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Petitioner: SHEHRI C.B.E. VS Respondent: GOVERNMENT OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Mushir Alam, Maqbool Baqar Title: SHEHRI C.B.E. vs GOVERNMENT OF PAKISTAN and others Case No.: Constitutional Petition No.D-455 of 2005 Date of Judgment:2006-10-25 Reported As: PLD 2007 Karachi 293 Result: Order accordingly
JUDGMENT
JUDGMENT ' MAQBOOL BAQAR, J.---The petitioner, through the instant petition, has challenged the decision of the Sindh Environmental Protection Agency, the respondent No.4, on the basis of Initial Environmental Examination (IEE), according its approval for the construction and operation of a Ninety four (94) Megawat (MW) natural gas fired power plant and three million (MGD) desalination plant on Plot No.DSL-1, along 80 feet wide Coastal Avenue, Phase VIII, Defence Housing Society, Karachi. ' The aforesaid plant is being established by DHA Cogen Limited, the respondent No.7, a company formed by Defence Officers Housing Authority, the respondent No.5. In compliance of section 12 of Pakistan Environmental. Protection Act, 1997, (PEPA, 1997), respondent No.7, filed with the Sindh Environmental Protection Agency, the respondent No.4, an Environmental Impact Assessment (EIA), report (page 77 of the file). As required by Regulation 10 of Pakistan Environmental. Protection Agency (Revenue of IEE and EIA) Regulations, 2000, (IEE and EIA Regulations) respondent No.4, through a notice published in the daily 'DAWN' of 19th December, 2004, requested all those interested to offer their written comments in respect of the EIA, within 30 days of that notice and notified 20th January, 2005 for public hearing in the matter, at its office in Karachi (page 75 of the file). In response, the petitioner, after obtaining a copy of the EIA from respondent No.4, filed its comments/objections to the said assessment on 15-1-2005 (Page 437 of the file). Since 20-1-2005 was declared a public holiday on account of Eid-ul-Azha the scheduled meeting could not be held, and according to the petitioner, upon inquiry they were informed by an official of the agency that the postponed meeting/hearing will be held sometime in February 2005, however, since no date was forthcoming, the petitioner, through letter dated 31-1-2005, inquired from respondent No.4
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about the date of hearing, but there was no response, the petitioner on 12-3-2005 sent a reminder to respondent No.4, however, the same also remained un-responded. Subsequently the petitioner was informed by respondent No.4 that since respondent No.7 has approached the respondent No.4 and contended that the project did not require an EIA, as it fell in the category of the project that require only an initial Environmental Examination (IEE), the respondent No.4, after seeking advice from Pakistan Environmental Protection Agency, the respondent No.2, who upheld the contention of the respondent No.7, approved the project accordingly. ' Mr. Abdur Rehman, the learned counsel for the petitioner, submitted that the respondent No.4, by approving the project on the basis of IEE instead of EIA, and without a public hearing, have acted contrary to the mandate of law. He submitted that the impugned decision is violative of the provisions of sections 11 and 12 of PEPA, 1997 and regulation 10 of the IEE and EIA Regulations. The learned counsel submitted that in terms of section 12 of `PEPA 1997' no proponent of a project which is likely to cause an adverse environmental effect is permitted to commence construction or operation of such project, unless he has filed with the relevant Government Agency (in the present case the respondent No.4), an EIA, whereas Regulation 4 of IEE and EIA Regulations, requires a proponent of a project falling in any category listed in schedule II of the said regulation, to file an EIA, and has made the provisions of section 12 PEPA essentially applicable to such project. The learned counsel submitted that realizing the fact that since the project in question also comprises of a three (3) million gallons per day (MGD), sea water desalination plant, and 132 KV transmission line and a grid station are its integral parts, and is being constructed on a public beach, in close proximity to prime residential are of DHA, it clearly falls into categories. A.3, F and I, of schedule II, and in acknowledgement of the above, the respondent No.7, being the proponent of the project, submitted the EIA before respondent No.4, who in compliance of subsection 3 of section 12 of PEPA, 1997 and regulation 10 of IEE and EIA Regulation, through a public notice invited comments and notified a date for public hearing. He contended that in view of the foregoing and as required, in terms of clause (b) of subsection (2) of section 12 PEPA 1997, it was incumbent upon respondent No.4 to have reviewed the EIA before according its approval, which review, in terms of subsection (3) of section 12, PEPA 1997, was essentially required to be carried out with the public participation. Mr. Rehman contended that respondent No.4, by purportedly approving the project on the basis of IEE, instead of EIA and by refusing to hold the public meeting have not only violated the provisions of section 12 and regulation 10 of IEE and EIA Regulation, but the impugned decision is also violative of Article 9 of the Constitution and is against the principles of natural justice. He further submitted that the impugned approval/permission also violaties the mandate of section 11 of PEPA 1997, which provision prohibits discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards (NEQS).. The learned counsel submitted that the project site is in close proximity to public recreation area and, just three (3) kilometers from mangroves of Creek club and residential areas, including a high-rise complex, and will have adverse Environmental effects by emissions from the co-generation and desalination, including particular matter, Nox and Cox discharges, and shall also result in disposal of liquid effluents from the gas turbine and desalination plants into the sea, including brine concentrate. Oxygen-deficient water, Biocides, chlorine, other chemicals, toxic metals, sealants and anti-foaming agents, as detailed in the petition. He submitted that out of the total intake of the seawater ninety per cent (90%) will be retuned to the sea, in the form of brine, at 15 degree centigrade higher than the normal temperature. To substantiate his claim, the learned counsel referred to the technical feasibility study report submitted by respondent No.7 to NEPRA in respect of the project, which contains the above fact (at page 349 of the file) and contended that the above noted discharge and rise in temperature will adversely affect thee. Marine life.
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' According to the learned counsel, the take over of the beach, which is a public property, for industrial use would deprive the citizens of Karachi of their right of un-fattered access to the beach. He submitted that right to life as guaranteed by Article 9, which includes entitlement to enjoy a good quality of life with amenities, facilities , clean and unpolluted environment, shall be severely impaired by the construction of the project in question and would thus result in violation of the mandate of the Constitution, and cause environmental degradation through non-observance of environmental laws, He submitted that the project is being constructed on a large tracts of land reclaimed from seawater, and claimed that such reclamation, disturbing the natural course of seawater, is only allowed for the purpose of construction of ports, harbours, jetties, wharves, quays, bridges and other such facilities and is not permissible for the purpose of setting up cogent/desalination plants. He submitted that the government holds title to the lands under the seawater. It is a title held in Trust for the people that they may enjoy the navigation of the waters, carry on commerce over them and have liberty of fishing therein, free from the obstruction or interference of private parties, and the abdication of the general control of the Government over lands under navigable waters is not consistent with the exercise of that trust which requires the Government to preserve such waters for the use of the public. He submitted that the doctrine of public Trust as guaranteed under Article 9 of the Constitution prevents the Government, or any public body, from compromising the rights of the people in respect of such lands, but is being compromised by setting up the project in question. In support of his contention counsel referred to the case of Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited and others 2005 CLC 424, wherein S. Ali Aslam Jafri, J (as he then was) held as follows:- "24. It is well-settled that natural resources like air, sea waters, and forests are like Public Trust. The said resources being a gift of nature, they should be made freely available to every one irrespective of the status 'Doctrine of Public Trust' as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic law certain water resources are to be protected from misuse and over exploitation. (Reference can be made to a discussion at page 37 of the book 'Environmental Dimensions of Islam' by M. IZZI DIEN." ' Mr. Rehman also relied on Illinois Central R. Co. v. Illinois, 146 US 387 (1872), the case has been aptly summarized and discussed in an other case titled Appleby v. City of New York 271 U.S. 364 (1926) in the following words:-- "In Illinois Central R. Co. Case, the validity of a grant by the Illinois Legislature to the Illinois Central Railroad Company of more than 1,000 acres in the harbour of Chicago in Lake Michigan was under consideration. It was more than three times the area of the outer harbour, and not only included all that harbour, but embraced the adjoining submerged lands which would in all probability be thereafter included in the harbour. It was held that it was not conceivable that a Legislature would divest the state of this absolutely in the interest of a private corporation, that it was a gross perversion of the trust over the property under which it was held, an abdication of sovereign governmental power, and that a grant of such right was invalid. The limitations on the doctrine were stated by Mr. Justice Field, who delivered the opinion, as follows, at page 452 (13 S Ct. 118): 'The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the State may grant parcels of the submerged land; and, so long as their disposition is made for such purpose., no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters, that my afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the
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adjudged cases as a valid exercise of legislative power, consistently with the trust to the public upon which such lands are held by the State. But that is a very different doctrine form the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbour or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in. The lands and waters remaining . It is only be observing the distinction between a grant of such parcels for the improvement. Of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled." ' The above case is of no avail to the petitioner as the project land has been reclaimed along with the sea shore and as mentioned in the site plan is only ten (10) acres in measurement. It may be relevant to mentioned here that Navigable waters have been held to include the high seas, which begin at a line three miles offshore, reliance in this regard is placed on Reynolds v. Ingalls Shipbuilding Div. v. Litton Systems Incorporation C.A. Miss, 788 F 2d. 264, 268. ' He submitted that the impugned order has been passed without informing the petitioner, regarding the fate of their objection or as to why the objections were not accepted or even considered. He submitted that the impugned decision is arbitrary and capricious and is contrary to the principles of structuring discretionary power and submitted that in terms of section 24-A of the General Clauses Act, 1897, the agency was required to have exercise its power reasonably, fairly, justly and for the advancement and in the interest of preservation of environment, and ought to have passed a reasoned order. ' On the other hand, Mr. Makhdoom Ali Khan, the learned Attorney General, who appeared for respondent No.5 also, submitted that in the first place, the project in question does not fall into any category enlisted in Schedule-II of the IEE and EIA Regulations, according to him, the classification of 'a project is based on its main activity, which in the present case, is power generation of a capacity of 94 mega watts, and desalination is a bye-product which is aimed at using heat energy generated from the power generation to make the project environmental friendly, and therefore it would not be appropriate to classify the project as a desalination plant and secondly, even if it is so classified, the project will still not fall within the definition of a treatment plant the removes waste. Regarding the transmission line and the grid station, the learned Attorney General submitted that the construction of the transmission line and grid station is not a part of the project and the power generated from the 'plant will be supplied to Karachi Electric Supply Corporation (KESC), at the inter-connecting point located at the site of the project and the construction of any connecting transmission line and grid station is a job to be undertaken by KESC, who shall own, and operate them, and as such, compliance with the legal requirements in respect thereto shall be made by KESC. He further submitted that since the project does not fall into any of the categories, enumerated in schedule-II, the respondent No.4 was not required either to treat the project, as that requiring an EIA, or to grant any hearing to the petitioner. He submitted that the petitioners have failed to correctly appreciate the nature of the project and the petition has been filed merely on the basis of 'prima facie apprehensions' which are wholly un-founded. He submitted that the various apprehensions expressed by the petitioner regarding environmental degradation in their petition and reiterated by Mr. Rehman have been duly addressed through the counter affidavits filed by respondents Nos.5 and 7. The learned counsel submitted that contrary to the petitioner's
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assertions, the project is being constructed at sea shore and at least five kilometers away from the closest public beach, known as sea view, and four to five kilometers away from the closest human settlement. There is no public recreation spot near the project site. He submitted that neither PEPA, 1997 nor any other environmental law prohibits construction of the project on the sea shore. There is no creek or estuary or mangroves in the vicinity of the project site. He submitted that contrary to the petitioner's claim, the construction of the project does not give rise to any genuine environmental concerns but is actually being constructed for the benefit of the people. However, the petitioner has failed to appreciate the nature of the project and its utility for the citizens of Karachi who suffer from short supply of drinking water and do not have un-interrupted access to electricity. The water consumed by a large number of the citizens of Karachi is the carrier of many water borne diseases such as hepatitis, gastroenteritis, typhoid, cholera, dysentery etc. The respondent No.5 as a responsible body, committed towards development of the area within its jurisdiction and in order to improve the lives of the residents of the area, and to provide to them the basis necessities of life, has, along with respondent No.7, undertaken the project. As regards, air emissions, he submitted that since only natural gas, which is universally accepted as the safest fuel available, will be used as fuel for power generation, the emission of CO will remain within the limiting values of NEQs and further use of low NOX burners associated with oxygen normalization and efficient combustion controls, as required in terms of the impugned order, will keep, the emissions of NOX within the limits of NEQs. The learned counsel pointed out that in terms of the impugned approval, respondent No.7 is essentially required to comply with the NEQs for industrial waste water and air emissions from the project, and to submit to respondent. No.4, a quarterly report for the priority parameters of air emissions (CO, ,NOX). He further pointed out that monitoring of ambient air quality at the plant boundary and 500 meter radius shall be conducted on monthly basis for CO and NOX parameters during operation of the plant in order to observe incremental impact of the plant and the results shall be annexed with the quarterly monitoring reports, and that the impugned permission also requires that the brine generated from the desalination plant shall be discharged into the sea at an optimum design distance without addition of any chemical/pollutant so that it is diluted and total dissolve solid (TDS) contents in the particular area of the sea is not increased to any extent and that the below down of the power plant should be monitored before its disposal into the sea. The learned Attorney General submitted that contrary to the petitioners claim, none of the effluents as listed in the petition will be discharged from the desalination process, and thus the petitioner's purported concern regarding discharge of effluents is wholly un-founded. In addition to the above, the project will comprise a system to remove oxygen deficiency from the discharged water and the only chemical that will be used in the desalination process is an anti-sealant, Altreat 400, which is environmentally safe and has been certified as suitable for drinking water application and no effluents will, therefore be generated from this activity whereas the power plant has been designed with virtually zero below down and thus no effluents will be discharged from power generation activity also. Mr. Khan submitted that an undertaking may be recorded by this Court on behalf of the respondents Nos.5 and 7 that the temperatures of residual seawater discharged into the sea will not go beyond 40 degree centigrade and that the discharge of brine shall not raise the salt level in the seawater. He submitted that the discharge water will pass through a well designed and well constructed open channel significantly reducing the temperature to a level below that prescribed by the NEQs and will not result in a temperature increase of more than 3. Centigrade which is NEQ complaint. ' The learned counsel further submitted that the seawater intake system has been designed to ensure that no fish of any size is entrained in this intake water channel. He pointed out that respondent No.7 has engaged the services of M/s. Aplha Laval and Siemens, who have substantial experience, and very high calibre experts to handle such projects world-wide and submitted that
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similar plants built in Turkey, UAE and Saudi Arabia have been found to be environmental friendly. Mr. Khan argued that in interpreting the provisions of the PEPA, 1997 and the fundamental rights as guaranteed by the Constitution, a balance must be found between the right to a healthy environment and the right to sustainable development, both of which are implicit in the right to life and it is also essential to maintain a-balance between industrialization and ecology, an imaginary necessity to preserve the environment must not hamper real development. Development and environmental protection must progress together, indeed genuine as opposed to imaginary, environmental concerns must be given due weight in the construction of projects, but hypothetical and exaggerated environmental issues cannot be allowed to be raised to trump progress. He submitted that respondent No.4 has granted approval of the project only after review and scrutiny of the environment assessm ent and after having been satisfied with the mitigating measures to be adopted by the respondent No.7, the approval has,been granted subject to observance of certain stringent conditions by respondent No.7 during the life of the project. ' Regarding Mr. Rehman's contention that reclamation of land from the sea is not permissible for the purpose of establishing power gendation and desalination plants as is being done in the present case, the learned Attorney General submitted that neither PEPA, 1997 nor any other law prohibits construction of the project on a land reclaimed from the seawater. He further submitted that the project is currently in the advanced stages of completion, 90% of equipment, has been installed the remaining 10% of the equipment has already been shipped and is expected to reach Karachi within weeks, about 400 skilled workers, including international experts are working on the project. He submitted that any delay in the completion or commissioning of the project would prejudice not only the respondents Nos.5 and 7 and other who are concerned with the project, but the delay would also severely affect the residents of DHA. ' Concluding his argument, Mr. Khan submitted that the allegations made by the petitioner raise complicated and complex questions of facts which cannot be disposed of without recording evidence, the instant petition is therefore not maintainable, is liable to be dismissed. ' Mr.Abbas Ali, the learned Additional Advocate General and Mr. Mahmood Mandviwala for respondent No.7 adopted the arguments of the learned Attorney General. ' Heard the learned counsel and perused the record of the case. The project in question, as can be seen from the EIA submitted by respondent No.7, comprises of a 'combine cycle power plant' of 94 MW power production capacity and a three (3) million imperial gallon per day (MIGPD), desalination plant, being constructed on Plot No.DSL-1, Phase-VIII, Defence Housing Authority, and just about fifty (50) meter, away from the Arabian Sea at a cost of 106.0 million US Dollars. In terms of section 12 of PEPA, 1997, an essential pre-requisite for establishing and operating a project, which is likely to cause an adverse environmental effect, is to file with the relevant environmental protection agency, an ETA, and the construction of such project can Only commence, and the project can be put into operation only after the same has been approved by the said agency, after its evaluation on the basis of the HA, whereas, in terms of subsection (3) of section 12 of PEPA, 1997, it is mandatory that review of an EIA be carried out with public participation. Regulation 4 of the IEE and EIA, Regulations, require a proponent of a project falling in any category listed in Schedule-II of the regulation, to file an EIA, the regulation also prescribes that section 12 of PEPA, 1997 shall apply to such project, Schedule-II of the IEE and EIA Regulations, containing a list of projects requiring and EIA; enlists, at Sr. F, 'water supply schemes and treatment plants of a total costs of Rs.25 million and above'. It is an admitted position that respondent No.7 as a proponent of the project in question has submitted an HA with respondent No.4, who in turn through a notice published in the Daily `DAWN' of 19-12-2004, invited comments from the public, to be submitted within 30 days of the…
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