The petitioners in this and connected petitions (W.P.Nos.2264, 17420, 15530 of 2020 and 12075 of 2022) being owners of "Brick Kilns" are aggrieved of imposition of penalty and proposed sealing of business premises for alleged violation of using old technology (`BTK') instead of approved 'zigzag' technology.
2. Learned counsel for the petitioner submits that approval and infrastructure of zigzag technology is not in accordance with the provisions of the Punjab Environmental Protection Act, 1997 ("Act of 1997"). It is apprised during proceedings before the Lahore High Court as well august Supreme Court of Pakistan, a Commission was appointed for recommendations and suggestions to control smog in winter season. As per Commission's report, brick kiln's association had agreed for use of zigzag technology and, in particular, closure of their production during winter season in the areas usually hit by smog.
Learned counsel for the petitioners has attempted to argue that imposition of zigzag technology is not in accordance with the provisions of the relevant law. Also submits that direct sealing of business or its premises along with imposition of penalty is in violation of the provisions and procedure under the Act of 1997.
Learned AAG assisted by Mr. Misbah-ul-Haq Lodhi, Deputy Director (Environment), Multan is confronted, whether procedure under the law is followed, the answer is in negative. It is, however, explained that fine is being imposed on direction by High Court, but could not show any order in support.
3. Heard. Record perused.
4. The tendency to take shelter, in absence of clear written direction of High Court has to be curbed, therefore, is deprecated. The respondent Agency, instead of following the procedure, provided under the law, has taken extreme steps, against which interim relief was granted as a result,/ the intent and purpose of the law is frustrated. Purpose of the Act of 1997, as evident from its preamble is 'protection, conservation, rehabilitation and improvement of the environment'. Environment and consequential climate change is now biggest threat globally and Pakistan is ranked with the countries most vulnerable.
Cities like, Karachi and Lahore are on top of the most polluted cities in the world.
5. Under Section 5 of the Act of 1997, Provincial Environmental Protection Agency is established, which is empowered, under Section 7(g), to enter and inspect, under authority of search warrant, a place, having reasonable ground to believe that an offence under the Act of 1997 is being committed. Under Section 11, there is prohibition for every person against anti-environmental activity including discharge or emission of a substance, causing air pollution. Environmental Protection Order can be passed, under Section 16 of the Act of 1997, where the Provincial Agency is satisfied that any anti-environmental activity, as prescribed in the law, is likely to occur, is occurring or has occurred. It can direct the person to take appropriate measure, as prescribed in Section 16(2) of the Act of 1997. Section 16 of the Act of 1997 is reproduced: "16. Environmental protection order.-(1) Where the Provincial Agency is satisfied that the discharge of emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or handling of hazardous substance, or any other act or omission is likely to occur, or is occurring, or has occurred, in violation of any provision of this Act, rules or regulations or of the conditions of a license, or is likely to cause, or is causing, or has caused an adverse environmental effect, the Provincial Agency may, after giving the person responsible for such discharge, emission, disposal, handling, act or omission an opportunity of being heard, by order, direct such person to take such measures as the Provincial Agency may consider necessary within such period as may be specified in the order."
(2) In particular and without prejudice to the generality of the foregoing power, such measures may include--
(a) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect;
(b) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission;
(c) action to remove or otherwise dispose of the effluent, waste, air pollutant, noise, or hazardous substances; and
(d) action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission, or as close to such condition as may be reasonable in the circumstances, to the satisfaction of the [Provincial Agency].
(3) Where the person, to whom directions under sub-section (1) are given, does not comply therewith, the [Provincial Agency] may, in addition to the proceeding initiated against, him under this Act or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deem necessary, and may recover the costs of taking such measures from such person as arrears of land revenue.
[emphasis supplied] Under the provisions, ibid, if zigzag technology is not being used, the respondent Agency can pass an Environmental Protection Order by calling the responsible person (Sections 18 & 19) or by visiting the premises, where violation is being committed. Keeping in view the gravity of the violation; hearing can be provided at the premises and protection order should be passed immediately. If such order, in writing, is violated, the anti-environmental activity should be stopped for a specified period or permanently. In case of further violation, criminal action should be taken against the owner or responsible person violating the direction. Under Section 17, if proceedings are not in accordance with law, the aggrieved person has remedy before the Environmental Tribunal under Sections 21 and 22 of the Act of 1997.
6. Petitioners' plea that brick kilns are not contributing much in the smog, cannot be taken up and decided in Constitutional jurisdiction being a purely technical issue. Determination of any anti- environmental activity, primarily, rests with the Authority under the Act of 1997, which can be assailed in accordance with law.
7. Learned Law Officer assisted by Mr. Misbah-ul-Haq Lodhi, Deputy Director (Environment), Multan has undertaken on behalf of the Director General (Environment) that the procedure noted in the Act of 1997 and explained hereinabove shall be followed. It is, however, clarified that following this procedure does not mean that action would be delayed. An act or omission, damaging environment is a recurring damage, effecting general public globally, therefore, each incidence of violation or defiance constitutes an independent cause of action, to be taken under the Act of 1997, read with the ancillary and subordinate legislation.
8. The petitioner in this and connected petitions be provided opportunity of being heard on 02.12.2022 and an order, if required, under Section 16(1) of the Act of 1997 be passed and the petitioner in this and connected petitions be treated strictly in accordance with law.
Petitions are disposed of with direction and in the manner noted herein.