have to obtain fresh approval from EPA in case of any extension / addition of scope of the project.
10. EPA Khyber Pakhtunkhwa reserves the right to order any modification at site for public benefits if and when required.
17. Before discussion on the validity and legality of the KY Environmental Protection Agency Guidelines, 2018 in the light of the KP Environmental Protection Act, 2014 and the Rules and Regulations framed thereunder, it is more appropriate to reproduce relevant clauses of Sections 2, 4, 5, 6, 7, 11, 13, 17, 22, 24, 26, 27 and 36 of the KP Environmental Protection Act, 2014, which read as follows:- Section-2. Definitions.--- In this Act, unless there is anything repugnant in the subject or context,
(f) "air pollutant" means any substance that causes pollution of, air and includes soot, smoke, dust particles, odour, light, electro-magnetic radiation, heat, fumes, combustion exhaust, exhaust gases, noxious gases, hazardous substances and radioactive substances;
(q) "emission" means the extent of pollutant's discharges per unit time or the extent of pollutant per unit volume of gas, liquid or vapour emitted;
(r) "environment" means,---
(i) air, water and land;
(ii) all layers of the atmosphere;
(iii) all organic and inorganic matter and living organisms;
(iv) the ecosystem or flora and fauna, and ecological relationships;
(v) buildings, structure's, roads, facilities, installations and works;
(vi) all social or cultural and economic conditions and activities affecting community life; and
(vii) the inter-relationships between any of the factors specified in sub-clauses (i) to (vi);
(bb) "hazardous waste" means the waste which contains hazardous substances or as may be prescribed and includes healthcare risk wastes and radioactive waste;
(ff) "initial environmental examination" means a preliminary environmental review of the reasonably, foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an adverse environmental effect;
(gg) "Khyber Pakhtunkhwa Environmental Quality Standards" means standards established by the Agency under clause (v) of sub-section (1) of section 6 and approved, by the Council under clause (iii) of sub-section (1) of section 4;
(mm) "noise" means the intensity, duration and character of sound from all sources, and includes vibration;
(pp) "pollution" means the contamination of air, land or water by the discharge of emission of effluent or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavorably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity;
(ft) "proponent" means the person who proposes or intends to undertake a project;
(ww) "rules" mean rules made under this Act;
(xx) "radiation" means energy that is radiated or transmitted in the form of rays or waves; Section-4. Functions and powers of the Council.---(1) The Council shall,--
(i) co-ordinate, supervise and support enforcement of the provisions of this Act and the rules made thereunder;
(ii) approve comprehensive environmental policies, action plans and ensure their implementation;
(iii) approve the Khyber Pakhtunkhwa Environmental Quality Standards;
(iv) liaise and co-ordinate with other Provinces and Federal Government, through appropriate inter provincial forums, or Government Agency regarding formulation and implementation of standards and policies relating to environmental matters with an inter provincial impact;
(v) relax or make stringent the application of existing Khyber Pakhtunkhwa Environmental Quality Standards for one time or for a particular period for a specific activity or area or source under particular circumstances not- withstanding the provisions of this Act;
(vi) provide guidelines for the protection and conservation of species, habitats and biodiversity in general, and for the conservation of, renewable and non-renewable resources, solid waste management and water sanitation;
(vii) provide guidelines for bio-safety and for the use ofgenetical modified organisms;
(viii) co-ordinate integration of the principles and concerns of sustainable development into development plans and policies at the provincial, district and local levels by formulating / prepare district and provincial conservation strategies;
(ix) consider the Provincial Environment Report and give appropriate directions, thereon; and
(x) formulate a mechanism for implementation of Multilateral Environmental Agreements (MEAs) signed by the Government of Pakistan.
(2) The Council may, either itself or on the request of any person or organization, direct the Agency or Government Agency to prepare, submit, promote or implement projects for the protection, conservation, rehabilitation and improvement of the environment, the prevention and control of pollution, and the sustainable development of resources, or to undertake research in any specified aspect of the environment.
(3) (i) promote Eco-tourism initiatives, establish alpine and other type Botanical Gardens in suitable locations and develop a comprehensive Land Zonation strategy to save the agriculture and forest land; and
(ii) constitution of High Level Commission to resolve the issue of land ownership disputes between the government and local communities pending in courts for decades.
Section-5. Establishment of the Khyber Pakhtunkhwa Environmental Protection Agency.--
(1) The Khyber Pakhtunkhwa Environmental Protection Agency, already established under the Pakistan Environmental Protection Act, 1997 shall be deemed to have been established under this Act to exercise the powers and perform the functions assigned to it under the provisions of this Act and the rules made there under.
(2) The Agency shall be headed by a Director-General who shall be appointed by Government in the manner as it may determine.
(3) The Agency shall have such administrative, technical, legal and enforcement staff, as Government may appoint.
(4) The powers and functions of the Agency shall be exercised and performed by the Director- General.
(5) The Director General may, by general or special order, delegate any of the powers and functions to staff appointed under sub-section (3).
(6) For assisting the Agency in the discharge of its functions, Government may establish Advisory Committees for various sectors and appoint their members from amongst eminent position of the relevant sector, educational institutions, research institutes and non-governmental organizations.
Section-6. Functions of the Agency.---(1) The Agency shall---
(i) administer and implement the provisions of this Act and the rules made thereunder;
(vi) ensure enforcement of the Khyber Pakhtunkhwa Environmental Quality Standards;
(vii) establish standards for the quality of the ambient air, water and land, by notification;
(viii) establish different standards for discharge or emission from different sources and for different areas and conditions as may be necessary: Provided that---
(a) where these standards are less stringent than the Khyber Pakhtunkhwa Environmental Quality Standards prior approval of the Council shall be obtained; and
(b) list of areas, with the approval of the Council, in which any class of activities or projects shall not be carried out or shall only be carried out subject to certain specified safeguards;
(ix) co-ordinate with other Provinces, Federal Government, National and International Organizations for the implementation of environmental policies, issues concerns and programmes as may be prescribed;
(x) co-ordinate and facilitate the Government departments, agencies, organizations and institutions in the Khyber Pakhtunkhwa in adaptation to address the impacts of climate change;
(xi) establish systems and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit to prevent and control pollution, and to estimate the costs of cleaning up pollution and rehabilitating the environment in various sectors;
(xii) carry out and conduct environmental monitoring and implementation of environmental approvals provided in this Act;
(xiii) carry out and conduct environmental audits of old industrial units in accordance with rules; Explanation.-- Old industrial units means those established before the commencement of this Act;
(xiv) take measures to promote research and the development of science and technology which may contribute to the prevention of pollution, protection of the environment and sustainable development;
(xvii) identify the needs for and initiate legislation in various sectors of the environment; (xviii) provide guidance and technical assistance to the relevant Federal and Provincial Government Agencies in the management of natural and environmental incidents and disasters;
(xix) render advice and assistance in environmental matters including such information and data available with it as may be required for carrying out the purposes of this Act: Provided that the disclosure of such information shall be subject to the restrictions contained in the proviso to sub-section (3) of section 13;
(xx) assist Government Agencies, local councils, local authorities and other persons to implement schemes for the proper disposal of wastes so as to ensure compliance with the Khyber Pakhtunkhwa Environmental Quality Standards;
(2) The Agency may---
(i) undertake inquiries or investigation into environmental issues, either of its own accord or upon complaint from any person or organization;
(ii) direct any person to furnish any information or data relevant to its functions;
(iii) initiate with the prior approval of Government, requests for foreign assistance in support of the purposes of this Act and enter into arrangements with foreign agencies or organizations for the exchange of material or information and participate in international seminars or meetings;
(iv) recommend to Government and the Council the adoption of financial and fiscal programmes, schemes or measures for achieving environmental objectives and goals and the purposes of this Act, including---
(a) incentives, prizes, awards, rewards, subsidies, tax exemptions, and depreciation allowances; and
(b) taxes, duties and other levies;
(v) establish and maintain laboratories to help in the performance of its functions under this Act and to conduct research in various aspects of the environment and provide or arrange necessary assistance for the establishment of similar laboratories in the private sector; and
(vi) provide or arrange, in accordance with such procedure as may be prescribed, financial assistance for projects designed to facilitate the discharge of its functions.
Section 7. Powers of the Agency.--- Subject to the provisions of this Act, the Agency may,---(i) investigate any environmental or pollution issue;
(ii) enter into any premises with proper identification on the basis of reliable information to access the site where pollution offence is being committed or may likely to be committed or has been committed;
(iii) collect all sort of evidence regarding pollution offences from any premises, area, site, office, building, factory, display, exhibition etc;
(iv) call any information from any person required in inquiry or investigation of pollution offences;
(v) conduct surprise inspections or visits of any public or private premises for the purposes of this Act;
(vi) recover fines or charges levied upon any person by the Agency as arrears of Land Revenue;
(vii) seal or seize the attachments, holding, property, machinery, equipment or material involved in commission of pollution offences or take it into possession in a prescribed manner;
(viii) cause registration of criminal cases against any person causing hindrances, obstructions in discharge of official functions of the Agency; Section-11. Prohibition of certain discharges or emissions.--- (1) Subject to the provisions of this Act, rules, notifications and guidelines made thereunder---
(i) no person shall discharge or emit or allow the discharge or emission of any effluent or wastes or air pollutant or noise, load, concentration or level which is in excess of the Khyber Pakhtunkhwa Environmental Quality Standards or, where applicable, the standards established under sub clause
(vii) and (viii) of sub section (1) of section 6; and
(ii) no person shall discharge effluents, emissions or wastes in excess of load permitted in the conditions of environmental permit or environmental approval or license.
(2) The Agency, with the approval of Government, may levy a pollution charge on any person who contravenes or fails to comply with the provisions of sub-section (1), to be calculated at such rate, and collected in accordance with such procedure as may be prescribed.
(3) Any person who pays the pollution charge levied under sub-section (2), shall not be charged with an offence with respect to that contravention or failure.
Section-13. Initial environmental examination and environmental impact assessment.--- (1)No proponent of a project shall commence construction and operation unless he has filed with the Agency an initial environmental examination or where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Agency, environmental approval in respect thereof.
Section-17. 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 the provisions of this Act, rules, notifications and guidelines or of the conditions of a licence or permit or environmental approval , and is likely to cause, or is causing or has caused an adverse environmental effect and violation of Khyber Pakhtunkhwa Environmental Quality Standards, 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 that the Agency may consider necessary within such period as may be specified in the order.
(2) In particular and without prejudice to the generality of the foregoing power, such measures may include---
(i) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect;
(ii) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission;
(iii) action to remove or otherwise dispose of the effluent, waste, air pollutant, noise, or hazardous substances; and
(iv) action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission, or as close to such condition as may be reasonable in the circumstances, to the satisfaction of the Agency.
(3) Where the person, to whom directions or orders, under sub-section (1) are given, does not comply therewith, the Agency may---
(i) ask the district administration and police to enforce or execute such orders or directions;
(ii) institute complaint before Environmental Tribunal or Environmental Magistrate to prosecute the violator, polluter, offender or defaulter; and
(iii) impose and recover administrative penalty or pollution charges as may be applicable.
(4) Notwithstanding the provisions of sub-section (1), where, for reasons to be recorded, the Agency is satisfied that prima facie evidence exists of 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 the provisions of this Act and that the provisions of this Act will be otherwise violated, it may pass an ad-interim order without hearing requiring such person to take such measures that it may consider necessary provided that an ad-interim order must be followed by a hearing of the person affected at the earliest possible time but not exceeding thirty days.
Section-22. Jurisdiction and powers of the Tribunals.--- (1) The Tribunal shall exercise such powers and perform such functions as are, or may be conferred upon or assigned to it by or under this Act or the rules made thereunder.
(2) All contravention punishable under sub-section (1) of section 18 shall exclusively be triable by the Tribunal.
(3) The Tribunal shall not take cognizance of any offence triable under sub-section (2) except on a complaint in writing by---
(i) the Agency or any Government Agency or local council; and
(ii) any aggrieved person, who has given a notice of not less than thirty days to the Agency in case of complaint against private person or organization or to the officer responsible, in case of a complaints against government departments, local council and local authority of the alleged contravention and of his intention to make a complaint to the Tribunal.
(4) In exercise of its civil jurisdiction, the Tribunal shall have the same powers vested in a Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908).
(5) In exercise of its criminal jurisdiction, the Tribunal shall have the same powers as are vested in the Court of Sessions under Code of Criminal Procedure , 1898 (Act No. V of 1898).
(6) In exercise of the appellate jurisdiction under section 23 the Tribunal shall have the same powers and shall follow the same procedure as an appellate Court in the Code of Civil Procedure , 1908 (Act No. V of 1908).
(7) The Tribunal shall in all matters with respect to which the procedure has not been provided for in this Act, follow the procedure laid down in the Civil Procedure Code, 1908 and the Code of Criminal Procedure, 1898.
(8) The Tribunal may, on application filed by any officer duly authorized in this behalf by the Director-General of the Agency, issue a bailable warrant for the arrest of any person against whom reasonable suspicion exists, of his having been involved in contravention punishable under sub- section (1) of section 18: Provided that such warrant shall be applied for, issued and executed in accordance with the provisions of the Code of Criminal Procedure , 1898 (Act No.V of 1898): Provided further that if the person arrested executes a bond with sufficient sureties in accordance with the endorsement on the warrant he shall be released from custody, failing which he shall be taken or sent without delay to the officer in-charge of the nearest police station.
(9) All proceedings before the Tribunal shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of Pakistan Penal Code, 1860 (Act No. XLV of 1860), and the Tribunal shall be deemed to be a court for the purpose of section 480 and 482 of Code of Criminal Procedure, 1898 (Act No. V of 1898).
(10) No court other than the Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of the Tribunal extends under this Act and the rules made thereunder.
(11) All proceedings pending in the Tribunal established under the Pakistan Environmental Protection Act, 1997 (Act No. XXXIV of 1997), in respect of the Province of the Khyber Pakhtunkhwa, shall stand transferred to the Tribunals established and having jurisdiction under this Act. On transfer of proceedings under this sub-section, the parties shall appear before the Tribunal concerned on the date previously fixed.
(12) In respect of proceedings transferred under sub section (11), the Tribunal shall proceed from the stage to which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court from which the proceedings were transferred.
23. Appeals.--- (1) Any person aggrieved by any order or direction of the Agency under any provision of this Act, and rules made thereunder may prefer an appeal to Tribunal of competent jurisdiction within thirty days of the date of communication of the impugned order or direction to such person.
(2) An appeal to the Tribunal shall be in such form, contain such particulars and be accompanied by such fees as may be prescribed.
Section-24. Appeals from orders of the Environmental Protection Tribunal.--- (1) Any person aggrieved by any final order or by any sentence of the Environmental Protection Tribunal passed under this Act may, within thirty days of communication of such order or sentence, prefer an appeal to the High Court.
(2) An appeal under sub-section (1) shall be heard by a Bench, duly constituted by the High Court.
Section-25. Jurisdiction of Environmental Magistrates.--- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force, but subject to the provisions of this Act, all contravention punishable under sub- section (2) of section 18 shall exclusively be triable by a Judicial Magistrate of the First Class acting as Environmental Magistrate especially empowered in this behalf by the High Court.
(2) An Environmental Magistrate shall be competent to impose any punishment specified in sub-sections (2) and (4) of section 18 through a summary trial.
(3) An Environmental Magistrate shall not take cognizance of an offence triable under sub- section (1) except on a complaint in writing by---
(i) the Agency, or any government organization or a local council; and
(ii) any aggrieved person.
Section-26. Appeals from orders of Environmental Magistrates.---Any person convicted of any contravention of this Act or the rules by an Environmental Magistrate may, within thirty days from the date of his conviction, appeal to the Court of Sessions whose decision thereon shall be final.
Section-27. Power to give directions.--- Government shall give directions to the Agency in connection with the performance of its functions under this Act which shall be binding thereon.
Section-36. Adaption of laws, rules.--- Government may adopt any law, rules, notifications and guidelines mutatis mutandis to realize the objective of this Act.
18. Similarly, Sections 4, 5 and 6 of the Khyber Pakhtunkhwa Environmental Assessment Rules, 2021 and Schedule IV thereto, are reproduced herein for ready reference:- Section-4. Projects requiring an EIA or IEE or GEA.---Where the project falls with the categories mentioned in Schedules-II, III and IV, the proponent shall file EIA or IEE or GEA respectively, with the Agency.
Section-5. Directions for a specific project.---Where the project does not fall within the categories as mentioned in Schedule-II, III and IV and the Agency is of the opinion that said project may create an environmental hazard, the Agency shall direct the proponent to file an EIA, IEE or GEA, as the case may be, for reasons to be recorded in such directions: Provided that such directions shall not be issued without the recommendations in writing of the Environmental Assessm ent Advisory Committee.
Section-6. Preparation of guidelines for EIA, IEE and GEA.--- Guidelines for preparation of EIA or IEE or GEA of general and sectoral applicability may be specified by the Agency; provided that such guidelines may indicate specific assessment requirements for planning, construction and operation of a project relating to a particular sector.
Schedule-IV (see rule 4)
Categories of Projects requiring General Environmental Approval (GEA)
A. Energy
1. Hydro/Coal Power less than 01 MW.
2. Thermal Power less than 01 MW (other than coal power).
3. Solar power plants from 500 KW up to 01 MW.
4. CNG, LPG, LNG (filling and re-fuelling stations) and Petrol pumps.
5. Oil and Gas pipeline (06 inches and above dia) belowl0 Km.
B. Agriculture and Livestock
1. Agricultural projects involving repacking, mixing, formulation of Agricultural products.
2. Fertilizer grinding Unit, rock phosphate or other grinding of rock material.
3. Poultry Farms/control sheds having 1500-15,000 sq.ft. covered area.
4. Dairy Farm with 40 and above buffalos/cows.
5. Cattle Farm with 100 and above goats/sheeps.
C. Manufacturing and Processing
1. Fat Burning Units.
2. Cosmetic Industry.
3. Preservation and storage of animal skin.
4. Glue manufacturing.
5. Thinner below 10,000 gallons per annum.
6. Phenolic resins below 1000 tons per annum.
7. Poly Propylene mates/bags.
8. Soap and detergent Units.
9. Biscuits Factories.
10. Ice Factories.
11. Mineral water Units.
12. Cotton/Wool processing/cotton waste processing.
13. Paper boards.
14. Tobacco Kilns.
15. Block Factories.
16. Recycling Units (Paper, Plastic, Glass, Scrap, etc.).
17. Flour/Pulses/Rice Mills/Guar Gum Processing Mills.
D. Mining and Mineral Processing Crushing, grinding of stone and separation processes/soapstone/marble/chips/gypsum Units / limekilns / brick kilns/coal grinding.
E. Water Management and Irrigation
1. New Irrigation canals/ channels with length of 10 Km and above (or) serving 15,000 hectares and above.
2. Dams/reservoir with storage volume 10-20 million cubic meters.
F. Waste Disposal Hospital incinerators.
G. Telecommunication BTS Towers.
H. Miscellaneous
1. Slaughter Houses.
2. Vehicle Service Stations.
I. Other Projects Any other project for which filing of GEA is required by the Agency under rule 5 of these rules.
19. It is abundantly clear from the above provisions of the KP Environmental Protection Act, 2014 and the Rules and Regulations made thereunder as well as the comments furnished by the Pakistan Telecommunication Authority that not only the Environmental Protection Agency is competent to make the impugned guidelines to streamline the installation and operation of the BTS Towers of the various mobile companies across the province but also to establish standards for the quality of the ambient air, water and land by notification; conduct environmental audits of those units established before the commencement of this Act and initiate legislation in various sectors of the environment. Similarly, the Environmental Protection Agency is competent to investigate any environmental or pollution issue, conduct surprise inspections or visits of any public or private premises in this respect and seal or seize the attachments, holding, property, machinery, equipment or material involved in the commission of pollution related offences. Likewise, since the BTS Tower falls in Schedule-IV to the KP Environmental Assessment Rules, 2021, therefore, the petitioner and other mobile companies are to file Initial Environmental Examination (IEE), Environmental Impact Assessm ent (ETA) and General Environmental Approval (GEA) respectively with the Environmental Protection Agency.
20. In view of the foregoing discussion, we understand that the impugned 'Guidelines' prepared by the KP Environmental Protection Agency are in line with the KP Environmental Protection Act, 2014 and the Rules and Regulations made therein. As such, the arguments advanced by the learned counsel for the petitioner representing the Chine Mobile Pakistan Ltd (CMPak Limited) with respect to the validity and legality of the vires of the impugned `Guidelines' being based on misconception are hereby overruled. Needless to remark that the Environmental Protection Agency shall perform its obligatory duties strictly in accordance with the KP Environmental Protection Act, 2014 and the Rules, Regulations and Guidelines framed thereunder.
21. So far as connected Writ Petition Nos.4256, 4257 P/2018, 69-A/2019, 2885 and 3075-P/2021, whereby, some private individuals have expressed their serious reservations regarding the installation and operation of the Mobile Antennas and Towers installed near to the residential areas, schools, hospital and inside the public parks, suffice it to say that a proper procedure and mechanism has been provided in the KP Environmental Protection Act, 2014, therefore, they may better seek their legal remedy from the relevant forum notwithstanding the fact that with the passage of time, these petitions have practically become infructuous as this court has already issued directions to the Environmental Protection Agency for the removal of such mobile / BTS Towers, which do not conform with the requirements of Pakistan Telecommunication Authority and Environmental Protection Agency as well as the International Health Standards.
22. Accordingly, all these writ petitions stand disposed of in the above terms along with CMs.