NISAR MUHAMMAD SHAIKH, CHAIRMAN. This appeal under section 27(1) of Sindh Environmental Protection Act, 2014 (the Act, 20111 has been filed by appellants challenging the approval dated 06.04.2022 of Environmental Impact Assessment (EIA) accorded by respondent No.1-Sindh Environmental Protection Agency (the Agency) to respondent No.2-Malir Expressway Limited (Proponent) for construction of Malir expressway (Project).
2. The project is described to be a 90 feet wide with six-lane, dual carriageway of 38.75 kms, a direct route for heavy vehicles from industrial areas of Landhi and Korangi, starting from Jam Sadiq Bridge on Korangi road and running along the right bank of Malir river through districts Korangi and Malir, and terminating on Motorway (M-9) at Kathore near DHA city, outside Karachi. The proposed project also includes 5 interchanges, 2 flyovers, 4 underpasses, 4 cross drainage bridges, 8 cattle and 31 cross drainage culverts. This project is scheduled to be completed in 30 months. Its estimated total cost is PKR-27.5 billion out of which, around 77% is public's money in the shape of Government of Sindh's fund and that of the syndicate of Banks backed by Government of Sindh's guarantee.
3. We have heard arguments and also gone through written synopsis of arguments and perused record as well as R&Ps available in official file of the Agency including EIA report.
4. At the very outset, the respondent No.2 (Proponent) in its reply to memo of appeal, has raised some preliminary/legal objections, one of. which is that this appeal is not maintainable as appellants are not aggrieved persons. Learned counsel for respondent No.2 contended that this appeal is devoid of any material so as to claim any grievance as the appellants in their appeal have not mentioned as to how they are aggrieved persons to challenge EIA approval specially when they neither participated in public hearing nor filed any objections to EIA report and that the alleged objections filed with this appeal as annexure A-2 are at best, an anonymous letter which bears no signature of appellants therefore they cannot be treated as aggrieved persons under section 27(1) of the Act, 2014. The same reads as under:
27. Appeals to the Environmental Protection Tribunal.-
(1) Any person aggrieved by any order or direction of the Agency under any Provision of this Act or the rules or regulations may prefer an appeal with the Environmental Protection Tribunal within thirty days of the date of communication of the impugned order or direction to such person.
5. On the other hand, learned counsel for appellants contended that the assertions of appellants made in paras 2 and 7 of appeal, that appellant No.1 is a concerned citizen, resident of district Malir and is directly affected by the project and that appellant No.2 being a scientist is very much concerned to environmental issues etc. and he attended public hearing and filed objections to EIA report and also sent reminders to respondent No.1, are not denied by concerned respondent No.1 in its parawise reply to this appeal and admittedly, the respondent No.1 had conducted public hearing and not respondent No.2. He further contended that appellants being residents of the project area, particularly appellant No.1 who resides in project impact zone, are aggrieved persons as is also affirmed on oath in the rejoinder affidavit filed by appellant No.2 who has already contested another appeal also, before this Tribunal as a concerned citizen. He also argued that it is well settled law that in environmental matters, locus standi is not strictly applied and that the language of Sindh Environmental Protection Act, 2014 and its Regulations of 2021, clearly show that the objections and appeals need not be brought only by the persons specifically aggrieved by the project and since the environment is a general concern to public trust, any person aggrieved may bring forward the case. He further argued that the appellants are also seriously aggrieved on the breach of various mandatory provisions of Environmental Law and therefore also, they have sufficient interest in the matter. In support of his contentions, he placed reliance on the cases reported as 1999 SCMR 2883, PLD 1969 SC 65, PLD 2014 Sindh 511, 2016 CLD 1011 and 2010 CLD 1555.
6. In rebuttal, learned counsel for respondent No.2 submits that the citations as relied upon by appellants counsel are inapplicable and do not support to their contentions and if their stance is adopted, it would render statutorily imposed precondition redundant as the appellants have failed to establish how they are aggrieved by the project or EIA approval and even, they have failed to show their personal interest in the matter. In support of his contentions, he also referred to para 13 of the same reported case already relied upon by appellants counsel i.e 1999 SCMR 2883, which is reproduced as under: "13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise ......"
7. It appears that the respondent No.1 who issued impugned decision of EIA approval, in his parawise reply to this appeal, has not denied the assertions of appellants made in paras 2 and 7 of their appeal, which is rightly pointed out by appellants counsel. It is also a matter of record that the present appellant No.2 in his same capacity i.e concerned citizen, has already contested as one of the appellants, before this Tribunal in the Appeal No. 09 of 2020 regarding Arif Belgaumi and others v. Sindh Environmental Protection Agency and another (2022 CLD 502), decided by this Tribunal vide order dated 09.11.2021. Such case was against the approval for development of Clifton Beach which was intended to be constructed by Cantonment Board Clifton (CBC) being a proponent of such project. As far as the citations relied upon by appellants counsel are concerned, the relevant passages from each, as referred to by him, are hereby reproduced one by one. In the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and 4 others (1999 SCMR 2883), the reference was made at para 12 to a well known treatise "Judicial Review of Administrative Action" (By de Smith, Woolf and Jowell), wherein the authors summarized the concept of locus standi in the context of 'sufficient interest' which also includes that: "A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community) environmental and cultural interests. The interests can be future or contingent."
In H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), in connection with affected person, it was observed (page 69) that: "The English courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal......"
In Pakistan Defence Officers Housing Authority v. Federation of Pakistan through Secretary, Ministry of Environmental Protection and 6 others (PLD 2014 Sindh 511), it was held (para 21) about the party aggrieved by the breach of provisions of Environmental Law, that: "......Every suit in which a declaration is sought is not, and does not have to be, a declaratory suit under section 42. What DHA is aggrieved by is a breach of the provisions of the 1997 Act and the 2000 Regulations. Those are the terms on which the declarations are sought. Such declarations (i.e., on account of an alleged breach of statutory duty) are routinely sought from the Courts and if the plaintiff is found entitled, granted in my view, a suit of the nature filed by DHA ought not to be tested on the anvil of section 42... "
In the above case, the High Court of Sindh also referred two judgments reported as PLD 2007 Kar.
293 and 2009 CLD 682, and observed (para 27, page 537) that in both these cases the petitioners were concerned citizens. Whereas in Feryal Ali Gauhar and others v. Environmental Protection Agency, Punjab and others (2016 CLD 1011-Lahore), the following portion of para 8 has been referred by learned counsel on the point that appellants have rightly availed alternate remedy before this Tribunal being aggrieved persons: "8. Apart from the above, section 22 of the Punjab Environmental Protection Act, 1997 runs as 'Any person aggrieved by any order or direction of the [EPA, Punjab] under any provisions of this Act may file an appeal to the Environmental Protection Tribunal, which is functioning at present in full strength with a Chairperson, Technical and General Members, after its establishment under the Punjab Environmental Protection Tribunal Rules, 2012.
Therefore, when the petitioners have alternate efficacious remedy available with them, they ought to have approached the said forums instead of approaching this Court seeking invocation of extraordinary constitutional jurisdiction... ...."
While the observations of this Tribunal recorded in the case of Syed Haroon Ahmed v. Messers Dadex Eternit Ltd. through Chairman and another (2010 CLD 1555), are as under: "16. An other objection taken by the respondent side is that the complainant is not an aggrieved person, therefore, he has no locus standi to file the instant complaint. In this regard, it may be noted that the complainant is brother of deceased. Furthermore the issue of environmental hazard raised by the complainant seems to be an issue of public interest, in which case principle of aggrieved person cannot be strictly applied...
8. Apart from above, we also find that the case of Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983) relied upon by learned counsel for the parties on some other point, was also filed by petitioners as concerned citizens of Lahore against the construction of a Signal free Corridor. It also appears from such case that in landmark Rio Summit 1992 which laid down the foundations for the global institutionalization of sustainable development, to which Pakistan is also a party, also emphasized inter alia in principle 10 of Rio Declaration that "Environmental issues are best handled with participation of all concerned citizens, at the relevant level....." In such circumstances, it appears that the concerned citizens like in this case, are not being prevented from placing their grievances before the competent courts or higher forums even if they are not direct affectees but they notice that environmental issues are handled wrongly or unjustifiably with illegality and irregularity etc. Accordingly, considering the submissions of contesting parties in the light of relevant record and the law, we are of the view that the appellants have had a right to approach this Tribunal as aggrieved persons being concerned citizens having sufficient interest and locus standi to be heard in the matter.
9. Next preliminary objection raised by respondent No.2 is that the appeal is not maintainable also on the ground that EIA approval is not appealable in terms of section 27 of Sindh Environmental Protection Act, 2014 which requires that an appeal can only lie against order or direction of the Agency and that the decision approving EIA cannot be termed to the an order or direction entitling any one to file appeal. In this regard learned law officer of respondent No. 1 also submitted that the appeal is bad in law and is not maintainable as against a decision which is not appealable.
Whereas learned counsel for appellants submitted that when a decision rejecting an EIA is appealable then how a decision approving an EIA is not appealable and that respondent No.2 is narrowing the scope and purpose of the Act by reading it incorrectly.
10. On the above controversy, we find that in one of the above referred citations i.e 2016 CLD 1011, the petitioners called in question the decision of Environmental Protection Agency, Punjab through which the approval for construction of the project was granted. It was prayed in such petition to declare inter alia, the impugned decision of EIA as illegal and without legal effect Lahore High Court observed that "when the petitioners have an alternative efficacious remedy available with them, they ought to have approached the said forum." Such forum was also held to the Environmental Protection Tribunal. In support of above, the High Court also placed reliance on six other cases including the one reported as 2015 SCMR 1739 (which on some other points, has also been relied upon by both parties to this case), in which the Supreme Court also observed that the right of appeal and further remedies on the merits of EIA approval available under Pakistan Environmental Protection Act, 1997 have not been availed by objecting respondents. It is clear from above that the appeal against EIA approval is to be -filed before Environmental Protection Tribunal and accordingly such appeals are being filed since the enactment of Environmental Protection Act, 1997 and now under the Act, 2014 and no case has been cited to show if any appeal against EIA approval has ever been returned or not entertained or dismissed on the ground that impugned approval of EIA is not appealable. Even otherwise, in the impugned order titled as 'decision' in the format provided in Schedule VII of SEPA (Environmental Assessment) Regulations, 2021, the conditions imposed therein are the directions the copy of which was also supplied to appellants as is admitted by respondent No. 1. Thus the requirement of sections 27(1) of the Act 2014 stands fulfilled.
11. In respect of further preliminary objection, learned counsel for respondent No.2 argued that this appeal is also time barred as section 27(1) of the Act, 2014 provides 30 days time limit for filing an appeal against impugned order which was issued on 06.04.2022 but this appeal was filed on 13.05.2022 with a delay of seven days which is not condonable. He submitted that no doubt the period of 30 days starts from the date of communication of impugned order but section 27(6) of the Act, 2014 provides that the Agency shall maintain Registers for IEE and EIA containing brief particulars of each project and a summary of decisions taken thereon which shall be open for inspection of public. He emphasized that such Register must be construed as notice to the public. at least in this case where there is no address or name with whom to communicate, as the objections relied upon by appellants who did not even attend public hearing, are at the best of anonymous persons and the time against them ought to start from the date of EIA approval and accordingly, the approval order dated 06.04.2022 impugned on 13.05.2022 makes this appeal barred by time.
12. Learned counsel for appellants conversely submitted that the appeal is well within time as the period of 30 days commenced from the date of communication of impugned order dated 06.04.2022 which was admittedly communicated by respondent No. 1 to the appellants on 26.04.2022 and as such the appeal tiled on 12.05.2022 was within prescribed limit of 30 days of the communication of decision and such fact is not denied by concerned respondent No. 1 in his reply to paras 7 and 8 of appeal hence nothing more is needed to prove such fact.
13. It seems from record that in para 7 of memo of appeal the appellants asserted that they attended public hearing and raised multiple objections and along with other concerned citizens, submitted comprehensive written objections (Annex. A-2) on EIA report and then they also sent reminders (Annex. A-3) to respondent No.1 to provide information about the status of their objections and EIA review process but respondent No.1 did not reply to it. Whereas respondent No.1 in his parawise reply, has not denied the above assertions stating that public comments and suggestions were considered and eventually the project was approved in accordance with law. In para 8 the appellants claimed that when it was reported in newspaper (Annex. A-4) that respondent No.1 has accorded approval, they immediately approached respondent No. 1 for obtaining copy of EIA approval and also the decision made on their objections, and then respondent No. I supplied copy of approval on 26.04.2022 but did not supply decision on their objections. This too was not denied by respondent No. 1 in his parawise reply stating only that the copy of decision was provided to appellants.
14. A perusal of respondent No.1's official file/R&Ps also shows the participation of appellants in public hearing held on 09.03.2022 and their names are appearing respectively at Sr. Nos. 214 and 232 of attendance sheet available at page 48-90 in the official tile. The minutes of public hearing available at pages 150-162 of official tile show the names of those participants who put questions or raised objections and the name of appellant No.2 is also appearing at page 156 as one of the objectors. He raised many questions and queries as was recorded by the Agency. The written objections dated 09.03.2022 lying in official file at page 270-276 also bear the signatures of four persons/climate activists including appellants No.2 at its last page after para 9, which page is however missing from copy of such objections filed as Annex. A-2 to memo of this appeal. At page 386 of official file, there is an application dated 26.04.2022 moved by appellant party/NGOs on a letter head of Indigenous Rights Alliance. Karachi' and its simple copy is filed with this appeal as Annex. A-3 which was moved to D.G SEPA for providing a copy of decision made on the objections and EIA approval.
15. The above facts and circumstances of the case and available record, however support the stance of appellants to the extent that they participated in public hearing, raised objections on EIA report and also tiled written objections and after approval of EIA they were supplied copy of decision of EIA approval on 26.04.2022 against which they filed this appeal on 12.05.2022 and as such the appeal is well within time prescribed in relevant section 27(1) of the Act, 2014.
16. It is also argued by learned counsel for respondent No.2 that the EIA report filed by respondent No.2 before the Agency on 13.10.2021 being complete in all respect, shall he deemed to have been approved on 12.02.2022 on expiry of the period of four months in terms of section 17(4) of the Act, 2014. lie further argued that for the first time a public hearing of the EIA was scheduled on 29.11.2021 which was postponed at the request of respondent No.2 due to non-availability of its consultant but thereafter respondent No.1 caused significant delay and did not schedule another date of public hearing until 09.03.2022 to which the respondent No.2 did not object as the project being Government's initiative was in the larger interest of public. On the other hand, learned counsel for appellants contended that the claim of respondent No.2 for their entitlement under deeming clause is misconceived as respondent No.2 admits that at its request the first public hearing was postponed so it cannot claim benefit of its own fault of delaying review process and that it has acquiesced from claiming benefit of section 7(4) by not objecting to public hearing on 09.03.2022.
In rebuttal, learned counsel for respondent No.2 contended that the benefit of deeming clause is unqualified and is not subjected to any acquiesce or waiver and the duty to conduct public hearing was of respondent No.1 so mere a single adjournment does not shift burden on respondent No.2.
17. It is an admitted position that respondent No.1 had scheduled public hearing to be held on 29.11.2021 and it was postponed at the request of respondent No.2. In this connection, official file shows that on 03.02.2022 the Agency issued a letter to Project Director (P.D) of respondent No.2 for his appearance before D.G of the Agency for personal hearing with explanation about the status of project and compliance of Environmental Law after the public hearing scheduled on 29.11.2021 was postponed. It was thereafter that public hearing was held on 29.03.2022. Such delay of more than three months from the first date of public hearing i.e 29.11.2021 to second date i.e 09.03.2022, was apparently due to the adjournment sought by respondent No.2 and then its further delay which resulted in personal hearing with explanation of P.D of respondent No.2 was also on their part as naturally, the fresh date of public hearing could not be fixed by respondent No.1 without consent of or consultation with respondent No.2. Accordingly the provisions of deeming clause in terms of 17(4) of the Act, 2014 are not attracted to be applied in this case.
18. On the other hand, appellants have also raised some argumentative preliminary objections on review process of EIA. On their first objection, learned counsel for appellants submitted that the consultation with Advisory Committee constituted under section 5(6) of the Act, 2014 vide notification of Government of Sindh dated 29.10.2018, is a mandatory requirement of law but the impugned approval was accorded without such consultation which is violation of law as the Advisory Committee and Experts Committee have to review the case and consider the reservation of community but the approval was granted without due process of law. In support of his submission he referred para 87 of the case reported as 2015 SCMR 1739 which is as under: "87. This was clearly not done in the present case. Further, section 5(6) of the Punjab Environmental Protection Act, 1997 imposed a mandatory duty on the Provincial Government to constitute Advisory Committees under the said Act. This committee is meant to assist the Environmental Protection Agency in evaluating the environmental impacts of the projects under consideration. The failure by the Provincial Government to constitute the said committee violated its statutory duty."
19. Whereas learned counsel for respondent No.2 submitted that though the function of Advisory Committees as prescribed under section 6(1)(b) of the Act, 2014 is to assist the Agency in preparing environmental policies for the approval of the Council, and not for any particular project, yet no provision of Environmental Law requires the approval of Advisory Committee prior to approval of EIA as the role of such committee is limited to only assist the Agency and no consequence has been prescribed if the advisory committee could not be consulted for assistance because such provision is not mandatory but is directory in nature as the Act or Regulations do not provide for invalidation of EIA approval in case the assistance of advisory committee could not be obtained. In support of his contentions, he relied upon the cases reported as 2021 SCMR 305 and 2021 SCMR
328. He further contended that the reliance of the counsel for appellants on the obiter observations of Supreme Court at para 87 in LDA case reported as 2015 SCMR 1739, is erroneous as at next paragraph 88 it was observed that "We would have struck down the EIA for these reasons but eventually decided against it." So, according to learned counsel, the Supreme Court used the word "these" instead of word "this" and such distinction clarifies that the reasons as referred at para 88 includes all that is said from paragraphs 1 to 88 and not only as said in paragraph 87, while the instant appeal does not involve any matter pertaining to Lahore Development Act, 1975 or doctrine of regulatory capture as discussed by the Supreme Court which is summed up by the words "these reasons". He therefore contended that the decision of Supreme Court cannot be read wrongly to mean that for the sole reason of non-consultation with advisory committee the Supreme Court would have struck down the EIA. He also contended that the appellants seek to strike down the approval through this Tribunal upon mere presumptions and apprehensions which was not done even by Supreme Court as is evident from paragraph 90 and on the contrary, at paragraph 93 the Supreme Court upheld the EIA despite the fact that no Advisory Committee was even constituted.
He also added that an Expert Committee was also constituted in this case under Regulation 21 of Regulations, 2021 for assistance in evaluation of the EIA and the Agency also obtained assistance of experts in the similar sprit of section 5(6) of the Act, 2014.
20. Both the parties counsel have relied upon the case of Lahore Development Authority and others v. Ms. Imrana Tiwana and Others (2015 SCMR 1739) in relation to the Advisory committee required to be constituted under section 5(6) of the Act, 1997 which reads as follows: "(6). For assisting the Federal Agency in the discharge of its junctions, the Federal Government shall establish Advisory Committees for various sectors and appoint as members thereof imminent representatives of the relevant sector, educational institution research institution, and non-governmental organizations".
Such Advisory Committee was not constituted by Govt. of Punjab though it was mandatory and statutory duty of provincial government as observed in the cited case at paragraph 87 already reproduced in paragraph 18 above. However, it is an admitted position that such advisory committee was notified by Government of Sindh under section 5(6) of the Act, 2014 on 29.10.2018.
This narrows down the controversy between the parties on the point in question. Now the remaining part of paragraph 87 of the said judgment, is that ".....This committee is meant to assist the Environmental Protection Agency in evaluating the environmental impact of the projects under consideration......."
The relevant paragraph 93 of the said judgment is also reproduced below: "93. Having dealt with the peripheral now to the consequential matter. As we are partly allowing these appeals, allowing the Project to be completed and upholding the EIA, the directions issued in paragraph 1004 of the judgment against various officials have to be vacated"
21. Accordingly, the consultation with advisory committee was required to assist the Agency during review process and prior to approval of EIA. Admittedly, in the above referred case, no consultation with advisory committee was held and no advisory committee was even constituted, however, the EIA was upheld and the Signal-free Corridor Project was allowed to be completed. No doubt, the advisory committee constituted under section 5(6) of the Act, 2014 could not be consulted upon by respondent No.1 of this appeal for seeking its assistance in evaluating the environmental impact or the project, but some other relevant provisions of the Act and Regulations are however complied with by the Agency as appears from R&Ps of official file. The case at hand is governed by the provisions of section 17 of the Act, 2014. This section deals with IEE and EIA as well as review and approval thereof. As per its subsection (5), the provisions of subsections (1) to (4) shall apply to such categories of projects and in such manner as prescribed. Accordingly, the Regulations were made under section 37(1) read with subsection (2)(t) of the Act, 2014 and called as "The Sindh Environmental Protection Agency (Environmental. Assessment) Regulations, 2021 which further provides for review process in Regulation 12, the relevant sub-regulations of which are as under: "(1) .....
(2) In reviewing an EIA, the Agency shall consult such Committee of Experts be constituted for the purpose by the Director General, and may also solicit views of concerned Advisory Committee, if any, constituted by the Agency.
(3) The Director General may, where considers it necessary, constitute a committee to inspect the site of the project and submit its report on such matters as may be specified.
(4) ........
(5) The review of IEE or EIA by the Agency shall be based on quantitative and qualitative assessment of the documents and data furnished by the proponents, comments from the, public and Government Agencies received under regulations 12, and Views of the committees mentioned in sub-regulations (2) and (3) above.
(6) ........."
22. The official file of the Agency shows that on 24.03.2022 the site was visited by a team of respondent No.1 and others and such minutes/report with photographs are available in such file which further shows that an Experts committee was also constituted under regulation 12(2) of Regulations, 2021 for evaluation of EIA and to assist the Agency in reviewing ETA report. The Members of Experts committee were consisting on the Senior Environmentalists, Head of Energy and Environment 10MB, Karachi, Department of Environmental Studies, University of Karachi, Structural Engineer, Senior Hydrologist. Air Quality Expert, Project Director; KUTC and Transport Experts. The meeting of such Experts committee was held on 01.04.2022 and its minutes were also recorded in detail which are also available in official file of the Agency. Apart from above, some other material/reports are also available in the R&Ps of the Agency and therefore, we are of the view that sufficient efforts were taken by the Agency to acquire assistance by different modes during review process prior to EIA approval and hereby reason of non-consultation with advisory committee constituted under section 5(6) of the Act, 2014 the respondents are not liable to be penalized to the extent of setting aside the EIA or remand of the case on such ground alone.
23. The remaining citations relied by the parties on the above point, are however distinguishable and not applicable to the instant case. The appellants also referred this Tribunal's order passed in the case of Arif Belguami and 4 others v. Sindh Environmental Protection Agency and another (2022 CLD 502). but in such case the project was not falling in any of the categories listed in the schedules therefore a particular category "K" of schedule-I meant for "other projects" which required an IEE, was applied by proponent but the same was specifically dependent upon the compliance of sub-regulation (2) of regulation 6 of SEPA (Review of IEE and EIA) Regulations, 2014 which mandatorily required recommendations of the Committee constituted under regulation 24 of the said Regulations, 2014 (now repealed on 09.09.2021) therefore, for such compliance as well as some other, the case was remanded to the Agency for due compliance in accordance with law.
Such case is however distinguishable and is inapplicable to the instant case in which the EIA has already been approved for the project falling under entry (2) category "E", Schedule III of newly framed Regulations, 2021. In support of the stance of learned counsel for respondent No.2 that the provisions of section 5(6) of the Act, 1997 or the Act, 2014 are directory in nature and not mandatory, he also referred two citations. Firstly, the paragraph 6 of 2021 SCMR 305 (Province of Punjab through Secretary, Excise and Taxation Department, Lahore and others v. Murree Brewery Company limited and another) which is reproduced below: "6. The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this is that the usage of the word 'shall' generally carries the connotation that a provision in mandatory in nature. However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision."
These observations were in relation to an issue whether section 79 of C.P.C. is a mandatory or directory provision. Secondly, he referred relevant passage of para 3 of 2021 SCMR 328 (Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal) which is as under: ".....A provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding...."
Such observations were given on the question whether the proviso to section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. is directory or mandatory. However, on relevant point, the observations quoted in both reported cages have some relevancy to the instant case as asserted by learned counsel for respondent No.2.
24. With regard to another point raised by appellants on non-compliance of the provisions of section 31(3) of the Act, 2014, their counsel submitted that in disregard of such mandatory provisions the comments received from appellants and the public on EIA report were not taken into consideration during review process and no action or decision was taken thereon, nor communicated to appellants or any other person concerned. He further submitted that the objections filed by appellants and others were also required to be responded with speaking order of the Agency and thus the respondents also violated the provisions of section 24-A of General Clauses Act, 1897 as the impugned order even, passed without showing any reasons, was also not a speaking order to address the objections raised during review process and public hearing. In support of his contentions he also placed reliance on the cases reported as 2015 CLD 772, 2015 CLD 983, 2015 SCMR 1739, 1998 PLC (C.S.) 1484, 2007 SCMR 1328, 2010 PLC (C.S) 1183 and PLD 1990 SC 1092.
25. On the other hand, learned counsel for respondent No.2 contended that the procedure provided under section 31(3) of the Act, 2014 was fully complied with and it only requires the Agency to consider the public objections if any and not to reply specifically to any public objections raised. In this regard, he also referred the case relied by counsel for appellants i.e Pakistan Defence Officers Housing Authority v. Sindh Environmental Protection Agency and 2 others (2015 CLD 772) saying that a Division Bench of Sindh High Court after considering a submission that an EIA approval should be set aside as objections were not accepted or rejected through speaking order, observed that: "..In fact the law does not impose the responsibility of adjudication of grievances of stakeholders while approving EIA however, law provides for reasoning only when the Agency after examining the EIA rejects the project being contrary to the environmental objectives and in case where EIA is granted law only provides that the approval shall specify the conditions subject to which it is accorded, and in the instant case approval specifies such condition on the basis whereof approval was accorded."
He further submitted that it is clear from EIA approval that it was not unconditional but it prescribes 24 conditions which are well reasoned for the grant of EIA. Regarding section 24-A of General Clauses Act, 1897 he submitted that from the language of its subsection (2) the requirement to give reasons is qualified to only it is necessary or appropriate. The same is reproduced below: "(2). The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of order or, as the case may be, the direction to the person affected prejudicially."
Learned counsel for respondent No.2 again referred 2015 CLD 772 to contend that the High Court has already observed that it is neither necessary nor appropriate for Agency to issue reasons on each and every public objection and even otherwise, the appellants have not made any objections prior to this appeal. In respect of the citations relied upon by counsel for appellants, he submitted that all these are not applicable and are distinguishable specially the most strenuously argued case reported as 2015 CLD 983, the decision of which was appealed before Supreme Court which time and again observed in its judgment reported as 2015 SCMR 1739 that they do not agree with impugned judgment and accordingly the rationale that reasons must be given on public objections, was not upheld and therefore it is no longer applicable.
26. We have considered the above submissions and gone through the case law. The relevant subsection (3) of section 31 of the Act, 2014 reads as follows: "3. All comments received under subsections (1) and (2) shall be duly considered by the Agency while reviewing the environmental impact assessment or strategic impact assessment, and decision or action taken thereon shall be communicated to the persons who have furnished the said comments."
Learned counsel for appellants has stressed upon the compliance of the above provision contending that no reasons were shown and no speaking order was passed by the Agency specially on accepting or rejecting the comments and objections received from the appellants and the public. In this regard, he relied upon the same case reported as 2015 CLD 772 but we find nothing in it to favour appellants on the requirement of giving any reasons or passing speaking order. Learned counsel for respondent No.2 submitted that this reported case, on the contrary, supports the case of respondents on most of identical points. However, in another case of Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983), the requirement of the reasons and the speaking order was held necessary. Through such judgment the Lahore High Court set aside the impugned EIA approval but on appeal, the same EIA was upheld by Supreme Court in Lahore Development Authority and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739) and allowed the project to be completed. Learned counsel for respondent No.2 also pointed out that in such judgment which is relied by appellants also, no word regarding speaking order has been used. So far as the remaining citations relied by counsel for appellants are concerned, the same as per counsel of respondent No.2 are distinguishable and not applicable to this appeal.
However, from the case of Zain Yar Khan v. The Chief Engineer C.R.B.C. WAPDA, D.I Khan and another (1998 PLC (C.S.) 1484-SC), the Counsel for appellants referred the following portion of page 1492: "....In departmental appeals, equally covered by section 24-A (ibid), but belonging to a higher genus, as the same attract quasi judicial functions, necessary treatment of reasons therein, cannot but be sine- quo-non for orders issuing therefrom. Even so, the fora, in which such orders are questioned, in the instant case the Service Tribunal and ultimately this Court, have a discretion either to simply set aside the departmental appellate orders for want of necessary reasons or, where the justice of a case so demands, to discover the reasons, if discernible from the record, to uphold the finding, if the finding appears to be otherwise just, convenient and purposeful."
The above observation in a service matter of WAPDA employee, also says about the discovery of the reasons from the record, where the justice so demands. In the case of Capital Development Authority and another v. Shaheen Farooque and another (2007 SCMR 1328), the relevant part of para 7, as referred, is as under: ".....Verbal order has no sanctity in law and such orders are alien to the process of the law and the courts. All orders passed and acts performed, particularly, by the State/public functionaries and adversely affecting anyone must be in writing, as section 24-A(1) of the General Clauses Act, 1897, envisages that the powers shall he exercised reasonably, fairly and justly and subsection (2) further makes it necessary that the authority passing orders shall, so far as necessary or appropriate, give reasons for making the orders and unless the order is in writing, the reasons and fairness, etc. thereof cannot be ascertained....... ".
This is also inapplicable being in respect of verbal orders relating to the allotment/cancellation of the commercial plots. In the case of Chairman State Life Insurance Corporation and others v.
Hamayun Irfan and 2 others (2010 PLC (C.S.) 1183-SC), the relevant passage of para 10 as referred, is given below: "..... After addition of section 24-A in the General Clauses Act it is duty and obligation of competent authority to decide the cases of their subordinates after application of mind with reasons. The impugned orders passed by the authority against respondents did not disclose any reason and application of mind, therefore, impugned orders passed against the respondents are not sustainable in the eyes of law as law laid by this court in various pronouncements....."
It was also a service matter of the officers of State Life Insurance Corporation and was on different footings, not attracted to the case in land. In Amanullah Khan v. Federal Government of Pakistan and others (PLD 1990 SC 1092), the relevant part of para 49 as referred, is as under: "49. The provisions of the Ordinance regarding registration of Stock %Exchange being regulatory in nature, concerning the Fundamental Right or freedom of trade, business or profession have to be construed strictly and beneficially. For that reason, wherever a hearing has been provided it has to be meaningful wherever the competent authority has been given the power of refusing registration after hearing, the reason for it has to be recorded and communicated to the parry adversely affected so that it can promptly and meaningfully secure its remedies of revision or review."
It is relating to the matter of refusing the applications for registrations as Stock Exchange under Securities and Exchange Ordinance, 1969. All the above four citations are not attracted to the case in hand being distinguishable on material particulars, specially when the comments/ objections furnished by appellants and others on the day of public hearing, the copy of which has been filed with this appeal, do not show the names, address or contact numbers of appellants so as to be intimated/communicated the decision/action etc. taken by the Agency in compliance of section 31(3) of the Act, 2014 and section 24-A of General Clauses Act, 1897. However, the objections of all concerned were noted and considered by respondent No.1 as appears from the R&Ps of official file.
27. Next point raised by appellants counsel is that the Agency illegally granted Ex-post facto approval in Aril, 2022 for the project that had been going on since December, 2020 and thus, it is also a violation of section 17(1) committed by respondent No.2 with the help of respondent No.1 by initiating construction prior to EIA approval. This is controverted by counsel for respondent No.2 contending that it is not tenable to say that a project can never obtain EIA approval post commencement of work and that the Law prescribes a penalty under section 22(1) of the Act, 2014 in case the contravention of section 17(1) of the same Act is proved as the project is being developed in accordance with law. On this controversy, we find that the action could be sought to be taken by filing a proper complaint under section 26 of the Act, 2014 if the provisions of section 17(1) read with sections 23/24 of the same Act were violated. But at present, the alleged-violation requiring a penal action, is not a ground to set aside an EIA.
28. Assailing .EIA approval dated 26.04.2022 accorded by respondent No.1, learned counsel for appellants contended that the impugned approval was signed and issued by a Deputy Director of the Agency merely mentioning in the last para that "This is issued with the approval of D.G. Sindh EPA", though he had no authority under the law to approve the same and even the D.G. has also no authority to delegate such powers which could only be exercised by him to pass such a judicial and appealable order. He further contended that after the impugned approval issued by a Deputy Director on 06.04.2022, the D.G then issued a new approval dated 10.06.2022 to damage the case of appellants by filling the gaps after filing of this appeal on 12.05.2022 and that such re-issuance of new approval is illegal, abuse of authority and interference in the process of legal proceedings and is in violation of law.
29. On the other side, learned counsel for respondent No.2 contended that it was reiterated by D.G of the Agency by replying to ground "C" in his objections to this appeal that the EIA was approved by him while the issuance date of 06.04.2022 was of its communication made by Deputy Director and that such reply to memo of appeal has been verified by D.G, by affirming the impugned approval and the effect thereof. He also contended that the alleged defect was curable in nature and accordingly the D.G has also signed the approval letter dated 10.06.2022 as the impugned decision is substantially in the form prescribed by the Regulations, 2021 and that such approval is not a judicial order as no adjudicatory function is performed by the Agency while granting approval in terms of section 17(2)(a) of the Act, 2014. He further contended that the EIA approval signed by D.G on 10.06.2022 in substance and contents is exactly the same and identical as the approval dated 06.04.2022 and that if the approval dated 10.06.2022 is considered as a new approval then the same has not been challenged in this appeal by seeking amendment nor the separate appeal has been filed against such approval and accordingly, no question of rebutting the validity of such approval can be raised in this appeal which has become infructuous. He also contended that the subsequent letter of approval dated 10.06.2022 was in continuation of earlier letter of approval which is evident from communication letter dated 06.04.2022, the relevant note- sheet and the reply to memo of appeal signed by D.G, and that the subsequent letter dated 10.06.2022 has only been issued by way of abundant caution to be in line with strict letter of this Tribunal's dictate in the case of Arif Belguami (2022 CLD 502) and to remove any doubt as to the impugned approval dated 06.04.2022 allegedly issued without approval and dictate of D.G. He also argued that the curable matters and defects must never be allowed to interrupt public projects specially when curative and positive steps have already been taken and that if the appellants are considering the same as a separate approval, it is worth mentioning that the appellants have failed to file any appeal against the same and such relief has become hopelessly time barred.
30. Refuting the arguments of learned counsel for respondent No.2 it is contended by learned counsel for appellants that the first approval dated 06.04.2022 is unlawful and without legal authority and second approval dated 10.06.2022 is also in violation of law because appellants right to appeal had already been created and the matter was subjudice when second approval was issued and that after filing the present appeal only this Tribunal if it deemed fit, could have directed respondent No.1 to issue a new approval. To support his contentions, he also placed relied on the cases reported as PLD 1969 SC 407, 2022 SCMR 595, 2005 SCMR, 25, PLD 1990 SC 1092, 2020 SCMR 1957 and 2022 CLD 502.
31. In reply, learned counsel for respondent No.2 added that the EIA was approved by D.G and the letter dated 06.04.2022 was only a communication of D.G's approval which can be seen in the note-sheet of the summary available in R&Ps of the Agency and that when the D.G was pointed out about such defect/mistake he applied his mind and re-issued letter of approval with his own signature and that non-signing of initial approval dated 06.04.2022 may, at the best, be considered only a procedural defect, non-compliance of which results in a curable defect. He further argued that it is a well-settled principle of law that technicalities should be avoided specially where the defect has been cured and that the substantial justice is always to be done. According to him, the pendency of this appeal does not automatically restrain D.G from exercising his statutory authority and there was no stay order in the field in this regard. He also placed relied on the case reported as 2003 SCMR 318.
32. Whereas learned law officer of respondent No.1 submitted that as per long standing practice since the enactment of Pakistan Environmental Protection Act, 1997 and then its substituting Sindh Environmental Protection Act, 2014, the IEE or EIA approvals used to be accorded by D.G by signing on such note-sheet of the summary and then the IEE or EIA approving decisions in the form of the letters, were used to be issued by the concerned Deputy Directors with their signatures after putting a note in the end of such approving letters that "This is issued with the approval of competent authority i.e Director General, Sindh EPA." He further submitted that it was first time that this Tribunal in the case of Arif Belguami and 4 others v. Sindh Environmental Protection Agency through D.G and another (2022 CLD 512) observed that D.G cannot delegate such powers of the Agency to any staff member unless empowered to do so under the statute but, inadvertently, the earlier practice was followed when the Deputy Director concerned, on the basis of the approval duly signed by D.G on the relevant summary, issued such EIA approval letter dated 06.04.2022 mistakenly with his own signature on behalf of D.G. He also submitted that it was all in good faith and no sort of any mala fide can be attached to it and it was therefore, such defect was cured and rectified within one month of the filing of this appeal, by re-issuing the EIA approval letter with the signature of D.G before hearing the arguments of the parties in this appeal and such re-issuance of a letter for an EIA already approved by D.G himself, cannot be termed to be a new approval as there is no change of any word in any of the terms and conditions of both these approval letters consisting on 4/5 pages which were issued subject to stringent conditions.
33. Perusal of citations from appellants side, shows that in the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himaryatullah Farukhi (PLD 1969 SC 407), it was held (page 412) that: ".....The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the determent of those rights."
In the cited case, the Government of Pakistan preferred appeal against the decision of the High Court whereby the order of the President of Pakistan, withdrawing his earlier order made in favour of respondent fixing his basic salary, was held to be without lawful authority. In the case of Sindh Irrigation and Drainage Authority v. Government of Sindh and others (2022 SCMR 595) it was held at para 13 that: "....Public functionaries owe fiduciary duty to act in good faith and discharge their duties with honesty and in accordance with law. If a public functionary does not exercise such power in good faith and with honesty, the principle of merit gets compromised which damages the superstructure of merit, competence ad good governance...."
The point in issue in the above case was relating to the appointments of the staff in tube-well division by the Executive Engineer instead of Board of Management. From the case of Abid Hussain and others v. P.I.A.C. and others (2005 SCMR 25) the following para has been referred by appellants' counsel: "14. In his Treatise 'Discretionary Powers' which is Legal Study of Official Discretion D.J. Galligan has acknowledged that "the general principle that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner." According to celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers."
In the above case 27 pilots out of 34 were sent for training on Boeing-777 in USA depriving the petitioners from such training without any reason and the Supreme Court decided their appeals directing that respondents shall consider the nominations of appellants for such training in the next training course. In Amanullah Khan and others v. The Federal Government of Pakistan and others (PLD 1990 SC 1092) the reference has been made to the last portion of para 62, which says: "......Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression that in the first instance but where the authorities failed to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
The cited case is already referred at para 26 above on some other point, in relation to the applications for registrations as Stock Exchange under Securities and Exchange Ordinance, 1969. In Lahore Development Authority and another v. Muhammad Tariq Niaz (2020 SCMR 1957) the last passage of para 7 as referred, is as under: ".....It is worth mentioning that the conduct of the appellant/defendant was not aboveboard, rather they acted in a manner which was squarely against the dictates of justice. This practice if allowed to continue it might frustrate public confidence qua public functionary which might be detrimental to uphold the public order which is paramount to keep the society in peaceful atmosphere; therefore, the public functionaries are expected to perform their duties well within prescribed limits of the law of the land."
In the above case, the re-auction of the plot already auctioned was called a in question by filing declaratory suit which was decreed by trial court and maintained in the appeal and then civil appeal filed against judgment and decree were dismissed by High Court, Lahore and also by Supreme Court holding that the appellant/defendant was grossly unjustified to issue another proclamation for public auction, once its valid acceptance was made by respondent/plaintiff. In Arif Belguami case(2022 CLD 502) which is already referred twice in paras 7 and 23 above, the IEE approval was signed and issued by Deputy Director (Technical-VI) of the Agency mentioning in last para that "This is issued with the approval of Director General Sindh EPA". In this regard. while referring relevant provisions of the Act and Regulations, it was observed by this Tribunal that: "....The D.G. cannot delegate such powers of the Agency to any staff member unless empowered to do so under the statute ..." In view of the above and other legal aspects of the appeal and without dilating upon its merits on factual controversy, this Tribunal disposed of the appeal by remanding the case to respondent No. 1 to decide the same afresh in accordance with law. Whereas learned counsel for respondent No.2 quoted the following passage from page 322 of the judgment rendered in the case of Mst. Arshan Bai through Mst. Fatima Bai and others v. Moula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318): ".......lt has been held time and again by this Court that technicalities shall not create hurdles in the way of substantial justice. Rules and Regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities......"
In the above reported case at its last page 324 a reference was also made to a case of The State v.
Asif Adil and others (1997 SCMR 209) in which it was held that a party should not be made to suffer on account of an act or omission on the part of the court or other state functionaries.
34. It seems from the above material and the law that the position of the case in hand, so far as the point in issue is concerned, is quite different and peculiar in nature. In the case reported as PLD 2020 SC 338 which has already been relied upon by learned counsel for respondent No.2 in connection with some other point, also says in para 17 that "........ it is well settled law that each case is to be decided on its own peculiar facts and circumstances." So, no doubt, the above mentioned passages of the citations as referred by learned counsel for appellants. are important on the principles that the public functionaries owe a fiduciary duty to act in good faith and are expected to perform well within prescribed limits of law and that the courts have to intervene in exercise of the powers appearing arbitrary and that the discretionary decisions should be made according to rational reasons. But at the same time, learned Law Officer has explained that the Deputy Director had inadvertently issued EIA approval letter with his own signature though the approval was already accorded by D.G himself with his signature on such summary and that such mistake was occurred in goodfaith with no sort of mala fide as such defect was rectified by re-issuing the same approval under the signature of D.G and as such, the defect in question was cured prior to hearing of arguments by this Tribunal and that re-issuance of EIA approval cannot be termed to be a new approval. This explanation of law officer seems to be plausible in peculiar circumstances of this case and accordingly, re-issuance of proper EIA approval in good faith in place of earlier issued defective approval excludes the application of both points relating to the exercise of discretionary powers or use of arbitrary powers so as to be termed as misuse of powers by public functionary: the respondent No.1 herein. Moreover, by issuance of second letter of approval, there was no sort of any change in the complexion, character or substance of earlier issued approval. Therefore at this stage if this appeal is remanded for issuance of duly approved/signed EIA afresh, on the ground that the re-issued approval is illegal and unlawful due to the earlier issued approval, or if this appeal is dismissed on the ground that it has become infructuous due to the newly issued approval, having not been challenged and still exists holding the field, it would be against substantial justice in either way. Therefore, we find in the light of the case law specially the case reported as 2003 SCMR 318 which is already reproduced in para 33 above that a heavy duty is cast upon the courts to do substantial justice and not to do the same on mere technicalities.
Accordingly, this appeal on the sole issue of controversial EIA approval, is fit one to be determined on its merits.
35. However, learned counsel for respondent No.2 further extended his arguments on another legal point contending that the parties are bound by their pleadings and cannot set-up a new case which has not been pleaded in memo of appeal. In support of it he relied upon the case of Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 SC 338) which was a suit filed by respondents Mst. Sardaran and others for declaration seeking confirmation of their title to the extent of their share and for cancellation of oral sale mutation. But the written statement filed 'by appellant was completely silent with regard to essential details of oral sale transaction and there was also no mention of the value at which the land was allegedly purchased by appellant. It was therefore held at paragraph 8 that: "It is settled law that a party is not allowed to improve its case beyond what was originally set up in the pleadings." He also referred paragraph 9 in the case of Maiz Abbas v. Mrs. Latifa and others (2019 SCMR 74) wherein also it was held that: "..... it is settled law that no amount of evidence can be considered on a plea of fact which was not raised in the pleadings by the parties." The above observations came when in a suit filed by respondent, no date, time, place or names of witnesses of alleged oral gift were mentioned in reply to notice, written statement or the suit, therefore, it was further observed that the. "Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed". Thus both the above referred cases are very much distinguishable to the instant appeal. Learned counsel for respondent No.2 referring the provisions of Order XLI of C.P.C. also submitted that it bars the arguments on any additional grounds not pleaded in the memo of appeal. The relevant rules 1 and 2 of Order XLI C.P.C. read as under: "1. Form of appeal. What to accompany memorandum.-- (1) Every appeal shall he preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall he accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(2) Contents of memorandum.---The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
2. Grounds which may be taken in appeal.---The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that grounds."
36. Learned counsel for appellants asserting that it is settled law that the memo of appeal provides key facts and not comprehensive facts, submitted that in para 7 of this appeal the appellants without any arguments or narrative, concisely stated the grounds of their objections to the EIA. The relevant part of such para 7 is reproduced below: "7. The appellants attended public hearing and raised multiple objections on feasibility of the project, assessment, findings and recommendations in the EIA report. The appellants along with other concerned citizens and experts submitted comprehensive written objections on the EIA report. Copy of the objections is enclosed here as Annex. A-2.........."
He urged that the Annex. A-2 containing the objections of appellants and others on the project, were filed before the Agency at the time of public hearing and the same were also adopted and re-stated in the written synopsis of arguments which were filed with permission of this Tribunal and the same were fully replied by counsel of respondent No.2 through his written synopsis filed after seeking adjournments for four times. He further contended that the response to the objections of appellants, was also annexed by respondent No.2 with his objections filed on memo of appeal and contents of such response have also been re-produced by appellants in tabular form in their written synopsis. Accordingly, the written synopsis of arguments followed by oral arguments of the parties need to be considered on merits in the light of provisions of Order XLI of C.P.C. and so also para 90 of the judgment in Lahore Development Authority v. Ms. Imrana Tiwana and others (2015 SCMR 1739) which has been relied upon by both the contesting parties. Such para is as under: "90. Further and more important is the fact that the impugned judgment has not recorded any objection to the EIA on its merits nor have the respondents highlighted any objection that has remained unattended and yet is fatal to the EIA. Moreover the statute provides an appeal to an Environmental Tribunal presided over by a retired judge of the High Court and second appeal to a Division Bench of the High Court itself. Neither of these remedies have been availed by the objecting respondents. We cannot strike down the EIA upon a mere presumption or apprehension." (Emphasis added).
37. On merits of this appeal, learned counsel for appellants referring various news reports and news clippings which are lying annexed with his written synopsis, emphasized that at the time of public hearing held on 09.03.2022 not a single participant favoured the construction of Malir Expressway on the right bank of Malir River and the participants who unanimously rejected the project, warned the Government of severe flooding that will become a regular occurrence in the region after the construction of project which was to serve only the elite class. He urged that most of participants were residents of ancient Goths located in Malir outskirts of Karachi and a number of farmers who own agricultural land in the proposed path of Expressway also attended and so also some independent experts were also present to highlight the aspects that had not been properly covered in the EIA report. He argued that the demolition of scores of homes was also done to make way for the project and in this regard the villagers had already protested and opposed the construction crying that it would demolish their oldest villages, displace a large number of people and destroy their cultivation. He also referred the objections which were filed on 09.03.2022 during public hearing and adopted in written synopsis, that after displacement of local residents of the area the construction of project was started prior to public hearing. He therefore stressed that the project endangers a vibrant ecology, historic agricultural community, a Sindhi Baloch Library of books and manuscripts not found elsewhere, the river belt of Malir River, the natural drainage and oxygen center of Karachi, a city that faces regular urban flooding, and that the respondents have shown a clear disregard to the law and fundamental rights of those displaced persons or otherwise affected by project and there is no doubt as to more risks, damages and irreparable losses that will certainly be experienced if this project is allowed to continue.
38. The contention of learned counsel for respondent No.2, on the other hand. is that the appellants have alleged the violations of fundamental rights without explaining as to how the same are infringed by impugned approval. Ile referred to page ES-2 of the EIA report contending that its paragraphs D(a) adequately describes how the rapid increase in population has put a lot of pressure on the infrastructure of City due to which the Corridors already existing, are highly congested and in case this project is not completed it would result in worsening of present traffic conditions, environmental, social and economic implications to the road users of Karachi and thus the project cannot be for the elite as alleged, as it is aimed to relieve traffic from the city. He further contended that appellants have made a blanket submission that the EIA report disregards ecological wellbeing without making any reference to it, whereas the Chapter-V of EIA report comprehensively describes the nature of environment in the project zone taking into account numerous factors including topography, water resources, sewerage system, flooding, climate, habitation, flora, trees, mammals, birds etc. and the Chapter-VII comprehensively describes not only the impact the project would have to specific heads of environment but also mitigation steps that will be taken, while Chapter-IX also comprehensively lays down an Environmental Management Plan to cater for the future environmental concerns. He also contended that even otherwise, by construction of Malir Expressway the Malir River will not be closed nor it will become useless to face the rainy or flood water to smoothly flow down into the sea.
39. In continuance of and in relation to the above arguments, the parties counsel also argued on the doctrine of public trust and precautionary principles. According to learned counsel for appellants, the environment is a public trust therefore precautionary principle must be applied and the doctrine of public trust rests on the principles that certain resources like air, sea, water and forests have such a great importance to the people that it would be unjustified to make them a subject of private ownership. He added that these resources being a gift of nature should be made freely available to everyone and the government is liable to protect the same for enjoyment of general public rather than for private ownership or commercial purposes. In support of above, he placed reliance on the cases reported as 2007 CLD 1358, PLD 2014 Sindh 511 and PLD 2011 Karachi
132. In the first reported case regarding Muhammad Tariq Abbasi and others v. Defence Housing Authority and others (2007 CLC 1358 Karachi) it was observed at para 22 that: "........All over the world, beaches and waterfronts have been developed but in a manner so as to allow free access to the same by the public and so as not to obstruct a view of the beach and the sea. Consequently, the DHA may develop its property; however, this should be done keeping in view the aforementioned considerations, which have been judicially recognized as such. In this regard, it would be seen that the doctrine of public trust has long been recognized all over the world, which enjoins the State to preserve and protect the public interest in beaches, lakeshores etc... ...Finally, this Court in the case of Sindh Institute of Urology and Transplantation v. Nestle Milkpak Ltd 2005 CLD 424 has recognized the public trust doctrine extending it to natural resources, viz, air, sea, water and forests, which being a gift of nature should be made freely available to everyone irrespective of status....."
In Pakistan Defence Officers Housing Authority v. Federation of Pakistan through Secretary, Ministry of Environmental Protection and 6 others (PLD 2014 Sindh 511), the IEE approval accorded by Agency to KMC for construction of a project was questioned by DHA, however the High Court directed KMC for submission of an EIA for consideration of Agency. In such reported case at para 25, a reference to the observation of the Supreme Court in relation to doctrine of public trust and precautionary principle was also made in a case i.e In the matter of cutting of Trees, Canal Widening Project Lahore (2011 SCMR 1743). The relevant passage of para 54 of such case is re- produce below: ".....The issue which underpins the project under challenge related to traffic congestion, the widening of the Canal Road and the apprehended damage to ecology and environment. The Court would have intervened, if the issues of rising traffic flow and congestion had not necessitated remedial measures; if feasibility of other alternative proposals had not been examined by the concerned department; if it had not got conducted Environmental Impact Assessment from a consultant and if the Environmental Protection Authority had not given environmental clearance after taking into consideration the relevant factor; if the doctrine of Public Trust or of Precautionary Principle for Environmental Protection was being violated or if the respondent-Provincial Government had not wholeheartedly accepted the Mediation Committee's report which inter alia recommend declaring the greenbelt on both sides of the Canal as Heritage Park and had recommended only a partial widening of the road in question. These concerns, in our view have been adequately addressed by the competent bodies under the law......"
40. On the other hand, learned counsel for respondent No.2 urged that the appellants have failed to explain the applicability of Precautionary Principle to the Project or the EIA, rather the project has been up-keeping the precautionary principle by creating a public road available for the public to cater to their needs and ease their hardships and that the Act, 2014 has not been enacted to put a blanket stop to any project which may have an environmental impact but so as to ensure that those projects are undertaken in a manner to mitigate and restrict environmental impact and this is why the IEE and EIA are considered and the role of the Agency is only to ensure that least environmental impact is caused. He further emphasized that it is possible that a project may cause significant environmental impact however, where the same is necessary for the infrastructure of the city and the environmental impact is mitigated to the best extent, the environmental laws would not function so as to shop that project. On the citations relied upon by appellants, he submitted that in 2007 CLC 1358 the issue pertained to free access of pubic to a beach while Malir Expresswa y is a public road and can be used by all members of public, hence the citation is inapplicable and even otherwise, it does not support the applicability of Precautionary Principle.
Whereas in PLD 2014 Sindh 511, he submitted, the issue pertained to submission and approval of an IEE where an EIA was required and the public participation was not undertaken as a result leading to eventual decision and whereas in the instant case public participation has been undertaken, so this citation is distinguishable and also does not support the applicability of Precautionary Principle.
41. A perusal of impugned EIA approval reveals that the approval was accorded subject to the following conditions: 5-i) All mitigation measures recommended In EIA report will be complied with, for achieving negligible impacts on physical, ecological, environmental and socio-economic settings along the alignment. ii) Continuous monitoring of environmental and social parameters will be ensured provided in the contents of Environmental Management Plan (EMP). iii) Proponent will appoint an Independent Monitoring Consultant (IMC) in consultation with Sindh EPA, whose responsibility would be to monitor the compliance of Environmental Monitoring Plan as laid down in EIA. The IMC will ensure that the construction activities of the expressway are undertaken in environment friendly manner and the mitigation measures are implemented as per the recommendations of EIA. The proponent will be liable to submit monthly monitoring reports produced by IMC. The report shall include pollutants measurement and analysis reports along with photographic records showing therein the environmental and social conditions of the project. iv) The proponent shall obtain approvals of all other concerned departments and utility organizations before commencement of work at project site. v) The project would be scheduled to avoid heavy rainfall periods to the extent practical to avoid flooding of construction sites and roads. vi) The project will ensure that the hydrology of the Malir river, and the drainage patterns of the city, where the river serves as one of the storm waters drains of the city, are not altered, through appropriate provision and adequate design of structures. vii) Construction alignment shall be barricaded with any suitable material for safety of people residing on nearby vicinities and dust emissions will be controlled throughout construction period through frequent water sprinkling. viii) The construction noise shall be monitored on regular basis. Noise and smoke emitting machinery shall be subjected to regular maintenance to strictly control noise and smoke emissions. ix) The proponent shall ensure that a joint work plan is developed in consultation with all utility agencies for shifting and rehabilitation of utilities. It will be ensured that the locals should not be affected due to the disruption of utilities especially electricity and water. x) Proponent will ensure provision of emergency response centers and medical facility at both sides of alignment for immediate and urgent relief in case of accidents. Collaboration will also be ensured with organization like Edhi and Chippa foundations for immediate relief in case of accidents or emergency situations. xi) Construction of road and interchanges will be designed and built as per international standard in terms of quality of material and facilitation to commuters. Interchange at place of toll structure would be widened to avoid delays and waiting of vehicles. xii) Traffic management shall be undertaken seriously to restrain traffic jams that may cause annoyance to the commuters travelling on the roads along the project alignment. Traffic management and diversion plan shall be prepared in consultation with traffic police and other relevant authorities and shall be submitted to this office before the start of construction activities.
Traffic management plan shall also cater the pedestrian movement. Sign postings, warning signs, diversion signs and barriers shall be installed to alert public of all potential hazards. xiii) The proponent will notify locals in the area prior to commencement of works, including diversion plans/routes and approximate constructiont imelines. xiv) The proponent shall redress the objections/concerns of neighboring residents, shops keepers and commuters on priority basis (if any at any stage). Proponent shall develop a Grievance Redress Mechanism (GRM) to ensure resolution of complaints from communities. A register shall be maintained of all complaints received, alongside how the complaint was resolved amicably alongside the redressal timeline. xv) Proponent will ensure three rows of tree plantations on each side of the expressway for enhancement of aesthetic value and biodiversity at the entire alignment. xvi) Any, and all land acquisition that must be undertaken for this project, shall be done in a transparent manner and as per the procedures defined in the Land Acquisition Act, 1894. Records shall be maintained of land acquisition carried out, alongside compensation(s) paid to landowners. xvii) Camp sites shall be selected at a proper distance from the residential areas, where the Proponent shall ensure that campsites do not require permanent land acquisition and are not currently being used for any other purpose i.e., land to be used for the construction camps is barren. Furthermore, the Proponent will take proper measures for the treatment of wastewater and solid waste management originating from these campsites. xviii) Campsite wastewater will not be released in sewers until it meets the SEQS limits. If water is released, then it will regularly be tested to ensure compliance with SEQS. xix) Proponent will ensure installations of lights preferably solar lights on both sides of shoulders of entire alignment for safety of commuters. xx) Appropriate pollution control devices to be installed and maintained in equipment and areas which may serve to be extended sources of pollution e.g., the asphalt plant, stone crushing units, etc. that will be deployed for the project, to ensure that harmful emissions are not released directly into the atmosphere. xxi) Proponent will ensure provision of fuel/gas station at appropriate distance at both sides of the alignment for facilitation to commuters. Also arrangement of washrooms/toilets will be ensured. xxii) The proponent shall ensure that no unfortunate incident(s) are caused due to construction and operation of project. The cost of damage to the environment, property or life of the people/ workers shall lie on the proponent. Any damage caused-to any existing structure due to construction of project shall be fully compensated by the proponent. xxiii) The Proponent shall submit an undertaking for compliance of all the issues during construction of expresswa y, which includes but is not limited to the traffic management, existing utilities rehabilitations, construction waste management, coordination with local authorities, reconstruction of existing roads as per plan, emergency response, GRM, safety and security of residents and commuters, and the requirement of independent environmental and social monitoring through an IMC. xxiv) The proponent shall facilitate EPA Officer(s)/Official(s) as and when required for inspection of compliance status against the provisions of Sindh Environmental Protection Act, 2014, rules and regulations framed there under and the conditions laid down in this approval.
6. This approval shall be treated as null and void if the conditions mentioned in this approval are not complied with or any violation of SEP Act, Rules, Regulations, Guidelines and instructions there under is committed by the proponent or his/her agent or employee.
7. The approval is accorded only for the project activity described in the EIA report. Proponent shall submit separate EIA or IEE as required under regulation for any enhancement or change in the design or location of project.
8. The proponent shall be liable for compliance of sections 11, 12, 13, 14, 17, 19 and 20 of Sindh Environmental Protection Act, 2014.
9. The proponent shall be liable for compliance of sections 14, 15, 18, 19 and 20 of Environmental Assessm ent Regulations, 2021, which direct for condition for approval, confirmation of compliance, entry inspection and monitoring.
10. This approval does not absolve the proponent of the duty to obtain any other approval or consent that may be required under any law in force.
I1. That, this approval is not valid for any Court matter/land dispute.
42. We have considered the submissions of the parties in the light of relevant law and available record.
43. Through this appeal, the EIA approval accorded by the Agency to the Proponent for construction of Malir Expresswa y project, has been challenged by appellants. This approval is subject to numerous conditions (total 30) which are reproduced in para 41 above. Accordingly, such approval is conditional one. It appears that most of the environmental issues are addressed in such conditions, the compliance and implementation of which is the responsibility of the respondents. However, the main objection of appellants raised earlier during public hearing, and now adopted in their written synopsis of arguments, is on the risk of urban flooding due to construction of the project on Malir river. They have stressed that the part of Expressway is being built on riverbed instead of its right bank and, though the EIA report mentions that over-head bridges, box and pipe culverts will be constructed to allow the water to flow but this does not take into account the structural integrity of these structures during heavy rains and urban floods. In response to it, the submission of respondent No.2 is that the Expressway is being built on the right bank of the river and not inside it and the protection will also be provided to the development and population in the right bank and, for protection of left bank, a deep-sea drain is being incorporated into the project to withstand the heaviest of rains and divert the water out to the Arabian sea. On the effect of change in the hydrology on project affectees, the respondent No.2 submitted that four main arteries/nullahs will not be disturbed in the project where Expressway will employ the form of flyover bridge to avoid any change in the hydraulic regime in project area. In this connection, the condition 5(vi) of the approval reads as follows: "The project will ensure that the hydrology of Malir river, and the drainage patterns of the city, where the river serves as one of the stormwater's drains of the city, are not altered, through appropriate provision and adequate design of structures."
In addition to above, the appellants counsel also contended on the usage of groundwater resources for project activities, that such water is the only source of agriculture being utilized by the people of local area. This was however clarified by the Agency that the water needs for the project would not be extracted from Malir river but such requirement will be met out through tanker service during the construction. It appears that the apprehensions of appellants mentioned above, need due attention of respondent No. 2 therefore, the aforesaid submissions and undertakings of respondents as well as all the conditions imposed by respondent No. 1 in EIA approval and so also the proposals/suggestions/recommendation/undertakings made by respondent No.2 in its EIA report including Environmental Management Plan (EMP), must be complied with and implemented by them in a way to save the project area and the affectees from further loss/damage and for this purpose, all possible mitigation and remedial measures must be adopted by respondent No.2 in compliance of the conditions 5(i), (ii), (iii) and (xxii) of the approval and in this regard, the Regulation 17 of SEPA (Environmental Assessment) Regulations, 2021 clearly directs for cancellation of approval if the conditions of approval reproduced in para 41 above, have not been complied with or that the information supplied by proponent in the approved EIA or EMP, is incorrect.
Moreover, one of the stringent conditions as imposed in the approval, also provides that: "6. This approval shall be treated null and void if the conditions mentioned in the approval are not complied with or any violation of SEP Act, Rules, Regulations, Guidelines and instructions thereunder, is committed by the proponent or his/her agent or employee."
44. The next contention of learned counsel for appellants, however, carries force in respect of the construction activities of the project, having badly affected so many persons who are either displaced from their properties, houses, shops, etc. which as well as other structures have been demolished, or they are ejected from their agricultural lands, etc. and their cultivation, crops, tress, etc. are destroyed, or they are dislodged from their established business and sources of livelihood, and yet no step has been taken for their resettlement/re-establishment/ rehabilitation and/or compensation, etc. despite such conditions imposed in the EIA approval at paras 5(xiv), (xvi) and (xxii). These conditions are reproduced below: "xiv) The proponent shall redress the objections/concerns of neighboring residents, shops keepers and commuters on priority basis (if any at any stage). Proponent shall develop a Grievance Redress Mechanism (GRM) to ensure resolution of complaints from communities. A register shall be maintained of all complaints received, alongside how the complaint was resolved amicably alongside the redressal timeline. xvi) Any, and all land acquisition that must be undertaken for this project, shall be done in a transparent manner and as per the procedures defined in the Land Acquisition Act, 1894. Records shall be maintained of land acquisition carried out, alongside compensation(s) paid to landowners. xxii) The proponent shall ensure that no unfortunate incident (s) are caused due to construction and operation of project. The cost of damage to the environment, property or life of the people/workers shall lie on the proponent. Any damage caused to any existing structure due to construction of project shall be fully compensated by the proponent."
Apart from above, the condition 5(xxiii) is for the submission of an undertaking by the proponent for compliance of all the issues during construction of Expressway. Moreover, as per conditions 8 and 9 the proponent is also held liable for compliance of various provisions of SEP Act, 2014 and Regulations, 2021. Since the approval is subject to compliance of all conditions including the above, therefore, respondent No.2 is bound to comply with the same without any more delay. Accordingly, the respondent No.2 is liable to address and redress the grievances of project affectees and in this connection the Grievance Redressal Mechanism (GRM) is already provided in detail in Chapter-8 of EIA report itself, which must start its functioning and take appropriate action so as to reduce the grievances of the people.
45. Whereas the overall object, necessity and importance of the project cannot be denied. The record shows that the purpose of this mega project/expressway is to provide support the bulk and heavy vehicles that transport goods from Karachi Port, PICT, KICT, Kiamari Terminal etc. to other parts of the country. The need for this Corridor was highlighted in the Traffic Master Plan prepared by Japan International Co-operation Agency (JICA) in 2012, titled as Karachi Transportation Improvement Project. After about 10 years, it is being executed by now to avoid heavy traffic from entering and clogging the main arteries of the city such as Shahrah-e-Faisal, Sahahrah-e- Pakistan, etc. These vehicles are currently using main roads and are combined with traffic of city, creating a compounded pollution effect, which will be reduced if the above bulk material transport is provided a separate bypass to access the rest of the country. The fact that on account of tremendous increase in the population, a rapid increase of ancillary vehicles in the city, has resulted in a lot of pressure on city's infrastructure and surrounding to it, therefore, the situation demands the construction of this Expressway to cater extreme need of the public at large. This project is not a private or commercial but is a public road and an initiative of Government of Sindh.
The same is for the larger interest of general public and it will permanently bring the savings in terms of fuel and time of the public travelling to any place of the country. Even otherwise, to avoid unsustainable load on existing roads, specially of Landhi and Korangi industrial area, which are being used at maximum limit having no more capacity for expansion or enlargement, this project will certainly reduce huge burden at least from the roads of such area which has resulted in serious issue of traffic congestion as well as the heavy pollution. Thus, the observation of a Division Bench of Sindh High Court in a case already referred to above, reported as, PLD 2007 Karachi, 293 that the "...development and environmental protection must progress together ....", is relevant to this case also.
46. While referring to various Articles of the Constitution of Pakistan, learned counsel for appellants also submitted that due to the construction of Expressway the valuable and fundamental rights of appellants and all affected persons, are flagrantly violated. In this connection, the relevant para 29 in the case of Ms. Salma Iqbal Chundrigar and others v. Federation of Pakistan through Secretary, Ministry of Environmental Protection, Islamabad and others (2009 CLD 682-Karachi) as relied upon by learned counsel for respondent No.2, is reproduced below: "29. Learned counsel for petitioners had referred to Articles 4, ,5, 9, 14 and 25 of the Constitution of Pakistan, while stating that their rights as envisaged under the said Articles, were infringed due to commencement of the construction of the flyover. There is no cavil to the proposition that the right of individual under the said provisions of the Constitution are protected. However, at the same time we cannot loose sight of the wake of the growing needs of the population, which culminate in the demand for greater number of roads, flyovers under passes, etc."
Similar is the position in this case. Consequently, we are not inclined to set-aside the EIA approval or to stop the construction of the project which shall continue to be completed, like in the cases already referred to by the parties, which are reported as 2015 SCMR 1739, 2011 SCMR 1743, PLD 2007 Karachi 293, 2007 CLC 1358-Karachi and 2009 CLD 682-Karachi.
47. However, at the same time, we are conscious of the fact that the damage of any kind caused and is being caused to the people of project area and surrounding to it, and the loss of any type already sustained and is being sustained by project affectees, and all other issues concerning to the environment and socio-economic related matters, having been arisen due to construction of the project, cannot be left unattended without redressal of the grievances and implementation of the same. So, in this connection, a Complaint Redressal and Implementation Committee (CR&IC) shall be constituted/notified within one month, by the Government of Sindh, to be headed by a Senior Officer at least of BPS-20 as Chairman of such Committee, and the Officers not below the rank of BPS-19 as its members, to be taken from relevant departments such as Environment, Climate Change and Costal Development, Revenue, Forest and Wildlife, Agriculture, Local Government, Culture, Tourism and Antiquities, Provincial Disaster Management Authority, Sindh Environmental Protection Agency, etc. The Project Director as well as a representative of respondent No.2, a representative of appellant party, the representatives of respective communities/villages (one from each) of the project area, etc. shall also be the members of such Committee, which will hold monthly meetings for the purpose as follows: a) To consider the grievances/complaints of the affectees of Malir Expressway project, redress their grievances and implement the same through appropriate forum. b) To examine monthly progress reports of project based Grievance Redressal Committee (GRC) constituted under Chapter-8 of EIA report and Independent Monitoring Consultant (IMC) appointed in terms of Condition 5 (iii), (xiv), (xxiii) of the approval, which reports shall be submitted by respondent No.2 regularly, on which necessary directions for due/further compliance, may be issued by the CR&IC. c) To examine monthly progress reports regarding the Inspection of project site and Verification of the matters enumerated in the conditions of EIA approval reproduced in para 41 above, which reports shall be submitted by respondent No.1 regularly, on which necessary directions may be issued by CR&IC for due compliance and implementation of such conditions of the approval as well as the EIA report, in the light of which the approval was accorded. d) To implement the undertaking furnished by respondent No.2 as per Condition 5(xxiii) of the approval and Regulation 14(2) of SEPA (Environmental Assessment) Regulations, 2021, and also to enforce its other proposals/suggestions/ recommendations/ undertakings, directly or indirectly made in its EIA report, Environmental Management Plan, Conditions of the approval, directions of this Tribunal as per paras 43 and 44 above, and further directions to be issued from time to time by the CR&IC. e) To recommend/advice/direct the respondent No.1, as per Condition 6 of the approval as well as Regulation 17 ibid, for taking necessary action against respondent No.2 and cancellation of EIA approval, in case the respondent No.2 is found to have violated or not complied with the terms, conditions and directions as mentioned in clause (d) of this para.
48. Accordingly, this appeal is hereby disposed of in the above terms, with no order as to the cost.
Let the copy of this judgment be sent to the Chief Secretary to Government of Sindh for necessary action in terms of para 47 above.