NISAR M UHAM M AD SHAIKH, CHAIRM AN. The Citizens for Environment, a registered society, through its General Secretary, has filed this appeal under section 27 of Sindh Environmental Protection Act, 2014 (the Act, 2014), impugning the order dated 12.11.2020 whereby respondent No. 1-Director General, Sindh Environmental Protection Agency (SEPA), accorded approval of Environmental Impact Assessm ent (EIA) to respondent No.2-Bank AL-Habib Limited (Proponent), for construction of its Corporate Headquarter Office Building (Project) consisting on basement 1-6 + ground + 12 floors having total area of 4256.20 square yards, situated at plot No.222 Dr. Daudpota Road, E.1 Lines, Karachi Cantonment Board, Karachi.
2. We have heard the arguments and perused relevant record as well as R&Ps/official file of SEPA (the Agency).
3. The respondent No.2, by raising a preliminary objection on this appeal to be time barred, in para 2 of its reply to memo of appeal, has sought dismissal of this appeal in the following manner: "A) The appeal is time barred in terms of section 27 of the SEPA, 2014. The impugned approval is dated 12.11.2020, which accordingly was also published on the website of SEPA around the same time. Accordingly, the impugned order was communicated to all members of the public at such time. This appeal is accordingly barred by limitation. The plea of the appellant that the order was communicated to them on 27.01.2021 is misleading as it conceals the publication on the Agency's website. In the circumstances, such publication would suffice for communication of the impugned approval to the appellant and limitation would commence from said date in terms of section 27 of the SEPA, 2014.
B) It is respectfully submitted that in terms of section 27 of the Act of 2014, the delay in filing an appeal is not condonable."
Whereas the appellant, in para E of the Rejoinder, replied to the above as under: "The contents of paras (A) and (B) of the preliminary objections are denied being misleading and incorrect. It is, at the outset, denied that uploading on website of SEPA is proper communication of the order. Without prejudice to above, it is categorically denied that the impugned approval was uploaded on the website around the same time the approval was granted. The approval was uploaded on SEPA website on 24.01.2021. Copy of the header check is enclosed here as Annex-A.
Respondent 2 is put to strict proof. "
The relevant section 27 of the Act, 2014 provides that any person aggrieved by any order of the Agency may prefer an appeal with the Tribunal within 30 days of the date of communication of impugned order to such person. But, without showing any specific date of such communication, the contesting respondent No.2 claims that the impugned order dated 12.11.2020 was published on the website of the Agency around the same time and was communicated to all members of public at such time. In this regard, the appellant has mentioned a particular date of 24.01.2021 when the approval was uploaded on Agency's website and this date is nowhere denied by concerned respondent No. 1. Appellant has stated in para 4 of appeal to have had applied for certified copies of approval etc. on 25.01.2021. He has also filed a copy of such application dated 25.01.2021 as Annexure C-2 of the appeal. Thus, the plea of appellant is clear that impugned order dated 12.11.2020 'was published on 24.01.2021 on the Agency's website and the copy of which, applied vide application dated 25.01.2021, was, supplied to appellant on 02.02.202.1 as is mentioned in para K of the grounds of appeal, and none of these dates is specifically denied by concerned respondent No.1 if the same is falsely shown by appellant nor it has been claimed anywhere if the Agency had supplied copy of impugned order to appellant on any other date prior to 02.02.2021. Learned counsel for respondent No.2 in support of the plea that this appeal is barred by time, has relied upon the authorities i.e 2009 SCMR 1435, 1975 SCMR 157 and 2011 SCMR 8. In the first reported case it was held that mere repetitions of representation would not by itself enlarge the prescribed period of limitation. In the second case it was found that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. While in third case it was observed that the question of limitation cannot be considered a technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case and that the law of limitation must be followed strictly. It appears that the facts and circumstances of the cited cases are distinguishable to the case in hand. Thus, the present appeal filed by appellant on 02.03.2021 after the copy of impugned order was supplied to him on 02.02.2021, is well within prescribed time.
4. Learned counsel for appellant very much emphasized on the compliance of Regulation 9(2)(c) of Sindh Environmental Protection Agency (Review of IEE and EIA) Regulations, 2014 (the Regulations, 2014) which, according to him, mandatorily requires no objection certificates (NOCs) of relevant departments to be filed along with EIA study report but, he contended, respondent No.2 failed to obtain NOC from concerned department of Cultural Heritage and Antiquities though there are at least eight antiquities and heritage buildings within 200 feet radius of the project site, out of which two are very close and adjacent to project site and that section 22 of the Antiquities Act, 1975 (the Act, 1975) also requires NOC prior to construction within 200 feet of an immovable antiquity. He further contended that section 10(1) of Sindh Cultural Heritage (Preservation) Act, 1994 (the Act, 1994) also prohibits the construction near the protected heritage and by virtue of section 19, such Act has an overriding effect to any other law and this non-obstante clause which has been ignored by respondent No.1, clearly reflects the significance having been attached to the preservation of protected antiquities and heritage buildings etc. which are declared to be of architectural value and thus, the proposed project will badly affect the environment as defined in section 2(xii) of the Act, 2014 and therefore, the clearance from Antiquities and Heritage Department was mandatory before consideration of EIA report.
5. On the other hand, learned counsel for respondent No.2 argued that the scope of the Act, 2014 is to protect, conserve and improve the environment and this Act does not include within its scope the protection or regulation of heritage buildings which are governed by other legislation to be implemented by other Departments and that the Act, 1975 is not applicable in this matter as no building within 200 feet of project site has been declared as protected antiquity in terms of section 10 of such Act nor any notification of Federal Government has been produced in this regard by the appellant. He also contended that the Act, 1994 does not prevent construction within any radius of any building declared as protected under such Act and that the Act, 2014 requires EIA to ensure that there should be no construction having adverse effect on environment while the protection and regulation of antiquities and cultural heritage have no relevancy to environmental concerns so as to fall within the scope of the Act, 2014 nor the alleged non-compliance can be agitated before this Tribunal. He further argued that even otherwise, respondent No.2 would obtain all approvals as applicable in law as the condition No.7 of impugned EIA approval specifically provides for obtaining any other approval required under any law in force though there is no such requirement in the Act, 1994.
6. In rebuttal, learned counsel for appellant contended that the impugned approval accorded under the Act, 2014 exposes threat to cultural heritage and antiquities therefore the Act, 1975 and also the Act, 1994 are very much applicable to this matter but respondent No.2 has confined definition of Environment which is against the spirit of the Act, 2014 and that the condition No.7 of impugned approval is in contravention to Regulation 9(2)(c) of the Regulations, 2014 which mandatorily requires to make part of EIA report all NOCs of relevant departments therefore respondent No.2 cannot take refuge under such a condition which by itself is contrary to law. He also contended that the protection of antiquities and. heritage buildings is not beyond the scope of Environmental Law and that the impugned approval has been obtained by concealment of facts therefore the respondent No.3 whose comments totally negate the claim of respondent No.2, has rightly pointed out that without its NOC environmental approval is liable to be cancelled.
7. In reply to above, learned counsel for respondent No.2 contended that the functions of the Agency prescribed in section 6(1) of the Act, 2014 are limited to the matters concerning to the Environment. He referred the definitions of various terms from section 2 of the Act, 2014 contending that the Cultural Heritage and Antiquities is not environmental matter and is beyond the scope of EIA process of the Agency and so also the proceedings of this Tribunal as the Heritage and Antiquities are governed by their own special law and accordingly, the appellant should approach relevant authorities under such Acts and not the Agency or the Tribunal under the Act, 2014 as it is established principle that where there is special law it must trump a general law and thus the Act, 2014 at the best is a general law for the purpose of Antiquities and Heritage buildings. He also contended that it is an admitted position that the plot in respect of which the EIA has been granted is not heritage property and that the notification of 2018 filed by appellant is under the Act, 1994 and not the Act, 1975 therefore the properties mentioned therein cannot be considered as protected immovable antiquities under the Act, 1975.
8. Learned Law officer of the Agency-respondent No.1, submitted that the project site is a demolished building/plot and it is never declared as protected heritage under the Act, 1994 and that the project was approved with stringent conditions in accordance with the provisions of the Act, 2014 and the Regulations, 2014 and accordingly, the NOCs as required for EIA approval were submitted by proponent in compliance of Regulation 9(2)(c) of the Regulations, 2014 and thus, the Agency has not violated any provision of Environmental Law.
9. Whereas, the Secretary of Culture, Tourism and Antiquities Department, Government of Sindh (Respondent No.3) has not pursued this matter since after filing parawise comments on the memo of this appeal. It was stated in such comments that the respondent No.2's plot No.222 has been declared as protected heritage under the Act, 1994 however, the Agency has issued NOC for proposed project without consultation with their department (respondent No.3). It was further stated that according to law, the matter for grant of NOC for such projects on protected heritage is required to be placed before Advisory Committee headed by Chief Secretary, Sindh for its approval however, in the present case, the Agency has issued NOC at its own level which is a gross violation of the Act, hence such approval may be cancelled.
10. We have considered the submissions of the parties. Regulation 9(2)(c) of the Regulations, 2014, repeatedly referred by contesting parties, provides that every EIA report filed with the Agency shall be accompanied by, inter alia, NOCs from relevant departments which shall be the part of EIA report. Record shows that total five NOCs of different departments i.e KWSB, SSGC, CAA, K-Electric and AHQ, were filed by respondent No.2 together with EIA report. So, here the requirement and relevancy of NOC of respondent No.3's department, within the scope of the Act, 2014, is in question.
In this connection, section 2 of the Act, 2014 provides the definitions of various terms including the "Environment" which as per clause (xii)(a) and (e) is defined to mean, inter alia, the air, water, 'land, natural resources and buildings, structures, works etc. In clause (xiii) the "Environmental Aspect" is defined as, an organization's activities or services that can interact with the environment. Definition of "Adverse Environmental Effect" is given in clause (i) to mean, impairment of, or damage to, the environment, human health and safety or to property, etc. "Environmental Impact Assessment" has been defined in clause (xv) which means an environmental study comprising, inter alia prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigation and compensatory measures, etc. The "Project" is defined in clause (xlii) to mean any activity, plan, scheme, proposal, or undertaking involving any change in the environment and includes, inter-alia, construction or use of building or other works, any change of land use, or water use, etc. While subsection (4) of section 17 of the Act, 2014 requires filing of EIA report complete in all respects in accordance with Regulations. Subsection (1) of section 6 of the Act, 2014 enumerates the functions of the Agency, and its clause (a) requires the Agency to implement the provisions of this Act and the Rules and Regulations. Its clause (w) says that the Agency shall take all necessary measures for protection, conservation, etc. of the Environment. While "protected area" is defined in Regulation 2(j) of Regulations, 2014 to mean any area which protect, inter alia, conservation of cultural significance.
11. Whereas the Antiquities Act, 1975, provides in section 22 that: "Notwithstanding anything contained in any other law for the time being in force, no development plan or scheme or new construction on, or within a distance of two hundred feet of a protected immoveable antiquity shall be undertaken or executed accept with the approval of the Director General."
The appellant in its comments dated 22.10.2020 filed on EIA report of June, 2020, had submitted before the Agency a list of 8 buildings bearing plot Nos. 213, 215, 221-A, 222-A, 223, 244, 245 and 247 which, according to them, are the protected antiquities/heritage sites falling within 200 feet radius of project site. The definitions of relevant terms as are given in section 2 of the Act, 1975 include "Ancient" in relation to an antiquity, means an antiquity which has been in existence for a period of 75 years. The meaning of "Antiquity" includes architecture, etc. Whereas "Protected Antiquity" means an antiquity which is declared under section 10 to be protected antiquity. Subsection (1) of section 10 of the Act, 1975 provides that the Federal Government may by notification in the official gazette, declare any antiquity to be protected antiquity for the purpose of this Act. However, no such notification of Federal Government is yet produced to show if any property/building falling within 200 feet of project site, has been declared/notified as protected antiquity. The concerned department of Archaeology and Museums, Government of Pakistan is not party to this matter. In this connection, the respondent No.2 in its EIA report had already stated at para 2.6 (page 17) that after 18th amendment in the Constitution the subject of "Ancient and historical monuments, archaeological sites and remains" was devolved to the provincial legislation. He further stated in the same para that Sindh Cultural Heritage (Preservation) Act, 1994 is the provincial law for the protection of cultural assets and its objectives are similar to those of the Antiquities Act, 1975.
However, the Culture, Tourism and Antiquities Department, Government of Sindh has been added in this appeal as respondent No.3.
12. The said Act, 1994 in clause (vi) of section 2, also defines "protected heritage" as under: "any premises or objects of archaeological, architectural, historical, cultural or national value declared as such by Government by notification that would include the land externally appurtenant such thereto and the out walls thereof "
Subsection (1) of Section 6 provides that: "Government may, by notification in the official Gazette on the recommendation of committee or otherwise declare any premises of historical, cultural or architectural value to be protected heritage within the meaning of this Act."
Subsection (1) of section 10 of the Act, 1994 further provides: "If it is apprehended that any person intends to destroy, remove, alter, deface or imperil the protected heritage or to build on or near the site thereof in contravention of the terms of an agreement for its preservation under section 8, the committee may an order prohibiting any such contravention."
The appellant also contends that out of 8 antiquities/heritage buildings which are surrounding within 200 feet of respondent No.2's project/plot No.222, two properties/buildings Nos.CAN-244 and 245 were notified by the provincial government on 25.04.2011 and published in the official gazette on 07.06.2011 to be the protected heritage under the Act, 1994, and two other properties/buildings Nos.223 and 221-A/222-A are very near and close to plot No.222 being adjacent to it from both sides and therefore, the EIA approval for deep excavation for six basement and many other things, exposes threat at least to these nearest properties which are adjacent to the project site. This is denied by respondent No.2 whose counsel contends that there is no notification of Federal Department regarding eight protected antiquities allegedly falling within 200 feet of project site and there was no gazette notification of Provincial Government at the time of EIA approval accorded in 2020 and the notification subsequently published in the official gazette in 2021, has no retrospective effect and even otherwise the same is invalid in respect of two properties adjacent to project site.
13. As per claim of respondent No.2 made in para 6.2 (page 123) of EIA report, the project site has no sensitive areas such as protected sites or any archaeological, historical or cultural heritage within the zone of influence, as such its sitting would have no sensitivity. In para 6.4.5 (page 130) it is further claimed that there are no protected or otherwise cultural or archaeological sites in the micro-environment of the project site hence no impact of the project will occur on cultural or archaeological resources. However, in para 2.6 (page 17), the respondent No.2 also mentioned that about 600 historic buildings were declared heritage sites under the Act, 1994. Record shows that 95 buildings, only from the limited area of Cantonment Quarters Karachi, are declared by Government of Sindh on recommendations of the Advisory Committee, to be the protected heritage on account of their architectural value, vide notification dated 26.04.2018 issued by Culture, Tourism and Antiquities Department (respondent No.3) under the Act, 1994 wherein it was specifically mentioned that any intentional act to build on or near the protected heritage site would be unlawful. Such notification was also published in daily Dawn Karachi on 07.05.2018. Subsequently, the same was also published in official gazette on 10.06.2021. The said 95 buildings include the offices at plot No.CAN-223 and officers' suites at plot No.CAN-221-A/222-A which are enlisted at serial Nos.69 and 70 of such notification. As per the layout/site plan (page 31 of EIA report) the building No.222-A is in North and 223 is in South of the project site i.e. plot No.222 which is said to be a demolished building/plot lying between the said properties already declared protected heritages. While there are roads on remaining two sides of it.
14. According to learned counsel for appellant the protected heritage sites are also the sensitive areas having direct relevancy to environmental concerns as is highlighted in detail in the "Guidelines for sensitive and critical areas", issued by Government of Pakistan in 1997. Such booklet has been placed on record in support of his arguments regarding relevancy of the assessment of environmental impact to the antiquities and heritage sites. The relevant part of its para 2 is reproduced below: "The object of the guideline is to provide guidance to protect proponents and other stakeholders in the environmental assessment process, so that the proposed projects are planned and sited in a way that protects the values of sensitive and critical areas.
These guidelines will help proponents of projects requiring Environmental Reports: in identifying what are the officially notified protected areas in Pakistan, these may include critical ecosystems including wildlife reserves and forests; archaeological sites, monuments, buildings, antiquities, or cultural heritage sites; if a proposed development is on a notified protected area or within the vicinity of such an area, then the approach detailed in this guideline should be adopted."
It appears that the above guide book is just like a warning for the proponents to be conscious while submitting EIA report for construction on or within the vicinity of antiquities/heritage sites, etc. In the circumstances, the case law reported as 2018 SCMR 1885, 2019 SCMR 859, 2017 SCMR 831 and 2008 SCMR 1148 relied upon by learned counsel for respondent No.2 and PLD 2004 SC 261, PLD 2016 Sindh 31 and PLD 2020 Sindh 85 relied upon by learned counsel for appellant, is likely to touch the merits of case if discussed at this stage while dilating upon the controversies of the parties.
15. It is clear from the above that respondent No.3's department is one of the relevant departments whose NOC/approval/clearance or otherwise, is required in terms of Regulation 9(2)(c) of the Regulations 2014, so as to be made a part of EIA report, falling within the scope of the Act. 2014 and the Regulations framed thereunder. The Act. 2014 allows certain construction of the buildings, etc. and the Act, 1994 prohibits some construction under certain terms and conditions, respectively, which cannot be gone through in detail at this stage, especially when such objections raised by appellant in its comments filed on EIA report, were not considered by respondent No.1 while passing/issuing impugned order/decision signed by his subordinate officer. However, it is an admitted position that the construction of the project building is not yet commenced. In the circumstances, the applicability of various provisions of law as referred to above, and the validity of the aforesaid Notifications, etc. can be considered together with the merits of the case especially the environmental issues, if any, after due compliance of relevant provisions of law by the respondents.
16. As a result of the above, this matter is remanded to respondent No.1 who shall treat the EIA report of respondent No.2 pending and he, after getting respondent No.3's NOC/approval/clearance or otherwise, shall continue the process afresh which includes inviting objections/concerns on EIA report, conducting public hearing, visiting project site, consulting Experts' Committee, soliciting views of Advisory Committee (in terms of Regulations 12, 24 etc. of Regulations, 2014), with active participation of the experts/nominees of respondent No.3 whose views shall be recorded in minutes of meetings and shall also be discussed, followed by reasons, in the decision/order to be passed, issued and signed by Director General SEPA, within a period of three months of the receipt of copy of this order.
17. Accordingly, the impugned order is set-aside and this appeal is disposed of in the above terms, with no order as to cost.