MUHAMMAD RAZA QURESHI, J. This is a Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 challenging the Recovery Notice dated 03.11.2021 for an amount of Rs.100,000/- issued by Inspector, Environment Protection Agency, Multan to Four Star Bricks Company, Karim Town, Multan (hereinafter referred to as "Impugned Notice"). Since this Writ Petition along with connected matters calls into question the legality and propriety of Impugned Notices of identical nature, therefore, through this Judgment, the Writ Petitions Nos. 18734/2021, 18041/2021, 18042/2021, 18043/2021, 18044/2021, 18053/2021, 18299/2021 are hereby decided together.
2. It is the gravamen of the Petitioner that he is running a brick kiln under the name and style of 'Four Star Bricks Company', which ceased its operation six months ago. The said brick manufacturing unit of the Petitioner is operating since 1980, which at the relevant time was falling outside the civic limits of Multan City. Subsequently, pursuant to direction contained in Order dated 15.10.2020 bearing Smog-2020/12/Coord-I issued by the Provincial Disaster Management Authority, Government of the Punjab, introduced 'Zigzag' technology to be applied by the brick kilns and accordingly were directed to shift from `Bull Trench' technology to 'Zigzag' technology. This transfer of methodology was aimed to assist in reducing the pollution and Smog in order to protect the quality of life of the citizens. However, according to learned counsel, for the Petitioner, pursuant to Policy issued by the Government of the Punjab and upon insistence of Environment Protection Agency, the Petitioner had no option but to cease its operation forthwith and since then, manufacturing unit of the Petitioner is at hiatus.
3. According to learned counsel during this halted status of manufacturing unit, the Petitioner was shocked to receive the Impugned Notice seeking recovery of Rs.100,000/- by the Respondents without identifying whether the brick kiln of the Petitioner was even operational or not. Learned counsel for the Petitioner submits that to protect the right to due process of law, it is mandate of law under the Pakistan Environmental Protection Act, 1997 (hereinafter referred to as the "Act") to issue Show Cause Notice to the Petitioner under section 16 of the Act. Without issuing Show Cause Notice or identifying the factual status at the site, the issuance of Impugned Notice tantamount to mala fide in law and the same is unlawful, arbitrary and tantamount to colourable exercise of jurisdiction.
4. Pursuant to Order dated 12.11.2021 issued by this Court, a notice was issued to the Respondents with the direction to file reply and parawise comments. The reply and parawise comments submitted by the Environment Protection Agency, Multan reflect that this Court through Order dated 19.12.2017. passed in Writ Petition No.34789/2016 constituted a Smog Commission, who submitted its Recommendations and Hon'ble Supreme Court of Pakistan through Orders dated 23.07.2018 and 11.10.2018 passed in Human Rights Case bearing No.6257-P of 2018 approved the said Recommendations of Smog Commission and ordered the Provincial Governments to implement the same and accordingly all brick kilns operating at respective sites were directed to convert the technology of brick kilns from 'Bull Trench' to `Zigzag' methodology.
5. Learned Assistant Advocate General has ably assisted this Court by submitting that since Smog was declared as a calamity under the Punjab National Calamities (Prevention and Relief) Act, 1958 and a Notification was issued on 01.10.2021 for declaring the Smog as a calamity. According to learned A.A.G pursuant to said Notification, a direction, inter alia, was issued to the Director General, Environment Protection Agency to ensure strict action against the units of brick kilns violating the Orders passed by this Court and impose fine from Rs.50,000/- to Rs.100,000/- under the Act, therefore, there is no illegality or mala fide in law involved in issuance of Impugned Notice.
Additionally, learned counsel submits that the Petitioner has an alternate remedy under the provisions of the Act to challenge the Impugned Notice, therefore, this Writ Petition is not maintainable. In response to query posed by this Court whether a show cause notice has been issued to the Petitioner or not, the department has failed to place on record any such Notice in this regard. Upon a query whether the brick kiln of the Petitioner is operational or not, the department has failed to submit a satisfactory answer.
6. Arguments of learned counsel for the parties have been heard and record has been perused. No doubt that Smog has been rightly declared as a calamity as on account of persistent deterioration in the air quality index causing breathing discomfort, respiratory tract diseases and asthma to the citizens. Especially in the prevailing Covid-19 pandemic such environmental conditions due to Smog enhance the risk of respiratory tract disease and on account thereof, not only the diseases are increasing but also the causality rate has increased especially in the Province of the Punjab. To curb heavy Smog, serious actions have been taken at the Government level and approved by the superior Courts of the. Country including imposing complete ban on burning of any type of crop residue; vehicles emitting visible smoke; industries working without emission control system; stone crushing operating without wet scrubbers; burning of solid waste, tyres, rubber and plastic; sale and use of all types of substandard fuels and more specifically a policy has been implemented for brick kilns for transforming their technology from old methodology i.e. 'Bull Trench' to 'Zigzag' technology.
7. To cater the violations of environment friendly policies, section 7 of the Act empowers to Environment Protection Agency, inter alia, to enter and inspect any land, building, premises or other places in which a reasonable ground to believe exist that an offence or violation of the provisions of the Act has been committed. Therefore, it is imperative first to identify that whether any brick kiln is functional or not or has violated the Orders passed by this Court in Writ Petition No.227807/2018 as well as Hon'ble Supreme Court of Pakistan by not converting its technology to 'Zigzag' and if the Environment Protection Agency is satisfied and arrives at a conclusion that any brick manufacturing unit has violated the Orders of this as well as Hon'ble Supreme Court of Pakistan, it shall be penalized with the fine determined under the applicable provisions of the Act.
8. Conversely, the mandate of law has always aimed to secure the inviolable Constitutional rights of every citizen available for protection under the doctrine of access to justice. It is an obligation of State functionaries to follow the mandate of law in its letter and spirit and it is a right of every citizen under Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 to be provided a right to due process of law, right of hearing and right to explain the fact as well as law.
This object can only be achieved if someone is confronted with an allegation against him, otherwise, an action or notice in failure to provide a right to due process of law would not only be violative of fundamental rights but also against the statutory provisions of law.
9. To satisfy the inviolable Constitutional rights to due process of law or right to access to justice the provisions of section 16 of the Act, comprehensively ensures justice in the following terms: "16. Environmental protection order.-(1) Where the Federal Agency or a Provincial 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 or regulations or of the conditions of a licence, and is likely to cause, or is causing or has caused an adverse environmental effect, the Federal Agency or, as the case may be, the Provincial 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 Federal Agency or Provincial Agency may consider necessary within such period as may be, specified in the order.
(2) .............
(3) ............
(b) ...........
(c ) ..........
(d) ..........
(3) Where the person, to whom directions under subsection (1) are given, does not comply therewith, the Federal Agency or Provincial Agency may, in addition to the proceedings initiated against him under this Act, the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deem necessary and may recover the reasonable costs of taking such measures from such person as arrears of land revenue."
10. Therefore, without following the mandate of law contained in section 16 of the Act, a direct issuance of Recovery Notice burdening the Petitioner with the penalties and fines in absence of Show Cause Notice not only betrays the mandate of justice but is also violative of his fundamental right. I find that the Impugned Notice has been issued without first satisfying the flow of statutory measures for confronting the Petitioner with allegations against him or granting him an opportunity to satisfy whether he has violated the provisions of law, SOPs or Orders of this Court, therefore, I find the Impugned Notice suffering from jurisdictional defect and hence unlawful.
Reliance in this regard is placed on case titled "Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others" (2001 SCMR 838).
11. So far as the challenge put forward by the Respondents to the maintainability of the Writ Petition is concerned, it is sufficient to hold that every fiscal law or regulatory statute and any law of this nature may provide a remedy of appeal against a lawful notice or legal action but under the law, there cannot be any remedy against a wrongful, illegal or unlawful notice. The issuance of Impugned Notice actually presupposes that the Petitioner has committed a violation, which means that the issuing authority of the Impugned Notice was sitting with a preconceived mind. In such circumstances, High Court has the judicial power to intervene in cases of wrongful exercise of statutory power in excess of jurisdiction, illegal exercise of discretion or abuse of power, procedure and course. Any other interpretation of scope of power of High Court under Article 199 of the Constitution of Pakistan would amount to restricting, limiting and ousting the jurisdiction of the High Court. Even otherwise, where the condition precedents described by the law for issuance of recovery notices are not enforced and actions impugned suffer from mala fide in law the rule of alternate remedy does not remain a rule of law as barring jurisdiction as through this rule the Courts regulate its own jurisdiction. Reliance in this regard is placed on case titled "Edulji Dinshan Limited v. Income Tax Officer" (PLD 1990 SC 399), "Messrs Kamran Industries v. The Collector of Customs (Exports), Karachi" (PLD 1996 Karachi 68), "Muslimabad Cooperative Housing Society Ltd. v. Mrs. Siddiqa Faiz and others" (PLD 2008 SC 135) and "Messrs Pak-Saudi Fertilizers Ltd. v.
Federation of Pakistan and others" (2002 PTD 679).
12. As an environmental sensitivity is involved therefore, to strike a balance between the parties, it is ordered that the Director General Environment Protection Agency either himself or through a designated officer such as Respondent No.3 shall:
(i) ensure that the Notifications, policies and directives issued by the Government of the Punjab to control the calamity of Smog are duly complied with and implemented by the Petitioners;
(ii) ensure that the Orders passed by the Hon'ble Supreme Court of Pakistan and this Court including Order dated 03.06.2021 passed by this Court in Writ Petition No.227807/2018 are duly observed and complied with by the Petitioners;
(iii) identify whether the brick kilns of the Petitioner of this Writ Petition as well as of other Petitioners in connected Writ Petitions are functional or not;
(iv) verify that if brick kilns are operational (contrary to their contention before this Court), have the Petitioners complied with the SOPs with respect to the shifting of the technology from `Bull Trench' to `Zigzag' methodology;
(v) verify the factual status and upon verification if it is proved that any of the Petitioner's kiln is operational without shifting to the `Zigzag' technology or any of the Petitioners is violating the Orders passed by Hon'ble Supreme Court of Pakistan or by this Court in Writ Petition No.227807/2018 or has violated the policy(ies) to control Smog the Writ Petition will be deemed to have been dismissed and the recovery notices shall be implemented and enforced forthwith.
13. The exercise contained in paragraph 11 of this Judgment shall be completed within a period of two weeks from the date of receipt of certified copy of this Order after issuing a notice of hearing to the Petitioner. The office is directed to send a copy of this Order to the Respondent No.2 for its implementation, who is directed to submit Report in this regard with the Deputy Registrar (Judicial) of this Court.
14. Till then no coercive measures shall be taken against the Petitioners for recovery of amounts under the Impugned Notices.
15. With these directions, this Writ Petition as well as connected Writ Petitions are decided accordingly.