M UHAM M AD NAEEM ANW AR, J.- The petitioners, twenty-one in number, who are the residents of city homes Tehsil Babuzai District Swat, have filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking directions and issuance of writ against the respondents in the following terms: "It is therefore respectfully prayed before this Honorable Court, that on acceptance of the present writ petition: 1) That the respondents No. 1 to 6 be directed to take action against the respondent No. 7 immediately, and already installed such factory in the populated area of City Homes, Rahim Abad, Swat be removed in the light of notification 890-95-1/6/IND-AD/CPC-SWT dated 09-03- 2023.
2) That the respondent No. 6 be directed to demolish all the construction raised for the purpose of construction of factory or the said building may not be used for construction of factory.
3) Any other relief which specifically not asked by the petitioners in the instant writ petition may also be granted in favour of the petitioners."
2. As per contents of the petition, the grievance of the petitioners is that the private respondent No.7 has installed illegal and unlawful plastic factory/ industrial unit within the premises of residential area i.e., city homes Rahimabad Swat consisting upon 75 houses and through illegal commercial activities of respondent No.7 made their lives difficult as they have to face unpleasant smell of chemicals being used in plastic recycling and leather's refining coupled with a lot of noise pollution.
They alleged that due to continuous nuisance, noise of the factory/ unit and disturbance created therefrom, which on one hand amounts to causing continuous mental stress to people of the locality including the petitioners while on the other hand, it is violative to the Environmental Laws. It was further contended that for the purpose of his second factory, respondent No.7 has installed a heavy transformer and being aggrieved from the act of respondent No.7, he was served with a notice but to no avail. It was also contended that this violative/unlawful act by installation of the factory and operation of the machinery has caused health problems as the hazardous activities have polluted the environment and made the lives of inhabitants miserable.
3. Respondents were directed to submit their parawise comments, from whom, respondents No.2, 4, 5 & 6 have furnished their comments whereas respondent No.7 submitted his written reply. In their comments, the official respondents No.4 to 6 have resisted the issuance of writ on many legal and factual objections including the ground of alternate remedy before the concerned authority/department. Respondent No.2 has resisted the issuance of writ within the purview of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 (the Act of 2014) and a jurisdictional bar in in consonance with the provision of Environmental Protection Tribunal (Tribunal) constituted under the Act of 2014. Respondent No.7 resisted the issuance of writ on various legal and factual objections, with an addition that he has complied with all the legal requirements of law and even during pendency of the instant petition, this Court directed the officials of Environmental Protection Agency (EPA) who has inspected the spot and suggested certain measures/proposals to be taken, in compliance thereof, he has acted upon the direction of the EPA and in addition to that it was contended that the petition against him is based upon male fide as there are other factories/ small industrial units, wherefrom only the respondent No.7 was picked up for initiation of action and has been stigmatized by the petitioners.
Arguments heard and record perused.
5. During pendency of this petition, on 14.11.2023, this Court keeping in view that the Tribunal was dysfunctional, directed the respondent No.2 to proceed to the spot and submit his report on the following points: i. As to whether industrial unit could be established in the residential area? ii. What are the requirements for establishment of industrial unit and if an industrial unit has already been established within residential area, what are the remedies for an aggrieved person? iii. Whether the illegality committed either by the official respondents or by the owners of industrial units, respondent No.7 could be allowed to install and run his unit merely on the reason that other industrial units are functioning within the residential area and the owners of the same have not obtained any such sanction from the authority concerned? and iv. Whether there exists any industrial area properly notified by the Provincial Government in District Swat and if not, the industrial units running in different parts of the district, could be directed to be shifted outside the residential area?
Respondent No.2 after spot inspection submitted a report as directed by this Court and suggested certain measures on part of Respondent No.7 to be taken. Summary of the recommendations/ proposals and the status as mentioned in said report is as under: S. No.Directives of EPO Filed Observations Status/ Remarks 1 Shift the crusher and molding machine etc. to another safe site at your unit as your unitThe. crusher and molding machine was shifted to a farthest site in the premises fromComplied is located wall to wall to a nearby house.nearby home and crusher was found enclosed in a room.
2 Make a mechanism to control the Air/Noise pollution of the unit in the surrounding areas.The machinery was enclosed in a hall.Complied 3 Bring noise level of your unit within permissible limit according to National Environmental Quality Standard (NEQS) (up- to 55 dB for residential while 65 dB for commercial areas during day timings).Noise level record (when the unit was functional): Inside the industry premises: 69 db and jumps to 72 dB.
At home of complainant located at wall to wall: 42 db to 55 dB.
At nearby another home: 48 dB-54 dB.Complied 4 Install the air exhaust system at your unit having the outlet towards an open side instead of residential area.Found installed toward open side.Complied 5 Enclose the manufacture/ transportation of the raw materials of shoes properly to, avoid irritating smell in the surrounding areas.The hall were found enclosed.Complied 6 Avoid Nigh Shift. .The factory was found closed at night at 12:-00 AM.Complied 7 Provide Personal Health and Safety Equipment's such as Masks, Shoes and Gloves etc. to the Labors.The workers were found with masks and shoes.Complied In accordance with the directions of this Court, the progress report was submitted, which is placed on file. Respondent No.2 appeared in person before the Court, who submitted at the bar that not only the unit of respondent No.7 but there are other units as well in the vicinity (residential area) and generally in entire Malakand Division, however, the process for acquisition of the property for small/large industrial estate has never been started, which is the reason that the units have been installed not only by the residents /domiciled persons of Malakand Division but also from other parts of the country, the industrialists had approached to this area in view of Article 247 (as then it was) of the Constitution of Islamic Republic of Pakistan, 1973 having the protection from levy of taxes. Therefore, in different parts/Districts of Malakand Division, owners/ industrialists have started installation of small industrial units even without getting No objection Certificates (NOCs) from the quarter concerned or even approaching to the EPA for submission of the Environmental Impact Assessm ent (EIA) Report. Therefore, without compliance of any law on the subject either on administrative side or under the provisions of industrial laws including the Khyber Pakhtunkhwa Environmental Protection Act, 2014 and the Factories Act, the units have been installed, for which, no record has been maintained by the authorities. He added that respondent No.2 can only assist this Court to the extent of mandate of the department (Environmental Protection Agency) whereas, for rest of the measures to be taken either in short terms or long terms, the Provincial Government, the local authorities and the industrialists may sit together in order to evolve a reasonable formula/ solution for ongoing operation of their units.
6. This Court has directed respondent No.2 for submission of report on certain points, wherefrom point No.1 was as to whether the industrial units could be established in residential area? Not only the respondent No.2 but the learned AAG, who is representing rest of the official respondents and even the petitioners along with respondent No.7, have submitted at the bar that within the residential premises no unit could be installed as it affects the life of individuals in general and people of the vicinity in particular. The law has provided a mechanism for installation of industrial units, installation of machinery for running of factory and for other commercial purposes, for which, in every District, the law requires that there should be an industrial estate, where all the factories, units either manufacturing the goods or carrying other commercial activities pertaining to the manufacturing or preparation of different items/unit needed for day-to-day life either within this particular area or rest of the country even in order to promote the economy, which is at precautious level, for which the measures are to be taken by the federation units of Pakistan but in no way the individuals could be allowed to install a unit without having any check by the concerned authorities and without issuing of NOC by the local administration, which, of course, is hazardous to the individuals and inconsistent with their fundamental rights. To protect the fundamental rights as enshrined in the Constitution is the duty of this Court and every organ of the state including local administration etc. Be that .as it may, from report submitted by respondent No.2 having regard to the submissions of the learned AAG, learned counsel for the petitioners and that of the learned counsel for the respondent No.7, this Court has come to an irresistible conclusion that the industrial units cannot be installed or allowed to be installed in the residential area.
7. Next, what are the requirements for establishment of industrial unit and if an industrial unit has already been established within residential area, what are the remedies for an aggrieved person?
The question formulated is of twofold: one is for private individuals, the affectees of the units including respondent No.7, who have already installed their units, which are functional at the spot/area. Respondent No. 2 has submitted his report that the Environmental Protection Agency requires an industrial unit to be within the ambit of Schedule II, III, IV of the Khyber Pakhtunkhwa Environmental Assessm ent Rules, 2021.We have gone through from the Schedule, wherein a specific procedure has been provided for different projects requiring the Environmental Impact Assessment at different levels. Schedule-III and schedule-IV under rule 4 of the Rules of 2021 are in respect of general environmental approval. These are the solutions for the units already installed and those which are yet to be installed, but the question before this Court is regarding grievance of petitioners which too could be minimized through remedial measures. If the requirement of Section 13 of the Act of 2014, pertaining to the Initial Environmental Examination and Environmental Impact Assessm ent is initiated, for which, the petitioners shall move to the agency, on the basis of which, the report shall be submitted. It must be mentioned that this is a short-term remedial measure to the extent of grievance of petitioners but in the long terms, the provincial government and the local government/ administration of each District may provide a mechanism for resolution on permanent basis to the affectees of industrial units/factories, which are creating nuisance and affecting the statutory and fundamental rights of the people of the area. Respondent No.2 was asked to submit the report as to whether the illegality committed either by the official respondents or by the owners of industrial units, respondent No.7 could be allowed to install and run his unit merely on the reason that other industrial units are functioning within the residential area and the owners of the same have not obtained any such sanction from the authority concerned? In this regard, respondent No.2 has made a reliance of section 33 of the Act of 2014 and violation thereof.
Any unit already installed or factory started or machinery installed being run in the area without obtaining NOG from the local administration or Environmental Impact Assessment Report is the violation of environmental laws and administrative law as well resulting into failure on the art of public functionaries and as such respondent No.7 cannot be solely held responsible for the installation of the units as not only he (respondent No.7) but the other individuals have also installed their unites/factories which are running within the residential area/ premises.
8. The last question asked from respondent No.2 was as to whether there exists any industrial area properly notified by the Provincial Government in District Swat and if not, the industrial units running in different parts of the district, could be directed to be shifted outside the residential area? Not only respondent No.2 but even learned A.A.G and learned counsel for respondent No.7 submitted at the bar that no property has ever been acquired for the said purpose, therefore there is no specification of area in each and every district of Malakand Division for the purpose of installation of industrial units. Industrial noise is primarily a byproduct of the machinery, equipment, and processes utilized in these industries. The main characteristics of industrial noise are as follows: i) Sound Intensity: Industrial environments can produce high levels of noise due to the presence of machinery, engines, and heavy equipment. The noise can be loud enough to cause hearing damage if not properly controlled. ii) Frequency: The range of frequencies in industrial noise can vary, but it often includes components of both low and high frequency, on the sources. iii) Duration: Industrial noise can be continuous or intermittent, depending, on the specific processes and activities underway. iv) Impact: Excessive industrial noise can have negative effects on the health and well-being of workers and nearby residents. v) Prolonged exposure to high levels of industrial noise can lead to hearing loss, stress, sleep disturbances, and other health issues.
Keeping in view the above factors, as a short term remedial, the respondent No.7 along with other owners of the industrial units in the area shall be directed by the District Administration /concerned authority to remove/ shift his unit outside the residential area but on long term, the Provincial Government is required to notify a particular area for the said purpose but till shifting of the industrial units already installed, the government functionaries shall have a check upon these units to minimize the nuisance hazards by visit of the residential area to have continue check for the use of soundproofing materials such as soundproof blankets and panels, the implementation of technical controls to reduce noise at the source, equipment maintenance to minimize sound emissions, and the construction of noise barriers to protect nearby communities from excessive noise. Installing isolators and vibration dampers can minimize the transmission of solid-borne noise and vibrations through structural elements. Treating industrial noise sources at the source is one of the most effective ways to control noise pollution. Manufacturers are increasingly integrating noise reduction technologies into the design of their equipment and machinery.
Optimizing industrial processes can lead to quieter operations and overall improved efficiency. By investing in quieter technologies, regularly upgrading their equipment, and soundproofing their machines with acoustic covers, industries can proactively address noise pollution issues.
Respondent No.7 shall apply to the agency for Environmental Assessment Impact Report and respondent No.2 shall also issue notice to the other industrial units/ factories working in the area/spot so that one may not be treated differently when the other units are also functional in the area. Regular inspections, maintenance checks and equipment upgrades are mandatory which shall be done on regularly basis. The potential hazards posed to residents cannot be overlooked.
Only through striking a balance between economic growth and residents' welfare can we create thriving, safe and sustainable communities for the future.
9. We understand that though this was the job of the Tribunal but for last 02/03 months, the Tribunal is dysfunctional, for which, the Provincial Government may submit to Hon'ble the Chief Justice of this Court for nomination of the Chairman of Environmental Tribunal in accordance with law to get the Tribunal functional. Respondent No.7 shall submit the application to the EPA and respondent No.2 shall issue notice .to all the industrial units besides Environmental Impact Assessm ent Report shall also be prepared by him in accordance with section 13 of the Act of 2014.
After completion of the said report, the matter shall be taken up with the Provincial Government.
Respondent No.2 shall submit the report before this Court pertaining to progress in the matter on monthly basis before the learned Additional Registrar of this Court for our perusal in the chamber and when the Tribunal becomes functional, same shall be submitted before the worthy Chairman of the Tribunal for taking further steps in the matter.
10. The instant petition is disposed of accordingly.