JUDGMENT ASIF SAEED KHAN KHOSA, J.- Through the present consolidated judgment I propose to dispose of Writ Petition No. 8200 of 2000 and Writ Petition No. 9289 of 2000 together as they are directed against the same impugned judgment passed by a learned Additional Sessions Judge, Lahore on 25.4.2000.
2. The necessary facts giving rise to the present petitions are that Mr. Munawar. Malik, writ- petitioner in Writ Petition No. 8200 of 2000, lives in the area known as Gulshan-e-Ravi, Lahore and about 8/10 years ago Mr. Affan Javaid Khan, respondent No. 4 in the said writ petition and the writ- petitioner in Writ Petition No. 9289 of 2QP0, had put up some machinery on a plot situated across the street .From the house of the petitioner. With the use of the said machinery Mr. Affan Javaid Khan had allegedly started business of manufacturing plastic goods. The noise emanating from the use of that machinery of Mr. Affan Javaid Khan disturbed the peace and tranquil of Mr. Munawar Malik's life and this stated nuisance caused to Mr. Munawar Malik and the other residents of that area was agitated against by Mr. Munawar Malik. Ultimately on 18.12.1997 Mr. Munawar Malik filed an application under section 133, Cr.P.C. Before a learned Magistrate at Lahore seeking stoppage of that activity by Mr. Affan Javaid Khan. That application was finally disposed of by the Assistant. Commissioner @ Sub-Divisional Magistrate (Sadar), Lahore vide order .Dated 22.1.1999 wherein it was observed that the case was not fit for a 'definite action under section 133, Cr.P.C. Mr. Munawar Malik challenged the said order before the learned Court of Session, Lahore through a revision petition which was ultimately accepted by the learned Additional Sessions Judge, Lahore judgment dated 4.6.1999 and, resultantly, the matter was remanded to the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore for deciding the matter afresh in the light of some observations made by the learned revisional Court., That order of remand was assailed by Mr. Munawar Malik before this Court through Writ Petition No. 16837/99 but the said writ petition was dismissed by this Court vide order dated 5.10.1999. Mr. Munawar Malik then filed Civil Petition for Leave to Appeal No. 1852-L of 1999 in that regard before the Honorables Supreme Court of Pakistan but that petition was also dismissed by the Honorables Supreme Court vide order dated 23.2.2000.
3. During the post-remand proceedings the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore required the Environmental Protection Department to depute some expert so as to evaluate the situation at the spot whereupon Mr. Muhammad Younus Zahid, Inspector, Environmental Protection Authority, Lahore submitted a detailed report in that regard on 16.11.1999 wherein, after a detailed assessme nt of the situation on the ground, he recommended the following three steps to be taken by Mr. Affan Javaid Khan; "(i) the owner of the industrial work should not be allowed to operate the factory from sunset to sunrise;
(ii) he may be directed to instal forced draught chimney having at least 35 feet height for the proper disposal of offensive odour; and
(iii) he may be directed to make the production rooms sound proof by closing the windows and openings by bricks."
In the concluding paragraph of this report the said Inspector had further remarked that:- "If the above-mentioned conditions are not met then the only option is that the industrial work should be shifted to some other place in order to redress the grievances of the petitioner and public in general.
4. Placing a whole-hearted reliance on the said report of the Inspector, Environmental Protection Authority, Lahore the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore passed an order on 20.11.1999 on the same lines by way of final decision on the application of Mr. Munawar Malik under section 133, Cr.P.C.
5. Feeling dissatisfied with the above decision both Mr ^Munawar Malik and Mi. Affan Javaid Khan preferred separate revision petitions against the said order before the learned Court of Sessions, Lahore both of which were finally dismissed by the learned Additional Sessions Judge, Lahore vide consolidated judgment dated 25.4.2000. The learned Additional Sessions Judge, after attending to every aspect of this matter, had concluded as follows:- "I have given anxious thought to all the aspects involved in this controversy and I am of the .Considered view that the report submitted by said Inspector Environmental Protection Department is the most proper solution of the problem.. With the implementation of that report the petitioner shall be able to have a sound sleep and his family. As well in his house and the respondent No. 1 shall also be able to earn his livelihood and in this way both the parties shall be .Accommodated.
Keeping in view the controversy in hand and the nature of the urgency involved in the matter I propose the following measures to settle the matter once for all:-
(i) The report submitted by Inspector Environment Protection Department which has been based upon by the A.C. Saddar in. The impugned order shall be strictly implemented because it is a report submitted by an expert in the matter and it can only save interest of both the parties because if the respondent No. 1 takes the measures suggested in the said report not only the petitioner will be satisfied and will be protected from the constant nuisance but the respondent himself will be saved from lot of difficulties and agony which he is likely to suffer in case of shifting of his factory. It is pertinent to be noted that even the petitioner Munawar Malik has filed an application on 18.11.1999 before the A.C. Saddar for implementation of the said report which according to him is well- balanced report.
(ii) A.C. Saddar shall ensure the implementation of the said report within one. Month from today and in case the respondent No. 1 fails to comply with the said report/order dated 20.-H.1999 in letter and spirit, the A.C. Saddar shall take prompt legal action against the respondent No. 1 and he will be personally responsible for shifting of said industrial unit from the residential area in case of non- compliance of the order dated 21.11.1999.
(iii) A copy of this order shall be sent to the learned District Magistrate for information so that being Administrative Head of the District he may look into the matter for redressal of the grievance of the petitioner and other inhabitants of that locality."
6. The above-mentioned judgment passed by the learned Additional Sessions Judge, Lahore pm 25.4.2000 has been assailed before this court by both Mr. Munawar Malik and Mr. Affan Javaid Khan through the above- mentioned Writ Petitions which are the subject-matter of the present consolidated judgment.
7. I have heard the learned counsel for the parties in person as well as their learned counsel and have gone through the record of this case with their assistance. The Assistant Commissioner/Sub- Divisional Magistrate (Sadar), Lahore has also been heard in person. At the outset Mr. Munawar Malik has stated before this Court that under the given situation he does not press his writ petition No. B200 of 2000 as he now feels satisfied with the impugned judgment passed by the learned Additional Sessions Judge, Lahore if it is properly implemented. As against that Mr. Affan Javaid Khan and his learned counsel have maintained that the - Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore had not provided an opportunity of hearing to Mr. Affan Javaid Khan as the presence of Mr. Affan Javaid Khan or his learned counsel was never mentioned in the order passed by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore on 20.11.1999. In this context it has further been pointed out by them that the impugned order had been passed on 20.11.1999 whereas a notice was issued by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore to Mr. Affan Javaid Khan on 22.11.1999 for appearance before him on 25.11.1999. Thus, according to them, the order passed by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore had violated the cherished principle of audi alteram partem and the same militated against the principle of natural justice. It has further been argued by Mr. Affan Javaid "Khan and his learned counsel that the Assistant Commissioner/Sub-Divisional Magistrate (Sadar Lahore had failed to provide an opportunity to Mr. Affan Javaid Khan to put forward his objections to the report submitted by the Inspector, Environmental Protection Authority, Lahore. It his, thus, been canvassed that the matter should once. Again be remanded to the Assistant Commissioner/Sub- Divisional Magistrate (Sadar), Lahore for appropriate orders after providing the parties a fair opportunity of hearing.
8. After hearing the parties and their learned counsel and going through the record of this case I have felt no hesitation in concluding that both these writ petitions must fail. Mr. Munawar Malik has already felt satisfied with the impugned judgment passed by the learned Additional Sessions Judge, Lahore. As regards Mr Affan Javaid Khan his main grievance against the impugned judgment is that he was not afforded proper opportunity of hearing before the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore. This grievance of Mr. Affan Javaid Khan does not appear to be well-founded. It is true that the impugned order passed by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore does not show presence of the parties at the time of passage of that order but at the same, time it is equally true that before the final passage of that order both the parties to this case had remained fully associated with the post remand proceedings before the Assistant Commissioner/Sub-Divisional Magistrate (Sardar), Lahore. They had appeared before him on several occasions and had been putting forward their points of view before-him at every step of those proceedings. The notice sent by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore to Mr. Affan Javaid Khan on 22.11.1999 for appearance before him on 25.11.1999 was in fact in respect of implementation of the order dated 20.11.1999. The Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore confronted both the parties before this Court with the said factual position and both the parties could not contradict him in that regard. Even otherwise both the parties had submitted revision petitions against the impugned order passed by the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore before the learned Court of Sessions, Lahore and they were afforded full and ample opportunity to canvass their points of view before the learned Additional Sessions Judge, Lahore before passage of the final judgment by him on 25.4.2000. There is no dearth of precedents wherein availability and utilization of subsequent opportunity of hearing had washed away the initial lack of such opportunity before a forum below. Thus, I have felt fully satisfied that at least before the learned Additional Sessions Judge, Lahore both the parties had been afforded full opportunity of hearing and, therefore, any complaint in that 'regard against the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore stood watered down and neutralized.
9. The impugned arrangement worked and carved out by the combined efforts of . The Environmental Expert, the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore and the learned Additional Sessions Judge, Lahore has appeared to me to be quite just and fair in the circumstances of this case. The proposed arrangement not only ensures peace and tribunal of Mr. Munawar Malik's life but the same also ensures continued pursuit of livelihood for Mr. Affan Javaid Malik. I have, thus, found no reason to interfere with such an arrangement.
10. For what has been discussed above both the writ petitions under - consideration are hereby dismissed with no order as to costs.
11. Before parting with this order it may be observed that in. His judgment dated 25.4.2000 the learned Additional Sessions Judge, Lahore had required the Assistant Commissioner/Sub- Divisional Magistrate.(Sadar), Lahore to ensure implementation of the recommendations of the Environmental Expert within one month. However, due to suspension of operation of the said judgment during the pendency of the present writ petitions the said period of one month has already elapsed and the said recommendations of the Environmental Expert have not so far been implemented. The Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore is now, therefore, directed by this Court to ensure implementation of the said recommendations by Mr. Affan Javaid Khan within a period of two months from today and in case Mr. Affan Javaid Khan fails to comply with the said recommendations in their letter and spirit then the Assistant Commissioner/Sub-Divisional Magistrate (Sadar), Lahore shall take prompt action against Mr. Affan Javaid Khan and shall cause removal of the relevant industrial unit. From the residential area in question. A copy of this. Order shall also be sent to the District Magistrate, Lahore for supervision of such an exercise.